R v Chandler
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 20 January 1976 |
| Judgment citation (vLex) | [1976] EWCA Crim J0120-6 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 570/A/75 |
| Date | 20 January 1976 |
[1976] EWCA Crim J0120-6
Lord Justice Lawton
Mr. Justice Talbot
and
Mr. Justice Pain
No. 570/A/75
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. J. PHILLIPS appeared for the Appellant.
MR. HART LEVERTON appeared for the Crown.
On January 24th, £975, at the Central this Appellant was convicted of conspiracy to defraud was sentenced to three years imprisonment by His Hamilton. Charged with him in this Count of the men named Joy and Apicella. Both pleaded "not guilty" and no verdict was taken in their cases. Apicella pleaded guilty to a number of other offences charged in the indictment. Joy was found guilty on seven counts charging obtaining property by deception. The Appellant's wife was also charged in the indictment with dishonestly assisting in the retention of stolen goods; she was acquitted. The appellant now appeals against his conviction by leave of the Court.
Although the trial lasted many days, the facts relevant to this appeal can be stated shortly. The prosecutions case against the appellant was that he was a member of a gang which had been formed to obtain colour television sets dishonestly. Joy and Apicella called on television hire shops, giving false names, and dishonestly entered into hiring agreements without having any intention of paying the hire charges once they had obtained possession of a set. They got possession of a number and paid nothing. Sets were delivered to various addresses, including a house in which the appellant's wife was living. Thereafter the sets disappeared. The appellant had been living apart from his wife at the material times. There was some shadowy evidence that the appellant had helped the gang to remove a dishonestly acquired television set which had been sold to a dissatisfied customer. Before this Court, Mr. Hart Leverton for the prosecution accepted that this evidence could not support the conviction. The only other evidence against the appellant came from a Detective Sergeant who spoke of an interview which he had had with him on November 23rd, 1973, at North Woolwich Police Station. The appellant's solicitor was present. It is necessary to set out part of this interview. The questions were put by the Detective Sergeant.
"Q. I am investigating the theft of a number of colour televisions. Some of these were delivered to 27, Eighth Avenue, a house of which you are part owner. I understand that you have not been residing there. When did you leave?
A. March.
Q. Have you visited?
A. No, not until the trouble my wife's in. I came back to take some control.
Q. You are actually saying you've never visited till …
A. About three weeks ago.
Q. You know there are some alterations being done in the house by a firm you're working for?
A. Yes.
Q. Have you done any work in the house?
A. No.
Q. I'm going to show you a hire purchase agreement in the name of Ward dated 27th July for the hire of a Spectra 26" Colour television. It was delivered to 27, Eighth Avenue on 27th July 1973. Certain identification details were seen by the firm, namely, a rent book in the name of R. C. Chandler of 116, Windsor Road, E.7. also a driving licence number. Can you tell me how these particulars got onto this agreement?
A. Not prepared to say anything an that.
Q. Do you know a man by the name of Laurie Apicella?
A. No comment.
Q. Could this man have got hold of a driving licence or rent book in your name?
A. Don't wish to comment.
Q. Do you know a man by the name of Bernard Joy?
A. No.
Q. Could this man have got hold of a driving licence or rent book in your name?
A. I don't know whether he could or not.
Q. Do you know him?
A. No.
Q. In view of the circumstances, I suspect you may be concerned with these people I have mentioned in assisting them to steal rental televisions."
At this stage the appellant was cautioned. The questioning continued. The appellant answered some questions and refused to make any comment when asked others.
In his summing up the trial judge commented on this interview. The appellant's counsel has submitted that he was not entitled to make the comments he did. Counsel in his final speech to the jury had read to them passages from two decisions, one of the House of Lords ( R. v. Christie (1914) A.C. 545) and the other of the Privy Council ( Hall v. R. (1971) 55 Cr. App. R. 108). Reading passages from Law Reports to juries is becoming a forensic practice which would have been stopped by an earlier generation of judges. It is likely to confuse rather than help; and if, as in this case, the reading does not go as far as the judge thinks it should, he then has to read some more with a likelihood of making the confusion greater. The practice should stop. Having read the jury the well-known passage in the speech of Lord Atkinson in Christie at page 554, the judge commented as follows:-
"So although it is absolutely true that even if a person has not been cautioned, if an accusation is made against him and he either says nothing at all or makes a comment to that effect, like, "No comment," or "I am not saying", you must not automatically say that that means he is guilty. That would be quite wrong. Nevertheless, it is for you - not for me or anybody else - to decide whether you think a series of answers like that do indicate in your view his guilt or innocence, or neither the one or the other but are completely neutral. In considering that of course you must bear in mind two matters; that where a man has been cautioned - which means being told that he need not say anything unless he wishes to do so, and if he does it will be taken down in writing and may be given in evidence - and thereafter remain silent, that is absolutely within his right and he cannot be adversely criticised for so doing, because he accepts that part of the invitation in the caution to remain silent. Even if he is not cautioned, as Mr. Phillips rightly said, it is part of what is known as his common law right to decline to answer questions. In those circumstances you must ask yourselves whether he did so in the knowledge that he was exercising his common law right to remain silent, or whether he remained silent because he might have thought if he had answered he would in some way have incriminated himself."
Later, when reminding the jury of the detail of the detective sergeant's evidence about the interview, the judge interrupted the narrative with this comment:-
"From now on until a few answers later it is important to bear in mind, according to the prosecution, that no caution had been administered. According to Mr. Phillips that is not important because, as he emphasised quite rightly, there is the common law right to refuse to answer questions. According to me, and basing my decision on the case of Christie, it is a matter for you to determine, if you can, whether the refusal to answer questions was merely being evasive to protect his wife, evasive to protect himself,...
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