Case No: 2000/05920/W3
 
Neutral Citation Number: [2001] EWCA Crim 2696
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
(His Honour Judge Hutton) 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4th December 2001

B e f o r e :

LORD JUSTICE POTTER
MRS JUSTICE RAFFERTY
and 
HIS HONOUR JUDGE ZUCKER QC
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	REGINA
-v-
ANDREW PASQUALE GIAQUINTO		

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(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)
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Simon Burns Esq (instructed by the Crown Prosecution Service)
Rupert Lowe Esq (instructed by Stephen Young & Co, Gloucester, for the appellant)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Potter : 
1.	On 30 October 2001 we allowed this appeal and ordered that the appellant be re-tried, stating that we would give our reasons later.  Those reasons now follow.
2.	On 2 October 2000 in the Crown Court at Gloucester before His Honour Judge Hutton and a jury, the appellant was convicted, and on 24 October 2000 he was sentenced, as follows:
Being concerned in supplying a Class A controlled drug (heroin) – 4years imprisonment;
Possessing a Class A controlled drug with intent to supply (heroin) – 4 years imprisonment concurrent.
3.	Orders were made for the forfeiture and destruction of the drugs and a Drug Trafficking Confiscation Order was made in the sum of £170 with seven days imprisonment consecutive in default.
4.	The appellant appeals against conviction by leave of the single judge.
5.	The prosecution evidence was as follows.  On 7 March 2000, at 9pm, police observed the appellant by his car outside his house in Adelaide Street, Gloucester.  They arrested him on suspicion of being concerned in the supply of Class A drugs in Cheltenham earlier that day.  It is important to note that the Cheltenham offence on suspicion of which he was arrested was not the offence for which he was indicted and convicted in these proceedings.  However, the reason for the initial arrest is relevant to Ground 1 of the appeal.  At the time of his arrest, the appellant was seen to throw away what was later found to be one wrap of 1.54g of heroin which was the subject of Count 2 of the indictment.  In the course of later interview, to the details of which we will return, the appellant made admissions to the effect that he had been concerned in supplying heroin since January 2000, which admissions formed the basis of Count 1 of the indictment.  Before the trial started it was agreed between counsel that some of the prosecution evidence was inadmissible and should not be presented to the jury.  In particular, it was agreed that reference to the circumstances leading to the appellant’s arrest should be deleted from the evidence.  The position was that the evidence on the papers was to the effect that a car believed to have been the appellant’s had been seen in Cheltenham in circumstances suggestive of drug dealing in the afternoon of 7 March.  When the police attended his address at 9pm that evening they found him getting into his car.  PC Garner asked him his name and then said, “I am arresting you for being concerned in the supply of a Class A controlled drug in Cheltenham”.  Soon after his arrest the appellant was seen to throw away the small package of heroin which formed the subject of Count 2.  There was however no evidence that the appellant had been driving the car seen in Cheltenham and no admissible evidence that the car was his.  All references to supplying drugs in Cheltenham that afternoon and his arrest on suspicion of being concerned in drug supply were therefore agreed to be deleted by counsel.
6.	The evidence of the prosecution witnesses, as edited, was largely uncontested.  The appellant had always accepted that he had thrown away the package of heroin.  He pleaded guilty to simple possession of that package and the jury was informed of his plea.  In evidence he said that he was a user, that he had not intended to supply the drugs he had thrown away and had never been concerned in the supply of any other drugs.  However, in addition to the content of his interview, upon the admissions on which the Crown placed great reliance, the remaining evidence against the appellant was as follows.  Upon his arrest a small bundle of empty pieces of clingfilm was found in his pocket together with £250 in cash.  A further £170 in cash was found in his bedroom at 63, Adelaide Street, which cash was concealed under a mat or cloth which covered a chest of drawers.  A set of electronic scales was found in the spare bedroom of his home, bearing traces of heroin.  In addition several rolls of clingfilm, some of them cut in half, were found in the spare bedroom and in the kitchen.  Finally, the appellant was also in possession of a mobile telephone.  No further drugs were found and, the interview aside, there was no evidence of suspicious acts by the appellant save for his having thrown away the single package which he stated had been for his own use.
