Case No: 200404691/C1
Neutral Citation Number: [2005] EWCA Crim 1414
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Lewes Crown Court
His Honour Judge Issard-Davies
T20040222
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 26 May 2005
Before :

LORD JUSTICE WALLER
MR JUSTICE HEDLEY
and
MR JUSTICE ROYCE
- - - - - - - - - - - - - - - - - - - - -
Between :

	Regina	Appellant	
	- and -		
	Adem Bresa	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Rowan Jenkins (instructed by Hillman Smart & Spicer Solicitors) for the Appellant
Mr Roger Booth (instructed by CPS Sussex) for the Crown

- - - - - - - - - - - - - - - - - - - - -
Judgment

Waller LJ : 

1.	On the 14th July 2004 in the Crown Court at Lewes before His Honour Judge Issard-Davies and the jury the appellant was convicted of an offence of wounding with intent to do grievous bodily harm.  The appellant was later sentenced on the 10th September 2004, by the same judge, to 42 months in a young offender institution and was recommended for deportation.
2.	He appeals against conviction by leave of the single judge and the sentence insofar as it recommended deportation was referred to the full court hearing the conviction appeal.
3.	The point which arises on the appeal relates to the judge’s direction under Section 34 of the Criminal Justice and Public Order Act 1994 (“Section 34”).  This was a case in which the appellant made no comment in interview, relying on legal advice, but where the reasons for that legal advice were not put in evidence, either by the appellant or his solicitor.  The appellant’s defence at trial was that he was acting in self-defence and he gave a description of events which the Crown asserted, if they were true, he should reasonably have referred to when interviewed by the police.
4.	We can say at the outset that it is a matter of some anxiety that, even in the simplest and most straightforward of cases, where a direction is to be given under Section 34 it seems to require a direction of such length and detail that it seems to promote the adverse inference question to a height it does not merit.  In simple terms the case for the prosecution was that this was an attack by the appellant; it was not self-defence as asserted by the appellant in his evidence; and that it was not self-defence was supported by the fact that if it had been self defence one would have expected the appellant to mention that fact when interviewed, unless it was reasonable for him to act on his solicitor’s advice to make no comment.   Again, in simple terms, the prosecution would say that since he has not revealed the nature of the advice one can assume it was not reasonable to act on it, and so they would say the jury can be sure that no mention was made of self-defence because it was fabricated later.
5.	The difficulty is that because Section 34 makes inroads into previously perceived fundamental rights it needs a much more complex direction than the above would indicate.  The Section makes an inroad into an accused’s right to silence and where solicitors’ advice is being relied on its effect can be to make inroads into the legal professional privilege which exists as between an accused and his lawyers.
6.	So far as privilege is concerned, it was recognised in Regina v Condron [1997] 1 WLR 827 at 837 what the likely effect on privilege would be.  There the court said:-
“If an accused person gives as a reason for not answering questions that he has been advised by his solicitor not to do so, that advice, in our judgment, does not amount to a waiver of privilege.  But, equally, for reasons which we have already given, that bare assertion is unlikely by itself to be regarded as a sufficient reason for not mentioning matters relevant to the defence.  So it will be necessary, if the defendant wishes to invite the court not to draw an adverse inference, to go further and state the basis or reasons for the advice.  Although the matter was not fully argued, it seems to us that once this is done it may well amount to a waiver of privilege so that the defendant, or if his solicitor is called, the solicitor, can be asked whether there were any other reasons for the advice, and the nature of the advice given, so as to explore whether the advice may also have been given for tactical reasons.”
7.	Reg v Roble [1997] Crim LR 449 was to similar effect and in Reg v Bowden [1999] 1 WLR 823 it was confirmed that the unargued point referred to in Condron was well-founded.  In Bowden it was held that if before the trial the accused or his solicitor, as his authorised representative, made a statement or if at the trial evidence was given or elicited of the grounds on which the solicitor had advised a no comment interview, that had the effect of withdrawing the veil of privilege and in those circumstances the prosecution were free to lead evidence or cross-examine the accused as to the nature of the advice given and the factual premises on which it was based.
