R v Seaton (Oral)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 13 August 2010 |
| Neutral Citation | [2010] EWCA Crim 1980 |
| Docket Number | Case No: 200903248/C4 IB |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 August 2010 |
[2010] EWCA Crim 1980
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LUTON CROWN COURT
His Honour Judge Bevan QC
Before: Lord Justice Hughes
Mrs Justice Rafferty DBE
and
Mr Justice Maddison
Case No: 200903248/C4 IB
T2008 7339
Mr R Latham QC for the Respondent
Mr R Carey-Hughes QC for the Appellant
Hearing dates: 22 nd July 2010
Lord Justice Hughes:
This appeal relates to comment made by the Crown on the omission of the defendant to call his solicitor. The case was one in which the defendant was accused of recent fabrication of his evidence on the grounds that he had said something significantly different in the police station. On his behalf, Mr Carey-Hughes QC contends that the comment made amounted to an infringement of legal professional privilege. In part the question raised is confined to the particular facts of this case and the course which the defendant's evidence took. Mr Carey-Hughes, however, raises a number of questions about the import of the decision of this court in R v Wilmot (1989) 89 Cr App R 341, which has appeared in the textbooks for many years, when considered together with other decisions upon privilege as applied to the defendant in a criminal trial.
The facts of the case do not need detailed rehearsal. The defendant was charged with murder. The Crown case was that he had arrived home from Germany on the evening of Wed 24 Sep 2008, had visited his friend the deceased at the latter's home in Luton, and there had murdered him by multiple stabbing with a kitchen knife, a carving fork and perhaps a machete or similar, no doubt as a result of some altercation or dispute. There was some evidence of a possible source of dispute over money borrowed by the defendant to buy a property in Turkey.
The defendant's case at trial was that he was not there when his friend was killed. He had visited, but had left his friend alive and well and, after catching a nap in his car a few streets away, had gone home to Woolhampton in Berkshire, where he lived and worked at a public house called the Angel.
This had not been the defendant's initial account. It had always been known and accepted that he arrived home from Germany late that evening, landing at Stansted not long before midnight and then being met by some friends and driven by them to collect his own car from their home in Romford. However, first thing the next morning he had told a friend of his at work that he had come straight home from collecting his car, but had been very delayed by motorway accidents. His route from Romford to Woolhampton would not take him to, or anywhere near, Luton. He was also interviewed by the police as a witness the day after the body was found. He told them the same.
By the time of the trial it was indisputable that the defendant had indeed been to Luton. There was evidence of sightings of his car where it would not have been if he had gone straight home but where it would have been if he had been to Luton. There was telephone evidence to the same effect. Cellsite evidence had put one of the deceased's mobile telephones in the near vicinity of the defendant's place of work well after the deceased had been killed and the defendant in due course admitted that he had been in possession of it. And most of all, the defendant's freshly spilled blood had been found in the deceased's flat.
At trial the defendant's case was that he had indeed visited the deceased, but had left him alive and well. The Crown asserted that the change of account was forced on him by the finding of evidence which put him in the deceased's flat. He said no; he had lied because he had been delivering a package of drugs and did not want to have to admit it.
A good deal of the defendant's blood had also been found in his own car. The Crown's case was that it derived from injuries to his hands, which he must have sustained in the course of using one or more knives to kill the deceased. He, by contrast, said that he had cut his hands innocently on various occasions, but particularly that he had cut one hand before he visited the deceased. So it was that his account of sustaining the injury to his hand assumed significance at the trial.
The injuries to the defendant's hand had been observed when he was arrested about three days after the murder. In police interviews he was asked about them. He had a solicitor with him throughout. He elected to answer none of the many detailed questions which were put to him by the police, and it was apparent on the face of the transcript and thus in evidence that this was on the advice of the solicitor. Although he answered no questions, he did present the police, through his solicitor, with two prepared statements, one in the third interview and one in the fourth. They had plainly been prepared at the police station during consultations which had taken place between interviews. Of all the topics covered in the interviews, the only one on which he volunteered information in these prepared statements was that of injuries to his hands.
Each of his two prepared statements began with the following signed declaration:
“The statement below is my statement. My solicitor has gone through my statement with me and I agree its contents. No one has told me what to say.”
In the first prepared statement he said that he had cut his hand at Stansted airport at baggage reclaim when, as he tried to remove his bag from the carousel, a woman passenger had accidentally dropped her own bag on his hand.
At trial he said this was wrong. It had been at Lubeck airport on departure that he had cut his hand, not at Stansted on arrival. And it followed that it had not been at the carousel, but rather when a fellow passenger had dropped a sharp piece of luggage onto his hand as he was going through security.
In his second prepared statement the defendant gave further information about other injuries to his hand seen at the time of his arrest. One, he said, had been sustained sweeping away broken glass in the pub after returning there, thus a day or so after the murder. This second statement came during the fourth interview, and it had clearly been prepared during a consultation with his solicitor of about half an hour between the third interview (at which the first statement had been delivered) and this one. Although this second prepared statement dealt also with injuries, it was silent as to the matter of airport injury; in particular it did not correct what the defendant now told the jury was an accidental misstatement in the first statement.
The Crown case was that this was a further example of the defendant altering his evidence to meet the indisputable facts. They said he had altered his account in the face of evidence that (1) there was a lot of blood in his own car which must have come from his cut hand but (2) none in the car in which his friends had taken him from Stansted back to Romford. Moreover those friends recalled no sign of any cut, nor reference to one. That meant, said the Crown, that the original assertion that the cut had been sustained just before getting into the friends' car, and some little time before getting into his own, could not be correct. Counsel for the Crown had other examples of changes in the defendant's account to explore, not least the earlier denial of going to Luton at all, and the jury would have to decide whether the defendant's explanation might be truthful or not. But it is clear that counsel for the Crown took the stance, in due course, that this particular change in the defendant's story was one for which there was no plausible explanation, and that it was, for that reason, a good touchstone as to his truthfulness.
The defendant's evidence at trial on this topic proceeded as follows. First, he was asked about it by his own counsel in chief. He gave evidence that he had been advised not to answer the policemen's questions, but did not adduce the terms or contents of that advice. He was asked directly whether the assertion in the first statement that the accident to his hand had occurred at Stansted was correct. He said it was not. The questioning proceeded:
“Q: Who wrote out whatever it was that was said?
A: My legal representative.
Q: We know that your signature appears on it, along with a declaration that you have read it and it is correct.
A: Yes
Q: Did you read it?
A: I didn't, no.
Q: Why not?
A: Erm, I should've done – in hindsight. Erm, but to tell you the truth I was so tired, erm…I'd obviously been in the police station. I didn't sleep. Erm, and with that and my medication made me even worse – I actually went to the hospital that Monday as well. So, I didn't feel too well – too well.
Q: Anyway, you did sign it without reading it.
A: Yeah
Q: It was read out during the course of the interview
A: Yes
Q: When it was read out, did you appreciate that it said that you had injured your hand at Stansted Airport, picking up luggage off a carousel?
A: Yes
Q: Was that correct?
A: No, it wasn't.
Q: Did you realise….
A: I did at the time
Q: …that it was wrong? And did think about correcting it?
A: I did, but then I thought, erm…
Q: I do not mean during the interview but at any time immediately after the interview
A: Yeah. After.
Q: I just want you to say ‘yes’ or ‘no’ to this, please: did you discuss the possibility of correcting it with your solicitor? Just yes or no please.
A: Yes
Q: In the light of whatever discussion you had with your solicitor did you come to a decision about whether you change it there and...
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