Lord Justice Kennedy:
- On 28th February 2001 in the Crown Court at Inner London this appellant was convicted of the murder of Desmond Gordon. He was also convicted of wounding Kevin Maguire, and of assaulting Lisa Halls occasioning her actual bodily harm. He now appeals against his conviction on Count 1 of the indictment, the count of murder, by leave of the single judge. At the trial the defence which was presented in relation to that count was self-defence. Now, with the assistance of Mr Blaxland QC, who did not appear below, the appellant relies on three grounds of appeal, namely –
"(1) That the lawyers who represented him at his trial, namely Mr Stephen Leslie QC, Mr Ian Bridge and Mr Ewing, his solicitor, failed to present the additional defence that the appellant may not have been responsible for the fatal wound.
(2) That the trial judge failed to direct the jury that causation was a live issue, and –
(3) That the trial judge misdirected the jury as to the inferences which could be drawn from the appellant's almost complete silence when interviewed."
- In order to deal with the first ground of appeal it was necessary for us to hear further evidence from the appellant, and to hear evidence from the three lawyers who represented the appellant at his trial. Legal professional privilege having been waived, we have also had our attention invited to a number of documents including in particular extracts from the solicitor's file, notes written by the appellant to his counsel, opinions of counsel, and other material. Before we turn to set out the background and to make the finding of fact which are necessary and relevant in relation to the first ground of appeal we assess the witnesses who gave evidence before us. The appellant did not impress us. We make every allowance for the fact that he is in custody, he is not a lawyer, and no doubt he was anxious when giving evidence. Nevertheless we found him to be fluent and able, but devious and unreliable. By contrast Mr Leslie was plainly meticulous and totally reliable, and we were also impressed by Mr Bridge and Mr Ewing. Mr Ewing was subjected to a searching cross-examination which served only to confirm our overall impression that the appellant was fortunate in the quality of his legal representation.
The offence.
- All three counts in the indictment arose out of an incident which took place at about 8.30 p.m. on 22nd May 2000 in a block of flats at 11 Old Royal Free Square, Islington, London, N1. Kevin Maguire and his girl friend Lisa Halls lived in Flat 5, and Desmond Gordon, who was a boy friend of Maguire's sister, had also been staying in that flat. The flat was on two floors, and the front door was on the second floor of the block. Opposite to it and about 10 feet away, along a short corridor, was the front door of Flat 6, where the appellant lived with his partner, Julie Cooper. A visitor to the appellant's flat on 22nd May was Peter Murray, a friend of the appellant. About half way along the corridor between the two flats was another corridor, which went off at right angles and gave access to the stairs.
- The prosecution case was that the appellant went uninvited into Flat 5 and asked for cigarette papers. That was not well received because he surprised Kevin Maguire smoking heroin, and Desmond Gordon then left Flat 5 to impress upon the appellant that he should not enter Flat 5 uninvited. That resulted in a confrontation between the appellant and Gordon in the corridor between the two flats. Maguire said that he opened the door of Flat 5 and saw the appellant and Gordon fighting, with Gordon getting much the better of it. Maguire went on to say that he grabbed Gordon, Murray grabbed the appellant, and thus they broke up the fight. At that stage no weapons had been used, and after they returned to Flat 5 Maguire was cross with Gordon for over-reacting to the intrusion by the appellant.
- The next stage, according to Maguire, was that the appellant was heard shouting and screaming outside the flat, wanting the fight to continue. Maguire opened the front door of Flat 5, with Gordon behind him. He saw the appellant ranting and raving with two knife handles, one in each of the front pockets of his jeans. Gordon then pulled Maguire back with such force that Maguire sat down, and went past him into the corridor. The door was shut, but Maguire got up quickly and opened it. Gordon then staggered back and said "Kev, he's done me. The bastard's stabbed me." The appellant was then three to four feet away. Maguire thought that the door of his flat was open. Murray may have been in the hallway of the appellant's flat. Flat 5 was on two floors and Gordon went upstairs. Having got Gordon back inside the flat Maguire shut the door, but soon afterwards the appellant was kicking it from the outside and it was forced open. The appellant entered the flat with at least one knife, which he used to stab Maguire a couple of times. It was a large pointed knife with an eight to nine inch blade. Maguire said he got stabbed five times and cut once, and the appellant could easily have killed him "but I don't think he wanted to because he knew he had already stabbed Des badly". Lisa Halls tried to help, and she got injured. Desmond Gordon tried to come downstairs to help, but he lost consciousness on the stairs, and Lisa Halls was cradling his head and trying to hold a towel to his stomach. The appellant, having left Flat 5, returned with a pole three to four feet long with a metal spike, and he tried to use that to stab Gordon who was unconscious on the stairs.
- Murray was also there, armed with a knife. He stabbed Maguire in his left shoulder but did not do it very hard and that was the only aggressive thing Maguire saw Murray do. Maguire said 'that he didn't want to get involved. I knew his heart wasn't in it.'
- Whilst the appellant was out of Flat 5, and before he returned with the pole, Maguire had taken two or three knives and hidden them in the upstairs living room, behind a cushion, "because they are dangerous, and I didn't want anyone else getting hurt."
- Lisa Halls gave an account, which was broadly similar to that given by Maguire, but she said that at one stage she heard Julie Cooper shouting for the appellant to come back because she could not control someone she took to be the appellant's friend (that is to say Murray).
