Condron & Anor, R v [1996] EWCA Crim 1129 (17 October 1996)

The Condrons and Curtis were admitted heroin addicts. They lived in adjacent flats, the Condrons at No. 51, Curtis at No. 50 - on the third floor of Cubitt House, Clapham. At the back of the flats the Condrons' balcony was very close to Curtis's bedroom window, providing easy communication between the two. The prosecution case was that all three were party to a continuing arrangement whereby Curtis admitted heroin users to his flat and supplied them with heroin and, if they wished, the facility to use it on the spot, obtaining the heroin as necessary from the Condron's flat. It was not disputed that on 28th April 1995 the Condrons had a quantity of heroin in their flat. The prosecution maintained that, as regards at least part of it, it was in the joint possession of the Condrons and Curtis, as part of their joint enterprise to supply it to customers who came to Curtis's flat. In support of their case the prosecution relied on police observations on the two flats between 24th and 28th April 1995. On and after 25th April the observation was supported by a video film. The observation showed a number of people coming to Curtis's flat; some of these were seen to speak to the Condrons via the window and balcony. William Condron was seen to hand a package over. Karen was seen to receive a cigarette packet from someone behind the curtain, have a conversation, go into her flat and then return with the cigarette packet and hand it over. It was said that the behaviour of the persons concerned was furtive.

The Crown relied on all the circumstances of the case, including Curtis's admission that heroin users had visited his flat, and the fact that William Condron, on his own account, and with Karen Condron's admitted knowledge, regularly purchased his household's supply of heroin. It was suggested that the three of them, who were all in receipt of Social Security benefits, funded their own heroin addiction by this small-scale dealing. There were exceptional security arrangements at the Condrons' flat, which had a steel gate inside the front door and a lift gate over the only large window.

At 12.40pm on 28th April teams of police officers entered both flats. In No. 51, William Condron was in the kitchen apparently stuffing small wraps into his mouth and drinking water. The officers failed to stop him swallowing something but could not say if it was only one, as he said, or more. At the time he said it was cannabis. In court he said it was heroin. He and Karen were arrested and cautioned and taken, after an hour, to Kennington police station. In No. 50 a man called Brown was in the living room and Curtis was in the bedroom. He, too, was taken to the police station.

In the Condrons' flat were found 16 small wraps, and one large wrap, of heroin. They had originally been wrapped in a square of plastic, knotted, and then a circle of plastic, knotted. These squares and circles had been cut from striped carrier bags (which was a common way of wrapping small amounts of heroin). The small wraps were of irregular amounts by commercial standards, of between .07 and .10 grammes. No scales appropriate for weighing small amounts were found (but it was accepted that not all dealers had scales so that the irregular amounts were of no significance either way; indeed, it was William Condron's case that he had purchased heroin in that form from a dealer). One wrap was found, the edge of which matched that on the empty wrap found in Curtis's flat. There were also found two sorts of methadone, £70 in some jeans in the living room and £20 on the kitchen table, a polythene bag, scalpel and knife, plastic cut from a plastic carrier bag in the shape of a ring which the prosecution suggested was an off-cut from making a circular wrap - although no matching piece was found - and some resinous burnt-looking spoons, admittedly used for cooking up heroin. A cut up condom and pieces of polythene were allegedly found on the ground below the window.

At the police station the Condrons' solicitor, Mr Delbourgo, considered that they were unfit to be interviewed because of their drug withdrawal symptoms, and he advised them not to answer questions. However, the Force Medical Examiner, a doctor, considered that they were fit for interview. They and Curtis all made no comment to the questions put to them about the incidents recorded in the police observation. The prosecution claimed that in the circumstances they could reasonably have been expected to mention the explanations they gave in court.

William Condron had previous convictions for dishonesty but none for drug dealing, and he had never sold or supplied drugs. He regularly purchased heroin but only from his own funds and only for the use of himself and Karen. He bought it in 3.5 gramme packets whenever he was able. This was all he could afford at the time. When he could not they used methadone, for which Karen had a prescription, although it was a poor substitute. The amount of heroin he was able to buy during a particular period, and the amount he spent on it, thus varied. As regards their income, apart from their Social Security payments (which totalled £145 or £155 a week), William Condron did odd labouring jobs from time to time, and bought and sold collectible comics. He also shoplifted. Karen made and sold models, from which she made a profit of £170 that year. She spent £50 a week on housekeeping, and often ran into debt on essential outgoings rather than foregoing buying drugs. The £70 in the jeans pocket was Karen's for paying bills. The £20 was William's. The security gates at the flat had been there a long time. They were installed by Karen's father as she had had burglaries and wanted protection.

