Boyle & Anor, R. v

On 28^th May 1999, after a trial before Jackson J and a jury, in the Crown Court at Teesside, the appellants were convicted of murder and were sentenced to life imprisonment. They appeal against conviction following a reference by the Criminal Cases Review Commission under s.9(1) of the Criminal Appeal Act 1995, on 10^th August 2004. That reference is made on the basis that the judge’s direction to the jury in respect of adverse inferences from silence amounted to a significant misdirection. It is accepted by the Crown that there was a significant misdirection, in any event by the standards now required for a direction under s.34 of the Criminal Justice and Public Order Act 1994, but the Crown’s submission is that the convictions were safe and that thus any appeal should be dismissed.

Counsel for the appellants lodged two further grounds of appeal, unrelated to the CCRC’s referral, which have now been abandoned, i.e. (a) an alleged failure by the judge to direct the jury as to lies, and (b) an application to adduce fresh evidence. However, there is a further ground not abandoned, which relates to non-disclosure by the prosecution, the details of which we shall come to. On any view the main attack on the safety of the conviction relies on the direction given under s.34 by the trial judge.

It is even at this stage worth putting that direction into context. First, it was a direction discussed between the judge and counsel before the summing up commenced. Prosecuting counsel approved the same and leading counsel acting for each of the appellants also approved the same. Following the conviction there was an application for leave to appeal against conviction to the Court of Appeal. In the grounds no reliance was placed on the inadequacy of the s.34 direction, and the application was refused on 8^th February 2000. The appellant Boyle applied to the CCRC for a review of his conviction on 6^th April 2001. We assume the appellant Ford did likewise. It would seem that in those applications there was no suggestion that the s.34 direction was inadequate and on 2^nd January 2002 the CCRC decided not to refer either conviction to the Court of Appeal.

It was only on 19^th December 2003 that there was a re-application to the CCRC, based on the direction under s.34 and an assertion that it was insufficient and called into question the safety of the convictions.

The CCRC referred to a number of authorities. The most important authority was Condron v UK (2001) 31 EHRR, in which the European Court of Human Rights held that it was mandatory, when giving guidance to the jury on s.34, to direct the jury that they should not draw an adverse inference from silence unless they were satisfied that the silence could only be attributed to the defendant having no answer to the Crown’s case, or none that would stand up to cross-examination. That direction the English Court of Appeal had held to be merely “desirable” but the European Court took a more stringent view. The European Court further held that the fairness of the trial could not be secured by virtue of the appeal proceedings. The Court held at paragraph 63:-

“Admittedly defects occurring at a trial may be remedied by a subsequent procedure before a Court of Appeal and with reference to the fairness of the proceedings as a whole. However, as noted previously, the Court of Appeal had no means of ascertaining whether or not the applicants’ silence played a significant role in the jury’s decision to convict. The Court of Appeal had regard to the weight of the evidence against the applicants. However it was in no position to assess properly whether the jury considered this to be conclusive of their guilt.”

CCRC in their reasons pointed out how on the basis of that holding by the European Court the English Court of Appeal had in many cases adopted what the CCRC described as an absolutist approach. Thus there are many examples of cases in which, despite the strength of the Crown’s case, the Court of Appeal has felt bound to hold that a conviction was unsafe where the direction indicated above was not given.

If the absolutist approach must be adopted on this reference, the appellants’ conviction would have to be quashed and consideration would have to be given to ordering a retrial.

The CCRC pointed out also that there are some cases in the Court of Appeal where it has been held that a misdirection under s.34 should not necessarily render a conviction unsafe. In certain of those cases the Court of Appeal has analysed the direction given and found that when carefully analysed the issues were in fact placed fairly before the jury. Although not cited by CCRC R v Adetoro [2006] EWCA Crim 1716 is an example of such a case. In others, even without that analysis, the Court has upheld convictions despite the absence of the important direction. R v Petkar and Farquar [2003] EWCA Crim 2668, to which we were referred, supports that view. In that case so far as Petkar was concerned reliance was placed on a Lucas direction as curing the deficiency, but so far as Farquar was concerned the Court appears to have held simply that the evidence against him was overwhelming (see para 90).

