No. 2000/06846/Z5
Neutral Citation Number: [2001] EWCA Crim 2715
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Chester Crown Court
The Castle
Chester
Cheshire CH1 2AN

Monday  26  November  2001

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)

MR  JUSTICE  GAGE

and

MR  JUSTICE  THOMAS

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R E G I N A

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GEOFFREY  GOWLAND-WYNN

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Computer Aided Transcription by
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MR K HARRISON appeared on behalf of THE APPELLANT

MR E LAMB appeared on behalf of THE CROWN
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J U D G M E N T
Monday 26 November 2001
1.	THE LORD CHIEF JUSTICE: On 13 November 2000, at the Crown Court at Manchester, the appellant was convicted by a majority verdict of 11 to 1 of being knowingly concerned in the fraudulent evasion of excise duty. He was sentenced to four‑and‑a‑half years' imprisonment. His application for leave to appeal against conviction and sentence was refused by the single judge, but in due course was granted by the full court. 
2.	Briefly the issue between the Crown and the defence was whether the appellant was aware of, and a party to, the importation of a quantity of cigarettes (3.8 million) which were concealed in two consignments of timber. This appeal is concerned only with the correctness of a passage in the judge's summing‑up which Mr Harrison on behalf of the appellant contends took away from the jury the vital issue as to the honesty and credibility of the appellant in a case where his honesty and credibility was of significance. 
3.	The case could have involved a question as to whether it was appropriate for the judge to give a direction under section 34 of the Criminal Justice and Public Order Act 1994. That issue could have arisen because of decisions of three different Divisions of this court in relation to which there is a conflict of views. The cases are R v Mountford (21 December 1998), R v Hearne (4 May 2000) and R v Gill (21 July 2000). 
4.	Section 34 creates difficulty for the courts because it is contended that it interferes with a defendant's right to silence. In appropriate circumstances section 34 permits a judge to draw attention to the fact that, when interviewed by the police, a defendant did not reveal his defence, but chose to remain silent or made a response which was limited to “no comment”. The appellant in this case adopted the “no comment” response. 
5.	The Judicial Studies Board have prepared a lengthy but helpful specimen direction for the assistance of judges who have to deal with section 34. It is very important that judges should bear in mind that specimen direction where a case involving section 34 arises before them. It is desirable that judges should receive assistance from advocates appearing for both the Crown and the defence at the conclusion of the hearing before they determine how to give effect to the guidance provided by the specimen direction. In applying that guidance it must be borne in mind that the burden of proof remains throughout on the prosecution; it is not affected by the fact that a defendant chooses to make no comment. 
6.	In R v Mountford the court, presided over by Henry LJ, indicated that there could be an element of circularity in leaving an issue to the jury because of section 34 where a verdict of guilty would obviously “establish that the fact not mentioned was untrue and accordingly that the explanation for not mentioning it was equally untrue”. 
7.	That approach was then considered in R v Hearne and Coleman. In the course of the judgment of the court, Mantell LJ referred to Mountford and said: 
“11. It seems to us that the case of Mountford was concerned with its own very particular facts and it is not necessarily to be considered to have a general application when the appropriateness or otherwise of a section 34 direction is being considered. If it were to be given the breadth or scope of application which Mr Burgess urges upon this court, it would have the result of emasculating the section and to defeat the very purpose for its enactment. We do not think that Mountford could have been intended to have application in a case such as the present. Here the finding, if such it was, and it appears that it must have been, that the explanation had been recently invented did not of itself lead inevitably to the conclusion that the appellant was guilty of the offence. There may have been some other available explanation, perhaps disreputable, which was not offered either at interview or at trial. But in the view of this court the jury was entitled to take into account the circumstances in which the appellant was seen to be involved and was arrested and put that together with the fact that his explanation had not been volunteered at an earlier stage to reach the conclusion which they did, namely that he was guilty of the offences charged. Certainly this court has not the slightest hesitation in finding that conviction of Hearne in the circumstances of this case was perfectly safe.” 
