No: 200601156/B4 
Neutral Citation Number: [2007] EWCA Crim 3300
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Thursday, 19th October 2006
 
B E F O R E:

LADY JUSTICE SMITH DBE 

MR JUSTICE MACKAY 
 
HIS HONOUR JUDGE CHAPMAN 
(Sitting as a Judge of the Court of Appeal Criminal Division) 

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R E G I N A 

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STEPHEN JOHN WILLIAMS
 
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MR W EAGLESTONE appeared on behalf of the APPELLANT
MR C M COCHAND appeared on behalf of the CROWN
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J U D G M E N T 

1.	LADY JUSTICE SMITH:  On 3rd February 2006, in the Crown Court at Southampton before His Honour Judge Leigh QC and a jury, the appellant was convicted of assault by beating on count 1 of the indictment and affray on count 2.  He was sentenced to a community punishment order of 250 hours concurrent on both counts and ordered to pay £760 in prosecution costs.
2.	He had appeared with two co -defendants: Benjamin Lewis and Peter Wheeler.  Each were charged with affray and each was acquitted.
3.	The appellant now appeals against conviction by leave of the single judge.
4.	In 2003 Benjamin Lewis was convicted of harassment of a local vicar in Holbury, Southampton, and served a short custodial sentence.  His case attracted a good deal of publicity in which it was alleged that he was a satanist and had been involved in the desecration of graves in the local cemetery.  It was common ground at the hearing with which this court is concerned that Lewis had been diagnosed and was suffering from obsessive compulsive disorder.  He reported obsessional thoughts and compulsive behaviour.
5.	The alleged offence occurred on 30th July 2005, when, in the late afternoon, Wheeler and the appellant went to Lewis's flat to confront him about the publicity about his previous activities.  Almost certainly both Wheeler and the appellant had had a certain amount to drink and an argument developed.  It was the prosecution case that when the argument had become heated the appellant struck Lewis in the face, causing him to stumble backwards.  There was then some further fighting and threats with a stick.  It was the striking by the appellant of Lewis that comprised count 1 and the fighting and threatening which amounted to the affray.
6.	Neither the appellant nor his co -defendants gave evidence.  They both had co -operated with the police and had answered questions in interview following their arrest.  In the defence case, each appellant sought to rely upon the content of his own police interview.  
7.	The appellant said that he had joined Wheeler at Lewis's door but had not hit him.  He had fled from the scene because he thought that Lewis had gone into the house to fetch a knife from the kitchen.  He denied carrying the stick at any stage.  The others gave contrasting accounts of the event.
8.	The main evidence for the prosecution came from Natalie Lewis, the wife of the co -accused Lewis.  She gave evidence in effect supportive of the account that her husband had given in interview.  She said that there was a knock at the door.  The appellant and Wheeler were both there.  They interrogated her husband about whether he had been desecrating graves.  They did not believe his denials and the argument became heated.  Their daughter was crawling just behind where her husband was standing.  He bent down to move her.  As he straightened up, the appellant punched him in the face.  She saw it coming but did not see it land.  Her husband was angry.  He said, "I am going to get him".  He went to the front gate and shouted at the appellant and Wheeler that he had nothing to hide.  He ran inside then and she followed him.  Outside she said the appellant was waving a long stick.  Lewis, her husband, walked towards him and angrily beckoned, and said, "Come on then".  The appellant, she said, hit Lewis with the stick about five times.  Lewis, her husband, managed to get the stick off the appellant.  The appellant then ran away.  Lewis and Wheeler also had a fight in the road.  She called the police.
9.	She denied that Lewis had ever got a knife from the kitchen drawer and gone out with it.  She said they did not keep anything sharp in the house that their daughter could get hold of.  However she had to listen to a tape of the 999 call that she had made to police on which she could be heard to say, "Ben [that is her husband], don't be stupid, stop it, give me that back now, don't be an idiot, give it back.  Ben, you stay inside, Ben, get inside, now".  She said in evidence that what she had been referring to was a broken piece of metal from a laundry basket and not a knife.  But she agreed that on the tape her husband could be heard in the background saying, "I am going to stab him".
10.	The prosecution also called a neighbour, Deborah Moore.  She said that she heard a lot of shouting, looked outside and saw three men shouting at each other.  Lewis, whom she knew, was by his garden gate, waving around a large stick in a threatening manner.  He was aiming most of his anger at the appellant.  She went outside and Wheeler and the appellant were still at the entrance.  Lewis went closer to the others and was threatening them with a stick.  The appellant then left the area.  Wheeler got the stick off Lewis and told him to calm down.  She went back to her flat, looked out of the window and saw Lewis appear at his gate with a kitchen knife. He waved it around and walked in and out of his flat several times in a bizarre way.  She could not recall seeing the appellant or Wheeler there at that time.
11.	Rosamund Graham, who appears to have been another neighbour, said that she had heard an almighty noise and heard two men swearing.  She was offended by their language.  They were fighting on the floor with their fists.  It appears that one of them was Lewis.  During a second confrontation she said Lewis had something in his hand which his wife took away from him.  It was about 14 to 18 inches long.
