No: 9702011/W5

IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Friday 6th March 1998
 
                    B E F O R E :

                THE VICE PRESIDENT
                 (LORD JUSTICE ROSE)

                 MR JUSTICE HIDDEN

                         and
 
               MR JUSTICE PENRY‑DAVEY
 
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                     R E G I N A
 
                       ‑ v ‑

               AIDAN MARTIN FITZGERALD
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
      Tel No: 0171 421  4040   Fax No: 0171 831 8838
        (Official Shorthand Writers to the Court)
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MR S TRIMMER appeared on behalf of the Appellant
MR I MORLEY appeared on behalf of the Crown
 
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                      JUDGMENT
             (As approved by the Court)
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                   Crown Copyright 
                               Friday 6th March 1998
THE VICE PRESIDENT:  On 28th February 1997 at Southwark Crown Court, this appellant was convicted of robbery and sentenced by His Honour Judge Butler QC, before whom the trial had been conducted, to 8 years' imprisonment.  He appeals against conviction by leave of the Full Court following refusal of leave by the Single Judge.
      In outline the circumstances were these.  The Abbey National building society in Waterloo was, on the prosecution case, robbed of a sum in excess of £50,000, on 22nd May 1996, by two men.  It was the prosecution case that the appellant was the driver of the getaway vehicle for those two and he had been followed by police motorcyclists, who saw the two men get out of the car, not very far distant from the building society, and disappear into some flats.  No money was recovered.  The appellant drove off, was chased by one of the motorcyclists and he, the appellant, almost knocked that officer off his machine.  The appellant, according to the prosecution evidence, then got out of the car, ran away but was chased, tackled and arrested.
      The appellant's defence was that the two robbers had never been passengers in his car at the relevant time, nor had he tried to evade arrest.  There was no scientific evidence linking him with the robbery. 
      In a little more detail, observations were being kept on the building society because of the activities of persons other than the appellant.  A Securicor van arrived there at 7.40 p.m. with a driver and two other employees of Securicor.  The two employees went into the building with cashboxes to be loaded into the automatic teller machines.  They left unlocked behind them the door to those premises.  They were followed in by two men, dressed as builders and wearing hard hats.  There was a scuffle, and the two robbers departed with the cashboxes containing £52,000.
      The two Securicor employees who gave evidence before the jury had said, in their initial statements, that in accordance with the proper procedures, they had locked the door of the premises behind them.  They also referred to one of the hard‑hatted men threatening them with a knife.  In subsequent statements, they admitted that they had not locked the door and said that no knife had been used.  They explained their earlier lies on the basis that because they had not followed proper procedures, their jobs would have been at risk.
      There was a fixed video camera in Lower Marsh, on the opposite side of the road from the entrance to the building society.  It recorded the approach of the two hard‑hatted robbers to the building society; it  contained no record of their departure from that building society.
      A woman police constable described seeing the two robbers leaving the building society and heading in the direction of Bayliss Road, which was in the same direction as where the appellant's car had been, admittedly, parked.  Detective Constable Tohill said he saw two men carrying holdalls run from Lower Marsh into Bayliss Road and then into Collins Street and he saw them get into a beige Sierra motorcar, the registration number of which he gave, which was backed up against bollards there.  The Sierra drove off.  The Sierra was undoubtedly a car which the appellant was driving on this evening.  Another police constable described the two hard‑hatted men running across from Bayliss Road and getting into the Sierra.  There was similar evidence from Constable Webb, who was one of the police motorcyclists.
      A further constable described joining in the chase, and seeing the two passengers get out of the beige Sierra in Pocock Street, and then disappear into flats.
      Two men were subsequently arrested coming out of a public house.  They were questioned but no charges were made against them.  There was evidence from Constable  Webb that the Sierra driver appeared to have seen him and accelerated straight at him, but he managed to escape by driving onto the pavement.  Eventually the Sierra was stopped in Nelson Square.  The driver, who was undoubtedly the appellant, got out and ran.  He was chased, tackled and arrested.
      When he was interviewed by the police, the appellant made no comment to the questions asked of him.  That interview was preceded by a statement by his solicitor which is at the heart of this appeal and which was in these terms:
"Can I make a short statement at this stage.  Having discussed the matter with Mr. Fitzgerald and I am concerned that the possible involvement of other parties in this matter may prevent him from putting his defence fully and frankly.  I have therefore advised him not to answer any questions at this stage and this advice he has accepted." 
 