- Mr Lynam, who lived in Flat 11 downstairs, heard a noise and went to look. He saw the appellant emerge from Flat 5 and go to Flat 6, very agitated and upset, waiving his arms and saying words to the effect of "get off my back, leave me alone". Murray was trying to calm the situation down, and get the appellant back to Flat 6. The door of Flat 6 closed behind them, and all was quiet for about 10 seconds. Then Murray came out of Flat 6 and tried to persuade Mr Lynam to go away because it was not his business. The appellant then emerged, very agitated and angry, and went to Flat 5, with Murray behind him. Murray had a craft knife in his right hand, and there was more noise from inside Flat 5. Later Mr Lynam saw the appellant, Murray and Julie Cooper walk off away from the block, with her child Carla.
- Mr Jude Carpenter, who was about 20 metres away from Block 11, heard some of the shouting, including a female voice saying loudly two or three times "stop Carl, stop" or "don't Carl, don't".
- As the appellant and the others walked away three witnesses heard Julie Cooper shout to one of the two men that he had acted stupidly, and two witnesses heard one man say to the other words to the effect of "you should not have done that". To that the reply was "It's my yard".
- After Gordon had been stabbed Lisa Halls had phoned for an ambulance, and for the police, and they arrived about 15 minutes after the incident was over, Gordon had received a fatal wound, inflicted by a knife with a blade about 2 centimetres wide and 15 to 20 centimetres long. Two knives were found upstairs in Flat 5 which could have caused the fatal wound. One was hidden by a cushion, and the other was on a book case without its handle. There were finger prints of the appellant on the black handle, which was separated from the blade, but there was no finding of the deceased's blood on any blade such as to point to that blade having caused the fatal injury. As Mr Horwell for the Crown pointed out, it is not unknown for a stabbing injury to be caused by a knife on which no trace of blood is subsequently found.
- When first seen by the police both Maguire and Lisa Halls were to some extent adversely affected by what had appeared to have been a combination of drugs, alcohol and shock.
- Over a month after Gordon died, Murray attended at a police station with Mr Ewing. Murray was arrested for murder and was interviewed under caution. We will return later to that interview, but in broad terms Murray accepted that he knew of the murder, but denied having seen how Gordon died.
- The appellant presented himself to the police a week later. He too was accompanied by Mr Ewing, and when interviewed on 3rd July, 2000 he said only "self-defence, by my self. That's it."
The Defence at trial.
- The appellant gave evidence in support of the defence which he had indicated when interviewed, and in his defence statement. The material part of that document, which is dated 12th February 2001, reads -
"The defendant denies necessarily inflicting the fatal wound on Desmond Gordon. If he was responsible he acted in self-defence."
At his trial, the appellant accepted that Gordon had come to his flat because he had gone uninvited into Flat 5. He said that Gordon was armed with a knife, and as Gordon was threatening him he brought his hand up and knocked the knife up so it hit his chin. His next memory was of getting up off the floor. He did not know how he had got down there, but Gordon was leaning over him, so he grabbed his clothing, and as he was getting up his hand came into contact with something on the floor. He did not look at it, or know what it was until afterwards, but he sort of pushed Gordon away with his hand, and found that in his hand was the handle of the knife.
- Initially he expected to be told that the knife blade had been found in Gordon's body. He had also seen Maguire with a knife, and had described Gordon as a "fucking gorilla". Murray had also been there shouting "what's happening? What's going on Carl? Carl, are you alright?"
- At one stage the appellant said that he was returning to his own flat when Julie said "Carl, watch out" so he turned and saw a knife coming towards him. He wasn't sure whose hand it was in, but Peter jumped in and the appellant was trying to protect himself.
- The appellant accepted that he had returned to Flat 5 armed at a time when Gordon was sitting wounded on the stairs, but he said that he was just protecting himself, he was a victim never an aggressor. He had accepted a knife from Murray because Kevin had a knife. He did not know if he had stabbed Desmond. He accepted he had kicked open the door of Flat 5. He had left after the incident because Peter had persuaded him to do so, and Julie had wanted to go. When interviewed he did not answer questions because he was advised not to do so.
- Robert Okasha and Julie Cooper both gave evidence on behalf of the appellant. Mr Okasha's evidence does not seem to have been of much significance, but Julie Cooper said that the appellant went out into the corridor after Gordon had knocked on the door. She next saw the appellant on the floor and Gordon standing there looking aggressive. She also saw that Gordon had a knife, and said to Murray that they were fighting. Murray took something from the kitchen drawer and went out. She then saw the door of Flat 5 open, and Maguire came out with a large knife. The appellant said "your friend attacked me with a knife" and "don't send your gorilla over to me". The appellant then turned to return to Flat 6. Kevin moved towards the appellant and she then screamed "Carl" to alert the appellant. Basically everybody had knives, Peter, Kevin and Carl. Everybody seemed to go at everybody, and she shut the door. She denied that the appellant was out of control. She did not say she could not control him, meaning Peter.
- The outline which we have just given of the cases presented on behalf of the prosecution and the defence is not intended to be exhaustive, but it is we believe sufficient for the purposes of this appeal.
Ground 1: Failure to argue causation.
- In order to deal with ground 1, it is necessary to consider what the appellant's lawyers knew or ought to have known about his case prior to and during the course of the trial. As Mr Blaxland has emphasised, the appellant never did admit to a positive recollection of stabbing Gordon. In a statement which he made on 25th October 2001 eight months after conviction, the appellant said:
"For some months after the fatal stabbing of Desmond Gordon, although I had no memory of actually plunging the knife into the deceased, I believed that I was responsible for his death. I did so believe because on recovering consciousness after suffering an assault, from the deceased, I found myself in possession of the handle of the knife that had a missing blade, and I subsequently feared that missing blade was the murder weapon."
After the appellant, Murray, and Julie Cooper had left the scene of the stabbing Murray got in touch with Mr Ewing, who had previously acted for him, and whom he knew.
