Green, R. v

On 22 August 2018, in the Crown Court at Snaresbrook, the appellant, Ricky Green, now aged

The grounds of appeal are that the judge was wrong to have given the jury an adverse inference direction under section 34 of the Criminal Justice and Public Order Act 1994; that having decided to do so, the terms of the direction which he gave were inadequate; and that the judge failed to give the jury any direction as to one way in which the appellant put

The incident in question occurred at about 4.00 am on Saturday 23 December 2017 in Brick Lane, London. It was captured on CCTV. The footage showed the complainant, a man called Oliver Ward, crossing the road together with another man while a car driven by the appellant's father was driven slowly along the road. The appellant was a passenger in the vehicle. The footage showed that Mr Ward and his companion made deliberate contact with the vehicle being driven by the appellant's father, clipping or pushing the wing mirror on the driver's side and also making contact on the passenger side. The car stopped and the appellant jumped out. He punched Mr Ward with such force that he fell to the floor and lost consciousness. At that point the appellant's father also got out of the car and approached Mr Ward's companion, gesticulating towards the wing mirror on the driver's side of the car. Mr Ward's companion threw a bottle which struck the appellant. The appellant then armed himself with his father's wooden walking stick but did not use it or brandish it. He remained calm.

The police were called. The appellant was co-operative, saying that he had been involved in

Mr Ward was taken to hospital. He had sustained bruising and a loose tooth. Subsequent

The appellant was taken to the police station where he was interviewed under caution with a solicitor in attendance. He had been arrested on suspicion of assault and possessing an offensive weapon - a metal pole. In fact there was no metal pole, only the walking stick. In interview DC Patzer summarised the evidence as he understood it, saying that the car had crashed, that the appellant had exited the car and punched Mr Ward and had then picked up a metal pole from the back of the car. He then returned to the unconscious Mr Ward but

As will be apparent, this account was inaccurate in several respects. As we have already said, there was no metal pole, the car had not crashed and it appears that the appellant did not

The officer then asked whether the appellant wanted to give an account before the CCTV was played or whether he would like to watch the CCTV first. The appellant responded "no comment". The CCTV was then played while the officer provide a commentary. At the conclusion of the CCTV footage the appellant was asked whether there was anything else he would like to say, although in fact so far he had not said anything at all. The appellant

The officer then cautioned the appellant again and suggested to him that he had gone to get the metal pole because he wanted to cause further injury to Mr Ward or his friend. After yet another caution the officer asked whether there was anything else that the appellant would

The officer summarised his understanding of the evidence again, saying: "You're not going to say anything about this" and again cautioning the appellant. The appellant said "no

The appellant's case, set out in his defence statement and at trial, was that he had acted in defence of his father and in defence of property - the property being the car. He said that he had heard glass smash on his father's side of the car and he instinctively exited the vehicle at speed, throwing a punch at Mr Ward in order to prevent a further attack upon his father or further damage to the car. He said that he had acted in the moment and had not meant to cause the injures that Mr Ward sustained. He was of previous good character and produced character evidence. He said he had declined to comment in interview because, as

Accordingly the issues for the jury to consider were, in outline, whether the appellant had a genuine belief that it was necessary to act as he did, either in defence of his father or to prevent further damage to the car and, if so, whether the action which he took was

It was submitted to the judge on his behalf that no adverse inference direction should be given or, more accurately, that the jury should be directed not to draw any adverse inference as a result of the appellant's failure to answer questions in interview. The submission was that there were in fact no questions asked, merely a commentary (and an inaccurate commentary at that) which was given by the interviewing officer so that it was not a case of failure to answer questions in interview at all. In the familiar words of the caution it was said that there was no "failure to answer when questioned" because there were no questions.