    To that we shall later return.
      The appellant gave evidence before the jury that, on the day of the robbery, he had left home, a little before 7.30 p.m., to meet some friends in a public house.  He had gone there in the Ford Sierra which he had bought a day or two before and he entered that public house 20 minutes or so before the robbery.  The two men he was due to meet there did not turn up, but he spoke to his daughter, who was baby‑sitting nearby.  He  turned his car round to see if he could see his daughter in a playground nearby and that was why it was in the position with its back to the bollards, from which, it is common ground, he eventually drove off.  He said that he decided to drive to the Nelson public house, which was other than that in which he had arranged to meet his two friends, to see if they were there.  He started off and eventually stopped in Pocock Street, at the point where the police officers said they had seen the two hard‑hatted men get out of his motorcar, but no one had got out of his motorcar at all.  He knew nothing of any men in hard hats.  He had seen a motorcyclist dressed in black, with a full face helmet, following him. He did not understand him to be a police officer, but was concerned that he might be connected with some sort of revenge attack upon him following an incident some weeks before when a man had threatened, in a public house, to kill him.  He denied trying to hit the motorcyclist with his motorcar, but he agreed that he had got out of the car and run and he had seen the motorcyclist come chasing after him.  He had said nothing in interview to the police officers because of the advice given to him by his solicitors.
      A submission was made to the trial judge that that which the solicitor had said, at the outset of the  interview, should be excluded from the evidence which the jury heard, on the basis that it was a highly unfortunate comment, emanating entirely from the solicitors's own mind.  It was not, in any sense, an admission made by the defendant, and it had no probative value, but was only prejudicial and only the defendant, not his solicitor could waive privilege in relation to it.  The judge ruled that there was no reason to exclude the statement from the evidence which the jury heard.
      That ruling gives rise to the first of the grounds of appeal pursued by Mr. Trimmer, in an attractive submission to this Court, which is to this effect:  the statement was an expression of personal concern by the solicitor, and was therefore of no relevance.  In any event, it was no more than hearsay, indicating, prejudicially, a connection between the defendant and the other two men who at the time that the statement was made were in custody.
      There was, submitted Mr. Trimmer, no exception to the hearsay rule within the principle of R v. Christie [1914] A.C. 545, because that which was said was not an accusation, still less did it call for an answer from the defendant.  Mr. Trimmer submitted that, as the privilege in communications between solicitor and client is that of the client and not that of the solicitor, it  is only in clear circumstances that the client can be taken to have waived that privilege, and such clear circumstances did not arise by reason of the events which occurred in the present case.
      Furthermore, submitted Mr. Trimmer, the summing‑up on this aspect of the matter was defective in one respect.  Mr. Trimmer accepted that the judge directed the jury in accordance with the decision of this Court in R v. Condron [1997] 1 Cr.App.R. 185, as to the manner and circumstances in which the jury could properly draw inferences adverse to the defendant, if they thought it right to do so, from his silence when questioned.  But, said Mr. Trimmer, as the statement of a solicitor could only have been admissible in evidence, either on the basis that it was said in the presence of the defendant and he should have responded to it, or, on the basis that it was the statement of his agent, the learned judge should, in addition to giving the directions which he did, have given further directions as to the circumstances in which the jury were entitled to draw inferences from the statement, having regard to those alternative bases founding in law the admissibility of that statement.
      He also drew attention to a passage in the summing‑up at page 14B, where the learned judge repeated  the terms of the statement made by the solicitor and, said Mr. Trimmer, that was to invite the jury to place inappropriate emphasis on what the solicitor had said.
      Mr. Trimmer's second submission was that the learned judge failed to direct the jury adequately, or at all, as to the significance of the submissions canvassed, in particular, on behalf of the defence, but also by the prosecution, in their respective final speeches, of the possibility that there had been no robbery at all.  It was submitted, on behalf of the defence, that if the Securicor employees were merely playacting, contrary to what they ultimately said, it could not be said that they had been put in fear:  fear being a necessary ingredient of the offence of robbery, the only offence which could have been committed would have been not robbery but conspiracy to steal.
      Mr. Trimmer submitted that the learned judge should have, in his summing‑up, set out the ingredients of the offence of conspiracy to steal, and the significance of playacting by the Securicor employees, if the jury took the view that such playacting might have occurred.
      We are unable to accept that submission.  The judge, on a number of occasions in the course of his summing‑up, repeated to the jury that the facts in the  case were for them and not for him to decide.  In the context of one of those directions, at page 4G of the summing‑up, he said this:
"Although it is a matter for you as an issue of fact, and as I have told you all issues of fact are for you, you may think on the evidence that you have heard that it is perfectly obvious that there took place at the Abbey National a robbery in which
£52,000 was stolen from the Securicor men.  Of course, if there was no robbery, then this defendant can be guilty of nothing because he is said to be a part of the robbery.  But looking at the totality of the matter and using your common sense, not if I may say so going down all sorts of alleyways and paths, but looking broadly at what took place, it may be that you would have no doubt at all that there was that robbery." 
