Case No: 2005/3941/B2 
Neutral Citation Number: [2006] EWCA Crim 1716
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 
Wednesday, 7 June 2006
B E F O R E:
LORD JUSTICE TUCKEY 
MR JUSTICE LEVESON 
MR JUSTICE DAVIS 

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R E G I N A 

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DAVID ADEYEMI ADETORO 
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MR A JENNINGS QC AND MR D EMANUEL appeared on behalf of the APPELLANT
MR A MENARY QC appeared on behalf of the CROWN
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J U D G M E N T
1. LORD JUSTICE TUCKEY: On 17th June 1998 in the Manchester Crown Court before His Honour Judge Owen and a jury, the appellant David Adeyemi Adetoro, was convicted of conspiracy to rob. He was sentenced to 26 years' imprisonment. 
2. On 21st June 1999 this court, (The Vice President, Wright and Kay JJs) dismissed the appellant's appeal against conviction but his sentence was reduced to 22 years. He now further appeals against conviction on a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. The referral is made on the basis that the trial judge's directions on the appellant's 'no comment' interview were defective in that he failed to direct the jury that they might only draw an adverse inference against the appellant if they concluded that his silence at interview could only be sensibly attributed to his having no answer or none that would stand up to scrutiny. This was not one of the ten grounds of appeal advanced by the experienced counsel who appeared for the appellant at the trial. Two further related grounds of appeal concerning the adequacy of the judge's section 34 directions have been referred to the full court by the Registrar and the appellant wishes to add a further related ground. 
3. For present purposes the facts do not need to be stated in any great detail. They were set out fully by the Vice President in his judgment. In short, between 10th June 1995 and 21st March 1997 a team of armed robbers carried out a series of robberies in and around Manchester. There were eight robberies of banks, a post office, a supermarket and cash in transit vehicles. Guns were fired and a lorry driver who rammed one of the getaway cars was shot and seriously injured. The Crown's case was that the conspirators had planned to commit another six robberies but they were aborted. The issue for the jury was whether the appellant was a party to the conspiracy. That conspiracy was admitted by at least three others with whom he was jointly charged. 
4. The prosecution case against the appellant was that he joined the conspiracy in about April 1996 after the first four robberies had been committed. The evidence adduced and relied upon by the Crown to link the appellant with the conspiracy was almost entirely circumstantial. It relied heavily on surveillance carried out by police upon the appellant and other members of the conspiracy over a course of almost a year. This evidence in short showed, so the Crown alleged, that the appellant had been involved in moving stolen cars into position in preparation for the robberies and consorting with his co-conspirators with whom he had been heard to hold incriminating conversations. This court in 1999 concluded that there was overwhelming evidence from which the appellant's involvement in the sixth and seventh robberies and two of the aborted robberies could properly and readily be inferred. We agree. Mr Jennings QC on behalf of the appellant accepts there was a strong case against the appellant. 
5. The appellant was arrested on 21st March 1997. When interviewed by the police he made 'no comment' replies to all questions. He subsequently gave evidence in his own defence at trial. His case was that he had been involved in buying and selling stolen cars but not in any conspiracy to rob. He gave detailed explanations to all the questions he had previously failed to answer at interview. He accounted for his association with his alleged co-conspirators and others and gave explanations for why he had moved certain vehicles on certain dates and for the incriminating conversations relied on by the Crown. He was asked why he had not given these explanations at the time of his interviews and said that he had not wanted to incriminate people in relation to stolen vehicles. 
6. In his summing-up the judge reminded the jury that the appellant had not answered questions in interview. He reminded them of the reason that the appellant gave for his silence and of some of the questions that were asked in the interviews and the answers to them which the appellant had given in evidence. His section 34 direction was as follows: 
"You must decide, whether in the circumstances, these facts to which I have referred, were facts which the defendant could reasonably have been expected to have mentioned in the light of that caution, which was repeatedly given to him, over that period from March to June. 