The judge rejected this submission, recognising that there were no specific questions asked by the officer in the course of the interview, but holding that it was plain from the circumstances and from the whole tenor of what the officer said that the appellant was being invited to give his account and explanation of what had occurred as shown on the CCTV. He concluded therefore that a direction should be given and said at the conclusion

In the event, as we understand it, there was no discussion with counsel of the terms in which the adverse inference direction should be given. The judge simply gave it in the course of

On appeal Ms Veronica Ramsden for the appellant has repeated the submission that no adverse inference direction should have been given in circumstances where the appellant has not failed to answer any identifiable question. She submitted also that the direction given was insufficient, in particular because the judge did not direct the jury that they could only draw an adverse inference if they concluded that the appellant's silence in interview could only be attributed to him having no answer or none that would stand up to

Section 34 of the Criminal Justice and Public Order Act 1994 provides as follows:

The requirements which must be satisfied for this section to operate have been considered in a number of cases including R v Argent [1997] 2 Cr App R 27; R v Condron [1997] 1 Cr App R 185 and R v Webber [2004] UKHL 1; [2004] 1 Cr App R(S) 40. There is also valuable guidance together with an example direction in the Judicial College Crown Court

For present purposes we would highlight the following points.

The first is that in order for the section to operate it is necessary that the defendant is being questioned under caution and fails to mention a fact later relied upon. The defendant is questioned under caution, in our judgment, if the circumstances are such that he is expressly or by necessary implication invited to give his account of the matter which has

That is sufficient to dispose of the first ground of appeal. We agree with the judge that it was plain that the appellant was being invited to give his account and deliberately chose not to do so. He had been arrested for assault and was clearly being invited to say whether he accepted that he had assaulted Mr Ward and if not, why not? He was asked, in the course of the interview, to account for the injury to his hand which, the officer suggested, would have been caused by the blow which he struck. The officer could have said, “why did you punch him?”, in so many words but in effect that was what the officer was saying and the appellant knew that he was in effect being asked that. He was expressly asked whether he wanted to give an account before or after watching the CCTV and, after it had been played, whether there was anything which he would like to say. What he was being invited to comment on was perfectly apparent to him.

It was therefore, in our judgment, a case where a direction was appropriate. It was not a case where, because there were no specific questions, the appellant did not appreciate that he was being questioned and invited to give his account. That was not his evidence. Rather his

Second, in order for any adverse inference to be drawn, the fact that the defendant failed to mention must be one which in the circumstances existing at the time of the interview he could reasonably have been expected to mention when questioned. The judge's direction did not make this important point clear to the jury. He did say that they would need to be satisfied that there was no sensible reason for the appellant's failure to mention the facts and that the reason which the appellant gave was that he was advised by his solicitor to say nothing. But those are not quite the same points. The jury might, for example, have considered that it would have been reasonable in the circumstances for the appellant to indicate, in broad terms, that his actions had been in defence of his father or to prevent further damage to the car. Whether it would have been reasonable to expect him to go into further detail, in the absence of specific questions, may have been another matter. The jury

Third, it is usual to direct the jury that the adverse inference should only be drawn if the jury considers that it is fair and proper to do so. That is appropriate because, even if the conditions for the drawing of an inference are satisfied, it remains a question for the good sense and fairness of the jury whether it is right to do so. That aspect of the direction was

Fourth, the jury should be directed that they should not convict the defendant wholly or mainly because of a failure to mention facts in interview. Although the judge warned the jury in this case not to convict solely on the strength of the failure to make comments, he omitted to say "or mainly". This too can be important. There may be circumstances where a failure to mention facts is the main influence on the jury's verdict, even though not the

Finally, the judge elided separate aspects of the direction. He said that the jury could only draw an adverse inference if satisfied that the failure to mention the fact relied on in his defence was because the prosecution case was so strong it clearly called for an answer and there was no sensible reason for failure to bring forward those facts when he was being interviewed. However, the strength or otherwise of the prosecution cannot be a reason for failing to mention facts in interview. Rather the point is that no inference can be drawn

