Saunders v R.

This application for leave to appeal, referred by the Registrar, raises the issue whether there was an informed, voluntary and unequivocal waiver of the applicant’s right to legal advice. We shall give leave on this ground of appeal. Other grounds were advanced; we shall deal with them at the end of this judgment.

The appellant was convicted of nine counts of fraud by false representation on 16 November 2011 at Inner London Crown Court. Her next door neighbour was Annamaria Zanin. There was no dispute but that someone had used that neighbour’s name to apply for credit card accounts, using the appellant’s personal laptop to set up the accounts and obtain the associated credit cards from four different companies (Counts 1,3,5 and 7). The appellant denied responsibility and blamed her cousin, a Shola Aday, who she said was staying at her flat for three months in the summer of 2010, at the time of these transactions, and must have obtained access to a computer which, she said, she no longer used.

There were difficulties in this defence. Four other counts (2,4,6 and 8) related to occasions when the fraudulently obtained cards were used by someone who represented to retailers or service providers that she was Annamaria Zanin. The Crown were able to demonstrate that some of these purchases of goods and services were for the benefit of the appellant. The email addresses for three of the four accounts were stored on the appellant’s computer. For example, an American Express card was used to pay the appellant’s rent. An additional credit card associated with the fraudulent application to MBNA Europe Bank Limited was issued to the appellant in her own name and used to pay a proportion of the finance on the appellant’s cars. Both the American Express card and the MBNA card were used in September 2010 in New York. The appellant’s passport showed she was in New York at the time. She said her cousin must have stolen her passport. Telephone numbers used to call the credit card lenders in relation to the accounts in question could be linked to the appellant. She blamed her cousin for using one of her mobile telephones and said the other number did not belong to her.

Her difficulties were compounded by the evidence of other fraudulent transactions (Count 9) involving the misuse of three cards belonging to a Ms Faccio, who sat at the adjacent desk to the appellant in her workplace, Fidelity Asset Management. They were used for the appellant’s benefit; sometimes her address appeared as the billing address. Her mobile telephone was used in relation to one of the transactions on a Faccio account. The appellant could advance no sensible explanation as to how her cousin could have obtained the details of the cards belonging to the appellant’s colleague at work.

Unfortunately, this appellant is no stranger to fraud. She had previous convictions for theft in November 2007. She had pleaded guilty to falsifying claims for expenses of £34,000 for the year between December 2005 and 2006. In March 2008, she had pleaded guilty to 19 counts of fraud by misusing her employer’s credit card for her own personal use for three months in 2007. We mention those facts now, not only because it is difficult to understand why this intelligent, university-educated, graduate (she has a law degree but we will not hold that against her) should indulge in such blatant and persistent fraud, but also because they are relevant to the assessment of the circumstances in which she is said to have waived her right to legal representation at interview.

The appellant was interviewed by DC White on 16 February 2011. The Record of Interview notes that she was told that she was entitled to free and independent legal advice and that she was reminded of her right to ask for a solicitor at any time. She declined. The essential reason why the prosecution sought to rely on the interview, in which the appellant either made no comment or denied the allegations put to her, was that at no time did she mention that her cousin Shona Alay was living with her for three months and must have been responsible for the false applications in the neighbour’s name, and the use of the cards.

Both at trial and on appeal, Mr Gottlieb, in clear and attractive submissions on behalf of this appellant, submitted that the appellant did not validly waive her right to a solicitor. The foundation of this submission was the practice DC White adopted in relation to pre-interview disclosure. During the course of her evidence on a voir dire it emerged that the officer had the practice of giving pre-interview disclosure in all cases where a defendant was legally represented, but of never giving such disclosure where a defendant was unrepresented. It was suggested by the defendant that, had she known of this disadvantage which followed from a decision not to be legally represented at interview, she would have sought representation and gained the advantage of disclosure before answering questions. As it was, there were examples, during the course of the interview, where she was taken by surprise. In short, she was not fully informed as to the consequences of a decision not to be legally represented, and thus had not made an informed and voluntary waiver.

The judge rejected an application to exclude the interview by virtue of s.78 of PACE 1984 and, thus, to preclude the opportunity for the prosecution to rely upon the appellant’s failure to mention her cousin. The basis of his refusal lay in his ruling that disclosure is for the purpose of a solicitor and not for the purpose of a defendant. Where a defendant opts to forego legal representation, “the necessity for disclosure does not arise”.