      The submission is made that in that passage, in particular, the learned judge effectively withdrew from the jury the question of whether there was a robbery or not.  That we do not accept.
      In our judgment, the terms of the summing‑up, as a whole, indicated plainly to the jury that it was for them and not for the judge to decide what had happened. He made it plain to them that unless they were sure that a robbery had taken place, they must acquit the defendant.  In the light of those directions, as it seems to us, there is no substance in the second of Mr. Trimmer's submissions.
      His third submission relates to the video film. As we indicated, there was nothing on that video to show the departure of the robbers from the Abbey National  building society, although it showed their arrival. Mr. Trimmer draws attention to the evidence from two witnesses, Mr. Fabian and Constable Tohill, which suggests that the robbers retraced their footsteps on the side of the road where the video was and therefore, it is said, if the camera had recorded their arrival, it also should have recorded their departure.
      The submission is made that that evidence materially undermined the prosecution eye witness evidence as to the departure of the robbers, and the judge should have left to the jury the significance of the video in that respect.  It is to be noted that the jury saw the video.  We are told by Mr. Trimmer, and we accept, that the video was a fixed video which performed what he described as "jumping continuous movement".
      The learned judge, having referred to the evidence of Detective Constable Tohill as to the route followed by the robbers on departure from the building society, at page 14D, said this:
"The film that you saw and which I saw, which I commented on at the time, was not likely to win many awards.  It really seemed, you may think, to have added absolutely nothing to the case whatever.  But what you make of it is a matter for you." 
In our judgment, that direction, bearing in mind that the jury had seen the video and it was for them to assess the validity of that which was not shown in the  video, as well as that which was shown in it, in the context of all the other evidence in the case, including the eye witness evidence of a number of police officers, was an appropriate direction.  We do not accede to
Mr. Trimmer's submission on that ground.
      There remains his first submission.  As to that, Mr. Morley, for the Crown, submits that the solicitor's comment was not hearsay, because it was a statement made in the presence of the defendant which, by his conduct, he adopted, in that, although he had heard what was said by his solicitor, he did not resile from what was said. Furthermore, it was a statement expressly made on the defendant's behalf, by his solicitor, following a consultation with him and, that being so, absent any further explanation, he should properly be regarded as having agreed with it.
      Mr. Morley pointed out that no application was made to call explanatory evidence, either from the defendant or, more pertinently, from his solicitor, in relation to the statement, either on the voir dire, or before the jury.  In the absence of such an account, explaining that which had been said in the presence of the defendant, the statement of the solicitor was properly admitted in evidence.
      So far as privilege is concerned, the implication  from what occurred, and the sequence of events to which we have referred, submitted Mr. Morley, was that the defendant was impliedly waiving privilege, by reason of the consultation which he had had with his solicitor immediately before the statement was made.  Again, submitted Mr. Morley, if that was not the case, one would have expected evidence to be called on the voir dire to deal with that matter.
      So far as the contention by Mr. Trimmer that what the solicitor said was no more than a personal opinion is concerned, Mr. Morley submitted that, whether it was a personal opinion or not, it was admissible because the appellant, by his conduct, adopted that which his solicitor said in his presence, without dissent.
      So far as the exercise of the judge's discretion is concerned, Mr. Morley submitted that the statement was not irrelevant because it gave a reason for the defendant's silence in interview and it was probative of the reason given for the silence which was itself an issue in the case in relation to whether inferences were or not properly to be drawn against the defendant.  That being so, submitted Mr. Morley, the jury were entitled to consider the inferences which could be drawn from the appellant's silence, in accordance with section 34 of the Criminal Justice and Public Order Act 1994. 
      So far as the lack of directions in relation to waiver and agency are concerned, Mr. Morley submitted that those, if given, could only have served to confuse the jury and, in any event, there was no evidential basis emanating from the defence to require such directions to be given.
      In our judgment, Mr. Morley's submissions on this aspect of the case are correct.  If a solicitor, following consultation with his client, chooses in the presence and hearing of his client to say something expressly for the record as to why his client is going to remain silent in interview, it seems to us that it would be a negation of common sense if it were the case that such a statement were inadmissible.  As was pointed out in R v. Argent [1997] 2 Cr.App.R. 27, at page 35G, the jury is concerned not with the correctness of a solicitor's advice, but with the reasonableness of the defendant's conduct in all the circumstances including the advice given:
"There is no reason to doubt that the advice given to the appellant is a matter for the jury to consider." 
That was the judgment of the Lord Chief Justice, Lord Bingham of Cornhill.
      In our judgment, the law is not at variance with common sense in this matter.  The defendant, by his  silence and by not dissenting from that which his solicitor said in his presence immediately following a consultation between the two of them, adopted that which his solicitor in these circumstances said.  The circumstances were such that he waived privilege in relation to that which was said.
      In our judgment, the learned judge was therefore right to rule that this statement was admissible in evidence before the jury.  Accordingly this ground of appeal also fails, and this appeal against conviction must be dismissed.

