I'm saying nothing - the rules on directing juries, a test challenge.
Regina v Cowan Gayle & Ricciardi
(1995) The Times, October 13
Guidance to courts about directing a jury under the altered law and practice in section 35 of the Criminal justice and Public Order Act 1994.
THE LORD CHIEF JUSTICE, giving the judgment of the court, said that clearly section 35 altered and was intended by Parliament to alter the law and practice applicable when a defendant in a criminal trial did not give evidence.
THE ISSUES RAISED
The issues raised were:
1 whether the discretion to draw inferences from silence under section 35(3) should be open in the generality of cases or only exceptionally; and
2 If it was to apply in a jury trial, what directions should be given by the judge. It was to be made clear that the right of silence remained. It was not abolished by section 35; on the contrary, subsection (4) expressly preserved it. As to inhibitions affecting a defendant's decision to testify or not, some existed before the 1994 Act: R v Martinez-Tobon [1994] 1 WLR 385; R v Bathurst [1968] 2 QB 99).
An argument that section 35 altered the burden of proof or watered it down was misconceived. The prosecution had to establish a prima facie case before any question of the defendant testifying was raised.
Section 38(3) prohibited the court or jury from convicting solely because of an inference drawn from the defendant's silence. The burden of proving guilt to the required standard remained on the prosecution throughout.
The effect of section 35 was that the court or jury might regard the inference from failure to testify as in effect, a further evidential factor in support of the prosecution's case. It could not be the only factor to justify a conviction, and the totality of the evidence had to prove guilt beyond reasonable doubt.
The plain words of section 35 simply did not justify confining its operation to exceptional cases; section 35(1) dealt with exceptional situations in which subsections (2) and (3) were not to be invoked. Otherwise the section was in terms of general application.
Mr Mansfield, Senior Counsel for the Registrar of Appeals suggested that reasons and excuses could or might exist so that the court should not draw or the jury should be directed not to draw an adverse inference and that such reasons or excuses could properly be advanced by defending counsel without the need for evidence. His approach was that section 35 was so at variance with established principle that its operation should be reduced and marginalised as far as possible.
Their Lordships could not agree. In particular, one of the suggested good reasons was that a previous criminal record on which a defendant could be cross examined, if he had attacked prosecution witnesses, was a good reason for directing a jury that they should not hold his silence against him; that would lead to a bizarre result for a defendant with convictions would be in a more privileged position than one with a clean record. The former could avoid submitting himself to cross-examination with impunity; the latter could not.
Their Lordships accepted that, apart from mandatory exceptions in section 35(1) it would be open to a court to decline to draw an adverse inference from silence at trial and for a judge to direct or advise a jury against drawing such inference if the circumstances of the case justified such a course.
However, there would need to be either some evidential basis for doing so or some exceptional factors in the case making that a fair course to take. It had to be stressed that the inferences permitted by section 35 were only such "as appear proper."
Use of that phrase was doubtless intended to leave a broad discretion to a trial judge to decide in all the circumstances whether any proper inference was capable of being drawn by the jury. If not he should tell them so: otherwise it was for the jury to decide whether in fact an inference should properly be drawn.
By way of guidance, the Judicial Studies Board had suggested a specimen direction in the following terms:
"The defendant has not given evidence. That is his right. But, as he has been told, the law is that you may draw such inferences as appear proper from his failure to do so. Failure on its own cannot prove guilt but, depending on the circumstances, you may hold his failure against him when deciding whether he is guilty.
"[There is evidence before you on the basis of which the defendant's advocate invites you not to hold it against the defendant that he has not given evidence before you, namely. . .
"If you think that because of this evidence you should not hold it against the defendant that he has not given evidence, do not do so. But if the evidence he relies on presents no adequate explanation for his absence from the witness box then you may hold his failure to give evidence against him. You do not have to do so].
"What proper inferences can you draw from the defendant's decision not to give evidence before you? If you conclude that there is a case for him to answer, you may think that the defendant would have gone into the witness box to give you an explanation for or an answer to the case against him.
"If the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence. It is for you to decide whether it is fair to do so.
"(The words in brackets are to be used only where there is evidence)."
There were, certain essentials which their Lordships would highlight:
1 The judge would have told the jury that the burden of proof remained on the prosecution throughout and what the required standard was.
2 It was necessary for the judge to make clear to the jury that the defendant was entitled to remain silent. That was his right and his choice. The right of silence remained.
3 An inference from failure to give evidence could not on its own prove guilt. That was expressly stated in section 38(3).
4 Therefore, the jury had to be satisfied hat the prosecution had 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 might not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It had therefore to be made clear to them that they had to find a case to answer on the prosecution evidence before drawing an adverse inference from the defendant's silence.
5 If. despite any evidence relied on to explain his silence or in the absence of any such evidence, the jury concluded the silence could only sensibly be attributed to the defendant's having no answer, or none that would stand up to cross-examination, they might draw an adverse inference.
It was impossible to anticipate all the circumstances in which a judge might think it right to direct or advise a jury against drawing an adverse inference.
Nor would it be wise even to give examples, as each case had to turn on its own facts: R v McLernon (1990) 10 NIJB 91,102.
Reference had been made on the present appeal to the opinion of the European Commission of Human Rights in Murray (John) v United Kingdom (1994) 18 EHHR CD1. Their Lordships stressed that decisions of the Commission and, indeed, those of the European Court of Human Rights were not binding on their Lordships' court. They were of assistance to resolve any ambiguity in domestic law. but here their Lordships found no ambiguity in section 35.
Their Lordships wished to stress that their court would not lightly interfere with a judge's exercise of discretion to direct or advise the jury as to the drawing of inferences from silence and as to the nature, extent and degree of such
inferences.
THE DECISION
The appeals allowed were of Cowan, against conviction at Crown Court on counts of unlawful wounding and assault occasioning actual bodily harm, for which he received a total sentence of four years imprisonment; and of Gale, against conviction at the Central Criminal Court of doing an act tending and intended to pervert the course of public justice, for which he was sentenced to nine months imprisonment; and the dismissed appeal was of Ricciardi, against conviction at Crown Court on a count of attempted theft, for which he received a 12-month prison sentence, reduced to eight months on appeal.
The court, in allowing two of the appeals, expressed sympathy with two judges who had had to cope with the new provisions shortly after their introduction on April 10 1994 and without guidance; in the third case, in which the appeal was dismissed, the trial judge had had the benefit of a specimen direction by the judicial Studies Board.
COMMENT
The case itself will take some digesting, these new laws curb the right to silence, often called the "so-called right". The Court of Appeal have refused to minimise the impact of these provisions which had been in force six months when this case was decided.
Mr M Mansfield QC, contended that such a restriction on a defendant's free choice should be applied only in exceptional circumstances and not in the general run of cases. Lord Taylor said that argument was misconceived. The right to silence has not been abolished; it has been expressly preserved.