No: 9602955/X4

IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                          Tuesday 21st January 1997
 
                    B E F O R E :

                  LORD JUSTICE ROSE

                  MR JUSTICE ASTILL
 
                         and
 
                     THE RECORDER OF BRISTOL
                 (HIS HONOUR JUDGE DYER)
                (Acting as a Judge of the CACD)
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                     R E G I N A
 
                       ‑ v ‑

                   ALI HERSI ROBLE
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
      Tel No: 0171 831 3183   Fax No: 0171 831 8838
        (Official Shorthand Writers to the Court)
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MR R MENON appeared on behalf of the Appellant
MR P KELSON appeared on behalf of the Crown
 
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                      JUDGMENT
             (As Approved by the Court)
 
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                   Crown Copyright
  
                          Tuesday 21st January 1997
LORD JUSTICE ROSE:  On 26th March 1996, at Sheffield Crown Court, before His Honour Judge Moore, the appellant was convicted of wounding with intent, contrary to section 18 of the Offences Against the Person Act, and sentenced to 6 years' imprisonment. He pleaded guilty to criminal damage on a second indictment, in relation to which he received a concurrent sentence of 10 weeks' imprisonment.
      Following refusal of leave by the Single Judge, the appellant, on his renewed application before the Full Court, was granted leave to appeal against conviction, on 12th November 1996, by a differently constituted division of this Court who directed that a transcript be obtained of the appellant's solicitor's evidence.
      It was not disputed that, in the early hours of 30th May 1995, the appellant inflicted a number of knife wounds upon the complainant, Osman Mohammed. But at his trial, for the first time, the appellant raised before the jury the issue of self‑defence. In the interview conducted by the police, following the appellant's arrest, he had responded, on the advice of his solicitor, in circumstances to which we shall later come in a little more detail, with no comment. 
      This appeal centres upon the judge's ruling that inferences were capable of being drawn by the jury from the content of that interview and upon the directions which the judge gave in the course of his summing‑up, in relation to inferences capable of being drawn.
      The evidence from Osman Mohammed was that on Bank Holiday Monday, 29th May 1995, he was in Josephine's nightclub, in Sheffield, where he had an altercation with the appellant, whom he barely knew, as a consequence of which he, Mohammed, was ejected from the club.
      According to Mohammed, the appellant came out of the club later and shouted that he had come for a fight. There was some pushing and shoving but the appellant then decided he did not want to continue with the fight. So, at that stage, Osman Mohammed sat and waited for his brother. A few minutes later, the appellant came running back, saying he had a knife and inviting Mohammed to fight. According to Mohammed, he froze and was struck by the appellant with the knife in the right breast. He tried to run away and, as he did so, he was stabbed in the lower back. He fell and tried to defend himself with his legs and the appellant tried to stab his face. It was at that stage, according to Osman Mohammed, that his brother came out of the club on to the scene and the  appellant ran away.
      In cross‑examination, he said that he had no convictions of any kind and that he had never stabbed anyone. The knife used upon him was certainly not his. So far as he knew it belonged to the appellant and there had never been any sort of tussle for it. Neither he nor his brother had, outside the club, threatened the appellant. He, Osman, had certainly not started the fight and it was certainly not the case that the appellant had used the knife acting in self‑defence.
      Osman's brother, Mahmoud, gave evidence that he left the club at about 1.30 a.m. and saw the fight in progress between his brother and the appellant. The appellant had a knife and Mahmoud saw him stab the complainant in the leg with it. It was Mahmoud who called an ambulance.
      The next day, outside the DSS, Mahmoud saw the appellant who, according to Mahmoud, said he was going to sort out the complainant again. Mahmoud said he never carried a knife. He had no convictions.
      The doorman at the club was a man called Lindley. His statement was read and it did not greatly advance the case.
      When he was taken to hospital, Osman Mohammed was found to have stab wounds in his chest, back and left  thigh. He was in a serious though stable condition, but ultimately made a good recovery.