We were also referred in Mr Jennings QC’s skeleton argument to R v Steele Whomes and Corry [2006] EWCA Crim 194, which was a decision of a Court of Appeal following a reference from the CCRC. In that case convictions had been referred back to the Court of Appeal in relation to various grounds, but the s.34 direction was a further ground relied on by the appellants. The Court recognised that the direction was inadequate by reference to the standards in 2006. The direction did not contain the key direction suggested to be compulsory by the European Court of Human Rights in Condron, although that does not seem to have featured largely in the reasoning of the court. In the judgment given by Maurice Kay LJ reference is made to cases dealing with gaining permission to appeal out of time, when the law has changed. Reference is made to Lord Justice Bingham CJ’s approach in Hawkins [1997] 1 Cr. App. R 234 at p.240 where he said:-

“It is plain, as we read the authorities, that there is no inflexible rule on this subject, but the general practice is plainly one which sets its face against the reopening of convictions in such circumstances. Counsel submits – and in our judgment correctly submits – that the practice of the Court has in the past, in this and comparable situations, been to eschew undue technicality and ask whether any substantial injustice has been done.”

Maurice Kay LJ ended his judgment with paragraph 67 saying:-

“Very likely the judge’s directions would be different if the matter were to be tried now. However, in the circumstances of this case, we do not think that any injustice whatsoever resulted from the directions which were given. No doubt as to safety of the conviction is raised in our minds by this point and, accordingly, this ground of appeal is also rejected.”

The submission on behalf of the appellants is that in that judgment no reference was made to Condron v UK or indeed to Beckles v UK (2002) 36 EHRR 162, which reinforced the European Court’s views as expressed in Condron. Indeed, perhaps more significantly, it is suggested that no reference was made to R v Beckles [2005] 1 Cr. App. 23, a decision of the Court of Appeal, when the case of Beckles was referred to the Court of Appeal by the CCRC following the decision of the European Court. In that case Lord Woolf first held that the direction, albeit it complied with a specimen direction in existence at the time, failed to match up to the standards required in 2005. The court then went on to consider whether the conclusion that there was a misdirection meant that the conviction was unsafe and said this:-

“This is the most difficult issue in this case. Mr Perry vigorously submits this is not the consequence. Whether he is correct depends upon the evidence we have already set out. Can we be satisfied that the unfairness which was inherent in the jury being misdirected would not have affected the jury’s verdict? . . . .We recognise the force of Mr Perry’s arguments, but in the end they do not satisfy us that we can safely put on one side the unfairness caused by the misdirection. . . . The fact is that the drawing of adverse inferences was left to them and in an unsatisfactory manner. Such inferences can give added strength to the Crowns case against a defendant. It can tip the balance from not being sure of the Crown’s case to being sure. It can give confirmation of the jury’s preference for the Crown’s case, of which (without that confirmation) they might not have been sure. It is impossible to say whether the jury would have reached the same conclusion were it not for this element in their deliberations. And if the jury drew a further adverse inference from the failure of the appellant to call his solicitor to explain the advice which he had given this could have had a significant effect on the verdicts at which they arrived.

In our judgment it follows that the convictions are unsafe.”

The above passage from Lord Woolf’s judgment would not suggest that in his view there was any absolute rule that if important aspects of the s.34 direction had not been given the court had no choice but to hold the conviction unsafe. It does not, however, appear to suggest that the court’s attitude should be any different following a reference from the CCRC as compared to a case where the point was properly taken on appeal. We are not clear from the introduction in the Lord Chief’s judgment as to whether any s.34 point was originally taken on appeal.

We are troubled as to what should be the right approach of the Court of Appeal in a case such as the present. We follow the argument based on the absolutist approach. But if an absolutist approach must be adopted in all cases where a misdirection is now identified in respect of cases where it has never previously been suggested that a trial was unfair, or a conviction unsafe, that would seem to leave it open to appellants on the advice of lawyers to bring before the CCRC cases where permission to appeal out of time might not have been given. It is relevant, as it seems to us, in considering a s.34 case, and indeed this case, to recognise that all the points taken as to the inadequacy of the direction, are points taken in other cases. In other words it is important to recognise that it was open to the appellants in this case to take the points now taken, if anyone had thought of them at the trial or immediately after the trial, if it were thought that there was force in any argument that the trial had been unfair.