12.	PC Austin said that he attended the scene where Wheeler and the appellant told him that, as they had walked past Lewis's address, Lewis had come out of his house and punched Wheeler in the face and chased the appellant down the road with a knife.  Wheeler and the appellant signed police notebooks saying that they did not want any further action taken by the police.  It appears that they were at that time presenting themselves as victims of an assault or affray.
13.	We have already summarised briefly what the appellant told the police in his interview.  It was, in effect, that he had only talked to Lewis, had not been aggressive, had not punched him, had not hit him with a stick and had run away when he thought that Lewis was coming out with a knife.
14.	Lewis in his interview said that Wheeler and the appellant had confronted him.  The conversation became heated.  He denied that he had done anything wrong with disturbing graves.  They had gone off within a minute or two, but they had returned with Wheeler carrying a plastic knife and the appellant carrying a stick.  The appellant had hit him twice with the stick.  He, Lewis, had taken the stick off the appellant and broken it in half.  Wheeler had approached him and he, Lewis, had hit Wheeler in self -defence.  He said, "I can't remember if I got the knife off them first or the broomstick, or whatever it was, but I remember getting the knife indoors".  So he was there accusing the appellant, broadly in line with his wife's evidence.
15.	Wheeler told the police that he had gone to speak to Lewis about the newspaper article.   The appellant had joined him.  Lewis had become aggressive, saying, "I'll show you".  He had then gone into the flat, come out with a knife and chased the appellant away, leaving him, Wheeler, by the flat.  Lewis had then taken up a broken bit of wood.  Wheeler managed to take the wood from him and Lewis punched him in the face.  They had both ended up wrestling on the ground.  Wheeler said he never had a weapon himself.
16.	It is apparent in the light of that evidence that it was necessary for the judge to tell the jury what reliance they could place on the content of the three interviews.  None of the three co -accused had, as we have said, given evidence.  
17.	Before the summing -up began there was some discussion between counsel and the judge as to what directions he should give.  Counsel for Wheeler wanted to rely on some favourable aspects of the content of Lewis's interview.  Counsel for Wheeler began the discussion by reminding the judge that he had said earlier during the trial that he would be saying to the jury that a defendant's interview could only be used as evidence against himself.  Counsel for Wheeler wondered if any special direction would be required, because, she told the judge, she intended in her closing speech to rely on admissions that Lewis had made in his interview which she regarded as helpful to her client.  She drew attention to section 76A of the Police and Criminal Evidence Act 1984, inserted as an amendment brought in under the Criminal Justice Act 2003, which had come into force not many months before the trial.  
18.	Section 76A reads as follows:
"76A Confessions may be given in evidence for co -accused  - -
 (1) In any proceedings a confession made by an accused person may be given in given in evidence for another person charged in the same proceedings (a co -accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
 (2) If, in any proceedings where a co -accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained  - -
 (a) by oppression of the person who made it; or
 (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence for the co -accused except in so far as it is proved to the court on the balance of probabilities that the confession (notwithstanding that it may be true) was not so obtained.
 (3) Before allowing a confession made by an accused person to be given in evidence for a co -accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in subsection (2) above to be proved in the proceedings on the balance of probabilities.
 (4) The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence  - -
 (a) of any facts discovered as a result of the confession; or
 (b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so. 
 (5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.
 (6) Subsection (5) above applies  - -
 (a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
 (b) to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession.
 (7) In this section 'oppression' includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)."
19.	In the course of the discussion counsel for Lewis suggested that no special direction was necessary arising from that section.  The judge said:
"But she [that is counsel for Wheeler] is worried that I am going to direct the jury, as I would have done, under the old law that what one defendant says in the absence of the other is not evidence against that other, because apart from anything else, it is hearsay."
Mr Pawson, who was counsel for Lewis, said:
"Yes, precisely, your Honour.  But as I understand what my learned friend Miss Jones wants to do, she wants to rely on passages of my interview, not against her client but in his favour.  So I have no observations to make; I am sure she is perfectly entitled to make that comment."
The judge said:
"She was not, until this Act [he was there referring to section 76A], because what one defendant said in the absence of the other was only evidence and the judge so directed the jury, only evidence in the case of the one making it. 
Mr Pawson: Your Honour, yes, only evidence against the one making it.  Miss Jones does not want to use evidence against her; she wants to use evidence in her favour. 
Judge Leigh: Only evidence in the case of the one making it. 