      The appellant, on the other hand, was examined by a police surgeon on the following afternoon. He had only a tiny lesion on one ear, and neither exhibited nor complained of any other sort of recent injury. It was on the afternoon of 30th May, at 2.00 p.m., outside the DSS that the appellant was arrested. In his pocket was a knife. The fixing mechanism had been broken, so the blade swung freely, but there was blood found on the blade, consistent with that knife having been used as a weapon, almost certainly before the damage had been sustained to the locking mechanism.
      On his arrest the appellant had a conference with his solicitor, which lasted some two‑and‑a‑half hours. He was given the new style of caution, that he did not have to say anything and it was his right not to do so, but, if he did not, a court might draw inferences. On the following day, the 31st, he was interviewed on three separate occasions, in the presence of his solicitor. The first and second of those interviews both concluded when the appellant said that he wanted to consult his solicitor privately.
      In so far as it is material, the first of those interviews took some 9 minutes, at about 10 a.m., the  second some 26 minutes, from 10.13, and the third took place in the evening, between 9.50 and 10.02. He made no comment in relation to the questions which he was asked. He indicated that he understood what the meaning of the caution was.
      In evidence before the jury, he said that he was a refugee from Somalia and he and both the Mohammeds were friends. But he said it was Osman Mohammed who had been the aggressor, not only in the altercation in the club but outside as well. Indeed Osman was waiting for him and invited him, the appellant, to fight, when he emerged from the club. The appellant declined. There was an exchange of blows. The appellant sought to pacify Osman and while that was happening a knife fell from Osman's pocket. In the ensuing struggle the appellant managed to pick up the knife. He was telling Osman to go home when Mahmoud ran across and, at that stage, the appellant said he saw the glint of another knife in Mahmoud's possession. He, the appellant, was seized by Osman and because he, the appellant, feared for his life he stabbed Osman first in the leg and subsequently elsewhere. He then took a taxi home and waited for the police to come.
      The following day he saw Mahmoud outside the DSS office, behaving in an antagonistic fashion, so he, the  appellant, had gone inside the office. He admitted that the knife shortly thereafter found in his pocket on arrest by the police was the one which he had used the previous evening.
      He said that he had not asked for an interpreter in the interview. He understood parts of the interview, but he had followed his solicitor's advice not to comment on the questions asked. He had kept the knife so that fingerprint tests could confirm his story of it having come from the possession of Osman, but no fingerprint expert had been instructed on his behalf with a view to providing such confirmation.
      On behalf of the appellant, Mr. Menon, who represented him at trial, advances, with varying degrees of enthusiasm, three grounds of appeal. The third ground relates to the judge's comments in the course of his summing‑up, whereby he referred to two occasions when the appellant had been  bound over
as "convictions". That material, it is conceded, was properly before the jury because the conduct of the appellant's defence had necessarily led to the loss of his shield, otherwise provided by the provisions of the Criminal Evidence Act 1898. Mr. Menon refers to that ground as being something of a makeweight. He does not suggest that, wrong though it was of the judge to refer  to those  bind overs as "convictions", that in itself affords a ground for regarding the convictions as unsafe.
      The second ground, he concedes, rests upon weak ground. It is that the judge was wrong in ruling that the jury could draw inferences from the applicant's failure in interview to account for the knife in his possession, having regard to the provisions of section 36 of the Criminal Justice and Public Order Act 1994. He is on weak ground because reasonableness, to which in a moment we shall come in relation to section 34, is not a concept which finds place in section 36. So Mr. Menon does not suggest that his second ground is, of itself, capable of affecting the safety of the conviction.
      Ground 1, however, submits Mr. Menon, is a much different matter. He submits that the judge's ruling and summing‑up, in relation to the inferences to be drawn from the appellant's silence in interview, were defective, having regard to the provisions of section 34 of the Act. This is in these terms, so far as are presently material:
"(1) Where in any proceedings against a person for an offence evidence is given that the accused‑
 
