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Cite as: [2000] EWCA Crim 84

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MILFORD, R v. [2000] EWCA Crim 84 (21st December, 2000)

Case No: 1999/07176/Y4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 21st December 2000

B e f o r e :

LORD JUSTICE POTTER

MR JUSTICE BENNETT

and

MRS JUSTICE RAFFERTY

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R


- V -



DAVID JOHN MILFORD


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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Andrew Mitchell QC and Andrew Maitland Esquire (instructed by HM Customs and Excise for the Crown)

David Osborne Esquire (instructed by the Registrar for the appellant)

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Judgment

As Approved by the Court

Crown Copyright ©

POTTER LJ:

INTRODUCTION

1. On 27th October 1999 in the Exeter Crown Court before His Honour Judge John Nelligan and a jury, after a trial lasting eighteen days, the applicant was convicted of conspiracy to import a controlled drug namely cannabis and, on 21st January 2000, he was sentenced to eight years Imprisonment. In addition, a Drug Trafficking Confiscation Order was made in the sum of £13,242. Following his conviction he applied for leave to appeal against conviction and sentence. He was refused leave in both respects by the single judge. He also made separate application for leave to appeal against the Confiscation Order (Ref: 2000/4778/Y4) which was listed separately for hearing before the Lord Chief Justice, having been referred to the Full Court by the Registrar in the light of various grounds relating to the Human Rights Act 1998 ("the 1998 Act").

2. On 10th November 2000 the Full Court granted the appellant leave to appeal against his conviction on one only of the several grounds of appeal on which he sought to rely. That ground related to the fact that following his arrest, the appellant had given a "no comment" interview on the advice of his solicitor. He contends that the judge did not give an adequate direction to the jury on that topic taking into account the requirements of section 34 of the Criminal Justice and Public Order Act 1994 and Article 6 of the European Convention on Human Rights: see R -v- Frankham and others, 31st July 2000, No. 99/3936/W5, in which Lord Woolf CJ considered the implications of the judgment of the European Court of Human Rights ("ECHR") in Condron -v- The United Kingdom (Application no. 35718/97) 2nd May 2000 and [2000] Crim LR 678 ("Condron -v- U.K.").

3. The Full Court directed that if the appellant wished to renew his application in respect of any other ground of appeal he should give advance notice to the Full Court and submit a Skeleton Argument. Pursuant to that direction, the appellant, by the Skeleton Argument of his counsel, Mr Osborne, gave notice of the appellant's wish to renew his application in respect of a ruling by the trial judge which (i) restricted the right of the appellant to ask questions about the nature and extent of the surveillance operation pursuant to which the appellant and his co-defendants had been arrested and (ii) held that there need be no further disclosure on the matter, it having prior to trial already been the subject of an ex parte application to the trial judge by the Crown pursuant to s.7(5) of the Criminal Procedure and Investigations Act 1996 and Paragraph 2(3) of the Crown Court (Criminal Procedure and Investigations) Act 1996 (Disclosure) Rules 1997. We granted leave in respect of this ground at the outset of the hearing of the appeal.

THE FACTS

4. The appellant was indicted with three co-conspirators. They were Dene Bennellick and John Von Scharfenberg, both of whom pleaded guilty to conspiracy and were sentenced to six years imprisonment, and David John Barlow, in respect of whom the jury were discharged from giving a verdict in the course of the proceedings, but who was re-tried and convicted in January 2000, being sentenced to five years imprisonment. Two others named Dixon and Richter were said to have been involved in the conspiracy, but Dixon was never found and Richter, having been arrested at his home, walked out and subsequently escaped. The conspiracy related to the importation of 838 kilos of cannabis into the country from Spain with a street value of £3 million in September 1998, under cover of the business activities of a company called IMF which manufactured boat cradles in Plympton, Devon. The drugs were imported inside the hollow framework of two of the cradles. The business was run by Bennellick with the assistance of the appellant. He visited Spain on three occasions in 1997, ostensibly with a view to finding business outlets for the sale of the cradles. All of the co-accused visited Spain on various dates in 1998 in connection with the business; however the prosecution had no evidence that the appellant's purpose was other than a holiday visit to Santander in August 1998.

5. The three trips of the appellant to Spain in 1997 were as follows. First, in May 1997 he flew with Bennellick to Barcelona for a trip lasting five days. On 6th August he flew again to Barcelona to find a business unit for Bennellick; he signed a document for the rental of a unit in Mataro, which was later cancelled by Bennellick who said it had inadequate access for lorries. In the same month Bennellick contacted a company called Estonia Transport to transport boat buggies to the UK from Barcelona where they were being built in time for the Southampton Boat Show. No record was found of Bennellick, IMF or motor buggies by the company that ran the boat show. Finally, on 6th December, the applicant visited Lloret De Mar accompanied by an `Albert Brown' who the Crown submitted was Barlow. A Mr Perry, the sub-contractor of Estonia drove out from the UK to collect three boat trailers from Lloret. He met Bennellick there and also a man called Dave who gave him money, who was said by the Crown to be the applicant. Perry then delivered the buggies to IMF at Plympton to warehouse premises leased by Bennellick. The Crown said the appellant and all his co-defendants were in Spain at the same time when the buggies were transported back. All this was alleged by the Crown to be a dummy run for the planned importation in 1998.

6. In February 1998 Mr Perry transported two buggies for Bennellick from the unit in Lloret to a company called Launceston Metal Fabrications for repairs to the hydraulics. He there met Bennellick. On 28th April the buggies were transported back out to Barcelona to premises of which Barlow had taken a tenancy in the name of a bogus company called Tetra Services set up by Bennellick. The Crown's case was that these were the buggies containing the cannabis found later in September 1998.

7. In August 1998,a company called Transco was contacted by a man who the Crown said was Dixon to quote for moving a boat hoist from Barcelona to London on 3rd September, the driver being a David Barrett. Mr Barrett set off on the 23rd August and travelled to north-west Spain. When he arrived there he received further instructions to go to Barcelona to load the two buggies which he did on 31st August unaware that they contained cannabis. On 1st September 1998, Dixon arranged transportation of the cradles to London with a firm called Terranova to arrive on 4th September. They arrived at Portsmouth on 2nd September, proceeding on to Terranova's yard in Reading. There, Dixon told Terranova the buggies were to go to Plympton and not to London (it was never in fact the intention to transport the buggies to London). On 4th September at 7.30am, the lorry was met by Bennellick at the IMF unit on the Langage Estate in Plympton.. By 9am the two buggies were unloaded. On 5th September Bennellick revisited the premises and Von Scharfenberg was in contact with Richter. On 6th September, Bennellick was observed unpacking the drugs. He telephoned the appellant immediately afterwards, leaving the premises five minutes later. He was then arrested.

8. Whilst Barrett, the driver, was en route from Spain, the appellant met Von Scharfenberg on 29th August at the Three Pigs pub at Crediton, where they were under surveillance. The surveillance officer saw the appellant write something down and, later, at a search of his premises the car number of the surveillance vehicle was found. On 2nd September, Von Scharfenberg telephoned Dixon and the appellant and met the appellant at Exeter Service Station. The appellant was watched using a public telephone box and later he telephoned IMF on his mobile. On 4th September at 16.37 Bennellick called the appellant. On 5th September at 10.55 the appellant met Von Scharfenberg at a café at Willend and on 6th September Von Scharfenberg was arrested.

9. On 7th September, the appellant was arrested and cautioned, his house was searched and cash of £7130 was found in varying amounts; also two mobile telephones and a pager; an address book; Santander holiday receipts and a Spanish phrase book. Two mobile phone statements were found at his mother's house. On searching his car, a Customs Officer found an atlas of Spain open at a map of Barcelona. He also found a map of Santander.

