R v Beckles (Keith Anderson)
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE GLOSTER,The Lord Chief Justice,THE LORD CHIEF JUSTICE |
| Judgment Date | 19 May 2006 |
| Neutral Citation | [2006] EWCA Crim 2044,[2004] EWCA Crim 2766 |
| Docket Number | No: 200504856 C2,Case No: 2003/6298 D3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 19 May 2006 |
[2004] EWCA Crim 2766
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
His Honour Judge Pownall QC
Indictment No. T961317
The Lord Chief Justice of England And Wales
Mr Justice McCombe and
Mr Justice David Clarke
Case No: 2003/6298 D3
Mr. David Perry and Miss Esther Schutzer-Weissmann (instructed by the Crown Prosecution Service) for the Respondent
Mr. Anthony Jennings QC and Mr. Paul Mylvaganam (instructed by Hickman & Rose) for the Appellant
The Lord Chief Justice:
INTRODUCTION
This reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 has a long history. In view of that history, we are especially grateful for the very helpful arguments which have been advanced by Mr. Anthony Jennings QC, on behalf of the Appellant, and Mr. David Perry, on behalf of the Crown, both orally and in writing.
The Appellant, Keith Anderson Beckles, was convicted on the 23 rd May 1997 at the Central Criminal Court before His Honour Judge Pownall QC of two counts of robbery, one count of false imprisonment and one count of attempted murder. He was sentenced to a total of 15 years' imprisonment. The sentence was made up of 6 years' imprisonment, concurrent, on each count of robbery, 3 years' imprisonment on the count of false imprisonment and 9 years' imprisonment, consecutive, on the count of attempted murder.
The Appellant was tried jointly with Rudolph Leopold Montague and Michelle Fagler Whyte. Montague was convicted of only one count of robbery, but otherwise he was convicted on the same counts as the Appellant. He was sentenced to a total of 18 years' imprisonment. Whyte was convicted of both counts of robbery and the false imprisonment count, but was not indicted on the attempted murder count. She was sentenced to a total of 5 years' imprisonment.
On the 7 th May 1998 the full court of the Court of Appeal dismissed the appeals of both the Appellant and Montague. On the 8 th October 2002, the European Court of Human Rights ("ECtHR"), on an application lodged by the Appellant, ruled in the case of Beckles v United Kingdom (2003) 36 E.H.R.R. 13, that there had been a violation of Article 6(1) of the European Convention of Human Rights ("ECHR") as to the trial judge's directions to the jury. The misdirection concerned the instruction to the jury as to their right to draw adverse inferences from the Appellant's silence during an interview with the police on 24 th January 1996. On the 13 th November 2002, the Appellant applied to the Criminal Cases Review Commission ("CCRC") for his case to be referred to this Court. On the 13 th May 2003, the CCRC gave a provisional decision not to refer. Following further representations made on behalf of the Appellant on 20 th June 2003, the CCRC made the present reference on the 27 th October 2003.
The judge based his direction about which complaint is made upon section 34 of the Criminal Justice and Public Order Act 1994 ("section 34") which, so far as is relevant, is in the following terms:
"(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; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
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:
(c) the court, in determining whether there is a case to answer; and
(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.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
……
(5) This section does not –
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section; or
(b) preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section."
Section 34 was recently, justifiably, described by Dyson L.J. in R. v. B. (K. J.) The Times, December 15, 2003; [2003] EWCA Crim 3080, as "a notorious minefield" [paragraph 20 of transcript]. In R v Brizzalari, The Times, March 3, 2004; [2004] EWCA Crim 310, the Court of Appeal felt it necessary to discourage prosecutors from too readily seeking to activate the provisions of section 34 [paragraph 57]. As the Court said: "the mischief at which the provision was primarily directed was the positive defence following a "no comment" interview and/or the "ambush" defence" [ibid]. In this case the police knew the essence of the Appellant's defence before the police interviews.
The House of Lords (Lord Bingham in the chair) has recently emphasised the importance of statutory safeguards in respect of section 34 being strictly observed and jury directions being carefully framed: R. v. Webber [2004] 1 W.L.R. 404 [paragraph 27]. Lord Bingham made it clear that: "the jury is very much concerned with the truth or otherwise of any explanation given by thedefendant of his reasons for not mentioning the matter during earlier questioning, since if the defendant gives any exculpatory explanation of his failure to mention it which the jury accept as true or possibly so, it would be obviously unfair to draw any inference adverse to him from his failure to mention it" [paragraph 29].
The issues on this appeal are:
i) Did the trial judge misdirect the jury?
ii) If so, what is the effect of the misdirection?
The answers to those questions are complicated by the decision of the ECtHR and the fact that the trial took place before the Human Rights Act 1998 (" HRA") came into force, making the ECHR part of the domestic law of this country.
Our decision on these questions is very much dependent upon the evidence given at the Appellant's trial and the terms in which the judge directed the jury as to section 34 inferences. So it is to the effect of the relevant evidence followed by the relevant part of the summing up that we now turn.
Summary of the Relevant Evidence
The evidence for the prosecution was that on 3 rd January 1996, the victim, Mr. Mohamoud Abdi Mohammed ("Mohamoud") spent the day selling khat (a stimulant leaf) in the Upton Park area of London. At about 9.30 p.m. he met Michelle Whyte, a prostitute. She proposed that they should go back to her flat for sex, which would cost £20. Mohamoud, who had takings of about £90 with him at the time, agreed. They took a cab to a flat owned by Mr. Montague but used by Whyte for such purposes, in Hackney. Present in the flat, which was on the fourth floor, were three men, a woman and two teenagers. Soon after arriving at the flat Mohamoud was searched at knife-point by one of the men whom he later identified as Rudolph Montague. Whyte and the Appellant, it was alleged, held him while he was being searched. Montague found £30 or £40 and left the premises to buy drugs. Mohamoud was prevented from leaving the premises by, it was alleged, the Appellant. Montague returned to the flat with crack cocaine and this was smoked by those present with the exception of Mohamoud and the two teenagers. Mohamoud was later searched for a second time. He was held down by the Appellant (who was in possession of a hammer at the time) while Whyte searched him, finding more money in a purse tucked between Mohamoud's shirt and vest. Mohamoud was then kept in the flat until he was thrown out of a window by Montague, the Appellant and one of the women. Mohamoud landed on the ground below. He could not move his lower body and attracted attention by throwing stones at a ground floor window. An ambulance was called to the scene and at 2.50 a.m. on 4 th January 1996, Mohamoud was taken to the Royal London Hospital. He had seriously injured his spinal cord and was and remains completely paralysed from the waist down. He will be a complete paraplegic for the rest of his life.
The Police Investigation
Montague was arrested on 13 th January 1996. He initially gave a false name. When interviewed he provided a prepared statement in which he admitted that a man had fallen out of a window at his flat but denied that he had anything to do with the incident. He stated that he had been visiting friends and was on his way back to his premises when he met two people who had come from his flat and warned him not to go back there because a man had jumped through the window. He answered "no comment" to most of the questions put to him. In particular, he refused to answer any questions concerning drugs or whether he had been at the flat at the time of Mohamoud's arrival. He refused to give the names of those who had been present in the flat.
The Appellant was arrested just after 9.00 a.m. on 24 th January 1996. In response to the caution he stated: "I'm relieved, I've...
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