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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bromfield v R [2002] EWCA Crim 195 (8th February, 2002)
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Cite as: [2002] EWCA Crim 195

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Bromfield v R [2002] EWCA Crim 195 (8th February, 2002)

Neutral Citation Number: [2002] EWCA Crim 195
Case No: 0106039 W1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
8th February 2002

B e f o r e :

LORD JUSTICE ROSE
MR JUSTICE STEEL
and
MR JUSTICE GOLDRING
____________________


MILRON ROY BROMFIELD
Appellant
- and -

REGINA
Respondent
 ____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr O’Higgins (instructed by CCRC) for the Appellant
Ms Chan (instructed by CPS) for the Respondent
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
 ____________________

Crown Copyright ©

    Mr. Justice Goldring

    The conviction

  1. On 12 December 1997 in the Crown Court at Lewes the appellant was convicted of rape. The trial judge, HH Gower QC sentenced him to 7 years imprisonment.

  2. He appeals against conviction on a reference from the Criminal Cases Review Commission. In 1998 applications for leave to appeal against conviction on grounds different from those now advanced were refused by the single judge and the Full Court.

    3. The facts

    The complainant’s evidence

  3. France Jarry was a student. She had lived in England for 5 years. She worked part-time at the Paradox Club in Brighton as a cloakroom attendant. On 20 May, 1997 at about 9.45 PM she went there. Her boyfriend, Adam Jones, also worked at the club and was already there. She considered her relationship with him as serious and earlier that night they had had sexual intercourse.

  4. In the club she began talking to a man called “Nixon” who was black. When he asked her what she was doing later, she said she was waiting for her boyfriend. He became aggressive and they parted on bad terms. Immediately after that she was approached by the appellant (who also was black). He asked her what the argument had been about. She did not know the appellant but they had a general conversation about the relationships between white and black people and she stayed in his company until the club closed when he asked her to go for a coffee. She declined and said she was going home with her boyfriend. At the end of the evening Adam “dumped” her, saying he wanted nothing more to do with her. This was totally unexpected and upset her deeply. She left and telephoned her friend Amandine Noel and arranged to go to her home. She was crying and began walking when she saw the appellant, who asked her what was wrong. She told him. He invited her to his flat for a coffee and a “spliff,” saying she could telephone her friend from there. On the way he put his arm around her to comfort her and was very friendly.

  5. When they got to his flat the appellant gave her his mobile phone but it did not work. There was evidence that it had not worked since the previous February. She was still crying and said she had better go home because Amandine would be worried. The appellant then threw her on the bed and got on top of her with his legs around her waist and said “I’m going to fuck you both ways, you will enjoy that you bitch”. He grabbed her neck, holding her down by one hand and told her to shut up. With his other hand he undid her trousers and pulled them down along with her knickers. He said “I’m going to fuck you but before that I’m going to put on a condom because I don’t want to catch aids from a bitch like you”. Holding her round the neck with one hand, he reached out with the other and got hold of something. He tried to penetrate her a few times, stabbing at her vagina with his penis until he succeeded. She thought the penetration lasted a few minutes before she was able to put her legs around his and onto his feet and push him down. She was crying and he put his mouth over hers. He then put a pillow or duvet over her mouth and threatened her before penetrating her vagina again. He lay to one side and she got off the bed, grabbed her clothes and ran down the steps. He followed, naked from the waist down, saying he had not finished with her.

  6. She managed to telephone Amandine Noel saying “I don’t know what happened, it went so quick, but I got abused”.

  7. She saw a police van and spoke to the driver. Because she was upset, he asked her what was wrong. She did not answer and made no complaint of rape or abuse. The officer said he was unable to give her a lift.

  8. She saw a taxi. She told the driver her boyfriend had dumped her and that she had been abused. He took her to Amandine Noel’s without payment.

  9. Cross examined she denied that she encouraged the appellant to have sexual intercourse with her or initiated it by lying on his bed, naked from the waist down and rubbing herself up against him under a duvet after he had taken his trousers off. She denied that she put his penis into her vagina. She agreed that the police doctor found no sign of injury on her body or private parts.

  10. Regarding her relationships with men since living in England, she said the one with Adam had been serious. There had had two other serious ones; with a white man which lasted for about a year and with a black man which lasted 2-3 months. She had had relationships with 10 black men, some of which were “one night stands.” She accepted that she valued the closeness of sexual physical relationships. She denied that having been rejected by her boyfriend, she was in need of the physical comfort she derived from sexual intercourse. She denied too that because of her unhappy experiences with men she saw her encounter with the appellant as an opportunity to revenge herself on the male sex by having intercourse with him and then accusing him of rape. She made it absolutely clear to the appellant that she was not consenting. Having resisted his first attempts at penetration, when he put the duvet or whatever over her mouth and made the remark he made, she was scared of him and let him get on with it. She denied telling him she had been raped before or that she had been badly treated by men and particularly black men.