10. In interview, the appellant gave a largely `no comment' interview to which we will turn in more detail below.

THE APPELLANT'S EVIDENCE

11. In evidence, he described his family and circumstances and admitted to being an undischarged bankrupt. He said he was an entrepreneur and made money from property deals. He had three offshore companies registered in the Isle of Man for legitimate tax avoidance purposes prior to his bankruptcy. He had accrued £350,000 in property transactions through the offshore companies. He also sold a hotel he owned with a partner for £1.3 million, making a profit of £50,000 to £60,000 on the sale. He said that since his bankruptcy he had been interested in an antiques business in Canada to be run by his niece and her husband which would be supported in England by an antique partnership in Honiton, Devon. He withdrew £200,000 in total in cash from the business, as it was easier to purchase antiques in cash. He said the partnership was supplied with money given to it by himself and his accountant, Nicholas Bliss to whom he had previously given money in cash in order that the could control finances. He said that he spent a great deal of time on the venture in 1998.

12. He said that in 1997 Bennellick had interested him in a venture selling boat cradles in France and Spain, they travelling to Spain together in May 1997 to find suitable outlets to store the boat cradles, he signing the rental on the unit at Mataro, also meeting David Perry. He said that by December he realised the business would not make sufficient profit and decided to concentrate on the Canadian antiques business. He was paid off with £4,000 for expenses by Bennellick in October 1997 without any receipts being required, his only visit to Spain in 1998 being on holiday with his son to Santander. He admitted the meeting at the Three Pigs where he said that he and Von Scharfenberg had probably talked about participation in a car rally. He said he had written down the car number as he was afraid that men at the bar were planning to steal his car. He admitted meeting Von Scharfenberg later at Exeter Services and at the Willend Restaurant, again, as he said, to discuss proposed entry to the car rally. He was adamant that on the day of his arrest the atlas in his car had not been open when it was found and said that the Customs Officer who said so was lying. He accepted that the mobile phones and the pager were his, or certainly available to him, and that he used them from time to time to keep in touch with various persons. He said their possession was for innocent purposes and he denied any involvement in a conspiracy to import drugs.

13. In short, save in respect of the atlas, the appellant did not challenge any of the history or the observation of the surveillance officers so far as they related to him. He merely offered innocent explanations for any contacts with his alleged co-conspirators which were established by the Crown.

14. The evidence of Mr Nicolas Bliss, the appellant's accountant, was read. It said he had met the applicant in 1994 when he was bankrupt and could only operate through a family business with his mother as sole director and himself as consultant. Bliss had helped him raise finance for the Canadian venture. He said he had received £200,000 over a short period from the appellant in various amounts, the appellant stating that the source of the money was family and friends. He said he had never any reason to suspect the money or its source was other than genuine. The statement of a Mr Giltsoff was also read. It confirmed the setting up of the antiques business in Canada and that he had been handed cash at the shop in Honiton to buy antiques for Canada on six different dates. Bliss handed over the money but, on half of the occasions, the appellant was present.

15. The prosecution case against the appellant was chiefly founded upon its contention that Bennellick, as the chief conspirator, could only have operated the plan by maintaining contact with the other conspirators. In this respect, there was evidence of telephone contact between IMF and Bennellick on the one hand and the appellant on the other on 195 occasions as compared with Richter (nil), Dixon (2), Barlow (2) and Von Scharfenberg (3). Thus, the prosecution submitted, it was plain that the contact man was Bennellick's close friend, the appellant, whom he had telephoned immediately after the unloading of the drugs. The prosecution also relied upon the meetings between the appellant and Von Scharfenberg on 29th August at the Three Pigs, 2nd September at Exeter Services, and on 5th September at the café at Willand.

16. In summing-up to the jury the judge examined the schedules relating to the calls in some detail, outlining the case for the prosecution. He twice emphasised to the jury that the appellant should not be convicted of the charge simply upon the basis of his association with Bennellick or Von Scharfenberg unless they were sure that the association related to an agreement to smuggle cannabis resin into the country. On the second occasion, he said:

"You must not be tempted to find Mr Milford guilty simply because of his friendship or association with an admitted conspirator, Mr Bennellick, or his friendship or association with Mr Von Scharfenberg, unless, of course, you are sure that that association concerns an agreement to smuggle cannabis resin into the United kingdom and that that agreement was made between the dates charged in the indictment."

Later, the judge said:

"The prosecution in this case invite you to look at the entire evidence of what was happening during the period covered by the indictment - that is 1st January 1998 to 8th September 1998 and also the behaviour of Mr Milford in the preceding period, April to the end of December, as being important background to prove that he was a party to the illegal agreement in 1998. Therefore, where there is no direct evidence, the prosecution rely upon what in law is called circumstantial evidence to prove that Mr Milford was a party to the conspiracy to import cannabis resin into the country.

Circumstantial evidence can be powerful evidence. However, it is important that you should examine it with the greatest care, and consider whether the evidence upon which the prosecution relies is proof of its case against this defendant, whether it is reliable and whether it does prove guilt ...

.. you should be careful to distinguish between arriving at conclusions based upon reliable circumstantial evidence and mere speculation. Speculation in a case amounts to more than guessing, or making up theories without good evidence to support them; and neither the prosecution, the defence, nor you, should do that."

THE `NO COMMENT' INTERVIEW

17. During the course of his interview, the appellant answered "no comment" to all save a few preliminary questions put to him by the Customs Officer interviewing him. The relevant parts of the interview ran as follows. After a few preliminary questions about his address he was asked how much rent he paid. Without any intervention by his solicitor, who was also present, the interview continued:

"A. I don't want to answer any more questions so it's no comment.

Q. Is there any reason for that?

A. No comment.

Q. Okay. When you were booked into custody yesterday evening after having been arrested on suspicion of importation of controlled drugs, you gave your employment as that of a builder. How long have you been a builder?

A. No comment.

Q. Can you tell me what your income has been ...

A. No comment."

18. The interview continued in similar vein in relation to various questions about the appellant's activities and movements including his writing down of the registration number of the surveillance vehicle at the Three Pigs pub on 29th August. In the face of the appellant's reactions, on commencing to examine the appellant about certain entries in his address book found upon his arrest, the interviewing officer gave the appellant a special warning under s.36 of the 1994 Act that, if he failed or refused to account for the facts about which he was being questioned, that the court might draw a proper inference from his failure or refusal. Asked if he understood, the defendant replied:

"A. It's a special caution which is a little bit more formal than the last one I assume."

He then said:

"With respect, I've been here since twelve o' clock last night so I'm tired, my head isn't working awfully well but I will try to keep up."

However, asked if he would like a break in the interview he said "No" and that he was sure he was fit to continue. He maintained his `no comment' position in relation to the address book and the registration number of the surveillance vehicle. The interview proceeded:

"Q. There's a pencilled reference in there in relation to Industrial Metal Fabrications, 4, Meadow Close, Langash. They're the people that made the buggies, the cradles that the drugs were imported in. Why have you got their reference in your book?

A. No comment.

Q. Have you ever been in business dealing with cradles?

A. No comment.

Q. Under P there's a similar reference to that same company at the Langash Industrial Estate, Plymouth. Once again I ask you why is that in your book?

A. No comment.

Q. Can you explain a legitimate reason why that was in your book?

A. No comment.

Q. Okay. I'd like to open the page to S and the reference to John Scharf and the telephone number 01363-775389. There's also a mobile number 0589-751165. Can you explain to me why that reference is in your book?

A. No comment.

........

Q. Is there a legitimate reason why you know John Scharf?

A. No comment.

Q. Would it be fair to say in that case that it must be an illegitimate reason?

A. No comment.

Q. And you actually take part in smuggling drugs for John Scharf?

A. No comment.

Q. As I mentioned before if you've got a reasonable explanation then we're quite prepared to listen to it. Do you understand that?