7.	The appellant was interviewed with his solicitor present on two occasions.  He told the police that on the evening of his arrest he had been told by a black man “to take something for somebody” and to give it to that person by the swimming baths.  That something was the heroin wrap.  He said he could not tell the police who the blackman was as, if he did, his life would be in danger.  He said that since 10 January 2000 he had often been made to supply drugs in this way, mainly in lieu of debts accumulated by his brother, Luciano, who had a crack cocaine habit.  He said a black kid had threatened that if he did not pay his brother’s debts, his (the appellant’s) son would be kidnapped or his parents shot.  He believed that the package contained drugs and said that it had been happening for a number of weeks.  He was forced to do it.  He denied taking any hard drugs for his own use and said that he only supplied because he was forced to.  He made no financial gain.  He had received several death threats and had had a gun pointed at him 2-3 weeks before.  However, he would not say who was responsible.
8.	Formal written admissions were made at trial that the wrap contained 1.54g of heroin and that, at street level, heroin is usually sold in wraps of less than 100 milligrams; thus the heroin wrap thrown away could have produced 15 street level wraps of heroin if divided up and sold on.  It was also admitted that the clingfilm on the wrap could have been the same as one of the rolls found in the appellant’s house, but that this was not certain.  
9.	The evidence of the appellant was to the following effect.  He lived at his parents’ house in Adelaide Street, Gloucester, at which his brother also spent an amount of time.  On 7 March the appellant had been to the bookmakers twice and had also picked his young son up from school.  At 8pm he went to the kebab shop.  He did not meet anyone and returned home.  As he was standing by his car outside he was arrested.  He accepted he had the wrap of heroin on him, but for his own use and not with any intent to supply and he had pleaded guilty to simple possession of it.  He said he had bought the heroin that morning and had paid £70 for it.  He had used a small amount himself at 1pm, having weighed it on the scales found at his house.  He admitted he threw the rest of it into a garden when he saw the police.  Between arrest and interview the next day he made up his mind that he did not want his parents to know he was taking heroin.  They already knew his brother took crack cocaine and he did not wish to upset them.  He said he was also feeling cold and sick due to heroin withdrawal and wanted to leave the police station as soon as possible.  He said he had concealed the effects of withdrawal from the police, as he did not wish to appear to be a user.  He decided to make up the story he gave in interview about the black man and his being involved in the supply of drugs.  As to the clingfilm in the house, most of it was his mother’s though he admitted using some for wrapping and carrying his own heroin.  The £250 cash found on him was for money he had won at the bookmakers and was also from his £104 weekly benefits.  The £170 in his bedroom was from another win off the horses, hidden from his brother whom he did not trust, as he was a cocaine addict.  The appellant denied he was going to pass the heroin out of his possession to anyone else and, contrary to what he had said in his interview, he was not concerned with passing drugs to anyone at any time between January and his arrest in March.
10.	There were two submissions and rulings of relevance to this appeal.  First, before counsel’s speeches, defence counsel requested that the judge include in his summing up a direction on the defence of duress.  He acknowledged that it was an unusual application because the defence of duress had not been raised by the defendant in his own evidence.  However, that question had been raised by him in interview as part of the appellant’s admission that he had been involved in supplying heroin since January 2000.  Since the charge contained in Count 2 was based on those admissions, in order to convict on Count 2 the jury had to accept the case for the Crown that the admissions in interview were correct and the appellant’s account at trial false.  It was submitted that it was for the jury alone to evaluate the veracity of the whole interview and to decide upon which, if any, parts they could rely in the light of the appellant’s repudiation of the whole interview in his evidence.  In these unusual circumstances some direction was called for in relation to duress.
11.	The judge ruled that, in the circumstances, there was no evidence of duress to go before the jury and he therefore refused to give such a direction.  In his summing up, he dealt with the question of duress in this way:
“… in the interview with the police the defendant, as well as making full admissions of the offences now charged against him, did substantially raise the issue of what is known as duress because he said in that interview, as you have heard … that he only did this because he was under danger to his life, or at least injury, and he was actually being threatened by somebody with a pistol and so on.
Duress indeed can be a defence to a criminal charge and if it is raised the prosecution bears the burden of disproving the duress but in this case we have the curious situation where the defendant did raise duress in his interview with the police but does not now allege it in his evidence to you because he said that the whole interview was absolutely wrong for the reasons he has given to you.  Therefore I have ruled as a matter of law that there is no evidence of duress in this case and you do not have to consider whether the duress alleged in the interview is true or not.  You have the defendant’s evidence of what his defence is in this case and it is not now duress raised by him.  So that is not an issue for you.”
12.	The judge’s ruling and that treatment of the matter in his summing up form the subject of Grounds 2 and 3 of this appeal.  
