R v Turner - anyone able to supply a transcript?
Discussion
As a pervert, I take great joy in readin bailii judgements and from the one that has appeared today about Danny Nightingale I am interested in seeing the transcript of "R v Turner [1970] 2 QB 321"
Would some piston header with access to relevant databases be so kind as to paste the transcript to this thread please?
Much appreciated!
Would some piston header with access to relevant databases be so kind as to paste the transcript to this thread please?
Much appreciated!
Regina v Turner
Court of Appeal
24 April 1970
[1970] 2 W.L.R. 1093
[1970] 2 Q.B. 321
Lord Parker C.J., Widgery L.J. and Bean J.
1970 April 24
Crime—Plea—Guilty—Not guilty plea entered—Counsel advising change of plea during trial—Propriety—Defendant's freedom of choice—Access between counsel and judge—Presence of defendant's solicitor—"Plea bargaining"—Whether improper.
The defendant pleaded not guilty at his trial on a charge of theft. He had previous convictions, and during an adjournment he was advised by his counsel in strong terms to change the plea; after having spoken to the trial judge, as the defendant knew, counsel advised that in his opinion a non-custodial sentence would be imposed if the defendant changed his plea, whereas, if he persisted with the plea of not guilty, with an attack being made on police witnesses, and the jury convicted him there was a real possibility of a sentence of imprisonment being passed. Repeated statements were made to him that the ultimate choice of plea was his. He thought that counsel's views were those of the trial judge; nothing happened to show that they were not and the defendant changed his plea with the result that a formal verdict of guilty was returned.
On appeal against conviction, on the ground that the defendant did not have a free choice in retracting the plea of not guilty and pleading guilty:-
Held, allowing the appeal, that counsel could properly advise a defendant in strong terms to change his plea provided that it was made clear to him that the ultimate choice was freely his (post, p. 325B-C); but that, if the advice was conveyed as that of someone who has seen the judge, a defendant should be disabused of any impression that the judge's views were being repeated (post, p. 325C-E); that as the defendant may have felt that the views expressed were those of the judge he could not be said to have had a free choice in changing his plea, and that, accordingly, the plea of guilty should be treated as a nullity and a venire de novo ordered.
Observations on "plea bargaining" (post, pp. 326D - 327E).
The following case is referred to in the judgment:
Reg. v. Hall [1968] 2 Q.B. 788; [1968] 3 W.L.R. 359; [1968] 2 All E.R. 1009, C.A..
APPEAL against conviction.
On January 26, 1970, at North East London Quarter Sessions (deputy chairman: Judge Basil Hobson), the appellant, Frank Richard Turner, was arraigned on an indictment charging him with theft contrary to section 1 of the Theft Act, 1968, the particulars of the offence alleging that he, on March 7, 1969, in the North East London Commission Area, stole a Humber Sceptre motor car belonging to Arthur Edwin Brown. The appellant pleaded not guilty to the indictment.
"The appellant's mind did not go with his plea of guilty in that he at no time intended or wished to admit the offence charged, yet was induced to plead guilty on being advised by his counsel that having consulted with the learned trial judge in the matter of sentence, the appellant would definitely be sent to prison were he to proceed with his trial and be convicted, whereas by pleading guilty he would receive a small fine. In all the circumstances the appellant was deprived of a free choice of pleading guilty or not guilty and was deprived of his opportunity to put his defence before the jury."
The facts are stated in the judgment.
Lewis Hawser Q.C . and Piers Herbert for the appellant. The principle applicable on applications such as this appears from Reg. v. Hall [1968] 2 Q.B. 788: as is stated, (1968) 52 Cr.App.R. 528, 534, the court will look into the matter and hear evidence to see whether the appellant in the circumstances had a free choice of plea, for the election must be his, and the responsibility his, to plead guilty or not guilty.
On the facts the appellant did not have a free choice in his plea. In the circumstances a venire de novo should be ordered.
John Hazan Q.C . and Michael Self for the Crown.
LORD PARKER C.J.
gave the following judgment of the court. On January 26, 1970, at North East London Quarter Sessions, Mr. Turner, to whom the court has now granted leave to appeal and accordingly he will be referred to as the appellant, pleaded not guilty to the theft of a car. On January 27, he retracted the plea of not guilty and pleaded guilty, whereupon a formal verdict was taken from the jury and he was fined £50, with four months' imprisonment in default of payment within four months, his licence was endorsed, and he was ordered to pay £75 towards the cost of the prosecution.
It is in some ways a curious case, because this car was his own car, and to a layman no doubt that raises a curious conception. But what had happened was, on the prosecution's case (because in the light of the plea of guilty no evidence was, of course, called for the defence), the appellant had left his car at a garage run by a father and son of the name of Brown. He had left it some time in February, 1969, asking for new piston rings to be fitted. It was the prosecution's case that after a discussion there was an agreement that the engine should he reconditioned for a cost of £65. The work was begun, and was completed on March 7. on that day, and this, it is always to be remembered, is the prosecution's case, the appellant called at the garage and said that he would come the *323 next day to collect the car. I should have added that when the car was left, rather naturally so was the ignition key. The garage not having very much space, parked the car, when the repairs were completed, in the street, and by 6.30 p.m. on March 7, the garage found that the car had been taken away from the place in the street where it had been parked. The garage still had the key, and so the police were rung up. However, the next thing that happened was that on March 16 Mr. Arthur Brown found this car parked in the very street where the appellant lived, and, I suppose rather indignantly, took the car back to the garage, took the engine out, and then towed the car, less engine, back to the place in the street where it had been found. The matter then got into the hands of the police, and in the end a prosecution was commenced at the instigation of the Browns.
It was the prosecution case that there had been an interview on March 16 when inquiries were made of the appellant as to his car, when he told an admitted lie, because he said he had never taken the car to the garage at all. The very next day, however, in answer to Detective-Sergeant Thompson, the appellant acknowledged that had been a lie. He then said that he had gone and taken the car away but that he had taken it with the full consent of the Browns who had handed back the key to him, the prosecution's case being that Mr. Brown still had the key.
In those circumstances there clearly was, as the deputy chairman ruled, a case to go to the jury of theft of his own car, because there was evidence from which the jury could find that the Browns had a proprietary interest namely a lien on the car, and that by reason of the alleged lies that had been told to the police, the taking had been done dishonestly. I should add that the appellant is 46, that he lives with a Miss Nelson, by whom he has two children, and that he has three findings of guilt, 14 previous convictions and, in his favour, that he seemed, under the influence possibly of Miss Nelson, to be turning over a new leaf in that his last conviction was in 1966.
Pausing there, there is really nothing to inquire into. But, of course, the matter does not end there, because this case has attracted considerable publicity as a result of what the appellant is said to have said to his solicitor the next day, and as a result of what the solicitor has made extremely public throughout the country. What is said now, in the amended grounds of appeal which have been put in, is that the appellant did not have an opportunity of exercising a free choice in retracting his plea of not guilty and pleading guilty, and that, as it were, his mind did not go with the plea of guilty. Accordingly, it was in those circumstances, as indeed it was in the Dulwich picture case, Reg. v. Hall [1968] 2 Q.B. 788, for the court to look into the matter, to hear evidence in regard to it in order to see, as was stated (1968) 52 Cr.App.R. 528, 534, whether the prisoner in the circumstances had a free choice, since the election must be his, and the responsibility his, to plead guilty or not guilty.
The uncontested facts are that by the luncheon adjournment on the second day, the prosecution witnesses had been called, in effect, the two Browns but not the police evidence, and up to that stage at any rate it could be said that things were going very well for the appellant. Indeed *324 the Browns were saying in effect that they thought that they were suing for their money, that it was a civil case. At any rate, the time had come when the police were going to give evidence. The appellant was represented by Mr. Ronald Grey of counsel, and he very rightly was worried in the matter, because he had instructions not merely to challenge the police and suggest that they had misunderstood the appellant's answers or had failed to remember what he had said, or anything of that sort, but his direct instructions were to attack the police, accusing them of complete fabrication in conjunction with the two Browns. Naturally he was faced with this, that if he observed those instructions it would be almost certain that the jury would have put before them the appellant's previous convictions.
Accordingly he did what it is the duty of every counsel to do, to give the best advice he can in the interests of the accused. Having explained the legal position, how this could amount to a theft assuming that the lien was proved, he went on to ask the appellant seriously to consider changing his plea to one of guilty. He did that quite openly in the presence of Mr. Laity, the solicitor, and he went on, on more than one occasion, putting it in strong words, that on a plea of guilty it might well be a non-custodial sentence, but if he went on and these convictions came out, the appellant ran the risk of going to prison.
There were long discussions beginning at about 1.50 p.m. in the interview room in the courts, and they went on to something like 3.30 p.m. Part of the time Miss Nelson, with whom the appellant lived, was there, and part of the time his sister, a Mrs. Crowe, was there. There was also the solicitor, Mr. Laity, and his clerk, Mr. Blake, and of course Mr. Grey of counsel. But quite clearly none of those persons, except the appellant, was there for all the time. In particular Mr. Grey was not there all the time. The time came when he said that he wanted to discuss the matter with the deputy chairman. He went, and when he came back he gave what the court accepts was his own personal opinion. His own personal opinion in the matter, and I take this from the evidence of Mr. Laity who appeared before us, was this:
"There is a very real possibility that if you are convicted by the jury and an attack has been made on the police officers, with your 16 previous convictions, you may receive a sentence of imprisonment. If at this stage you plead guilty, you must take my word for it, you will receive a fine or some other sentence which will not involve imprisonment."
Those were Mr. Grey's views, and as I have said the court accepts that he was passing on his own views.
The interview continued and, throughout, the appellant adhered to his view that he was going to fight, he was not going to retract his plea of not guilty. By about 3.30 p.m. it was intimated to the court that it would continue to be a fight, and Mr. Grey and the appellant left the interview room to go back into court. A further interview took place, as to what happened at that there is some dispute, in the cell adjoining or below the dock. It was only for a minute or two, but at the end of that discussion the appellant said that he was going to retract his plea, and accordingly *325 when everybody assembled in court the indictment was put to him again, he pleaded guilty, and the formal verdict of the jury was taken.
The first point taken by Mr. Hawser is that Mr. Grey exercised such pressure on the appellant, undue pressure, something beyond the bounds of his duty as counsel, so as to make the appellant feel that he must retract his plea, that he had no free choice in the matter. The court would like to say that it is a very extravagant proposition, and one which would only be acceded to in a very extreme case. The court would like to say, with emphasis, that they can find no evidence here that Mr. Grey exceeded his duty in the way he presented advice to the appellant. He did it in strong terms. It is perfectly right that counsel should be able to do it in strong terms, provided always that it is made clear that the ultimate choice and a free choice is in the accused person. The one thing that is clear here from all the evidence is that at every stage of these proceedings, certainly up to the interview in the cell, it was impressed upon the appellant by Mr. Grey, by Mr. Laity, by Miss Nelson herself, that the choice was open to him, and in so far as it rests upon undue influence by counsel, the court is quite satisfied it wholly fails.
The matter, however, does not end there, because albeit it may be sufficient in the majority of cases if it is made clear to a prisoner that the final decision is his, however forcibly counsel may put it, the position is different if the advice is conveyed as the advice of someone who has seen the judge, and has given the impression that he is repeating the judge's views in the matter. As I have said, the court is quite satisfied Mr. Grey was giving his own views and not the judge's at all. But it had been conveyed to the appellant that Mr. Grey had just returned from seeing the deputy chairman. What was said gave Mr. Laity the impression that those were the judge's views, and Mr. Grey very frankly said that in the circumstances the appellant might well have got the impression that they were the judge's views. Accordingly one asks: was he ever disabused of that, did anything happen to show that these were not the judge's views on the case?
Apparently a time came, when the discussion had been going on for a long time, when Mr. MacKenzie Ross, the acting temporary clerk of the court, came down to inform counsel (although he does not remember it, I think it must be right) that the judge could not allow much longer time. He saw Mr. Batt, who was the prosecuting counsel, in the robing room and conveyed this to him, and he went into the interview room and said something to Mr. Grey. Mr. MacKenzie Ross is quite satisfied in his own mind that what he said was that he was authorised to say that whatever happened, that is, whether there was a plea of guilty or whether the plea of not guilty stood, the result would be the same, it would not be a term of imprisonment, and of course if that were so that was really the end of the matter. There was absolutely no reason whatever for the appellant to alter his plea, he would be no worse off if he kept to his plea of not guilty.
Mr. Grey at any rate did not get that impression. Mr. Grey got the impression from Mr. MacKenzie Ross that the message that he was authorised to give was that if at this stage there was a plea, it would be a *326 fine, and of course that would, if true, really bear out the impression which the appellant already had.
This court is quite satisfied that Mr. MacKenzie Ross must be wrong in his recollection here - no doubt he was not asked about this until some time after the event - because we should not be here today if that really had happened. Accordingly nothing was conveyed by the clerk to the court which could have disabused the appellant of the impression which he had received earlier. Indeed, it may well have confirmed it. True, as I have said, he was warned that the choice was his, but once he felt that this was an intimation emanating from the judge, it is really idle in the opinion of this court to think that he really had a free choice in the matter.
Accordingly, though not without some doubt, the court feels that this appeal must succeed. I say "with some doubt" because despite all that I have said, the appellant drafted grounds of appeal himself originally, and really there is nothing of this in those grounds. However, Mr. Laity says he was informed of this point the day after the trial, and in all the circumstances of the case the court feels that the proper course will be to treat the plea that was given as a nullity, with the result that the trial that had taken place is a mistrial, and that there should be an order for a venire de novo.
