BOYLE v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
1. The first applicant, Mr Christopher Boyle, is a British national who was born in 1971 and is currently detained at HM Prison Full Sutton. He is represented before the Court by Stephensons Solicitors, a firm of lawyers practising in Wigan. The second applicant, Mr David Ford, is a British national who was born in 1970 and is currently detained at HM Prison Frankland. He is represented before the Court by Russell and Russell, a firm of lawyers practising in Bolton. 2. s, may be summarised as follows. 3. On 1 July 1998, firemen attended a fire at a house in Darlington and discovered the body of D.G., a heroin addict and dealer. He had been shot in the throat and stabbed with at least two different knives a minimum of twenty times. The fire had been started deliberately and burns to D.G.’s body occurred after his death. 4. The applicants were acquaintances of D.G. There was evidence that they had access to a shotgun on the night in question and the second applicant was seen with a shotgun wound to his finger and a burn to his abdomen the morning after the murder. Both applicants lied to their acquaintances about how the second applicant had injured himself. 5. The applicants were subsequently arrested in connection with the murder. 6. The first applicant was interviewed twice by the police under caution in connection with the murder of D.G. on 3 July 1998 and six times, again under caution, on 23 July 1998. In the course of the interviews, he was asked to account for his movements in the early hours of 1 July 1998, to explain the items found in his car and to account for gun damage to, and D.G.’s blood found in, the car. He made no reply to the questions asked, except to say that he did not know what the police officers were “going on about” and “it’s nowt [nothing] to do with me”. His solicitor made it clear in the interview that he had advised the first applicant to exercise his right to silence. The second applicant was similarly interviewed, under caution, ten times in July 1998 and also made no comment, again on legal advice. 7. Both men were charged with murder. The prosecution case against the applicants was that D.G. had been given heroin prior to his death in order to pacify him. Heroin was found in the car used by the applicants on the night of the murder. The second applicant’s blood was found in the same room as D.G.’s body and D.G.’s blood was found on a pair of glasses belonging to the first applicant which were recovered from the first applicant’s car. A stain on the ceiling of the car was composed of a mixture of material including the first applicant’s DNA and DNA allegedly from D.G. 8. On 14 September 1998, both applicants were interviewed again under caution. The purpose of the interviews was to give them the opportunity to comment on forensic evidence regarding the blood staining which had only recently become available and was therefore not put to them in the July interviews and to comment on the blood found on the glasses. Both applicants instructed different solicitors from those representing them in the July interviews. Both applicants answered questions in relation to the blood staining. They gave the same explanation for how D.G.’s blood came to be on his glasses and the ceiling of the car, namely that on the Friday preceding the murder D.G. had injected himself with amphetamines while in the car and had subsequently tried on the first applicant’s glasses. The second applicant explained that he had visited D.G.’s house a week or two before the murder with the first applicant and that he had, while there, injected himself with amphetamines. He assumed that any trace of his blood at the house came from that injection. 9. At trial, both applicants gave evidence in accordance with the account given to the police during the September interviews. They both explained that their silence in the July interview was based on legal advice. Both gave evidence that they had been together at the time of the murder on an aborted expedition to catch a badger and denied any knowledge of or involvement in the murder. 10. In addition to the evidence outlined above, the prosecution also relied on a witness, A.I., who claimed that the first applicant had confessed to the murder when they had been in adjoining cells in July 1998. The evidence of A.I. had not been put to the applicants during either of the interviews as he did not come forward until January 1999, after the interviews had been conducted. 11. In his summing up, the judge began by emphasising to the jury that the burden lay on the prosecution to prove the charge against the applicants: “... It is a basic principle of any criminal trial that the Prosecution brings the charge and the Prosecution must prove it. It is for the Prosecution to establish each defendant’s guilt. The Defence do not have to prove anything ...” 