A. Yes

Q. Can you give me a reasonable explanation?

A. No comment"

19. He was then asked about his two mobile phones and the numbers of those phones. He was also asked if had used them to arrange for the boat buggies to be imported into the UK and whether he had telephoned IMF at Langash from the telephones. He replied `no comment' to each question, as he did also to the suggestion that he had used the telephone in order to assist with the importation of drugs. He was then given a further special warning in relation to the mobile telephones found in his possession, at which stage the solicitor intervened to say that he did not consider that the special warnings were appropriate, querying what evidence the Customs Officers had that the telephones had been used in relation to the matters under investigation. The appellant was then questioned about the significance of the numbers 777 which had repeatedly been coming in upon the appellant's pager found in his house at the time of his arrest. Asked if it was his pager and whether the numbers were of significance to him as a message to get in contact with the caller he again refused to comment. He similarly refused to comment as to whether an orange T-shirt of which the Customs and Excise had taken possession was that which he had been wearing when he met Von Scharfenberg. Finally, he also refused to comment when asked why he had been found in possession of various photographs of a boat cradle similar to those used for the importation of the drugs in question.

20. In evidence, the appellant gave answers to the matters raised which, if believed, afforded an innocent explanation for his activities. He stated that he had not given those explanations to the Customs Officer at the time because his solicitor had previously advised him not to do so. He did not elaborate or waive his privilege in respect of the reasons for such advice or any reluctance to answer on his part. He did not suggest any difficulties of understanding; nor did he offer fatigue or any lack of clarity in his thoughts as a reason for his reluctance. His solicitor was not called to explain the reason for the advice he had given, or so as to criticise the content or style of the interview which he had attended.

21. In the course of the trial, clarification was sought from the judge by Mr Osborne for the defence upon the position in relation to the appellant's reaction of "no comment" once the special warning had been given. Mr Osborne stated that he did not consider that there were grounds for the interviewing officer giving the special warnings which he had. The judge made clear, and Mr Osborne accepted, that the jury would receive `the full Judicial Studies Board guideline direction on it'.

22. That direction was set out in Archbold (1999 ed) at para 15-404. We here set it out in a form which (for the purpose of further consideration below) which have been added since, following the decision of the ECHR in Condron v UK (Application No. 35718/97) 2 May 2000: see Archbold (2001 ed) at 15-404. The paragraphs have been numbered for convenience of reference hereafter.

(1) "[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence.]

(2) The defendant, as part of his defence, has relied upon [....] but [the prosecution case is] [he admits] that he did not mention this [when he was questioned before being charged with the offence] [when he was charged with the offence] [when he was officially informed that he might be prosecuted for the offence].

(3) The prosecution case is that in the circumstances, and having regard to the warning which he had been given, if this fact had been true, he could reasonably have been expected to mention it at the that stage, and as he did not do so you may therefore conclude that [it has since been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny].

(4) If you are sure that he did fail to mention [...] when he was [charged] [questioned] [informed], it is for you to decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time. If it was, the law is that you may draw such inferences as appear proper form his failure to do so.

(5) Failure to mention [...] cannot on its own prove guilt. But, if you are sure that quite regardless of this failure there is a case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about this matter is true, i.e. you may take it into account as some additional support for the prosecution's case. You are not bound to do so. It is for you to decide whether it is fair to do so.

(6) [There is evidence before you on the basis of which the defendant's advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so. That evidence is [... .]. If you think this amounts to a reason why you should not hold the defendant's failure against him, do not do so. On the other hand, if it does not in your judgment provide an adequate explanation, and you are sure that the real reason for his failure was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him]."

23. In fact, the direction given by the judge did not follow the then guidelines. He first summarised the appellant's account of his friendship with Bennellick and the origin of the boat cradle business; he then summarised the appellant's account and explanation of his trips to the continent in 1997 and 1998; he then referred to the appellant's stated acquaintance and mutual interest in cars with Von Scharfenberg; that he did not know Richter or Dixon; and that he saw Barlow for the first time only after each had been arrested and appeared together at the Magistrates' Court. He went on:

"Mr Milford admits that he did not mention any of these facts when he was questioned by Customs Officers under caution, and you have heard the words of the caution. He did not mention any of these facts before being charged, even after he was given a special warning; and in cross-examination by Mr Don, who asked Mr Milford why he had not said to the Customs Officer who interviewed him that the orange-T shirt - that is Exhibit 13 - although belonging to him had not been the one he was wearing on the 2nd September, and you will remember that Mr Milford replied that his solicitor, Mr Scott, had advised him not to answer any questions in the interview, and he took his solicitor's advice."

24. The judge then set out the prosecution case that the appellant should, in particular, have mentioned his explanation for the entry in the address book, why he had the two mobile phones, why he had at home photographs of the boat hoist, and why the pager kept showing `777'. He went on:

"The law is that you may draw such inferences as appear proper from Mr Milford's failure to answer questions, particularly after he had been given the special warning, which is by way of an ultra-caution, which had been given to him at least three times. You do not, of course, have to hold it against Mr Milford. It is for you to decide whether or not it is proper to do so. Failure to mention facts at the time cannot, on its own, prove guilt; but, depending upon the circumstances, it is something which you are entitled to take into account when deciding whether the prosecution have made you sure that Mr Milford is guilty of conspiracy to import cannabis resin into this country."

25. The judge than went on to remind the jury of the explanations which the appellant had given.

26. Subsequently, having dealt with the detail of the defendant's evidence given in his own defence, the judge concluded:

"He denied that he was a party to any agreement to smuggle the cannabis resin concealed within the two boat buggies, and denied that he knew anything at all about it, and that the meetings, telephone calls and journeys were wholly for the purpose about which he told you, and had nothing whatever to do with drugs.

He made no comment during the course of his interview with the Customs Officers on 7th September because he took the advice, he said, of his solicitor."

27. The first point taken by way of criticism of the judge's approach to the interview in his summing-up is the argument of Mr Osborne that the judge appears to have taken an unduly wide view of the ambit of s.34 of the Criminal Justice and Public Order Act 1994 insofar as it provides that the court or jury, in determining whether the accused is guilty of the offence charged may draw such inferences as appear proper from the failure by the accused, on being questioned under caution prior to charge or, upon being charged, `to mention any fact relied on in his defence' in subsequent proceedings against him, such fact being one which, in the circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned [or] charged'. In this respect, Mr Osborne has relied upon the observations of Lord Bingham CJ in R -v- Bowden [1999] 2 Cr App r 176 and R -v- Argent [1997] 2 Cr App R 27. In the former case, Lord Bingham stated:

"But since [the statutory provisions] 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."

28. In the latter case, in setting out the six conditions which must be fulfilled before a jury may draw adverse inferences under the provisions of s.34, Lord Bingham referred to the kind of facts relied on at the time by the appellant, though not mentioned at interview, which might trigger the provisions of s.34. The facts there mentioned, which were peculiar to the case under consideration, were facts specifically in issue as to whether or not the defendant had quarrelled with another man, had at any stage carried a knife and as to what the defendant saw or did. Lord Bingham went on to say:

"The sixth condition is 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. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The court's should not construe the expression "in the circumstances" restrictively: 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; and those are only examples of things which may be relevant."

29. Later, in relation to the question of legal advice, Lord Bingham stated at p.36:

"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."

30. As to that issue, Mr Osborne has submitted that the judge was in error to treat the appellant's account of his innocent involvement with Bennellick and Von Scharfenberg and the importation business of IMF, including the reasons for his presence at meetings leading up to the importation as a fact or facts appropriate for treatment under s.34 at all. He submitted that the mischief aimed at by that section is limited to facts given in evidence, which give rise to an inference of recent invention. In that respect he cited the remarks of Stuart-Smith LJ in R -v- Condron (1997) 1 Cr App R 185 ("Condron") at 197 to the effect that:

"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."