- Mr Ewing told us that he met Murray at a business function in 1995, and thereafter Murray referred work to Mr Ewing and other members of his firm. In 1998 or 1999 Mr Ewing had represented Murray when he was charged with fraud, and during that period Murray had visited Mr Ewing at home on a couple of occasions because it was inconvenient for him to see Mr Ewing during office hours. In 2001 or 2002 Mr Ewing gave character evidence on behalf of Murray, testifying to the way in which things had gone down hill for Murray since 1995. They had never, for example, been on holiday together, and generally the relationship which was outlined to us, and which we accept, was that Murray was a valued client of Mr Ewing with whom he had a good friendly relationship, but they were not close friends.
- Mr Ewing was out of London when Murray and the appellant contacted him after the stabbing, so the first meeting between the three men was at Euston Station. Mr Ewing told us that Murray and the appellant, whom he had not met before, were both subdued. They told him that on the previous evening there had been an incident at the appellant's home which involved someone who lived with a neighbour. The appellant had previously met Murray, not having seen him for years, and felt guilty that Murray had become involved in the incident. The details given to Mr Ewing were sketchy. The appellant and Murray did not know the victim's name, nor did they know his fate. Mr Ewing explained that even if they had known his name, a hospital would not release information to strangers. Mr Ewing formed the impression that both men were in shock. The appellant said that he had got Peter into a mess, and now he must get him out. He said that his partner, Julie Cooper, had been present, but he gave no details of what she had seen. He knew that there was a warrant out for his arrest, but it was not clear what the position was so far as Murray was concerned. Mr Ewing told us, and we accept, that he advised both men that their interests might conflict, so that he might not be able to act for both of them. They were, he said, adamant that no conflict would arise. He was asked if he would also act for Julie Cooper, and said it would be better if she went elsewhere.
- Over the next four to five weeks Mr Ewing told us that he saw the two men on three or four occasions together, and he saw Murray once alone. They wanted to know how the investigation was progressing before they were prepared to surrender, but there was never any suggestion of a conflict of interests. The appellant said he had been attacked by the deceased, and left holding a knife handle without its blade, so the fatal wound must be down to him. This was of course long before any forensic science evidence was available. When they met for the last time before either man surrendered Mr Ewing had got from the prosecution a two or three page summary of the evidence of Maguire, Halls and Lynam, and it was obvious to him that if the appellant surrendered he would be charged with murder and remanded in custody. He so advised the appellant. By that time Murray wanted to surrender.
- Mr Ewing did not make notes of his meetings with the appellant and Murray before they surrendered, but his recollection is in line with that of the appellant. At trial, when being cross-examined, the appellant said –
"Obviously me and Peter had been together throughout those five weeks, we have discussed what happened, and the more we spoke about it – we have said the only way Desmond could have got that injury is me injuring him with the brown handled knife."
When giving evidence to us the appellant said that when the matter was discussed with Mr Ewing "we tried to piece it together and came to the conclusion I must have done it, because I had the wooden handled knife in my hand." He went on to say that Murray was there in the passage between the flats where the first incident with Gordon occurred, and I think I felt bad because Murray had come to my flat after a long period of time.
- On 26th June 2000 Murray surrendered by going to a police station with Mr Ewing. He was interviewed twice on that day. He offered no comment in response to many questions, but he did say that he had nothing to do with the stabbing, and did not witness anything relevant.
- The appellant surrendered on 3rd July 2000, and when interviewed he said only "self-defence, by myself. That's it." Mr Ewing told us that the appellant was anxious to absolve Murray of all blame. He could not remember whether the words used were his, or those of the appellant, but they had been discussed. At a later stage, at the request of counsel, Mr Ewing did prepare a written note of his reasons for advising the appellant not to say any more than he did. Part of that note reads –
"As his instructions were that he acted in self-defence he should advance this but no more as would not deter the police from charging him. Client anxious to do what he could do to help Murray."
On 20th July 2000 Murray stood on an identification parade. He was not picked out by either Maguire or Halls, but it was not until 4th October 2000 that the prosecution advised Mr Ewing they would not be proceeding with the case against Murray. Meanwhile on 24th July 2000 Mr Ewing wrote to the appellant telling him of the receipt of the post-mortem report which "made pleasing reading from my point of view as it is consistent with your explanation of what occurred on the night in question and that you acted solely in self defence."
- Mr Ian Bridge of counsel was instructed, and he saw the appellant for the first time on 4th September 2000. They met again on 8th September 2000, and on 21st September Mr Bridge prepared a written advice advocating the retention of leading counsel. Part of that advice reads –
"This matter will inevitably go to trial in view of the clear instructions given to the effect that he acted at all times throughout the incident in self defence. In addition Mr Robinson remains unclear as to when the fatal blow was struck and indeed whether the fatal blow or any other blows were struck by him."
- During late September 2000 the appellant was at Belmarsh Prison, where he was seen by his solicitor and asked questions relating to the statements disclosed by the prosecution. It was put to Mr Ewing that the questions were structured to protect Murray. Mr Ewing rejected that suggestion, and we accept his rejection of it.
- Once it was clear that Mr Murray was not going to be prosecuted the question arose of whether he would give evidence for the appellant as a witness, and Mr Ewing told us that he believes that he asked another member of his firm, Mr Vieira, to ask the prosecution for access to the record of interviews with Murray. We do not know whether in fact any application for access was made at that stage.