We believe that an absolutist approach, particularly to a reference, is not called for. Each case depends on its own circumstances. The essential question is whether any misdirection identified has caused an injustice and whether the Court of Appeal is satisfied that the verdict was safe. In reaching a decision as to the safety of the verdict it may assist to analyse first how the case was left to the jury by virtue of the direction given and then second to analyse how it would have been left to the jury if a proper direction had been given. The court should then assess, whether having regard to the jury’s verdict on the direction as given, the jury would have been bound to convict if a proper direction had been given. Only, of course, if the court is sure that the jury would have been bound to convict can the verdict be said to be safe.

At 4.50 am on Wednesday 1^st July 1998 firemen attended a fire at 26 Lucknow Street in Darlington. There was a smell of petrol. They quickly discovered the body of Dean Godfrey, a twenty-six year old man, lying in the front room. Godfrey had been shot in the neck at point blank range with a sawn off shotgun, stabbed repeatedly with two different knives in the head, face, neck and body and finally his body, as well as his home, had been doused in petrol and ignited.

Mr Jennings who represented the appellants on the appeal conceded that the case against the appellants was a strong one. Mr Smith QC for the Crown submitted that the case was an overwhelming one, but Mr Jennings would not accept that epithet. The Crown’s case on the evidence can be summarised under the following headings, to which we will add such weaknesses as were suggested by Mr Jennings.

We should also mention at this stage an aspect of the evidence which has become the subject of the only other ground of appeal argued. The prosecution called a Mr Neil Ivin, the purpose of the evidence being to seek to demonstrate that the deceased had not got into the Saab motorcar. Mr Ivin’s evidence was to the effect that he had taken the deceased for a trip to Middlesbrough in his car, and just before they set off for Middlesbrough the appellants arrived with the Saab. His evidence was that the deceased did not get into the Saab and further his evidence in chief was that (a) that all took place on Thursday before the incident with which the case was concerned, and (b) that his, Mr Ivin’s, car was a red XR2. When in cross-examination it was pointed out to Mr Ivin that the evidence showed that the appellants did not obtain the Saab until the Friday, Mr Ivin’s evidence was to the effect that his memory was not good and it was thus the Friday about which he was talking. The cross-examination was also to the effect that Mr Ivin did not have a red XR2 at that moment in time because the police were in possession of it, but Mr Ivin denied that that was so.

The defence were correct; the police were in possession of Mr Ivin’s XR2 between 18^th June and 21^st July 1998, but this was not established at the trial. The evidence that Mr Ivin’s car was in police possession between 18^th June 1998 and 21^st July 1998 was not recorded on the Holmes system and in consequence not on any schedule of unused material. It had thus not been disclosed to the defence because it was not a fact known to any of the officers engaged in the case.

The defence clearly knew that the car was in police possession because they cross-examined on that basis and they did not seek further evidence of the car being in the possession of the police. Mr Smith submits that the explanation is probably because the defence were satisfied that Mr Ivin was such a poor witness that further demonstration of his unreliability was unnecessary.

Mr Jennings submits that proper disclosure would have created real doubt about Ivin’s reliability and that this was an important additional factor so far as the verdict of the jury was concerned. He submits that in convicting the appellants the jury clearly rejected the explanation for how the deceased’s blood came to be in the Saab. It is impossible, he submits, to know how much reliance was placed on Ivin’s evidence in coming to their decision to reject the appellants’ explanation. Ivin’s account, he submits, may have been the decisive factor.

He further submits that this non-disclosure must be looked at in the context of his criticism of the s.34 direction. The fact that a profile matching the blood of the deceased had been found in the Saab motorcar was put to Boyle in one of the interviews that took place on 23^rd July 1998. Indeed, a special warning was given in respect of that blood smear. Boyle made no reply and when asked if Dean Godfrey had ever been in the Saab he again made no reply. So, Mr Jennings submits, there is a danger that the jury rejected Boyle’s explanation as to how the deceased’s blood came to be in the Saab without appreciating (a) how weak Ivin’s evidence actually was and (b) without appreciating that there might have been a proper explanation for not revealing that explanation in July 1998.