See also his remarks to similar effect in R -v- Samuel (David) unreported, 12th May 1997 CA (97/1143/Z2, and the restrictive approach of the court in R -v- Nicholson [1999] Crim LR 61. Mr Osborne argued that in this case, because, when he gave evidence, the appellant did not challenge or put in issue the evidence of the prosecution as to the matters above listed, but merely accepted the facts, asserting an innocent explanation, they were not appropriately made the subject of a s.34 direction at all.

31. This court made clear in R -v- Cowan (1996) 1 Cr App R 1 (a case concerned with the direction a judge should give in relation to S.35 of the 1994 Act) that if, despite evidence relied upon to explain the silence of the defendant, or in the absence of any such evidence, the jury concluded that the silence could only sensibly be attributed to the defendant having at the time no answer, or none that would stand up to cross-examination, it was open to them to draw an adverse inference. In R -v- Daniel (1998) 2 Cr App R 373 this court further stated that Stuart-Smith LJ had not intended to limit the scope of s.34 to cases of recent fabrication and held that the section could cover cases where the reticence of the accused could only sensibly be attributed to unwillingness to be subjected to further questioning or enquiry; See also R v Taylor [1999] Crim. L.R.77 and commentary thereto. It also pointed out that, in Argent (supra) p.34, Lord Bingham CJ approved the direction of the Recorder of London to the jury that it was open for them to draw an adverse inference if the reason for the defendant's failure to answer questions was that he had not thought out all the facts by the date of his interview or that he then had no innocent explanation to offer, or none which he believe would then stand up to scrutiny and might cast doubt upon the truthfulness of his account at trial.

32. We agree with those observations. There are two reasons why we reject the submission of Mr Osborne that the ambit of s.34 does not extend to cases where at trial the defendant gives a hitherto unadvanced innocent explanation for facts or events which he does not dispute occurred, but simply asserts that his own involvement was innocent by reason of matters or relationships explained by him for the first time. First, while we bear in mind the observations of Lord Bingham CJ in Bowden that the provisions of the Act should not be construed more widely than the statutory language requires, it seems to us that the words `any fact' do not fall to be read only in the narrow sense of an actual deed or thing done but in the fuller sense contemplated by the Oxford-English Dictionary of `something that ... is actually the case ... hence, a particular truth known by actual observation or authentic testimony, as opposed to what is merely inferred, or to a conjecture or to fiction'. Second, it seems to us necessary to approach the meaning to be attributed to `any fact' having regard to the apparent purpose of the statute and, in particular, the context and stage of proceedings with which s.34(1)(a) is concerned, that is to say the questioning of a suspect at a stage when, the facts available to the prosecution without the benefit of any explanation of the defendant, give rise to a suspicion or inference of his involvement in the crime under investigation, and the questioning is being directed to establishing whether such suspicion or inference is well founded in fact. The facts relevant to establishing whether or not the defendant is guilty of the crime in respect of which he is being interrogated go far wider than the simple matter of what might have been observed to happen on a particular occasion and frequently involve what reasons or explanations the defendant gives for his involvement in the particular event observed which, if true, would absolve him from the suspicion of criminal intent or involvement which might otherwise arise.

33. The significance for the jury of a failure by the defendant when first questioned to mention facts relied on at his trial is whether or not that failure is an indication that the facts which he now adopts or advances before the jury (including any explanation for his involvement in undisputed but equivocal events) can or cannot be relied on. We share the apparent view of the authors of the most recent JSB direction that the adverse inference which may be drawn is not limited to one of `recent invention' strictly so described, but extends to a fact or explanation tailored to fit the prosecution case or which the defendant believed would not stand up to scrutiny at the time.

34. In the course of his submissions, Mr Osborne sought to obtain assistance from the decision of this court in R v Mountford [1999] Crim L.R.575. That decision was to the effect that, where a fact is so central to the defence of a defendant but its rejection would inevitably lead to a verdict of guilty, and thus the S.34 issue cannot be resolved as an independent issue, the truth of each depending on the truth of the other, then the giving of a S.34 direction is inappropriate. However, as pointed out in the recent case of R v Hearne & Coleman (99/4240/Z4 and 99/5060/24), 4th May 2000, Mountford was concerned with very particular facts and, if its logic were more widely applied to cover the range of cases in which innocent explanations are belatedly advanced at trial in respect of facts or situations prima facie indicative of guilt, the very purpose of S.34 would be defeated: see also the Commentary on Mountford at [1999] Crim LR 576.

35. Shortly after the decision in Hearn & Coleman, and apparently without being aware of it, this court considered and followed the decision in Mountford. In so far as there may be conflict between these various decisions, we prefer the reasoning of the court in Hearne and Coleman. It seems to us to be the clear statutory intention of S.34, manifest from its wording, that the jury should, in respect of any fact relied on by the defendant in his defence, but not mentioned at interview, first resolve the issue whether he could in the circumstances existing at the time have been expected to mention it and, second, if the jury so concludes, it should draw such inference or inferences from that failure as seem proper, subject to limitation imposed by S.38(3) that such inferences are alone insufficient for a finding of guilt. While this requirement raises difficulties as to the directions to be given to the jury in order to define and emphasise the need for evidence from elsewhere, and may on the facts of a particular case suggest that a Mountford approach is apposite, the basic general approach should be one which does not defeat the general width of the statutory intention.

36. In our view, there is nothing of substance in the point raised by Mr Osborne, and the judge was entitled to treat the assertions in evidence by the appellant as to the innocent reasons for his association with Bennellick and Von Scharfenberg and his participation in events which the prosecution suggested were integral to the conspiracy as facts for the consideration of the jury under s.34. The same applies to the appellant's failure to answer questions about the items found in his possession. The submission of Mr Osborne was less vigorous in respect of these items, because he acknowledged that the matters which the judge brought to the jury's attention were matters within the ambit of s.36 of the 1994 Act, the provisions of which are in language which leaves no real room for ambiguity, there being no provision similar to that in s.34 relating to failure to mention `any fact relied on in his defence'. In relation to the s.36 direction, Mr Osborne nonetheless submitted that, on the facts known to the interviewing officers at the time, the special warnings given pursuant to s.36 were not justified by the events witnessed and the objects found. He suggested that, there being no evidence available to the investigating officers at the time that the telephones and pager had been used in connection with the conspiracy, the special warnings were inappropriate. We do not accept that submission. When the point was raised by the appellant's solicitor with the investigating officer at the time, the latter made clear that he believed those items had been, or might have been, used in the commission of the offence and, in the circumstances, we can see no reason to suppose that such belief was not reasonable as required by s.36(1)(b).

37. As already indicated, the main point taken upon this appeal is that, in several respects, the direction of the judge failed to comply with the model JSB Direction on adverse inferences which we have quoted in paragraph 18 above. Mr Osborne also relies upon the decision of the ECHR in Condron v UK in which the ECHR considered the model direction, with the result that it was subsequently updated, see the passages in italics in paragraph 18 above.

38. Mr Osborne's points are as follows

(i) The judge failed to remind the jury specifically of the words of the caution and in particular to remind them of the appellant's right to silence: see Condron -v- UK at para 66.

(ii) He failed sufficiently to identify the facts relied on by the defence which were the subject of criticism on the basis that they had not been mentioned in interview: see para 2 of the JSB Direction

(iii) He failed to remind the jury to consider all the relevant circumstances existing at the time of the interviews: see para 3 of the JSB Direction and Argent at p.32-33. The particular matter relied on is the answer of the appellant, when asked if he understood, that he had been in custody since twelve o' clock the night before, was tired, and his head was not working awfully well.

(iv) The judge failed to remind the jury that the appellant had elected to make no comment on the advice of his solicitor and to give it appropriate weight: see Condron -v- UK at para 60.

(v) He failed to remind the jury to consider the plausibility of the appellant's explanation for electing to make no comment: see Condron v UK at para 61.

