Howell, R v

On 28 July 1998 before His Honour Judge Martin Stephens QC at the Swansea Crown Court this appellant was convicted by the jury of an offence of wounding with intent, charged in count 2 of the indictment, and was sentenced to 6 years imprisonment. He was acquitted of attempted murder (charged in count 1). On 14 May 1999, the full court (Evans LJ, Curtis and Aikens JJ), at a hearing not attended by counsel, refused his renewed application for leave to appeal against conviction. However those advising him at length took up his case with the Criminal Cases Review Commission (“the Commission”). The Commission has now referred the case to this court pursuant to s.9(1) of the Criminal Appeal Act 1995. The Commission’s Statement of Reasons shows that, in summary, they entertained two concerns. (1) The appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights (“ECHR”) was arguably violated in that the trial judge effectively withdrew from the jury the question whether the appellant had remained silent in his police interview because of advice given to him by his then legal adviser, a Mr Owens of Messrs Avery Naylor Wilson. (2) His Article 6 rights may have been violated by a failure to adduce before the jury certain evidence which could have been given by Mr Owens, which would have supported the appellant’s contention that he remained silent on the basis of legal advice. However as we shall show the grounds of appeal advanced by counsel on the appellant’s behalf run wider than the concerns of the Commission.

The outline facts were these. The appellant and the complainant, one Kevin Johns, were friends. They both lived in a house made up of bed-sitting rooms. The Crown’s case was that on 9 February 1998, while both of them were watching television in the lounge, the appellant without any provocation attacked Mr Johns with a knife and inflicted very serious injuries upon him. It was alleged that a knife with droplets of water upon it was later found in the appellant’s wardrobe, and that this was the knife used in the attack. Blood had been washed off it by the appellant. The defence case was that an incident had indeed taken place in the lounge that evening, but that the attacker had been the complainant Mr Johns; it was he who had assaulted the appellant with a knife. Any injuries sustained by Mr Johns had been caused by acts of reasonable self defence on the appellant’s part. It was suggested as part of the defence case that Mr Johns might have attacked the appellant in an attempt to rob him so as to get money to relieve some of Mr Johns’ debts. The appellant admitted that the knife found in the wardrobe belonged to him, but denied that it had been used in the attack. He had not washed it; he said that particles of glue had been mistaken for droplets of water.

It is right to observe that Mr Johns’ injuries were much more severe than those sustained by the appellant. Mr Johns suffered an injury to the right abdominal wall below the ribs, which spurted blood on examination. The doctor was able to penetrate the wound with his finger by about 4 inches. A scan revealed that although the abdominal wall had been penetrated, no damage had been caused to the organs; the doctors thought that this was miraculous in the circumstances. The nature of the injury might have been occasioned by the force of a blow, or the effects of a struggle while the knife was actually in the wound. Considerable force would have been required to get the knife past the ribs. There was a second wound, by which the knife had penetrated Mr Johns’ chest cavity and caused the collapse of the lung. That was life-threatening. Further there were numerous lacerations to the hands and the head, and a gash over the eye. There were abrasions to various areas of the body, and a bite mark on each shoulder. An injury to the face appeared to be a slash wound. As for the appellant, he had sustained lacerations and swelling to the right eye and right index finger, both of which needed around 3 sutures. The eye injury could have been caused by a head butt; however it was more consistent with a punch. The doctor examining him thought that the finger injury had been caused by a sharp instrument, and not a bite.

After he had been treated for his injuries, the appellant was taken to the police station where he asked to see a solicitor. On 10 February 1998 Mr Owens attended at the police station before the appellant was interviewed under caution. He took a detailed statement from the appellant, in which the appellant gave an account to the effect that Mr Johns was the attacker, with the knife, and he had done no more than defend himself. It is unnecessary to set out the detailed terms of this statement, but we must refer to it further in due course.

Then on the same day the appellant was sought to be interviewed by the police. There is a pro forma document which under the heading “record of agreed course in interview”, has these words in Mr Owens’ writing:

At his trial the appellant gave evidence in his own defence. As we have said his case was that Mr Johns was the attacker; and in his testimony he imputed a robbery motive to him. With the judge’s permission he was thereafter cross-examined about certain previous convictions of his, including matters recorded against him a very long time ago which were by then spent within the meaning of the Rehabilitation of Offenders Act 1974. One of these was a conviction in 1968 for an offence of wounding. We mention this because one of the complaints raised in the grounds of appeal is to the effect that the judge, while he possessed a discretion to let in these very old convictions because the appellant had attacked Mr Johns’ character, should in justice not have done so. We were not persuaded by this ground of appeal, nor by certain others which in truth are at the periphery of the case. We shall refer to all of these, which we may call the subsidiary grounds, briefly later in this judgment.