If you find that he could reasonably be expected to have mentioned those facts, then the law is, that you may draw such inferences as appear proper, from his failures to mention such matters when interviewed. 
I reminded you of the period of the interviews. Failures to mention such matters cannot on their own prove guilt, but you may hold such failures against the defendant when deciding whether he is guilty, that is to say, you may take them into account as some additional support for the prosecution's case. You are not bound to do so, it's a matter entirely for you to decide whether it is fair to do so." 
7. As we have already said, the ground upon which this appeal has been referred to this court is the judge's failure to direct the jury that they could only draw an adverse inference if they were satisfied that the real reason for his silence was that the appellant had no answer to the questions which he was asked or none which would stand up to scrutiny. 
8. On behalf of the Crown, Mr Menary QC rightly accepts that this omission amounted to a misdirection. The need for such a direction has been spelt out in decisions of the European Court of Human Rights and this court, although at the time of the trial the law was not as clear as it now is. 
9. Section 34 of the Criminal Justice and Public Order Act 1994 qualifies the right to silence by allowing the jury to draw such adverse inferences "as appear proper" from a failure to mention at interview facts relied on in defence at trial. If an explanation for the failure is given it is only proper to draw adverse inferences if the explanation is rejected and the jury conclude that in truth there was no explanation or none which would withstand scrutiny. Without such a direction the jury might think that they could draw adverse inferences even if they accepted the explanation. That would not be proper; it would be unfair. 
10. Given there was a misdirection, the question for us is whether it casts doubt on the safety of the conviction. Mr Jennings says that it does. He has referred us to 13 cases in which this court has quashed convictions for failure to give this or related section 34 directions. These cases show that the direction in question is considered to be fundamental and that failure to give it will usually be fatal to the safety of the conviction even if the case against the defendant is very strong. The reason for this is that the court cannot know whether the jury have drawn adverse inferences and, if so, what weight they have given to them. How is this court to be satisfied that if a proper direction had been given the result would have been the same? It might have tipped the balance. 
11. Mr Jennings, however, was driven to submit that in every case failure to give the direction would be fatal. We do not accept this submission. It is not supported by authority. Indeed there is authority to the contrary. In R v Chenia [2002] EWCA Crim. 2345 the judge had failed to give the direction in question, but this court decided that the conviction (in the fraud trial) was not unsafe. At paragraphs 58 and 59 of the judgment of the court, given by Clarke LJ, it said: 
"In our view the cases make it clear that whether there is a breach of article 6 depends upon all the circumstances of the case. Thus, a failure to direct the jury in a particular way may in some circumstances amount to a breach of article 6 whereas the same failure in other circumstances may not... 
In our view each case depends upon it is own facts. It does not necessarily follow from the fact that a direction which should have been given was not given that there has been a breach of Article 6 or that the convictions are unsafe." 
12. The diligence of Davis J over the luncheon adjournment has revealed another case in which this court did not quash a conviction although there had been a failure to give such a direction. The case is Petkar [2004] 1 Cr.App.R 270 which concerned solicitor's advice. There had been a wholesale failure to sum up properly on section 34 and yet this court held the conviction to be safe (paragraphs 86 to 87). So we must consider the present case on its own facts as no two cases are the same. 
13. There are, we think, good reasons for saying that the misdirection here was not fatal. This was not a case in which the appellant's explanation was that he relied on legal advice not to answer questions or a case where he gave some other collateral explanation for not answering questions such as that he was tired or ill. In such cases care obviously has to be taken to ensure that the jury only draw proper inferences because even if such an explanation is false that does not necessarily say anything about whether the defendant did or did not have an answer to the allegations he faced. But that is not this case. Here the appellant's explanation was inextricably linked to his defence which was: "I was involved with the others in buying and selling stolen cars, but not in armed robbery". In saying that he did not answer questions because he did not wish to implicate the others in this business, the appellant was necessarily advancing his own defence. The jury rejected this defence and it seems to us that in doing so they must also have rejected the appellant's explanation for his failure to mention facts at interview. 