Before leaving this case, which has brought out into the open the vexed question of so-called "plea-bargaining," the court would like to make some observations which may be of help to judges and to counsel and, indeed, solicitors. They are these:
1. Counsel must be completely free to do what is his duty, namely to give the accused the best advice he can and if need be advice in strong terms. This will often include advice that a plea of guilty, showing an element of remorse, is a mitigating factor which may well enable the court to give a lesser sentence than would otherwise be the case. Counsel of course will emphasise that the accused must not plead guilty unless he has committed the acts constituting the offence charged.
2. The accused, having considered counsel's advice, must have a complete freedom of choice whether to plead guilty or not guilty.
3. There must be freedom of access between counsel and judge. Any discussion, however, which takes place must be between the judge and both counsel for the defence and counsel for the prosecution. If a solicitor representing the accused is in the court he should be allowed to attend the discussion if he so desires. This freedom of access is important because there may be matters calling for communication or discussion, which are of such a nature that counsel cannot in the interests of his client mention them in open court. Purely by way of example, counsel for the defence may by way of mitigation wish to tell the judge that the accused has not long to live, is suffering maybe from cancer, of which he is and should remain ignorant. Again, counsel on both sides may wish to discuss with the judge whether it would be proper, in a particular case, for the prosecution to accept a plea to a lesser offence. It is of course imperative that so far as possible justice must be administered in open court. Counsel should, therefore, only ask to see the judge when it is felt to be really *327 necessary, and the judge must be careful only to treat such communications as private where, in fairness to the accused person, this is necessary.
4. The judge should, subject to the one exception referred to hereafter, never indicate the sentence which he is minded to impose. A statement that on a plea of guilty he would impose one sentence but that on a conviction following a plea of not guilty he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential. Such cases, however, are in the experience of the court happily rare. What on occasions does appear to happen however is that a judge will tell counsel that, having read the depositions and the antecedents, he can safely say that on a plea of guilty he will for instance, make a probation order, something which may be helpful to counsel in advising the accused. The judge in such a case is no doubt careful not to mention what he would do if the accused were convicted following a plea of not guilty. Even so, the accused may well get the impression that the judge is intimating that in that event a severer sentence, maybe a custodial sentence would result, so that again he may feel under pressure. This accordingly must also not be done.
The only exception to this rule is that it should be permissible for a judge to say, if it be the case, that whatever happens, whether the accused pleads guilty or not guilty, the sentence will or will not take a particular form, e.g., a probation order or a fine, or a custodial sentence.
Finally, where any such discussion on sentence has taken place between judge and counsel, counsel for the defence should disclose this to the accused and inform him of what took place.
Representation
Solicitors: Morris Williams & Co.; Solicitor, Metropolitan Police.
Appeal allowed. Conviction quashed. Venire de novo ordered. (L. N. W. )
Court of Appeal
24 April 1970
[1970] 2 W.L.R. 1093
[1970] 2 Q.B. 321
Lord Parker C.J., Widgery L.J. and Bean J.
1970 April 24
Crime—Plea—Guilty—Not guilty plea entered—Counsel advising change of plea during trial—Propriety—Defendant's freedom of choice—Access between counsel and judge—Presence of defendant's solicitor—"Plea bargaining"—Whether improper.
The defendant pleaded not guilty at his trial on a charge of theft. He had previous convictions, and during an adjournment he was advised by his counsel in strong terms to change the plea; after having spoken to the trial judge, as the defendant knew, counsel advised that in his opinion a non-custodial sentence would be imposed if the defendant changed his plea, whereas, if he persisted with the plea of not guilty, with an attack being made on police witnesses, and the jury convicted him there was a real possibility of a sentence of imprisonment being passed. Repeated statements were made to him that the ultimate choice of plea was his. He thought that counsel's views were those of the trial judge; nothing happened to show that they were not and the defendant changed his plea with the result that a formal verdict of guilty was returned.
On appeal against conviction, on the ground that the defendant did not have a free choice in retracting the plea of not guilty and pleading guilty:-
Held, allowing the appeal, that counsel could properly advise a defendant in strong terms to change his plea provided that it was made clear to him that the ultimate choice was freely his (post, p. 325B-C); but that, if the advice was conveyed as that of someone who has seen the judge, a defendant should be disabused of any impression that the judge's views were being repeated (post, p. 325C-E); that as the defendant may have felt that the views expressed were those of the judge he could not be said to have had a free choice in changing his plea, and that, accordingly, the plea of guilty should be treated as a nullity and a venire de novo ordered.
Observations on "plea bargaining" (post, pp. 326D - 327E).
The following case is referred to in the judgment:
Reg. v. Hall [1968] 2 Q.B. 788; [1968] 3 W.L.R. 359; [1968] 2 All E.R. 1009, C.A..
APPEAL against conviction.
On January 26, 1970, at North East London Quarter Sessions (deputy chairman: Judge Basil Hobson), the appellant, Frank Richard Turner, was arraigned on an indictment charging him with theft contrary to section 1 of the Theft Act, 1968, the particulars of the offence alleging that he, on March 7, 1969, in the North East London Commission Area, stole a Humber Sceptre motor car belonging to Arthur Edwin Brown. The appellant pleaded not guilty to the indictment.
- 322
"The appellant's mind did not go with his plea of guilty in that he at no time intended or wished to admit the offence charged, yet was induced to plead guilty on being advised by his counsel that having consulted with the learned trial judge in the matter of sentence, the appellant would definitely be sent to prison were he to proceed with his trial and be convicted, whereas by pleading guilty he would receive a small fine. In all the circumstances the appellant was deprived of a free choice of pleading guilty or not guilty and was deprived of his opportunity to put his defence before the jury."
The facts are stated in the judgment.
Lewis Hawser Q.C . and Piers Herbert for the appellant. The principle applicable on applications such as this appears from Reg. v. Hall [1968] 2 Q.B. 788: as is stated, (1968) 52 Cr.App.R. 528, 534, the court will look into the matter and hear evidence to see whether the appellant in the circumstances had a free choice of plea, for the election must be his, and the responsibility his, to plead guilty or not guilty.
On the facts the appellant did not have a free choice in his plea. In the circumstances a venire de novo should be ordered.
John Hazan Q.C . and Michael Self for the Crown.
LORD PARKER C.J.
gave the following judgment of the court. On January 26, 1970, at North East London Quarter Sessions, Mr. Turner, to whom the court has now granted leave to appeal and accordingly he will be referred to as the appellant, pleaded not guilty to the theft of a car. On January 27, he retracted the plea of not guilty and pleaded guilty, whereupon a formal verdict was taken from the jury and he was fined £50, with four months' imprisonment in default of payment within four months, his licence was endorsed, and he was ordered to pay £75 towards the cost of the prosecution.
It is in some ways a curious case, because this car was his own car, and to a layman no doubt that raises a curious conception. But what had happened was, on the prosecution's case (because in the light of the plea of guilty no evidence was, of course, called for the defence), the appellant had left his car at a garage run by a father and son of the name of Brown. He had left it some time in February, 1969, asking for new piston rings to be fitted. It was the prosecution's case that after a discussion there was an agreement that the engine should he reconditioned for a cost of £65. The work was begun, and was completed on March 7. on that day, and this, it is always to be remembered, is the prosecution's case, the appellant called at the garage and said that he would come the *323 next day to collect the car. I should have added that when the car was left, rather naturally so was the ignition key. The garage not having very much space, parked the car, when the repairs were completed, in the street, and by 6.30 p.m. on March 7, the garage found that the car had been taken away from the place in the street where it had been parked. The garage still had the key, and so the police were rung up. However, the next thing that happened was that on March 16 Mr. Arthur Brown found this car parked in the very street where the appellant lived, and, I suppose rather indignantly, took the car back to the garage, took the engine out, and then towed the car, less engine, back to the place in the street where it had been found. The matter then got into the hands of the police, and in the end a prosecution was commenced at the instigation of the Browns.
It was the prosecution case that there had been an interview on March 16 when inquiries were made of the appellant as to his car, when he told an admitted lie, because he said he had never taken the car to the garage at all. The very next day, however, in answer to Detective-Sergeant Thompson, the appellant acknowledged that had been a lie. He then said that he had gone and taken the car away but that he had taken it with the full consent of the Browns who had handed back the key to him, the prosecution's case being that Mr. Brown still had the key.
In those circumstances there clearly was, as the deputy chairman ruled, a case to go to the jury of theft of his own car, because there was evidence from which the jury could find that the Browns had a proprietary interest namely a lien on the car, and that by reason of the alleged lies that had been told to the police, the taking had been done dishonestly. I should add that the appellant is 46, that he lives with a Miss Nelson, by whom he has two children, and that he has three findings of guilt, 14 previous convictions and, in his favour, that he seemed, under the influence possibly of Miss Nelson, to be turning over a new leaf in that his last conviction was in 1966.
Pausing there, there is really nothing to inquire into. But, of course, the matter does not end there, because this case has attracted considerable publicity as a result of what the appellant is said to have said to his solicitor the next day, and as a result of what the solicitor has made extremely public throughout the country. What is said now, in the amended grounds of appeal which have been put in, is that the appellant did not have an opportunity of exercising a free choice in retracting his plea of not guilty and pleading guilty, and that, as it were, his mind did not go with the plea of guilty. Accordingly, it was in those circumstances, as indeed it was in the Dulwich picture case, Reg. v. Hall [1968] 2 Q.B. 788, for the court to look into the matter, to hear evidence in regard to it in order to see, as was stated (1968) 52 Cr.App.R. 528, 534, whether the prisoner in the circumstances had a free choice, since the election must be his, and the responsibility his, to plead guilty or not guilty.
The uncontested facts are that by the luncheon adjournment on the second day, the prosecution witnesses had been called, in effect, the two Browns but not the police evidence, and up to that stage at any rate it could be said that things were going very well for the appellant. Indeed *324 the Browns were saying in effect that they thought that they were suing for their money, that it was a civil case. At any rate, the time had come when the police were going to give evidence. The appellant was represented by Mr. Ronald Grey of counsel, and he very rightly was worried in the matter, because he had instructions not merely to challenge the police and suggest that they had misunderstood the appellant's answers or had failed to remember what he had said, or anything of that sort, but his direct instructions were to attack the police, accusing them of complete fabrication in conjunction with the two Browns. Naturally he was faced with this, that if he observed those instructions it would be almost certain that the jury would have put before them the appellant's previous convictions.
Accordingly he did what it is the duty of every counsel to do, to give the best advice he can in the interests of the accused. Having explained the legal position, how this could amount to a theft assuming that the lien was proved, he went on to ask the appellant seriously to consider changing his plea to one of guilty. He did that quite openly in the presence of Mr. Laity, the solicitor, and he went on, on more than one occasion, putting it in strong words, that on a plea of guilty it might well be a non-custodial sentence, but if he went on and these convictions came out, the appellant ran the risk of going to prison.
There were long discussions beginning at about 1.50 p.m. in the interview room in the courts, and they went on to something like 3.30 p.m. Part of the time Miss Nelson, with whom the appellant lived, was there, and part of the time his sister, a Mrs. Crowe, was there. There was also the solicitor, Mr. Laity, and his clerk, Mr. Blake, and of course Mr. Grey of counsel. But quite clearly none of those persons, except the appellant, was there for all the time. In particular Mr. Grey was not there all the time. The time came when he said that he wanted to discuss the matter with the deputy chairman. He went, and when he came back he gave what the court accepts was his own personal opinion. His own personal opinion in the matter, and I take this from the evidence of Mr. Laity who appeared before us, was this:
"There is a very real possibility that if you are convicted by the jury and an attack has been made on the police officers, with your 16 previous convictions, you may receive a sentence of imprisonment. If at this stage you plead guilty, you must take my word for it, you will receive a fine or some other sentence which will not involve imprisonment."
Those were Mr. Grey's views, and as I have said the court accepts that he was passing on his own views.
The interview continued and, throughout, the appellant adhered to his view that he was going to fight, he was not going to retract his plea of not guilty. By about 3.30 p.m. it was intimated to the court that it would continue to be a fight, and Mr. Grey and the appellant left the interview room to go back into court. A further interview took place, as to what happened at that there is some dispute, in the cell adjoining or below the dock. It was only for a minute or two, but at the end of that discussion the appellant said that he was going to retract his plea, and accordingly *325 when everybody assembled in court the indictment was put to him again, he pleaded guilty, and the formal verdict of the jury was taken.
The first point taken by Mr. Hawser is that Mr. Grey exercised such pressure on the appellant, undue pressure, something beyond the bounds of his duty as counsel, so as to make the appellant feel that he must retract his plea, that he had no free choice in the matter. The court would like to say that it is a very extravagant proposition, and one which would only be acceded to in a very extreme case. The court would like to say, with emphasis, that they can find no evidence here that Mr. Grey exceeded his duty in the way he presented advice to the appellant. He did it in strong terms. It is perfectly right that counsel should be able to do it in strong terms, provided always that it is made clear that the ultimate choice and a free choice is in the accused person. The one thing that is clear here from all the evidence is that at every stage of these proceedings, certainly up to the interview in the cell, it was impressed upon the appellant by Mr. Grey, by Mr. Laity, by Miss Nelson herself, that the choice was open to him, and in so far as it rests upon undue influence by counsel, the court is quite satisfied it wholly fails.