There is no authority which directly deals with the effect of a failure to explain the disadvantage of non-disclosure to which a suspect may be exposed should she decline legal representation. This may be because it is not a practice in police forces other than in the Division where DC White works, (possibly not even there; there was no evidence about this). But the relevant principles which should guide the court are to be found in McGowan v B [2011] 1 WLR 3121, [2011] UKSC 54. The Supreme Court rejected the contention that access to legal advice is an essential prerequisite to an effective waiver by a detainee. The importance of this decision to the instant appeal is the emphasis the court placed on the guiding principle that to be valid a waiver must be “voluntary, informed and unequivocal” (Lord Hope [17]). In Jude v HM Advocate and Others [2011] UKSC 55, heard at the same time as McGowan, Lord Kerr, who dissented in both cases, said:

“For a waiver to the right to legal assistance to be effective, there must be a knowing and intelligent decision to waive the right. I do not understand the majority in this case to suggest otherwise.”

The instant appeal concerns the question as to the degree to which the detainee must be informed and foresee the consequences of waiver before it can be said that her waiver is effective. Lord Dyson seems to us to have provided the answer. He said :

“But how does a prosecuting authority prove (the burden being on it) that an accused had reasonable foresight of the consequences of a decision to be interviewed without the assistance of a lawyer? It has never been said by the European Court of Human Rights that it must be shown that an accused had reasonable foresight of all the consequences of such a decision. That would be tantamount to saying that no person (except perhaps an accused who has experience and understanding of criminal law and procedure) could waive the right to legal assistance without first having legal advice as to the wisdom of doing so. But as I have said, it is not in dispute that Strasbourg has never gone so far as to say this and its jurisprudence is not consistent with such an approach. [65]

….in a relatively simple case, where the accused appears to be intelligent and not especially vulnerable and he unequivocally and voluntarily refuses the offer of the assistance of a lawyer, the prosecution will usually be able to show that there has been a valid waiver. It is not necessary to show that the accused understood precisely what assistance could have been given but rejected it nevertheless. It is sufficient to show that the accused understood that the lawyer would or might be able to provide assistance at the interview stage which would or might be of benefit to him. The precise nature of the benefit does not matter. In most cases, this cannot be known in advance of the interview.” [70]

The decision of the Supreme Court in both McGowan and Jude reinforces Lord Dyson’s recognition that a waiver may be effective, even though the detainee cannot be shown to have appreciated all the consequences of his decision. That was the essential point on which the majority disagreed with Lord Kerr, who took the view that it must be shown that the detainee has a clear understanding and insight as to the significance of his decision to dispense with the services of a lawyer, however obvious they might be (McGowan [129]).

It is clear that the appellant did not appreciate, because she was never told, that DC White would not afford her the pre-interview disclosure she would have given a legal representative. But the principles identified in McGowan do not require the prosecution to establish that the appellant did understand all the implications of her decision. In assessing the validity of her waiver, the court had to consider two factors: first, the extent of her knowledge and second, the extent to which her decision, in ignorance of DC White’s practice, caused her disadvantage.

As to the first factor, this appellant had particular experience and understanding of the interview procedure. She had experienced the interview process on at least two previous occasions, in the context of accusations of fraud: she was peculiarly well-fitted to decide whether she wanted legal advice or not. We place no weight on her legal education. But her work record, and her previous convictions, demonstrate that she was neither unintelligent nor vulnerable; apart from the question of pre-interview disclosure, she could be expected to be well-aware of the benefit she would gain from legal advice.

The second factor requires some assessment of the progress of the interview. The course of the interview shows that this appellant was not, in fact, placed at any real disadvantage by her ignorance of DC White’s practice. She was told she could ask for a solicitor at any time. The allegation was explained to her at the outset.

“The allegation is that you have stolen various items of mail from your neighbour and then subsequently used her identification to claim several credit cards, do you know anything about that?”

She was asked whether she lived with anyone else; she made no mention of the months when she said her cousin lived with her and satisfied her debts to the appellant by paying for, amongst other things, the appellant’s rent, by use of a credit card.

DC White told the appellant that Annamaria had gone to New York and returned to learn an application for a card had been made in her name; DC White referred to the MBNA card, and use of a Sky IP number, and the supply of an additional card in the appellant’s name. She was asked about payment of rent using the MBNA card, and the use of the neighbour’s name on other credit cards. She was asked about goods purchased using the American Express card. She was questioned about use of her computer; she denied that anyone had access to her flat other than her cleaner and workers employed by her landlady who might have had access to keys to her flat. But not one mention of her cousin.

