Further guidelines on the application of the current Judicial Studies Board model direction on s.34 Criminal Justice and Public Order Act 1994 and consideration of the appropriate direction where co-defendants had a cut-throat defence.Appeals by two co-defendants ('P' and 'F') against conviction on two counts of theft. Both were sentenced to five years' imprisonment on each count concurrent. P also applied for leave to appeal against sentence. Both defendants were employees of the Industrial Bank of Japan ('IBJ') when the offences occurred. F transferred two sums of ?420,000 into accounts in P's name or controlled by P. The transfer and receipt of the monies was not disputed. P's case was that he believed that the money belonged to F himself and had been transferred to him to invest. F's defence was that he knew the transfers were dishonest but that he acted under the duress of P and his associates. It was therefore a full cut-throat defence. Both P and F appealed on the basis that the judge's direction under s.34 Criminal Justice and Public Order Act 1994 was fatally flawed as a result of a series of defects and that the judge failed to give the jury an appropriately structured, or any, warning about the danger of relying on the evidence of each defendant as against the other (R v Jones and Jenkins (2003) EWCA Crim 1966). F appealed on two further grounds that: (a) the judge was wrong to say that a statement by F's deceased grandmother admitted under s.23 Criminal Justice Act 1988 was not accepted in circumstances where, although it was not accepted by P, the Crown was merely neutral; and (b) new evidence supported F's case that he had received none of the stolen money.HELD: (1) The following matters should be set before a jury in a well-crafted and careful s.34 direction: (i) the facts which the accused failed to mention but which were relied on in his defence should be identified; (ii) the inferences which it was suggested could be drawn from failure to mention such facts should be identified to the extent that they might go beyond the standard inference of late fabrication; (iii) the jury should be told that if an inference was drawn they should not convict wholly or mainly on the strength of it; (iv) the jury should be told that an inference should be drawn only "if you think it is a fair and proper conclusion"; (v) an inference should be drawn only if the only sensible explanation for his failure was that he had no answer or none that would stand up to scrutiny (R v Cowan, Gayle and Riccardi (1995) 3 WLR 818; (vi) an inference should only be drawn if, apart from the defendant's failure to mention facts later relied on in his defence, the prosecution case was so strong that it clearly called for an answer by him; (vii) the jury should be reminded of the evidence on the basis of which the jury were invited not to draw any conclusion from the defendant's silence; (viii) a special direction should be given where the explanation for silence of which evidence had been given was that the defendant was advised by his solicitor to remain silent. (2) The judge had identified the inference which the jury might draw although it was unsatisfactory for him to leave other possible inferences in the air. (3) The judge had told the jury that they should not convict wholly or mainly on the strength of an inference and had directed them that they could only draw an adverse inference if they were satisfied that the prosecution had made out a prima facie case. (4) The judge failed to direct the jury that they should only draw an adverse inference if they concluded that the only sensible explanation for the defendant's failure to mention something was that he had no answer at the time or none that would stand up to scrutiny. The defendants had put forward explanations for their failures. The judge should have reminded the jury of those explanations relating that material to his earlier direction on the right to silence. This amounted to a misdirection. (5) There was a misdirection in failing to give any warning of any kind as to how to regard the evidence of each defendant in as much as it incriminated the other, albeit by no means as serious a misdirection as it might have been if this case had not been of a real cut-throat variety. (6) The judge's description of the grandmother's statement as "not accepted" was sufficiently accurate. (7) The new evidence did not afford any ground for allowing the appeal as if it had been available to the jury it would not have affected their view of the case. (8) The misdirections did not affect the safety of the convictions nor did they render the trial unfair. The evidence against the appellants was overwhelming. On the facts and with correct directions of law the only reasonable and proper verdicts would have been ones of guilty. (9) P's sentence was reduced to four years and six months to reflect the delay of nearly three and a half years in bringing the case to trial (see R v Clark (1998) 2 CAR 137).Appeals against conviction dismissed. Leave to appeal against sentence granted and appeal allowed in P's case.

[2003] EWCA Crim 2668

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