Adverse Inferences from Silence and Negligent Legal Advice
| Published date | 01 February 2017 |
| Date | 01 February 2017 |
| DOI | 10.1177/0022018316682633 |
| Subject Matter | Court of Appeal |
Adverse Inferences from Silence
and Negligent Legal Advice
RvGood (Alfie) [2016] EWCA Crim 1054
Keywords
Self-defence, intoxication, s. 35 Criminal Justice and Public Order Act 1994, prosecution closing speech
Following trial, the appellant, a man aged 21 at the time of the relevant events, was convicted of one
offence of assault occasioning actual bodily harm, contrary to s. 47 of the Offences Against the Person
Act 1861.
The Crown’s case was that, in an extremely inebriated state, the appellant entered the victim’s taxi,
gave an address that was either wrong or misunderstood by the victim, and fell asleep once the taxi was
in motion. The Crown said that the appellant was taken to that incorrect address and, upon arrival, the
driver asked for the fare, whereupon the appellant said that he had no money. The driver proceeded to
retrace his route with a view to delivering the appellant back whence he had been collected. The
appellant became aggressive during the return journey and the victim decided to eject him sooner, but
upon stopping the taxi the appellant refused to alight. A physical struggle ensued as the victim pulled the
appellant from the vehicle. Once ou tside the taxi the appellant became ve ry violent and delivered
multiple punches and kicks to the 68-year-old victim. The medical evidence was that the victim sus-
tained a broken finger, multiple abrasions and lacerations, multiple bruises and swelling, and a bite mark
to one shoulder.
The defence case differed only insomuch as, through counsel, the appellant had advanced a case of
self-defence. He contended that he had fallen asleep in the rear of the taxi, awoke to find himself being
manhandled, and responded with lawful violence in order to repel what he perceived to be an attack.
There is little detail in the judgment from which to ascertain the basis upon which this defence was put,
which, as will become clear, was done solely through the cross-examination of Mr Toogood, the taxi
driver.
The appellant, consequent, he said, to the legal advice his counsel provided, did not give evidence at
his trial. The judge gave a standard warning in open court as to the possibility that the jury may draw an
adverse inference from his failure to give evidence and, through counsel, he declined to do so.
The appeal was brought on the basis that the information about the stages of the case and the legal
advice provided by his counsel, especially as regards the consequence of not giving evidence (that there
would not be one), were negligent. Leave to appeal was sought out of time, and it is perhaps an indicator
of the criticism this appellant’s advocate was to attract that an extension of time was granted.
HELD, DISMISSING THE APPEAL, negligent advice is not, and never has been, of itself a ground
for allowing an appeal. There must be a consequent effect upon the safety of the conviction before the
court will quash it. If, notwithstanding the inadequacies of trial counsel, the conviction can still be
regarded as safe, then it will not be overturned.
Commentary
There are no paragraph numbers in the judgment. For the purposes of this case note, I have counted the
paragraphs, omitting the indented quotations, and numbered them sequentially.
Court of Appeal 13
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