We can say at this stage that this does not seem to us to be a case where there was non-disclosure, having regard to the knowledge of the officers in charge of the case. In any event, Ivin’s evidence that he had not seen the deceased getting into the Saab, when the Saab was in fact only obtained on the Friday, was exceedingly weak. It would seem most unlikely that the jury placed any reliance on it at all in considering Boyle’s explanation of how blood came to be on the ceiling of the Saab.

As it seems to us the case against the appellants was a very powerful one indeed. The case was, however, a circumstantial one, and the question that remains is whether, having regard to the criticisms that can legitimately be made of the s.34 direction, this court can be sure that the convictions are safe.

The context in which to place this direction is important. The appellants were interviewed in July 1998 before being charged with the offence. We have summaries of interviews on 3^rd July 1998 and summaries of further interviews which took place on 23^rd July 1998. When interviewed on 3^rd July 1998 Boyle was cautioned in the following terms:- “You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely upon in court; anything you do say may be given in evidence.” That was a caution, as we understand it, administered on each occasion to the appellants.

So far as Boyle was concerned he was told that he had the right to consult with his solicitor at any stage of the interview and at the commencement of the interview on 3^rd July 1998 Boyle’s solicitor, a Mr Hunsley, stated that he had discussed the position with Boyle and they had balanced his legal interests against certain personal matters which had a bearing on his movements over the last few days, and that Mr Hunsley:-

“had advised him that he felt the evidence disclosed to Mr Hunsley did not reveal any evidence to give rise to a reasonable suspicion that he had committed an offence in relation to Dean Godfrey, and that on that basis Boyle had been advised by him that not giving an account of his movements he was not prejudicing his position. Mr Hunsley accepted that advice might come under scrutiny at a later date.”

Mr Smith in his submission relied on that advice being clearly set out in the copies of the interview that the jury would have. But we are not sure that the setting out of that advice helps Mr Smith’s position. First, matters developed during July producing on any view real evidence, which could not be said to do otherwise than to give rise to a reasonable assertion that Boyle had committed an offence. Furthermore, it does not appear to have always been Mr Hunsley who was present at the interview; a Mr Walsh appears to have been the solicitor on 23/7/98 at certain of the interviews and there is no setting out on those occasions the advice given by Mr Walsh, although Boyle continued to make no reply answers.

So far as the appellant Ford is concerned all that is recorded at his first interview, which was on the 5^th July 1998, is that Mr Hunsley “told the officers that Mr Ford had indicated to him after he had advised him that he did not intend to answer questions”. At the fourth interview it is recorded that Mr Walsh, a solicitor, said that “this was the fourth interview and no direct evidence of murder had been put to his client”. Ford made no reply to any questions asked at this stage. Again, he was re-interviewed on 23^rd July and certain matters were put to him concerning his blood found in the Saab, but he still made no reply. He was told that Tracy White had seen him with a shotgun on Tuesday 30^th June and was given a special warning to account for his possession of the shotgun and he still made no reply.

After the appellants had been charged they were interviewed again on 14^th September 1998. This was to give them the opportunity to comment on the forensic evidence about blood-staining on, for example, the Lacoste glasses, which had only come to light after they had been charged and which had therefore not been put to them in July 1998. Both appellants instructed a different firm of solicitors from the firm instructed in July 1998 and in September 1998 both appellants answered questions in relation to the blood-staining. They gave the same explanation for how the deceased’s blood might have come to be on the Lacoste spectacles, namely that a few days before the murder the deceased had injected himself with amphetamines in their car, and had subsequently tried on Boyle’s spectacles. The appellant Ford also explained that he had visited the deceased’s house with Boyle a week or two before the murder and had injected himself with amphetamines, and assumed that any trace of his blood found at Lucknow Street must have come from that injection.

At trial both appellants gave evidence in accordance with the accounts that they gave to the police in the September interviews. They both explained their silence in the July interviews as being based on legal advice. Both appellants gave evidence that they had been together at the time of the murder on an abortive expedition to catch a badger and they both denied any knowledge or involvement in the murder. Their case was that they were going to a place some eight miles north-east of Darlington, the Wynyard Estate, to trap a badger, that that had been completed by about three in the morning and that they had then come back into Darlington and it was in those circumstances that they had been seen by the witnesses in Darlington.

