Defendant not giving evidence - suggestions put to, but not accepted by, prosecution witnesses and co-defendant's evidence adopted - correct to direct jury to draw such inferences as appeared proper from failure to mention those matters in police interview

R v Webber: HL (Lord Bingham of Cornhill, Lord Slynn of Hadley, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe): 22 January 2004

Suggestions were put on behalf of the defendant at his trial to prosecution witnesses, which they did not accept.

The defendant, who did not give evidence, adopted evidence given by a co-defendant.

The judge observed in his summing up to the jury that the matters in question had not been mentioned by the defendant when interviewed by the police, and he directed them pursuant to section 34 of the Criminal Justice and Public Order Act 1994 that they might draw such inferences from his failure to do so as appeared proper.

The defendant was convicted and appealed, contending that the judge had misdirected the jury in relation to section 34.

The Court of Appeal (Criminal Division) dismissed the appeal.

He appealed.

Michael Shorrock QC and Robin Denny (instructed by Tilly Bailey & Irvine, Hartlepool) for the defendant; Aftab Jafferjee, Sarah Whitehouse and Caroline Goodwin (instructed by Crown Prosecution Service, London Branch 3, Casework Directorate) for the Crown.

Held, dismissing the appeal, that 'fact' in section 34(1)(a) of the 1994 Act covered any alleged fact which was in issue and put forward as part of the defence case; that section 34 potentially applied if the defendant advanced at trial any pure fact or exculpatory explanation or account which he could reasonably have been expected to advance earlier if true; and that he relied on a fact or matter in his defence when he gave or adduced evidence of it, when he put a specific and positive case to prosecution witnesses (whether or not the suggestions were accepted) rather than merely questions designed to test the witnesses' evidence, and also when he adopted a co-defendant's evidence.

(WLR)

Juror's allegation of misconduct in jury room - statutory contempt provisions not precluding appellate court investigating allegation - common law secrecy rule compatible with fair trial and rendering evidence of jury's deliberations in jury room inadmissible after verdict

R v Mirza; R v Connor and another: HL (Lord Steyn, Lord Slynn, Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry): 22 January 2004

After conviction in each case, a juror complained to the court of jury misconduct during deliberations in the jury room while discussing their verdict.

On the defendants' appeals, the Court of Appeal concluded that the allegations were inadmissible under the common law secrecy rule and that in any event section 8 of the Contempt of Court Act 1981 precluded the court making any investigation.

The defendants appealed.

Edward Fitzgerald QC and Wendy Fisher-Gordon (instructed by AB Law) for the defendant Mirza; Michael Gledhill QC and Mark Dacey (instructed by Edward Fail Bradshaw & Waterson) for the defendants Connor and Rollock; David Perry, Duncan Penny and Gareth Patterson (instructed by the Crown Prosecution Service, Headquarters) for the Crown.

Held, dismissing the appeals (Lord Steyn dissenting), that section 8 was addressed not to the court which had responsibility for ensuring the fairness of a defendant's trial, but to third parties who could be punished for contempt; but that the common law rule rested on the need for full, frank discussion essential to collective decision making; and that, having regard to the presumption of a tribunal's impartiality until proof to the contrary, to the procedures in place to assist the jury (by judicial directions and by enabling a juror to raise perceived irregularities with the trial judge before reaching their verdict) and to recognition by the European Court of Human Rights of the rule as crucial and legitimate to the jury's proper functioning, the common law rule was compatible with article 6(1) of the European Convention on Human Rights, and none of the defendants had received an unfair trial.

(WLR)

Confiscation proceedings - civil standard of proof applying - court entitled to rely on information properly obtained before or after trial

R v Levin: CA (Lord Justice Rose, Mr Justice Poole and Mr Justice Davis): 29 January 2004

The appellant was convicted of counts of conspiracy to import counterfeit currency and to deliver counterfeit notes.

At subsequent confiscation proceedings, the judge, in assessing the benefit which the appellant had received and his realisable assets, took into account evidence which had not been given and would not have been admissible at trial.

On appeal against the confiscation order, it was contended that the judge had been wrong to apply the civil standard of proof in the confiscation proceedings.

Rudi Fortson (who did not appear below) and Ali Naseem Bajwa (assigned by the Registrar of Criminal Appeals) for the appellant; Roger Smith QC (instructed by Crown Prosecution Service, Special Casework Directorate, York) for the Crown.

Held, dismissing the appeal, that following the insertion of sub-section (7A) into section 71 of the Criminal Justice Act 1988, by section 27 of the Criminal Justice Act 1993, the standard of proof in confiscation proceedings was now that applicable in civil proceedings, and the court could make far-reaching assumptions, require the defendant to provide information and draw inferences from the failure to do so, and rely on evidence given at trial and any relevant information properly obtained either before or after the trial in order to determine a defendant's benefit and the amount to be recovered; that those changes did and were intended to separate the confiscation proceedings from the criminal proceedings; and that a judge was fully entitled to consider all the information before him and it was up to him to attach such weight to the material as to him seemed proper.