No: 9701845 Y5

IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                          Royal Courts of Justice
                          The Strand
                          London WC2
 
                          Thursday 29th January 1998
 
                    B E F O R E :

              LORD JUSTICE BUXTON
 
                MR JUSTICE RIX
 
                         and
 
               MR JUSTICE MAURICE KAY

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                     R E G I N A

                       ‑ v ‑

             DANIEL JOSEPH GRIFFIN
 
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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 421 4040   Fax No: 0171 831 8838
        (Official Shorthand Writers to the Court)
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MR B MCKENNA appeared on behalf of the Applicant
MR R ELIAS appeared on behalf of the Crown
 
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                      JUDGMENT
          (As Approved by the Court)
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                   Crown Copyright 
                          Thursday 29th January 1998
 
                      JUDGMENT
 
LORD JUSTICE BUXTON:  This is an application for leave to appeal by Mr Griffin against a conviction in the Crown Court at Manchester before Mr Assistant Recorder Biddle and a jury on 20th January 1997 on one count of wounding with intent, for which Mr Griffin was sentenced to four years' imprisonment, and a further matter of being in breach of his prison licence, for which he received a sentence of six months consecutive to that.
      We think we need not, in the circumstances, go into the circumstances of the offence or the evidence save that the complainant was a man called Bradburn who apparently, according to the evidence, had known the applicant for a period of 15 years.  The alleged injuries were extremely serious, as was the conduct alleged to have been engaged in by the applicant.
      The grounds of appeal are twofold.  We come to the second ground first.  After he had been convicted the applicant informed his counsel that he was known by one of the jurors.  In fact what the applicant said had happened was that it was a friend of the applicant who had recognised the juror and so informed the applicant.  The applicant said that he had only received this information after the judge had completed his summing‑up.  Counsel brought this matter to the attention of the judge after the verdict had been returned, and the judge said that he regarded that court as functus and nothing else could be done.  The applicant requested that an investigation be carried out because of the alleged or possible bias on the part of the jury against the applicant.  The Assistant Recorder gave the reply that we have indicated.
      When the matter was referred by the Registrar to this Court, in a different constitution, on 15th May 1997, the Court instructed the Treasury Solicitor to conduct enquiries as to the possible relationship between a member of the jury and the applicant. Additionally by that time a Mr Richard Clare, who was at that time in the employ of the solicitors who acted for the applicant, had made a witness statement saying that he knew which juror it was to whom Mr Griffin had made reference, and that some time afterwards, after the trial was over, he, Mr Clare, had observed that juror walking through Manchester city centre in company of the complainant, Mr Bradburn.  He said that they were only in his view for a few seconds.  He is quite certain of who the people were.  He does not appear to have thought  it appropriate to have followed them or to seek to identify them otherwise.
      Faced with that information the Court, on 15th May, added to the enquiries that it required to be made enquiries about any connection between members of the jury and Mr Bradburn, the complainant.
      Those enquiries were conducted by the Treasury Solicitor by means of writing to every male member of the jury, it being confirmed that the juror in question was in fact a man, that is eight male members in all.
      It was suggested to us that the individual could have been identified without enquiring of all members of the jury because, according to Mr Clare's statement, he was the only member of the jury who was black.  We do not see how that could have been done because the records held by the authorities of persons serving as jurors do not include, as far as we are aware, any indication of ethnic origin, nor is there any reason why they should do so.
      Therefore a wider enquiry was conducted of all eight male members of the jury.  They were each written to by the Treasury Solicitors, the names having been obtained from the Crown Court.  All of them replied. All of them said that they were not acquainted before the trial with the applicant, and had no reason to  believe that any other juror was so acquainted, and they additionally said that they had not been acquainted with the complainant.
      In the light of that, the Treasury Solicitor took the view that he should simply report those matters to the court and would not conduct further enquiries.