8.	If the situation had remained as indicated in Hearne and Coleman, it probably would be unnecessary for this court to say anything further. Unfortunately, however, the issue arose again in R v Gill, to which we have already made reference. It is not surprising, because of the dates involved, that Hearne and Coleman was not drawn to the court's attention in Gill. In consequence the judgment in Gill reinforced the decision in Mountford. 
9.	We have very carefully considered those three judgments. We are quite satisfied that the comments of Mantell LJ are right insofar as they suggest that to follow the approach which was adopted by this court in the other two cases has the effect of emasculating and defeating the very purpose of section 34. Particularly where a defendant does not comment, when he could be expected to comment about something which goes right to the heart of his defence, it seems to us that section 34 has the largest and most significant part to play. In those circumstances we consider that in future Mountford and Gill which endorsed it, should be consigned to oblivion and not relied upon by courts. It may be that they could be confined to their special facts, but we find difficulty in identifying how those special facts could be recognised. We consider that judges and juries will be caused undue difficulty if in the future any attention is paid to those authorities. The important matter to bear in mind with regard to section 34 is the fact that the burden of proof remains upon the Crown throughout. 
10.	We return to the facts of this appeal. There was no dispute in the court below that the appellant was closely involved in the importation of consignments of timber. He had started trading under his own name from a registered office which was at the address of his accountant. He had dealt with a considerable amount of the paperwork. He had been involved in one previous consignment. When the second consignment arrived the Customs officers carried out an inspection of the two containers of timber which were the subject of the consignment from the Ukraine. They discovered that the timbers had been dowelled together to conceal over 3.5 million Europe brand cigarettes which are not normally available in this country and on which the duty payable was over £400,000. Customs therefore decided to conduct a controlled delivery and took over conduct of two vehicles. On arrival at the industrial unit in Acklington where they were being delivered, the appellant's car was seen parked nearby. There had been a call made from the appellant's telephone to the company who was responsible for handling the consignment in this country to inquire as to their whereabouts. Two other persons were present, one of whom was a Mr Hartley, who was also charged with this offence but against whom the prosecution subsequently did not proceed. The officers noticed that at the premises there were no items of machinery or anything consistent with running a business. 
11.	The appellant was arrested on 26 November 1999 at the unit. At that time the timber was still intact. When he was interviewed at that time he declined to comment. He was further interviewed on 26 November and once again made no comment. A solicitor was present on both interviews. On 19 January 2000, the appellant was interviewed for a third time. On that occasion he produced a prepared statement stating that he had no knowledge whatever of the cigarettes, that they were not his property, and that he had no claim whatsoever over them. He indicated that he intended answering no further questions and had no information which would assist the Customs and Excise. 
12.	In his evidence the appellant repeated that that was his state of knowledge. He placed the blame on Hartley. He said that Hartley was the person who must have been aware that this was happening. Quite clearly a consignment of this quantity of cigarettes could serve no purpose unless the person who was going to receive it was aware of its contents. In the course of his evidence the appellant went on to say that he did not think that he had told his solicitor that Hartley was to blame, although by the time he was interviewed in January he gave the impression that Hartley was responsible. He said that he had mentioned that to them before Hartley was discharged in May. He said that he had made no comment in interview because he was surprised at the events, and possibly because of the conversation he had had with his solicitor. He thought that this was in his best interests and not because he had something to hide. 