The matter, however, does not end there, because albeit it may be sufficient in the majority of cases if it is made clear to a prisoner that the final decision is his, however forcibly counsel may put it, the position is different if the advice is conveyed as the advice of someone who has seen the judge, and has given the impression that he is repeating the judge's views in the matter. As I have said, the court is quite satisfied Mr. Grey was giving his own views and not the judge's at all. But it had been conveyed to the appellant that Mr. Grey had just returned from seeing the deputy chairman. What was said gave Mr. Laity the impression that those were the judge's views, and Mr. Grey very frankly said that in the circumstances the appellant might well have got the impression that they were the judge's views. Accordingly one asks: was he ever disabused of that, did anything happen to show that these were not the judge's views on the case?
Apparently a time came, when the discussion had been going on for a long time, when Mr. MacKenzie Ross, the acting temporary clerk of the court, came down to inform counsel (although he does not remember it, I think it must be right) that the judge could not allow much longer time. He saw Mr. Batt, who was the prosecuting counsel, in the robing room and conveyed this to him, and he went into the interview room and said something to Mr. Grey. Mr. MacKenzie Ross is quite satisfied in his own mind that what he said was that he was authorised to say that whatever happened, that is, whether there was a plea of guilty or whether the plea of not guilty stood, the result would be the same, it would not be a term of imprisonment, and of course if that were so that was really the end of the matter. There was absolutely no reason whatever for the appellant to alter his plea, he would be no worse off if he kept to his plea of not guilty.
Mr. Grey at any rate did not get that impression. Mr. Grey got the impression from Mr. MacKenzie Ross that the message that he was authorised to give was that if at this stage there was a plea, it would be a *326 fine, and of course that would, if true, really bear out the impression which the appellant already had.
This court is quite satisfied that Mr. MacKenzie Ross must be wrong in his recollection here - no doubt he was not asked about this until some time after the event - because we should not be here today if that really had happened. Accordingly nothing was conveyed by the clerk to the court which could have disabused the appellant of the impression which he had received earlier. Indeed, it may well have confirmed it. True, as I have said, he was warned that the choice was his, but once he felt that this was an intimation emanating from the judge, it is really idle in the opinion of this court to think that he really had a free choice in the matter.
Accordingly, though not without some doubt, the court feels that this appeal must succeed. I say "with some doubt" because despite all that I have said, the appellant drafted grounds of appeal himself originally, and really there is nothing of this in those grounds. However, Mr. Laity says he was informed of this point the day after the trial, and in all the circumstances of the case the court feels that the proper course will be to treat the plea that was given as a nullity, with the result that the trial that had taken place is a mistrial, and that there should be an order for a venire de novo.
Before leaving this case, which has brought out into the open the vexed question of so-called "plea-bargaining," the court would like to make some observations which may be of help to judges and to counsel and, indeed, solicitors. They are these:
1. Counsel must be completely free to do what is his duty, namely to give the accused the best advice he can and if need be advice in strong terms. This will often include advice that a plea of guilty, showing an element of remorse, is a mitigating factor which may well enable the court to give a lesser sentence than would otherwise be the case. Counsel of course will emphasise that the accused must not plead guilty unless he has committed the acts constituting the offence charged.
2. The accused, having considered counsel's advice, must have a complete freedom of choice whether to plead guilty or not guilty.
3. There must be freedom of access between counsel and judge. Any discussion, however, which takes place must be between the judge and both counsel for the defence and counsel for the prosecution. If a solicitor representing the accused is in the court he should be allowed to attend the discussion if he so desires. This freedom of access is important because there may be matters calling for communication or discussion, which are of such a nature that counsel cannot in the interests of his client mention them in open court. Purely by way of example, counsel for the defence may by way of mitigation wish to tell the judge that the accused has not long to live, is suffering maybe from cancer, of which he is and should remain ignorant. Again, counsel on both sides may wish to discuss with the judge whether it would be proper, in a particular case, for the prosecution to accept a plea to a lesser offence. It is of course imperative that so far as possible justice must be administered in open court. Counsel should, therefore, only ask to see the judge when it is felt to be really *327 necessary, and the judge must be careful only to treat such communications as private where, in fairness to the accused person, this is necessary.
4. The judge should, subject to the one exception referred to hereafter, never indicate the sentence which he is minded to impose. A statement that on a plea of guilty he would impose one sentence but that on a conviction following a plea of not guilty he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential. Such cases, however, are in the experience of the court happily rare. What on occasions does appear to happen however is that a judge will tell counsel that, having read the depositions and the antecedents, he can safely say that on a plea of guilty he will for instance, make a probation order, something which may be helpful to counsel in advising the accused. The judge in such a case is no doubt careful not to mention what he would do if the accused were convicted following a plea of not guilty. Even so, the accused may well get the impression that the judge is intimating that in that event a severer sentence, maybe a custodial sentence would result, so that again he may feel under pressure. This accordingly must also not be done.
The only exception to this rule is that it should be permissible for a judge to say, if it be the case, that whatever happens, whether the accused pleads guilty or not guilty, the sentence will or will not take a particular form, e.g., a probation order or a fine, or a custodial sentence.
Finally, where any such discussion on sentence has taken place between judge and counsel, counsel for the defence should disclose this to the accused and inform him of what took place.
Representation
Solicitors: Morris Williams & Co.; Solicitor, Metropolitan Police.
Appeal allowed. Conviction quashed. Venire de novo ordered. (L. N. W. )
BUT, look what happened the very next year. Turner ended up being potted. I would wager that Sgt Nightingale is likely to be potted again, second time around, as the evidence against him looks rather damning, but we shall see.
Regina v Turner (No. 2)
Court of Appeal
22 March 1971
[1971] 1 W.L.R. 901
Lord Parker C.J. Widgery L.J. and Bridge J.
1971 March 22
Crime—Theft—Dishonest appropriation—Car at garage for repairs—Owner taking car without paying—Whether car “belonged” to garage proprietor—Whether dishonestly appropriated— Theft Act 1968 (c. 60), ss. 2 (1) (a), 5 (1)
The defendant took the car of which he was the registered owner to a garage to have it repaired. Those repairs having been practically completed, the car was left in the road outside *902 the garage. The defendant called at the garage and told the proprietor that he would return the following day, pay him and take the car: instead, he took the car away several hours later without paying for the repairs.
He was charged on indictment with theft of the car contrary to section 1 of the Theft Act 1968 . The defendant submitted that the car did not “belong” to the proprietor within the meaning of section 5 (1) of the Theft Act 1968 1 and that the appropriation was not dishonest within the meaning of section 2 (1) (a) of the Act.
On the defendant's appeal against conviction: —
Held, dismissing the appeal, (1) that property belonged to a person if at the time of the appropriation that person was in fact in possession or control of it, and that the words “possession or control” in section 5 (1) did not require to be qualified in any way.
(2) That the test of dishonesty was the mental element of belief and on the facts, the jury having been properly directed on a claim of right, there was no ground for saying that there was any error of law.
No cases are referred to in the judgment or were cited in argument.
APPEAL against conviction.
On July 20, 1970, at North East London Quarter Sessions (Judge Peter Mason Q.C.) the defendant, Frank Richard Turner, was charged on indictment with theft on March 7, 1969, of a Humber Sceptre car belonging to Arthur Edwin Brown, a garage proprietor. On July 28, 1970, he was convicted and fined £200 with 12 months' imprisonment in default.
The defendant's grounds of appeal were that the judge erred in law in failing to rule that the property did not belong to the garage proprietor within the meaning of section 5 (1) of the Theft Act 1968 because he had neither “lawful possession or control” nor any “proprietary right or interest in it” and that the judge erred in withdrawing from the jury evidence which was material as to whether or not the defendant had “appropriated” the property “in the belief that he had in law the right to deprive the other of it on behalf of himself or a third person” within the meaning of section 2 (1) (a) of the Act.
The facts are set out in the judgment of Lord Parker C.J.
Representation
Piers Herbert for the defendant.
Michael Self for the Crown.
LORD PARKER C.J.
gave the judgment of the court. On July 28, 1970, at North East London Quarter Sessions, the defendant was found guilty by a majority verdict of the theft of a Sceptre car. He was fined £200 with three months to pay or 12 months' imprisonment in default, and was ordered to pay £150 towards the prosecution costs. He now appeals on a point of law against his conviction.
It is worth recording that this was a new trial, his original conviction having been quashed by this court in April 1970 on the basis that his *903 plea of guilty at the time was a nullity. Accordingly it was a venire de novo that was ordered. The facts need not be stated at great length, although there is considerable disparity in the accounts given on behalf of the prosecution and the defence. The defendant was at the material time living in Seymour Road, East Ham, with a Miss Nelson and their children. Three miles away a man called Arthur Edwin Brown ran a garage in Carlyle Road, Manor Park. There is no doubt that at some time prior to March 7, the defendant took a Sceptre car of which he was the registered owner to Mr. Brown's garage for repairs. It was Mr. Brown's case that he did those repairs, that as he was short of space he left the car in Carlyle Road some 10 to 20 yards from the garage. The ignition key had been handed to him by the defendant, and this he retained on the keyboard in his office. According to Mr. Brown, on March 7 the defendant called at the garage and asked if the car was ready. On being told that it was except that it might require to be tuned, the defendant said that he would return on the next day, Saturday, March 8, and would pay Mr. Brown for the repairs and pick up the car. A few hours later, however, Mr. Brown found that the Sceptre car had gone; moreover whoever had taken it had a key, because the key that Mr. Brown had was still on the keyboard. He reported the matter to the police.
Apparently night after night thereafter until March 16, Mr. Brown, according to him, went round the neighbouring streets to see if he could find this car, and sure enough on Sunday, March 16, he found it parked in a street near the defendant's flat. It was, moreover, his evidence that he did not know the defendant's full name or his address and only knew of him as Frank.
What Mr. Brown then did was to take the car back to his garage, to take out the engine and then tow it back less the engine to the place from which he had taken it. Meanwhile, the police made enquiries of the defendant who told lie after lie to them. He said that Mr. Brown had never had his Sceptre car at all, that the car had never been to the garage, and that the only work that Mr. Brown had done was to a Zephyr car on an earlier occasion. However, a time came when he abandoned those denials and agreed that he had taken the car to the garage, and that he had taken it away and had never paid for it. In saying that, however, he emphasised that he had taken it away with the consent of Mr. Brown. It was on those short facts that the jury, as I have said by a majority, found the defendant guilty of the theft of his own car.
The trial lasted six days, in the course of which every conceivable point seems to have been taken and argued. In the result, however, when it comes to this court two points, and two only, are taken. It is said in the first instance that while Mr. Brown may have had possession or control in fact, that is not enough, and that it must be shown before it can be said that the property “belonged to” Mr. Brown, those being the words used in section 1 (1) of the Theft Act 1968 , that that possession is, as it is said, a right superior to that in the defendant. It is argued from that in default of proof of a lien — and the judge in his summing up directed the jury that they were not concerned with the question of whether there was a lien — that Mr. Brown was merely a bailee at will and accordingly that he had no sufficient possession.
The words “belonging to another” are specifically defined in section 5 of the Act, subsection (1) of which provides: “Property shall be regarded *904 as belonging to any person having possession or control of it, or having in it any proprietary right or interest.” The sole question was whether Mr. Brown had possession or control.
This court is quite satisfied that there is no ground whatever for qualifying the words “possession or control” in any way. It is sufficient if it is found that the person from whom the property is taken, or to use the words of the Act, appropriated, was at the time in fact in possession or control. At the trial there was a long argument as to whether that possession or control must be lawful, it being said that by reason of the fact that this car was subject to a hire purchase agreement, Mr. Brown could never even as against the defendant obtain lawful possession or control. As I have said, this court is quite satisfied that the judge was quite correct in telling the jury they need not bother about lien, and that they need not bother about hire purchase agreements. The only question was whether Mr. Brown was in fact in possession or control.
The second point that is taken relates to the necessity for proving dishonesty. Section 2 (1) provides that:
“A person's appropriation of property belonging to another is not to be regarded as dishonest —
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person;”
The judge said in his summing up:
“Fourth and last, they must prove that the defendant did what he did dishonestly and this may be the issue which lies very close to the heart of this case.”
He then went on to give them a classic direction in regard to claim of right, emphasising that it is immaterial that there exists no basis in law for such belief. He reminded the jury that the defendant had said categorically in evidence: “I believe that I was entitled in law to do what I did.” At the same time he directed the jury to look at the surrounding circumstances. He said this:
“The prosecution say that the whole thing reeks of dishonesty, and if you believe Mr. Brown that the defendant drove the car away from Carlyle Road, using a duplicate key, and having told Mr. Brown that he would come back tomorrow and pay, you may think the prosecution are right.”
On this point Mr. Herbert says that if in fact you disregard lien entirely, as the jury were told to do, then Mr. Brown was a bailee at will and this car could have been taken back by the defendant perfectly lawfully at any time whether any money was due in regard to repairs or whether it was not. He says, as the court understands it, first that if there was that right, then there cannot be theft at all, and secondly that if and in so far as the mental element is relevant, namely belief, the jury should have been told that he had this right and be left to judge, in the light of the existence of that right, whether they thought he may have believed, as he said, that he did have a right.
The court, however, is quite satisfied that there is nothing in this point whatever. The whole test of dishonesty is the mental element of belief. No doubt, though the defendant may for certain purposes be presumed to know the law, he would not at the time have the vaguest idea whether he had in law a right to take the car back again, and *905 accordingly when one looks at his mental state, one looks at it in the light of what he believed. The jury were properly told that if he believed that he had a right, albeit there was none, he would nevertheless fall to be acquitted. This court, having heard all that Mr. Herbert has said, is quite satisfied that there is no manner in which this summing up can be criticised, and that accordingly the appeal against conviction should be dismissed.