Although the judge's direction covered much of the ground and a judge is entitled to adjust the specimen direction to the circumstances of the case and not obliged to stick to it word for word, there were, as we have indicated, a number of omissions in the direction given in this case. The jury were not given this or indeed any other legal direction in writing. There had been no discussion of the terms of the adverse inference direction to be given, despite

This case illustrates the value of such a discussion taking place. Moreover, we cannot help thinking that if there had been written legal directions, as this court has repeatedly encouraged, the deficiencies in the direction which we have identified would have been avoided. The case demonstrates that even in a fairly straightforward case such as this, written directions will be useful, not only to assist the jury but also to focus the mind of the judge. Be that as it may, we conclude that the direction in this case was inadequate in the respects we have indicated, even though in one respect, namely the last part of the direction dealing with the solicitor's advice, it was more favourable to the appellant than

Ms Jollie, for the prosecution, submitted that even if the direction was inadequate, the conviction was not thereby rendered unsafe. She says that failure to answer questions in interview was not a central part of the prosecution case. However, the issue in the case was whether the appellant acted in defence of his father or defence of property, which would depend in part on whether he had formed a subjective belief that his father, or the vehicle in which they were travelling, needed defending. It may well be that the jury regarded his failure to say so in interview as a significant matter. We cannot know. But it was entirely possible that they concluded that this was an excuse which the appellant had invented afterwards in order to provide himself with a defence which formed no part of his motivation at the time. If that was part of their thinking it was all the more important that they should only form that view after being given a proper direction as to the

We turn to the final ground of appeal, which is that the judge failed to direct the jury as to the appellant’s defence of defence of property. It was part of the appellant's case at trial that he had acted in order to prevent damage to the car as well as to defend his father. That was his evidence and it was agreed between counsel that the jury should be directed on this issue. The judge indicated that this would be left to the jury or at any rate said nothing to indicate the contrary. The issue of defence of property was then referred to by both counsel in their closing speeches. It was not mentioned, however, in the judge's summing-up at all, the summing-up on self-defence being concerned solely with defence

At the conclusion of the summing-up Ms Jollie, for the prosecution, raised the point with the judge in the presence of the jury. She said:

The judge's response was that he realised that was the position but he had deliberately omitted the direction. He said : "I've left it deliberately to the principal issue in this case".

The jury then retired. Subsequently they came back with a question as to the matters they needed to answer relating to self-defence. They asked the judge to confirm that the questions to answer were first, did the defendant act in self-defence, to which the judge

The second matter about which the jury asked was whether they need to consider whether the appellant's actions were reasonable. Again, the judge dealt with that in terms of lawful

The result of all that was that the judge confined the issue to defence of the appellant's father and effectively withdrew the issue of defence of property from the jury's consideration. Moreover, he did so without warning by the way he dealt with it in the summing-up, when

Ms Jollie submitted that the judge was right to confine the issue in this way because the appellant's principal fear, if he had one, must have been fear of an attack on his father.

If so, the jury would have needed to consider the question of defence of property. They would have needed to consider whether the appellant's actions were reasonable or an overreaction, when considered merely as a defence of property. It may be that the jury would have regarded the punch as an overreaction but that was a decision for them and not

At all events defence of property was part of the appellant's defence, which he was entitled to have the jury consider and which would not necessarily be irrelevant if the jury rejected his case as to defence of his father. Moreover, the terms in which the judge dealt with this and the circumstances in which the issue was effectively withdrawn from them, ("at one stage the defendant said ... but you may well think ...") were liable to leave the jury with the impression that the judge had not dealt with this issue because he did not think much of the appellant's evidence about it. He was also, by implication, telling the jury that parts of defence counsel's closing speech were of no relevance without having given any advance warning that this was the way in which he proposed to direct the jury. That was

On this ground also therefore we conclude that the appellant's conviction is unsafe and accordingly we quash the conviction and allow the appeal. It is regrettable that the appellant has served his sentence but at least he will have the consolation in the light of our