(vi) He failed to remind the jury of the invitation to them by defence counsel not to hold the appellant's silence against him on the basis that there were essentially no facts which the appellant disputed save for the simple question whether his association with Bennellick and Von Scharfenberg on the occasions relied upon was innocent or part of a conspiracy.

(vii) He failed to remind the jury that, before they could draw any adverse inferences from the appellant's silence, they should be satisfied that the prosecution had established at least a prima facie case against the appellant; see per Lord Taylor CJ in Cowan and per Stuart-Smith LJ in Condron. In this respect, Mr Osborne criticises the decision of this court to the contrary in R -v- Doldur [2000] Crim. LR 178. He relies also upon the decision of the ECHR in Murray -v- UK (1996) 22 EHRR 29 to the effect that silence cannot be the sole or main basis for a finding of guilt and various observations of the ECHR in Condron v UK.

39. In relation to the points enumerated, Mr Mitchell QC for the Crown (who did not appear below) first recognised that, by unfortunate oversight, the judge did not, as he had said he would, direct the jury in terms of the then full JSB model direction, as he had said he would. However, Mr Mitchell submits, rightly in our view, that a failure to follow the form of a JSB direction does not represent an irregularity in itself, provided that the essential matters which it is designed to bring to the attention of the jury, are in fact brought to their attention adequately by the judge in the course of his summing up. We now proceed to consider each of the points raised by Mr Osborne in the light of Mr Mitchell's counter-submissions.

40. (i) It is not in fact correct that the judge failed to remind the jury of the words of the caution. At the passage which we have previously quoted at paragraph 19 above, he reminded them that the appellant had been cautioned at the outset of his questioning and `you have heard the words of the caution.' Later in dealing with the appellant's arrest by a female customs officer, he informed the jury:

"She went on to say that she cautioned him - that is to say she told him that he need not say anything, but that it might harm his defence if he did not mention when questioned, something which he later relied upon in court. Anything he did say might be given in evidence. According to her evidence Mr Milford acknowledged that he understood."

While there was no separate i.e. collateral reminder by the judge of the appellant's right to silence, that was not something required by the JSB direction; nor, whatever other points may be taken, do we read Condron v UK as specifically requiring such collateral reminder. In that case, the ECHR recognised that the exercise by the defendant of his right to silence at a police station does not of itself preclude the drawing of an adverse inference (para 57) and stated in terms that the court did not accept the argument of the applicants that the words of the caution were ambiguous or unclear as to the consequences of a refusal to answer police questions (para 59). Accordingly, we do not think that the criticism in (i) is made out.

41. (ii) We reject the criticism that the judge failed sufficiently to identify the facts relied on by the defence which had been the subject of criticism on the basis that they had not previously been mentioned. In our view the pattern of the summing up by the judge, described in paragraphs 19-22 above, made clear to the jury the matters which were advanced by the prosecution as attracting an adverse inference that at the time he had no innocent explanation to offer and that his account and explanations at trial had been tailored to fit the prosecution case.

42. (iii) We do not consider that the judge was at fault in failing to remind the jury of the answer given by the defendant in interview that he had been in custody since 12 o'clock, was tired, and his head not working well. That is because that was not an explanation advanced, repeated or relied upon by the defendant at trial. We have already referred at paragraph 14 above to the fact that he was immediately offered a break in interview, but he declined, saying that he was sure he was fit to continue. No doubt, his failure to rely on the question of fatigue in his evidence given at trial was a recognition that he was in fact so fit. Whether or not that is so, because he failed to raise the matter in evidence, we do not think the judge should be criticised for having failed to mention fatigue as a relevant circumstance. It seems to us, as it apparently seemed to the judge, that the relevant circumstances existing at the time of the interviews in the context of this case, were the circumstances that the appellant's solicitor had been present throughout and that the appellant stated that his `no comment' answers were given on the advice of his solicitor.

43. (iv) It is again incorrect that the judge failed to remind the jury of those circumstances, as is made clear in the passages from the summing-up we have quoted at paragraph 19 and 22 above. So far as concerns the complaint that the judge failed to direct the jury to give appropriate weight to the fact that the appellant had elected to make no comment on the advice of his solicitor, it is noteworthy that the JSB direction eschews any formula or suggestion as to the weight to be attached to any particular failure to advance a fact or explanation at interview, no doubt because the circumstances existing at the time and relied on by a defendant may be infinitely variable and, subject to 38(iii), the inferences which it is proper to draw are in the province of the jury.

44. In that respect, Mr Osborne relies upon the statement in Condron v UK at para 60, that:

"..the very fact that an accused is advised by his lawyer to maintain his silence must ... be given appropriate weight by the domestic court. There may be good reason why such advice may be given...."

However, in that case, the ECHR was concerned, and went on to deal with, a situation where there was not merely a bare assertion that the appellant's solicitor had advised that he should not answer questions, but reasons were advanced, namely that the defendants were hard drug addicts, experiencing withdrawal symptoms and their solicitor was called to testify that his advice was motivated by his concern about their capacity to follow questions put to them in interview. The ECHR held that, in drawing the jury's attention to the explanation, the judge did so in terms which left the jury at liberty to draw an adverse inference notwithstanding that it may have been satisfied as to the plausibility of the explanation. In the instant case, there was no more than a bare assertion of the reason for silence, namely the advice of the solicitor with no further particulars or reason given in the face of questions which were perfectly straightforward and easy, and were asked of a fit and intelligent defendant who, on the basis of his explanation advanced in trial, had no apparent reason for not answering them at the time. Given that the judge had reminded the jury of the appellant's right to silence as contained in the words of the caution, and had reminded them of the (bare) reason advanced, it is not easy to see in what practical manner the judge could or should have directed them as to the `appropriate' weight which they should attach to the appellant's failure to answer.

45. (v) It seems to us that paragraph 61 of the decision in Condron v UK affords a more substantial point of concern in relation to the judge's summing-up. In that paragraph the ECHR stated:

"Admittedly the trial judge drew the jury's attention to this explanation. However he did so in terms which left the jury at liberty to draw an adverse inference notwithstanding that it may have been satisfied as to the plausibility of the explanation. It is to be observed that the Court of Appeal found the terms of the trial judge's direction deficient in this respect (See paragraph 27 above). In the Court's opinion, as a matter of fairness, the jury should have been directed that, if it was satisfied that the applicant's silence at the police interview could not sensibly be attributed to their having no answer or none that would stand up to cross-examination, it should not draw an adverse inference."

That last direction was the one stated by Stuart-Smith L.J. in Condron to have been `desirable', though the court was nonetheless satisfied that the convictions were safe in the light of the almost overwhelming evidence. Nonetheless, its absence caused the ECHR in Condron -v- U.K. to treat the direction given as incompatible with the exercise by the applicants of their right to silence (para 62).

46. (vi) We find no substance in the complaint that the judge should have reminded the jury that there were essentially no facts which the appellant disputed, since it is based on Mr Osborne's submission that the question whether his association with Bennellick and Von Scharfenberg was innocent is not a fact of a kind with which S.34 is principally concerned. For reasons which we have already stated at paragraphs 23-32 above, we consider that submission to be ill-founded.

47. (vii) It is correct that the judge did not direct the jury that, before they could draw any adverse conclusions from the appellant's silence, they should first consider whether there was, apart from such silence, a case for the appellant to answer. That is perhaps not surprising since the form of paragraph (v) of the JSB direction was then simply:

"Failure to mention [....] 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..".

Unfortunately, the judge did not even follow that wording. Having stated the failure to mention facts at the time could not of itself prove guilt, he said: `but it is something which you are entitled to take into account when deciding that the prosecution have made you sure.'