13.	In his summing‑up the judge initially dealt with the issues of law, including the application of section 34, in a manner which Mr Harrison recognises cannot be criticised. If the judge had not returned to the fact that the appellant had made no comment at the interviews to which we have already made reference, there could be no criticism of the summing‑up. However, at page 17 of the transcript the judge returned to the subject: 
“He was asked about his interview and why he had said no comment. He said, 'I said no comment because I was surprised at the events, and possibly because of the conversation I had had with my solicitor. I was thinking that was in my best interests. I was not keeping quiet because I had something to hide. I feared I was in a serious position. I was a little bit, a lot frightened, very apprehensive. I knew what had gone on with Yang Ming, and I asked my solicitor whether to respond or not. He advised me to say no comment. I declined to comment'. 
Well, I am not going to go through, as I said I would not, these interviews, but you are entitled to take the view that it is quite extraordinary for some solicitor to suggest that there should be no comment at all .... at the beginning of the first one, without going through all the answers. 'I want to ask you a few basic questions,' says the officer Holgate, 'about your occupation ....'” (emphasis added)
14.	Mr Harrison criticises that comment. He says that the judge was referring to the practice of a solicitor and that the jury would naturally expect the judge to know a great deal more than the ordinary lay person about the practice of solicitors, which would have influenced them when they were considering whether the appellant was a person upon whose evidence they could rely or whose evidence they should reject. Later the judge said: 
“You may think that whatever any solicitor may or may not have advised, actually to fail to deny the matter which is the substance of the allegation against him is something which you should think about, but you must not speculate. 'Can you tell me anything about these consignments? 'No comment.' Well, I am not going to go through it all, but it is an essential part of the evidence, and a significant part, you may think. What significance it has is entirely a matter for you, but you have seen this very short statement, prepared statement, written, I am sorry. He says he was not sure whether he had written it or whether the solicitor had .... which is of course a complete denial [of] that with which he is charged, for the first time, not denying at the first interview, just no comment.” 
15.	Subsequently the judge returned to the same subject. It is apparent from the summing‑up as a whole that the appellant's response at the interviews is central to the judge's treatment of the whole case. 
16.	While at some stages the judge dealt with the matter perfectly satisfactorily, we come back to his comment about what happened being “quite extraordinary”. We have to consider whether that comment makes the summing‑up sufficiently defective as to result in the appellant not having had a fair trial and the conviction being unsafe. 
17.	We have concluded, with some hesitation, that this was a case where the appellant's credibility was vitally important. The judge's comment indicated to the jury that the explanation which the appellant was putting forward was “quite extraordinary”. We have come to the conclusion that we must set aside this conviction, albeit we consider that, apart from that comment, the summing‑up was perfectly satisfactory. The Crown's case against the appellant was very strong. Accordingly we allow this appeal. 
18.	Mr Lamb, do you have any application? 
19.	MR LAMB: My Lord, the Crown will seek a retrial so far as this matter is concerned. As your Lordship has already observed, there is a good deal of evidence. 
20.	THE LORD CHIEF JUSTICE: Mr Harrison, can you oppose a retrial? 
21.	MR HARRISON: Well, the facts go back to November 1999. The appellant has been in custody since 13 November until today's date. 
22.	THE LORD CHIEF JUSTICE: How long is that equivalent to in the case of the sentence? 
23.	MR LAMB: Almost a two‑year sentence. He has spent twelve months' in custody so far. He was sentenced to four‑and‑a‑half years. 
24.	THE LORD CHIEF JUSTICE: Yes, which was the subject also of an application for leave to appeal. 
25.	MR HARRISON: Yes, which was adjourned to this court. Those are the only two points I can think of ‑‑ apart from this perhaps. There plainly was a degree of paperwork in the case which could be placed before another jury. But some of the witnesses had to rely on memory. 
26.	THE LORD CHIEF JUSTICE: No, but the basic issues were not in dispute. 
27.	MR HARRISON: That is true. Those are the only three matters I can raise on that point. 
28.	THE LORD CHIEF JUSTICE: Mr Lamb, we grant you your application for a retrial. 