13.	The subject of Ground 1 of the appeal arises in this context.  The judge, as a result of an oversight in relation to the edited evidence and confusion as to the effect of his note, when recounting the circumstances of the appellant’s arrest said:
“The admitted facts are that at 9pm on the 7th March of this year … two police officers, Police Sergeant Garner and Police Constable Hammond, obviously on some sort of information, went to Adelaide Street in Gloucester where the defendant’s home is.  They there saw him with his car and he was there and then arrested for being concerned in the supply of a Class A drug in Cheltenham.”
14.	At the conclusion of the summing-up, defence counsel made an application that the jury should be discharged.  He submitted that the appellant was prejudiced by the reference in the judge’s summing-up to the evidence of the appellant having been arrested on suspicion of the supply of drugs in Cheltenham which it had been agreed it should be excluded on the grounds of prejudice to the appellant.  The defence argued that, if the jurors had registered the judge’s comments that at the time of his arrest the appellant was under suspicion of supplying drugs in Cheltenham, then that might cause the jury to conclude that that was the purpose of his possession of the wrap which he threw away, rather than its being for his own personal use as he stated in evidence and accepted by his plea of guilty of which the jury had been informed.  The judge ruled that he would not discharge the jury.  He considered it would be likely that the jury had attached no significance to his remarks and it would make things worse rather than better to seek to correct the position.
15.	Thus Grounds 1 to 3 of the Grounds of Appeal read:
1.	The judge informed the jury of the appellant’s arrest on suspicion of other offences, when  neither that arrest nor particulars of those offences were in evidence.  The other offences were of a serious and similar nature, and the jury’s knowledge of them must have been prejudicial to the appellant.  The judge was wrong to refuse an application for the jury to be discharged.
2.	The judge was wrong to refuse a defence application for the jury to be directed on the defence of duress.
3.	The judge improperly withdrew from the jury an important issue of fact, namely whether those parts of his interview which appeared to raise the defence of duress might be true.
16.	There is an additional Ground of Appeal directed to remarks made by the judge in the introductory section of his summing up about the seriousness of using and supplying drugs; it is said that such remarks had no relevance to the task of the jury and may have had a prejudicial effect on their deliberations.  While we accept that the judge’s remarks were discursive and unnecessary, we do not think there is any substance in that ground and we need deal with it no further in the light of the conclusion which we have formed in relation to Grounds 1-3.
17.	We first consider Grounds 2 and 3 together.  Mr Burns who appeared for the Crown on this appeal conceded that, were this a case in which the defendant had not given evidence, the judge would have been required to treat the assertions of the appellant in interview as some evidence of duress which required an appropriate direction to the jury when dealing with the weight to be accorded to interview statements by a defendant who does not give evidence.  It is clear that the interview was a ‘mixed statement’ i.e. one containing admissions and self-exculpatory parts, which, in the absence of evidence from the defendant, would undoubtedly call for a direction to the effect that the jury must consider the whole of the statement in deciding where the truth lies; see R v Duncan (1981) 73 Cr App R 359 and Western –v- DPP [1997] 1 Cr App R 474.  However, Mr Burns also submitted, in our view correctly, that what is now recognised as the general rule in a situation where the defendant does not give evidence is not necessarily applicable in a case where he does so.  Such necessity will depend upon the circumstances of the case and the nature and effect of the appellant’s evidence.  
18.	We agree.  This was a case in which the appellant gave evidence in which he expressly repudiated and withdrew a defence, or potential defence, of duress advanced at interview.  He said that the answers he gave in his police interview were fabrication; the defence which he pursued at trial was not that he was a dealer acting under duress but that he was merely a user of drugs who had never dealt in them.  Thus he expressly repudiated on oath his earlier unsworn assertion and gave circumstantial reasons for telling what he said were earlier lies.
19.	The authorities in this field which have been cited to us are related to the situation where the defendant did not give evidence; they also largely relate to situations where the defence in question is of self-defence or provocation.  In such a case it is right that a defence not advanced by the defendant should nonetheless be left to the jury if there is a realistic basis for such a defence arising on the facts as presented by the prosecution, although inconsistent with the defendant’s ‘first line’ defence.  However, whether that is so will always be a question for consideration from case to case.  It is likely to be so, not only in the (usual) case where the defendant accepts that he was at the scene but disputes his degree of participation in a fracas, but also where he disputes identification and/or pleads an alibi.  Nonetheless, in such situations, a judge must be very careful before putting an issue of self-defence or lack of intent before the jury, given that such a course invites speculation and may oblige the judge to direct the jury on what is no more than a fanciful possibility: see R –v- Elliott (Denrick) [2000] Crime LR 51; see also R –v- Bonnick (1978) 66 Cr App R 266, in which it was stated at p.269 that where evidence of self-defence was raised in a disputed identification case, in order for it to be sufficient to go before the jury ‘it would require to be fairly cogent evidence, when the best available witness disables himself by his alibi from supporting it”.