[Reported by MRS. CELIA FOX, Barrister-at-Law]
Representation
Solicitors: Somers & Laity; Solicitor, Metropolitan Police.
Appeal dismissed.
Regina v Turner (No. 2)
Court of Appeal
22 March 1971
[1971] 1 W.L.R. 901
Lord Parker C.J. Widgery L.J. and Bridge J.
1971 March 22
Crime—Theft—Dishonest appropriation—Car at garage for repairs—Owner taking car without paying—Whether car “belonged” to garage proprietor—Whether dishonestly appropriated— Theft Act 1968 (c. 60), ss. 2 (1) (a), 5 (1)
The defendant took the car of which he was the registered owner to a garage to have it repaired. Those repairs having been practically completed, the car was left in the road outside *902 the garage. The defendant called at the garage and told the proprietor that he would return the following day, pay him and take the car: instead, he took the car away several hours later without paying for the repairs.
He was charged on indictment with theft of the car contrary to section 1 of the Theft Act 1968 . The defendant submitted that the car did not “belong” to the proprietor within the meaning of section 5 (1) of the Theft Act 1968 1 and that the appropriation was not dishonest within the meaning of section 2 (1) (a) of the Act.
On the defendant's appeal against conviction: —
Held, dismissing the appeal, (1) that property belonged to a person if at the time of the appropriation that person was in fact in possession or control of it, and that the words “possession or control” in section 5 (1) did not require to be qualified in any way.
(2) That the test of dishonesty was the mental element of belief and on the facts, the jury having been properly directed on a claim of right, there was no ground for saying that there was any error of law.
No cases are referred to in the judgment or were cited in argument.
APPEAL against conviction.
On July 20, 1970, at North East London Quarter Sessions (Judge Peter Mason Q.C.) the defendant, Frank Richard Turner, was charged on indictment with theft on March 7, 1969, of a Humber Sceptre car belonging to Arthur Edwin Brown, a garage proprietor. On July 28, 1970, he was convicted and fined £200 with 12 months' imprisonment in default.
The defendant's grounds of appeal were that the judge erred in law in failing to rule that the property did not belong to the garage proprietor within the meaning of section 5 (1) of the Theft Act 1968 because he had neither “lawful possession or control” nor any “proprietary right or interest in it” and that the judge erred in withdrawing from the jury evidence which was material as to whether or not the defendant had “appropriated” the property “in the belief that he had in law the right to deprive the other of it on behalf of himself or a third person” within the meaning of section 2 (1) (a) of the Act.
The facts are set out in the judgment of Lord Parker C.J.
Representation
Piers Herbert for the defendant.
Michael Self for the Crown.
LORD PARKER C.J.
gave the judgment of the court. On July 28, 1970, at North East London Quarter Sessions, the defendant was found guilty by a majority verdict of the theft of a Sceptre car. He was fined £200 with three months to pay or 12 months' imprisonment in default, and was ordered to pay £150 towards the prosecution costs. He now appeals on a point of law against his conviction.
It is worth recording that this was a new trial, his original conviction having been quashed by this court in April 1970 on the basis that his *903 plea of guilty at the time was a nullity. Accordingly it was a venire de novo that was ordered. The facts need not be stated at great length, although there is considerable disparity in the accounts given on behalf of the prosecution and the defence. The defendant was at the material time living in Seymour Road, East Ham, with a Miss Nelson and their children. Three miles away a man called Arthur Edwin Brown ran a garage in Carlyle Road, Manor Park. There is no doubt that at some time prior to March 7, the defendant took a Sceptre car of which he was the registered owner to Mr. Brown's garage for repairs. It was Mr. Brown's case that he did those repairs, that as he was short of space he left the car in Carlyle Road some 10 to 20 yards from the garage. The ignition key had been handed to him by the defendant, and this he retained on the keyboard in his office. According to Mr. Brown, on March 7 the defendant called at the garage and asked if the car was ready. On being told that it was except that it might require to be tuned, the defendant said that he would return on the next day, Saturday, March 8, and would pay Mr. Brown for the repairs and pick up the car. A few hours later, however, Mr. Brown found that the Sceptre car had gone; moreover whoever had taken it had a key, because the key that Mr. Brown had was still on the keyboard. He reported the matter to the police.
Apparently night after night thereafter until March 16, Mr. Brown, according to him, went round the neighbouring streets to see if he could find this car, and sure enough on Sunday, March 16, he found it parked in a street near the defendant's flat. It was, moreover, his evidence that he did not know the defendant's full name or his address and only knew of him as Frank.
What Mr. Brown then did was to take the car back to his garage, to take out the engine and then tow it back less the engine to the place from which he had taken it. Meanwhile, the police made enquiries of the defendant who told lie after lie to them. He said that Mr. Brown had never had his Sceptre car at all, that the car had never been to the garage, and that the only work that Mr. Brown had done was to a Zephyr car on an earlier occasion. However, a time came when he abandoned those denials and agreed that he had taken the car to the garage, and that he had taken it away and had never paid for it. In saying that, however, he emphasised that he had taken it away with the consent of Mr. Brown. It was on those short facts that the jury, as I have said by a majority, found the defendant guilty of the theft of his own car.
The trial lasted six days, in the course of which every conceivable point seems to have been taken and argued. In the result, however, when it comes to this court two points, and two only, are taken. It is said in the first instance that while Mr. Brown may have had possession or control in fact, that is not enough, and that it must be shown before it can be said that the property “belonged to” Mr. Brown, those being the words used in section 1 (1) of the Theft Act 1968 , that that possession is, as it is said, a right superior to that in the defendant. It is argued from that in default of proof of a lien — and the judge in his summing up directed the jury that they were not concerned with the question of whether there was a lien — that Mr. Brown was merely a bailee at will and accordingly that he had no sufficient possession.
The words “belonging to another” are specifically defined in section 5 of the Act, subsection (1) of which provides: “Property shall be regarded *904 as belonging to any person having possession or control of it, or having in it any proprietary right or interest.” The sole question was whether Mr. Brown had possession or control.
This court is quite satisfied that there is no ground whatever for qualifying the words “possession or control” in any way. It is sufficient if it is found that the person from whom the property is taken, or to use the words of the Act, appropriated, was at the time in fact in possession or control. At the trial there was a long argument as to whether that possession or control must be lawful, it being said that by reason of the fact that this car was subject to a hire purchase agreement, Mr. Brown could never even as against the defendant obtain lawful possession or control. As I have said, this court is quite satisfied that the judge was quite correct in telling the jury they need not bother about lien, and that they need not bother about hire purchase agreements. The only question was whether Mr. Brown was in fact in possession or control.
The second point that is taken relates to the necessity for proving dishonesty. Section 2 (1) provides that:
“A person's appropriation of property belonging to another is not to be regarded as dishonest —
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person;”
The judge said in his summing up:
“Fourth and last, they must prove that the defendant did what he did dishonestly and this may be the issue which lies very close to the heart of this case.”
He then went on to give them a classic direction in regard to claim of right, emphasising that it is immaterial that there exists no basis in law for such belief. He reminded the jury that the defendant had said categorically in evidence: “I believe that I was entitled in law to do what I did.” At the same time he directed the jury to look at the surrounding circumstances. He said this:
“The prosecution say that the whole thing reeks of dishonesty, and if you believe Mr. Brown that the defendant drove the car away from Carlyle Road, using a duplicate key, and having told Mr. Brown that he would come back tomorrow and pay, you may think the prosecution are right.”
On this point Mr. Herbert says that if in fact you disregard lien entirely, as the jury were told to do, then Mr. Brown was a bailee at will and this car could have been taken back by the defendant perfectly lawfully at any time whether any money was due in regard to repairs or whether it was not. He says, as the court understands it, first that if there was that right, then there cannot be theft at all, and secondly that if and in so far as the mental element is relevant, namely belief, the jury should have been told that he had this right and be left to judge, in the light of the existence of that right, whether they thought he may have believed, as he said, that he did have a right.
The court, however, is quite satisfied that there is nothing in this point whatever. The whole test of dishonesty is the mental element of belief. No doubt, though the defendant may for certain purposes be presumed to know the law, he would not at the time have the vaguest idea whether he had in law a right to take the car back again, and *905 accordingly when one looks at his mental state, one looks at it in the light of what he believed. The jury were properly told that if he believed that he had a right, albeit there was none, he would nevertheless fall to be acquitted. This court, having heard all that Mr. Herbert has said, is quite satisfied that there is no manner in which this summing up can be criticised, and that accordingly the appeal against conviction should be dismissed.
[Reported by MRS. CELIA FOX, Barrister-at-Law]
Representation
Solicitors: Somers & Laity; Solicitor, Metropolitan Police.
Appeal dismissed.
It does look like the accused was in a position of Prisoners Dilema - plea guilty and get a small fine, plea not-guilty and face the real prospect of prison (regardless of actual guilt!).
I would like to see R v Argent too - inadequately summarised (by me) as "Poor legal advice is no defence".
I would like to see R v Argent too - inadequately summarised (by me) as "Poor legal advice is no defence".
Perhaps you mean this one.
R. v Brian Argent
Court of Appeal
16 December 1996
[1997] 2 Cr. App. R. 27
(The Lord Chief Justice (Lord Bingham), Mr Justice Sachs and Mr Justice Toulson):
December 16, 1996
EVIDENCE
Interview
Defendant failing to answer questions—Conditions to be met before jury draw inferences—Judge's direction to the jury.
The appellant was arrested following an anonymous telephone call to the police which named him as the attacker of a man who had been stabbed to death the night before. After being identified at an identity parade, the appellant was interviewed by the police. In the light of his solicitor's advice the appellant elected to say nothing in reply to the questions put to him. At trial the judge refused a defence application that this evidence should be excluded from consideration by the jury. The appellant was convicted of manslaughter. He appealed against conviction on the grounds that the judge wrongly directed the jury that it was open to them to draw an inference from the appellant's silence in interview in accordance with section 34 1 of the Criminal Justice and Public Order Act 1994.
Held, dismissing the appeal, that the proper inferences which section 34(2)(d) empowered a jury to draw in prescribed circumstances, where certain conditions had been met, were those which appeared proper to the jury as the tribunal of fact; that it was for them to decide, using their collective common sense, experience and understanding of human nature, whether a fact relied upon by a defendant in his defence at trial, but which he had failed to mention when questioned under caution, was a fact that the defendant could reasonably have been expected to mention; that these were issues on which the judge should give appropriate directions but leaving the issues for the jury to decide, only rarely directing them that they should or should not draw the appropriate inference; and that, accordingly, there were no grounds for criticising the judge's direction in this case.
[For s.34 of the Criminal Justice and Public Order Act 1994, see Archbold (1997) para. 15-395.]
Appeal against conviction and sentence.
On May 10, 1996 at the Central Criminal Court (Recorder of London, Sir Lawrence Verney) the appellant was convicted of manslaughter and *28 sentenced to 10 years' imprisonment. The facts and grounds of appeal appear in the judgment.
William Clegg Q.C. and Thomas Derbyshire for the appellant.
Orlando Pownall and Jonathan Laidlaw for the Crown.
LORD BINGHAM C.J.
On May 10, 1996, in the Central Criminal Court before the Recorder of London, the appellant was convicted of manslaughter, having been indicted for murder. He was sentenced to 10 years' imprisonment. He now appeals against conviction and sentence by leave of the single judge.
The facts giving rise to this appeal are in brief as follows. A gentleman named Tony Sullivan was stabbed to death with a knife in the early hours of August 19, 1995 outside an East London nightclub, the Lotus Club. The appellant was arrested following an anonymous telephone call to the police which named him as the attacker. The prosecution case was that the appellant became aware that the deceased (who was unknown to him) had asked the appellant's wife to dance in the club and had later attacked him outside. At the time of the attack the deceased was, as the evidence showed, very drunk. There were eye witnesses to the fight between the deceased and another man. One witness who knew the appellant named him and two others picked him out on an identity parade.
The defence case was that there had been no contact between the deceased and the appellant or his wife in the club. They had left the nightclub before the deceased was attacked.
At the trial there were five eye witnesses who gave evidence. The most significant of those, in the judge's estimation, was Susan Whitnell whose evidence the judge summarised to the jury at pp. 8G–10D of the transcript of his summing-up. The judge pointed out that Susan Whitnell was known both to the appellant and his wife and had been so for a very long time: in the case of the wife for some 20 years and in the case of the appellant for 15 years. It was not suggested that she could have been mistaken about her recognition of both the appellant and his wife. While they were not close friends, they were long-standing acquaintances. It was suggested in the course of the trial that Susan Whitnell had a particular hatred of the appellant which she had had for some time. It was not, however, suggested that she entertained the same feelings towards the appellant's wife.
At the nightclub on the evening of August 18/19, Susan Whitnell had brought as a guest the 17-year-old girlfriend of her son, Sarah Guest.
The evidence given by Susan Whitnell was to the effect that a group of seven ladies who had been together all evening left the Lotus nightclub virtually simultaneously together with one man, the appellant. She gave evidence of an incident which occurred outside the nightclub which culminated in Mr Sullivan walking up to the appellant and tapping him on the shoulder. Susan Whitnell claimed that she had an unobstructed view of what followed. She described how the appellant pulled Tony Sullivan towards him and appeared to punch him four, five or six times with an *29 upward movement of his right hand. She saw nothing in the appellant's hand at that stage and saw Tony Sullivan do nothing to retaliate. She then saw Tony Sullivan turn back and saw blood on his chin and on his chest. Susan Whitnell said that she followed the appellant round the corner towards Romford Road. She then saw a knife in his hand and saw that there was blood on both his hands. She gave a description of the knife and told the jury that she had not wished to be involved in giving evidence but had done so because what she had seen was wrong. She denied the suggestion put to her that she and Sarah Guest had put their heads together to concoct a false story. She accepted that she had had a lot to drink, but insisted that she was not drunk.