They were on very friendly terms with Curtis, and communication between the two households took place via the balcony at the back. This was the easiest way as the doors to their respective flats were some distance apart. Curtis frequently borrowed small sums of money or household items from them. He would knock on the party wall and one of them would go onto the balcony to see what he wanted. They never passed drugs to him. He obtained his drugs from the same suppliers as they did.

On 27th April William Condron bought 3.5 grammes, and 18 tiny .10 gramme packets of heroin for a total of £180. They did not use any of it that evening. Next morning at about 9.00am, as William was having difficulty with his veins and could not inject himself, they went to see Curtis, who, as a favour, gave William a "hit" in the back of the leg, using one of the .10 gramme packets. Curtis had thrown the wrap from it onto the floor, which must have been the one found which matched another in the Condrons' flat. They gave detailed innocent explanations in relation to the police observations. Such explanations could have been given in answer to specific questions by the police in interview, particularly questions in relation to the package and cigarette packet.

Curtis, when giving evidence, said that as a heroin addict for many years he knew many suppliers and users. He had a prescription for daily methadone and used about £15 worth of heroin a day in addition, which he was able to fund out of his social security benefit as he lived extremely economically. Up to seven or eight junkie friends used to visit him a day, some to be sociable or to look for other friends, and some to use heroin at his flat. They would use it there as they did not want to do so in their own homes, and were not allowed to use it on their suppliers' premises. Also, he would provide them with syringes, vitamin C and water in ampoules for "cooking up" heroin for injection. (He obtained these free from the Stockwell Drug Project). In exchange these visitors often gave him heroin. He never had any from the Condrons. The plastic wraps found in his flat were like those used by 90% of dealers.

He confirmed the Condrons' account of their friendship and his frequent borrowing, with communication being by the balcony. He also confirmed their visit at 9.00am on 28th April, when he gave William a "hit" in the leg with some heroin he bought with him. When he was arrested he was told that he would not get bail, which made him angry and "bloody-minded", so he decided not to help the police by answering their questions.

During the course of the Crown's case prosecuting counsel wished to adduce in evidence the "no-comment" interviews with the appellants. The defence objected. The objection appears to have been based on two submissions. The first was that the evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984 on the grounds that the appellants were not fit to be interviewed. In support of this contention reliance was placed on the opinion of Mr Delbourgo, the appellants' solicitor. The Judge rejected this submission on the ground that he preferred the view of the Force Medical Examiner, who had certified that they were fit to be interviewed. Mr Shaw QC, counsel for the appellants, does not criticise this decision.

The second submission related to section 34 of the Criminal Justice and Public Order Act 1994. It was submitted that since the appellants' solicitor had bona fide advised them not to answer questions because he, contrary to the views of the doctor, of which he was aware, considered they were not fit to be interviewed, no adverse inference could be drawn pursuant to the provisions of the section, and accordingly the evidence should be excluded. The Judge held a voire dire , in the course of which Mr Delbourgo gave evidence that he had so advised. The Judge rejected this submission. He held that in any event it was premature since the defendants had not given evidence, so that it was not clear what facts were going to be relied upon in their defence which might reasonably have been expected to have been mentioned and, in any event, it was a matter for the jury, properly directed, to determine the issues.

The case proceeded; the appellants were cross-examined on their failure to mention certain important aspects of their defence at interview. The reason they gave for not doing so was the advice of their solicitor. At the conclusion of this evidence the Judge invited submissions as to what facts might have been expected to be mentioned. In his summing-up he directed the jury that it was a matter for them to decide whether any adverse inference should be drawn against the appellants from their failure to mention these facts at interview.

