No: 00/6095/X2
Neutral Citation Number: [2001] EWCA Crim 2545
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Thursday 8th November 2001
B E F O R E :

LORD JUSTICE KENNEDY (VP OF QB)

MR JUSTICE POOLE
and

MR JUSTICE DAVID STEELE

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R E G I N A

‑ v ‑

STEVEN ROBERT GOUGH

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Computer Aided Transcript of the Stenograph Notes of
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MR RW ENGLISH appeared on behalf of the APPELLANT
MR WE RICKABY appeared on behalf of the CROWN

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JUDGMENT
Thursday 8th November 2001
1.	LORD JUSTICE KENNEDY: On 4th August 2000, in the Crown Court at Worcester, this appellant was convicted of burglary and on 11th September 2000 he was sentenced to two years' imprisonment consecutive to a twelve‑month sentence of imprisonment activated for breach of a suspended sentence and consecutive to a three‑month sentence imposed for failing to surrender to custody. So his total sentence was one of three years and three months' imprisonment. He now appeals against conviction by leave of the single judge, who granted the necessary extension of time.
2.	The appeal is concerned only with the directions given to the jury as to the inferences which they might draw after the appellant absconded during the course of his trial. So we deal with the evidence in relation to the burglary quite briefly.
3.	That offence took place during the afternoon of Friday 18th June 1999 at Forest Lodge, Heywood Lane, Hereford. A rear door was forced off its hinges and jewellery and cash were stolen from that house. At about 4 pm Mr Bridges was driving past. He saw a silver Ford Scorpio motorcar at the entrance to Heywood Lane and a man leaning on it and using a mobile telephone. Mr Bridges, astutely, noted the registration number of the Ford car. Five minutes later he returned with a colleague, Mr Paynter. The car had gone but Mr Bridges and Mr Paynter saw two men coming out of the bushes at the top of the lane. Mr Bridges noted their appearance. He then drove into the lane and was then stopped by another colleague, Mr Reece, and asked to telephone the police, which he did. He then saw the Ford Scorpio again, on this occasion coming towards him, driven by the man that he had seen with it earlier. It slowed down as if to pick up the two men, but then left without them. Those two men then ran off into the woods, apparently not carrying anything. Mr Bridges tried to chase the Ford for a time, but he lost it. Mr Bridges and Mr Paynter returned to the area. In that area was found a Sainsbury's plastic bag containing jewellery, which was handed to the police.
4.	In due course two men were arrested, this appellant and a man named Lee Andrew Johnson. Identification parades were held. Both Mr Bridges and Mr Paynter identified the appellant as the driver of the Ford Scorpio. Mr Bridges was also able to identify the other man who had been arrested, Johnson, as one of those coming out of the bushes. The two men, the appellant and Johnson, were close associates and, we are told by Mr Rickaby for the Crown today, were in fact brothers‑in‑law.
5.	When interviewed, both before and after the identification parades were held, the appellant denied even being in the area. He adopted the same stance in a defence statement. At his trial, however, through his counsel, Mr English, and when he was still present, the appellant admitted being the driver of the Ford Scorpio motorcar. Thereafter he did not attend for the second day of the trial. There was a pause whilst enquiries were made to see if he could be located. He was not located on that day. On the following day, 3rd August, the judge decided that the trial should continue because, on the face of it, the appellant had voluntarily absconded; and so the trial did indeed continue.
6.	Johnson gave evidence. On his behalf a man named Davis was called, who was a serving prisoner and who claimed that it was he who had committed the burglary with someone named White and a driver whom he refused to name.
7.	This appeal centres on what the judge said when he was summing up about the appellant's absence and about his failure to testify. What the judge said was this:
“So far as Mr Gough is concerned, he has not given evidence because he has absconded. It is in fact his right not to give evidence, although it is clearly not his right to abscond. He is in breach of bail by doing that. But he is entitled to remain silent and to require the prosecution to prove its case. You should not assume, members of the jury, that he is guilty just because he has failed to give evidence or indeed because he has absconded, because neither of those matters can on their own prove guilt.
But you can take it into account when deciding your verdict in this way. In the first place when considering the evidence as it now is, you may bear in mind that there is no evidence from Mr Gough himself which in any way undermines, contradicts, or in this context and most importantly, explains the evidence put before you by the prosecution, namely what was he doing in that car behaving in the way that he was?” 
8.	Thus far Mr English has no complaint with the direction, but the judge then went on:
“In the second place, if you think in all the circumstances it right to do so, you are entitled when considering whether the defendant is guilty of burglary ‑ that is the defendant Gough ‑ to draw such inferences from his failure to give evidence and his failure to attend for the trial as you think proper. In simple terms, members of the jury, what that means is you can hold those failures against him.
What inferences can you properly draw from a defendant's decision not to attend the trial or to give evidence before you? If and only if, members of the jury, you conclude that there is a case for him to meet, independent of his failure to attend the trial and give evidence, you may think that if he had an answer to it he would have gone into the witness box to tell you what that explanation was. If in your judgment the only sensible reason for his decision not to give evidence and not to attend the trial is that he has no explanation to answer or give or none that could have stood up to cross‑examination, then it would be open to you to hold against him his failure to give evidence and attend his trial. That is, you can take those matters into account as some additional support for the prosecution's case. You are not bound to do so. It is for you to decide whether it is fair to do so or not.” 