- On 26th October 2000 Mr Ewing prepared instructions for Mr Oliver Blunt QC, and part of those instructions reads "the client has been reluctant to provide instructions until he has seen the entirety of the Crown's case (most importantly the finger print evidence) although leading counsel will see from the client's interview that he advanced self-defence although does not necessarily accept that it was he that inflicted the fatal wound on Gordon." Mr Blaxland invites our attention to what follows the word "self-defence", but the appellant's recorded reluctance to provide instructions is also revealing. Murray indicated that he would not be prepared to provide a statement without an assurance from leading counsel that if he were to be called as a witness he would not expose himself to prosecution. Mr Bridge told us that he discussed that reservation with Mr Blunt, and on leading counsel's advice Murray was told to seek independent advice, which he did.
- Mr Ewing observed that whilst on remand the appellant became more confused because, as he put it, the scientific evidence did not seem to tie in with his recollection.
- In late January or early February 2001 it became clear that Mr Blunt would not be able to represent the appellant at his trial, so on 5th February 2001 Mr Ewing drafted instructions to Mr Stephen Leslie QC which referred to the earlier instructions to Mr Blunt. In the instructions to Mr Leslie Mr Ewing wrote that it was anticipated that "the unused transcripts of Peter Murray interview (which was no comment throughout) and unused fingerprint evidence will be served this week." As already indicated, the Murray interview was not no comment throughout. Mr Ewing told us, and we accept, that his recollection was faulty as to that.
- Mr Leslie saw the appellant for the first time on 7th February 2001. In relation to that meeting part of the solicitor's file note reads –
"DG in fight with all four of us tangled up. Wants QC to advance others make it responsible."
The appellant told us in evidence that he told Mr Leslie that all four were in the passage. He said "I was warned I was being attacked." As to who stabbed Gordon, "it could have been Murray or me or anyone, we were all tangled up." Mr Leslie told us that it was never seriously suggested to him that Murray was, or might have been, responsible for the fatal wound, and if it had been there would have been no question of seeking a statement from Murray as a potential witness, which, as the note records and as everyone agrees, was discussed.
- Mr Leslie had a further consultation with the appellant on 8th February 2001, the note of which indicates that he wanted to see the clothing that the appellant had been wearing, described as "light beige trousers, blue trainers, s-shirt". There was a further consultation on 9th February 2001, and a final pre-trial consultation on 12th February 2001 by which time the lawyers and the appellant knew that Murray was not prepared to give a statement or to testify. Mr Ewing told us the appellant was cross, and referred to Murray as being a ghost who never appears. Mr Ewing on 12th February 2001 wrote a letter to the appellant, which was handed to him. It begins –
"I felt it prudent to set out for your benefit work that has been carried out on matters of strategy/tactics that have been agreed."
The third paragraph of the letter reads –
"You have very recently let us have your final statement of events which was in your own hand. This has been incorporated into a formal proof of evidence which you are due to sign today. I understand your reluctance previously to let us have your final statement because of your fear of further forensic evidence being served which may have affected your statement. This of course prevented us from serving a Defence Case Statement on your behalf. You were shown the document you wished us to serve on your behalf on Friday 9th February, and subject to a small addition you were happy with. This should be signed this morning and served on the Court and Prosecution today."
Part of the second page of the letter reads –
(3) That the trial judge misdirected the jury as to the inferences which could be drawn from the appellant's almost complete silence when interviewed."
"You know the position with Peter Murray in that you now do not want him involved. He has also informed Julie that he has taken independent legal advice regarding any prospects of him being charged with any offence arising out of his evidence. He wanted a guarantee from whatever QC representing you but that was not possible. I confirm that we should have Murray's transcript of interview this morning after trying to get it for some time but in any event it was no-comment. I also confirm I now have received Julie's interview which was likewise no- comment.
I appreciate one of the most frustrating aspects of the case has been the previous convictions you received in 1990 for S.18 Wounding. You have been fully aware, even before charges that this would hamper our efforts to undermine Mcguire, Halls and other Prosecution Witnesses and would prevent us from advancing your character without possible dire consequences."
(3) That the trial judge misdirected the jury as to the inferences which could be drawn from the appellant's almost complete silence when interviewed."
When giving evidence before us the appellant denied being reluctant to sign his proof, and said that up to the last day of the trial he expected Murray to come to court to tell the truth. In the light of, in particular, the letter of 12th February 2001 we do not accept his evidence.
- Mr Leslie annotated the appellant's typed proof to add references to the clothing which the appellant had been wearing and which had been worn by Murray on the day of the stabbing. In his proof the appellant, at paragraph 20, speaks of there being a knock on his front door. Julie answered, and he then took her place. He found Desmond outside in the passage. There was an exchange of words, and paragraph 21 continues –
"He then went to stab me in the neck I leant back and at the same time instinctively brought my hand up which came in contact with the knife and the knife with my chin. I think this might have been where the knife broke but I did not realise this till much later after this happened. I don't remember anything apart from being on the floor with Desmond leaning over me with a knife I grabbed his leg and picked up a knife off the floor this was by pure chance. I don't recall looking at the knife I tried to push him away from me but he just walked off.
By this time Julie and Peter were by the front door and I stood up with a brown wooden handle in my hand with no blade. It was this handle in my hand that made me say self defence on my own. I do not know at what time Julie and Peter got to the front door so I don't know if they had even seen Desmond."
The proof of evidence contains no reference to anyone thereafter having any physical contact with Desmond.
- When the appellant eventually saw a transcript of Murray's interview with the police he was, as Mr Leslie put it, incandescent, no doubt because it was clear to him that Murray could not be called as a witness without having to explain why he had told the police that he had seen nothing.
- Mr Leslie told us, and we accept, that after Maguire had given evidence the appellant was the only realistic candidate when it came to deciding who had inflicted the fatal wound, and that impression was underlined by the evidence of Lisa Halls and Lynam. Murray had never been seen in a position from which he might have stabbed, nor had he been seen to be in possession of a suitable weapon. Mr Leslie told us that he even explored the possibility that Maguire might have administered the fatal blow by accident, but that exploration came to nothing.
