Case No: 97/0051/Y3
Neutral Citation Number: [1997] EWCA Crim 926
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
Royal Courts of Justice
The Strand
London WC2

Date: Thursday 17th April 1997

B E F O R E :

THE VICE PRESIDENT
LORD JUSTICE ROSE

MR JUSTICE STUART WHITE

and

MR JUSTICE ASTILL

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R E G I N A

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JOHN POINTER

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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 C CAMPBELL‑CLYNE appeared on behalf of the Appellant
MR C MITCHELL appeared on behalf of the Crown

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JUDGMENT (As approved by the Court)
THE VICE PRESIDENT:  On 21st November 1996, at the Inner London Crown Court, before His Honour Judge Fordham, this appellant was convicted by a majority of the jury of conspiracy to supply a Class A controlled drug, namely Ecstasy, that conspiracy being with persons unknown.  He was subsequently sentenced to three‑and‑a‑half years' imprisonment.  A co‑accused called Darren Mackenzie pleaded guilty to the same offence and was sentenced to 30 months' detention in a young offenders institution.  The appellant appeals against conviction by leave of the single judge.
      In outline, the circumstances were these.  Between July and October 1995 undercover police officers attended a nightclub called Happy Jax pretending to be potential purchasers of Ecstasy, and, indeed, on occasions, buying drugs.  There was a video camera outside the club, which filmed those entering and leaving.  A number of officers gave evidence that the appellant supplied drugs or directed them to a supplier, the co‑defendant Mackenzie, or discussed the supply of drugs, on five separate occasions, up to and including 29th October.
      On 29th October the police raided the club and arrested a number of people, including the appellant,  who was identified by officers, by way of recognition, as being the man who had said he would arrange drugs purchases for them earlier that evening and on previous occasions as well.  He had no drugs or cash in his possession, nor, when his home was searched, were any drugs or cash found.  He was a young man of good character.
      He was interviewed in the presence of his solicitor, in circumstances to which we shall come subsequently in a little more detail.  He made no comment in relation to all of the questions which were asked of him.  The issue for the jury was whether he was part of a conspiracy to sell Ecstasy between 9th September and 29th October.  His case was that he had never had any contact with any of the officers prior to 29th October.
      The prosecution case, in a little more detail, was this.  WPC Wratten gave evidence that on 10th September she bought an Ecstasy tablet from a man who said his name was "John" (that is the first name of this appellant) who was white, 20‑25 years old, 5 feet 8 inches tall, had hair in a ponytail and a distinctive face, with pointed features and eyebrows that went up on the outside.  He was wearing a gold sovereign ring and a gold bracelet, blue jeans and a check shirt. 
      WPC Wallace also made a purchase on 10th September and gave a similar description, save to say that the hair was long, wavy and brown, and that the man in question had a diamond stud earring.
      Both the officers described seeing the man exchange tablets for money with a man in a red shirt.
      PC Doughty, separately, bought tablets from a man he described as white, 5 feet 10 inches to 6 feet tall, thin, check shirt, blue jeans, light brown wavy hair in a short ponytail.
      There was evidence in relation to 24th September from Constable Doughty, that he, on that occasion, saw the same man whom he had seen on the 10th talking to WPC Wallace.  Her evidence was that she saw, on the 24th, the same man she had seen on the 10th and, indeed, said to him, "It's John, isn't it?"  He said, "Yes".  She said, "That was okay from last week, not bad stuff".  He said, "I'm not holding" and pointed to Mackenzie, from whom, on that occasion, the officers Doughty and Wallace bought some drugs.  WPC Wratten also said that, on 24th September, the man she then saw engaging in these events was the man she had seen on 10th September.
      On 1st October Constable Wratten said that she saw the same man, again with his hair still tied back. He recognised her and said "Hi" and directed her to  Mackenzie, who again sold her some drugs.
      WPC Wallace said that, on 1st October, she saw the same man.  He smiled and said "Hello" and walked back to Mackenzie, with whom business could be done.
      There was also evidence from those two women police officers in relation to 8th October, when neither of them claimed to have seen the man they said was the defendant.  In due course, it transpired that, on that occasion, the appellant had been on holiday in Greece.
      On 22nd October the two women police officers said they again saw the same man, whom they described.  This time he said to them, "Sorry, girls, I can't help you tonight.  None left, everyone's sold out".
