No: 2014/0876/B4 
Neutral Citation Number: [2015] EWCA Crim 836
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 22 April 2015

B e f o r e: 
LADY JUSTICE RAFFERTY DBE
MR JUSTICE GREEN 

MR JUSTICE EDIS 
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R E G I N A 

v 

SHAUN PHILLIPS
 
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Mr J Bartfield QC appeared on behalf of the Appellant
Mr J Varley appeared on behalf of the Crown
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J U D G M E N T
1.	LADY JUSTICE RAFFERTY:  On 6th February 2014 in the Crown Court sitting at Nottingham Shaun Phillips, 27, was convicted of conspiracy to rob contrary to section 1(1) of the Criminal Law Act 1977 and sentenced to eight years' imprisonment.  He appeals against conviction and sentence by leave of the single judge.  
2.	At about 5.05 in the afternoon on 1st August 2013, in a post office in Sutton Bonnington, Miss Davis was aware that three men entered.  She was told not to activate the alarm and to open the safe.  She was told on more than one occasion that were she not compliant she would be shot.  The men wore balaclavas, were shouting, aggressive and stole about £3,000, stamps, postal orders, a number of euros and other items.  The number of a Vauxhall Vectra was noted by a Miss Clarke who saw a total of four men, one waiting in the car.  Police found the Vectra within the hour.  Arrested and interviewed, the appellant declined to answer any questions.  
3.	The case for the Crown was circumstantial.  It led telephone evidence to link the appellant to the 31st July purchase of the Vectra getaway car.  The purchasers arrived in a car owned by Jennifer Ang, his girlfriend and the mother of his child.  There was no evidence it had been sold on before the robbery.  Further, a number of euros was found in her purse, all in the same denomination as that taken from the post office.  
4.	The defence case was a denial of involvement.  The appellant elected not to give or to call evidence but his case as put was that the Crown could not show he had telephoned the owner of the Vectra or was present at purchase.  The owner did not identify him.
5.	On 30th July a message had been sent from Miss Ang's telephone: "Just getting car now bro".  At about 10.50 to 12.05 her telephone was used in an internet search for "used Ford Leicester".  At 12.18 a message from it read: "Waiting for someone to tow us."  There were two calls to her friends during that time.  Later that day her telephone received the message:  "He said he'll take 3 for the Vectra but could get it cheaper."  Next day, 31st July, Mr Steele, the Vectra owner, received two calls, one from a landline from the appellant's home and one from Miss Ang's mobile.  No one disputed she was using it the following day when at 6.38 in the evening, a telephone found in possession of one of the co‑accused rang it and there was a 52 second conversation.  
6.	Mr Steele, whose evidence was not in dispute, had advertised the sale on Gumtree and the caller, on a withheld number, on 1st July 2013 offered him cash and the sale was agreed.  He gave his postcode and the man said he would arrive within half an hour.  An hour to an hour and a half later another call, showing Miss Ang's number, from the same voice announced he was nearby.  Mr Steele saw two men come out from a nearby cul‑de‑sac and recognised one as the voice of the man on the telephone.  He sold him the car but did not identify the appellant at an identification procedure.  Miss Ang's car had a satellite navigation device and it showed an address entered which matched Mr Steele's.  No one suggested other than that she must have been in it that day because the movement of her mobile was consistent with the journey.
7.	In grounds of appeal composed and orally advanced by Mr Bartfield QC against conviction, the judge is criticised as making an unwise decision in comments upon his closing speech.  He had invited the jury to draw inferences as to the motive for his lay client's silence.  The judge, in summing-up, took him to task for so doing.  Mr Bartfield has two complaints: first that on the merits the judge was wrong in that he was entitled to invite the inference from the jury, and secondly, that the judge mismanaged his criticism, undermining the totality of the defence case in what was already a weak case for the Crown.
8.	The issues are simply expressed. Was it permissible to advance in a closing speech reasons for silence at trial based on inferences which counsel contended a jury could permissibly draw from the evidence?  Was it open to the jury to draw them, and if not, was the manner in which the judge withdrew one issue a proper one?  
9.	The judge said: "Counsel cannot advance reasons for the defendant's silence without evidence in support."  He added that to advance a basis for silence required either evidence to have been called or something to like effect to have been put to a witness.  Mr Bartfield argues that that is both wrong in law and led to the absurd result that any defendant electing not to give evidence must attract an adverse inference.  Counsel cannot be restricted to remarks on the evidence of his own witnesses but if anything occurs to him as desirable to say on the whole case he may say it:  Wainwright [1985] 13 Cox 171.  
10.	Mr Bartfield invited the jury to contemplate whether his lay client out of fear for or loyalty to Miss Ang had protected her by way of his silence.  She was not only his girlfriend but the mother of his child.  She had been indicted but had succeeded in an application to dismiss.