- When Lisa Halls was giving evidence on 15th February 2001 the appellant was actively by means of notes raising issues with his leading counsel which he wanted explored. For example –
"Somewhere she or Kevin mentions they keep the door lock for police reason."
Mr Leslie having been prompted asked the witness if the door was kept locked, but was told that it was not kept locked all the time. Maguire had said at one point that the aggressor was wearing dark clothing, and the appellant wanted that put to Lisa Halls, but, most significantly for present purposes, after Mr Leslie had finished cross-examining Lisa Halls, the appellant expressed his irritation that Mr Leslie had not questioned her about parts of her statement which suggested that Murray had also been involved. She had said in her statement that when the trouble began "one of Carl's friends was getting involved as well, a black guy I've never seen before." Lisa Halls in her statement said that later when the appellant was in her flat she heard Julie Cooper shout "he's going mad, he's going mad, Carl I can't calm him down, I can't calm him down". At the end of her statement Lisa Halls said of the appellant's friend –
"He was right game, right up for it, he was going mad."
Prompted by a note which asked "how come you went against my instructions about Peter?" Mr Leslie obtained leave to cross-examine further. Thus Lisa Halls was given an opportunity to make it abundantly clear that Murray was only going mad at a later stage, well after Gordon had been stabbed. Mr Leslie asked the witness if Murray might have done the stabbing and she said –
"No, because the position of everyone was in. Julie and the other man was in the flat … "
Prosecuting counsel resumed re-examination, then Mr Leslie asked for and was granted leave to put to Lisa Hall a passage from her police interview where she said –
"Either him or his friend, I don't know who it was, one of them killed Desmond."
When asked about that Lisa replied –
"That's right. I never see anyone actually stab Desmond, no, but from the position everyone was in because Carl – I mean sorry Peter and Julie was in their own flat and he was in the kitchen rummaging through things and she was shouting out, he's going mad and getting things or whatever, but Carl was just outside and Desmond fell in, as I said, and not just that, if it had been the other man, I am sure I would have picked him out on the ID parade because I would have seen a lot more of him, so I would have picked him out on the ID parade."
We are satisfied that it was at that stage that Mr Leslie received another note which read –
"Bury it – the Peter issue."
That note was in our judgment a sensible recognition by the appellant that in the light of the evidence any attempt to breath life into the issue of causation must now be regarded as being at an end.
- As Mr Leslie pointed out, it had never been his instructions that Murray killed Gordon, and the case for the appellant in relation to self-defence was not assisted by drawing attention to aggressive behaviour on the part of Murray. It was the deceased who was alleged to be the aggressor.
- When the appellant gave evidence on his own behalf he never once suggested that Murray might have been responsible for Gordon's death, although he had ample opportunity to do so. He was, for example, asked about knives which Murray had, and in cross-examination he was asked –
"Q. Did you think you had stabbed Des?
A. No – well, I don't know. At that time, I don't know. I know now obviously because there is just one injury
Q. Let us not worry about your state of mind now… you had no reason to think that you had stabbed Des did you?
A. I didn't know who I stabbed at that stage.
Q. So you had no reason to think that you had stabbed Des?
A. No"
Later he was asked about what he said to Murray as they walked away, and he said in evidence –
"I said to Peter, 'he was in my yard' not 'it's my yard'.
Q. Meaning what?
A. Meaning that Kevin was in my house."
When he wanted to suggest that Murray may have caused injury he had no hesitation in doing so, as he did in relation to the injuries sustained by Maguire. He said –
"I can explain the two to his chest and probably one or maybe two others, but I can't explain the rest, it could only have been Peter – could have only have been Peter."
- On 19th February 2001 when Mr Leslie was making his final speech to the jury the appellant wanted it emphasised that Maguire had said that the aggressor was wearing dark clothing, whereas the appellant's trousers were beige. It was not a useful point because by then, as Mr Leslie told us and as the appellant himself previously recognised, self-defence was the only realistic defence, and we accept Mr Leslie's professional judgment that although in this case it was possible to put the prosecution to proof in relation to causation without logically undermining self-defence, in the eyes of the jury the appellant's case would be bound to be weakened if his counsel sought to leave in issue a point on which he could not possibly succeed.
- It is no surprise to us that after the verdicts were returned the appellant thanked his legal team and said he did not believe that there was anything else that could have been done. That is recorded in a solicitor's attendance note. Only later did there emerge what is now the first ground of appeal before this court. As Mr Ewing said to us, Carl only said Peter might have done it after the trial.
Ground one: Submissions.
- Mr Blaxland submitted to us that there are three issues for us to consider in relation to ground one, namely –
"(1) Did the appellant's legal representatives at trial fail to act on his instructions that Murray may have been responsible for the fatal wound?
(2) Was the presentation of his defence in relation to causation compromised by Mr Ewing's prior professional relationship with Murray?
(3) Was counsel entitled to take a tactical decision to abandon part of the appellant's defence without express instructions from him?"
As to the first issue, Mr Blaxland recognised the existence of the conflicts of evidence to which we have referred, but he emphasised that until quite a late stage the appellant regarded Murray as a potential witness, and he questioned why the possibility that Murray may have been responsible for Gordon's death was not more fully explored.
- As to the second issue, Mr Blaxland pointed out that Murray was a valued client of Mr Ewing's firm and submitted that in the circumstances there may be a lingering doubt that Mr Ewing's judgment in the preparation of the appellant's defence may have been affected by his prior professional relationship with Murray. He invited us to regard Mr Ewing as lacking in candour when he said that he had asked Mr Vieira to seek access to the police record of interview with Murray prior to January 2001. We see no reason to accept that invitation. So far as we can ascertain Mr Ewing was a totally honest witness. Mr Blaxland submitted that Murray having told the police that he was not present when Gordon was stabbed, it suited Murray for the appellant to say "self-defence, by myself. That's it." We agree, but that only serves to illustrate that, as Mr Ewing said, there was no apparent conflict of interest so far as his two clients were concerned.