8.	When Condron was considered by the European Court of Human Rights at Strasburg that Court said this at paragraph 60:-
“For the court particular caution is required when a domestic court seeks to attach weight to the fact that a person was arrested in connection with a criminal offence and who has not been given access to a lawyer does not provide detailed responses when confronted with questions the answers to which may be incriminating . . . .  At the same time, the very fact that an accused is advised by his lawyer to maintain his silence must also be given appropriate weight by the appropriate court.  There may be good reason why such advice may be given.  The applicants in the instant case state that they hold their silence on the strength of their solicitor’s advice that they were unfit to answer questions.   Their solicitor testified before the domestic court that his advice was motivated by his concern about their capacity to follow questions put to them during interview . . .”
9.	Later in that paragraph the court also said this:-
“The court would observe at this juncture that the fact that the applicants were subjected to cross-examination on the content of their solicitor’s advice cannot be said to raise an issue of fairness under Article 6 of the Convention.  They were under no compulsion to disclose the advice given, other than the indirect compulsion to avoid the reason for their silence remaining at the level of a bare explanation.  The applicants chose to make the content of their solicitor’s advice a live issue as part of their defence.  For that reason they cannot complain that the scheme of Section 34 of the 1994 Act is such as to override the confidentiality of their discussions with their solicitor.”
10.	The delicacy of the position is well described by the Lord Chief Justice in Regina v Beckles [2004] EWCA Crim 2766 at paragraph 43, where he said this:-
“Where the reason put forward by a defendant for not answering questions is that he is acting on legal advice, the position is singularly delicate.  On the one hand the courts have not unreasonably wanted to avoid defendants driving a coach and horses through Section 34, and by so doing defeating the statutory objective.  Such an explanation is very easy for a defendant to advance and difficult to investigate because of legal professional privilege.  On the other hand, it is of the greatest importance that defendants should be able to be advised by their lawyer without their having to reveal the terms of that advice if they act in accordance with that advice.  Again there have been a number of authorities.  Here Mr Jennings QC relied on a series of cases including R v Inman [2002] EWCA 1950 and R v Chenia [2003] 2 Cr App 6.  Chenia, like this case, was a case where the defendant was purporting to rely on a solicitor’s advice when the HRA was not in force.”
11.	Before coming to the facts of this appeal and the direction given in this appeal it is helpful  to refer to Chenia and the second appeal with which that case was concerned and to a further important judgment in this area, that of Auld LJ in R v Hoare and Pierce [2004] EWCA Crim 784.
12.	We refer first to Chenia because it held that the direction in that case was inadequate in two regards, which will be relevant to considering the points in the present appeal.  Two criticisms were made of the direction in that case.  First that the judge in his direction failed to identify the facts relied upon by the appellant in his defence, which the prosecution said had not been mentioned in interview.  The court held that the facts must be identified and had not been.  Secondly the direction relating to reliance on the advice from solicitors which was in these terms:-
“They both say that they decline to answer the police questions because of advice from their solicitor.  They are of course adults and capable of making their own decisions, including decisions about whether or not to answer the questions; they cannot as it were shelter behind the solicitor’s advice.  If you consider that any of their evidence given here states facts which either could reasonably have been expected to be mentioned at interview, then if you consider it fair to do so you may draw such inferences as appear proper from the failure of that defendant to mention those facts at the time.  Such failure cannot alone prove guilt but can assist in proving it.  Whether it does so here and if so to what extent are questions for you.”
13.	In considering the above direction Clarke LJ, giving the judgment of the court in Chenia, drew attention to the importance of any direction under Section 34 containing that which the European Court of Human Rights had stated in Condron should be directed “as a matter of fairness”.  That is to say that a jury should be directed “that it could only draw an adverse inference if satisfied that the applicant’s silence at the police interview could only sensibly be attributed to him having no answer or none that would stand up to cross-examination [scrutiny].”  [Scrutiny is the word used in the present JSB specimen direction as being more appropriate in the context of a police interview].
14.	Clarke LJ at paragraph 92 of the judgment in Chenia said that the direction in that case:-
“was insufficient because it may have given the impression that the jury might draw an adverse inference because the appellant was sheltering behind his solicitor’s advice, when they could only do so if they were sure, not only that his failure to mention fact was the result of the advice, however adequate or inadequate that explanation might be, but also that the appellant had at that stage no explanation to offer or none that would stand up to questioning or investigation.”