48. At the time of the judge's summing-up, the state of the authorities in this court appeared to be that the corollary of the requirement of S.38(iii) was that the prosecution should have established at least a prima facie case against the appellant before silence could be taken into account. In the case of Cowan (in relation to S.35 of the 1994 Act), Lord Taylor C.J. observed:

"40. The jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore remain 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.

If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury concludes that 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,"

See also the judgment of this court (per Lord Bingham C.J.) in R v Birchall [1999] Crim L.R. 311 at 312.

49. In Condron Stuart-Smith L.J. at p.195, said:

"Having regard to the view 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."

50. However, in R v Doldur (9808076/W2), reported at [2000] Crim L.R.178, Auld L.J. stated:

"...We should distinguish in one important respect between Section 34 and 35. The Section 35 direction which was what was under consideration in Cowan and Birchall, necessarily confines a jury to a consideration of the prosecution evidence save where the defendant calls other witnesses. A Section 34 direction, on the other hand, usually only arises where defence evidence is called and requires a jury to consider that evidence as well as the prosecution evidence. It is the contrast between the defendant's earlier silence on a matter and his reliance on it - almost always in evidence - in his defence, which may give rise to an adverse inference. Accordingly, in a Section 34 case there is no logical basis for confining the jury to a consideration of the prosecution case and evidence when directing them on the possibility of drawing adverse inferences from silence, and we do not consider that Lord Taylor C.J. in Cowan, or Lord Bingham C.J. in Birchell, in the passages we have set out, could have so intended."

Auld LJ stated that a Cowan direction had a different purpose, namely to remind the jury that they could not convict on an adverse inference alone, but that they had to have evidence which, in the case of Section 34 inferences, might include defence evidence where called and which, considered together with any such adverse inference as they thought proper to draw, enabled them to be sure both of the truth and accuracy of that evidence and, in consequence, of guilt.

51. The logic of that reasoning seems to us compelling when considered on its own. However, the court failed to address the case of Condron or the remarks of Stuart-Smith L.J. above quoted. Nor, before the coming into effect of the Human Rights Act, did it address what may be called the European dimension. In Birchell, on the other hand, Lord Bingham C.J. observed that it seemed possible that the application of Section 35 and `its sister sections' might lead to decisions adverse to the United Kingdom and Strasbourg under Article 6(I) and (2) of the Convention unless the provisions were the subject of very carefully framed directions to jurors. So it has proved.

52. The decision of the ECHR in Condron v UK makes clear the general position so far as Article 6 fairness is concerned, namely:

(i) the court confines its attention to the facts of the individual case in considering whether the drawing of inferences against the appellant under S.34 of the 1994 Act has rendered the defendant's trial unfair, (para 55);

ii) the right to silence is not an absolute right and the question of whether the drawing of adverse differences from a defendant's silence infringes Article 6, must be determined in the light of all the circumstances of the case (para 56);

(iii) it would be incompatible with the right to silence to base a conviction `solely or mainly' on the defendant's silence or refusal to answer questions; however the right to silence cannot and should not prevent the defendant's silence, in situations which clearly call for an explanation from him, being taken into account in assessing the persuasiveness of the prosecution evidence (para 56);

(iv) the fact that the issue of the defendant's silence is left to a jury cannot, of itself, be incompatible with the requirements of a fair trial (para 57), but the fact that it is left to the jury heightens the importance of a proper direction from the judge in circumstances where the potential unfairness inherent in an imperfect direction cannot be remedied by the Court of Appeal, which is in no position to assess properly the degree to which the defendant's silence played a significant role in the jury's decision to convict (paras 63 and 66);

(v) in so far as the defendant asserts that he was silent on the advice of his solicitor, the very fact that a defendant is advised by his lawyer to maintain his silence must be given `appropriate weight' by the court (para 60);

(vi) if a direction is in such terms that the jury, acting in accordance with it, would be at liberty to draw an adverse inference notwithstanding that they were satisfied as to the plausibility of the explanation, then the trial will be unfair (para 61).

53. In Condron, this court observed that it would have been `desirable' if the trial judge had directed the jury in terms of the paragraph numbered 5 in the quotation from Condron as set out in paragraph 50 above. The ECHR observed that such a direction was not merely desirable but essential in order to remove the danger that the jury had acted as set out at (vi) above. Whereas it was the view of this court, that nonetheless the conviction was `safe', the ECHR took the view that, because it was impossible for the court to say whether or not the appellant's silence played a significant role in the jury's' decision to convict, the fairness of the trial was not assured. It recognised that, in such a case, the questions whether the conviction was safe and whether the trial was fair could not be assimilated, thus recognising the unattractive but undoubtedly feasible concept of an unfair trial resulting nonetheless in a safe conviction.

54. This dichotomy has been recognised as a possibility in the recent decision of this court in R v Davis Rowe & Johnston (99/2239/S3, 99/2240/S3, 99/2241/S3), 17th July 2000 and [2000] Crim LR 584 and in R v Francom & Ors. 99/3936/W5), 31st July 2000. In the former case, the ECHR held that the defendant had been deprived of a fair trial by reason of non-disclosure on the part of the prosecution to an extent and in a manner which precluded the Court of Appeal effectively assessing the effect which the undisclosed evidence might have had on the course of the trial and the jury's verdict (cf. the case of Edwards v UK, 16th December 1992, Series A no.249-B in which such assessment was possible). In Davis, following reference back to the Court of Appeal to review the safety of the convictions, Mantell L.J. stated:

"We are satisfied that the two questions [i.e. fairness and safety] must be kept separate and apart. The ECHR is charged with enquiring into whether there has been a breach of the convention right. This court is concerned with the safety of the conviction. That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, ... that a finding of a breach of Article 6.1 by the ECHR leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree."

In the event, the court found that the conviction was indeed unsafe.

55. In Francom, this court again considered the inter-relationship of the concepts of safety and unfairness. The appeal was principally based upon the fact that, having agreed to do so, the trial judge failed to give a direction to the effect that the jury should not draw an adverse inference from the defendant's silence in interview in accordance with R v MeGarry (1999) 1 Cr.App.R.377 and the JSB Specimen Direction No.44. The appellants relied on Condron - v UK. The judgment in Francom (per Lord Woolf C.J.) confirmed at paragraph 43 that the test for unsafeness is not identical to the issue of unfairness before the ECHR, as the ECHR recognised in Condron, and Davis was cited without qualification of any kind. The Lord Chief Justice stated:

"47. A misdirection of the jury can result in a breach of Article 6. But it may not do so. In the same way, it may not make the conviction unsafe. It all depends on the circumstances of the case. (See R v Davis Rowe & Johnson.... In a case such as the present, we would expect this court to be approaching the issue of lack of safety in exactly the same way as the ECHR approaches lack of fairness. The directions which a judge gives at a trial are designed to achieve the very fairness required by Article 6.1. As we understand the jurisprudence of the ECHR, that court does not adopt a technical approach of unfairness. The ECHR is interested, as was pointed out in Condron, in requiring fairness of the trial in all the circumstances. What the ECHR was most concerned about in Condron was that there had been an infringement of the `fundamental importance of the right to silence, a right which....lies at the heart of a fair procedure'.

48. Approaching the present case, we therefore pay the greatest attention to the guidance given by the ECHR in Condron, but also focus on the circumstances of this particular case and ask ourselves whether the omission of the required direction by the judge has in fact achieved unfairness, focusing on the importance of the right to silence, or impaired the safety of the conviction, in the process not drawing any distinction between the two tests."