12. As regards the silence of the applicants in the July interviews, the judge gave the following direction: “... [W]hen the defendants were interviewed during July last year they refused to answer any questions put to them. Consequently, they did not mention any of the matters now relied upon in their Defence during those interviews. The defendants say that this refusal to answer questions was because of legal advice which they were receiving. It appears from the transcripts of the interviews that they were, indeed, receiving legal advice to that effect. In September 1998, as I shall remind you when I come to review the factual evidence, the defendants’ stance changed. The defendants say that this was because their new solicitors were giving them different legal advice. It certainly appears from the transcripts in September the defendants’ legal advice became that they should answer questions. Indeed the answers which the defendants gave in and after September were consistent with their evidence in court. It is for you to decide whether the facts which the defendants failed to mention during the early interviews were facts which, in the circumstances, they could reasonably have been expected to mention. If they were then the law is that you may draw such inferences as appear proper from the defendants’ failure to mention these matters at the time. In considering whether the defendants could, reasonably, have been expected to mention during the early interviews the facts upon which they now rely in their defence you must consider all the circumstances. These circumstances include the legal advice which the defendants were receiving. If you are sure that the defendants could reasonably have been expected to mention those matters then what inferences can you draw? Failure to mention a fact cannot, on its own, prove guilt. But depending on the circumstances you may hold it against a defendant when deciding whether he is guilty. That is take it into account as some additional support for the Prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.” 13. Subsequently, in summarising the evidence against the applicants and their own explanations regarding the evidence, the judge reminded the jury of the applicants’ answers to the questions put to them in the September interviews. He further reminded them that the first applicant had explained that he had refused to answer questions in the July interviews because his solicitors had advised him to remain silent. His explanation for his responses in the September interview was that he had changed solicitors and his new solicitors had advised him to answer questions. He had accordingly done so. 14. On 28 May 1999, the applicants were convicted of murder and were sentenced to life imprisonment. 15. The applicants appealed to the Court of Appeal for leave to appeal against conviction. The grounds of appeal made no reference to any alleged deficiencies in the adverse inferences direction. Instead, the grounds complained of, inter alia, reliance by the prosecution on the confession of A.I., alleged deficiencies in the conduct of the police and alleged inadequate prosecution disclosure. Leave to appeal was refused on 8 February 2000. 16. On 6 April 2001, the first applicant applied to the Criminal Cases Review Commission (“CCRC”) for a referral of his case back to the Court of Appeal. It is not clear whether the second applicant also made an application to the CCRC at this time. No complaint about the adverse inferences direction was raised in the CCRC application. On 2 January 2002, the CCRC decided not to refer the convictions back to the Court of Appeal. 17. On 19 December 2003, the first applicant re-applied to the CCRC alleging that the trial judge’s adverse inferences direction was deficient. On 10 August 2004, his conviction was referred to the Court of Appeal by the CCRC. The second applicant applied to the CCRC on 22 August 2004. On 21 October 2004, his conviction was also referred back to the Court of Appeal. 18. Before the Court of Appeal, the applicants argued that the directions to the jury were defective in that the jury was not directed that adverse inferences could only be drawn if the jury was satisfied that the real reason for the applicants’ silence was that they had no answer at the time or none that would stand up to scrutiny. They further argued that the trial judge had erred in not identifying the precise facts to which the adverse inferences direction related and leaving it open to the jury to draw adverse inferences in relation to some facts relied upon in respect of which adverse inferences should not have been drawn. The Crown accepted that there had been a material misdirection on both grounds but argued that the convictions were safe and that any appeal should therefore be dismissed. 19. On 25 August 2006, the Court of Appeal handed down its judgment. Waller LJ noted (at paragraphs 3 and 4): “It is even at this stage worth putting that direction into context. First, it was a direction discussed between the judge and counsel before the summing up commenced. Prosecuting counsel approved the same and leading counsel acting for each of the appellants also approved the same. Following the conviction there was an application for leave to appeal against conviction to the Court of Appeal. In the grounds no reliance was placed on the inadequacy of the s.34 direction, and the application was refused on 8th February 2000. The appellant Boyle applied to the CCRC for a review of his conviction on 6th April 2001. We assume the appellant Ford did likewise. It would seem that in those applications there was no suggestion that the s.34 direction was inadequate and on 2nd January 2002 the CCRC decided not to refer either conviction to the Court of Appeal. It was only on 19th December 2003 that there was a re-application to the CCRC, based on the direction under s.34 and an assertion that it was insufficient and called into question the safety of the convictions.” 