Mr Pawson: Yes, very well, your Honour, I have no observations; I certainly do not object."
20.	The transcript is then somewhat unclear, but it seems that Mr Eaglestone for the appellant had no contribution to make to the discussion.  It appears that he said he did not object.  Quite what he did not object to is not clear, but it seems to us that there may have been a misunderstanding.  It rather looks to us that what the judge was proposing was that he would not give any direction about the use to be made of the contents of the interview, but we think that Mr Eaglestone must have understood that the judge was thinking of giving a special direction in respect of section 76A.  As to that he had no objection, but he was still expecting the judge to give the usual direction in relation to the use which the jury must not make of the contents of a co -defendant's interview.  In other words, that they must not take the contents of that interview into account against another defendant.  Mr Eaglestone has this morning confirmed that he did indeed expect the judge to give that standard direction, notwithstanding the discussion that had just taken place about section 76A.
21.	The confusion was not entirely resolved because a little later, after a contribution from the Crown which the transcriber was unable to catch, the judge said to counsel for the Crown:
"You have greater experience, surprisingly than me, but because I have not come across that [meaning section 76A], but so far as this case is concerned in the light of that section, it appears that Miss Jones is right, do you agree? 
Mr Cochand: I do. 
Judge Leigh: In which case I think probably the better thing is for me just to be saying nothing to the jury."
22.	That is how matters were left, but it is apparent that counsel still expected the judge to give the customary direction as to the use which can be made of the contents of one defendant's interview as against another.
23.	Unfortunately, in the event, the judge gave no direction at all about the use which could be made of the contents of the interviews.  It appears that when he said that he was going to say nothing, he meant that he was not going to give any direction at all.  He did not warn the jury that what one defendant had said in interview could not be used against another defendant.  He did not explain why that was so in the customary fashion, namely because it was hearsay evidence.  The co -defendant had not heard what the one defendant had said about him and had not had the opportunity to dispute it.  He did give some guidance on the approach that the jury might take to the truthfulness of what the defendants had said in their interviews.  He did that in the usual form as approved in the Judicial Studies Board guidelines.
24.	That direction would, of course, have been quite acceptable at the trial of a single defendant, but where there are three defendants, each of whom had said things in interview about his own role and also about the roles of the others, it was, in our view, vital that the judge should make it clear that anything accusatory that one defendant said about another defendant was not evidence against that other defendant. 
25.	As we have said, regrettably, the judge did not give that direction.  We think that he was thrown off course by the submission in relation to section 76A of PACE as amended.  In our view that section was of doubtful application to this case and the reference to it was a distraction.  It appears to us that section 76A permits the admission of evidence of a confession by a co -accused which evidence would not otherwise be admitted to the trial.  It deals with admissibility.   These interviews were admissible evidence and they were before the jury.  What was required was a direction which made it plain that the jury must not use the material against another defendant.  Although such evidence of what is said in interview is strictly hearsay, it has long been the practice to permit counsel to rely in his or her closing speech on favourable things which a co -defendant has said in interview.  In our experience it is not usual to give a specific direction about that.  It may be that in circumstances where the interview contains some favourable matters and some unfavourable matters that a specially tailored direction might be necessary, but that is not an issue in this appeal and we say nothing more about it.
26.	It appears to us that in the present case the judge's failure to give the usual direction meant that the jury might well have been left with the impression that what Lewis said in interview about the appellant supported and corroborated the evidence his wife had given.  The effect might have been materially to strengthen the Crown case against the appellant.
27.	Mr Cochand this morning, on the hearing of the appeal, has sought to persuade us that, notwithstanding the failure to give the appropriate direction to the jury, these verdicts are still safe.  He sought to persuade us that the evidence of Mrs Lewis had been extremely convincing and that, even without the evidence of her husband, which should not have been received in support, the convictions were safe.
28.	We cannot accept that submission.  There were three significant pieces of evidence which this jury appears to have taken into account: (1) Mrs Lewis's evidence, strong as it was against the appellant; (2) Mrs Moore's evidence, of which they were entitled to take account, which did not assist the Crown at all against this appellant; and (3) Mr Lewis's evidence in interview which should not have been taken into account against this appellant.  We cannot rule out the real possibility that the jury used what Mr Lewis said in interview, but not in evidence, in support of his wife's account.  
29.	In those circumstances, we are of the view that these convictions are unsafe.  Accordingly, the appeal is allowed and both convictions are quashed.