15.	The judgment of Auld LJ in R v Hoare & Pierce (supra) gives helpful guidance in this area reconciling previous authorities.  At paragraph 51 he refers to the previous authorities:-
“In our view, there is no inconsistency between the approach of Kay LJ in Betts and Hall and that of Laws LJ in Howell and Knight.  As we have said, it is plain from Kay LJ’s judgment that, even where a solicitor has in good faith advised silence and a defendant has genuinely relied on it in the sense that he accepted it and believed that he was entitled to follow it a jury may still draw an adverse inference if it is sure that the true reason for his silence is that he had no or no satisfactory explanation consistent with innocence to give.  That is of a piece with Laws LJ’s reasoning in Howell and Knight that genuine reliance by a defendant on his solicitor’s advice to remain silent is not in itself enough to preclude adverse comment.”
Then he added at paragraphs 54 and 55 the following:-
“It is not the purpose of section 34 to exclude a jury from drawing an adverse inference against a defendant because he genuinely or reasonably believes that, regardless of his guilt or innocence, he is entitled to take advantage of that advice to impede the prosecution case against him.  In such a case the advice is not truly the reason for not mentioning the facts.  The section 34 inference is concerned with flushing out innocence at an early stage or supporting other evidence of guilt at a later stage, not simply with whether a guilty defendant is entitled, or genuinely or reasonably believes that he is entitled, to rely on legal rights of which his solicitor has advised him.  Legal entitlement is one thing.  An accused’s reason for exercising it is another.  His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is – a distinction with which professor Di Birch in her commentary in the Criminal Law Review in Howell appears not to have grappled, in asserting that the question must surely be “has the suspect genuinely relied on his solicitor’s advice”.
The question in the end, which is for the jury, is whether regardless of advice, genuinely given and genuinely accepted, an accused has remained silent not because of that advice but because had no or no satisfactory explanation to give.  For this purpose, but only for this purpose, section 34 in its provision for the drawing of an adverse inference, qualifies a defendant’s right to silence.  However, it is still for the prosecution to prove its case, section 38(3) of the 1994 Act ensures that a finding of a case shall not be based solely on such an inference.”
16.	The latest JSB guideline direction, which appears at Archbold 2004 Ed at para 15-427, has taken account of the above authorities and that supports the view that among the key features of a direction under Section 34 are the following.  First there needs to be the striking of a fair balance between telling the jury of a defendant’s rights [to remain silent or not to disclose advice], and telling the jury that the defendant has a choice not to rely on those rights.  Second there needs to be an accurate identification of the facts which it is alleged a defendant might reasonably have mentioned.  Third there needs to be a warning that there must be a case to answer and the jury cannot convict on inference alone.  Fourth there must be a direction to the effect that the key question is whether the jury can be sure that the accused remains silent not because of any advice but because he had no satisfactory explanation to give.
17.	With the above introduction we turn to the facts of this appeal and the direction given in this appeal.
The Facts
18.	The prosecution case was that on the 9th September 2003 the appellant attacked Peter Smart, who was going out with the appellant’s former girlfriend, Amy McCulloch.
19.	Peter Smart gave evidence how he started going out with Amy McCulloch in 2003 and how two or three days before the incident he found a letter under the windscreen of his car.  He knew that the appellant had written it.  He described how, on the evening of the 9th September 2003, he and Amy were in the Sovereign pub.  The appellant came in and was asked to leave.  Smart drank a couple of pints and a couple of scotches and he and Amy left between 10.30 pm and 10.45 pm.  As they were walking towards his car, without warning he was hit from behind about six times on the head, ribs, back and leg.  He described how when the attack was over he shouted “You know who did this to you, it’s Adem Bresa”.  Smart suffered injuries to his head, leg, back, ribs and arm, but the injuries cleared up and there were no long-term effects.
20.	When cross-examined Smart said he had been going out with Amy for about three months before the alleged attack.  He said that the appellant appeared at least half a dozen times trying to goad him into confrontation.  He described how he had received telephone calls and had changed his telephone number.  He accepted that on at least one occasion he, Smart, had been abusive back on the telephone and told the appellant to watch his back, but that was an idle threat.  He agreed that he had said something about having a friend in the Home Office and how the appellant could be sent back to his home country.
21.	Three weeks before the attack he felt there might be trouble in the pub and had told the bouncers.  He went back to the pub “to sort the matter out” but the appellant was not there.  He reported finding the letter to the police but was not sure if he gave the police the letter at the time it was lodged under his windscreen or if they told him to keep it and had handed it in after the incident.  He denied the appellant’s version of the incident which was to the effect that Smart had attacked the appellant and the appellant was acting in self-defence.  He accepted, although he was surprised, that the comment shouted by the appellant was not in his statement but it was, he had seen, in Amy’s statement.