- Turning to the third issue, Mr Blaxland submits that there were powerful arguments to pursue the issue of causation. The appellant always said he had no recollection of stabbing Gordon, so causation could be put in issue as well as self-defence, and there was no scientific evidence to link the appellant, a knife and the deceased.
- But, as Mr Horwell submitted, the short answer to the first issue is that, as we find, the appellant never did give the instruction upon which he now seeks to rely. At times he flirted with the issue of causation and his lawyers did what they could to assist him, but it eventually became totally moribund, and the appellant himself expressly recognised that. As Mr Horwell said, to have pursued that issue in the later stages of the case would have only invited dissent and perhaps even ridicule in the minds of the jury, and it is significant that the appellant, who was plainly taking a keen interest in his trial, and who provided hand written proofs as well as notes to his counsel, never sought to pursue the issue of causation when giving evidence from the witness box. Murray received no injuries, no print of his was found on any knife, and although the appellant chose to describe himself as a victim he did not seek assistance or surrender to the police. Indeed after the violence he left the scene and went to ground. We are satisfied that from first to last the appellant's lawyers were careful to obtain and follow his instructions, and to explore any defence which might realistically be available to him. The presentation of his defence was not in any way compromised by Mr Ewing's prior professional relationship with Murray, and the decision to abandon what was left of the issue of causation was taken by the appellant himself and conveyed to counsel by note. Accordingly there is no substance whatsoever in the first ground of appeal, and it is a matter of regret that much time and money has had to be expended in order to arrive at that conclusion.
Ground Two: Judge's Direction re Causation.
- The second ground of appeal does not require elaboration. When summing up the judge said –
"If you are sure that Carl Robinson stabbed Desmond Gordon in the stomach in the way that we have heard so much evidence about, and you are sure that he was not acting lawfully when he did that, and that he intended at least to cause him serious injury when he did it, then he is guilty of murder."
After the jury had retired they sent a note to the judge asking him to repeat his explanation of the law as it related to count 1, and the judge then said –
"He is guilty of murder if: first, you are sure that he fatally stabbed Desmond Gordon: second, he was acting unlawfully at the time when he did that … that is to say that you are sure that he was not acting in self-defence: and third that he intended at the time when he stabbed him either to kill him or cause him grievous bodily harm (very serious injury). If he was or may have been acting in self-defence, then he was not acting unlawfully and the verdict is not guilty."
Mr Blaxland submits that the judge should have said more about the issue of causation. We disagree. As we have explained, by the end of the trial it was in reality not a live issue, and no summing up should dwell on issues which are no longer alive.
Ground 3 – Alleged misdirection on adverse inferences from silence in interview
- Mr Blaxland submitted as follows. (1) Where a defendant relies on advice from a solicitor as a reason for failing to mention facts, the judge's direction to the jury must make it clear that it is not the quality of the advice, but the genuineness of the defendant's decision that matters (see Betts and Hall [2001] 2 Cr. App. R. 257). The direction to the jury failed to comply with that requirement. The judge devoted the substantial part of his direction to a critique of reliance on solicitor's advice as a reason for avoiding the adverse inference. At the conclusion of the direction the judge directed the jury that they could reject the appellant's explanation for failing to answer questions in interview because it was not "an adequate explanation". This was a fundamental misdirection because it failed to make it clear that it was not the quality of the solicitor's advice that mattered, but whether the appellant genuinely relied on that advice. (2) In various observations the judge went beyond the bounds of appropriate comment. The passages "So why should not somebody be required to say what their explanation was at an earlier stage and that is what Parliament decided" and "you may think that if it was possible for somebody to get out of this obligation, if that is the right word perhaps it is not quite, to say something about the situation and the crime that is being alleged against them..." tended to suggest some form of obligation or requirement to answer questions. It was not appropriate for the judge to direct the jury as to what did or did not amount to a good reason for failing to mention facts when questioned. (3) The direction read as a whole was fundamentally unbalanced.
- The judge discussed the question whether a section 34 direction was appropriate with counsel before final speeches. We have seen a note (but no transcript) of the discussion. The note records that "all agree that [section 34] applies". The judge is recorded as saying that he would give the standard direction and remind the jury of the very limited answer of the appellant.
- At the date of the summing-up (26 February 2001) the judge would have had available to him the May 1999 version of the Judicial Studies Board standard direction 40 (Defendant's failure to mention facts when questioned or charged section 34 CJPOA 1994). A revised direction was issued in July 2001.