      Then the 29th October arrived.  WPC Wratten said that again she spoke to John, whom she had recognised from the previous occasions, who asked her whether she was "sorted out yet", and she said "No".  He said, "Wait five minutes and I'll come back to see you with something". Shortly afterwards, Mackenzie came over and went with her to the toilet area, where she bought two tablets. WPC Wallace was with her.  She also recognised John from the previous occasions and gave evidence along similar lines as to what had happened.
      Constable Wallace said that she went to John with Constable Warner and asked whether she should get her  drugs from Mackenzie.  He said "Yes" and directed her towards Mackenzie.  At that stage, arrangements were made by the two women police officers for two plain clothes officers to stay nearby and keep an eye on John until the raid took place.
      In cross‑examination, Constable Wratten accepted that there were other people dealing at the club, some of whom had ponytails and were of similar age, but none of similar description to the appellant.  Constable Wallace also said that she was quite sure it was the same man she had seen on each occasion; though there were some questions about the precise colour of the man's hair, about which Constable Doughty also was asked.
      The appellant gave evidence that he was not working at the time, but he was doing odd jobs at the club because he knew the owners.  He had known Mackenzie for three or four years but had never had any discussion with him in relation to Ecstasy.  He recognised the two women police officers as having been at the club, but he said he had never spoken to them and he certainly did not recognise the male officers.  He said he had never worn a sovereign ring or gold bracelets or changed the colour of his hair, but he did wear a normal or diamond stud earring.  He agreed that he had been in the club on each of the four earlier dates to which we have referred.  He said that he had been advised by his solicitor that he should say nothing when he was interviewed.
      The grounds of appeal advanced to this Court by Mr Campbell‑Clyne, who represented the appellant in the court below, are essentially these.  First, that the judge erred in permitting the jury to hear that the defendant had been interviewed, and secondly, he erred in permitting the jury to draw an inference adverse to the defendant from the fact that, in interview, the appellant had not given any response.
      The starting point for that submission is that, on the voir dire, the evidence given by the interviewing officer was that, before he interviewed the appellant, he, the officer, believed that there was sufficient evidence for a successful prosecution of the appellant for the offence with which ultimately he was charged. Mr Campbell‑Clyne draws attention to the provisions of the Codes of Practice in relation to interviews.
      C:16.1 is in these terms, so far as are presently material:
"When an officer considers that there is sufficient evidence to prosecute a detained person, and that there is sufficient evidence for a prosecution to succeed, and that the person has said all that he wishes to say about the offence, he shall without delay bring him before the custody officer who shall then be responsible for considering whether or not he should be charged." 
C:16.5 says: 
"Questions relating to an offence may not be put to a person after he has been charged with that offence..."
That, says Mr Campbell‑Clyne, correctly, indicates that an interviewing officer should not delay the act of charging in order to put questions.
      C:11.4 provides:
"As soon as a police officer who is making enquiries of any person about an offence believes that a prosecution should be brought against him and that there is sufficient evidence for it to succeed, he shall ask the person if he has anything further to say.  If the person indicates that he has nothing more to say the officer shall without delay cease to question him about that offence." 
      Mr Campbell‑Clyne accepts that there is, by virtue of C:11.4, an obligation on a police officer to give a suspect an opportunity to say what he wishes about an allegation.  But, submits Mr Campbell‑Clyne, such an opportunity is quite different from an interview, which attracts the applicability of the codes.
      The learned judge said this in his ruling, Volume 1 of the transcript at page 2C, omitting immaterial words:
"Codes C:11.4 and C:16.1. . .seem to contemplate that an interview takes place up to the point when it is clear that the person being interviewed is not going to answer questions." 
He went on at F:
"I am not going to decide whether there was a breach of C:11.4 here.  I am going to deal with this on the basis  that there may well have been, in the sense that the questioning continued, and the other thing I am not going to in any way decide at the moment is what, if any, inferences should be drawn from the interview so far as it took place.  What I believe the jury are entitled to have. . .is the fact that the interview took place; that the interview commenced; . . .I believe that, as a matter of fairness, the jury should not, unless the defence wish it to be before them, know the questioning which went on, beyond the fact that he was questioned. . ." 
That was the ruling which he gave.  Thereafter, he summed the matter up to the jury.
      Before turning to that, it is convenient to recite the terms of section 34(1)(a) of the Criminal Justice and Public Order Act 1994:
"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. . .
 