56. That passage emphasises the fact that in relation to the question of safety, where there has been a misdirection or non-direction, the court will only uphold the conviction as safe where, despite any part the direction may have played in the jury's verdict, the court is satisfied that, had their been no such non-direction or misdirection, no reasonable jury could have failed to convict upon the evidence in respect of which no error of direction arises. Whilst this has been characterised as involving a degree of speculation as to the thought processes of the jury, it is in fact an exercise which involves an objective overall review of the entire trial process, of a similar type to that involved in the investigation of the question of fairness. While the questions are different, the approach is the same: namely whether in all the circumstances (which are bound to vary from case to case), and against the criminal standard of proof required, the judge's error, (or other matter complained of) has undermined the trial process to such an extent that the verdict of guilty is required to be set aside. The answer to both questions is thus likely in most cases to be the same: see Francom (above) and R v Togher & Ors, (unreported), 9 November 2000, per Lord Woolf C.J. at paragraph 30 now endorsed by the opinion of the House of Lords in R -v- Forbes, 14th December 2000, at paragraph 24. It follows, that if, in all the circumstances of the case, the act or omission complained of amounts to a substantial or significant departure from the norms of fairness recognised by the ECHR, then it will be treated as rendering the verdict unsafe, whereas some act or omission which in all the circumstances amounts to no more than a technical or insubstantial departure will not necessarily be so regarded.

57. Applying those principles to this case, we have come to the conclusion that the direction of the judge on the question of the appellant's silence was inadequate and that the verdict of the jury is unsafe. The relevant direction of the judge is that quoted at paragraph 20 above. There is no doubt that, by the standards now set out in the current JSB guidelines, following the decision in Condron v UK his direction was deficient. It contained no passage making clear that the jury should be satisfied that the prosecution has established a case for the defendant to meet before taking into account the silence of the defendant (see para (5) of the JSB Direction at paragraph 18 above); and it contained no direction of the kind considered desirable in Condron and necessary in Condron v UK, to the effect that the jury should be sure that the real reason for failure to mention the relevant facts was that the defendant had no innocent explanation to offer (see para (6) of the Direction).

58. Those are substantial omissions on the law as now clarified and in this case they go to the safety of the conviction as much as to the fairness of the trial. This is a case where, as the judge directed, the evidence against the appellant was entirely circumstantial, there being no direct evidence to link him with his co-conspirators, as opposed to evidence of association which, the appellant contended, was innocent. It was pre-eminently a case in which the jury might reasonably have regarded the evidence of association as insufficient on its own to sustain an inference of guilt and might well have been looking for additional material from which to infer such guilt. In those circumstances, it was necessary for a full and careful direction to be given in relation to the approach which the jury should adopt to the reason which the appellant advanced for his silence, namely that his solicitor had previously advised him not to answer. The mere fact that no reasons for such advice were given did not remove the possibility that the jury might have given weight to the `bare' assertion, not least because of the continued presence of the solicitor at the interview. The jury might, for instance, have inferred simply that the appellant was keeping his powder dry on the advice of his solicitor, rather than that he had no innocent explanation to offer. Accordingly, whether the judge's failure is to be regarded as a misdirection or a non-direction, we consider that the conviction is unsafe and the verdict of the jury should be set aside.

DISCLOSURE

59. Prior to trial, on 12th August 1999, solicitors acting for Customs and Excise wrote to the appellant's solicitors informing them of their intention to make a public interest immunity ("PII") application to the trial judge ex parte pursuant to section 7(5) of the 1996 Act and paragraph 2(3) of the 1997 Disclosure Rules. By virtue of section 7(5) of the Act, material must not be disclosed under this section to the extent that the court, upon an application by the Crown, concludes that the disclosure is not in the public interest and orders accordingly. The wording of Rule 2(ii) and Rule 2(iii) entitle an accused to notification that an application will take place, but the combined effect of Rules 3, (4) and (5) is to restrict to the prosecutor the right to make representations to the court. That was the procedure followed in this case. However, a letter from the appellant's solicitors dated 16th August 1999 stated that they:

"expected full disclosure in this case including any informant evidence that Customs and Excise were acting on during the investigation. We do not necessarily expect names of the informants to be disclosed but we believe that we are entitled to the fullest disclosure of the information given and acted upon."

This letter, the Defence Statement on behalf of the appellant pursuant to s.5 of the 1996 Act, and an earlier letter dated 3rd March 1999 which set out the belief that Richter was the informant, were before the judge at the PII hearing. The letter of 3rd March sought full secondary disclosure as to Richter's role, the author expressing a sceptical view of the circumstances of his escape from custody. The letter read:

"It is our information that Mr Richter was acting either as an informant, or indeed had a deeper role in the arrangements for the importation of the drugs in this case. Our client denies any involvement or any knowledge in the offence which is before the court. We believe that you will have in your possession, evidence from your informant which will confirm that our client, Mr Milford, was not in any way involved in this case. We therefore expect disclosure of that evidence and we shall resist any application for public interest immunity in relation to disclosure of that informant evidence ...

In summary terms, it is our belief that Mr Richter was actively involved in the arrangements in this case, acted on Customs behalf in the operation and provided information in relation to the other three defendants .... . We believe that Mr Richter's informant evidence is crucial to our client's defence as it will clearly establish that our client was not involved in any way with importation of drugs in this case."

60. On 3rd September 1999 the judge heard the PII application. There was also before him a letter from Messrs Bellchamber, solicitors for Barlow, raising largely similar matters and referring the judge to recent authority and to Article 6 of the Convention on Human Rights. We have seen a transcript of the judge's ruling in the case, given after examination of the material placed before him, in the light of the decision in Rowe and Davies -v- The United Kingdom before the European Commission on Human Rights on 20th October 1998. The ruling makes clear that the judge carefully examined such material before coming to the conclusion that non-disclosure was justified both on the grounds of the need to preserve the anonymity of an informer and that such material was not in any event relevant or potentially relevant to the issue in the case. Before the hearing of this appeal, we separately re-considered the bundle of material placed before the judge and review his ruling. We can find no fault in his reasoning or the ruling which he made. It is clear to us that his decision was correct on both grounds.

61. During the early stages of the cross-examination of Mr Aspinall, one of the investigating customs officers in the case, Mr Osborne sought to ask Mr Aspinall a series of questions to which, after the first two, and before the second was answered, objection was successfully taken. In the absence of the jury the questions sought to be put were enumerated as follows;

1. When did Operation Piskie commence?

2. On what information were Customs investigators acting?

3. What was the source of that information?

4. What was the nature of the observations?

5. How many officers were involved?

6. Who was being targeted, and did that include the defendant? if so, when was he targeted and in what way? What evidence, not disclosed, concerned him?

7. Were photographs taken which have not already been disclosed? If so why cannot they be shown to the defendant? Were any of him?

8. Specifically, were the two men named by the prosecution as co-conspirators (Richter and Dixon) also part of the targeting and surveillance operation? If not, when did they first come to the attention of Customs investigators?

9. Were there any operations by or on behalf of Customs conducted abroad and in particular in Spain?

10. Was Richter involved in an earlier drugs conspiracy? And if so what were the circumstances of his escape from lawful custody on that occasion?

62. The judge ruled that plainly Mr Osborne was entitled to know details about the observations of the appellant but that he was not entitled to know general details about operational methods or surveillance methods neither of which were relevant to the appellant's case. The judge reminded himself of the need for the prosecution and the court to keep in mind the duty of the court to review the earlier ex parte ruling in relation to public interest immunity but he made clear that no circumstances had emerged which required him to alter his original ruling. We agree.

63. We have been invited by Mr Osborne to formulate guidelines for disclosure in cases which fall within the category `ex parte application on notice'. He set out for us those steps he contends should be followed before the application is made. He submits that the Crown should notify the defence of the date, place and time of any ex parte application. There should then be available to the defence the opportunity orally or in writing to make submissions as to the questions to which it seeks an answer, or as to an area or areas not amenable to reduction to formulated questions but nevertheless requiring information. Whatever ruling the court gives should be in public, modified if need be to take account of the very point of a PII application, so as to provide assurance as to the topics to which the court has put its mind.