20.	In this case the possibility of a duress defence arose during the course of the police interview, and upon the unsupported assertion of the appellant.  It did not come from any other source; nor was its likelihood inherent in the circumstances of the case.  Indeed, the appellant disowned his earlier account at trial.  In those circumstances, it seems to us that the judge was in principle correct to hold that there was no evidence of duress fit to be left to the jury, on the basis that to entertain such a plea would involve erecting or fashioning for the defendant a defence which he did not seek to advance.  
21.	Nonetheless, in the particular circumstances of this case, that this is not the end of the matter.  The nature of the defence advanced, was that the whole of the interview was a pack of lies, designed to protect the appellant’s family from the knowledge that he was a heroin addict.  Given that the Crown asserted the truth of a large part of the interview for the purposes of convicting the defendant, as well as on general principle, we consider that the defendant was entitled to a direction that the jury should consider the interviews as a whole when considering the effect of the admissions relied upon by the Crown and weighing the likelihood that the appellant was now telling the truth.  In doing so, the judge was of course at liberty to comment that, as admissions against his own interest, the incriminating parts of the interview were likely to be true, whereas little weight might attach to the excuses or explanations: c.f. the model direction contained in the Crown Court Bench Book published by the Judicial Studies Board.  Unfortunately, the judge did not take that approach.  Instead, he directed the jury in separate parts of his summing-up as follows:
“The larger part of the prosecution evidence in this case depends upon the admissions of the defendant in the interview with the police, which was taped and recorded, and he made absolutely full confession then to the facts upon which counts in the indictment are framed and there is no question that in interview he was fully admitting both of these offences alleged on the indictment.  He now say that those admissions were complete lies …..
…
Now it is right to point out that in the interview with the police the defendant, as well as making full admissions to the offences now charged against him, did substantially raise the issue that is known as duress …
Duress indeed can be a defence to a criminal charge and if it is raised, the prosecution bears the burden of disproving the duress, but in this case we have the curious situation where the defendant alleges duress in his interview with the police but does not now allege it in his evidence to you because he says that the whole interview was absolutely wrong for the reasons he has given to you.  Therefore I have ruled that as a matter of law that there is no evidence of duress in this case and you do not have to consider whether duress alleged in the interview is true or not.”
Later the judge said:
“The interview … was a full admission of being concerned in supplying heroin since January and possessing the one wrap of heroin on 7th March and with intent to supply to another.”
22.	We think that, collectively considered, those directions were unfortunate.  Albeit the defendant was now repudiating the account which he gave in interview, it was quite wrong to describe the interview as a full admission of the offence at the time it was made.  It was rather a confession and avoidance.  Overall, it was exculpatory, or at any rate raised a defence, rather than being an admission of the offence charged.  Given the terms in which the jury was informed that duress was removed from their consideration, and in the light of the unqualified direction that the answers in interview constituted a full admission, they would have been left in the position where, even if they considered that the whole of the version at the interview might be true, the appellant had admitted the offence.  We therefore consider that, in the circumstances of the case, the judge was not entitled to deal with the matter in the simplistic way which he did.
23.	Turning briefly to Ground 1, we also consider that, in directing the jury as he did, and assuming (as we must) that the jury may have paid attention and attached importance to his remarks, the judge might well have given the jury cause to conclude that the appellant had reasonably been suspected of drug dealing earlier in the day at Cheltenham, whereas, by common agreement between counsel, there was no evidence to that effect and the evidence as to the reason for the arrest was to be excluded.  When the matter was raised later with the judge at the end of his summing-up, he acknowledged the error.  He, understandably, took the view that, to seek to bring the mistake to the attention of the jury only to tell them to ignore what they had heard, might make matters worse rather than better.  Nonetheless, the damage, if damage there was, was done, and it remained uncorrected.
24.	This was a strong case.  It may well be, as urged upon us for the Crown, that the jury failed to attach any significance to the circumstances of the arrest.  It is also likely that, had the judge correctly directed the jury in relation to the interview and emphasised the distinction between admissions against interest and self-exculpatory statements, the jury would nonetheless have reached a guilty verdict.  However, in the light of the deficiencies in the summing-up we do not feel able confidently to pronounce the verdict safe.
25.	For those reasons, as we have already indicated, the appeal will be allowed.