Having summarised her evidence the learned trial judge said to the jury:
“You have seen and you have heard her. You decide whether she is reliable. If she is, her evidence clearly identifies the [appellant] as the man who struck Tony Sullivan and shows that Tony Sullivan was bleeding immediately thereafter.”
There were four other eye witnesses who gave evidence. One of them was Sarah Guest whom we have already mentioned. She saw the fight and identified the appellant on an identification parade. The second was a gentleman named John Tinton, who also saw the fight and also identified the appellant at a different identity parade. The third was Jane Edwards who saw the fight and was fairly sure it was the appellant who struck the fatal blow, but was not 100 per cent certain. There was a fourth additional eye witness, Siobhan Cadden, who saw the fight but could give no details.
On August 19, at about midday, the appellant was arrested and was first interviewed by the police. On that occasion he was in receipt of legal advice and declined to answer questions. There was during the trial a voir dire to determine the admissibility of the evidence of that interview. The judge held that the arrest had been lawful, but nonetheless excluded the police officer's evidence of the interview. He gave his reasons at p. 3F of the transcript of that ruling when he said:
“I do not myself take the view that at that stage on one anonymous telephone call there were any circumstances existing at the time which required the accused to mention anything. I think Mr Mackintosh [the solicitor] gave the right advice.
Nothing transpired in the course of the interview, except an assertion of not guilty, and if the Crown seek to rely upon the negative answers or absence of answers to other questions I, as at present advised, would tell the jury that no inference should be drawn.”
It appears to us that in that brief ruling the judge may have overstepped the bounds of his judicial function, but it is plain that the ruling was not unfavourable to the defence and it gives rise to no complaint.
A second interview conducted by Detective Constable Armstrong took place on November 16, 1995 after an identification parade at which the *30 appellant had been identified. The appellant was accompanied by an experienced solicitor, Mr Ryan, who gave the appellant certain advice. The advice had essentially three limbs: first, that in all the circumstances the appellant was well-advised to remain silent; secondly, that if he declined to answer questions there was a risk that inferences adverse to him might be drawn at the trial; and thirdly, that the decision whether or not to answer any questions was that of the appellant. In the light of this advice the appellant elected to say nothing and he accordingly replied “no comment” to a series of questions put to him by the officer.
At the voir dire a challenge was raised to the admissibility of this evidence also, the defence seeking a ruling that evidence of the questions asked and of the appellant's negative response to them should be excluded from consideration by the jury. In relation to this interview the judge ruled as follows:
“The situation is quite different in regard to the second interview. This was preceded by an identification parade with a positive identification and Mr Ryan knew that. He was concerned that the police on this occasion were not showing the usual co-operative attitude and were not disclosing to him such evidence as they had, as would normally be the case. As far as he was concerned there was a [feeling] of tension at the police station and that seems to have affected his own attitude to the problem of advice. In the situation which existed at that time the accused could reasonably have been expected to mention facts which were relevant or might be relevant. I cannot at this stage know precisely what the defence is. But I think the Act provides that I do not need to know at this point and if a fact were to arise upon which the defendant wished to rely, his failure to mention it at the second interview does seem to me something upon which comment can properly be made and something from which inferences can properly be drawn. I do not think I can go further at this point. I can only indicate that [this] is my preliminary view. I do not make a ruling until a ruling is required to a fact.”
The trial proceeded and Detective Constable Armstrong gave evidence on May 8. In the course of his evidence he testified to the second interview which took place on November 16 and retailed certain of the questions which he had asked and the appellant's negative responses to them.
The appellant himself gave evidence at the trial and a very brief summary of the effect of that evidence was given by the trial judge in the course of his summing-up at p. 15A where he said:
“Yesterday he gave you his account of what had happened on August 19. He said that he, like others in the case, had had a good drink that evening but was not drunk. He did dance with his wife and believed that no one else did so. He was unaware that any other man sought to dance with her.
By about three o'clock in the morning his wife had agreed with him *31 that they should leave and try to get a meal at the local Cantonese restaurant. They duly left. They went to that restaurant but were too late to be served. On the way he was concerned in no act of violence. They passed Walter Lee by the bus stop, and you can see on the plan where that is. They had a word with him. They then walked home—a distance of about a mile. They saw their baby sitter and the [appellant] returned to bed. He said he knew nothing about injury to or death of anyone at the Lotus Club until the police arrived at his house at about one o'clock that afternoon.”
That takes us to ground 1 of the perfected grounds of appeal which is that:
“The learned trial judge erred in law and/or in the exercise of his discretion in failing to exclude the evidence of the appellant's interview with the police on November 16, 1995.”
That challenge is made under section 78 of the Police and Criminal Evidence Act 1984, which entitles a judge to exclude evidence which has an unfair effect on the conduct of a trial. In this instance the interview itself was properly conducted; the appellant's solicitor was present and in a position to advise him; he was duly cautioned on two occasions; and the appellant chose to act on the solicitor's advice.
We can readily accept that there will be some situations in which a judge should rule against the admissibility of evidence such as this. For example (and only by way of example), the judge might so rule in the case of an unlawful arrest where a breach of the Codes had occurred, or if the situation were one in which a jury properly directed could not properly draw an inference adverse to a defendant. Again such a situation might arise if, in application of section 78, the judge concluded that the prejudicial effect of evidence outweighed any probative value it might reasonably have. However, save in a case of such a kind the proper course in our judgment is ordinarily for a trial judge to allow evidence to be given and direct a jury carefully concerning the drawing of inferences. In our judgment the ruling which the learned judge gave in this case was not wrong and it is relevant to note that at the time when he gave the ruling he did not know what the facts were upon which the appellant might rely in his defence.
We therefore turn to the second ground, which is closely linked with the first, and which is in these terms:
“The learned trial judge erred in law and/or in the exercise of his discretion in directing the jury that it was open to them to draw an inference from the appellant's silence in interview in accordance with section 34 of the Criminal Justice and Public Order Act 1994.”
It is in our judgment important to bear in mind the detailed terms of section 34. It is convenient to begin by considering subsection (2)(d) which reads: *32
“Where this subsection applies—… (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.”
The failure there referred to is a failure to mention at an earlier stage a fact relied on by the appellant in his defence, as is made plain by subsection (1)(a).
Subsection (2)(d) empowers a jury in prescribed circumstances to draw such inferences as appear proper. That must mean as appear proper to a jury because the jury is the tribunal of fact and the drawing of appropriate inferences from the facts is the task of the tribunal of fact. The trial judge is of course responsible for the overall fairness of the trial and it is open to him to give the jury guidance on the approach to the evidence. There will undoubtedly be circumstances in which a judge should warn a jury against drawing inferences, but the judge must always bear in mind that the jury is the tribunal of fact and that Parliament in its wisdom has seen fit to enact this section.
What then are the formal conditions to be met before the jury may draw such an inference? In our judgment there are six such conditions. The first is that there must be proceedings against a person for an offence; that condition must necessarily be satisfied before section 34(2)(d) can bite and plainly it was satisfied here. The second condition is that the alleged failure must occur before a defendant is charged. That condition also was satisfied here. The third condition is that the alleged failure must occur during questioning under caution by a constable. The requirement that the questioning should be by a constable is not strictly a condition, as is evident from section 34(4), but here the alleged failure did occur during questioning by a constable, Detective Constable Armstrong, and the appellant had been properly cautioned. The fourth condition is that the constable's questioning must be directed to trying to discover whether or by whom the alleged offence had been committed. Here it is not in doubt that Mr Sullivan was killed by someone. The Detective Constable was trying to discover who inflicted the fatal wound and whether the killing was murder or manslaughter, it being fairly clear that the offence must have been one or the other (unless the killer struck the fatal blow in the course of defending himself). The fifth condition is that the alleged failure by the defendant must be to mention any fact relied on in his defence in those proceedings. That raises two questions of fact: first, is there some fact which the defendant has relied on in his defence; and secondly, did the defendant fail to mention it to the constable when he was being questioned in accordance with the section? Being questions of fact these questions are for the jury as the tribunal of fact to resolve. Here it would seem fairly clear that there were matters which the appellant relied on in his defence which he had not mentioned. These included the fact that he had had no quarrel with Mr Sullivan in the club; that he and his wife had left the club before the *33 rest of the party; that he had not at any stage of the evening carried a knife; that he had not been involved in any altercation in the street in which Mr Sullivan was stabbed; that he saw and was a witness of no such altercation; that he saw Mr Lee in the street waiting for a cab; that he went to a restaurant for a meal but found that he was too late and that the restaurant was closed; and that he returned home and saw his baby-sitter. The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at that time. The courts should not construe the expression “in the circumstances” restrictively: matters such as time of day, the defendant's age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant. When reference is made to “the accused” attention is directed not to some hypothetical, reasonable accused of ordinary phlegm and fortitude but to the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time. It is for the jury to decide whether the fact (or facts) which the defendant has relied on in his defence in the criminal trial, but which he had not mentioned when questioned under caution before charge by the constable investigating the alleged offence for which the defendant is being tried, is (or are) a fact (or facts) which in the circumstances as they actually existed the actual defendant could reasonably have been expected to mention.
Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as that he was tired, ill, frightened, drunk, drugged, unable to understand what was going on, suspicious of the police, afraid that his answer would not be fairly recorded, worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.
In other cases the jury may conclude, after hearing all that the defendant and his witnesses may have to say about the reasons for failing to mention the fact or facts in issue, that he could reasonably have been expected to do so. This is an issue on which the judge may, and usually should, give appropriate directions. But he should ordinarily leave the issue to the jury to decide. Only rarely would it be right for the judge to direct the jury that they should, or should not, draw the appropriate inference.
In this particular case the trial judge directed the jury in the course of his summing-up in these terms, beginning at p. 16D of the transcript:
“There is, however, another matter of law to which I must now turn. *34 As you may be aware there has been a change which came into effect last year. It is not a change which requires the defendant to say anything which he does not wish to say. He is still entitled to do what this defendant did and to decline to answer questions put to him by the police in interview but now if he chooses that course certain consequences may follow. When he was cautioned before the interview he was warned about this and you may be satisfied that he understood that warning which was repeated more than once in the course of the interview.
In this case as part of his defence the defendant relies upon certain facts, namely that when he left the Lotus Club he did not encounter Tony Sullivan, he did not have a knife in his possession and did not inflict any knife wound upon Mr Sullivan and that he had no blood on his hands, that he met a friend Walter Lee on the way home who was able to confirm some of his account, there was a baby sitter at his home who can give further confirmation and throughout his journey from the club to his home he was accompanied by his wife who can support the entirety of his account.
There is no dispute that when he was questioned under caution before he was charged he failed to mention any of those facts. That he failed to do so cannot by itself prove guilt. However, if you are sure that the defendant did fail to mention those facts and that in all the circumstances existing at the time he could reasonably have been expected to mention them, you are entitled to draw such inferences from this failure as you think proper. In judging this matter, as indeed throughout your consideration of the evidence, you apply your ordinary common sense. Always remembering that any conclusion you draw from the defendant's failure to mention facts must be a conclusion about which you are sure before you can act upon it.
You are entitled to consider whether the reason for failure was because the defendant had not thought out all the facts by November 16 or that he then had no innocent explanation to offer or none which he believed would then stand up to scrutiny and that may cast doubt upon the truthfulness of his account now, but you are not obliged to draw any inference against a defendant. He has told you why he chose to be silent. That was the advice which he received at the time from his solicitor. You will consider whether or not he is able to decide for himself what he should do or whether having asked for a solicitor to advise him he would not challenge that advice.
Was this a situation where you are sure that it is proper to draw an inference against the defendant for his failure to mention the facts on which he now relies? The law in these circumstances permits you to do so but does not for a moment oblige you to do so.
The inference which the prosecution invite you to draw is that the account put forward in the defendant's evidence has been tailored to *35 meet the case which the prosecution has supported by evidence and had not been thought out on November 16.
Let me add this, which I hope simplifies this aspect: if you are satisfied that the evidence called by the prosecution has proved to your satisfaction that it was the [appellant] who stabbed Tony Sullivan, in reaching that conclusion you will inevitably have rejected the evidence put forward for the defence and no inferences will be necessary. If, on the other hand, you consider that the prosecution evidence does not make you sure of the identity of the stabber, you must not draw any inferences of guilt from the [appellant's] failure to answer questions on November 16. If there was no case to answer the [appellant] cannot be blamed for not answering it.”
The appellant's criticism of the judge's ruling in this case rests on two main grounds. First, it is said that the police had failed to make such full disclosure of the case against the appellant as they could and should have made; and secondly, that in the absence of such full disclosure the appellant's solicitor was right to advise him not to answer questions and that advice was in strict compliance with guidance given by the Law Society to solicitors acting in such a situation. As counsel succinctly summarised his submission, the crucial question is whether the police gave sufficient information to enable the solicitor to advise his client. If not, the solicitor was entitled to advise his client to say nothing and the judge should have excluded evidence of the interview on the voir dire.
