R v Robert Webber, Paul Ashton, Paul Steven Lyons
| Jurisdiction | UK Non-devolved |
| Judgment Date | 22 January 2004 |
| Neutral Citation | [2004] UKHL 1 |
| Court | House of Lords |
| Date | 22 January 2004 |
(On Appeal from the Court of Appeal (Criminal Division))
[2004] UKHL 1
HOUSE OF LORDS
ORDERED TO REPORT
The Committee (Lord Bingham of Cornhill, Lord Slynn of Hadley, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe) have met and considered the cause Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division)). We have heard counsel on behalf of the appellant and respondent.
This is the considered opinion of the Committee.
In this appeal the House is called upon to consider the meaning of the words "any fact relied on in his defence" in section 34(1)(a) of the Criminal Justice and Public Order Act 1994. The point of law certified by the Court of Appeal to be one of general public importance is expressed in this way:
"Can a suggestion put to a witness by or on behalf of a defendant amount to a fact relied upon in his defence for the purpose of section 34 of the Criminal Justice and Public Order Act 1994 if that suggestion is not adopted by the witness?"
Section 34, so far as relevant to this appeal, provided:
"34.-(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 -
(a) a magistrates' court, in deciding whether to grant an application for dismissal made by the accused under section 6 of the Magistrates' Courts Act 1980 (application for dismissal of charge in course of proceedings with a view to transfer for trial);
(b) a judge, in deciding whether to grant an application made by the accused under -
(i) section 6 of the Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or
(ii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);
(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.
(4) This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above 'officially informed' means informed by a constable or any such person.
(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."
This is the first of a series of sections of the Act having related objects. Section 35 permits, in closely defined circumstances, the drawing of adverse inferences from the failure of a defendant to testify or answer a question at his trial. Section 36 permits, again in closely defined circumstances, the drawing of adverse inferences from a defendant's failure or refusal to account for an object, substance or mark. Section 37 has similar effect where a defendant fails or refuses to account for his presence at a particular place. Even where the qualifying conditions under these sections are fully satisfied, it is always for the court or jury to decide whether in all the circumstances it is proper to draw any inference adverse to the defendant. But the sections provide that the silence of the defendant need not be treated as neutral. So much is made clear to a suspect by the terms of the caution, prescribed in paragraph 10.5 of Code C of the codes of practice made under the Police and Criminal Evidence Act 1984:
"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court".
The facts
The appellant (Robert Webber) was tried with Paul Ashton and Paul Lyons on an indictment containing four counts. Count 1 charged the three men with conspiracy to murder contrary to section 1(1) of the Criminal Law Act 1977. The particulars of the offence were that between 1 January 1995 and 12 October 1996 the defendants conspired together to murder Terence Mitchell. Count 2 was an alternative count: it was similar to count 1 save that it charged a common law conspiracy to inflict grievous bodily harm. Count 3 charged Ashton and the appellant with possession of a firearm (a Ballester Molina.45 calibre self-loading pistol) with intent to endanger life on 12 January 1996, contrary to section 16 of the Firearms Act 1968. Count 4 (on which the appellant was acquitted) raises no issue pertinent to this appeal. He was convicted on counts 1 and 3.
The prosecution case on the conspiracy counts was based on three incidents of which the first took place on 11 July 1995. On that date, according to the prosecution evidence, Mitchell was attacked with a bayonet and seriously wounded. The attacker escaped in the appellant's Mercedes car. The appellant was said to be driving, with Ashton in the passenger seat. Mitchell later identified Lyons as his assailant. Mrs Stephenson, who was at the time a friend of the appellant, testified that she had heard the appellant and Lyons talking about Lyons having attacked Mitchell.
When interviewed under caution in the course of the police investigation into this incident the appellant said that he was not responsible for this attack and had not been present. He denied involvement in the conspiracy and in any plan to injure Mitchell or his associates. By agreement, an edited summary of this interview was placed before the judge and the jury which misleadingly omitted reference to the appellant's denial of being present. The appellant was not asked in interview about the conversation which Mrs Stephenson said she had heard. At trial it was put to Mitchell on behalf of the appellant that he had invented his evidence that the appellant and Ashton had been in the Mercedes in the vicinity, and to Mrs Stephenson that she was lying about the overheard conversation. Neither of these suggestions was accepted by the witness.
The second of the three incidents relied on by the prosecution took place on 15 August 1995. The prosecution case was that Mitchell was filling up his car at a petrol station when the appellant drove a car straight at him, hitting Mitchell's car and causing him to fall to the ground. Ashton, who was in the passenger seat of the appellant's car, got out and drew a knife. Mitchell sought refuge in the garage shop. Mrs Stephenson testified that the appellant had told her that he had pulled into the garage to fill up and that Ashton had pulled out a knife and chased Mitchell into the shop, intending to frighten him.