  11. She went with him to his flat because he was friendly and comforting to her and she thought she could have a chat with him but she did not want to have intercourse with him.

    12. The other evidence

  12. There was other evidence consistent with the complainant’s account.

  13. PC Kenward was the driver of the police van. At 4.15AM he was by some traffic lights when he saw the complainant. She was distressed and crying. He asked her what the matter was and where was she going. He told her he was sorry but could not give her a lift. She replied “don’t worry” and walked off. She made no complaint.

  14. Maurice Pike was the taxi driver. The complainant approached him. She said she had no money and asked him to take her home. She said her boyfriend had dumped her and that somebody had “tried it on.”

  15. Amandine Noel, the friend of France Jarry, gave evidence. She too worked at the night-club. When France Jarry had arrived at the club she was happy and told her that she had had sexual intercourse with Adam before he had left for the club. She saw no conduct on the part of France at the club which might have upset Adam and caused him to “dump” her. She herself left the club at about 2.45 AM. France telephoned her at 3 AM. She was very upset. She said Adam had dumped her. Amandine told France to come to her straight away. Between 4-4.10 AM France called again. She sounded very upset. She said that a man had unzipped her trousers and “he just fucked me”. When France got to her flat she was shaking very badly, sobbing and crying. It took the witness 2 hours to understand what had happened. France said after she left the club she saw the appellant. He tried to comfort her and suggested she went to his flat. She told the appellant her friend would be waiting for her and would be worried. He said she could telephone from his place. When she got there the telephone was not working. She then ended up on his bed. He removed his clothes saying he was going to fuck her both ways. He put a condom on saying that he did not want to get aids from a bitch like her. He had sex with her. When she tried to get away with her clothes he picked her up, put her back on the bed and placed the corner of the duvet on her mouth to shut her up. He had sex with her a second time.

  16. Cross-examined, she said that although it was not in her statement, France told her about having her neck grabbed. They spoke for 2 hours and it was not possible to record everything that had been said. She did not remember if France said her wrists had been grabbed. She said the man physically tried to stop her from leaving the flat before saying “I’ve had what I wanted anyway”. France had not told her that when the man had sexual intercourse with her the second time she just lay there and let him get on with it. She could not recall her saying that the man said “I’m going to fuck you, you white bitch” or that he chased her saying “come back.”

  17. Dr. Allenby’s statement was read. He was the police surgeon who examined the complainant. He said there was no physical evidence of rape. Nothing he found was inconsistent with her complaint.

    18. Interviews

  18. The appellant was interviewed at length. He answered all questions asked. He denied raping the complainant. He said he understood from the man Nixon that the complainant may have aids or a venereal disease. There was no question of his suggesting to her that they go for a drink. When he later encountered her, she was distressed about her boyfriend. He comforted her, suggesting she return to his place for a coffee, where she could telephone her friend. When they got to his place he put the television on and they sat down. She tried to use the telephone but it did not work. She got up to go but then came back as he was getting undressed ready for bed. She lay down on the bed and he lay down by her and she made sexual advances to him, rubbing her legs up against him and moving her body against him. She took his erect penis and put it in her vagina and they had sexual intercourse. There was no question of any force and she was entirely willing. There was just the one act of intercourse. She got dressed and went out. He did not follow or chase her down the steps.

  19. The appellant did not give evidence or call any witnesses.

    20. The grounds of appeal

  20. The issue in the appeal revolves around the judge’s directions concerning any possible inferences which the jury could draw from the appellant’s silence at trial.

    21. The directions given

  21. The judge made a number of references to the appellant’s failure to give evidence.

  22. The basic direction was at page 41H and following. He said this.

    23. “What weight do you give to what he said to the police officers? Well now, the first point that I have got to make is this: as you know, this defendant has not given evidence; that’s his right. We hear a lot these days, from some quarters, about Parliament having taken away the right of silence. That has not happened. All that has happened is that Parliament has enacted a law which says that if a defendant does not give evidence, a jury may draw inferences, if they think it right to do so, from his not giving evidence. Now, what does that mean? On its own, the fact that a defendant does not give evidence does not, and cannot, prove that he is guilty of the crime that he is accused of; but, depending on the circumstances, you may regard the fact of his not having given evidence as a fact, together with other facts in the case, as helping to prove him guilty.
    Mr Meredith [on behalf of the defendant] has argued that the defendant’s prolonged questioning by DC Novelle and DS Bazeluk, and the defendant’s ready answering of all their questions, and indeed his full explanation of what happened, provide an adequate explanation for his not giving evidence. If you reject that argument - but, only if you reject it – you would be entitled to treat his not having given evidence as a fact helping to prove him guilty. It is for you to decide whether it is fair to do that.”