In re-examination the appellant was not asked to give any evidence of the statement he had made to Mr Owens on 10 February 1998, and the jury were at no stage apprised of the existence of that document. Mr Owens was not called as a defence witness to explain that he had indeed advised the appellant to offer no comment at interview, or why he had done so. These circumstances, together with the learned trial judge’s treatment of the no comment interview in the course of his summing-up, together form the principal basis upon which the appeal is put forward, consistently with the concerns expressed by the Commission. In that context it is appropriate at this stage to refer to a document in the handwriting (it would appear) of junior defence counsel, and signed by the appellant on 23 July 1998, which was the last day of evidence and indeed the day on which the appellant’s evidence before the jury was concluded. The document reads as follows:

The Commission recorded in its Statement of Reasons (paragraph 10.1) that junior trial counsel for the defence had indicated in a statement that the decision not to seek to adduce the 10 February 1998 in evidence, or to call Mr Owens as a defence witness, were decisions taken by the appellant himself. They state that junior counsel “said that the decision was taken following consultation with leading counsel and it was considered that any inconsistencies between the original statement and Mr Howell’s evidence in chief would have been elicited by Crown counsel in cross-examination of Mr Howell and used to undermine his case”.

On 23 July 1998, after the end of the evidence, defence counsel submitted to the judge that s.34 of the Criminal Justice and Public Order Act 1994 (which we set out below) had no application to the case. The suggestion was that the police should not have interviewed the appellant at all, because the officer, PS Jones, believed before the interview started that he already had sufficient evidence to charge the appellant; and so under PACE Code C16.1 the appellant should have been brought without delay – and thus with no intervening interview – before the custody officer. The judge held that PS Jones was quite right to interview the appellant in this very serious case: he might for example have wished to raise an issue of self defence, or have other important things to say. Complaint is made in one of the subsidiary grounds of appeal that this submission to the judge should have been made earlier, before the appellant gave his evidence or upon a voir dire being held no doubt with PS Jones in the witness box. Had the submission been made then and succeeded, the appellant would not have been cross-examined about his interview at all. We can say at this stage that there is in our view nothing whatever in this point. The judge correctly held that it was the officers’ right and duty to interview the appellant. That being so, whenever this point had been taken, the appellant would in any event have been subjected to cross-examination about his interview. S.34 of the Act of 1994 is, however, very important for the resolution of the true issues in the case concerning the 10 February 1998 statement, Mr Owens’ advice, and the judge’s summing-up. It is convenient therefore to set out its terms so far as relevant:

We turn to the summing-up. The relevant passage is at 14G – 16H of the transcript:

We now turn to the grounds of appeal (the grounds are all pre-fixed with the number 3, as they appear in the third section of a composite document put in by counsel for the appellant). We will deal first with what we have called the subsidiary grounds. We have already disposed (paragraph 9) of the argument that the submission to the effect that s.34 of the 1994 Act did not apply to the case should have been made at a different stage. That was Ground 3(ii)(a). We have also indicated (paragraph 6) that we are not persuaded by the submission (Ground 3(i)(c)) that the judge should have declined to allow the Crown to cross-examine the appellant on his previous convictions for offences which went back a long distance in time. The suggestion here (section 5 of counsel’s Grounds document, paragraph 5.7) is that the judge failed to apply the “proper test” – a reference to the exhortation to judges in the Practice Direction relating to spent convictions (61 CAR 260) not to let in such convictions unless it is in the interests of justice to do so. But the judge plainly thought that the interests of justice would be served by cross-examination of the appellant on these convictions. We cannot say he was wrong. This ground is linked to three others: (a) failure by the judge to warn defence counsel during the cross-examination of Mr Johns that questions put to him suggesting a robbery motive would likely result in the loss of the appellant’s shield against the admission of his previous convictions (Ground 3(i)(b)) – however Miss Dobbs QC for the appellant made it clear that she did not pursue this argument: she was plainly right to abandon it; (b) error by defence counsel in putting the robbery motive at all (Ground 3(ii)(e)); and (c) error by counsel in making reference, in the course of the appellant’s evidence in chief, to a pending drink-driving charge (Ground 3(ii)(g)). These remaining points are in our view wholly unsustainable. The alleged robbery motive was put to Mr Johns on the appellant’s express written instructions (in a note signed by himself and junior counsel and the solicitor for the defence), and he had obviously been given advice about it. The point about the drink-driving charge is frankly ephemeral. We should add that the argument that the judge should not have let in the appellant’s previous convictions was one of the grounds upon which the full court originally refused leave to appeal on 14 May 1999. Now, once a reference has been made to this court by the Commission, the appeal may be on any ground relating to the conviction whether or not the ground is related to any reason given by the Commission for making the reference (Criminal Appeal Act 1995 s.14(5)). But where such an ancillary ground is, as here, unrelated to the basis for the Commission’s reference and has already been dismissed by this court upon an earlier application for leave to appeal, it is very unlikely to receive other than short shrift at the later appeal consequent on the Commission’s reference.

