Bowden, R v [1999] EWCA Crim 331 (10 February 1999)

THE LORD CHIEF JUSTICE: On 15 October 1997 the appellant was convicted of robbery following a trial in the Crown Court at Manchester before His Honour Judge Lakin and a jury. He appeals against conviction by leave of the full court. His appeal raises an important issue on the interrelationship between legal professional privilege and section 34 of the Criminal Justice and Public Order Act 1994.

The offence was committed on 10 October 1996 at a McDonald’s restaurant in Ashton-under-Lyne when a security guard was hit on his helmet with a claw hammer and robbed of £9,500 in cash. The attack on him was made by two men, one of whom was wearing a fluorescent security jacket. A third robber waited in a getaway car. The appellant was arrested and questioned on 22 October 1996. He denied responsibility for the robbery. He was then aged 18.

(1) An identification of the appellant by Police Constable Cox. This officer was on leave at the time of the robbery, but on his return he was shown two still photographs taken from a video of the robbery recorded by a security camera in the restaurant. He knew the appellant as a result of previous contacts with him, and recognised the appellant as one of the two robbers shown in the photographs. On seeing the security video he confirmed his identification of the appellant.

(3) Evidence that the appellant had on 14 October 1996, four days after the robbery, booked a holiday in the Canary Islands for which he left that night. According to the appellant, the cost of the holiday was £192, and he took £250 spending money with him. The appellant was on benefit at the time, and the prosecution suggested that this holiday was financed by the proceeds of the robbery. The prosecution also relied on a photograph of the appellant, taken during his holiday in the Canary Islands, which showed him in a celebratory posture outside a local branch of McDonald’s. This photograph was obtained from a film found in the appellant’s camera at his home.

At trial the appellant adamantly denied any involvement in the robbery. The identifications on which the prosecution relied were strongly challenged. The appellant gave evidence and testified that his holiday had been paid for with money given to him by his mother a few days before he left. He gave a factual explanation why he and his companion had posed for the photograph outside the Canary Islands McDonald’s. It was pointed out that there were other holiday photographs showing him and his companion in jubilant mood.

At the trial, the judge was asked to exclude the identification evidence of both police officers, and also the evidence relating to the appellant’s holiday. The judge declined to exclude this evidence. The appellant sought leave to appeal against conviction on the grounds (among others) that the judge’s failure to exclude this evidence was wrong in law. The single judge refused leave to appeal against conviction, and on a renewed application leave to appeal on these grounds was expressly refused by the full court on 15 October 1998. The full court did, however, grant leave to appeal on the ground which we now consider.

At 4.40 pm on the day of his arrest the appellant was interviewed in the taped interview room at the police station in Ashton-under-Lyne. There were present two police officers, the appellant and his solicitor Mr Draycott. The appellant was questioned about the robbery and the video was shown. Having taken legal advice the appellant made no reply to the questions asked of him, saying that he did so on legal advice. The first part of this interview, recorded on tape, ended at 5.24 pm.

After a break the interview resumed at 7.12 pm with the same people present. The appellant was asked about items taken from his home address, and about his recent holiday. He was asked how he paid for it. He was asked about the McDonald’s photograph. The appellant declined to answer any questions. This interview, also taped, came to an end at 7.32 pm when the appellant requested a private consultation with his solicitor Mr Draycott.

“Yes, more of a statement really in terms of the advice that I have given to Mr Bowden during the course of this evening and particularly prior to the first interview. You have been good enough to show me the video on a total of three occasions, two of which, of course, were during the course of that first interview, if I am not mistaken. The view that I take is that the video is not poor in quality, though I have seen better on occasions and, of course, I have made mention of various things as the video was being shown. But obviously reference to that can be made again in due course with regard to the person to which, or to whom you referred in the video. I am not satisfied in my own mind that the video in itself shows that person to be Mr Bowden and as a consequence of that having regard to the fact that the remaining evidence that you have presented is entirely circumstantial, I am of the view that at this point any charge of robbery brought against Mr Bowden cannot in the long term be sustained, and that is the reason why at this point I have rendered the advice to him that I have, and which he has followed, of course, by saying “no comment” during the course of the three interviews. Of course, and it is something we have discussed during the course of this evening’s sessions, it may well be that you arrange for identification parades, and it may well be as a consequence of the outcome of those parades that my advice to Mr Bowden would change, but obviously that is a matter for the future not a matter for this evening.”

