Collins & Anor v R

An accused may be treated as adopting another person’s answer to a police question only if the jury first decides that the circumstances called for a response and that the accused’s reaction amounted to adoption. Mere silence is insufficient, particularly where the accused is dealing with police officers and is not on equal terms.

Evidence that a person looked like an accused known to the witness is identification evidence when it is relied on to place the accused at the scene. A Turnbull direction is then required, even if the witness has known the accused for many years, where there is a real risk of honest mistake.

The appellants were tried at the Crown Court at Maidstone for kidnapping and possessing a firearm with intent to commit an indictable offence. Both were convicted. Keep was also convicted of doing an act tending and intended to pervert the course of public justice.

Collins challenged the admission of cash found in the vehicle and the use against him of a co-defendant’s uncorrected false account to police. Keep challenged a reference to his threats as an admission and the use of evidence from an officer who thought that a person seen near the abandoned vehicle looked like him.

The central issues were whether the impugned evidence and jury directions rendered the convictions for kidnapping and the firearms offence unsafe.

1. The appeals against the convictions on counts 1 and 2 were allowed. Collins’s convictions for kidnapping and the firearms offence were quashed. Keep’s convictions on those counts were also quashed. Keep’s conviction on count 3 was not disturbed.
2. The cash ground advanced by Collins failed. Given the agreed background of an attempt to recover stolen cannabis, the presence of £10,300 in the vehicle was capable of supporting the prosecution case that the participants were equipped either to use force or to demonstrate an ability to pay. It was relevant evidence for the jury, and did not create unfair prejudice.
3. However, the jury should not have been invited to treat Burt’s false statement to police as evidence against Collins merely because Collins did not correct it. The court held that, before an answer given in an accused’s presence may be treated as adopted, the jury must decide whether the circumstances called for a response and whether the accused’s reaction amounted to adoption. There was no evidential basis for adoption on these facts. Mere silence in response to a police question, particularly where the parties were not on equal terms, could be an exercise of the right to silence. The direction also failed to require the jury to address those questions. Since the alleged adoption was said to support the complainant’s evidence, Collins’s convictions were unsafe.
4. The court rejected the submission that this conclusion necessarily followed from article 6(1). It held that use of silence would not itself breach article 6(1) if the direction properly reflected the balance required by Condron v UK (2001) 31 EHRR 1.
5. For Keep, the judge’s isolated description of the threats evidence as an “admission” was an immaterial slip when the summing up was read as a whole. But the evidence that an officer saw someone who looked like Keep was used to link him to the vicinity of the abandoned vehicle. It was therefore identification evidence, not merely general descriptive evidence. The jury required a Turnbull direction on the possibility that an honest witness, observing at night from 50 to 75 yards away, could have been mistaken. Its absence rendered Keep’s convictions on counts 1 and 2 unsafe.

• Court of Appeal (Criminal Division) — In [2004] EWCA Crim 83, the court allowed the appeals against the convictions for kidnapping and the firearms offence and quashed those convictions.
• Crown Court at Maidstone — Before HH Judge Croft QC and a jury, Collins and Keep were convicted on counts 1 and 2 in July 2002. Keep was also convicted on count 3.