In the first ground of appeal it is contended that the Judge was wrong to have rejected the defence submission or, alternatively, he ought not to have directed the jury that is was open to them to draw adverse inferences from their failure to answer questions. In the second ground of appeal Mr Shaw criticises the Judge's direction to the jury as to how they should consider the question of adverse inference. The third ground of appeal raises an unrelated and discrete point to which we will refer later. The first two grounds of appeal raise important and difficult questions in relation to section 34 where the defendants' solicitor, for whatever reasons, advises his clients not to answer questions.

It is common ground that, absent an acceptable explanation for not doing so, there were facts relied upon in the appellants' defences which they could reasonably be expected to have mentioned during interview. These included the purchase the previous day of the heroin in small wraps; the innocent explanation of the package and the cigarette packet; and the explanation for the matching wrap found in Curtis's flat. At one time Mr Shaw was disposed to argue that in any case where the defendants' solicitor advised, for whatever reason, that his clients should not answer questions in interview, the Judge should rule that a no-comment, or refusal to answer, interview should be excluded, because it would be reasonable for the defendants in such circumstances not to answer. However, in the event, he resiled from this extreme position, recognising that if it was correct it would render section 34 wholly nugatory, at least in any case where the defendants had a competent solicitor, since this would be the advice that such a solicitor would be bound to give.

But there are obvious difficulties in this submission: first, the advice may not be bona fide, though there is no suggestion in this case that that was so; secondly, there may be more than one reason for giving it, the other reasons being tactical; thirdly, it is not so much the advice given by the solicitor, as the reasons why the defendant chose not to answer questions that is important, and this is a question of fact which may be very much in issue. To take this case as an example: both appellants knew that the Force Medical Examiner certified that they were fit to be interviewed and therefore that medical opinion differed from that of their solicitor. Both were clearly advised by Mr Delbourgo that if they failed to mention material facts at the proposed interview, they could be criticised if the matter came to trial. That advice was understood. He also made it plain that this was entirely their choice. At the beginning of the interview both were given the caution in its current form, namely "You do not have to say anything but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you say may be given in evidence." Both indicated that they understood that caution. Both were told that if they felt unwell during the interview they should let the interviewer know and it could be stopped. In these circumstances the fact finding tribunal might well consider that if the appellants had an innocent explanation of the incriminating evidence, about which they were specifically questioned, they would have mentioned it. We use the expression fact finding tribunal because, on an application to exclude evidence following a voire dire at which only the solicitor gave evidence, the Judge is the fact finding tribunal, and he is being asked to hold, in effect, that it would be perverse of a jury to draw an adverse inference in these circumstances. We have no doubt that the Judge was right to reject this submission and conclude, subject to reviewing the matter at the conclusion of the evidence, that it was a matter for the jury.

"The defendants explained that their no comment answers, speaking generally because of course they put it in more detail, the Condrons said they were suffering from withdrawal symptoms and relied on Mr Delbourgo, their solicitor's advice that he could see they were suffering from withdrawal symptoms and should not answer questions because in his judgment of their appearance they were unfit for interview despite the known and expressed view of the FME, which means Force Medical Examiner and is in fact a doctor, who comes along to police stations to deal with problems of this sort... The law is, members of the jury, that you may draw such inferences as appear proper from a defendant's failure to mention the points I have referred to in their respective interviews. In each case it is relevant only to the case against the defendant concerned. You do not have to hold it against him or her. It is for you to decide whether it is proper to do so. Failure to mention the points in interview cannot on its own prove guilt but depending on the circumstances you may hold it against him or her when deciding whether he or she is guilty. You should decide whether in the circumstances which existed at the time of the interview the matters were ones which the defendant concerned could reasonably be expected then to mention. Members of the jury, that is all I say at this stage about the law."

The law is that you may draw such inferences as appear proper from his failure to mention it at that time. 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, take it into account as some additional support for the prosecution's case. It is for you to decide whether it is fair to do so."

Nevertheless, Mr Shaw submits that the direction does not go far enough. In particular he submits that the jury should be told that they can only draw an adverse inference if, in spite of any evidence relied upon to explain the failure to mention the relevant matters (or indeed in the absence of such evidence), they conclude that such failure can only sensibly be attributed to the fact that the appellants must have fabricated the evidence subsequently.