11.	Mr Bartfield argued today that the evidence before the jury amply sustained his invitation to it.  The Crown had relied on proof that the robbers wore balaclavas and threatened to shoot the counter clerk were she not compliant.  Its case against the appellant was at its highest that he was involved in arrangements for the purchase of the Vectra.  Consequently in an already weak case for the Crown, the jury must have been entitled, in an exercise of common sense, to contemplate reasons for the appellant's silence.  The evidence suggested that Miss Ang was there at the purchase of the car.  Mr Bartfield submitted that this supported the inference of his loyalty to her.  An useful starting point, he submits, is to consider the evidence against her and against others named in the conspiracy and then consider its effect upon the appellant.  The jury could sensibly conclude that any father of a young child might wish to avoid going into the witness box and inculpating the child's mother.  Green J and Edis J invited Mr Bartfield to explain how anyone could be confident that had he gone into the witness box he would have exculpated Miss Ang. He might have  inculpated her.  Additionally, Mr Bartfield sought to advance as a relevant inferential factor her involvement with others accused within the conspiracy or plainly involved but not in the dock.  They were, he said “very nasty” and it was open to the jury to infer that the appellant would not have wanted to say anything about Miss Ang with an eye to her involvement with them.  We find it difficult to see how that anxiety could safely be established absent evidence.  For all anybody knew the appellant might have been anxious about them and their nastiness, or about her and her misguided loyalties.  The point clear: Nobody knows.  Nobody knows because the appellant elected to remain silent, as was his right.  
12.	Mr Bartfield addressed the jury on fear or loyalty potentially operating in the mind of the appellant as he made his evidence or no evidence decision.  Those, as we pointed out, are different emotions.  How was the jury supposed to conclude which, if either, affected him?  
13.	We have been referred to Cowan (1996) 1 Cr.App.R 1, which where relevant reads: 
"It cannot be proper for a defence advocate to give to the jury reasons for his client's silence at trial in the absence of evidence to support such reasons."  
Supplied by the court was Becouarn [2005] 1 WLR 2589 upon which Mr Bartfield now relies.  Their Lordships considered Cowan and reviewed the then specimen direction on a defendant's failure to give evidence, which included: 
"[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]."  
That direction was optional because the ultimate content of the summing‑up had to be tailored to the circumstances of the case.  The difficulty faced by Mr Bartfield here is that he can identify nothing in front of this jury which laid the evidential foundation contemplated. There was no evidence before the jury upon which he was entitled to invite an inference favourable to his lay client. Consequently the remarks he made in his closing speech were impermissible and the judge's intervention appropriate.  
14.	That is the end of the matter.  For the avoidance of doubt we mention briefly Mr Bartfield's secondary argument, that because of the way the judge approached the matter, his case was fatally undermined in its entirety.  No live evidence had been called and none of the Crown's case challenged so that the jury had, in the interests of the appellant, only Mr Bartfield's submissions upon which to concentrate.  Once he was criticised by the judge on the narrow point we have identified, the entirety of what he said to the jury he argues was likely to have been undermined. The effect would have been fatal to the defendant's case.  
15.	If we had been required to reach a conclusion we would have said that Mr Bartfield is unnecessarily anxious.  The judge used language that was moderate and controlled. Mr Bartfield's skills will have meant that the jury understood every one of his submissions and that some necessarily were more powerful than others.  We are in no doubt that his powers of professional persuasion would not have been diminished in any other respect by the direction given by the judge warning the jury against speculation.
16.	Hindsight is a wonderful thing.  Given time to do the exercise again, Mr Bartfield might have invited the judge to give his views on the propriety of making any comment, the judge might have voiced his gentle reprimand first in the absence of the jury, Mr Bartfield might have wanted at that stage to ask for leave to withdraw it himself from the jury, and so forth and so on.  
17.	We are not persuaded that this conviction is unsafe as a consequence of the judge's actions and the appeal against conviction is dismissed.
18.	As to sentence the judge said the starting point by reference to the guidelines was four years and the range two to seven.  This offence was serious and the starting point would be significantly higher than four years.  Aggravating features were more than one offender, that it was pre‑planned, that a getaway car was obtained, thought given to selecting a vulnerable target, disguises worn and whilst no weapon was used the victim was told that she would be shot and believed she was going to die.  
19.	The appellant was born on 19th April 1987 and had 27 convictions comprising 86 offences for offences including common assault, dangerous driving, theft, failure to surrender, public order and road traffic offences.  He had previously lost his liberty, most recently for 16 weeks on 7th June 2013 for battery and assaulting a constable.
20.	The complaint is that though the judge accurately categorised the offence as falling into category 2 and identified the aggravating features equally correctly, the starting point was too high.  The judge took insufficient account of the applicant's peripheral role, the sourcing of the getaway car. There is a qualitative difference between him who acquires a car for use in a robbery and him who takes an active part.  All but one of the aggravating features identified by the judge attaches only to the latter.  Consequently the aggravating features taken as a whole are more than counter‑balanced by the limited and distinct role ascribed.  Whilst he had a long record, it does not list similar offences nor had any loss of liberty been substantial.  There was no justification for going to the upper end of the scale within the guidelines and a significantly shorter sentence of imprisonment would have been proper.
21.	We cannot agree.  The judge was astute to the role played by the appellant, but astute also to his previous convictions and to the effect of the conspiracy upon the counter clerk, Miss Davis.  He was entitled to elevate the starting point as he did.  There is nothing in the appeal against sentence.