As to the first of the points made, it appears to us that the police may have made more limited disclosure than is normal in such circumstances. Under the Codes they had no obligation to make disclosure and they may well have had reasons for limiting the disclosure which they made. It is, however, relevant to note that by November 16 the firm to which the appellant's solicitor belonged had been advising him for a period of three months. The material given to the appellant and his solicitor made it plain that several witnesses had identified the appellant as having been present in the Lotus Club on the night of the killing, that the fatal stabbing had occurred at about 3.25 a.m. on August 19 outside the Lotus Club, that persons at the club had identified the appellant as the person responsible for the stabbing and that a description communicated to the appellant and his solicitor had been given.
This was not, on any showing, a very complex case to which to respond. There is an obvious contrast with cases perhaps of fraud or conspiracy which depend on a complex web of interlocking facts. It would, one might think, have been very easy to say, if it were true, that the appellant had left the club before there was any trouble and that he never was involved in or even saw any violence of any kind.
The second observation we would make is that, under section 34, the jury is not concerned with the correctness of the solicitor's advice, nor with *36 whether it complies with the Law Society guidelines, but with the reasonableness of the appellant's conduct in all the circumstances which the jury have found to exist. One of those circumstances, and a very relevant one, is the advice given to a defendant. There is no reason to doubt that the advice given to the appellant is a matter for the jury to consider. But neither the Law Society by its guidance, nor the solicitor by his advice can preclude consideration by the jury of the issue which Parliament has left to the jury to determine. The judge's direction to the jury on this point, which we have recited, was as we think a model of succinctness and also, as it seems to us, of comprehensiveness. We see no ground for criticising it in any way. Even if there were grounds for criticism, such criticism would be largely academic since the judge concluded the passage by indicating that inferences would be unlikely to assist the jury in their task
Ground 3 of the perfected grounds is that:
“There was a material irregularity in the trial in that the Crown were permitted to cross-examine witnesses for the defence about the [appellant's] previous convictions and what he had told them about the circumstances thereof.”
It is common ground that the nature or conduct of the appellant's defence in this case was such as to involve imputations on the character of Sarah Guest and Susan Whitnell. That admittedly made him vulnerable to exposure of his own criminal record under section 1(f)(ii) of the Criminal Evidence Act 1898. Recognising that, counsel on the appellant's behalf who proposed to call him as a witness invited the judge to exercise his discretion against permitting cross-examination by the Crown on his previous convictions. The learned judge gave a ruling on that application in which he said:
“Mr Clegg concedes that an imputation has been made against the witnesses Whitnell and Guest which would prima facie allow the prosecution to take advantage of the rules permitting cross-examination as to previous convictions, but Mr Clegg invites me to exercise my discretion and to exclude such cross-examination.
It is premature to make a firm decision at this stage, but Mr Clegg asks for a preliminary ruling so that if necessary he can incorporate in the [appellant's] evidence-in-chief the two convictions which would otherwise be the subject of cross-examination.
I am quite satisfied that there has been conduct of the defence which would justify such cross-examination. The two convictions which are relevant, and the only two, are in 1991 and 1994. Certainly what happened in 1981 and 1982 is not relevant and no one argues to the contrary.
My own feeling at this moment is that the jury has to make a very clear decision as to the credibility of Whitnell and Guest on the one *37 hand and that of the [appellant] on the other hand, and in those circumstances they ought to have in front of them the information which may help them on that issue and that issue alone.
That cross-examination of Susan Whitnell did not include any reference to a previous conviction was a decision made by the defence, but the attack upon her credibility was very clear. I do not think it would be unfair at this stage to allow the prosecution to cross-examine but, as I have indicated, this can only be a preliminary view and I do not make it a firm ruling.”
The learned judge having given that provisional ruling, counsel for the appellant adduced evidence of the appellant's previous convictions in-chief. He was duly cross-examined on those convictions and no complaint is made of that. But when the appellant called his wife and Mr Lee as witnesses, they were asked questions in cross-examination relevant to his convictions. Counsel for the appellant now objects that the questions about the appellant's convictions went to the credit of the appellant and he submits that this is illegitimate since the Crown was bound by his answers on questions of credit and the Crown was not entitled to pursue this matter by questioning other witnesses. The answer given to the Crown is that the questions which were asked of the appellant's wife and Mr Lee were asked not to investigate the facts underlying the convictions or the appellant's explanations of them, but simply to test the credibility of those witnesses. So far as Mr Lee is concerned, we understand it to be virtually accepted that that is so. In the case of Mrs Argent, we regard that answer as a good one also. The questions went to her alleged ignorance of her husband's conviction. Counsel for the Crown was in our judgment fully entitled to ask questions about this matter which threw doubt on her credibility and reliability as a witness.
Ground 4 of the perfected grounds, which is closely linked to ground 3, is in terms that:
“The … trial judge erred in law and/or in the exercise of his discretion in refusing an application by the defence to recall the witness Susan Whitnell so that her previous convictions could be put to her.”
When Susan Whitnell was cross-examined on behalf of the appellant, no questions were asked concerning her previous convictions. The judge understood this to be the result of a conscious decision by the defence, as is apparent from his ruling to which we have already referred. In that understanding he was quite right. Counsel for the appellant confirms that the decision not to cross-examine Susan Whitnell on her convictions was a tactical decision made in the hope of avoiding the cross-examination of the appellant under proviso (f)(ii) to section 1 of the 1898 Act.
He does not criticise the learned judge's refusal, but points out that once the judge had rejected the defence application to exclude evidence of the appellant's convictions there was a discussion between counsel for the appellant and counsel for the Crown concerning the possible admission of *38 Susan Whitnell's convictions or the recalling of a police officer to give evidence concerning them or the recall of Susan Whitnell. In the event no agreement was reached and no admission was made. The course of events consequently was that the appellant gave evidence. He called his wife as a witness, he called three other witnesses, and at this stage counsel for the appellant applied to the judge that Susan Whitnell should be recalled or that a police officer should be called to give evidence of these convictions. The learned judge rejected that submission. He said in a brief ruling as follows:
“I am inclined to think that the expression ‘have your cake and eat it’ is a fair, if not a legal, description of what is being sought. The opportunity to ask these questions was available yesterday and was by a clear decision rejected. I am not prepared to order the recall of the witness, nor am I prepared to allow a police officer to give evidence that she could herself have given had she been asked.”
The judge clearly felt that the appellant had made a decision and that he should therefore live with it. He was not willing that the appellant should chop and change the conduct of his case on tactical grounds depending upon the rulings in the case.
Counsel for the appellant criticises that ruling as being a wholly unreasonable exercise of discretion which (he says) altered the whole balance of the case against the appellant. We, for our part, see it rather differently. Counsel made a judgment, which was no doubt a perfectly reasonable judgment, but it turned out to be wrong. It seems to us that it was very much a question for the exercise of the trial judge's discretion as to whether or not he granted the leave which was sought. Had he decided to grant leave there could be no possible ground for criticising his decision. Similarly, we regard his refusal of leave as a sustainable exercise of discretion, particularly having regard to the very late stage at which the application was made. Not all judges would have made the same decision, but in our view this was not one which could be stigmatised as wrong or unreasonable. Even if the proper conclusion was that the judge should have granted leave, we would not for our part regard this conviction as unsafe and we reach that conclusion irrespective of the stage at which the application was made. For all those reasons we dismiss this appeal against conviction.
[Counsel addressed the court in relation to the appeal against sentence.]
LORD BINGHAM C.J.: In passing sentence on the appellant the Recorder said:
“… you are convicted of the offence of manslaughter committed by the use of a knife. That you were carrying a knife upon you on the relevant occasion was inexcusable. The use of it was inexcusable. The *39 unfortunate victim had done nothing wrong and he has lost his life in circumstances which were your fault.
There was not just one blow, there were seven blows, and I think that this is a matter which has to be regarded as a serious case. Of course there is no alternative to imprisonment. The sentence upon you is one of 10 years' imprisonment.”
Leave to appeal against that sentence was granted at a time when the normal range of sentences for this kind of killing was at a level generally lower than the term which the Recorder imposed. However, since that time the question as to the proper level of sentence for manslaughter of this kind has been the subject of consideration by this Court in Attorney General's Reference (No. 33 of 1996) (Latham) under section 36 of the Criminal Justice Act 1988. The facts of that case were different: there was a plea of guilty; there was an element of provocation; and the offender was a young man aged 22 years old at the time of the appeal. The Court did, however, in the course of giving judgment in that case, review the existing authorities on the level of sentence in manslaughter cases. At paragraph 8 of the judgment, under the heading “What should the tariff be”, it said:
“Even when a particular type of manslaugther is isolated from the rest it has to be recognised that it covers a wide field, and if justice is to be done sentencers must not be put in strait-jackets, but for the reasons identified in this judgment it seems to us that where an offender deliberately goes out with a knife, carrying it as a weapon, and uses it to cause death, even if there is provocation he should expect to receive on conviction in a contested case a sentence in the region of 10 to 12 years. The alternative would be to say that although the tariff should remain the same the indictment should contain a separate count in relation to the carrying of the offensive weapon for which a separate and normally consecutive sentence should be imposed, but that seems to us to be a somewhat cumbersome approach.”
With the last observation we respectfully agree.
The point is made by Mr Clegg that the case of Latham, from which we have quoted, was a case in which there was provocation and that in this case the situation is different. So it is, but the provocation was a mitigating factor there and this was, as the learned Recorder thought, a very serious case of manslaugther. He drew attention to the fact that there were seven blows, of which one was fatal. There was no evidence of provocation; there was no excuse which emerged from the evidence; there was no plea of guilty. In all the circumstances we consider that this sentence was entirely proper and we dismiss the appeal against sentence.
Representation
Solicitors: Attridge & Co., Bermondsey, for the appellant. Crown Prosecution Service, Headquarters.
Appeal dismissed.
R. v Brian Argent
Court of Appeal
16 December 1996
[1997] 2 Cr. App. R. 27
(The Lord Chief Justice (Lord Bingham), Mr Justice Sachs and Mr Justice Toulson):
December 16, 1996
EVIDENCE
Interview
Defendant failing to answer questions—Conditions to be met before jury draw inferences—Judge's direction to the jury.
The appellant was arrested following an anonymous telephone call to the police which named him as the attacker of a man who had been stabbed to death the night before. After being identified at an identity parade, the appellant was interviewed by the police. In the light of his solicitor's advice the appellant elected to say nothing in reply to the questions put to him. At trial the judge refused a defence application that this evidence should be excluded from consideration by the jury. The appellant was convicted of manslaughter. He appealed against conviction on the grounds that the judge wrongly directed the jury that it was open to them to draw an inference from the appellant's silence in interview in accordance with section 34 1 of the Criminal Justice and Public Order Act 1994.
Held, dismissing the appeal, that the proper inferences which section 34(2)(d) empowered a jury to draw in prescribed circumstances, where certain conditions had been met, were those which appeared proper to the jury as the tribunal of fact; that it was for them to decide, using their collective common sense, experience and understanding of human nature, whether a fact relied upon by a defendant in his defence at trial, but which he had failed to mention when questioned under caution, was a fact that the defendant could reasonably have been expected to mention; that these were issues on which the judge should give appropriate directions but leaving the issues for the jury to decide, only rarely directing them that they should or should not draw the appropriate inference; and that, accordingly, there were no grounds for criticising the judge's direction in this case.
[For s.34 of the Criminal Justice and Public Order Act 1994, see Archbold (1997) para. 15-395.]
Appeal against conviction and sentence.
On May 10, 1996 at the Central Criminal Court (Recorder of London, Sir Lawrence Verney) the appellant was convicted of manslaughter and *28 sentenced to 10 years' imprisonment. The facts and grounds of appeal appear in the judgment.
William Clegg Q.C. and Thomas Derbyshire for the appellant.
Orlando Pownall and Jonathan Laidlaw for the Crown.
LORD BINGHAM C.J.
On May 10, 1996, in the Central Criminal Court before the Recorder of London, the appellant was convicted of manslaughter, having been indicted for murder. He was sentenced to 10 years' imprisonment. He now appeals against conviction and sentence by leave of the single judge.
The facts giving rise to this appeal are in brief as follows. A gentleman named Tony Sullivan was stabbed to death with a knife in the early hours of August 19, 1995 outside an East London nightclub, the Lotus Club. The appellant was arrested following an anonymous telephone call to the police which named him as the attacker. The prosecution case was that the appellant became aware that the deceased (who was unknown to him) had asked the appellant's wife to dance in the club and had later attacked him outside. At the time of the attack the deceased was, as the evidence showed, very drunk. There were eye witnesses to the fight between the deceased and another man. One witness who knew the appellant named him and two others picked him out on an identity parade.
The defence case was that there had been no contact between the deceased and the appellant or his wife in the club. They had left the nightclub before the deceased was attacked.
At the trial there were five eye witnesses who gave evidence. The most significant of those, in the judge's estimation, was Susan Whitnell whose evidence the judge summarised to the jury at pp. 8G–10D of the transcript of his summing-up. The judge pointed out that Susan Whitnell was known both to the appellant and his wife and had been so for a very long time: in the case of the wife for some 20 years and in the case of the appellant for 15 years. It was not suggested that she could have been mistaken about her recognition of both the appellant and his wife. While they were not close friends, they were long-standing acquaintances. It was suggested in the course of the trial that Susan Whitnell had a particular hatred of the appellant which she had had for some time. It was not, however, suggested that she entertained the same feelings towards the appellant's wife.
At the nightclub on the evening of August 18/19, Susan Whitnell had brought as a guest the 17-year-old girlfriend of her son, Sarah Guest.