9.	Unfortunately in this case there was, it seems, no discussion in the absence of the jury between the judge and counsel as to whether that direction should be given. Plainly, as it seems to us, there should have been such a discussion so that the learned judge could have had the benefit of counsels' submissions in relation to the propriety of such a direction.
10.	The case now put forward to us by Mr English can be summarised thus. Before a jury can be invited to draw adverse inferences from a defendant's failure to testify certain steps must be taken at the close of the prosecution case as specified in section 35(2) of the Criminal Justice and Public Order Act 1994. That subsection and subsection (3) apply whenever guilt is in issue unless the physical or mental condition of the accused makes it undesirable for him to give evidence (see subsection (1)). So they applied in this case; and subsection (2) reads:
“Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good reason, to answer any questions.” 
11.	Subsection (3) provides: 
“Where this subsection applies, the court or 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 give evidence or his refusal, without good cause, to answer any question.” 
12.	In other words, the giving of the warning in section 35(2) is, Mr English submits, a mandatory step, without which there can be no reliance on section 35(3).
13.	In support of that submission he invited our attention to the decision of the Divisional Court in Radford v Kent County Council (unreported, February 18, 1998) and, perhaps more significantly, to the decision of this Court in the case of Cowan [1996] 1 Cr App R 1, where, at page 9, Lord Taylor CJ said this:
“Section 35(2), as already observed, places a mandatory requirement on the court to satisfy itself (in the case of proceedings on indictment, in the presence of the jury) of the matters set out there. The only way the court can do that is to ask either the defendant or his counsel.” 
14.	By inference, of course, counsel has to be asked in a situation where it is possible for counsel to take instructions from his lay client, which in the present case it was not.
15.	The matter is also to some extent touched on in the recent case of R v Hayward, Jones and Purvis [2001] 3 WLR 125.
16.	Mr Rickaby for the Crown realistically accepts that, in the present case, having regard to the clear provisions of section 35(2) and what has been said about them in the authorities to which we have referred, the judge was wrong to give the jury the opportunity to draw the inference pursuant to subsection 35(3) that he afforded to them. There was, therefore, plainly on the face of it an irregularity and it may properly be described as a material irregularity.
17.	What then should this Court do? That is not decisive so far as this appeal is concerned. What we have to decide, as the Court had to decide in the case of Radford, is whether or not the conviction remains safe. Here we for our part would accept that, in approaching the evidence, the jury may well have had regard to the direction which they had received, whereas in the case of Radford the Divisional Court had the assistance of the magistrates, who were able to say that the irregularity played no part in their determination.
18.	But in the present case the facts are that the evidence against this appellant was extremely strong. As we have already indicated, he was identified not by one person but by two; those two persons had a clear opportunity to see him; and at the end of the day ‑ and this is of importance ‑ in reality their identification evidence was not contested because at the beginning of the trial, on behalf of the appellant and in his presence, the accuracy of that identification was admitted. He accepted that he had been driving the car at the material time, in the place where this burglary was committed.
19.	That, then, must have led the jury to consider what his attitude had been prior to that admission at trial. That inevitably took them back to what he said when interviewed. The learned judge dealt with that in this way:
“In interview, Mr Gough ... denied being in the area at the relevant time. Indeed he denied being in the Ford Granada, which was the one seen by Paynter and Bridges. After being picked out by Bridges and Paynter at the identity parade, Mr Gough was interviewed again. You will note the words he used, members of the jury. If you turn to the last page of his second interview, it is put to him that the two witnesses had picked him out at the identification parade. The last question on page 1 is 'Can you explain that to me, please?' His answer: 'No, I'm really flabbergasted myself. I haven't committed no burglary, haven't been in this area.'“ Then a little further down 'Mr Gough claimed he was very shocked he was picked out from the ID parade.' But we now know, members of the jury, on his own admission that the identification of Mr Gough was correct. He admits he was the driver of the Granada motorcar.” 
20.	But that admission did not come before a defence statement had been served on his behalf on 30th March 2000, that is to say some considerable time after this offence was committed on 18th June 1999. In that defence statement it is said:
“The nature of the accused's defence is:
The allegation of burglary is denied. The defendant was not involved in the alleged burglary and has been mistakenly identified.”
21.	As we have already indicated, by the time of trial there was no longer a suggestion of mistaken identification.
22.	In paragraph 3 of that defence statement, under the heading “The accused takes issue with the prosecution about these matters for the following reasons”, it is said:
“The defendant did not commit the burglary and was not present at the scene.” 
23.	Under paragraph 4 of that statement, under the heading “The accused will give the following evidence of alibi”:
“The defendant was not in the scene of the burglary. He believes he was in the Cheltenham area at the relevant time but cannot provide the names or addresses of anybody who can confirm that.” 
24.	Plainly, in the light of the subsequent admission, what was said in interview on two occasions and what was said in the defence statement were lies. The learned judge gave an entirely appropriate direction to the jury about lies. But against that background it seems to us that there can be no doubt whatsoever but that, even if this irregularity had not occurred, the result at the trial would have been the same.
25.	Helpfully, Mr Rickaby invited our attention to the decision of this Court in Davis, Johnson and Rowe [2000] Crim LR 1012. When giving judgment in that case, Mantell LJ reformulated the question which commended itself to the House of Lords on an earlier occasion in this way:
“Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?” 
26.	We would adopt that question and answer it in the affirmative. Accordingly, this appeal against conviction must be dismissed.