64. We decline Mr Osborne's invitation, because we see no need to elaborate upon the procedure expressly laid down by the 1997 Rules themselves, save to emphasise, as this court previously emphasised in R -v- Davis, Johnson and Rowe 97 Cr App R 110 that the principle of open justice requires maximum disclosure and, when appropriate, the opportunity for the defence to make representations on the basis of full information. This involves a critical appraisal by the prosecution as to whether it is necessary to invoke the limitation upon the requirements of para 2(2) imposed by the provisions in paras 2(3) and (4) and for the judge to bear in mind that, if he takes the view that the defence should have had notice of the application, or of the nature of the material, or that the application should be made inter partes, he should so direct. Having said that, it seems to us that, on the facts of this case, there is nothing for which Mr Osborne asks which could not have been achieved by an application on behalf of the appellant under s.8 of the 1996 Act, had he been so advised.

65. For the reasons already stated, this appeal is allowed and, subject to any further submissions by counsel, we propose to direct a retrial.

*****************

LORD JUSTICE POTTER: This appeal is allowed for the reasons stated in the judgment now handed down and available in the body of the court for any member of the press or public who wishes to read it. However, there are one or two minor possible corrections to the judgment to be discussed and anybody obtaining a copy of the judgment should make note of them straight away.

At paragraph 39 on page 20, first line. After the words "Mr Mitchell QC for the Crown" insert in brackets "who did not appear below" then close brackets.

So far as paragraph 48 is concerned there is a quotation set out from the Lord Chief Justice in the case of Cowan and within the quotation marks the first number there is "40". Delete the nought. It should be "4". Followed by "..." before the words "the jury", the having a small "T".

Then the second paragraph within that quotation should have the number "5" beside it aligned beneath the 4 above up. So it reads "5. If despite any evidence".

Now, Mr Mitchell, you expressed, I think some concern about paragraph 49.

MR MITCHELL: With some diffidence, my Lord. If I may --

LORD JUSTICE POTTER: I think I may anticipate your point but I am not sure. You had better tell me what it is.

MR MITCHELL: Does your Lordship have Condrun to hand?

LORD JUSTICE POTTER: Is the point that the remark there was directed to paragraph above specifically rather than the prima facie case?

MR MITCHELL: Yes.

LORD JUSTICE POTTER: But the fact is, of course, that Stuart Smith LJ was accepting, as it were, the necessity for reference to a prima facie case. Under paragraphs 1 to 4 previously he was accepting the necessity -- paragraphs 1 to 4 in Cowan previously he was accepting that directions to that effect needed to be given. His point was that on the direction given in Cowan that had been satisfied.

MR MITCHELL: Yes, my Lord.

LORD JUSTICE POTTER: I am grateful for the point and I think the following word should be inserted at 49. After the words in "Condrun Stuart Smith LJ at page 195 insert "did not demur and, in relation to the paragraph numbered 5 in the quotation, said".

MR MITCHELL: I am grateful, my Lord. My Lord, may I again with some diffidence invite your Lordship's attention to paragraph 53 of the judgment. My Lord, third line.

LORD JUSTICE POTTER: Condrun should read Cowan.

MR MITCHELL: I am grateful, my Lord. And "paragraph 50" should read "paragraph 48".

LORD JUSTICE POTTER: So then for the purposes of the shorthand writer, third line of paragraph 53, the reference to Condrun should be a reference to Cowan, and paragraph 50 should read paragraph 48.

MR MITCHELL: And my Lord, finally paragraph 57. I just raise this for my Lord to consider whether it is worth revising this part of the paragraph. My Lord, four lines into the paragraph, the sentence beginning:

"There is no doubt that, by the standards now set out in the current JSB guidelines following the decision in Condrun ...".

My Lord, in Condrun they would not enter into and did not determine prima facie case. I just invite your Lordship's attention either now or in due course to paragraph 67 in Condrun where, may I just very simply state it so that my Lord has it in mind, they said:

"The applicants challenge the terms of the direction on other grounds with regard to the omission of a reference to the requirement that the prosecution established a prima facie case.

...

The government argued in reply that having regard to the facts the Court of Appeal accepted their main ground and challenge to the direction. The law in this area was evolving. The applicant should have included these issue in their grounds. For its part the court considers it does not have to take a stand on the issues raised by the applicants having regard to its earlier finding on the main defect on which they relied."

My only concern, with great respect, is whether in fact this might, in the mind of the reader hereafter, create the impression that the European court had ruled that the establishment of a prime facie case was necessary.

LORD JUSTICE POTTER: In my view, it effectively has. Not from that paragraph, but because it asserts without qualification that the requirements in Murray apply which are that he should not wholly or mainly be convicted. I have deliberately put it in terms of prima facie case because that is the way that the English courts have spoken about it. But it seems to me quite clear on a perusal of Condrun v United Kingdom that the effect of their emphasising Murray is at least to require the prima facie case. That is why I put it in that way.

In fact in paragraph 57 line 4 "paragraph 20" should read "paragraph 23". That is the last textual correction.

MR MITCHELL: My Lord, the court in quashing the conviction indicates, subject to hearing argument, that it would propose to direct a retrial and we would respectfully suggest that that is the appropriate course in this case.

LORD JUSTICE POTTER: Any opposition to that?

MR CHRISTY: No opposition on a retrial, my Lord. But there are two matters outstanding on the judgment: one legal aid and the other on bail.

On legal aid, a matter carried over from below, counsel applied on 10th November at the renewed application for leave to appeal for legal aid. That matter was referred to this court. In the light of this judgment I would ask for legal aid to be granted for preparation and presentation of the appeal.

LORD JUSTICE POTTER: We say all of that.

MR CHRISTY: I am grateful.

On the matter of bail. Mr Milford was on bail pending his trial. He was on bail for seven months, conditional bail. Again, I believe that it will be some months before this retrial can be fixed and we would ask for bail to be given on the same conditions.

LORD JUSTICE POTTER: I have to say that one of the ironies in this case is that one has had to come to the decision one has when one has read the contents of the pre-sentence report. In the light of those contents, it does not strike us that bail is appropriate. You probably have in mind the point which I am not seeking to have publicly reported.

MR CHRISTY: The court has the evidence of the conditions of prior bail. There were no problems with that in the seven month period. He surrendered to custody without difficulty. Do you have questions in respect of that? I think that is the most relevant point here.

LORD JUSTICE POTTER: I see. What do the prosecution say about that?

MR MITCHELL: He was in custody from the day he was arrested until March 1999 when, because of a failure to comply with the strict custody time limits, he was then bailed. He remained on bail between March 1999 and October when he was convicted and then plainly he has been in custody since. It was a prima facie case which both the crown court and magistrates' court determined was appropriate that the appellant should be in custody pretrial, but through a technicality he was bailed. It is correct that he did surrender, but it is now back to the beginning again. The court should not view it, we respectfully submit, on the basis that by a technicality he was granted bail and surrendered for his trial but on the basis of whether it is an appropriate case to justify his remand in custody. To that extent my Lords have all the information before them necessary to make that determination. We would respectfully submit that nothing has changed and it is appropriate case for him to remanded in custody.

Plainly the new trial will come on as quickly as possible. The defendant should await his retrial, with the conviction being quashed on the basis that it has, in custody for that to be dealt with. My Lord, I cannot really say any more than that. You know as much about this case we do.

MR CHRISTY: To that I agree, but the conditions of bail were quite strict. Certainly the granting of bail was not merely a technicality, it was granted as a right. Those conditions were very strict and they were complied with and they will continue to be complied with if bail is granted.

(Pause)

LORD JUSTICE POTTER: Well, the order which we make is that we allow the appeal and quash the conviction. We direct that a fresh indictment be preferred, the appellant being rearraigned on the fresh indictment within two months. We direct that the appellant remain in custody pending the retrial and we order legal aid for the retrial. Any other directions?

MR MITCHELL: No, my Lord. I am grateful for the court waiting if it did have to because I was elsewhere.


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