No. 2004/04597/B2
Neutral Citation Number: [2004] EWCA Crim 3215
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Monday, 8 November 2004

B e f o r e:

LORD  JUSTICE  HOOPER

MR  JUSTICE  HUNT

and

MR  JUSTICE  WILKIE

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R E G I N A

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JIMMY  C

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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
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MISS A FAUL appeared on behalf of THE APPELLANT

MR B GUMPERT appeared on behalf of THE CROWN
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J U D G M E N T
Monday  8  November  2004

LORD JUSTICE HOOPER:  
1.  On 23 July 2004, in the Crown Court at Luton, before His Honour Judge Breen and a jury, the appellant was convicted of a single count of indecent assault.  He appeals against that conviction by leave of the single judge, who ordered that the matter should be expedited.  He granted leave having regard to R v Turner [2004] 1 Cr App R 24 and the judge's adverse inference direction under section 34 of the Criminal Justice and Public Order Act 1994.  He also granted leave on the basis that this court should consider the way in which the judge dealt with the evidence in his summing-up and whether it was fair to the appellant.

2.  On Monday 12 January 2004, the complainant, who was aged 16, went to a gym in Stevenage.  There came a time when she and the appellant were alone in a room.  According to her evidence the appellant propositioned her and touched her vagina, both inside and outside her bikini.  Another male who had been there previously opened the door. The appellant left the room very shortly thereafter.  In addition to seeing the appellant in the reception area, the victim later saw him outside in his van.  There was a brief conversation between them; it lasted for about two minutes.  On her return home she immediately told her mother about the incident.  The police were called.  She subsequently identified the appellant in a video identification procedure.

3.  The appellant was arrested and interviewed.  At that time the appellant was aged 17 years and two months.  He could neither read nor write.  He was given an opportunity to speak to his legal representative, a Miss N Jenkins.  At the beginning of the interview Miss Jenkins read out a short statement on the appellant's behalf.  That statement reads:

"I, Jimmy Cash, DOB 24.11.1986, wish to make the following statement: I am a member of Fitness First Gym and I was in Fitness First in Stevenage on Monday 12 January from about 6.30 to 7pm, to about 8.30 to 9pm.  Whilst there, I did speak to a female in the sauna.  We had a short conversation during which she sat beside me.  I then left the sauna, had a shower and left the gym.  I did see the girl again outside and she asked me where the train station was.  I told her and then I left.  At no time was there any physical contact between myself and the female and at no time did I prevent her leaving."

The appellant was of good character; he had no previous convictions and had received no cautions.  We are told that the trial proceeded on the assumption that he had never before been to a police station in these kind of circumstances.

4.  Following the reading out of that prepared statement a number of questions were asked both at this interview and a subsequent interview.  In the admissions the questions were summarised for the jury in the following way:

		"After this the defendant was asked a series of questions about the indecent assault alleged against him by [the complainant].  In summary he was asked: whether he was at Fitness First with anyone else; what the female he spoke to looked like; what they had talked about; whether he had assaulted her in the aromatherapy room; whether he had prevented her from leaving that room; what he was wearing in the sauna area; whether he had said anything to upset her; whether he had asked her if she wanted to have sex with him in there; whether he had touched her vagina through her bikini bottoms; whether he had then put his hand inside her bikini bottoms and touched her vagina again; and whether he had left Fitness First in a yellow van.  To all these questions the defendant answered 'no comment'." (emphasis added)

It is clear that the advice not to answer the questions was given to the appellant by the solicitor.  In the appellant's words, "I gave no comment to the questions because I was advised to give a prepared statement".  In answer to a question from the judge the appellant said:

		"I did not answer questions because of my legal advice.  They get paid for that."

5.  The first ground of appeal relates to the manner in which the trial judge summed up the issue of section 34 and the adverse inference that can be drawn from a failure to mention a fact relied on in his defence in the proceedings.  The judge reminded the jury of the caution and went on to say:

		"As his defence he has relied on an account which goes very considerably beyond the prepared statement that was read to you and which again you will have a copy of and can refer to.  During the course of the interview he was given the opportunity to give further details; indeed, he was correctly asked about a number of matters which, if he had answered the questions, would have brought those matters out.  Again they are set out.  I read them to you earlier on in the admission and you will be able to refer to that during the course of your deliberation.  But the point is this: the defendant admits that he failed to answer those questions or to mention these matters during the course of the interview, and this failure may count against him."

Mr Gumpert (who was not prosecuting counsel at the trial and for whose assistance this court is grateful) accepts that there was a misdirection in this passage.  The trial judge failed to identify the facts the omission to mention which could found the basis of an adverse inference.  Mr Gumpert submitted that the jury must have known that the judge was there referring to part of the evidence given by the appellant about what had been said by the complainant to him and how he had replied during the period when they were alone together in the room.  Mr Gumpert further submitted that the jury must have known that the judge was referring also to the appellant's evidence about what he thought the complainant was doing when she spoke to another man outside the fitness centre.  Thus Mr Gumpert submits that this court should not allow the appeal because the jury would have known to what he was referring.