The explanation for Ford’s injured finger was that the shotgun had gone off in the car on the way to their hunt for the badger, and the reason for telling people that the injury had been caused by being trapped in a car was because the appellant Ford had not wanted to look stupid and after the appellant Ford had told the lie, the appellant Boyle then said the same thing. (See page 93C of the summing up).

The judge emphasised in his summary of Boyle’s evidence that when Boyle was asked why he refused to answer questions in the early interviews he had made clear that “he had refused to answer questions because that was what his solicitors advised. Subsequently he changed solicitors. The new solicitors advised him to answer questions and he did so.”

The s.34 direction was in the following terms:-

“I come now to the defendant’s failure to answer questions during early interviews. Members of the jury when the defendants were interviewed during July last year they refused to answer any questions put to them. Consequently, they did not mention any of the matters now relied upon in their defence during those interviews. The defendants say that this refusal to answer questions was because of legal advice which they were receiving. It appears from the transcripts of the interviews that they were, indeed, receiving legal advice to that effect.

In September 1998, as I shall remind you when I come to review the factual evidence, the defendants’ stance changed. The defendants say that this was because their new solicitors were giving them different legal advice. It certainly appears from the transcripts in September the defendants’ legal advice became that they should answer questions. Indeed the answers which the defendants gave in and after September were consistent with their evidence in court. It is for you to decide whether the facts which the defendants failed to mention during the early interviews were facts which, in the circumstances, they could reasonably have been expected to mention. It they were then the law is that you may draw such inferences as appear proper from the defendants’ failure to mention these matters at the time. In considering whether the defendants could, reasonably, have been expected to mention during the early interviews the facts upon which they now relay in their defence you must consider all the circumstances. These circumstances include the legal advice which the defendants were receiving. If you are sure that the defendants could reasonably have been expected to mention those matters then what inferences can you draw? Failure to mention a fact cannot, on its own, prove guilt. But, depending on the circumstances, you may hold it against a defendant when deciding whether he is guilty. That is, take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.”

As we previously indicated that direction was discussed between counsel and the judge. A transcript of that discussion was placed before us, demonstrating that counsel for the appellants, Mr Bethel QC for Ford and Mr Worsley QC for Boyle, were content with a direction on those lines and they had no submission to make

The direction is on any view defective in certain significant respects. First it does not give the direction that:-

1.

An adverse direction could only be drawn if the jury were satisfied that the real reason for silence was that the appellants had no answer at the time, or none that would stand up to scrutiny.

2.

It was deficient in that the judge did not identify the precise facts to which the direction related.

The appellants rely on other deficiencies, as set out in paragraph 6.1 of their skeleton, but Mr Jennings QC accepted that if he did not get home on the two main points identified above, he would not succeed on the others. Mr Smith accepted that the critical mis-directions were the two identified.

It is perhaps important to recognise at this stage that no criticism is made in the appellants’ skeleton of the way in which the judge dealt with legal advice. If he had been following the JSB Guide to a s.34 direction as at today’s date the direction would have contained words to the following effect:-

“The defendants have given evidence that they did not answer questions on the advice of their solicitor. If you accept the evidence that they were so advised, this is obviously an important consideration; but it does not automatically prevent you from drawing any conclusion from their silence. Bear in mind that a person given legal advice has the choice whether to accept or reject it; and the defendants were warned that any failure to mention facts which they relied on at their trial might harm their defence. Having done so, decide whether the defendants could reasonably have been expected to mention the facts on which they now rely. If, for example, you considered that they had or may have had an answer to give but reasonably relied on the legal advice to remain silent, you should not draw any conclusion against them. But if, for example, you were sure that the defendant had no answer and merely latched onto the legal advice as a convenient shield behind which to hide, you would be entitled to draw a conclusion against them . . .”.

Mr Smith’s submission was that so far as legal advice was concerned, the appellants received a favourable direction. He submits that the inference to be drawn from the judge’s direction that the transcripts indicated that they did receive legal advice that they should not answer questions, and his drawing attention to the fact that that advice changed and that once they had advice to the contrary in September they gave evidence in accordance with that advice, are all directions which would have steered the jury to the view that reliance on the advice in July 1998 was reasonable.