  THE VICE PRESIDENT:  Following refusal of leave to appeal against sentence by the Single Judge, the Full Court which gave leave in relation to conviction referred to this Court the renewed application for leave to appeal against sentence.  Mr. Trimmer, in an admirably succinct submission, says that for the actual robbers in this offence, a range of sentence between 7 and 10 years, following trial, would have been appropriate.  But, having regard to the role played by the applicant as getaway driver, the 8 year sentence which was imposed on him was arguably excessive.
      It is right to say that the applicant, who was born in April 1959, and is a married man with children, has no previous convictions for offences of this kind. The offences of which he stands convicted were committed many years ago; two were of dishonesty, one was of possessing an offensive weapon and in relation to each of those matters he was fined.
      The question is whether the sentence passed by the learned judge was arguably excessive.  It is to be noted, as we indicated when giving judgment in relation to the appeal against conviction, that, although the applicant was the getaway driver rather than one of those who went into the building society, he drove with a degree of determination which included driving at one  of the police officers who was attempting to apprehend him.
      Given Mr. Trimmer's correct submission that a range of 7 to 10 years would have been appropriate following a trial for those who went into the building society, it cannot, in our judgment, be argued that 8 years for the applicant's role was excessive. Accordingly we refuse leave to appeal against sentence.

MR TRIMMER:  It occurs to me that the point, the status of the interview comment made by a solicitor, was a matter of general public importance and will recur time and time again.  It has a degree of novelty about it. It is my intention, whether this is the appropriate time, to draft a question and to invite your Lordships to certify.
 
THE VICE PRESIDENT:  We are certainly not going to certify a question we have not seen, that is for sure.
 
MR TRIMMER:  My Lord, obviously.
 
THE VICE PRESIDENT:  If you would like to return next week, while this Court will be in its present constitution, we shall be pleased to see you.  But you must not construe that as indicating that we shall decide favourably.