22.	Amy McCulloch also gave evidence that she had received phone calls to her mobile phone several times a day from the appellant over a short period of about a week.  She knew that he had also rung Smart’s mobile.
23.	On the night of the 9th September the appellant was invited to leave the bar and did so.  She and Smart left at about 10.30 pm and went to a store to cigarettes and other items.  They walked past the flat to check the car.  She heard a loud thud behind her to the right.  Peter fell to the floor and curled up.  The appellant struck Peter on the head with an iron bar.  Then the appellant ran down the road and said “You know who did this to you.  It was me, Adem Bresa”.  The appellant ran away and she and Peter went into a taxi place and an ambulance arrived five minutes later.
24.	In cross-examination Amy told of the break up of the relationship with the appellant.  The appellant was not happy about her relationship with Peter Smart but he seemed to have accepted it.  She remembered him dancing around outside and tapping on the window of the pub when they were playing pool.  She did not recall any obscene gesture.  She only saw two blows delivered to Peter Smart.  She denied the defence version of the incident.
25.	A statement made by Jacqueline Perkins, who worked in the taxi office, was read.  In her statement she described how at about 10.45pm she looked toward the front door of the office from her work station and saw a shadow of a man walking past outside.  His arm was raised above his head and he was holding a bar or stick, which was about a foot long.  The shadow passed and she heard a crash.
26.	Peter Smart suffered an injury to the top of the back of the head which required six stitches and a wound to the cheek which required seven stitches.  There was also a bruise and small cut to the forearm.  
27.	The solicitor told the officers that he had advised the appellant to make no comment answers to questions put to him.  In the result the appellant made no comment except when asked how his relationship broke up and he said “He came and took my girlfriend away from me”.
28.	When the appellant gave evidence he said that he was eighteen and came to the United Kingdom four years earlier because of the war in Kosovo.  He had worked in a factory.  He went out with Amy for six or seven months until about three weeks before the incident.  He was not concerned about the end of the relationship.  He had decided to end it.  He knew she was going out with Peter Smart.  He wrote the note about two weeks before the incident.  He was “in a state of heat” because he had been speaking to Amy on the phone and Peter had come to the phone and said he had a friend who worked for the Home Office who would deport him.  He found the conversation objectionable and wanted to “heat him up” too.
29.	On the night of the 9th September he said he saw Amy and Peter in the pub.   Peter was aggressive and swore at him and told him to go back to his own country.  The appellant and his friend, Didba, left the pub and went to a nearby pub.  He stayed there until about 11pm and did not drink alcohol.  He and Didba walked home in different directions.  The appellant saw Peter and Amy and another person on the opposite side of the street.  While the other two were chatting Peter crossed the road, approached the appellant and unexpectedly hit him on the nose, which started to bleed.  Neither man spoke.  The appellant tried to run away but Peter chased him.  When he saw that Peter was going to hit him again he picked up a piece of wood and turned and hit Peter twice.  He did not remember whereabouts on his body that he struck him.  He hit him because he thought that if Peter caught him he would harm or kill him.  Peter fell after the second blow and the appellant ran away quickly.  He dropped the piece of wood.  He said nothing and went straight home.  He was covered in his own blood.  The shadow of the man with the raised arm must have been Peter Smart.
30.	He explained that when he was interviewed he said “no comment” to all questions because his solicitor told him to do so and he had never been interviewed before and was unfamiliar with the English legal system.
31.	In cross-examination the appellant said he could easily have told the police what had happened but relied on solicitor’s advice because the solicitor was there to protect his rights.  As to saying in the interview “He came and took my girlfriend away from me”, it was possible the interpreter misunderstood.  He could not remember saying those words, although he conceded that the tape showed that he did say them.  In answer to questions from the judge the appellant said he did not know quite how the injuries had been inflicted; he just knew he had hit Smart.  He did not cause wounds which were not on the head.
32.	Sandy Edmondson gave evidence for the defence, saying that she managed a homeless persons’ hostel where the appellant had lived for four months. He was peaceful, well-mannered, cheerful and quite gentle.  He coped with the stresses of hostel life very well.
33.	Adnan Al Baksho gave evidence that he saw the appellant at 11.30 pm or midnight on the 9th September at his address.  His nose was bleeding but he noticed nothing else about him.  When cross-examined he said that he visited the house regularly and they played dominoes.  He did not remember what date the appellant had the nosebleed.  It could have been a night other than the 9th September.  In re-examination he said he could not remember the exact date but it was in September.