The evidence given by Susan Whitnell was to the effect that a group of seven ladies who had been together all evening left the Lotus nightclub virtually simultaneously together with one man, the appellant. She gave evidence of an incident which occurred outside the nightclub which culminated in Mr Sullivan walking up to the appellant and tapping him on the shoulder. Susan Whitnell claimed that she had an unobstructed view of what followed. She described how the appellant pulled Tony Sullivan towards him and appeared to punch him four, five or six times with an *29 upward movement of his right hand. She saw nothing in the appellant's hand at that stage and saw Tony Sullivan do nothing to retaliate. She then saw Tony Sullivan turn back and saw blood on his chin and on his chest. Susan Whitnell said that she followed the appellant round the corner towards Romford Road. She then saw a knife in his hand and saw that there was blood on both his hands. She gave a description of the knife and told the jury that she had not wished to be involved in giving evidence but had done so because what she had seen was wrong. She denied the suggestion put to her that she and Sarah Guest had put their heads together to concoct a false story. She accepted that she had had a lot to drink, but insisted that she was not drunk.
Having summarised her evidence the learned trial judge said to the jury:
“You have seen and you have heard her. You decide whether she is reliable. If she is, her evidence clearly identifies the [appellant] as the man who struck Tony Sullivan and shows that Tony Sullivan was bleeding immediately thereafter.”
There were four other eye witnesses who gave evidence. One of them was Sarah Guest whom we have already mentioned. She saw the fight and identified the appellant on an identification parade. The second was a gentleman named John Tinton, who also saw the fight and also identified the appellant at a different identity parade. The third was Jane Edwards who saw the fight and was fairly sure it was the appellant who struck the fatal blow, but was not 100 per cent certain. There was a fourth additional eye witness, Siobhan Cadden, who saw the fight but could give no details.
On August 19, at about midday, the appellant was arrested and was first interviewed by the police. On that occasion he was in receipt of legal advice and declined to answer questions. There was during the trial a voir dire to determine the admissibility of the evidence of that interview. The judge held that the arrest had been lawful, but nonetheless excluded the police officer's evidence of the interview. He gave his reasons at p. 3F of the transcript of that ruling when he said:
“I do not myself take the view that at that stage on one anonymous telephone call there were any circumstances existing at the time which required the accused to mention anything. I think Mr Mackintosh [the solicitor] gave the right advice.
Nothing transpired in the course of the interview, except an assertion of not guilty, and if the Crown seek to rely upon the negative answers or absence of answers to other questions I, as at present advised, would tell the jury that no inference should be drawn.”
It appears to us that in that brief ruling the judge may have overstepped the bounds of his judicial function, but it is plain that the ruling was not unfavourable to the defence and it gives rise to no complaint.
A second interview conducted by Detective Constable Armstrong took place on November 16, 1995 after an identification parade at which the *30 appellant had been identified. The appellant was accompanied by an experienced solicitor, Mr Ryan, who gave the appellant certain advice. The advice had essentially three limbs: first, that in all the circumstances the appellant was well-advised to remain silent; secondly, that if he declined to answer questions there was a risk that inferences adverse to him might be drawn at the trial; and thirdly, that the decision whether or not to answer any questions was that of the appellant. In the light of this advice the appellant elected to say nothing and he accordingly replied “no comment” to a series of questions put to him by the officer.
At the voir dire a challenge was raised to the admissibility of this evidence also, the defence seeking a ruling that evidence of the questions asked and of the appellant's negative response to them should be excluded from consideration by the jury. In relation to this interview the judge ruled as follows:
“The situation is quite different in regard to the second interview. This was preceded by an identification parade with a positive identification and Mr Ryan knew that. He was concerned that the police on this occasion were not showing the usual co-operative attitude and were not disclosing to him such evidence as they had, as would normally be the case. As far as he was concerned there was a [feeling] of tension at the police station and that seems to have affected his own attitude to the problem of advice. In the situation which existed at that time the accused could reasonably have been expected to mention facts which were relevant or might be relevant. I cannot at this stage know precisely what the defence is. But I think the Act provides that I do not need to know at this point and if a fact were to arise upon which the defendant wished to rely, his failure to mention it at the second interview does seem to me something upon which comment can properly be made and something from which inferences can properly be drawn. I do not think I can go further at this point. I can only indicate that [this] is my preliminary view. I do not make a ruling until a ruling is required to a fact.”
The trial proceeded and Detective Constable Armstrong gave evidence on May 8. In the course of his evidence he testified to the second interview which took place on November 16 and retailed certain of the questions which he had asked and the appellant's negative responses to them.
The appellant himself gave evidence at the trial and a very brief summary of the effect of that evidence was given by the trial judge in the course of his summing-up at p. 15A where he said:
“Yesterday he gave you his account of what had happened on August 19. He said that he, like others in the case, had had a good drink that evening but was not drunk. He did dance with his wife and believed that no one else did so. He was unaware that any other man sought to dance with her.
By about three o'clock in the morning his wife had agreed with him *31 that they should leave and try to get a meal at the local Cantonese restaurant. They duly left. They went to that restaurant but were too late to be served. On the way he was concerned in no act of violence. They passed Walter Lee by the bus stop, and you can see on the plan where that is. They had a word with him. They then walked home—a distance of about a mile. They saw their baby sitter and the [appellant] returned to bed. He said he knew nothing about injury to or death of anyone at the Lotus Club until the police arrived at his house at about one o'clock that afternoon.”
That takes us to ground 1 of the perfected grounds of appeal which is that:
“The learned trial judge erred in law and/or in the exercise of his discretion in failing to exclude the evidence of the appellant's interview with the police on November 16, 1995.”
That challenge is made under section 78 of the Police and Criminal Evidence Act 1984, which entitles a judge to exclude evidence which has an unfair effect on the conduct of a trial. In this instance the interview itself was properly conducted; the appellant's solicitor was present and in a position to advise him; he was duly cautioned on two occasions; and the appellant chose to act on the solicitor's advice.
We can readily accept that there will be some situations in which a judge should rule against the admissibility of evidence such as this. For example (and only by way of example), the judge might so rule in the case of an unlawful arrest where a breach of the Codes had occurred, or if the situation were one in which a jury properly directed could not properly draw an inference adverse to a defendant. Again such a situation might arise if, in application of section 78, the judge concluded that the prejudicial effect of evidence outweighed any probative value it might reasonably have. However, save in a case of such a kind the proper course in our judgment is ordinarily for a trial judge to allow evidence to be given and direct a jury carefully concerning the drawing of inferences. In our judgment the ruling which the learned judge gave in this case was not wrong and it is relevant to note that at the time when he gave the ruling he did not know what the facts were upon which the appellant might rely in his defence.
We therefore turn to the second ground, which is closely linked with the first, and which is in these terms:
“The learned trial judge erred in law and/or in the exercise of his discretion in directing the jury that it was open to them to draw an inference from the appellant's silence in interview in accordance with section 34 of the Criminal Justice and Public Order Act 1994.”
It is in our judgment important to bear in mind the detailed terms of section 34. It is convenient to begin by considering subsection (2)(d) which reads: *32
“Where this subsection applies—… (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.”
The failure there referred to is a failure to mention at an earlier stage a fact relied on by the appellant in his defence, as is made plain by subsection (1)(a).
Subsection (2)(d) empowers a jury in prescribed circumstances to draw such inferences as appear proper. That must mean as appear proper to a jury because the jury is the tribunal of fact and the drawing of appropriate inferences from the facts is the task of the tribunal of fact. The trial judge is of course responsible for the overall fairness of the trial and it is open to him to give the jury guidance on the approach to the evidence. There will undoubtedly be circumstances in which a judge should warn a jury against drawing inferences, but the judge must always bear in mind that the jury is the tribunal of fact and that Parliament in its wisdom has seen fit to enact this section.
What then are the formal conditions to be met before the jury may draw such an inference? In our judgment there are six such conditions. The first is that there must be proceedings against a person for an offence; that condition must necessarily be satisfied before section 34(2)(d) can bite and plainly it was satisfied here. The second condition is that the alleged failure must occur before a defendant is charged. That condition also was satisfied here. The third condition is that the alleged failure must occur during questioning under caution by a constable. The requirement that the questioning should be by a constable is not strictly a condition, as is evident from section 34(4), but here the alleged failure did occur during questioning by a constable, Detective Constable Armstrong, and the appellant had been properly cautioned. The fourth condition is that the constable's questioning must be directed to trying to discover whether or by whom the alleged offence had been committed. Here it is not in doubt that Mr Sullivan was killed by someone. The Detective Constable was trying to discover who inflicted the fatal wound and whether the killing was murder or manslaughter, it being fairly clear that the offence must have been one or the other (unless the killer struck the fatal blow in the course of defending himself). The fifth condition is that the alleged failure by the defendant must be to mention any fact relied on in his defence in those proceedings. That raises two questions of fact: first, is there some fact which the defendant has relied on in his defence; and secondly, did the defendant fail to mention it to the constable when he was being questioned in accordance with the section? Being questions of fact these questions are for the jury as the tribunal of fact to resolve. Here it would seem fairly clear that there were matters which the appellant relied on in his defence which he had not mentioned. These included the fact that he had had no quarrel with Mr Sullivan in the club; that he and his wife had left the club before the *33 rest of the party; that he had not at any stage of the evening carried a knife; that he had not been involved in any altercation in the street in which Mr Sullivan was stabbed; that he saw and was a witness of no such altercation; that he saw Mr Lee in the street waiting for a cab; that he went to a restaurant for a meal but found that he was too late and that the restaurant was closed; and that he returned home and saw his baby-sitter. The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at that time. The courts should not construe the expression “in the circumstances” restrictively: matters such as time of day, the defendant's age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant. When reference is made to “the accused” attention is directed not to some hypothetical, reasonable accused of ordinary phlegm and fortitude but to the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time. It is for the jury to decide whether the fact (or facts) which the defendant has relied on in his defence in the criminal trial, but which he had not mentioned when questioned under caution before charge by the constable investigating the alleged offence for which the defendant is being tried, is (or are) a fact (or facts) which in the circumstances as they actually existed the actual defendant could reasonably have been expected to mention.
Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as that he was tired, ill, frightened, drunk, drugged, unable to understand what was going on, suspicious of the police, afraid that his answer would not be fairly recorded, worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.
In other cases the jury may conclude, after hearing all that the defendant and his witnesses may have to say about the reasons for failing to mention the fact or facts in issue, that he could reasonably have been expected to do so. This is an issue on which the judge may, and usually should, give appropriate directions. But he should ordinarily leave the issue to the jury to decide. Only rarely would it be right for the judge to direct the jury that they should, or should not, draw the appropriate inference.
In this particular case the trial judge directed the jury in the course of his summing-up in these terms, beginning at p. 16D of the transcript:
“There is, however, another matter of law to which I must now turn. *34 As you may be aware there has been a change which came into effect last year. It is not a change which requires the defendant to say anything which he does not wish to say. He is still entitled to do what this defendant did and to decline to answer questions put to him by the police in interview but now if he chooses that course certain consequences may follow. When he was cautioned before the interview he was warned about this and you may be satisfied that he understood that warning which was repeated more than once in the course of the interview.
In this case as part of his defence the defendant relies upon certain facts, namely that when he left the Lotus Club he did not encounter Tony Sullivan, he did not have a knife in his possession and did not inflict any knife wound upon Mr Sullivan and that he had no blood on his hands, that he met a friend Walter Lee on the way home who was able to confirm some of his account, there was a baby sitter at his home who can give further confirmation and throughout his journey from the club to his home he was accompanied by his wife who can support the entirety of his account.
There is no dispute that when he was questioned under caution before he was charged he failed to mention any of those facts. That he failed to do so cannot by itself prove guilt. However, if you are sure that the defendant did fail to mention those facts and that in all the circumstances existing at the time he could reasonably have been expected to mention them, you are entitled to draw such inferences from this failure as you think proper. In judging this matter, as indeed throughout your consideration of the evidence, you apply your ordinary common sense. Always remembering that any conclusion you draw from the defendant's failure to mention facts must be a conclusion about which you are sure before you can act upon it.
You are entitled to consider whether the reason for failure was because the defendant had not thought out all the facts by November 16 or that he then had no innocent explanation to offer or none which he believed would then stand up to scrutiny and that may cast doubt upon the truthfulness of his account now, but you are not obliged to draw any inference against a defendant. He has told you why he chose to be silent. That was the advice which he received at the time from his solicitor. You will consider whether or not he is able to decide for himself what he should do or whether having asked for a solicitor to advise him he would not challenge that advice.
Was this a situation where you are sure that it is proper to draw an inference against the defendant for his failure to mention the facts on which he now relies? The law in these circumstances permits you to do so but does not for a moment oblige you to do so.
The inference which the prosecution invite you to draw is that the account put forward in the defendant's evidence has been tailored to *35 meet the case which the prosecution has supported by evidence and had not been thought out on November 16.
Let me add this, which I hope simplifies this aspect: if you are satisfied that the evidence called by the prosecution has proved to your satisfaction that it was the [appellant] who stabbed Tony Sullivan, in reaching that conclusion you will inevitably have rejected the evidence put forward for the defence and no inferences will be necessary. If, on the other hand, you consider that the prosecution evidence does not make you sure of the identity of the stabber, you must not draw any inferences of guilt from the [appellant's] failure to answer questions on November 16. If there was no case to answer the [appellant] cannot be blamed for not answering it.”