- The judge's directions on the appellant's failure to mention facts when questioned were as follows:
"One other matter of law that I must direct you about and it concerns what happened when the police sought to interview the defendant Mr Robinson after he had given himself up and been arrested. When he was arrested and at the beginning of his interview he was cautioned as you heard in evidence; he was told that he did not have to say anything at all, but that it may harm his defence if he did not mention, when questioned, something which he later relied on in court and anything he did say may be given in evidence, and yet, as you know, he did say a very few words, I have just made reference to them, but it is in your admissions beginning with self-defence. We will look at the detail of it later. As part of his defence, particularly in Counts 1 and 2, he relies upon self-defence, but he said nothing else. The prosecution sought to -- the prosecution, then in the shape of the investigating detectives, sought what he had to say about how it all happened, but he gave no details at all. None which suggested he was the victim rather than an aggressor; the victim of the people in flat 5, which is what he said to us last week; the actions by both Desmond Gordon and Kevin Maguire with their knives on at least three occasions it would seem, there is none of that and, of course, you heard his evidence being given, it took quite a long time, but the Crown say he could have said all that sort of thing at the time. Why has he not? As he did not say anything in detail about it then you could conclude that his explanation, the details of it, certainly, have either been invented since or have been tailored to fit the prosecution case, which, of course, he did not know at the time of his arrest, and would not fully receive until some days or weeks later. He would receive a copy of all the prosecution witnesses statements; or he may have believed that if he gave some details then they would not have stood up to scrutiny and subsequent cross-examination. What does the law say about this situation? As you will appreciate it came into existence some years ago because it was felt rather unfair that the defendant, when arrested, could simply say nothing at all and then could get hold of the bundle of prosecution witnesses statements and see what case he had to meet and come to court and tell everybody for the first time, this is my explanation. So should not somebody be required to say what their explanation was at an earlier stage and that is what parliament decided. Of course they did not change the law because the very first words of the caution tell him that he does not have to say anything at all. However, the law goes on; it may harm his defence, may harm him in your eyes, if he does not give the details at the time of his arrest and interview. So the law now is that you may draw such inferences as appear to you to be proper from his failure to mention at that time all the details that he has now given to us from the witness box. You do not have to hold it against him, it is for you to decide whether it is proper and fair to do so in the circumstances. Of course failure to mention these things at the time cannot, on its own, prove his guilt, but depending on the circumstances, as you find them to be, you may hold his failure against him when deciding whether or not he is guilty if you are sure that, regardless of his failure to give an explanation then, there is a case for him to meet. It is for you to decide whether the prosecution are right and that in the circumstances, which existed at the time, it was reasonable that he should have mentioned all the things that he has told us about now. The defence, of course, as you appreciate, invite you not to hold this against him particularly because his solicitor, he tells us, had advised him not to answer questions. Though, of course, you appreciate that he is told in the words of the caution, administered at least twice, and you may think also from the solicitor, though we have not heard from the solicitor, but you may think that no sensible solicitor would be doing his duty if he did not say, well my advice, take it or leave it, is to keep your mouth shut, but I must warn you if you do not give you explanation now it may be held against you. It may harm your defence, just what the police officers are going to say a moment ago -- a moment later when the interview begins, so an intelligent and adult person must have this in mind, and you may think that if it was possible for somebody to get out of this obligation, if that is the right word perhaps it is not quite, to say something about the situation and the crime that is being alleged against them at the time when they are being interviewed, could be obviated by a solicitor saying, well, you know, I advise you not to say anything and nobody would hold it against you, then that would drive the proverbial coach and horses through the legislation enacted by parliament. Although perhaps a jury trying a very young defendant would say, well here was this little boy or little girl charged with a serious matter and the solicitor said, well if I were you I would not say anything and then probably it would not be right to hold it against such a person, but it is for you to determine what the circumstances are in this case. You may think it is rather different for an adult, but it is up to you. If you do not think it is fair to hold it against him, I say again, then do not do so. However, on the other hand, if that explanation; that his solicitor gave him that advice, does not, in your view, provide an adequate explanation and you are sure that the real reason for his failure to descend the particulars then was that he had no innocent explanation to offer, you may hold his failure against him." (Volume 1 pages 19C – 24B).
"...interviewed the same day just after 3.00 in the afternoon and just before 4.00. Represented by a solicitor. At the beginning of each interview he was cautioned, that he need not say anything, but it may harm his defence if he failed to mention when questioned something which he later relied upon in court. Anything he did say may be given in evidence. All he said was, "Self-defence. By myself. That's it." Then at the end, "I'm just sorry that anyone had to die in a situation like this." (Volume II pages 44E – 45 A).
"...I didn't answer questions in interview because I was advised not to. The doctor examined me for injuries. The solicitor asked the doctor to note my right thumbnail." It was suggested to him that in interview he had not told the police what he had told you, the jury, because he had thought up the details since. He denied it." (Volume II page 63E – F).
No complaint about these directions was made at the time of the summing-up.
- Section 34 of the Criminal Justice and Public Order Act 1994 provides so far as material:-
"(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...
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.
- The following propositions are drawn from the authorities as to section 34.
(1) Before a jury may draw inferences from a failure to mention facts when questioned it is a condition that the appellant failed to mention a fact which, in the circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned. Account must be taken of all the relevant circumstances existing at the time of questioning. Matters such as time of day, the defendant's age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances. Reference to "the accused" directs attention to the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time. It is for the jury to decide whether the facts which the defendant has relied on in his defence in the criminal trial, but which he had not mentioned when questioned under caution before charge are facts which in the circumstances as they actually existed, the actual defendant could reasonably have been expected to mention. This is a question to be resolved by the jury in the exercise of their collective common sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for reasons, such as that he was tired, ill, frightened, drunk, drugged, unable to understand what was going on, suspicious of the police, afraid that his answer would not be fairly recorded, worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury. In other cases the jury may conclude, after hearing all that the defendant and his witnesses may have to say about the reasons for failing to mention the facts in issue, that he could reasonably have been expected to do so. This is an issue on which the judge should usually give appropriate directions. But the judge should ordinarily leave the issue to the jury to decide. Only rarely would it be right for the judge to direct the jury that they should, or should not, draw the appropriate inference. (Brian Argent [1997] 2 Cr App R 27 at 33, Lord Bingham LCJ).
(2) 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 defendant's conduct in all the circumstances which the jury have found to exist. A highly relevant circumstance is the advice given to a defendant. The advice given to the defendant is a matter for the jury to consider. 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 the jury to determine. (Brian Argent [1997] 2 Cr App R 27 at 35 – 36, Lord Bingham LCJ).