Counsel for the appellant was, understandably and properly, concerned that the jury should not draw inferences adverse to the appellant from his failure to mention to the police in answer to their questions that his holiday in the Canary Islands had been paid for with money given to him by his mother a few days earlier, and that he had a reason for wishing to photograph the Grand Canary branch of McDonald’s, facts relied on in his defence. With a view to showing that the appellant had good reason not to answer the questions put to him, and thus to strengthen her submission that inferences adverse to the appellant should not be drawn, his counsel elicited from the police officer who gave evidence of the interviews with the appellant the statement made by Mr Draycott which we have quoted, of which evidence had not up to then been given and of which the prosecution did not propose to adduce evidence.

The prosecution submitted that by putting into evidence Mr Draycott’s statement of his reasons for advising the appellant not to answer the police questions, the defence had waived the privilege which would otherwise have protected confidential communications between the appellant and his solicitor, and entitled the prosecution to ask questions about that advice. The judge acceded to that submission. When prosecuting counsel cross-examined the appellant he accordingly asked him what he had told his solicitor about his holiday, and in particular whether he had told his solicitor that the holiday had been paid for with money provided by his mother and why the photograph had been taken outside McDonald’s. The appellant replied that he could not remember the conversation with the solicitor, but only the advice that he should remain silent. When he summed up to the jury the judge gave an accurate direction on the effect of section 34 (of which direction no criticism is made) and went on to direct the jury in these terms:

“I have emphasised, members of the jury, that when considering whether it was reasonable or not for the defendant to mention these matters, one has to consider the circumstances at the time. The circumstances, of course, at the time were that the defendant was very firmly advised by his solicitor to make no comment - you heard the advice - I will remind you of it in due course. It is also right to say that after the identification parade had taken place the police did not invite the defendant back for a further interview. And so these are the relevant circumstances that you will have to take into account. However, having reminded you about the advice which the solicitor gave, there is no evidence in this case that the defendant actually told his solicitor about the holiday, how it was the holiday was taken or, how it was that the photograph came to be taken. If, considering all of these factors: the advice that the solicitor gave, the fact that there was no further interview, you think that amounts to a reason why you should not hold the defendant’s failure to give an account of the holiday and the photograph to the police then, of course, you must not hold it against him at all. On the other hand if it does not, in your judgment, provide an adequate explanation or, if you are sure that the real reason for his failure to give an explanation about the holiday and photograph, can only essentially be attributed to the defendant fabricating the evidence subsequently then, of course, you can hold these failures against him when you consider whether or not the prosecution have proved their case in relation to the holiday and photograph.”

On behalf of the appellant counsel submits that there was on these facts no waiver by or on behalf of the appellant of legal professional privilege and that the prosecution should not have been permitted to ask the appellant about the factual basis (relating to his holiday, payment for it and the McDonald’s photograph) upon which his solicitor had advised him to remain silent.

Section 34 applies if certain conditions, specified in the section, are met: see R v Argent [1997] 2 Cr App R 27, BAILII: [1996] EWCA Crim 1728 at 32-33. It is one of a short series of sections (the others are sections 35, 36 and 37) which enable the court or jury to draw such inferences as appear proper from the failure of a person when questioned before charge, or on being charged or officially informed that he may be prosecuted, to mention a fact relied on in his defence to criminal proceedings (section 34), or his failure to testify or refusal to answer any question at trial (section 35), or his failure or refusal when requested to do so on his arrest to account for any object, substance or mark on his person, clothing or footwear or in his possession or at the place of his arrest (section 36) or his failure or refusal when requested to do so on his arrest to account for his presence at a place and at or about a time at which the offence for which he is arrested is alleged to have been committed (section 37). The object of these sections was to weaken the protection which criminal defendants had previously enjoyed against the drawing of inferences adverse to them from such failures and refusals in the circumstances specified. Proper effect must of course be given to these provisions. But since they restrict rights recognised at common law as appropriate to protect defendants against the risk of injustice they should not be construed more widely than the statutory language requires. There is nothing in any of these sections to suggest that Parliament intended in any way to modify the existing law on legal professional privilege.

The substance of legal professional privilege is defined in section 10 of the Police and Criminal Evidence Act 1984, which has been presumed to give effect to the common law position: see R v Central Criminal Court ex parte Francis & Francis [1989] AC 346 at 392C. The paramount importance of this privilege is not in doubt. As Lord Taylor of Gosforth CJ said in R v Derby Magistrates’ Court ex parte B [1996] AC 487 at 507C:

“The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests. ....... Nobody doubts that legal professional privilege could be modified, or even abrogated, by statute, subject always to the objection that legal professional privilege is a fundamental human right protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), as to which we did not hear any argument. [Counsel’s] difficulty is this: whatever inroads may have been made by Parliament in other areas, legal professional privilege is a field which Parliament has so far left untouched.”