"The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

He also relied on the judgment of this Court in R. v. Cowan [1996] 1 CrAppR 1. That was a case where the Court considered the appropriate direction as to what inferences the jury could reasonably draw from the defendant's failure to give evidence, a matter dealt with under section 35 of the Criminal Justice and Public Order Act 1994. At page 7C the Lord Taylor CJ, after referring to the Judicial Studies Board specimen direction, said:

1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is. 2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice... 3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act. 4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant's silence. 5. If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant's having no answer or none that would stand up to cross-examination, they may draw an adverse inference."

The question of what adverse inference can be drawn from an accused's failure to give evidence is obviously similar to the questions which arise under section 34. Mr Shaw submits therefore that paragraphs 1-5 of the passage quoted apply with appropriate modifications to section 34. We consider, however, that the specimen direction on section 34, coupled with the usual direction on burden and standard of proof and the fact that the jury will inevitably understand from the form of caution itself that the accused was entitled to remain silent at interview, covers the matters dealt with in paragraphs 1-4. Paragraph 5 goes somewhat further than the specimen direction and the direction given by the Judge in this case. Having regard to the views of this Court in Cowan, we consider that it is desirable that a direction on the lines indicated above should be given. There is as much a need to remind the jury of the circumstances in which a proper inference may be drawn under section 34 as under section 35. There is no basis for distinguishing between the sections in that respect. In fairness to the Judge, it seems unlikely that a report of Cowan was available to him, and certainly no submission was made to him that he should add to the specimen direction.

We do not think that they were. We have already referred to the substantial, almost overwhelming, evidence of drug supply from what was found in the appellants' house. Although there were no scales, all the other paraphernalia of supply was present. All but one of the jury must have rejected the appellants' explanation of the police observations, much of which was recorded on video, the presence of the matching wraps in Curtis's flat and the elaborate security arrangements at the appellants' own flat. The acquittal of Curtis shows that the jury regarded the evidence of the interviews as insignificant. Curtis also failed to answer questions in interview.

In the course of their submissions, counsel dealt with two problems that are likely to arise for consideration in relation to section 34. The first related to the procedure to be adopted if a challenge is to be mounted to the admissibility of a "no-comment" interview, and the second related to the question of legal professional privilege if the defendant asserts, as the appellants did in this case, that they refused to answer on their solicitor's advice. Both counsel invited the Court to give some guidance on these matters.

Two questions arise. First, how should the prosecution deal with a "no-comment" interview and, secondly, at what stage should the defence raise objection to the admissibility of the "no-comment" interview or make submissions as to the drawing of adverse inferences. We would wish to make it plain that no hard and fast procedure should be laid down; each case will depend upon its own particular facts. Section 34(3) makes it plain that, subject to the direction of the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention. This is no doubt partly because the court can consider the matter when deciding whether there is a case to answer (section 34(2)(C)). In the ordinary way, therefore, it would seem appropriate for prosecuting counsel to adduce evidence limited to the fact that after the appropriate caution the accused did not answer questions or made no comment. Unless the relevance of a particular point has been revealed in cross-examination, it would not seem appropriate to spend time at this stage going through the questions asked at interview.

If and when the accused gives evidence and mentions facts which, in the view of prosecuting counsel, he can reasonably have been expected to mention in interview, he can be asked why he did not mention them. The accused's attention will then no doubt be drawn to any relevant and pertinent questions asked at interview. The accused's explanation for his failure can then be tested in cross-examination. It will not generally be necessary to call evidence in rebuttal, unless there is a dispute as to the relevant contents of the interview.

At what stage should objection to the admissibility of no-comment interviews or submissions to the effect that the jury should not be invited to draw adverse inferences be made? There may, of course, be objections to the admissibility of an interview based on breaches of the relevant Code, and section 76 or 78 of the Police and Criminal Evidence Act 1984, in which case such objection will be taken before any reference is made to the interview and the Judge must rule, if necessary, following a voire dire . But if the objection is simply that the jury should not be invited to draw any adverse inference, it will seldom be appropriate to invite the Judge to rule on this before the conclusion of all the evidence. The present case illustrates the reasons for this. First, it will not be apparent until the accused gives evidence what are the material facts that were not disclosed or the reason why he did not disclose them. Only in the most exceptional case, for example where the accused is of very low intelligence and understanding and has been advised by his solicitor to say nothing, could it be appropriate to make such a submission before the introduction of the evidence by the Crown. If defence counsel wishes to object to the prosecuting counsel cross-examining on the failure to mention the matters in interview, then it will be a matter for the Judge to rule upon, if necessary after a voire dire . But, except in clear cases, where, in effect, it would be perverse for the jury to draw an adverse inference, we do not think this is an appropriate course, since the Judge is likely to consider that the question why the accused did not answer is one for the jury. In the ordinary way, therefore, we would expect, if defence counsel wishes to submit that the Judge should not invite the jury to consider drawing adverse inferences, that the submission should be made in the absence of the jury at the conclusion of the evidence.