20. As to the appropriate approach to its review of the convictions, he commented (at paragraph 13): “We are troubled as to what should be the right approach of the Court of Appeal in a case such as the present. We follow the argument based on the absolutist approach. But if an absolutist approach must be adopted in all cases where a misdirection is now identified in respect of cases where it has never previously been suggested that a trial was unfair, or a conviction unsafe, that would seem to leave it open to appellants on the advice of lawyers to bring before the CCRC cases where permission to appeal out of time might not have been given. It is relevant, as it seems to us, in considering a s.34 case, and indeed this case, to recognise that all the points taken as to the inadequacy of the direction, are points taken in other cases. In other words it is important to recognise that it was open to the appellants in this case to take the points now taken, if anyone had thought of them at the trial or immediately after the trial, if it were thought that there was force in any argument that the trial had been unfair.” 21. Waller LJ concluded (at paragraph 14): “We believe that an absolutist approach, particularly to a reference, is not called for. The essential question is whether any misdirection identified has caused an injustice and whether the Court of Appeal is satisfied that the verdict was safe. In reaching a decision as to the safety of the verdict it may assist to analyse first how the case was left to the jury by virtue of the direction given and then second to analyse how it would have been left to the jury if a proper direction had been given. The court should then assess, whether having regard to the jury’s verdict on the direction as given, the jury would have been bound to convict if a proper direction had been given. Only, of course, if the court is sure that the jury would have been bound to convict can the verdict be said to be safe.” 22. As to the adverse inferences direction given by the trial judge, Waller LJ noted (at paragraphs 33-34): “As we previously indicated that direction was discussed between counsel and the judge. A transcript of that discussion was placed before us, demonstrating that counsel for the appellants, Mr Bethel QC for Ford and Mr Worsley QC for Boyle, were content with a direction on those lines and they had no submission to make. 23. He continued: The direction is on any view defective in certain significant respects. First it does not give the direction that:— 1. An adverse direction could only be drawn if the jury were satisfied that the real reason for silence was that the appellants had no answer at the time, or none that would stand up to scrutiny. 2. It was deficient in that the judge did not identify the precise facts to which the direction related.” 24. He commented (at paragraphs 37-38): “[Counsel for the prosecution]’s submission was that so far as legal advice was concerned, the appellants received a favourable direction. He submits that the inference to be drawn from the judge’s direction that the transcripts indicated that they did receive legal advice that they should not answer questions, and his drawing attention to the fact that that advice changed and that once they had advice to the contrary in September they gave evidence in accordance with that advice, are all directions which would have steered the jury to the view that reliance on the advice in July 1998 was reasonable. We accept that the [trial judge’s] steer was in the appellants’ favour, but the direction still left it open to the jury to draw adverse inferences, and the submission is not a complete answer to [counsel for the appellants’] submissions.” 25. As to the second criticism concerning the failure of the trial judge to specify the facts to which his adverse inferences direction referred, he noted (at paragraphs 39-41) “So far as the second criticism is concerned, i.e. the failure to specify the facts to which the direction applied, [counsel for the prosecution] had to accept the criticism made. But would a direction setting out all the facts with which the appellants failed to deal in July have assisted the appellants? In the respondent’s skeleton first produced for the Court of Appeal the argument was that if the judge had highlighted all the facts which the appellants might have referred to in their first interviews that would have been enormously damaging to the appellants ... There is, as we would see it, force in that submission and the fact that all facts which might have been referred to were not set out seems to us to have been of benefit to the appellants. However, in considering what direction to give and, on the basis that key facts in relation to which an adverse inference might be drawn should be specified, the judge would have been likely to concentrate on one, or possibly two, of the facts. The key fact of which the appellants gave no explanation until they came to give evidence was that they were innocently going on a badger hunt between