The Discussion before Summing up
34.	Prior to commencing his summing up there was some discussion as to whether the judge would give an adverse inference direction pursuant to Section 34.  It is clear from the transcript we have of that discussion on the 13th July 2004 that the judge had warned Mr Jenkins, who represented the appellant at the trial, that he was disposed to give that direction.  He said to Mr Jenkins:-
“What I propose to tell the jury is this: I will ask them as I must to answer this question “Was it reasonable to expect him to mention these facts in interview?”, and I shall tell them that they must look at all those circumstances surrounding the interview.  I will tell them the defendant says it is not reasonable to expect him to say these things in interview because he was advised by his solicitor to make no comment; and I should add, since he has told us that this morning, that this is compounded by his unfamiliarity with our legal system.
I shall tell the jury that that is an explanation which they have to take into account when they are making this decision, but I shall also tell them this: that when they take that explanation into consideration they can also take into consideration the fact that we have not heard why that advice was given; that there may be any number of reasons why a solicitor gives this advice, and we have been left in the dark about that matter; but that is a matter into which no prosecutor can enquire; that what passes between a defendant and his solicitor is privileged information, that only the defendant can reveal those matters to you, if he chooses to do so, and in this case he has chosen not to.
Now, I gave you that warning yesterday that I was going to direct the jury along those lines, because it seemed to me right that you should have the opportunity of considering that aspect of the matter.  I take it that you have considered it and that you are not going to take matters any further in that direction and that is the direction that I propose to give them.”
35.	Mr Jenkins at that stage made clear that he was not going to change his position but he protested at what he described as “that additional part that Your Honour has put, because it seems to go somewhat further than that which is set out in the JSB guidelines on it.”  The judge’s response was to indicate that he was not limited by the JSB guidelines, which were not the law.  They were there to assist the judge and a judge is not confined to their terms alone.
36.	Mr Jenkins then said this:-
“Your Honour, I agree entirely with that which Your Honour has said but my only response to that is this: that as we all know this is an area of the law where there is a bit of dispute on it.  It is a difficult area.  It is a very full direction as it is and with respect to Your Honour the rest of the matters that Your Honour has indicated you were going to raise I have no concern with; it is that very final part which to me, Your Honour,  in my submission, goes a little further towards the undermining of the right to silence, and really, effectively, reversing a burden to the extent of saying: ‘you must give an answer’.”
37.	The judge responded that in his view it no more undermined the right to silence than the provisions of Section 34 did in the first place and he further stated that:-
“It is quite impossible for a jury, surely, to judge?  If you really want a jury to judge the strength of an explanation like that, you surely have to tell them the circumstances under which the advice was given?  The jury are being asked to judge: ‘Was that a reasonable explanation?’  Absent evidence of the circumstances in which that advice was given, it is impossible for them to make that judgment.”
The Direction in the Summing Up
38.	The judge then, when he came to deal with the adverse inference, directed the jury in the following terms:-
“Right at the start of the interview he was told this: (You need not say anything, but it may harm your defence if you fail to mention, when questioned, something you later rely on in court.”  Now, having been told that [his right to remain silent] he went on to make no comment to almost all of the questions which were put to him thereafter.  Has his defence been harmed by that? Well members of the jury, that is something that you will have to decide, but I must tell you how you must approach that question.
You have to ask yourselves three questions.  First of all, the obvious one: are there facts that he has relied on in court which he failed to mention when questioned?  Well, as far as that is concerned, members of the jury, I stress it is for you to decide, but there is surely only one possible answer to that.  The answer is “Yes”.  All the details of the encounter in the street were missing from his interview: the fact that Smart saw him, crossed the road towards him; the fact that Smart hit him on his nose first, without any provocation, or indeed anything at all taking place between them, drawing blood; the fact that after that, Smart began to chase him; the fact that the item he hit Smart with was a lump of wood which just happened to be lying on the pavement; the fact that the letter, which we know as Exhibit 1, was in his writing and was written only because of the threat which Smart had made down the telephone about the Home Office.  Now, all of those things – and I have no doubt you can think of more - - all of those things are facts which he has relied on in court, are they not, and which he failed completely to mention when questioned.  But there is the first question: are there facts which he has relied on in court which he failed to mention when questioned.