It is well established that the privilege is that of the client. It is waivable, but only by or on behalf of the client. A waiver ordinarily occurs when a client chooses, for whatever reason, to reveal the effect of a communication protected by the privilege: he cannot claim privilege for that which he has voluntarily revealed. It makes no difference whether the revelation is made by the client or by the legal adviser acting within the scope of his authority as agent on behalf of the client. Nor does it matter when the disclosure is made.

When a defendant at trial deposes to facts which he has not mentioned at an earlier stage, and it is suggested to him that these facts are an invention or fabrication after the event, the defendant may rebut that accusation by asserting and calling evidence to show that he mentioned the facts to another person at that earlier stage, and no waiver of privilege is involved even if evidence is given (by him or his legal adviser) that this disclosure was made to the legal adviser. Such an accusation was made against the defendant in R v Wilmot (1989) 89 Cr App R 341. In that case the trial judge had directed the jury in these terms (at page 349):

“When that sort of suggestion is made, the law is this. Until such a suggestion is made, nothing that an accused has said privately to his solicitor or to his counsel or his Mum or his Dad about the case is admissible. But the minute it is suggested that it is a cook-up, a fairly fresh invention, an accused is entitled to give and call evidence in proof of the fact that he had indeed said what he is now saying to you at a much earlier date.”

"[Prosecuting counsel’s] main submission is that this is not a matter of privilege at all. Of course, the comment that the Recorder made was made in relation to the solicitor because the solicitor was the obvious person to whom the defendant would have given this account at an earlier stage, if he gave it to anybody. But in this respect, as the Recorder had said at one point, the solicitor was really merely the recipient, or possible recipient of information, just like the defendant’s dad, or his mum, or his uncle, if he had happened to talk to them. There would have been no question of privilege as far as any of the other people were concerned. It is really not a question at all of legal professional privilege, says [prosecuting counsel]. That privilege prevents the prosecution asking questions of the solicitor or calling him to give evidence, that is to say asking questions of him outside Court. But the defendant, once the suggestion was made, as the recorder had accurately said, was perfectly entitled to call the solicitor just as he would have been perfectly entitled to call anybody else to say: “This is not a recent fabrication: this is the story which this man told me months ago and therefore it is consistent. He has not just made it up.” With that comment we agree.”

“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 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.”

If, in the course of pre-trial questioning by the police, a suspect goes beyond saying that he declines to answer on legal advice and explains the basis on which he has been so advised, or if (as in the present case), his solicitor acting as his authorised representative gives such an explanation, a waiver of legal professional privilege is involved. The course followed by the prosecution in this case, of excluding from their evidence of the interview the statement made by Mr Draycott on behalf of the appellant, was in our judgment a legitimate course, but not a necessary one. The statement, if made by Mr Draycott acting as authorised agent of the appellant, was admissible evidence against the appellant. The same course would have been legitimate if a statement of the same kind had been made by the appellant himself. Had the prosecution chosen to call evidence of that statement, as they would have been entitled to do, the appellant or Mr Draycott (if called at the trial) could have been cross-examined at trial about the basis of the advice and its factual premises. There would, however, be no waiver of privilege if, during pre-trial questioning, the suspect or his solicitor said that the suspect declined to answer questions on legal advice and the evidence called by the prosecution at trial were limited to reporting that simple statement.

If, at trial, the defendant or his solicitor gives evidence not merely of the defendant’s refusal to answer pre-trial questions on legal advice but also of the grounds on which such advice was given, or if (as here) the defence elicit evidence at trial of a statement made by a defendant or his solicitor pre-trial of the grounds on which legal advice had been given to answer no questions, the defendant voluntarily withdraws the veil of privilege which would otherwise protect confidential communications between his legal adviser and himself, and having done so he cannot resist questioning directed to the nature of that advice and the factual premises on which it had been based.

“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 to 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.”