Communications between an accused person and his solicitor prior to interviews by the police are subject to legal professional privilege. But the privilege can be waived by the client, though not the solicitor. If an accused person gives as a reason for not answering questions, that he has been advised by his solicitor not to do so, that advice, in our judgment, does not amount to a waiver of privilege. But, equally, for reasons which we have already given, that bare assertion is unlikely by itself be regarded as a sufficient reason for not mentioning matters relevant to the defence. So it will be necessary, if the accused wishes to invite the court not to draw an adverse inference, to go further and state the basis or reason for the advice. Although the matter was not fully argued, it seems to us that once this is done that it may well amount to a waiver of privilege so that the accused, or if his solicitor is also called, the solicitor, can be asked whether there were any other reasons for the advice, and the nature of the advice given, so as to explore whether the advice may also have been given for tactical reasons.

However, it should be borne in mind that the inference which the prosecution seek to draw from failure to mention facts in interview is that they have been subsequently fabricated. It is always open to a party to attempt to rebut this inference by showing that the relevant facts were communicated to a third person, usually the solicitor, at about the time of the interview (see R. v. Wilmot (1989) 89 Cr.App.R. 341) This does not involve waiver of privilege if it is the solicitor to whom the fact is communicated; the solicitor is, for this purpose, in the same position as anyone else.

In the unlikely event, therefore, that the solicitor advised his client to say nothing, even though the client has given him information which amounts to a defence, or affords an innocent explanation of otherwise incriminating evidence, the solicitor can be called to say that he was given that information and this, if accepted, will rebut the inference of subsequent fabrication. Moreover, it is always open to an accused person who has failed to mention some important fact at interview, to communicate it to the police at any time before trial; but unless it is done promptly, it is unlikely to rebut any adverse inference which might otherwise be drawn. In the present case Mr Delbourgo, having said that the basis of his advice was his perception of his clients' fitness for interview, was asked inter alia in cross-examination:

The final ground of appeal is that the Judge failed to discharge the jury following the speech made by Curtis's counsel. In the course of his final submissions counsel submitted that even if the jury did not accept Curtis's evidence that no drugs were supplied by the Condrons to persons who visited his flat (or indeed Curtis himself), and concluded that this was a lie, that did not necessarily mean that Curtis was guilty. He might be lying to support his friends, and in truth might be innocent of the charge, not being jointly concerned in the supply. Mr Rowland, counsel for the appellants, objected to this line of argument; he submitted that it was improper, being inconsistent with Curtis's evidence and prejudicial to the appellants' case. The Judge ruled that there was nothing improper in the submission, and it was one counsel was entitled to make in the interest of his client. He declined to accede to Mr Rowland's application to discharge the jury.

Mr Shaw submits that the Judge should have acceded to this application. We do not agree. In our judgment there was nothing improper in the submission made by Curtis's counsel. Counsel is perfectly entitled to advance an alternative case on the basis that the jury may prefer parts of the prosecution case to that of his client. It may be a risky line to adopt, but this is another matter. We do not think that the appellants were prejudiced by the submission. The Judge did not refer to it in his summing-up, reminding the jury only of the evidence given by Curtis. In our judgment there is nothing in this ground.

England and Wales Court of Appeal (Criminal Division) Decisions

KAREN CONDRON WILLIAM CONDRON, R v. [1996] EWCA Crim 1129 (17th October, 1996)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Condron & Anor, R v [1996] EWCA Crim 1129 (17 October 1996) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1996/1129.html Cite as: [1997] WLR 827, [1997] 1 Cr App Rep 185, [1996] EWCA Crim 1129, [1997] 1 Cr App R 185, [1997] 1 WLR 827