When she gave evidence, on the voir dire, she suggested she was taken by surprise. So she may have been, but that provides no warrant for saying that she did not effectively waive her right to legal advice. Surprise may, from time to time, be a legitimate weapon for a questioner to deploy. In any event, the presence of a legal adviser may not prevent a detainee from being surprised or confronted with the accusations the police make in interview. She suggested that she did not understand the gravity of the accusations. We find that impossible to accept, given her past record. The detail that was put to her cannot have left her unaware of the serious nature of the accusations.

It is true that some of the detail was never put to her. But the police had not completed their investigation and in particular do not appear to have been aware of the use of the appellant’s work colleague’s card. Had they been, that would have placed her in an even greater difficulty.

On analysis of the interview as a whole, it is difficult to see how much more would have been disclosed pre-interview, had a legal representative been present; it is impossible to see that this particular appellant was placed at any real disadvantage at all.

But we reiterate: that is not the test. It is not enough for the appellant to show that she would have been better off with a solicitor, or to identify some disadvantage as a consequence or her waiver. Let it be assumed that she was worse off without a legal representative, that she would have received greater disclosure. Even so, her background was a sufficient source of information and knowledge. Her decision was ‘informed’ by that source. The waiver was effective.

We should scotch the suggestion advanced by Mr Gottlieb that the detainee should not have been warned that asking for a legal representative might cause a delay while she was kept in the cells. This derives from Professor Feldman’s reminder as to the vulnerability of detainees and their susceptibility to any suggestion that they should not exercise their right to a solicitor (Civil Liberties and Human Rights 2^nd Ed. OUP). Although it is important to have these factors well in mind, we do not agree that there is any necessity to keep quiet about any delay a decision to wait for a solicitor may cause. There may be cases where to say that it will take time, and the way in which it is said, might amount to a suggestion not to wait. But it can hardly be fair for a police officer to refuse to say how long it may take to wait, and merely to confine a detainee without any warning of how long that might be.

For the reasons we have given, we conclude that the waiver was effective. But we should recall that the basis on we have reached that conclusion differs from that adopted by the judge. The main reason for HHJ Issard-Davies’ conclusion that the appellant’s waiver was voluntary was that :

“the practice of disclosure is essentially for a purpose of a solicitor, not for the purpose of a defendant. A solicitor is given disclosure in order to enable him to advise his client. Where therefore you have opted to forego the services of a solicitor, the necessity for disclosure does not arise.”

We take the view that that is too rigid and inflexible a proposition. There may well be cases where fairness demands that a detainee is afforded pre-interview disclosure, so that he knows sufficiently the nature of the police enquiry and is placed in a position to know whether legal advice would assist or not. The inflexible practice adopted by DC White and endorsed by the judge runs a serious risk of depriving a detainee of information he needs before deciding whether to waive or not. In the instant case that risk did not arise, but in other cases it may do. The approach adopted by the police needs to be flexible so that they can be sensitive to the different needs of different detainees.

In this case, the appellant lost nothing of any substance at all; we dismiss her appeal on this ground.

Allied to these contentions was a further ground (IV) in which it was suggested that the judge failed to direct the jury that, in considering the appellant’s reasons for failing to mention her cousin at interview, the judge failed to give a full direction as to the circumstances in which the jury could draw an adverse inference from the appellant’s failure to mention her cousin. In particular, he failed to mention the extent to which she may have been hampered by the absence of legal assistance.

In the main body of his summing-up, the judge had posed to the jury the question as to whether the appellant might have been expected to name her cousin at interview. He asked the jury to bear in mind the appellant’s explanation for not having done so, without expanding on the detail. Concerned at the failure to follow the guidance in the Crown Court Bench Book, prosecution counsel asked the judge to give what was described as the standard direction. The judge declined to do so but did tell the jury that they should not convict wholly or mainly on the appellant’s failure to mention her cousin.

In our view, it is absurd to think that the jury could have failed to recall the explanation that the appellant gave for her failure. It would have been absurd to run through all the points set out in the Bench Book. All that was required was to direct the jury to weigh the Crown’s reliance on the striking failure to mention the cousin against the appellant’s explanation for failing to do so. The direction in this case cannot have been to the disadvantage of the appellant: the more said about it the more obvious it would have become that there was no rational explanation for the failure. The absence of a solicitor had nothing to do with it. The obvious explanation was that the appellant had simply not thought of the explanation she subsequently gave, an explanation that was senseless in the light of the use of the details on her work colleague’s credit cards.

We refuse leave to argue this ground.

The appellant also argues that the judge erred in suggesting to the jury that the appellant’s previous convictions were relevant not just to propensity to commit fraud (the basis on which they were admitted and on which the prosecution relied) but also to credibility. They were plainly relevant as to both. We refuse leave to argue this ground (III).

For all of these reasons, the appeal is dismissed.