Case No: 2003/01553/C3
Neutral Citation Number: [2003] EWCA Crim 3108 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT INNER LONDON
(JUDGE CAMPBELL)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 6 November 2003
Before :

LORD JUSTICE SCOTT BAKER

MR JUSTICE HENRIQUES

and 

MR JUSTICE STANLEY BURNTON

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Between :

	Dwaine Turner	Appellant	
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	Regina	Respondent	

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(Transcript of the Handed Down Judgment of
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Mark Hardie for the Appellant
Ian Paton (instructed by The Crown Prosecution Service) for the Respondent

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Judgment
Lord Justice Scott Baker

1.	Dwaine Turner, who is aged 29, appeals with the leave of the single judge against his conviction for wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861.
2.	He was convicted before Judge Campbell and a jury in the Crown Court at Inner London on 27 February 2003. He was subsequently sentenced to 32 months imprisonment and an additional three months for driving whilst disqualified. There is no appeal against sentence.
3.	Two other defendants also received 32 months sentences for the same offence. Maurice Brooks pleaded guilty at the start of the trial. Calvin Coley was convicted on the same occasion as the appellant.
4.	In outline the background to the case was this. In August 2002 Mrs Margaret Morin, who lived in a block of flats in Clapham, London, was in a sexual relationship with two men. The first was Brooks, by whom she had had four children and the second was Ramsey, the complainant, whom she had met the previous autumn. According to Ramsey, Brooks resented his relationship with Mrs Morin. The appellant and Coley were cousins, both being nephews of Brooks. The prosecution case was that Brooks, Coley and the appellant jointly intended to cause grievous bodily harm to Ramsey and that the appellant and Coley assisted their uncle, Brooks, in a revenge attack on Ramsey. The appellant’s active role was confined to a fight in Mrs Morin’s flat.
5.	The appellant’s and Coley’s defences were essentially the same namely that neither intended that Ramsey be injured nor did he take any part in the infliction of the injuries. Rather, each of them sought to break up the Brooks/Ramsey fight.
6.	Ramsey’s evidence was that on 19 August 2002 Brooks called at Mrs Morin’s block of flats and became abusive and threatening when she told him that Ramsey was in the flat. Brooks then left. Later, about 3.30 pm, Ramsey was in the flat’s sitting room when Coley, Brooks and the appellant came in. Coley hit him with a golf club and Brooks hit him with a crowbar. Ramsey dropped into a chair and wrestled with the appellant who hit him with something heavy wrapped in a plastic bag. Ramsey bled heavily. His three attackers then ran out of the flat. He pursued them down the stairs and caught up with Brooks outside. As they fought together, Coley came back and hit him with the golf club. The appellant also came back and tried to pull him (Ramsey) off Brooks. The three then left in a car. By then, he had the crowbar and, as the car left, he hit the rear windscreen with it.
7.	In cross-examination by counsel for the appellant, Ramsey said that the appellant did not try and separate him and Brooks in the flat or get between them, but he agreed that the appellant took no part in events outside the flat. 
8.	Mrs Morin said that it was the appellant who had the golf club and hit Ramsey with it in the bedroom of the flat. Coley hit him with a hammer. Brooks did not do anything. She denied that Ramsey had been held in a headlock. She did not remember events outside.
9.	Four eye witnesses of events outside gave evidence that two men had attacked a third.
10.	Shortly after the car had left the block of flats it was stopped by the police. The golf club was in it, in pieces. Brooks was excited and said that he had done “him” with an iron bar. Coley said he had dragged Brooks away from Ramsey. The appellant (who denied being the driver) said that Coley and he had tried to separate them. Both he and Coley said Ramsey had broken the windscreen. Ramsey was the only one of the four to sustain serious injury. 
11.	There was heavy blood staining of the appellant’s clothing. Expert evidence was given by Miss Bridget March about the blood-staining. She interpreted the staining to be consistent with the appellant having held Ramsey in a headlock; and that was the only interpretation that she was able to give. This was not challenged by the prosecution.
12.	Both the appellant and Coley were interviewed. Coley described the events and what he said in interview was largely repeated by him in evidence at the trial. The appellant answered nearly all the questions in interview with the words “No comment” on the advice of his solicitor. During the course of the interview his solicitor read out a pre-prepared statement on behalf of the appellant in which he described the events. He denied any fault on his part. Neither Brooks nor Coley had mentioned anything beforehand about committing a crime. He saw Ramsey attack Brooks. He, the appellant, broke up the fight, which accounted for the blood on his clothes. He made no comment on supplementary questions that the police put to him.
13.	At the trial Coley, a man of previous good character, said that Brooks had been in an aggressive mood towards Mrs Morin, so he, Coley, decided to go and see her at her flat. The appellant agreed to drive him there. Brooks decided to go too. Because of his own presence, Coley expected no trouble from him. In the flat, Ramsey attacked them with a golf club and Brooks (to Coley’s surprise) attacked Ramsey with a crowbar. The appellant hit nobody. The appellant and Coley got Brooks out of the flat and downstairs, whereupon the appellant left the immediate scene and Ramsey attacked Brooks. Coley pushed Ramsey away and they all left by car.