the hours of 2am and 3am on 1st July and that that accounted for the gun and other items they had in the car and accounted for their movements that morning. It was also put to the appellants that the deceased’s blood had been found on the ceiling of the Saab and, again, no explanation was given as to how that had happened. Therefore the direction should have contained words to the following effect:- ‘As part of their defence the defendants have relied upon the fact that they were going on a badger hunt in the early hours of 1st July and on the fact that there was an explanation for the deceased’s blood being in the Saab, i.e. that the deceased had injected himself in that motorcar. The prosecution say and indeed the appellants admit that they did not mention those facts when they were interviewed about the offences in July 1998. This failure may count against them. This is because you may draw the conclusion from that failure that they have since invented those matters and had no answer to the case being put to them by the police, or no answer that would stand up to scrutiny. If you do draw that conclusion you must not convict them wholly or mainly on the strength of it, but you may take it into account as some additional support for the prosecution’s case, when deciding whether the appellants’ evidence about these facts is true. However, you may draw that conclusion only if you think it is a fair and proper conclusion and you are satisfied about three things: first, that when they were interviewed they could have reasonably been expected to mention the facts on which they now rely; second, that the only sensible explanation for their failure to do so is that they had no answer at the time or none that would stand up to scrutiny; third, that apart from their failure to mention those facts the prosecution’s case against them was so strong that it clearly called for an answer by them.’” 26. He continued (at paragraph 42): “It seems to us clear from the jury’s finding that they must have been sure that the explanation given by the appellants for their whereabouts was a lie, and that the explanation given for the blood of the deceased in the [car] was a lie. The argument for the appellants has to be that the jury may have been ‘tipped’ to forming that conclusion by their failure to answer questions in July 1998.” 27. Waller LJ concluded (at paragraphs 43-44): “In our view the position is as follows. First, on the direction that the jury were given it is most unlikely that they held the silence in July 1998 against the appellants, the judge stressing their reliance on the advice of a solicitor at that time. If, however, because, as we must accept, the possibility of drawing an adverse inference was left open to the jury, then, in this case, there is absolutely no basis on which it can legitimately be said there was good reason, even relying on solicitors’ advice, for not saying where they were on that evening or giving the explanation for how the deceased’s blood came to be in the [car]. Thus to have drawn an adverse inference from the failure in the July interviews to mention where they were and how blood got on the ceiling of the [car] could not, in the circumstances of this case, in any way be unfair. Furthermore, in our view, the jury would inevitably have been sure that the explanation given in the witness box was made up and not produced at the July interviews because it was an explanation that would not stand up to scrutiny. Our overall view is that the s.34 direction given was not in fact unfair to the appellants, indeed, if anything, it steered the jury away from drawing any adverse inference. If a fuller direction had been given it would have emphasised that which the appellants could have disclosed in the July 1998 interviews and it would have emphasised that reliance on the advice of the solicitor was not necessarily good enough. It would indeed have made it more likely that the jury would have drawn an adverse inference than the direction that was in fact given. Furthermore, it seems to us that one can be sure that in rejecting the evidence of the appellants, the jury were in fact sure that the appellants did not have an explanation which they could have given in July 1998 which would have stood up to scrutiny.” 28. Section 34 of the Criminal Justice and Public Order Act 1994 provides that: “(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; ... 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 ... (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. ...” 29. Section 38(3) provides that: “A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...” 30. A number of domestic cases have considered the application of section 34 in practice. In R. v Cowan ([1996] 1 Criminal Appeal Reports 1), Lord Taylor CJ set out five “essentials” when making a direction on adverse inferences: “We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight: 1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is. 2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. 3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act. 4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence. 5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.” 