If the answer to that – and I stress it is for you – if the answer to that question is “Yes, there are”, the next question is this: was it reasonable to expect him to mention those facts in interview?  Now, in order to decide that question you must look at all of the circumstances which surround that interview.  The defendant says: “No, it wasn’t reasonable.  I was advised by the solicitor to make no comment.  What is more, I am unfamiliar with the English system, English legal system.  In those circumstances, where I have got that advice, it is not reasonable to expect me to answer questions in those circumstances.”  And you will have to take that into account when making your decision about whether it was reasonable to expect him to mention those facts, which he has relied on in court, in interview.
But when you are taking that explanation into account, you can also take into account this: that we haven’t heard why it was that advice was given to him.  You will understand that there may be any number of different reasons why a solicitor might give that advice; we have been left in the dark on that matter.  Furthermore, that is a question into which no investigator or prosecutor can enquire.  What passes between a defendant and his solicitor is always privileged from any enquiry.  No court or prosecutor can ask him that question; only the defendant can reveal those matters to you, if he chooses to do so, and he has chosen not to do so.  So when you are considering whether it was reasonable to expect him to mention those things in interview, and when he says that he didn’t do so because he was advised to make no comment, you are entitled to look at that explanation in the knowledge that he has gone no further into why it was that the advice was given.

So that is the second question: was it reasonable to expect him to mention those things in interview?  If the answer to that question in you view is “No”, then it was not reasonable to expect him to mention those things in interview in the circumstances, then quite plainly no blame, no stigma, no harm, can attach to his defence as a result of his failure to do so.
If your answer to that question is “Yes, it was reasonable to expect him to say those things to the police when he was arrested and interviewed”, there is a further question that you have to ask, which is this: is there a case proved by the Prosecution for him to answer?  Because if you take the view that the Prosecution have not produced any evidence worthy of belief which calls for an answer from him, then his failure to give any answer to it adds absolutely nothing, it is a case of “nothing plus nothing equals nothing”.
But if you take the view that the answer to all those three questions is “Yes.  Yes, there are facts which he failed to mention in interview that he now relies on.  Yes, it was reasonable to expect him to give those facts in interview.  Yes, there is a case proved by the Prosecution which he should be called upon to answer”, if you take the view that the answer to all those three questions is “Yes”, then it is open to you to conclude, as the Prosecution suggest, that the reason that he didn’t say those things at the time was because they simply had not occurred to him to say at the time, that he had not, in effect, made them up at the time; and that, you may think, would be a conclusion which would indeed harm his defence.
Now, even if you do answer all three questions as “Yes”, you are not bound to arrive at that conclusion, you only do so if you think it is fair and proper and right, in the circumstances, to come to that conclusion.  And even then you must be careful: you must not convict the defendant wholly or even mainly because of his failure to answer questions in interview, it simply becomes something which you can take into account when you are considering how much reliance you can place on the account that he gives you.”
Submissions of Mr Jenkins
39.	Mr Jenkins makes various criticisms of the above direction.  First he says that the judge has not followed the Judicial Studies Board guidelines.  He suggests that it is implicit in the dictum of the Lord Chief Justice in Beckles (supra), paragraphs 33-37, that the guidelines should be followed closely.
40.	It is true that the judge here did not follow the guidelines.  As we have already indicated we have not set out the guidelines in this judgment because they appear in full in Archbold at paragraph 15-427.  But a comparison between what the judge directed and those guidelines shows that he used parts but did not follow the order or the text.
41.	The guidelines are only guidelines and on any view must be tailored to the particular facts of the case.  It cannot therefore be a matter of criticism simply that the judge has not followed slavishly the guidelines.  However the guidelines have been prepared in this notoriously difficult area, giving consideration to the many different points which arise, including striking the fair balance between telling the jury of a defendant’s rights and telling the jury of the defendant’s choice not to rely on those rights.  It is thus critical that the key features of the guidelines appear in any direction, and it must be the safer course to follow them as nearly as the circumstances of the case allow.
42.	The next criticism of Mr Jenkins relates to the paragraph dealing with the facts not mentioned in interview.  He makes two criticisms. First he submits that a reference to the appellant not mentioning the letter, Exhibit 1, was not a fact to which the directions should have related.  He submits that what the direction is concerned to identify are facts, which will be asserted to have been fabricated at a later date.  He submits that there was no dispute that the letter, Exhibit 1, was written and was in the hand writing of the appellant.  His second criticism is that the judge left it open to the jury to think of further facts by saying “I have no doubt that you can think of more”.