14. Mr Jennings strenuously argued that the explanation for silence was collateral to the appellant's defence in the sense to which we have referred because saying "I did not want to implicate others" is different from saying "I was not involved in this offence". Put in this way there may appear to be a difference but what in essence is being said is "I was involved with the others in buying and selling stolen cars and that is why I wanted to protect them and why I was not part of any conspiracy to commit robbery". We do not therefore accept Mr Jennings' submission that there is any material difference between the explanation and the defence. As we have said, the jury rejected the defence and it seems to us must therefore necessarily have rejected the explanation. 
15. What were they to make of what they found to be a false explanation? It so happened that the summing-up did offer guidance about this in the shape of a so-called Lucas direction. Such a direction was unnecessary but it did fortuitously provide the answer to the question which we have posed. The direction the judge gave could only have related to lies told by the appellant in court. The jury were told that if they thought there was an innocent explanation for any such lie told by the appellant they should not hold it against him. So, as the jury must have concluded that the appellant's explanation for his silence ("I wanted to protect others") was a lie, following the judge's direction they would have had to consider whether there was an innocent explanation for it before they could have used it as supportive of the Crown's case. If therefore they did use his lying explanation against him, the jury must have concluded that the lie was not innocent - in other words the reason he was lying about why he had not answered the questions was because he had no answer to them or none which would withstand scrutiny. 
16. So on analysis if the jury in this case did draw adverse inferences against the appellant from his silence at interview, they could only have done so by following the same thought processes as they would have had to follow if the proper section 34 direction had been given. This is not therefore a case in which one cannot say what the jury would have done if such a direction had been given. Put shortly, if they did draw adverse inferences against the appellant following the directions which they were given they could only have done so if they considered that the reason for his silence was that he had no or no sustainable answer to the questions he was asked. 
17. For these reasons we conclude that the misdirection which is the subject of the reference does not affect the safety of the appellant's conviction. Our conclusion is fortified by this court's earlier judgment that the evidence against the appellant was overwhelming, a conclusion based (as we read the judgment) on the Crown's evidence alone, quite apart from any questions about adverse inferences. This was not therefore a case in which one could say that the correct direction would have tipped the balance. 
18. We can deal shortly with Mr Jennings other criticisms of the judge's section 34 directions because he realistically accepts that as stand alone grounds they do not render the conviction unsafe. He complains that the judge failed to direct the jury that they could only draw adverse inferences if they were satisfied that the appellant had a case to answer and then that they should not convict wholly or mainly on the basis of such inferences. What the judge said is: 
"Failures to mention such matters cannot on their own prove guilt, but you may hold such failures against the defendant when deciding whether he is guilty, that is to say, you may take them into account as some additional support for the prosecution's case." 
This direction followed the JSB direction current at the time of the trial (which had been updated in April 1998). Although it has since been refined it seems to us that it adequately makes the point that the prosecution must have a case before any inference can be drawn and that such an inference cannot of itself prove guilt: it can only add "some additional support" for the prosecution case. There was, therefore, no misdirection in these respects. 
19. Finally, it is said that the judge did not direct the jury that the appellant had a right to remain silent. Although he reminded them several times of the words of the caution "You do not have to say anything", it is argued that he undermined this by a comment when reminding the jury of one of the questions and the answer to it. The judge said: 
"'Were you one of the offenders? Answer: No comment.' He does not deny it." 
We do not think that the jury can have been in any doubt that the appellant was not obliged to say anything given the repeated references in the summing-up to the words of the caution which make this clear. The comment made by the judge does not suggest that there was any obligation on the appellant to answer. It suggests simply that if it was the fact that the appellant was not one of the offenders, this was the time to mention it. There was therefore nothing objectionable in the comment in our judgment. 
20. For those reasons this appeal against conviction must be dismissed. 
SMITH BERNAL WORDWAVE