When questioned about this incident by the police the appellant made no comment save to deny involvement in any conspiracy or plan to injure Mitchell or his associates. At trial it was put to Mitchell on behalf of Ashton that Mitchell had been carrying a knife and on behalf of the appellant that the contact between the two cars had been minimal. Ashton, who was the first defendant on the indictment, gave evidence that he and the appellant had driven on to the forecourt; that Mitchell, who was already there, had produced a knife; that he (Ashton) had not produced a knife; and that there had been no violence. There was no cross-examination of Ashton on behalf of the appellant. In his closing speech the appellant's counsel adopted Ashton's evidence that Mitchell had been carrying a knife.
The third incident relied on by the prosecution to support the conspiracy counts took place on 12 January 1996, and the third (firearm) count related to this incident alone. The prosecution case was that on that date Mitchell and an associate named Watson had pulled up outside Watson's house in a van. The appellant then drove up in a Jaguar car, from the back seat of which Ashton had fired a gun. A prosecution witness identified the appellant as the back seat passenger. Mrs Stephenson testified that the appellant had told her about this incident.
When questioned by the police the appellant denied being present at the scene of the shooting. Mitchell was cross-examined on behalf of the appellant and it was put to him that the appellant had instigated, through a named third party (Ruddick), a meeting with Watson; that the purpose of the meeting was to ambush the appellant when he arrived; that Ashton was not the driver of the Jaguar; that the appellant had been sitting in the back passenger seat;...
To continue reading
Request your trial
-
R v Glen Maguire
...10 All that said, section 34 does no more than seek to apply commonsense. That is clear from the decision of their Lordships in Webber [2004] 1 Cr.App.R 40. The question which a section 34 direction raises is always whether the omission to refer to something in interview which appears later......
-
R v Beckles (Keith Anderson)
...... Mr. Anthony Jennings QC and Mr. Paul Mylvaganam (instructed by Hickman & Rose ) for ...v. Webber [2004] 1 W.L.R. 404 [paragraph 27]. Lord ......
-
R v Kapoor and Others
...App R 377, CAR v Milford [2001] Crim LR 330, CAR v Singh (Amar Jit) [1972] 1 WLR 1600; [1973] 1 All ER 122; 57 Cr App R 180, CAR v Webber [2004] UKHL 1; [2004] 1 WLR 404; [2004] 1 All ER 770; [2004] 1 Cr App R 513, HL(E)R (Kariharan) v Secretary of State for the Home Department [2002] EWCA ......
-
Altrad Services Ltd (Formerly Cape Industrial Services Ltd) v The Commissioners for HM Revenue and Customs
...to the UT for permission to appeal dated 11 August 2022, para 16. 3 Barclays Mercantile Business Finance v Mawson (Inspector of Taxes) [2004] UKHL 1, [2005] AC 684; Ensign Tankers (Leasing) Ltd v Stokes (Inspector of Taxes) [1992] AC 655; Tower MCashback LLP 1 and another v Revenue and Cus......
-
Subject Index
...20R v Ward [1993] 1 WLR 619 ........................2 65R v Warner (1993) 96 Cr App R 324......... 119R v Weber [2004] UKHL 1........................... 50–4R v Weir [2001] 1 WLR 421.......................... 176R v Wilkie (1950) 97 CCC 381 .....................119R v Williams [1923] 1 KB 3......
-
Exemplum Habemus: Reflections on the Judicial Studies Board's Specimen Directions
...‘never [be] easy for a trial judge’ (at [57]), but the jurors’ task can proveequally arduous.83 The House of Lords’ judgment in Webber [2004] 1 WLR 404 at [27] lendsfurther support to this proposition.84 [1999] 2 Cr App R 335.85 [2003] EWCA Crim 1170 at [19].86 19 June 1998, Transcript No. ......
-
Explaining and trusting expert evidence: What is a ‘sufficiently reliable scientific basis’?
...be no material to undermine the conclusion to be drawn from theDNA evidence.3631. Above n. 30 at [3].32. Above n. 30 at [16].33. Webber [2004] UKHL 1; [2004] 1 WLR 40.34. Tsekiri, above n. 8.35. On the meaning of ‘fact’ in this context see RvLewis [2018] EWCA Crim 1101.36. Tsekiri, above n.......
-
Law Reports, Transcripts, and the Fabric of the Criminal Law—A Speculation
...this, consider one of the most recent criminal appeals to be heard by the House of Lords. In the House’s composite judgment in R v Webber[2004] UKHL 1, [2004] 1 WLR 404 (see p. 204 above for a note on this case) of the19 cases cited directly in the judgment, no less than 10 are unreported C......