  23. He made other references to the failure to give evidence and the interviews. At page 43C he said this.

    24. “…what he told the officers [in interview], although…not strictly speaking, evidence of the truth of what he said, because it is a self-serving statement, as lawyers say, it is material in the case, it is before you and it is his account of what happened, it is his defence, in essence, and you can only reject it if the Prosecution have left you sure, on the evidence as a whole, that it is untrue. It has not been tested and probed in cross-examination in court and there are many questions, no doubt, which he would have been asked had he given evidence.”
  24. At page 44E, he said this.

    25. “…however skilful those officers were in their questioning – that is a matter for you and not for me – they are not professional advocates, and questioning by police officers in a police station is not at all the same thing as cross-examining by an advocate in court. The girl was cross-examined by a skilled and experienced advocate; the defendant deprived you of the opportunity of doing it by not giving evidence…You cannot use your commonsense to assess the defendant as much as what he said because he has deprived you of the opportunity of doing it by not giving evidence…His defence is she consented…As I have said, he has to prove nothing…”

    The law

    Section 35 of the Criminal Justice and Public Order Act 1994

  25. By section 35(3) “…the…jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to given evidence…”

    26. Section 38(3)

  26. By section 38(3) “A person shall not…be convicted of an offence solely on an inference drawn from such a failure as is mentioned in…section 35(3).”

    27. “May draw such inferences as appear proper”

  27. At the time of this trial the Judicial Studies Board had published a specimen direction for section 35 cases. It was as follows.

    28. “The defendant has not given evidence. That is his right, but as he has been told, the law is that you may draw such inferences as appear proper from his failure to do so. Failure to give evidence on its own cannot prove guilt, but depending on the circumstances, you may hold his failure against him when deciding whether he is guilty.
    [There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against the defendant that he has not given evidence before you, namely…If you think that because of this evidence you should not hold it against the defendant that he has not given evidence, do not do so. But if the evidence he relies on presents no adequate explanation for his absence from the witness box then you may hold his failure to give evidence to give evidence against him. You do not have to do so.]
    What proper inferences can you draw from the defendant’s decision not to give evidence before you? If you conclude that there is a case for him to answer, you may think that the defendant would have gone into the witness box to give you an explanation for or an answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or none that would have stood up to cross-examination, the it would be open to you to hold against him that failure to give evidence. It is for you to decide whether it is fair to do so.”

  28. In the case of Cowan and Others [1996] 1 Cr App R 1, Lord Taylor, LCJ, giving the judgment of the court, considered the direction. He said this.

    29. “We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:
    1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is.
    2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. The right of silence remains.
    3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
    4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there is a case to answer on the prosecution’s evidence before drawing an adverse inference from the defendant’s silence.
    5. If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.

    The court then dealt with each individual appeal.

  29. In Cowan itself, the judge failed to tell the jury they could not infer guilt from silence.

    30. “He did not warn the jury that the condition for holding a defendant’s silence at trial against him was that the only sensible explanation for that silence was that he had no answer to the case…or none that could have stood up to cross-examination…We consider that without the omitted directions the jury may have attached undue importance or weight to the appellant’s absence from the witness box.” (Page 10F)

  30. The appeal was allowed.

  31. In the case of Gayle

    32. “There was no direction that the jury should consider drawing an adverse inference only if they consider there was a case to answer. Nor was there any direction that no adverse inference should be drawn unless the only sensible explanation…was that he had no answer…In view of these shortcomings, we consider the summing up was defective and the appeal must be allowed.” (Page 12A)

  32. In the case of Birchall [1999] Crim LR 311, Transcript 96/2301/W5, Lord Taylor’s “essential” direction 4 was not given. Lord Bingham LCJ, giving the judgment of the court, said this.