14.	The appellant gave evidence and accepted that he had been the driver and that he was at the time disqualified from driving due to a conviction for excess alcohol. While he knew Brooks to be emotional, he had never known him to be violent. Under pressure from Brooks, he agreed to take him and Coley down to Mrs Morin’s flat – as he thought, to pick up Brooks’ youngest child. Having parked the car on arrival, he was the last into the flat and in the sitting - room saw Ramsey and Brooks fighting, with Ramsey bleeding. He tried to part them; he put Ramsey into a headlock (which produced the heavy blood-staining on his own clothing) and all three of them fell onto the sofa. Coley was also trying to part Ramsey and Brooks. They pushed Ramsey into the bedroom beyond. The appellant then said, “Let’s go” and he left. While briefly waiting at the car, he heard a scream and saw Ramsey with a crowbar. The other two arrived and they left in the car, the rear windscreen having been broken as they drove off. He accepted that he had lied to the police when he said he was not the driver; he had understood that Brooks would say he (Brooks) had been driving.
15.	There are two grounds of appeal. The first is the judge’s treatment of the appellant’s failure to answer questions in interview, the second the judge’s treatment of the blood-staining evidence.
16.	Before the judge summed up, counsel, entirely correctly and in the absence of the jury, raised the question of appropriate directions to the jury and in particular a direction relating to the appellant’s failure to answer questions in interview. Prosecuting counsel said:
“I am perhaps just being super-careful. The principal matter will be the direction, perhaps, that your Honour must give in relation to Mr Turner and his failure to respond to the questions in interview. There is also the Section 36 special warning. I believe it to be the case that where there is a Section 36 warning in the context of a Section 34 interview, that the Section 36 is wrapped up and covered by, in effect, the Section 34 direction.”
Judge Campbell: “Yes”.
After some further discussion Judge Campbell said:
“Obviously I shall have to give a Section 34 direction. It will be tailored to include, of course, the fact that he was advised, and the usual direction that the choice is his, but the fact that he was acting on legal advice is one factor that the jury must take into account when they decide whether to draw an adverse inference. Of course, it is a situation – not that he gave no explanation – when the jury will need some explanation as to the fact that he provided a prepared statement, and I will be telling the jury of the difference between a prepared statement and not answering questions on it, as opposed to giving a full interview.
Mr Hardie then said:
Your Honour, obviously the mischief is not so much a failure to answer questions, but a failure to mention facts. So, I would ask your Honour to have that in mind and that facts were obviously mentioned in the prepared statement so that- 
Judge Campbell said:
Some facts were mentioned at the scene, of course.”
17.	This passage in the discussion shows that counsel flagged up to the judge that the mischief aimed at by the sections was not failure to answer questions per se, but failing mention facts subsequently relied upon at the trial. The circumstances of this particular case had to be considered in the context that the appellant had handed in the prepared statement. The statement ran as follows:
“I, Dwaine Turner, make this statement for my Solicitor to read out for me. I did not assault anyone or help anyone do so yesterday. I did not participate in any crime. I did not have any metal object or weapon in my possession. I am not aware if my uncle/cousin had anything. I am short sighted and I didn’t have my glasses on. I did not drive the others anywhere yesterday. I understand that my uncle was to visit Margaret Morin – neither he nor my cousin mentioned anything about committing a crime. They left the car and went to the flat before me. I followed them. When I got there the door was open – I was shocked to see blood. I saw Mr Ramsey whom I don’t know, assault my uncle with something. I saw them fight. I broke up the fight as I didn’t want anyone to get hurt, that’s why I had blood on my clothes. I did not assault anyone. I got out of the flat expecting the others to follow. I went and sat in the passenger seat of the car. My cousin came out later, my uncle was chased out by Mr Ramsey who had a metal object. He threw this at the car. My fingerprints will not be on any of the objects found in the car as they don’t belong to me and I did not touch them -  and its signed by my client and dated today’s date the 20th of August.”
18.	When the judge came to sum up he said:
“Mr Turner, unlike Mr Coley, did not answer questions when he was interviewed. He was asked questions about the incident but he said, “No comment”, to virtually every question put. How do you assess the relevance of that? 
Well, at the start of every interview a person is cautioned. Mr Turner was told and you have heard the words that he did not need to answer questions, but he was further told that it may harm his defence if he did not mention when questioned something which he later relies on in court, and anything he did say would be taken down in evidence. Those are the words of the caution at the start of the interview, and during the course of the interview he was given a special caution. He was asked about the blood and to account for that, and again he made no comment in interview. In this case, having declined to answer questions Mr Turner has given evidence and he has put forward his full version of what he said. The prosecution say that his failure to answer questions in interview is because, at the time he did not believe when questioned that his account would stand up to scrutiny.  Because, say the prosecution, it is a false account. If you are sure that this is the case then his silence in interview is a factor which you may feel will count against him. If you did draw such a conclusion, you must not convict him solely on the fact that he did not answer questions in interview, but it can be something that you feel gives additional support to the prosecution case when you are deciding whether his account is, or may be, true.
It is for you to decide whether to hold his silence in interview against him. You will do so only if you think it is fair and just. Ask yourselves, perhaps, three things. Firstly, would you have expected Mr Turner reasonably to have been prepared to answer questions in interview about this account. Indeed, perhaps you would have thought that he would have been keen to do so.
Secondly, do you think that the only common sense conclusion you can draw is that the reason Mr Turner did not answer questions is that his account was untrue and he is not willing to have it tested by questioning.
Thirdly, are you satisfied that the prosecution evidence, putting his silence in interview to one side, was strong enough to give rise to a case to answer, justifying questioning.
The defence say to you do not draw an adverse conclusion from his silence in interview because he was following, as indeed is clear, the advice of his legal advisor. You will of course take into account the fact that his solicitor advised him to say nothing, but it does not automatically prevent you from reaching an adverse conclusion from his silence.
The choice of whether or not to answer questions is his choice. He can listen to his solicitor’s advice, but ultimately the choice is his, and of course you do not know what he told his solicitor, or why the advice was given. In this case he gave a prepared statement and you will look at that statement and ask yourselves why he made the choice, on his solicitor’s advice, not to answer questions about details of what apparently he was saying was his account.
The prepared statement that you will look at is not a substitute for answering questions in interview, it is a factor you will take into account. If, having weighed up all these matters, you do decide that Mr Turner could reasonably have been expected to answer questions then, if you think it fair, you can add this to the prosecution case against him.
If you think, however, that it may be the case that he may have been acting reasonably to follow the advice of his solicitor and remain silent, then you do not have to hold his silence against him and you decide the case on the other evidence”
19.	The relevant terms of the Criminal Justice and Public Order Act 1994 are as follows:
“(1) Where, in any proceedings against a person for an offence, evidence is given that the accused –
a)	at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
b)	on being charged with the offence or officially informed that he may be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
(2) where this subsection applies-
 ………..
 d)     the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.”
20.	Section 36 permits an adverse inference to be drawn when an arrested person fails or refuses to explain, in this case, blood on his clothing. The two sections overlap but there are significant differences. For present purposes the relevant differences are:
a)	s.36 only applies after the appellant has been arrested;
b)	the appellant has to be told the police believe the blood on his clothing is attributable to his involvement in the assault and be asked to account for it;
c)	the appellant has to be told in ordinary language the effect of the section if he does not respond to the question;
d)	s.36 contains no qualifying provision of reasonableness.
21.	The authorities make clear the need to identity the specific facts not mentioned but subsequently relied on. In R v Gill C.A (unreported) 21 July 2000 Bracewell J said at para 10:
“The Court of Appeal has repeatedly emphasised the importance of accurate directions in the face of the defendant’s silence and the specimen direction of the Judicial Studies Board……draws attention to the problems caused by the operation of (s.34), and the desirability, before a direction is given, to discuss the matter with counsel before final speeches.”
And a little later:
“It was incumbent on the judge to identify the fact which the appellant was relying on in his defence……..”
22.	In R v  Reader C.A (unreported) 7 April 1998 Buxton L.J. drew attention to the need for the judge to identify to the jury the facts concerned and that the section only permitted the drawing of inferences from the failure to mention those facts, rather than from a general failure to answer questions.
23.	Then in R v Lewis [2003] EWCA Crim 233 Longmore L.J. referred to the judge’s failure to specify to the jury what the precise fact or facts were about which the defendant had been asked in interview, which he did not mention, which he could have been expected to mention and which he had mentioned in his evidence. He said the s.34 direction was a matter that needed considerable care and thought, preferably by counsel and certainly by the judge when he came to sum up. He said the court was reluctantly compelled to hold that there was a misdirection because the jury was not informed of what the facts were from which it would be legitimate for them to draw an inference. He added that it would not be in many cases that a court could be satisfied a conviction was safe if there was a misdirection on an important matter like s.34.
24.	The present case is concerned with a slightly difference aspect of the same problem namely the situation when a defendant hands in a pre-prepared statement to the police and refuses to answer questions. In our experience this is becoming an increasingly common practice. It was considered recently by this court in R v Knight [2003] EWCA Crim 1977. Laws L.J. said the court had come to the clear conclusion that the aim of s.34(1)(a) did not include police cross-examination of a suspect on his account over and above the disclosure of that account. The aim of the section was to encourage a suspect to disclose his factual defence. The court in that case made a number of observations about the handing in of pre-prepared statements. First, the law as described in R v Pearce (1979) 69 Cr App R 365 still applies. The prosecution cannot be required to adduce as part of their evidence a pre-prepared wholly self-serving statement. As the Lord Chief Justice said in Pearce at 370:
“Although in practice most statements are given in evidence even when they are largely self-serving, there may be a rare occasion when an accused produces a carefully prepared written statement to the police, with a view to it being a part of the prosecution evidence. The trial judge would plainly exclude such a statement as inadmissible.”
25.	Secondly, of itself the making of a pre-prepared statement gives no automatic immunity against adverse inferences under s.34. Laws L.J emphasised this point noting that such a statement is not an inevitable antidote to later adverse inferences. It may be incomplete in comparison with the defendant’s later account at trial or it may be inconsistent with that account. This court notes a growing practice, no doubt on advice, to submit a pre-prepared statement and decline to answer any questions. This, in our view, may prove to be a dangerous course for an innocent person who subsequently discovers at the trial that something significant has been omitted. No such problems would arise following an interview where the suspect gives appropriate answers to the questions.
26.	Third, the mere receipt of advice to remain silent does not without more, immunise the suspect from adverse inferences under s.34. Such advice does not mean that it is in principle not reasonable to expect the suspect to mention the facts in question. What is reasonable depends on all the circumstance. There must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police. As Laws L.J. said: “Solicitors bearing the important responsibility of giving advice to suspects at police stations must always have that in mind.”
27.	The main thrust of the appeal advanced by Mr Hardie, who has appeared for the appellant before us as he did at the trial, is that the judge failed to identify the unmentioned facts and to make it clear to the jury that it was the failure to mention these facts rather than simply answering no comment that could give rise to the drawing of an inference.
28.	  Mr Paton, for the Crown, accepts that the judge’s direction on s.34 did not conform to the Judicial Studies Board model direction and that it was incomplete, imprecise and deficient. Slavish adherence to JSB model directions is neither required nor, necessarily, appropriate. Directions have always to be tailored to the facts of the particular case. However, particularly in a difficult area such as s.34, they are an important starting point for ensuring that everything is covered that ought to be covered and that the general approach is correct.
29.	Mr Paton’s submission is that there was a wealth of evidence against the appellant and that the defective direction does not render the conviction unsafe.
30.	In our view the basic deficiency in the direction is that it gave the jury the message that it was the failure to answer questions that could justify the drawing of an inference. The judge emphasised this by saying that the prepared statement was not a substitute for answering questions in interview whereas the crucial issue was whether the appellant relied on matters at trial that he had not mentioned in the statement when he could reasonably to be expected to have done so. Unfortunately, the judge repeatedly directed the jury that they could hold the fact against him that he had answered “no comment”. In our judgment there is a real risk that the jury drew an adverse inference from the fact of a failure to answer questions alone.
31.	What the judge should have done was to compare the evidence that the appellant had given at the trial to see if there was any fact relied on that he had not mentioned in his pre-prepared statement. Only if there was, was there something on which the jury was entitled to draw an adverse inference and the judge should have given the jury a specific direction about it.
32.	Such a comparison was conducted in submissions before us. Mr Hardie’s argument was that the statement was essentially the same as the appellant’s evidence at the trial. It should be noted that inconsistencies between the appellant’s statement and his evidence do not necessarily amount to relying on a fact not previously mentioned.
33.	Broadly, the appellant’s statement did accord with his evidence. Two areas were identified where it did not. Ordinarily, where the Crown is proposing to invite the jury to draw an inference under s.34 the alleged discrepancy should be ventilated in cross-examination so that the defendant has an opportunity to deal with it. We do not have a transcript of the evidence in the present case so the precise evidence remains somewhat unclear.
34.	The first area was the purpose of the visit. In his statement the appellant said he understood his uncle was to visit Margaret Morin. In evidence he said he thought the purpose was to pick up the youngest of the children from Mrs Morin, she being mother of Mr Brooks’ children. The second was that he was unaware whether either of the other two defendants had a weapon; he was short sighted and did not have his glasses on. At the trial he said he saw Coley with a stick in his hand. The judge did not pinpoint either of these points as providing the basis for a possible s.34 inference, nor indeed was he invited to do so.
35.	Where there are differences between what a defendant says in a pre-prepared statement and the evidence he gives at the trial it may be that the jury would be better directed to consider a difference as constituting a previous lie rather than as the foundation for a s.34 inference. It will depend on the precise circumstances. What matters in the present case is that the judge failed to identify any unmentioned facts that might give rise to a s.34 inference but instead left it open to the jury to conclude it was the failure to answer questions generally that might trigger an inference.
36.	Mr Hardie points out that even if the judge had identified a failure by the appellant to mention a fact relied on in his defence, it was also necessary for the jury to consider whether the appellant could reasonably have been expected to mention that fact. See R v Argent [1997] 2Cr App R 27 at 32-33.
37.	Mr Hardie’s next complaint is of the judge’s treatment of the solicitor’s advice. The law is in our view accurately summarised in the 2003 edn of Archibold at para 15-329 and it is unnecessary to repeat it here. Mr Hardie’s submission is that the judge failed to tell the jury that the fact that the appellant was acting on legal advice (an he plainly was) was an important consideration per para 5 of the J.S.B. direction. He submits the judge was wrong to refer to the failure to call the solicitor to explain the reason for the advice. This is a delicate area in which care has to be taken to avoid crossing the boundary of professional privilege. We do not think the judge can be criticised for the way in which he put it to the jury. He told the jury, appropriately, that following the solicitor’s advice did not automatically prevent the drawing of an adverse inference and as far as we are aware there was no evidence either from the appellant or elsewhere, which the judge did not draw to the jury’s attention, that might have been relevant to the question.
38.	The second ground of appeal concerns the judge’s treatment of the evidence of blood on the appellant’s clothing. The judge summed up as follows:
“You have heard evidence from the forensic scientist about the blood. Again, this went on for some time, but where does it leave you? It’s a matter for you. There was blood on the clothing, there was some heavy blood staining in the case of Mr Turner, particularly heavy bleeding on the right hand side. The defence say that is consistent with the account that he gave you of restraining Mr Ramsey but, again you may feel it could be consistent also with the version put forward by the prosecution.”
39.	The appellant was asked when they were stopped by the police near the scene about the blood on his clothing. He said he was not injured and the “blood was from his uncle and the man when I pulled them off”. Later when interviewed he was given an appropriate s.36 warning before answering “no comment”. He said in his pre-prepared statement that he got the blood on his clothes when breaking up the fight. His account has therefore been consistent throughout.
40.	Mr Hardie’s complaint, however relates not to any s.36 point but to the impact of Miss March, the expert’s, evidence. The Crown’s case is that the blood staining evidence was ambivalent or neutral and that the judge correctly so summarised it in the passage to which we have just referred. Mr Hardie’s submission is that Miss March’s only explanation for the very extensive heavy contact staining on the side and back of the appellant’s jeans was that he had Mr Ramsey in a headlock which was the account given by the appellant. The blood-staining was simply not consistent with the evidence of the prosecution witnesses that the appellant was at arms length raining down blows overarm on Mr Ramsey.
41.	We feel to an extent hampered by the absence of a transcript of the relevant evidence. An important question is who first mentioned the description ‘headlock’. Mr Paton says it first came from the expert. Mr Hardie suggested it was put to the expert in cross-examination, being part of the appellant’s case. What is clear is that there was no mention before the trial of Mr Ramsey having been held in a headlock.
42.	Suffice it to say that we have some concern about this second ground of appeal because it is difficult to see how, on the Crown’s case, the appellant could have come by such extensive blood-staining. In the event the outcome of the appeal turns on the first ground rather than the second.
43.	Mr Paton made a valiant attempt to hold the conviction on the basis that there was a strong case against the appellant. Regardless of the deficient s.34 direction the evidence showed a joint attack by three people in which three weapons were used and that the appellant admittedly lied about being the driver of the vehicle when apprehended by the police soon after the offence. We are however unable to conclude that the conviction is safe. The appeal will accordingly be allowed and the conviction quashed.