6.  Unfortunately, the judge did not summarise the appellant's evidence, although at one point (page 13, line 11) he made reference to a "chat-up line".  The judge not having summarised the evidence of the appellant, nor indeed of the complainant, we have to rely on the notes of evidence prepared by the solicitor for the appellant.  Given the fact that the appellant was subsequently sentenced to a custodial sentence, and given his age, it was vital that this appeal was expedited.  That explains the lack of a transcript.  We would not have needed a transcript if the trial judge had set out the evidence in his summing-up.  According to the appellant's evidence the complainant had asked him whilst in the room to go out with her at the weekend.  To that, so the appellant said, he responded that his wife was pregnant and having a baby and that he could not go out with her.  He continued: "I can't remember what was said much between us.  She sat down beside me just after she said about the weekend".  There is then reference to his conclusion (we do not know whether he reached that conclusion at the time or later) that when she was asking the man outside about where the train station was, she must have been "chatting up" the man.  

7.  In cross-examination he said:

		"She asked me if I went out at the weekend and I said I do not go out at weekends because my wife was pregnant and she had had a miscarriage before."  

He went on to say:

		"She was coming on to me because of what she first said to me."

Later he said:

		"I thought she was coming on to me -- hitting on to me."

He then referred again to the issue about the man outside the fitness centre.  One further passage from his cross-examination to which we refer reads:

		"I had nothing to hide about the girl.  I wanted to answer the questions but my representative said not to me."

8.  It is submitted on the appellant's behalf that the trial judge, by approaching section 34 in the manner in which he did, did not make it clear to the jury that it was not the failure to answer questions which could lead to an adverse inference, but the failure to mention a specific fact subsequently relied upon.  The trial judge ought to have identified the fact or facts.  If he had done so, we suspect that the only fact he would properly have identified was the appellant's evidence about the complainant having asked him out, to which he said "No".  We doubt whether anything that he said in evidence about the man outside the fitness centre would have satisfied the necessary test.  The judge left it in the plural.  We find that the failure to identify the fact or facts is a fatal flaw in his summing-up.

9.  The matter does not end there.  The judge went on to direct the jury as follows:

		"That is because you may draw the conclusion from that failure that he had no answer then, or none that he believed would stand up to cross-examination, and that he has since tailored his account to fit the prosecution case."

That is the formula to be found in the Judicial Studies Board ("JSB") specimen direction, designed particularly for cases in which the defendant has refused to answer any material questions.  That is not this case.  If the judge was minded to identify as the only fact the one that we have already identified, what conclusion might the jury reach from a failure to have mentioned it at the time of questioning?  The question which he was asked by the police was: what had they talked about?  Having been asked that question and declined to answer it, what conclusions could properly be drawn from the failure?  It is very difficult, if not impossible, to see how it could be concluded that "he had no answer". He had given his account; what he had omitted by refusing to answer the question was part of the detail.  Nor, it seems to us, could it be properly concluded that he had tailored his account to fit the prosecution case following the interview.  Nor does it seem likely that a 17 year old unable to read or write had decided to omit the detail because he believed that if he gave the detail "it would not stand up to cross-examination".    

10.  If the jury were to draw any adverse conclusion from the appellant's failure, the only possible conclusion could be that he had made up this detail later.  Importantly there appears to have been no cross-examination of the appellant about why he had not mentioned the conversation during the interview.  If, for example, it had been suggested that he had fabricated the detail after the interview, then it may be that he could have rebutted that allegation or given an explanation about which the jury would need to be reminded.   

11.  If he lied in evidence about the detail, could it properly be concluded that this was a pointer towards his guilt?  The appellant had from the outset denied the commission of any indecent assault.  The judge told the jury that the failure could count against the appellant, but now how, on the facts of this case, it could count.  We do not say that it was impossible to prepare a direction which dealt with these issues, but the judge certainly did not do so.  The JSB direction had to be tailored to the facts of the case -- it could not just be read out in a formulaic manner.  The judge should have considered (with counsel) how failure to mention the detail could properly assist the jury in their deliberations. 
 
12.  The judge then went on to say:

		".... you [are only entitled to draw the conclusion] if you think it is fair and proper to do so and you are satisfied about three things: the first is that when he was questioned he could reasonably have been expected to mention the facts on which he now relied; secondly, that the only sensible explanation for his failure to do so is that he had no answer at the time, or none that would stand up to scrutiny; ...."

As to the first of those "things", a proper answer to the question requires the identification of the relevant fact.  As to the second of those "things", we repeat what we have just said.

13.  The judge then turned to that part of the JSB direction dealing with the advice of the solicitor.  The judge said:

		"Now he has given evidence that he did not answer questions on the advice of his solicitor, and, if you accept that, then that is obviously an important consideration, but it does not automatically prevent you from drawing any conclusion from his silence."

There was no dispute, as we understand the case, that the solicitor had given him the advice.  The judge went on to say that a person given legal advice has the choice to accept it or to reject it, and that the appellant was clearly warned that any failure to mention facts might harm his defence.  The judge continued:

		"By all means take into account his defence and by all means take into account his evidence about that, that if you have got a solicitor and the solicitor gives you certain advice, well, you should take it perhaps, especially if you are seventeen years old.  But you saw the defendant in the witness box and you will judge for yourselves whether he would have had any difficulty in holding his own in an interview and speaking his mind to his solicitor."