31. Subsequently, in R. v. Argent ([1997] Criminal Appeal Reports 27), Lord Bingham CJ added a sixth condition that had to be met before section 34 of the 1994 Act would allow inferences to be drawn: “The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ... Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.” 32. The Court of Appeal has considered a number of cases in which the defendant’s alleged that the adverse inferences direction was deficient on one the basis that it failed to include a direction to the effect that adverse inferences could only be drawn where the jury was satisfied that the real reason for the defendant’s silence was that they he no answer to the questions asked, or no answer that would hold up to scrutiny, including R v. Condron and Condron ([1996] EWCA Crim 1129); R v. Gill ([2000] EWCA Crim 49); R v. Milford (2000] EWCA Crim 84); and R v. Betts and Hall ([2001] EWCA Crim 224). In all these cases, with the exception of Condron, the court granted the appeals on the basis of this Court’s judgment in Condron, cited above. 33. Guidance as to the direction which the judge should give the jury in respect of section 34 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board, which provides specimen directions. At the time of the applicants’ trial, the relevant part of the specimen direction read as follows: “If he failed to mention [a fact] ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention. The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its won, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take into account as some additional support for the prosecution’s case. It is for you to decide whether it is fair to do so.” 34. The specimen direction was updated and revised in May 1999 but it is not clear whether the amended direction was available to the judge at the time of the applicants’ trial. It included the following section: “...[if] you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him.” 35. The present specimen direction, last updated in December 2004, further amended the previous version. It reflects the domestic case-law on jury directions as well as the judgments of this Court in John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996I and Condron v. the United Kingdom, no. 35718/97, ECHR 2000V). It provides as follows: “1. Before his interview(s) the defendant was cautioned ... He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he did say might be given in evidence. 2. As part of his defence, the defendant has relied upon (here specify the facts to which this direction applies ...). But [the prosecution say][he admits] that he failed to mention these facts when he was interviewed about the offence(s). [If you are sure that is so, this/This] failure may count against him. This is because you may draw the conclusion ... from his failure that he [had no answer then/had no answer that he then believed would stand up to scrutiny/has since invented his account/has since tailored his account to fit the prosecution’s case/(here refer to any other reasonable inferences contended for ... )]. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it ...; but you may take it into account as some additional support for the prosecution’s case ... and when deciding whether his [evidence/case] about these facts is true. 3. However, you may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things: first, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ... ; third, that apart from his failure to mention those facts, the prosecution’s case against him is so strong that it clearly calls for an answer by him ... 4. (Add, if appropriate:) The defence invite you not to draw any conclusion from the defendant’s silence, on the basis of the following evidence (here set out the evidence ... ). If you [accept this evidence and] think this amounts to a reason why you should not draw any conclusion from his silence, do not do so. Otherwise, subject to what I have said, you may do so. 5. (Where legal advice to remain silent is relied upon, add the following instead of paragraph 4:) The defendant has given evidence that he did not answer questions on the advice of his solicitor/legal representative. If you accept the evidence that he was so advised, this is obviously an important consideration: but it does not automatically prevent you from drawing any conclusion from his silence. Bear in mind that a person given legal advice has the choice whether to accept or reject it; and that the defendant was warned that any failure to mention facts which he relied on at his trial might harm his defence. Take into account also (here set out the circumstances relevant to the particular case, which may include the age of the defendant, the nature of and/or reasons for the advice given, and the complexity or otherwise of the facts on which he relied at trial). Having done so, decide whether the defendant could reasonably have been expected to mention the facts on which he now relies. If, for example, you considered that he had or may have had an answer to give, but reasonably relied on the legal advice to remain silent, you should not draw any conclusion against him. But if, for example, you were sure that the defendant had no answer and merely latched onto the legal advice as a convenient shield behind which to hide, you would be entitled to draw a conclusion against him, subject to the direction I have given you. ”