Ground 3(i)(a) is to the effect that the judge erred in allowing the Crown to withhold from the defence certain details of Mr Johns’ medical records. It is said that any information relating to Mr Johns’ physical or mental condition was relevant to the defence in various respects, not least as potentially offering an explanation why he might attack the appellant without the least provocation. In fact, a document in redacted form (which had been approved by the judge) was provided to the defence. We understand that no suggestion was made at the trial to the effect that it was inadequate. We see no reason why such a point should be taken now.

Before coming to the substance of the case, there remains only Ground 3(ii)(f), which accuses trial counsel and solicitors of failing “to ensure that the [appellant] fully understood the ramifications of instructions said to have been given by him”, and failing to give him proper advice about the effect of any instructions he gave. But there is nothing whatever in the papers on which to build such an argument.

That brings us, then, to the nub of the case, which concerns the no comment interview. There are three aspects to it. First, it is said that counsel should have called Mr Owens to give evidence to the effect that he had advised the appellant not to answer questions in interview, and why (Ground 3(ii)(b)). Secondly, counsel should during the appellant’s re-examination have adduced his statement given to Mr Owens on 10 February 1998 (Ground 3(ii)(d)). Then at Grounds 3(iii)(a) – (c) three linked complaints are made as to the passage in the summing-up which we have set out. Together they amount to this. The judge failed to make it clear to the jury that there was evidence before them, coming from the appellant, that he had remained silent at interview because he had been advised to do so by his solicitor, and the reason for the advice was that there had at the time been a failure of disclosure by the police; and the judge should have directed the jury that if they felt that he may have remained silent because he was acting on his solicitor’s advice, no adverse inference should be drawn against him. Instead, the judge gave a strongly worded, unbalanced and misleading direction which all but withdrew from the jury’s consideration the crucial explanation for the appellant’s silence, namely the solicitor’s advice. The critical passage is at 16E – H which we repeat for convenience:

The complaints against counsel and those against the judge are linked: Miss Dobbs would I think say that if Mr Owens’ evidence and the appellant’s previous statement had been before the jury, the judge would have been obliged to refer to those materials in terms as showing (a) that it was beyond question that the appellant had received professional advice to remain silent and there were solid reasons for it, and (b) that it was also entirely plain he had not made up his story of self defence at some stage after the interview. And I think Miss Dobbs would add that in those circumstances there was really no scope for an adverse inference to be drawn from the appellant’s silence, and the judge should have indicated as much.

We shall deal first with the complaints against counsel. In a letter to the Commission junior trial counsel indicates that the appellant’s signed instructions (see paragraph 7 above) to the effect that he did not want Mr Owens called were taken after his evidence had been completed, and following careful discussions in consultation with leading counsel. As it is put in the letter:

Given that the defence could not for their part have put in the statement of 10 February 1998, it remains to consider what might have been the effect of calling Mr Owens. He might of course have referred to the statement, but that would have been at the behest of questions from the Crown. Such questions would almost certainly have revealed the essential basis of his advice (whose privilege would manifestly have been waived) that his client should make no comment in interview. It appears from Mr Owens’ own statement of 7 April 1998, which we have already cited:

In the result we do not consider that the criticisms of counsel on this part of the case begin to assault the safety of the conviction. We turn to the criticisms of the summing-up.