    33. “This court is reluctant to countenance the view that direction of a jury calls for the mouthing of a number of mandatory formulae, and departure by the trial judge from a prescribed form of words will by no means always justify the upsetting of a jury's verdict. Standard directions are, however, devised to serve the ends of justice and the court must be astute to ensure that these ends are not jeopardised by failure to give directions where they are called for. The drawing of inferences from silence is a particularly sensitive area. Many respected authorities have voiced the fear that section 35 and its sister sections may lead to wrongful convictions. It seems very possible that the application of these provisions could lead to decisions adverse to the United Kingdom at Strasbourg under Articles 6(1) and 6(2) of the European Convention on Human Rights unless the provisions are the subject of very carefully framed directions to juries. Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant's failure to give oral evidence at his trial until they have concluded that the Crown's case against him is sufficiently compelling to call for an answer by him. What was called the "fourth essential" in Cowan was correctly described as such. There is a clear risk of injustice if the requirements of logic and fairness in this respect are not observed.
    It is therefore necessary for us to consider whether the omission to give this direction in this case renders the jury's verdict unsafe…”

  33. In Birchall there was fresh evidence. The court decided the verdict was unsafe.

    34. The current JSB Guidelines

  34. Finally, we refer to the current Judicial Studies Board specimen direction. Although the language has changed, the essential Cowan requirements remain. As material, they state

    35. “3…his silence at this trial may count against him. This is because you may draw the conclusion…that he has not given evidence because he has no answer to the prosecution’s case, or none that would bear examination. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it…but you may treat it as some additional support for the prosecution case…
    4….However, you may draw such conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about two things: first, that the prosecution’s case is so strong that it clearly calls for an answer by him…and second, that the only sensible explanation for his silence is that he has no answer, or none that would bear examination.
    5…The defence invite you not to draw any conclusion from the defendant’s silence, on the basis of the following evidence…”

    Mr. O’Higgins’ submissions

  35. Mr. O’Higgins, who did not appear below, makes the following submissions on behalf of the appellant.

  36. First, the case was far from overwhelming. It was the complainant’s word against the defendant’s. There was no corroboration. Although there was evidence of distress, it was explicable by the actions of her boyfriend in “dumping” her. Although there was evidence of recent complaint, no complaint was made to PC Kenward or Maurice Pike. The medical evidence was neutral. Although there were lengthy police interviews, they were not really helpful to the appellant. He advanced an unattractive case as to why the complainant may have lied. That might have put into sharp relief his failure to give evidence.

  37. Second, he draws our attention to the various things the judge said about the appellant’s failure to give evidence. We have set them out above.

  38. Third, he relies on Cowan. He submits that “essential” directions 4 and 5 were not given. Nothing was said as to the jury having to find there was a case to answer. Nothing was said as to how properly to assess the failure to give evidence. Direction 5 is, he submits, a separate and additional direction to 4. It does not depend upon the jury being satisfied there was a prima facie case.

  39. Fourth, Mr. O’Higgins accepts that the essential question for this court is whether the conviction is safe. He submits that the jury may not have considered there was a case to answer. They may not have come to the same conclusion as the judge. They may have used silence as a basis for concluding there was a case to answer. The court should be slow to substitute its judgment for the jury’s, as Cowan underlines.

  40. Fifth, direction 5 is a key and separate direction. Only with it can the jury properly assess the significance of the failure to give evidence. He draws our attention to what he submits is the unhappy use of the word “fact” at page 42D (quoted above). What, he asks rhetorically, are the jury to make of it?

  41. In short, he submits directions 4 and 5 are rightly termed essential. The court cannot assume the jury would have concluded there was a case to answer. The absence of direction 5 was fatal.

    42. Ms Chan’s submissions

  42. While Ms Chan, who was prosecution counsel below, accepts that directions 4 and 5 were not given, she submits the conviction is safe. She relies on a number of matters.

  43. First, as Birchall made clear, this court can make its own assessment when deciding whether there was a case to answer. Here, there plainly was. There is nothing to suggest the complainant’s evidence was so undermined in cross-examination as to leave no case to answer.

  44. Second, when deciding whether the conviction is safe, this court should look at the summing up as a whole. The appellant gave an early and detailed account in interview. The judge dealt with it in detail and fairly. He emphasised the right to silence. He made it clear that the failure to give evidence should only be taken into account if the jury rejected the argument that the detailed answering of the questions in interview provided an explanation for not giving evidence.

  45. Third, there was cogent support for the complainant’s account. She drew our attention to such matters as

    46. a. Apparent lies by the appellant in interview that he had not told the Complainant that he was going to a particular café after he left the night-club, whereas the Complainant was able to name the café. The route to the café would not have been on his way home.
    b. Apparent lies by the appellant in interview about his mobile phone. It had been disconnected in February. The complainant could not therefore have used it. He told police he had used it to telephone his mother earlier the same evening. When at the flat, the appellant gave her the phone to use.
    c. The complainant’s condition after the alleged rape.
    d. Amandine was first called at 3.00AM after the complainant had broken up with her boyfriend. She was next called at 4.10AM. She must, on the appellant’s case, have decided to invent the allegation within minutes of leaving the appellant’s flat. Moreover, if she had decided to do that, why not tell PC Kenwood?
    e. The detailed complaint to Amandine. What was said to the taxi driver.