We have some doubt, albeit we have reached no firm conclusion, whether it was appropriate to give any section 34 adverse inference direction given that the appellant was just 17 at the time, could neither read nor write, had given a statement, had been advised not to answer the questions and did not have any "criminal sophistication" (to use the words of Mr Gumpert).  If we are wrong about that, the facts of this case required the trial judge to give careful directions to the jury about whether or not they were entitled to conclude that the appellant could reasonably have been expected to answer the question which related to what they had talked about.  The only point made is a point against the appellant, namely: would he have any difficulty holding his own in interview and speaking his mind given his demeanour in the witness box?  We do not find that to be a helpful guide to the jury in this case.  

14.  The judge then said:

		"If you consider that he had or may have had an answer to give but relied on legal advice to remain silent, do not draw any conclusions against him."

It is very difficult to see how that would help the jury without identifying the question to which he had or may have had an answer.  The judge continued:

		"But if, for example, you were sure that he had no answer and merely latched on to the legal advice he was given as a convenient shield behind which to hide, you would be entitled, subject to the direction I have given you, to draw a conclusion against him."  

This again was inappropriate on the facts of this case.  The appellant did have an answer.  The section 34 issue was whether the jury could draw some conclusion from his failure to tell the officers when asked what it was they had talked about.  

15.  We are sorry to say that this was a completely inadequate way of dealing with the difficult problems which section 34 raises and the conviction must therefore be quashed.

16.  We turn very briefly to other grounds of appeal.  The trial judge did not summarise the evidence given by the complainant, nor did he summarise the evidence given by the appellant or that of the witnesses he called.  He chose simply to highlight what he said were a number of issues.  He then gave in effect his conclusions on six issues, five of which, as Mr Gumpert accepts, were unfavourable to the appellant.  One of the issues was whether or not the appellant had swimming trunks on under his shorts.  The complainant had said that he had taken off his shorts to reveal swimming trunks.  The appellant said that that was not right because he was not wearing anything under his shorts.  The judge said of the complainant's evidence:

		"Why make up a detail like that, do you think, members of the jury, if it did not happen, if there is no substance in it?"

With that comment the judge was undermining the defence case that the complainant had made up the whole story and had been caught out in the detail.  If the prosecution had made this point, then at the most the jury should have been reminded of the prosecution's submission.

17.  In dealing with the same issue the judge then said: 

		"You will remember I drew attention to the fact that although it had been suggested that the defendant went out straight after his friend, there was, according to the tape counter, a delay of getting on for twenty seconds.  How long do you think it would take to pick up a pair of shorts and put them on over swimming trunks?  Could that explain the delay?"

The problem with the judge's conclusion which he was inviting the jury to accept is, as we understand the case from the material before us, that the CCTV camera which showed the appellant leaving the room showed that he could not have put on his shorts outside the room.  If the judge's thesis is right, the appellant must therefore have put them on inside the room while alone with the girl at about the time the other male opened the door.  If that is right then the jury would at least have needed some reminding of what the complainant had said.  The complainant had not, as we understand it, given evidence of the appellant putting on his shorts.  Could that be explained by the fact that she was looking away?  We do not know because there is no summary of her evidence in the summing-up.  On the face of it, if that point was going to be made, it should have been made as a prosecution point (assuming the prosecution ever made the point), and should have been balanced by looking at all of the evidence.

18.  The judge then commented on the fact that the appellant's wife and mother had been called.  The effect of their evidence was that the appellant would not have been wearing swimming trunks under his shorts.  Whether that evidence was to be believed was a matter for the jury.  But the judge said:

		"He is a very lucky chap to have all that done for him, is he not?  I am sure the gentlemen will agree; perhaps the ladies will not --  I do not know -- that they do that for him."

Mr Gumpert accepts that that comment ought not to have been made.  Viewed on its own perhaps it adds little, but against the background of the way in which this judge approached his summing-up, we find that he was wrong to have expressed his personal views in that way.

19.  There are other passages about which complaint could be made, but we turn on to one which particularly concerns us.  In reviewing the evidence of the complainant, the judge said:

		"And was she acting when she gave her evidence in this court?  If so, you may think, I do not know, it is a matter for you, but you may think it was a veritable command performance, but that is something for you to consider."

We take the view that the trial judge ought not to have expressed his personal view in that way.  
20.  The fact that he had earlier said that the jury were to ignore his views if they did not agree with them did not entitle the judge (in this case) to express his views in this way.  The use of the phrase "It is a matter for you" does not necessarily make the comment justifiable (see R v Goodman CACD, Dyson LJ, Silber J and HHJ Ann Goddard QC, unreported 12 July 2002, No 2000/05645/Z4).

21.  In all these circumstances we consider that this conviction is unsafe.  We quash it.  This appeal is allowed.

22.  The prosecution has been asked whether they seek a retrial.  Mr Gumpert has indicated that they do not.