In R v Roble [1997] Crim LR 449 a defendant had declined to answer police questions following his arrest on the advice of his solicitor, and at his trial raised an issue of self-defence not raised during police questioning. He was convicted, and on appeal criticised the trial judge’s ruling and summing up in relation to the inferences to be drawn from his silence in interview. The court held, dismissing the appeal,

“that legal professional privilege was not waived merely by evidence from the accused, whether on the voire dire or before the jury, that he had been advised not to answer questions in interview, but in itself such advice was not likely to be regarded as a sufficient reason for not mentioning facts relevant to the defence and the evidence had generally to go further and indicate the reason for that advice, because that was relevant when the jury were assessing the reasonableness of his conduct in remaining silent; if the reason was given for the advice to remain silent, this in turn was likely to amount to a waiver of privilege. In the present case the solicitor was not called before the jury, and the only evidence which they heard came from the appellant, namely that he had been advised to say nothing. This, in the absence of any reason for that advice, was unlikely to inhibit the jury from drawing adverse inferences. Accordingly, the judge was correct to rule in the way he did and to direct the jury that it was open to them to draw inferences from the appellant’s silence.”

Our approach is also consistent with that followed by the court in R v Fitzgerald (unreported, 6 March 1998, BAILII: [1998] EWCA Crim 829). In that case the defendant’s solicitor, at the outset of the pre-trial interview of the defendant by the police, had made a statement explaining that he had advised the defendant not to answer any questions and giving the reason for that advice, which the defendant had followed. At the trial, the prosecution sought to lead evidence of what the solicitor had said. Objection was taken to the admission of that evidence at trial, primarily on the ground that what the solicitor had said had not been said by him as authorised agent of the defendant and that accordingly the evidence was not admissible against the defendant. That submission failed at first instance, and also when re-argued on appeal. We have no doubt that the court were right to conclude that the statement made by the solicitor was within the scope of his authority as agent of the defendant. The court went on to say:

“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. ........ 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.”

Where grounds for doing so exist, it is always open to defence counsel to submit to the judge in the absence of the jury that evidence of a police interview should be excluded under section 78 of the Police and Criminal Evidence Act 1984 or that the trial judge should direct the jury not to draw inferences adverse to the defendant from his silence at interview. In some cases it may be appropriate to call evidence, and then a trial within a trial will be held. If, at such a trial within a trial, evidence is given or elicited by or on behalf of the defence of the grounds on which the defendant was advised by his legal adviser not to answer police questions, that will amount to a waiver of privilege for all purposes and whether the evidence is repeated before the jury or not. The defendant cannot at any stage have his cake and eat it; he either withdraws the veil and waives privilege or he does not withdraw the veil and his privilege remains intact. But he cannot have it both ways.

In this case the defence deliberately elicited evidence of Mr Draycott’s statement at the pre-trial interview. There is nothing to suggest that he was not acting within the scope of his authority as the appellant’s agent. The appellant did not in any way dissent from or disown the statement. In the circumstances the appellant waived his legal professional privilege, and it was open to the prosecution (as the trial judge held) to question him about the information he gave to Mr Draycott.

In the present case counsel for the appellant did not invite the judge to exclude any evidence of the appellant’s interview, but did invite the judge to hold a trial within a trial to determine whether the advice given to the appellant by his solicitor was reasonable. The judge declined to hold such a trial. In our judgment he was right to do so. As this court observed in R v Argent , above, at page 35,

“........ Under section 34, the jury is not concerned with the correctness of the solicitor’s advice, nor with whether it complies with the Law Society guidelines, but with the reasonableness of the appellant’s conduct in all the circumstances which the jury have found to exist. One of those circumstances, and a very relevant one, is the advice given to a defendant. There is no reason to doubt that the advice given to the appellant is a matter for the jury to consider. But neither the Law Society by its guidance, nor the solicitor by his advice can preclude consideration by the jury of the issue which Parliament has left to the jury to determine.”

That issue, of course, is whether it is in all the circumstances proper to draw inferences from the failure of the defendant to mention when questioned by the police a fact relied on in his defence to the criminal charge. In the present case we cannot see any basis upon which the trial judge could properly have done anything other than leave that issue to the jury. Since the reasonableness of Mr Draycott’s advice was not a relevant issue, the judge was right to rule against the holding of a trial within a trial.

England and Wales Court of Appeal (Criminal Division) Decisions

BRIAN THOMAS BOWDEN, R v. [1999] EWCA Crim 331 (10th February, 1999)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bowden, R v [1999] EWCA Crim 331 (10 February 1999) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1999/331.html Cite as: [1999] WLR 823, (1999) 163 JP 337, [1999] 2 Cr App R 176, [1999] 4 All ER 43, [1999] EWCA Crim 331, [1999] 2 Cr App Rep 176, [1999] 1 WLR 823