The appellant's criticism of the judge's ruling in this case rests on two main grounds. First, it is said that the police had failed to make such full disclosure of the case against the appellant as they could and should have made; and secondly, that in the absence of such full disclosure the appellant's solicitor was right to advise him not to answer questions and that advice was in strict compliance with guidance given by the Law Society to solicitors acting in such a situation. As counsel succinctly summarised his submission, the crucial question is whether the police gave sufficient information to enable the solicitor to advise his client. If not, the solicitor was entitled to advise his client to say nothing and the judge should have excluded evidence of the interview on the voir dire.
As to the first of the points made, it appears to us that the police may have made more limited disclosure than is normal in such circumstances. Under the Codes they had no obligation to make disclosure and they may well have had reasons for limiting the disclosure which they made. It is, however, relevant to note that by November 16 the firm to which the appellant's solicitor belonged had been advising him for a period of three months. The material given to the appellant and his solicitor made it plain that several witnesses had identified the appellant as having been present in the Lotus Club on the night of the killing, that the fatal stabbing had occurred at about 3.25 a.m. on August 19 outside the Lotus Club, that persons at the club had identified the appellant as the person responsible for the stabbing and that a description communicated to the appellant and his solicitor had been given.
This was not, on any showing, a very complex case to which to respond. There is an obvious contrast with cases perhaps of fraud or conspiracy which depend on a complex web of interlocking facts. It would, one might think, have been very easy to say, if it were true, that the appellant had left the club before there was any trouble and that he never was involved in or even saw any violence of any kind.
The second observation we would make is that, under section 34, the jury is not concerned with the correctness of the solicitor's advice, nor with *36 whether it complies with the Law Society guidelines, but with the reasonableness of the appellant's conduct in all the circumstances which the jury have found to exist. One of those circumstances, and a very relevant one, is the advice given to a defendant. There is no reason to doubt that the advice given to the appellant is a matter for the jury to consider. But neither the Law Society by its guidance, nor the solicitor by his advice can preclude consideration by the jury of the issue which Parliament has left to the jury to determine. The judge's direction to the jury on this point, which we have recited, was as we think a model of succinctness and also, as it seems to us, of comprehensiveness. We see no ground for criticising it in any way. Even if there were grounds for criticism, such criticism would be largely academic since the judge concluded the passage by indicating that inferences would be unlikely to assist the jury in their task
Ground 3 of the perfected grounds is that:
“There was a material irregularity in the trial in that the Crown were permitted to cross-examine witnesses for the defence about the [appellant's] previous convictions and what he had told them about the circumstances thereof.”
It is common ground that the nature or conduct of the appellant's defence in this case was such as to involve imputations on the character of Sarah Guest and Susan Whitnell. That admittedly made him vulnerable to exposure of his own criminal record under section 1(f)(ii) of the Criminal Evidence Act 1898. Recognising that, counsel on the appellant's behalf who proposed to call him as a witness invited the judge to exercise his discretion against permitting cross-examination by the Crown on his previous convictions. The learned judge gave a ruling on that application in which he said:
“Mr Clegg concedes that an imputation has been made against the witnesses Whitnell and Guest which would prima facie allow the prosecution to take advantage of the rules permitting cross-examination as to previous convictions, but Mr Clegg invites me to exercise my discretion and to exclude such cross-examination.
It is premature to make a firm decision at this stage, but Mr Clegg asks for a preliminary ruling so that if necessary he can incorporate in the [appellant's] evidence-in-chief the two convictions which would otherwise be the subject of cross-examination.
I am quite satisfied that there has been conduct of the defence which would justify such cross-examination. The two convictions which are relevant, and the only two, are in 1991 and 1994. Certainly what happened in 1981 and 1982 is not relevant and no one argues to the contrary.
My own feeling at this moment is that the jury has to make a very clear decision as to the credibility of Whitnell and Guest on the one *37 hand and that of the [appellant] on the other hand, and in those circumstances they ought to have in front of them the information which may help them on that issue and that issue alone.
That cross-examination of Susan Whitnell did not include any reference to a previous conviction was a decision made by the defence, but the attack upon her credibility was very clear. I do not think it would be unfair at this stage to allow the prosecution to cross-examine but, as I have indicated, this can only be a preliminary view and I do not make it a firm ruling.”
The learned judge having given that provisional ruling, counsel for the appellant adduced evidence of the appellant's previous convictions in-chief. He was duly cross-examined on those convictions and no complaint is made of that. But when the appellant called his wife and Mr Lee as witnesses, they were asked questions in cross-examination relevant to his convictions. Counsel for the appellant now objects that the questions about the appellant's convictions went to the credit of the appellant and he submits that this is illegitimate since the Crown was bound by his answers on questions of credit and the Crown was not entitled to pursue this matter by questioning other witnesses. The answer given to the Crown is that the questions which were asked of the appellant's wife and Mr Lee were asked not to investigate the facts underlying the convictions or the appellant's explanations of them, but simply to test the credibility of those witnesses. So far as Mr Lee is concerned, we understand it to be virtually accepted that that is so. In the case of Mrs Argent, we regard that answer as a good one also. The questions went to her alleged ignorance of her husband's conviction. Counsel for the Crown was in our judgment fully entitled to ask questions about this matter which threw doubt on her credibility and reliability as a witness.
Ground 4 of the perfected grounds, which is closely linked to ground 3, is in terms that:
“The … trial judge erred in law and/or in the exercise of his discretion in refusing an application by the defence to recall the witness Susan Whitnell so that her previous convictions could be put to her.”
When Susan Whitnell was cross-examined on behalf of the appellant, no questions were asked concerning her previous convictions. The judge understood this to be the result of a conscious decision by the defence, as is apparent from his ruling to which we have already referred. In that understanding he was quite right. Counsel for the appellant confirms that the decision not to cross-examine Susan Whitnell on her convictions was a tactical decision made in the hope of avoiding the cross-examination of the appellant under proviso (f)(ii) to section 1 of the 1898 Act.
He does not criticise the learned judge's refusal, but points out that once the judge had rejected the defence application to exclude evidence of the appellant's convictions there was a discussion between counsel for the appellant and counsel for the Crown concerning the possible admission of *38 Susan Whitnell's convictions or the recalling of a police officer to give evidence concerning them or the recall of Susan Whitnell. In the event no agreement was reached and no admission was made. The course of events consequently was that the appellant gave evidence. He called his wife as a witness, he called three other witnesses, and at this stage counsel for the appellant applied to the judge that Susan Whitnell should be recalled or that a police officer should be called to give evidence of these convictions. The learned judge rejected that submission. He said in a brief ruling as follows:
“I am inclined to think that the expression ‘have your cake and eat it’ is a fair, if not a legal, description of what is being sought. The opportunity to ask these questions was available yesterday and was by a clear decision rejected. I am not prepared to order the recall of the witness, nor am I prepared to allow a police officer to give evidence that she could herself have given had she been asked.”
The judge clearly felt that the appellant had made a decision and that he should therefore live with it. He was not willing that the appellant should chop and change the conduct of his case on tactical grounds depending upon the rulings in the case.
Counsel for the appellant criticises that ruling as being a wholly unreasonable exercise of discretion which (he says) altered the whole balance of the case against the appellant. We, for our part, see it rather differently. Counsel made a judgment, which was no doubt a perfectly reasonable judgment, but it turned out to be wrong. It seems to us that it was very much a question for the exercise of the trial judge's discretion as to whether or not he granted the leave which was sought. Had he decided to grant leave there could be no possible ground for criticising his decision. Similarly, we regard his refusal of leave as a sustainable exercise of discretion, particularly having regard to the very late stage at which the application was made. Not all judges would have made the same decision, but in our view this was not one which could be stigmatised as wrong or unreasonable. Even if the proper conclusion was that the judge should have granted leave, we would not for our part regard this conviction as unsafe and we reach that conclusion irrespective of the stage at which the application was made. For all those reasons we dismiss this appeal against conviction.
[Counsel addressed the court in relation to the appeal against sentence.]
LORD BINGHAM C.J.: In passing sentence on the appellant the Recorder said:
“… you are convicted of the offence of manslaughter committed by the use of a knife. That you were carrying a knife upon you on the relevant occasion was inexcusable. The use of it was inexcusable. The *39 unfortunate victim had done nothing wrong and he has lost his life in circumstances which were your fault.
There was not just one blow, there were seven blows, and I think that this is a matter which has to be regarded as a serious case. Of course there is no alternative to imprisonment. The sentence upon you is one of 10 years' imprisonment.”
Leave to appeal against that sentence was granted at a time when the normal range of sentences for this kind of killing was at a level generally lower than the term which the Recorder imposed. However, since that time the question as to the proper level of sentence for manslaughter of this kind has been the subject of consideration by this Court in Attorney General's Reference (No. 33 of 1996) (Latham) under section 36 of the Criminal Justice Act 1988. The facts of that case were different: there was a plea of guilty; there was an element of provocation; and the offender was a young man aged 22 years old at the time of the appeal. The Court did, however, in the course of giving judgment in that case, review the existing authorities on the level of sentence in manslaughter cases. At paragraph 8 of the judgment, under the heading “What should the tariff be”, it said:
“Even when a particular type of manslaugther is isolated from the rest it has to be recognised that it covers a wide field, and if justice is to be done sentencers must not be put in strait-jackets, but for the reasons identified in this judgment it seems to us that where an offender deliberately goes out with a knife, carrying it as a weapon, and uses it to cause death, even if there is provocation he should expect to receive on conviction in a contested case a sentence in the region of 10 to 12 years. The alternative would be to say that although the tariff should remain the same the indictment should contain a separate count in relation to the carrying of the offensive weapon for which a separate and normally consecutive sentence should be imposed, but that seems to us to be a somewhat cumbersome approach.”
With the last observation we respectfully agree.
The point is made by Mr Clegg that the case of Latham, from which we have quoted, was a case in which there was provocation and that in this case the situation is different. So it is, but the provocation was a mitigating factor there and this was, as the learned Recorder thought, a very serious case of manslaugther. He drew attention to the fact that there were seven blows, of which one was fatal. There was no evidence of provocation; there was no excuse which emerged from the evidence; there was no plea of guilty. In all the circumstances we consider that this sentence was entirely proper and we dismiss the appeal against sentence.
Representation
Solicitors: Attridge & Co., Bermondsey, for the appellant. Crown Prosecution Service, Headquarters.
Appeal dismissed.
Edited by anonymous-user on Friday 22 March 08:16
Breadvan72 said:
BUT, look what happened the very next year. Turner ended up being potted. I would wager that Sgt Nightingale is likely to be potted again, second time around, as the evidence against him looks rather damning, but we shall see. Etc......
Dear, dear me! And all this over a set of piston rings on a Humber at 65 quid.BV, if you remove your barrister head and replace it with your petrolhead do you not draw the inevitable conclusion that the law is indeed, at least in this case, an ass?
J
ETA
Quote trimmed.
Edited by Big Al. on Friday 22 March 16:40
It's a bid odd, that one, but what Turner did was dishonest. He was trying to shaft the garage. You will have noted that Turner was a bit of a local character, who had on previous occasions troubled Her Majesty's constabulary. He had a lucky win on his first appeal, as has Sgt Nightingale on his, but Lord Widgery was probably very fed up with Turner the second time he popped up, especially as the case was indeed very trivial.
Compare Huhne and Pryce, - total Armageddon over what was in reality the merest nothing - a short driving ban for a man who could afford to hire a driver.
PS: 65 quid in 1970 means about 850 quid today. Still trivial, but there you are.
Compare Huhne and Pryce, - total Armageddon over what was in reality the merest nothing - a short driving ban for a man who could afford to hire a driver.
PS: 65 quid in 1970 means about 850 quid today. Still trivial, but there you are.
Edited by anonymous-user on Friday 22 March 10:48
Thanks. Next request, and frankly I dont't know precisely what it is I am looking for, but are there written reasons for why Dennis Nilsen has been given a whole life tariff? Of course it is complete common sense that he should have one but I was watching a documentary about him today recorded from yesterday which states it was judicially reviewed in 2006 if that helps.
You might be thinking of the Anderson case from 2002, which established that it was unlawful for life sentence tariffs to be set by a Minister and not by a court.
http://www.bailii.org/uk/cases/UKHL/2002/46.html
This led to the Criminal Justice Act 2003.
http://www.bailii.org/uk/cases/UKHL/2002/46.html
This led to the Criminal Justice Act 2003.
jith said:
Breadvan72 said:
BUT, look what happened the very next year. Turner ended up being potted. I would wager that Sgt Nightingale is likely to be potted again, second time around, as the evidence against him looks rather damning, but we shall see. Etc......
Dear, dear me! And all this over a set of piston rings on a Humber at 65 quid.BV, if you remove your barrister head and replace it with your petrolhead do you not draw the inevitable conclusion that the law is indeed, at least in this case, an ass?
J
ETA
Quote trimmed.
Edited by Big Al. on Friday 22 March 16:40
How about showing a wee bit courtesy the next time and asking, eh?
J
Breadvan72 said:
You might be thinking of the Anderson case from 2002, which established that it was unlawful for life sentence tariffs to be set by a Minister and not by a court.
http://www.bailii.org/uk/cases/UKHL/2002/46.html
This led to the Criminal Justice Act 2003.
Nah, I've read that - I was interested in Nielsen specifically. It wouldn't have gone very far up the courts (not sure of technical term) - tbh while the documentary used the term "judicial review" I don't know if they meant anything other than it was set by a judge...http://www.bailii.org/uk/cases/UKHL/2002/46.html
This led to the Criminal Justice Act 2003.
Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff