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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mountford, R v [1998] EWCA Crim 3534 (21 December 1998) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1998/3534.html Cite as: [1998] EWCA Crim 3534, [1999] Crim LR 575

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IN THE COURT OF APPEAL
(CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Friday 21st December 1998

REASONS FOR JUDGMENT

LORD JUSTICE HENRY:

This is the judgment of the Court, to which all members have contributed. On 2nd April 1998 in the Crown Court at Stoke-on-Trent the appellant was convicted by a majority of 10:2 of possessing a controlled drug of Class A with intent to supply (Count 1) and was sentenced to three years' imprisonment. No separate penalty was imposed in respect of a lesser count of simple possession of a controlled drug of Class A (Count 2) to which he had earlier pleaded guilty. An order for destruction of the drugs and a Drug Trafficking Confiscation Order for £70 with seven days' imprisonment in default were also made. He now appeals against conviction with the leave of the Single Judge.

The appellant was jointly indicted with one Williams, whose plea of guilty to the offence of permitting premises to be used for the purpose of supplying a controlled drug of Class A (Count 1 on the original indictment) was accepted by the prosecution, and he was called to give evidence for the Crown. He was sentenced on 15th May 1998, when a two year probation order was imposed.

The facts were these: on the afternoon of 12th March 1997 the police entered the flat of Paul Williams, where the appellant was staying, and executed a search warrant. Only the appellant and Williams were present when the police came. The appellant was seen to drop a package from one of the windows of the flat, which when recovered was found to contain 4.25 grammes of powdered heroin of 30% purity, with a street value of approximately £400. The appellant admitted that he had dropped the package from the window, but said that Williams had thrown it to him just as the police broke in. At the flat the normal articles of drug-dealing apparatus were found, together with evidence that they were in current use. The appellant when searched was found to have £70 in cash on him, and the Crown said this was significant because heroin was sold in £10 wraps.

As the judge made clear in his summing-up, the prosecution case depended on the evidence of Williams. The defence case was that Williams was a drug dealer, and the defendant was simply there for the purchase of drugs.

On arrest both men were taken to the Longtown police station. Each was separately informed of his right to legal advice. Each separately asked for the same well-known firm of local solicitors. That firm sent one representative in their employ to represent both men. She was Ms Angela Smith, an accredited police station representative. The agreed chronology was that Ms Smith saw Williams privately from 1645 to 1715. She then saw the appellant privately from 1715 to 1720. She was then present as Paul Williams' legal representative during his interview from 1732 to 1807. She then saw Paul Mountford privately from 1812 to 1815. She was present as Paul Mountford's legal representative during his interview from 1819 to 1837, a no comment interview. Paul Mountford had no access to any other legal representative at any time during his period in custody.

We do not know what passed between the appellant and Ms Smith. We do not know this because the appellant, as he is entitled to do, has declined to waive his legal professional privilege. Had he waived that privilege, he could have called Ms Smith to give evidence as to the advice she gave, and his reaction to it. The judge commented on this evidential hole - it was the inevitable consequence of the appellant not waiving his legal professional privilege.

It was the appellant's case that, unbeknownst to him, but known of course to Ms Smith, Williams at his initial interview had incriminated the appellant. It was the appellant's case that he had not known this fact when he gave his no comment interview. In fact Williams in his initial interview had said to the police that while he, Williams, lived in the flat, the appellant had been staying there for ten days, and that the appellant and his friends had been dealing in drugs from the premises. He had tried to prevent them, but had been threatened, and therefore he had permitted the use of the premises under duress.

What Williams had said in interview was not of course admissible as evidence against the appellant. However, at trial, Williams offered to make a witness statement implicating the appellant, and this offer was accepted. Williams therefore pleaded guilty to Count 3 but was not sentenced before the trial. His evidence at the trial as to the appellant's involvement was a good deal more detailed than it had been in his initial interview. He had a previous caution and conviction for shoplifting offences, and was awaiting sentence for a number other offences.

The appellant gave evidence at trial. He said that he had stayed at the flat for just one night, the night before his arrest. He had called to buy heroin from Williams. He made the point there were no possessions of his at the flat. He was aware of the drug-dealing paraphernalia at the flat, but it was not his. Just as the police were breaking in, Williams had thrown him the packet of heroin which he had dropped from the window. Williams was the dealer, and not him.

When he gave this evidence, he triggered Section 34 of the Criminal Justice and Public Order Act, 1994 - he could reasonably have been expected to mention when being questioned under caution that Williams was the dealer and he the purchaser. He said that he had not volunteered this information because he did not want to get Williams into trouble. He said that, at the time of his interview, he did not know what Williams had said in interview. We are told by Mr Cooper for the appellant (though it does not appear in the judge's summing-up) that he said that if he had been told that Williams in his interview had implicated him, it would have made a "big difference" to his willingness to answer police questions.

The first ground of appeal is that evidence of his no comment interview should have been excluded under Section 78 of the Police and Criminal Evidence Act, 1984. This submission is founded on the fact that the provisions of Code C, Paragraph 6 entitled him to legal advice, and it is alleged that he did not have free and independent legal advice, because Ms Smith was faced with a clear conflict of interest. Once she knew that Williams had made a statement incriminating the appellant she both owed a duty of confidentiality to her client Williams, and she also owed a conflicting duty of disclosure of the fact that Williams had incriminated him to the appellant.

The Notes for Guidance under the Code (paragraph 6.G) say:

"Subject to the constraints of Annex B, a solicitor may advise more than one client in an investigation if he wishes. Any question of a conflict of interest is for the solicitor under his professional code of conduct."

This brings us squarely up against the consequences of the fact that the appellant has not waived his legal professional privilege. We do not know whether Ms Smith recognised the conflict of interest, nor do we know how she dealt with it. We do not know what advice she gave the appellant, though, had it been bad advice, no doubt privilege would have been waived and we would have been told of it. We are in the same position that the judge was, when he complained:

"But we are guessing. There is no evidence about it. Sometimes evidence is available on a voir dire, for instance, which is how a judge is able to come to the conclusion on the evidence and make a reasoned judgment. At the moment you are asking me to infer that because the legal representative was the same for both, advice inevitably, as night follows day, was not independent. I cannot come to that conclusion on the state of the evidence which is before me at the moment."

When we pressed Mr Cooper on this point, he said that the defence could not reasonably have been expected to call Ms Smith in a voir dire, because she could be expected to be hostile to the appellant, and they would not have the opportunity to cross-examine her. We do not accept the adequacy of that explanation, and agree entirely with what the judge said. On the material before us, which does no more than identify Ms Smith's conflict of interest, we cannot be satisfied that the admission of the no comment interview would have such an adverse effect on the fairness of the trial that it should not be admitted. Accordingly, Ground 1 of the appeal fails.

We turn to Ground 2 of the appeal. At the conclusion of the evidence, the judge rejected a submission that he should not allow the jury to consider whether an adverse inference should be drawn from the fact that the appellant failed in interview to mention a fact he relied on his defence. The judge in so ruling said:

"It seems to me that this is a proper case where a jury must be directed that they are entitled to draw what inferences they think proper but they are not obliged to do so. It is a matter for them what they consider to be fair having regard to what Mountford has said in interview and that is the way I propose to direct the jury in this case."

The judge was as good as his word. During the course of the summing-up he said this:

"The defendant was legally represented, the defendant knew that the prosecution case was that he was in possession of heroin with intent to sell it for profit yet he said nothing when interviewed by the police. That of course was his right, but the defendant as part of his defence has relied upon the fact that it was Williams who was in possession of the heroin and it was Williams not the defendant who was dealing in heroin and intending to sell it ... the prosecution case is that Mountford did not mention that fact when he was questioned under caution ... the prosecution case is that in the circumstances when he was questioned he could reasonably have been expected to mention that ... you must decide whether in the circumstances which existed at the time it was a fact which he could reasonably have been expected to mention."

The judge then reminded the jury of the explanation which the appellant gave in evidence for remaining silent rather than revealing that Williams was the real culprit:

"The defendant's explanation in evidence was that he did not want to put the blame on to Williams but had he known Williams had blamed him in his police interview .... he, Mountford, would have had a different view about making 'no comment'."

Mountford's evidence on the point, as the judge later reminded the jury, was:

"I decided to say nothing. I didn't say anything to the police as I didn't want to land Williams in trouble."

The judge's direction to the jury on the law concluded with these observations:

"Now the law is that you may draw such inferences as appear proper from Mountford's failure to mention when interviewed a fact he later relied on in court. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot on its own prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is to take it into account as some additional support for the prosecution case. It is for you to decide whether it is fair to do so in the light of the defendant's evidence."

Thus the judge left it to the jury to decide whether it was fair to regard Mountford's failure to disclose in interview a fact he later relied on in his defence (namely that the real "dealer" was Williams) as some additional support for the prosecution's case, provided in the circumstances it was a fact which he could reasonably have been expected to mention in the interview.

The judge gave no guidance to the jury as to how they should approach this issue. "The fact" not revealed in interview constituted the defence to the charge. In other words whether "the fact" not revealed was or may have been true was the issue in the case the resolution of which would determine the verdict. It is difficult to see how the jury could have rejected the appellant's reason for not mentioning "the fact" without also rejecting the truth of "the fact" - the truth of each depended on the truth of the other.

In our judgment, this element of circularity could only be resolved by a verdict founded not in any way upon the Section 34 point but upon the other evidence in the case. 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. In this case, as it seems to us, the evidence which resolved the Section 34 issue was the very evidence which resolved the issue in the case and therefore determined the verdict. There was, in our judgment, no evidential basis upon which the Section 34 issue could have been resolved as an independent issue in the case, thus permitting an ensuing adverse inference to be used as some additional support for the prosecution's case.

This was a case which turned on the jury's assessment of the credibility of each man - Williams (the prosecution witness) and Mountford (the then defendant). It was accordingly particularly important for the jury to have had spelt out to them that as a matter of common sense there was, for the prosecution, no mileage in the Section 34 point. The jury were left to make what they could of it. It may be that they realised that it would have been unfair to draw an adverse inference given the particular circumstances. Of that, however, we cannot be sure. Superficially the point has its attractions. Our conclusion is that the verdict cannot be regarded as safe, and for that reason the conviction must be quashed.

Ground 3 of the appeal concerns whether the trial judge went far enough in directing the jury to approach the evidence of Williams with caution, the old requirement of a full-blown accomplice warning having been abolished by Section 32 of the Criminal Justice and Public Order Act, 1994. The jury knew all about Williams - they knew that he was the occupier of the flat, that he had convictions for dishonesty, that he was a heroin user, that he had been jointly charged with possession with intent to supply until he turned Queen's Evidence, that he had lied in his police interview and admitted in evidence that he had done so because he had thought that it would get him "off a bit", that he had yet to be sentenced, and that he was the only other suspect. In that situation the judge (as always in this case succinct and to the point) gave this warning:

"Now the prosecution case to some considerable extent in this case depends on what you make of the evidence of Paul Williams. You will have to guard against the fact that he may be trying to cover his own back."

The decision whether, and in what terms, to give a warning is one of discretion for the trial judge. As this Court made clear in Makanjuola [1995] 2 Cr App R 469, it will be disinclined to interfere with the judge's exercise of that discretion save in a case where that exercise was Wednesbury unreasonable. The judge in the exercise of his discretion will be taking into account materials denied to this Court. He or she will have heard the evidence, heard the content of closing speeches, and will know what is necessary fairly to hold the ring in any given case. Where comment has to be made, he is entrusted with the task of making the point with the right degree of emphasis. That is a matter for his judgment. The judge expressed the need for caution in plain but homely terms. In our judgment the warning of the need for caution was made appropriately, falling well within the broad ambit of his discretion. There is nothing in this ground of appeal.

However, as a result of Ground 2 the conviction in this case will be quashed.

We dealt with the new trial on the last occasion, did we not?

MR COOPER: My Lord, yes.

LORD JUSTICE HENRY: So no further direction is required in relation to that?

MR COOPER: My Lord, no.