(a) at any time before he was charged with the offence on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed failed to mention any fact relied on in his defence in those proceedings.... being a fact which in  the circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be subsection (2) below applies.
 
(2) 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." 
      There was conducted before the trial judge a voire dire. In the course of that the appellant's solicitor, Mary Macadam, gave evidence. As we have already said, it was not disputed that, prior to the interviews, the appellant had had a conference lasting some two‑and‑a‑half hours with his legal advisor.
      The evidence which Miss Macadam gave before the judge is conveniently summarised in Mr. Menon's skeleton argument. She said that the appellant was a Somali refugee, conversant in English, although he lacked a sufficient understanding of English to deal with difficult legal concepts. She had advised him, on previous occasions, to answer questions in interview, and he had done so without any assistance from an interpreter. The appellant had admitted to her stabbing the complainant, but it was unclear whether his instructions amounted to self‑defence or merely a partial defence on the ground of lack of intent.
      Her evidence was that the appellant's instructions  were not unclear because he was guilty and/or was hedging his bets. Her view was that the appellant would not be able to give a proper coherent account and that therefore he should remain silent in interview, and she so advised him, knowing that he would follow her advice. She did not think an interpreter would have been of any assistance and so had not sought one. The advice which she had given was given in good faith. At that time section 34 had only been in effect for some 6 weeks, and she agreed that, with the benefit of her experience subsequently, she might well now give different advice.
      The submission made by Mr. Menon on this aspect of the case is that the judge should have ruled, in the light of the evidence which he had heard from Miss Macadam, that no inferences adverse to the defendant could be drawn and, in so far as the question then arose, he should have directed the jury accordingly.
      Mr. Menon submits that it should have been clear to the judge, from the evidence of Miss Macadam, that no issue arose, having regard to what the appellant had told her in conference, as to his identity, or that he had been at the scene, or that he had stabbed the complainant.
      It was, submits Mr. Menon, entirely reasonable for the defendant to follow his solicitor's advice. The  judge knew why such advice had been given, having regard to the evidence which he had heard from Miss Macadam and therefore he should have made the ruling which we have earlier identified.
      The difficulty with that submission, as it seems to us, is that, when one looks with some care at the transcript of the evidence given by Miss Macadam, the judge did not know why the advice had been given.
      It is apparent that there was before the judge no evidence as to the circumstances in which the defendant was claiming that the knife came into his possession, or was used. In consequence, the basis for the solicitor's advice was simply not before the judge, although it is right to say, as Mr. Menon does, that the judge knew that the solicitor knew that there was no issue as to identity or that the knife had been used.
      It is to be noted, in the transcript of Miss Macadam's evidence at page 4A, that she said this, and it was a passage which was repeated subsequently in her evidence: "it seemed to me that it would be resolved around questions of intent and possibly self‑defence, if that is what his instructions were when they became clear." Mr. Menon, rightly, conceded that Miss Macadam did not give evidence before the judge as to the facts which the appellant had told her, if any, save in  relation to the matters of identity and use of the knife.
      There being, as it seems to us, no evidence before the learned judge as to the circumstances of the stabbing, we are unable to accept the submission that he should have ruled that no inference adverse to the defendant was capable of being drawn.
      The further submission is made that, because the prosecution did not expressly rely upon recent fabrication at any stage, section 34 is not capable of biting. We are not able to accept that submission.
      Mr. Menon drew attention to the terms of a judgment of this Court, delivered by Stuart Smith L.J. in R v. Condron (unreported, 17th October 1996). In the course of that judgment Stuart Smith L.J. at page 15E referred to the case of R v. Cowan (1996) 1 Cr.App.R. 1, and to the fifth of the essentials to which Lord Taylor in Cowan drew attention in summing‑up a case effected by section 35 of the Criminal Justice and Public Order Act 1994, that is to say the section which deals with the inferences, if any, that are drawn from an accused choosing not to give evidence at a trial. Stuart Smith L.J., at page 16F, went on in these terms:
"We consider, however, that the specimen direction on section 34, coupled with the usual direction on burden and standard of proof and the fact that the jury will inevitably understand from the form of caution itself  that the accused was entitled to remain silent at interview, covers the matters dealt with in paragraphs 1‑4. Paragraph 5 goes somewhat further than the specimen direction and the direction given by the Judge in this case. Having regard to the view of this Court in Cowan, we consider that it is desirable that a direction on the lines indicated above  should be given." 
The Court is there referring to the situation arising under section 34, and Stuart Smith L.J., at page 17B, went on to say there was no basis for distinguishing between sections 34 and 35 in this respect.
      The relevant part of the summing‑up in the present case is at page 8B:
"Again consider all the circumstances, including whether by keeping quiet and then making a positive assertion at trial, you are satisfied either that he was trying to avoid the Police being able to disprove it, or he had not yet even formulated that story at the time of the interview. If you were satisfied in respect of one or other of those, either that he was trying to avoid the Police being able to disprove what he has now told you, or that he had not even thought it up then, then that would obviously be powerful evidence that would tend away from accepting what he says." 