    Our conclusion

  46. We start by making some preliminary observations.

  47. First, we remind ourselves of what Lord Slynn said in Murray v DPP (1994) 97 Cr. App. R. 151, (a decision concerning the Criminal Evidence (Northern Ireland) Order 1988). He said (at page 160).

    48. “If there is no prima facie case shown by the prosecution there is no case to answer. Equally, if parts of the prosecution case had so little evidential value that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt.
    On the other hand, if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty.”

  48. Second, we are conscious, for the reasons mentioned by Lord Bingham in Birchall, that this is a sensitive area in which it is important that the jury do not convict just because the accused has not given evidence. Having said that, provided the limited use to which the failure to give evidence can be put by the jury is clear to them, this court, as was the court in Birchall, would be “reluctant to countenance the view that direction of a jury calls for the mouthing of a number of mandatory formulae…”

  49. Third, as is plain from Birchall, the failure to give a particular direction (whether or not described as “essential”) is not necessarily fatal to a conviction. In each case the court will consider the facts and the safety of that conviction. If, on those facts it is plain, in the light of the directions given, the conviction is safe, it will stand. We do not take Cowan to suggest the contrary.

  50. Having said that, we turn to the facts of this case.

    51. Direction 4

  51. We have no doubt there was a prima facie case and that any jury would so decide. We so conclude for the following reasons.

  52. We accept the strength of the prosecution case as summarised by Ms Chan in her submissions. We have set it out above and do not repeat it. Although there was no corroboration, there was other evidence in support of what the complainant said.

  53. Whether there is a prima facie case (somewhat unusually) is a matter for the jury in this context. The failure to make a submission of no case to answer at the close of the prosecution cannot therefore be decisive. Indeed, as Mr. O’Higgins submits, in each of these cases, either no submission will have been made or the judge will have decided there is a case to answer. However, the fact that no submission was made may be a telling indication as to the strength of the prosecution case. Here, no submission was made. We have no doubt that any such submission would have been hopeless.

  54. In short, we have no doubt there was a sufficiently compelling case for the appellant to answer. The jury could not have come to a different conclusion. The judge made it clear that the fact the defendant had not given evidence could not prove his guilt. He emphasised the right to silence. He emphasised that the appellant had to prove nothing. The failure to give direction 4 could not affect the safety of the conviction.

    55. Direction 5

  55. Again, the issue is whether the failure to give that direction renders the conviction unsafe. We have concluded it does not.

  56. Direction 5 requires the jury to consider whether there was or may have been any possible explanation for silence other than having no answer or none that would sensibly stand up to cross-examination.

  57. The defence suggestion as to why he did not give evidence was that the

    58. “prolonged questioning [by the police] and the defendant’s ready answering of all their questions, and indeed his full explanations of what happened, provide an adequate explanation for his not giving evidence.” (Page 42D of the summing up)

  58. The jury was then told that:

    59. “If you reject that argument-but only if you reject it- you would be entitled to treat his not having given evidence as a fact helping to prove him guilty. It is for you to decide whether or not it is fair to do that.”
  59. It is important to analyse the effect of this direction. It meant

    60. a. The jury could only consider the failure to give evidence if they rejected the defence explanation that he had answered the allegations fully in interview.
    b. If they did reject the explanation they must have considered what other explanation there was for the failure to give evidence. We have considered what possible other reasons there could have been. It seems to us, on the facts of this case, there was only one: he had no answer to what the complainant was saying or none that would stand up to cross-examination.
    c. The jury could only take the failure into account, if they decided it was fair to do so.

  60. In these circumstances, we cannot see how it can be said in this case that the failure to give direction 5 rendered the conviction unsafe.

  61. We have considered whether the other matters relied upon by Mr. O’Higgins, such as comments to the effect that the appellant “deprived” the jury from seeing him, or the unhappy use of the word “fact” affect the safety of the conviction. In our view they do not. We have also considered whether the cumulative failure to give directions 4 and 5 means the conviction is unsafe. Again, in our view, it does not. This is not a case in which the jury could have convicted wholly or mainly because of the defendant’s silence.

  62. Finally, we would say this. Although a failure to give a specimen direction will not necessarily be fatal to a conviction in any given case, the desirability of giving the appropriate direction, tailored for the case, hardly needs emphasising.

  63. In the circumstances, for the reasons set out, this appeal against conviction is dismissed.

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