29.	MR LAMB: I am grateful. 
30.	MR HARRISON: Two other matters. The appellant is presently in custody. I do not know whether your Lordship would entertain a bail application now or direct that it should be made on some future date? 
31.	THE LORD CHIEF JUSTICE: Mr Lamb, what are the prospects of getting this case on quickly in this part of the world? 
32.	MR LAMB: My Lord, with the assistance of judicial comment, I anticipate that a trial lasting about a week is likely to come on, if the appellant were on bail, about March or so of next year. 
33.	THE LORD CHIEF JUSTICE: And if he is still in custody? 
34.	MR HARRISON: And if he is still in custody, one would anticipate early in the New Year, but I am afraid that it is some time since I last fixed a case which involved a week's trial with somebody in custody. Usually about March or April. 
35.	THE LORD CHIEF JUSTICE: Is this case going to be a week's trial with responsible counsel, as is obviously the position in this case? The position is, as I have indicated, that none of the basic facts is in dispute. What is the need for a week's trial? Mr Harrison? 
36.	MR HARRISON: I would have thought it is now about a three to four day trial. 
37.	THE LORD CHIEF JUSTICE: Is it? 
38.	MR HARRISON: We took up some time last time with a number of legal issues and a submission of no case to answer and so forth. 
39.	THE LORD CHIEF JUSTICE: You are not going to repeat a submission of no case to answer. 
40.	MR HARRISON: My Lord, given this court's remarks, no. 
41.	THE LORD CHIEF JUSTICE: What other legal issues are there? 
42.	MR HARRISON: I think very little. We discussed the admissibility of certain documents as we went along, but that was ruled upon. I should have thought it would be a three to four day case now. 
43.	THE LORD CHIEF JUSTICE: Maximum. 
44.	MR HARRISON: I should have thought so, yes. I know that in Manchester ‑‑ my learned friend is right ‑‑ the listing on bail, there is not much prospect before March. 
45.	THE LORD CHIEF JUSTICE: And before Christmas if it was a two or three day case? 
46.	MR HARRISON: Highly unlikely. I think they are listing short cases in February now and possibly into March. If the defendant is in custody they will make an effort, but there are a number of cases from my own experience where, even though the man is in custody, the case still has to be in February or beyond. 
47.	THE LORD CHIEF JUSTICE: Well, we are not going to grant you bail, which will not prevent you from making an application if you think that is appropriate, but we do think it should come on quickly. Speaking for myself, I would have thought, especially in Manchester that it is well capable of being dealt with in two days. 
48.	MR HARRISON: My Lord, yes.
49.	THE LORD CHIEF JUSTICE: How long for a fresh indictment to be perfected? 
50.	MR LAMB: Would your Lordship allow seven days? 
51.	THE LORD CHIEF JUSTICE: Yes, within seven days. Where will the retrial take place? 
52.	MR LAMB: Manchester, my Lord. 
53.	THE LORD CHIEF JUSTICE: Any bail application will have to be made there. 
54.	MR HARRISON: Yes, my Lord. 
55.	THE LORD CHIEF JUSTICE: Mr Harrison, I understand that the appellant has been granted legal aid for today on the basis that a statement of means should be lodged. 
56.	MR HARRISON: Yes. 
57.	THE LORD CHIEF JUSTICE: No statement of means has been lodged. 
58.	MR HARRISON: I am afraid that is so. I do not know why. Certainly the message was passed on to the solicitors. The appellant has been in custody for twelve months. I am not aware of him having any assets. It may be that if your Lordships considered granting an appellant's costs order, that would circumvent the problem. It was a successful appeal. 
59.	THE LORD CHIEF JUSTICE: Yes. So far as your costs of the appeal are concerned, we will give you a costs order. But with regard to the future, any application must be supported by a statement of means. 
60.	MR HARRISON: Yes. I anticipate that he will have to re‑apply for legal aid. 
61.	THE LORD CHIEF JUSTICE: Yes, and we make it clear that so far as your solicitors or yourself are concerned, it should be drawn to the court's attention that we have indicated that we cannot anticipate that any legal aid will be granted unless he does file a statement of means. 
62.	MR HARRISON: Certainly. 
63.	THE LORD CHIEF JUSTICE: The only other thing we would say is that it is very important in a case of this nature where the facts are agreed that responsible counsel and solicitors get together and as far as possible the facts which are not in dispute are agreed beforehand to save witnesses being called, to save the time of the court and to save a considerable amount of money. 
64.	MR HARRISON: Certainly, my Lord. 
65.	THE LORD CHIEF JUSTICE: We hope that the retrial will take place as soon as practicable. 
66.	MR HARRISON: Thank you, my Lord.