That passage, submits Mr. Menon, does not go far enough to reflect that which Stuart Smith L.J. said in
R v. Condron in relation to point five in Cowan, and the case against the appellant was not sufficiently strong for the conviction to be safe that inadequate direction having been given.
      Mr. Menon also drew the Court's attention to a decision of this Court presided over by Lord Bingham of Cornhill C.J. in R v. Argent reported so far only in The  Times newspaper for 19th December 1996. The Lord Chief Justice, in giving the judgment of the Court, spelled out the six conditions which must be met under the provisions of section 34 before the jury can draw inferences.
      There is, in the present case, contention only as to the sixth of those conditions, namely whether the accused could reasonably have been expected to mention the facts upon which he relied in his defence.
      It is accepted in relation to condition five, that there were, in the present case, facts relied on by the appellant in his defence, which he had not mentioned. It seems to us that that concession is rightly made. There were a whole series of facts which the appellant failed to mention in interview, prior to giving evidence before the jury, including the fact that it was the complainant who wanted to fight and was the aggressor; that the knife fell from the complainant's pocket; that the appellant then picked up the knife; that the appellant was telling the complainant to go home; that the complainant's brother ran up threatening the appellant, who then saw the glint of another knife; that the appellant, fearing for his own life, first stabbed the complainant in the leg, then he grabbed the appellant, and stabbed him again when the complainant shouted to  his brother for the other alleged second knife. None of those facts, as it seems to us, gave rise to any complexity. They may or may not have given rise in law to a defence of self‑defence but that, even if it gave rise to complexity, is another matter.
      As to whether the appellant could reasonably have been expected to mention those facts in interview, this depended on all the circumstances relevant in relation to this appellant, at the time he was questioned, that is taking into account, among other things, his age, personality, experience, knowledge of the law, previous experience of police stations, the legal advice which he was given and the reasons for that advice.
      What is crucial, as was pointed out in
R v. Argent (unapproved transcript of the Court of Appeal dated 16th December, page 14) is not the correctness of the solicitor's advice, but the reasonablness of the appellant's conduct in all the circumstances which the jury found to exist, including the giving of that advice.
      We respectfully agree with what was said in Condron, that legal professional privilege is not waived merely by evidence from the accused, whether on the voire dire or before the jury, that he had been advised not to answer questions in interview. But, in itself,  such advice is not likely to be regarded as a sufficient reason for not mentioning facts relevant to the defence. The evidence must generally go further and indicate the reason for that advice, for this must be relevant when the jury are assessing the reasonableness of the conduct in remaining silent.
      Good reason may well arise if, for example, the interviewing officer has disclosed to the solicitor little or nothing of the nature of the case against the defendant, so that the solicitor cannot usefully advise his client or, where the nature of the offence, or the material in the hands of the police is so complex, or relates to matters so long ago, that no sensible immediate response is feasible. Such considerations do not arise in the present case.
      If, as will generally be necessary if no adverse inference is to be capable of being drawn, the reason for the advice to remain silent is given, this in turn is likely to amount to a waiver of privilege. If a solicitor is called, it may be appropriate to ask him what his reasons were and, when this is explored, disclosure of what the defendant said to his solicitor at the time may well become inevitable. In the present case, the solicitor, on the voire dire, was extremely guarded in her evidence, in what she said about what the  defendant had said to her.
      The purpose of the statutory provisions is to permit adverse inferences to be drawn where there has been late fabrication, to this extent, to encourage speedy disclosure of a genuine defence or of facts which may go towards establishing a genuine defence. If a defendant disclosed to his solicitor, prior to police interview, charging or trial, information capable of giving rise to a defence, it will always be open to the defence to lead evidence of this to rebut any inference of subsequent fabrication. But if such evidence was not disclosed, or was disclosed at a late stage in the sequence of interview, charge and trial, adverse inferences can be drawn by the jury.
      In the present case, it seems to us that on the voire dire privilege may very well have been waived to a much greater extent than was appreciated by those participating in the trial at the time, in that  the solicitor sought to advance reasons why she had advised the appellant to say nothing but this was not further explored in relation to the material on which those reasons were based.
      If the defendant had at the time provided information about the origins of the knife and how and the circumstances in which he used it, this too, if  privilege were waived, could have been elicited. But, in the absence of such evidence, it would be open to the jury to infer subsequent fabrication.
      In the present case, the solicitor was not called before the jury, and the only evidence which they heard came from the defendant, namely that he had been advised to say nothing. This, as we have said, in the absence of any reason for that advice, was unlikely to inhibit the jury from drawing adverse inferences.
      Accordingly, in our judgment, it was correct for the judge to rule in the way which he did and to direct the jury, as he did, that it was open to them to draw inferences both generally and in relation to the knife. He did so in a direction, which, it seems to us, was entirely in accordance with the Judicial Studies Board's specimen direction and with the observations in Condron in relation to point five in Cowan. In any event there was, as it seems to us, overwhelming evidence against this appellant. It follows that his conviction was in our judgment safe, and this appeal must therefore be dismissed.