. . .subsection (2) below applies." 
Subsection (2) provides for the drawing of inferences.
      Mr Campbell‑Clyne submits that, in the light of the officer's evidence on the voir dire, it cannot be said that, in the interview which he conducted, he was "trying to discover whether or by whom the offence had been committed" because he said that he was satisfied there was sufficient evidence for a successful prosecution of this defendant.  However, the learned  judge, in summing the matter up to the jury, said this in Volume 2 of the transcript at page 32E:
"At the beginning of the interview he was told that it might harm his defence if he did not mention things then which he relied on later.  . . .   But in addition to being told that he was also advised to say nothing by his solicitor.  . . .   In the circumstances of this case you might well think it would be unwise to draw adverse inferences from what happened on this occasion. It is a matter for you, but you might think that really, in the circumstances, it would not be right to draw any adverse inference from the fact that Mr Pointer chose to say nothing on advice during this interview." 
The learned judge then went on to say that the case against the appellant depended on the identification evidence.
      Mr Campbell‑Clyne's submission is that there had been a breach of code C:16.1 by the officer asking questions of the defendant when he believed that there was sufficient evidence to successfully prosecute the defendant.  In consequence, the fact of the interview should not have been admitted before the jury and the judge should not, in the passage which we have just read, have canvassed with the jury the possibility of drawing an adverse inference against the defendant: section 34 could not be said to apply because the officer was not trying to discover whether or by whom an offence had been committed.
      Mr Campbell‑Clyne makes the further submission that it was not appropriate for the drawing of  inferences to be contemplated unless the jury had before them the questions asked and answers given.  He accepts that that was not prohibited by the judge, who said that that material would not go before the jury unless the defence wished that to happen.  The defence did not apparently wish that to happen.  The consequence was, submits Mr Campbell‑Clyne, that the jury were left merely to speculate in relation to what had happened in the course of the interview, the details of which they did not know, though the fact of which they did know.
      On behalf of the prosecution, Mr Mitchell draws attention to the provisions of code C:11.1(a):
"An interview is the questioning of a person regarding his involvement or suspected involvement in a criminal offence or offences which, by virtue of paragraph 10.1 of Code C, is required to be carried out under caution." 
      Mr Mitchell submits there was no breach of the Codes of Practice in relation to interviews here because the giving of an opportunity to a defendant to say something, in accordance with the obligation under C:11.4, necessarily is an interview within the definition of C:11.1(a), and, therefore, an event which attracts the panoply of caution, legal representation and tape‑recording.  Were it otherwise, submits Mr Mitchell, it would be open to a police officer to avoid the provisions of the code in relation to  cautioning, legal representation and recording by asking a suspect if he wanted to say anything about the matter in circumstances which did not attract those provisions designed to protect a defendant.
      In our judgment, Mr Mitchell's submission is right.  It would drive a coach and horses through the provisions of the code if it were open to an officer, without complying with the code provisions, to ask a defendant whether he wanted to say anything about the circumstances of an offence in relation to which the officer was satisfied that he already had a powerful case.  If, in such circumstances, a suspected person made an admission, the first thing which would be said on his behalf, as it seems to this Court, would be that there had been a breach of the code in relation to interviews.
      Mr Mitchell was constrained to concede that section 34 of the Criminal Justice and Public Order Act 1994 could not be regarded as applying to the present case.  However, he submitted, the terms of the judge's summing‑up, which we have already read, are such as to indicate to the jury in the clearest terms that it would not be right for them to draw any inference adverse to the defence from the fact that the defendant did not answer the questions which were put to him.  In our judgment, that submission is well founded. 
      The question which remains is whether, because section 34 did not apply and events took the course which we have outlined, this conviction should be regarded as unsafe.  Mr Campbell‑Clyne concedes that the identification evidence was strong; indeed, it was recognition evidence.  But, he submits, there were mistakes made by the police officers in relation to some aspects of the case.  One of the women police constables had identified as being the appellant someone who plainly, on one occasion, was not; another officer had failed, on one occasion, to spot the appellant on the video recording of those entering and leaving the premises.  Mr Campbell‑Clyne submits that there was nothing in the way of drugs or money found on the appellant or at his house such as might confirm the identification.  In addition, once the jury had been told that they may draw an adverse inference, it must be a matter of speculation as to what effect that had had on the jury.
      That submission, it seems to us, has to be looked at in the light of the terms of the judge's direction, which we have read.  As we have indicated, it seems to us that it was a clear direction that the jury should not draw adverse inferences from the defendant's silence. Furthermore, the learned judge went on to direct the  jury expressly that the case depended upon the identification evidence.  There were features of the identification evidence which were capable of being criticised, and which Mr Campbell‑Clyne, no doubt before the jury, as he did in this Court, did criticise; but, in our judgment, the strength of the identification evidence which the judge told the jury to concentrate upon was, as it seems to us, a matter for the jury to assess.  There is no reason to believe that the present conviction is in any way unsafe, albeit that, for the reasons given, section 34 did not apply to this case. Accordingly, this appeal is dismissed.