Here there are important issues of principle involved. Miss Dobbs has relied in particular on authority of the European Court of Human Rights and of this court to establish the proposition that where the reason for a suspect’s silence at interview is a genuine reliance on a lawyer’s advice that he should keep silent, that is at least a very powerful reason why the jury at the trial should draw no adverse inferences from his silence. It is convenient first to refer to the case of Condron , which was the subject both of an appeal in this court ([1997] 1 CAR 185) and an application to the European Court of Human Rights (Application no. 35718/97, [2000] Crim LR 679). The appellants and a co-accused were arrested for drugs offences. At the police station the appellants’ solicitor advised them not to answer questions: he considered that they were unfit to be interviewed because of their drug withdrawal symptoms (though the police doctor thought they were fit). Accordingly they gave no comment interviews. Their appeals against conviction were dismissed by this court (Stuart-Smith LJ, Mantell and Moses JJ), which held that the trial judge had been right to leave it open to the jury to draw an adverse inference from the appellants’ failure to answer questions, notwithstanding the solicitor’s advice. The Strasbourg court found a violation of ECHR Article 6(1), holding that “the terms of the judge’s direction to the jury left them at liberty to draw an adverse inference even if they had been satisfied that the applicants remained silent for good reason on the advice of their solicitor. As a matter of fairness, the jury should have been directed that if they believed that the applicants’ silence during the police interview could not sensibly be attributed to their having no answer to the questions, or none that would stand up to cross-examination, they should not draw an adverse inference” (Criminal Law Review headnote).

The judgment of the European Court of Human Rights in Condron contains, with respect, this important passage at paragraph 61:

Before setting out our reasoning and conclusions on this important part of the appeal we should collect the principal strands in two of the domestic cases on s.34, starting with this passage from the judgment in Argent [1997] 2 CAR 27, delivered by Lord Bingham CJ (as he then was) at 35G – 36B:

Miss Dobbs draws particular attention to Betts & Hall [2001] 2 CAR 257, which she says builds on Condron , and so far as the authorities go represents, we think, the high water mark of her case. The critical passage in the judgment of the court delivered by Kay LJ is at paragraphs 53 – 54:

In seeking to articulate the true impact of s.34 upon cases like the appeal in hand, it is we think salutary to go back to the words of the section. It empowers the jury to draw proper inferences from a failure “to mention any fact relied on in his defence… being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention …” (emphasis added). It seems to us that this provision is one of several enacted in recent years which has served to counteract a culture, or belief, which had been long established in the practice of criminal cases, namely that in principle a defendant may without criticism withhold any disclosure of his defence until the trial. Now, the police interview and the trial are to be seen as part of a continuous process in which the suspect is engaged from the beginning. Of course he retains a right to silence, which the statute protects: not in absolute terms, but by providing, in the words we have emphasised, that adverse inferences may be drawn only in those cases where he could reasonably have been expected to mention the facts in question.

This benign continuum from interview to trial, the public interest that inheres in reasonable disclosure by a suspected person of what he has to say when faced with a set of facts which accuse him, is thwarted if currency is given to the belief that if a suspect remains silent on legal advice he may systematically avoid adverse comment at his trial. And it may encourage solicitors to advise silence for other than good objective reasons. We do not consider, pace the reasoning in Betts & Hall , that once it is shown that the advice (of whatever quality) has genuinely been relied on as the reason for the suspect’s remaining silent, adverse comment is thereby disallowed. The premise of such a position is that in such circumstances it is in principle not reasonable to expect the suspect to mention the facts in question. We do not believe that is so. What is reasonable depends on all the circumstances. We venture to say, recalling the circumstances of this present case, that we do not consider the absence of a written statement from the complainant to be good reason for silence (if adequate oral disclosure of the complaint has been given), and it does not become good reason merely because a solicitor has so advised. Nor is the possibility that the complainant may not pursue his complaint good reason, nor a belief by the solicitor that the suspect will be charged in any event whatever he says. The kind of circumstance which may most likely justify silence will be such matters as the suspect’s condition (ill-health, in particular mental disability; confusion; intoxication; shock, and so forth – of course we are not laying down an authoritative list), or his inability genuinely to recollect events without reference to documents which are not to hand, or communication with other persons who may be able to assist his recollection. There must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police. Solicitors bearing the important responsibility of giving advice to suspects at police stations must always have that in mind.

We should say that we consider this approach to be perfectly consistent with Condron on a proper reading of the Strasbourg judgment. The holding in that case referred to the applicants remaining silent for good reason on the advice of their solicitor. Moreover since the hearing we have seen the recent decision of the European Court of Human Rights in Beckles v UK [2002] ECHR 44652/98, another case in which the applicant remained silent on his solicitor’s advice. At paragraphs 58 – 59, after referring to Condron , the court said this:

Adopting the approach we have outlined to the present case, we do not consider that the terms of the judge’s direction to the jury begin to render this conviction unsafe. There was here no soundly based objective reason for silence. The jury were perfectly entitled to draw adverse inferences from the appellant’s no comment interview. It is true that the judge should not have spoken in terms which suggested the possibility of recent fabrication (transcript 16G). But on all the facts that cannot on its own suffice to assault the safety of the conviction.

The appeal against conviction will be dismissed.