      Before us today Mr McKenna, on behalf of the applicant, says that that enquiry was far too small and should have been conducted with much more rigor.  He suggested that the individual juror involved should be identified and isolated, though, as we have already indicated, we do not easily see how that could be done, and that he should be interviewed, as Mr McKenna put it, rigorously, presumably in order to ascertain whether or not he was telling the truth when he so replied to the Treasury Solicitor.  It is further suggested that, since one of the concerns was the possible common citizenship of the juror and the complainant in the Wythenshaew area of Manchester, enquiries of some sort should be conducted in that area.  We are at a loss to understand what such enquiries might be.
      We, for our part, having considered the matter carefully, see no good reason why these enquires should be extended further.  The jurors have all been asked by an official body what their state of knowledge and  acquaintance was.  They have all returned the answers we have indicated.  We do not think that it would be appropriate for them to be pursued further, they having so replied.
      We have noted Mr Clare's statement, but we are bound to say that it refers to a brief sight of the two men in question.  It, of course, refers, though this would not be conclusive, to a time after the trial had been completed.  We do not think that this fleeting glance on Mr Clare's part gives sufficient ground for requiring these jurors, who have already fully cooperated with this enquiry and replied to the letters in a prompt and, from the examples we have seen, helpful way, to be further pursued.  We therefore do not order further enquiries.  This first ground fails.
      The second ground upon which leave is sought is that the transcript of the applicant's no comment interview was wrongly introduced into evidence in a way that was prejudicial.
      What happened was this.  It is alleged, and we have not investigated this fully, that the police officers indicated to the applicant and his solicitor that they had sufficient grounds for considering that he had committed the offence in question before they started their questioning.  The applicant's solicitor  took the view that paragraph 11.4 of Code C required them to cease questioning further.  We do not pass on that point because it is, we think, accepted that the actual accuracy or otherwise of the solicitor's advice really does not affect the matter.  What is complained of is not so much that the interview took place, or that the jury knew that there had been an interview in those circumstances, where no comment was made, but rather, as we have said, not the entire text of the interview, but four pages of a summary of it were read out in court at the end of the prosecution case and were thereafter furnished to the jury.
      Mr MacFarlane draws our attention to what was said by this Court in the important case of Condron and Condron (1997) 1 Cr.App.R. 185, dealing with the admissibility of no comment interviews.  In that case, at page 196A, the Court said that:
"In the ordinary way, therefore, it would seem appropriate for prosecuting counsel to adduce evidence limited to the fact that after the appropriate caution the accused did not answer questions or made no comment.  Unless the relevance of a particular point has been revealed in cross‑examination, it would not seem appropriate to spend time at this stage going through the questions asked at interview." 
      Mr MacFarlane says that injunction was not followed.
      No one, we think, is to be criticised for that.  The Assistant Recorder did refer to the case of Condron and Condron, but he only had available the report in the 1996 Archbold News where no doubt, though we have not looked at it, the important point in the Condron case, that is to say the impact of advice by a solicitor to remain silent, was discussed.  The editor of Archbold News, we think, very likely regarded the passage that we have just referred to, as we regard it, not as a binding rule or injunction, much less as an indication that failure to follow that injunction would necessarily be prejudicial to the defendant, but simply as an indication of what would be, as the court says, the "appropriate" of dealing with no comment interviews.
      In this case the Recorder very properly said that he could not form a view as to whether or not the jury should have open to them the possibility of drawing adverse inferences from the no comment interview until he had heard the whole of the evidence.  When he came to sum up, however, at page eight of the summing‑up, he did deal with the matter, and in forceful terms.  He told them that they should not draw any inference adverse to the defendant from his failure to answer questions put to him by the police, and the Recorder said that the reason for that was the advice that had been given to him by his solicitor.  That was, of course, a direction  entirely open to the Recorder, and it is to be assumed that the jury took note of it.  It was certainly put in extremely clear and helpful terms.
      In our judgment, whether or not prejudice was initially suffered by the interview summary being opened to the jury (and we are very far from satisfied that any prejudice did arise at that stage), the Recorder made the position entirely plain to the jury in his final directions.  This is not a case, indeed falls manifestly short of being a case, where something had gone wrong at the trial, if it had gone wrong, that could not be put right by a proper direction.  The proper direction was given in this case.  No ground for complaint, therefore, remained.  We do not regard this as an arguable ground of appeal.  We do not grant leave on this application.