(3) What is crucial is not the correctness of the solicitor's advice, but the reasonableness of the defendant's conduct in all the circumstances which the jury find to exist, including the giving of that advice. Evidence from the defendant that he had been advised not to answer questions in interview (in the absence of any reason for the advice) is not likely to be regarded as a sufficient reason for not mentioning facts relevant to the defence. The evidence must generally go further and indicate the reason for that advice, for this must be relevant when the jury are assessing the reasonableness of his conduct in remaining silent. Good reason for advice to remain silent may arise if, for example, the interviewing officer has disclosed to the solicitor little or nothing of the nature of the case against the defendant, so that the solicitor cannot usefully advise his client, or where the nature of the offence, or the material in the hands of the police is so complex, or relates to matters so long ago, that no sensible immediate response is feasible. (R v Roble [1997] Crim L R 449, Rose LJ).
(4) There may be good reason why an accused is advised by his solicitor to maintain his silence. Provided appropriate safeguards are in place, an accused's silence, in situations which clearly call for an explanation, can be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution against him. (Condron v The United Kingdom [2001] EHRR 1, paragraphs 60 and 61, ECHR).
(5) The drawing of an adverse inference from silence may infringe Article 6 of the Convention. The issue whether it does or does not turns on whether an appropriate balance has been drawn between the exercise by an accused of his right to silence and the fair drawing of an adverse inference by the jury. Section 34 has to be interpreted, if possible, in a way which is compatible with a defendant's Convention right to a fair trial under Article 6.1. The Court is bound to take into account the view of the Strasbourg Court that a direction that left "the jury at liberty to draw an adverse inference notwithstanding that it may have been satisfied as to the plausibility of the explanation", amounted to a breach of Article 6.1. If it is a plausible explanation that the reason for not mentioning facts is that the particular appellant acted on the advice of his solicitor and not because he had no, or no satisfactory, answer to give, then no inference can be drawn. This does not give a licence to a guilty person to shield behind the advice of his solicitor. The adequacy of the explanation advanced may well be relevant as to whether or not the advice was truly the reason for not mentioning the facts. A person, who is anxious not to answer questions because he has no, or no adequate, explanation to offer, gains no protection from his solicitor's advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts. (Betts and Hall [2001] 2 Cr. App. R. 257, paragraphs 34, 51, 53 and 54, Kay LJ).
(6) The right to silence cannot and should not prevent an accused's silence, in situations which clearly call for an explanation from him, being taken into account in assessing the persuasiveness of the evidence adduced by the prosecution. (Beckles v The United Kingdom 8.1.03. paragraph 58, ECHR).
(7) A defendant retains a right to silence, which section 34 protects, not in absolute terms, but by providing that adverse inferences may be drawn only in those cases where he could reasonably have been expected to mention the facts in question. It should not be thought that if a suspect remains silent on legal advice he may systematically avoid adverse comment at his trial. What is reasonable depends on all the circumstances. The absence of a written statement from a complainant is not a good reason for silence (if adequate oral disclosure of the complaint has been given), and it does not become a good reason merely because a solicitor has so advised. The kind of circumstance which may most likely justify silence will be such matters as the suspect's condition (for example ill health, mental disability, confusion, intoxication and shock) or his genuine inability to recollect events without reference to documents which are not to hand, or communication with other persons who may be able to assist his recollection. (Howell 17.1.2003 (unreported) Laws LJ, paragraphs 23 and 24).
(8) A misdirection of the jury can result in a breach of Article 6, but it may not do so. It depends on the circumstances of the case. The Court will approach the issue of lack of safety in the same way as the Strasbourg Court approaches lack of fairness. The Court will consider whether the omission of the required direction had in fact achieved unfairness or impaired the safety of the conviction, not drawing any distinction between the two tests (Francom and others [2001] 1 Cr. App. R. 237, Lord Woolf LCJ).
- We emphasise the importance of the word "reasonably" in that part of section 34(1) which reads "being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned". It is for the jury to consider whether a defendant could reasonably have been expected to mention the facts on which he now relies. This is of central importance in any section 34 direction.
- In the present case when interviewed the appellant said "Self-defence. By myself. That's it". In evidence he said "...I didn't answer questions in interview because I was advised not to." There was no evidence as to the reason for that advice. A section 34 direction was appropriate and the defence do not appear to have argued otherwise. The JSB specimen direction (as revised, see Archbold 15-334) should have been tailored to the present case. It was for the jury to decide whether the facts which the appellant relied on in his defence at trial, but which he had not mentioned when questioned under caution before charge, were facts which in the circumstances he could reasonably have been expected to mention.
- The judge's direction in the present case was not a model direction. In our judgment, however, when read as a whole it was not a misdirection. The direction rightly emphasised that it was for the jury to decide whether the facts which the appellant had relied on in his defence at trial, but which he had not mentioned when questioned under caution before charge, were facts which in the circumstances he could reasonably have been expected to mention. It was open to the judge to point out that evidence from the appellant that he had been advised not to answer questions in interview (in the absence of any reason for the advice) was not likely to be regarded as a sufficient reason for not mentioning facts relevant to the defence, provided he directed the jury (as he did) that it was a matter for the jury to draw such inferences (if any) from the failure to mention any facts relied on at the trial as appeared proper (to the jury). The observations of the judge did not go beyond the bounds of appropriate comment. The passages including the words "required" and "obligation" should be read in context. The direction when read as a whole was not fundamentally unbalanced. Further the direction was not such as to render the conviction unsafe.
Conclusion.
- Accordingly we find no substance in any of the grounds of appeal, and the appeal against conviction is therefore dismissed.