43.	Mr Booth’s response on behalf of the Crown is to accept that the reference to the letter is in one sense not a relevant fact, but he submits that the explanation given by the appellant that he had written the letter only because of the threat which Smart had made on the telephone about the Home Office was such a fact.  He accepts however that “I have no doubt you can think of more” was not something that should have been said.
44.	There is force in the Crown’s submission about the explanation for the letter, but it certainly was not made clear by the judge that it was that explanation with which the jury should be concerned.  It was certainly not appropriate to lead the jury to speculate as to whether there were other facts which the appellant had not mentioned.
45.	Mr Jenkins in his oral submissions submitted that to refer to the appellant’s lack of familiarity with the English system and English legal system left out other matters on which reliance could be placed.  He submitted that the judge should have referred to the appellant’s age; the fact that his first language was not English and that the English legal system would be strange to him.
46.	We do not think there is any real substance in those submissions. 
47.	We then turn to what seems to us to be the most serious aspect of Mr Jenkins’ criticisms.  Was it right for the judge to direct the jury in the way he did about the legal advice received?  Was it right for the judge to comment in addition to saying that the jury had not heard why the appellant was advised in the way he was, of the fact that the matter could not be explored by the prosecutor, and to use the phraseology he did about his choice whether to reveal matters?  Is it fatal that there is an absence of a direction that the jury could only draw the conclusion that the appellant had fabricated self-defence, if they were sure that the failure to mention the facts was not merely as a result of the advice, but because when interviewed he did not have any explanation to offer, or none that he believed would stand up to scrutiny? 
48.	We have asked ourselves what we think would have been the appropriate direction in this case. We would have been guided by the JSB specimen direction.  We think a direction should have included the following:-
“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.”
49.	We think then it would have been permissible to say this:-
“You have no explanation for the advice in this case.  It is the defendant’s right not to reveal the contents of any advice from his solicitor or what transpired between himself and his solicitor.  At the same time he has a choice whether to reveal that advice and thereby reveal all that transpired between himself and his solicitor.  The question for you is whether the defendant could reasonably have been expected to mention the facts on which he now relies and saying that he had legal advice without more cannot automatically make it reasonable.  If, for example, you consider that he had or may have had an answer to give, i.e. that he was acting in self-defence, but genuinely and 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 remained silent not because of the legal advice but because he had not acted in self-defence and that was a matter which he fabricated later, and merely latched on to the legal advice as a convenient shield behind which to hide, you would be entitled to draw a conclusion against him.”
50.	When one compares the above direction with the direction given by the judge it seems to us that there are the following significant differences.   First, the judge does not emphasise the appellant’s right to privilege in relation to the communications between him and his solicitor, but tends to undermine that right.  He does not, we think, hold the balance quite fairly.  Second, and this is the most significant point, the direction contains nothing about the jury having to be sure that the defendant remained silent not because of the legal advice but because he had no answer to give in the interview.  Third, the direction that “It is open to you to conclude as the prosecution suggests that the reason that he did not say those things at the time was because they simply had not occurred to him to say at the time, that he had not, in effect, made them up at the time . . .” could be said to suggest to the jury that they should conclude on any view that the appellant had made up the self-defence.
Conclusion
51.	As we made clear in our discussion of the authorities at the commencement of this judgment, Section 34 is a very difficult area.  In our view however the criticisms that can be made of this direction are soundly based.  The question that remains is whether, having regard to the misdirection, we could conclude that the conviction was safe.  There was a very powerful case against the appellant and without an explanation from the solicitor as to the basis on which the appellant was being advised not to comment, there is a powerful case for saying that the jury could be sure that the appellant did not mention self-defence in his interview because he had not at that stage thought of that as his defence.  But we cannot be sure what part the direction on Section 34 played in the jury’s decision making.  It was a significant aspect of the summing up and for that reason it seems to us that we could not conclude that this conviction was safe.
52.	It was realistically accepted by Mr Jenkins that if the conviction was quashed he could not resist an order for a retrial.  In the circumstances the conviction must be quashed and a retrial ordered.

Appeal against sentence
53.	Since there will be a retrial, strictly speaking the appeal against the deportation order does not arise, but we would not like it to be thought by a failure to mention it that we were approving the recommendation for deportation in this case.