We accept that the steer was in the appellants’ favour, but the direction still left it open to the jury to draw adverse inferences, and the submission is not a complete answer to Mr Jennings’ submissions.

So far as the second criticism is concerned, i.e. the failure to specify the facts to which the direction applied, Mr Smith had to accept the criticism made. But would a direction setting out all the facts with which the appellants failed to deal in July have assisted the appellants? In the respondent’s skeleton first produced for the Court of Appeal the argument was that if the judge had highlighted all the facts which the appellants might have referred to in their first interviews that would have been enormously damaging to the appellants. All the facts are identified in paragraph 64 of that skeleton. There is, as we would see it, force in that submission and the fact that all facts which might have been referred to were not set out seems to us to have been of benefit to the appellants. However, in considering what direction to give and, on the basis that key facts in relation to which an adverse inference might be drawn should be specified, the judge would have been likely to concentrate on one, or possibly two, of the facts. The key fact of which the appellants gave no explanation until they came to give evidence was that they were innocently going on a badger hunt between the hours of 2am and 3am on 1^st July and that that accounted for the gun and other items they had in the car and accounted for their movements that morning.

It was also put to the appellants that the deceased’s blood had been found on the ceiling of the Saab and, again, no explanation was given as to how that had happened.

Therefore the direction should have contained words to the following effect:-

“As part of their defence the defendants have relied upon the fact that they were going on a badger hunt in the early hours of 1^st July and on the fact that there was an explanation for the deceased’s blood being in the Saab, i.e. that the deceased had injected himself in that motorcar. The prosecution say and indeed the appellants admit that they did not mention those facts when they were interviewed about the offences in July 1998. This failure may count against them. This is because you may draw the conclusion from that failure that they have since invented those matters and had no answer to the case being put to them by the police, or no answer that would stand up to scrutiny. If you do draw that conclusion you must not convict them wholly or mainly on the strength of it, but you may take it into account as some additional support for the prosecution’s case, when deciding whether the appellants’ evidence about these facts is true. However, you may draw that conclusion only if you think it is a fair and proper conclusion and you are satisfied about three things: first, that when they were interviewed they could have reasonably been expected to mention the facts on which they now rely; second, that the only sensible explanation for their failure to do so is that they had no answer at the time or none that would stand up to scrutiny; third, that apart from their failure to mention those facts the prosecution’s case against them was so strong that it clearly called for an answer by them.”

It seems to us clear from the jury’s finding that they must have been sure that the explanation given by the appellants for their whereabouts was a lie, and that the explanation given for the blood of the deceased in the Saab was a lie. The argument for the appellants has to be that the jury may have been ‘tipped’ to forming that conclusion by their failure to answer questions in July 1998.

In our view the position is as follows. First, on the direction that the jury were given it is most unlikely that they held the silence in July 1998 against the appellants, the judge stressing their reliance on the advice of a solicitor at that time. If, however, because, as we must accept, the possibility of drawing an adverse inference was left open to the jury, then, in this case, there is absolutely no basis on which it can legitimately be said there was a good reason, even relying on solicitors’ advice, for not saying where they were on that evening or giving the explanation as to how the deceased’s blood came to be in the Saab. Thus to have drawn an adverse inference from the failure in the July interviews to mention where they were and how blood got on the ceiling of the Saab could not, in the circumstances of this case, in any way be unfair. Furthermore, in our view, the jury would inevitably have been sure that the explanation given in the witness box was made up and not produced at the July interviews because it was an explanation that would not stand up to scrutiny.

Our overall view is that the s.34 direction given was not in fact unfair to the appellants, indeed, if anything, it steered the jury away from drawing any adverse inference. If a fuller direction had been given it would have emphasised that which the appellants could have disclosed in the July 1998 interviews and it would have emphasised that reliance on the advice of the solicitor was not necessarily good enough. It would indeed have made it more likely that the jury would have drawn an adverse inference than the direction that was in fact given. Furthermore, it seems to us that one can be sure that in rejecting the evidence of the appellants, the jury were in fact sure that the appellants did not have an explanation which they could have given in July 1998 which would have stood up to scrutiny.

We have no doubt about the safety of these convictions and the appeal must be dismissed.