R v Becouarn
| Jurisdiction | England & Wales |
| Judge | LORD STEYN,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD SCOTT OF FOSCOTE,LORD CARSWELL |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2005] UKHL 55 |
| Court | House of Lords |
| Date | 28 July 2005 |
[2005] UKHL 55
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Carswell. I agree with it. I would also make the order which he proposes.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Carswell. For the reasons he gives, with which I agree, I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Carswell. I agree with it, and for the reasons he gives I too would dismiss the appeal.
My Lords,
For the reasons given by my noble and learned friend Lord Carswell, with which I agree, I too would dismiss this appeal and make the order which he proposes.
My Lords,
The appellant Darren Becouarn was on 26 May 2000 convicted in the Crown Court at Liverpool after a retrial before Gray J and a jury on two counts of murder and sentenced to imprisonment for life. His defence involved imputations on the character of the main prosecution witnesses, and accordingly by the nature of the questions asked on his behalf in their cross-examination he put his character in issue. The judge at the previous trial Owen J ruled that his previous convictions could be put to him if he gave evidence. The appellant did not give evidence either at that trial or on the retrial. On the retrial Gray J directed the jury, in accordance with section 35 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"), that they could, if they thought proper to do so, draw the inference that the only sensible reason for his failure to give evidence was because he could not give an answer to or explanation of the Crown evidence, or none that would have stood up to cross-examination.
The appellant claimed in the Court of Appeal and before your Lordships' House that the direction was unfair to him, because at least one of the reasons for his not giving evidence was, or might have been, because he feared the prejudicial effect which could have followed if the jury learned of his previous convictions. It was submitted on his behalf that the judge should have decided either that his convictions should not be put in evidence or that in the circumstances a section 35 direction should not be given. Failing that, it was suggested that he should have given a Lucas type direction ( R v Lucas [1981] QB 720), indicating that there may have been reasons for the appellant's failure to give evidence other than inability to give an explanation or answer.
The facts proved by the prosecution at the appellant's trial have been succinctly set out in the judgment of the Court of Appeal and I can summarise them briefly. On 1 October 1998 two men, Kevin McGuire and Nathan Jones, were shot dead in a gymnasium by a gunman who escaped after the shooting on the back of a motor cycle. The appellant, who was arrested some four months later, was identified at an identification parade as the gunman by three witnesses who were in the gymnasium at the time. The appellant's case was that they deliberately made false identifications for their own improper purposes.
In addition there was an amount of circumstantial evidence which tended to connect the appellant with the acquisition and disguise of the getaway motor cycle. The Crown also relied on evidence concerning a call made from a mobile telephone traced to the appellant or his family very close to the time of the shooting. The Court of Appeal concluded that the prosecution evidence was such that the jury were quite entitled to convict on it and, since they considered that the jury were properly directed, the prosecution was safe. In my opinion the Court of Appeal was quite correct in this conclusion, subject to the issue about section 35 of the 1994 Act, and I do not regard it as necessary to examine this issue further. I shall instead focus on the main issue argued before the House, the effect of permitting the jury to draw an inference under section 35 in the circumstances of the case.
The position of a defendant in a criminal trial and the options open to him in relation to giving evidence have changed in very material respects since the end of the 19th century. Until the passage of the Criminal Evidence Act 1898 ("the 1898 Act") the law did not permit him to give evidence on oath on his own behalf, restricting him to giving an unsworn statement from the dock. That Act made him generally a competent witness in his own defence, but did not make him compellable. From that time the defendant was quite entitled to decline to give evidence - the privilege generally termed the right of silence - but if he did testify, he was liable under section 1(e) of the Act to be asked any question in cross-examination, notwithstanding that it would tend to criminate him as to any offence with which he was charged in the proceedings.
Several consequences followed from other provisions in the 1898 Act. First, the prosecution was not permitted to comment adversely on the defendant's failure to give evidence (section 1(b)) and the trial judge's ability to comment on that was fairly closely circumscribed. The judge was in most cases bound to direct the jury that the defendant was fully entitled to sit back and see if the prosecution had proved its case, and that they must not make any assumption of guilt from the fact that he had not gone into the witness box (see, eg, R v Bathurst [1968] 2 QB 99, 107-8, per Lord Parker CJ). The second consequence was that the defendant could not be asked about any previous convictions, unless he had "lost his shield" and incurred liability to such cross-examination by reason of, inter alia, putting his character in issue. This could occur if questions were asked or evidence was given with a view to establish his good character or, most commonly, if he attacked the character of the prosecution witnesses: section 1(f)(ii), and see the decision of the House in R v Selvey [1970] AC 304 on the operation of this provision. Thirdly, if the defendant put his character in issue by attacking the character of the prosecution witnesses, but did not himself give evidence, he escaped the consequences of having his convictions put in evidence ( R v Butterwasser [1948] 1 KB 4).
Although practitioners reckoned that the ability to give evidence conferred by the 1898 Act was a not unmixed blessing, it enabled those defendants who wished to put forward their own evidence in support of their case to do so, while those who wished to stay silent and challenge the sufficiency of the prosecution case were able to follow that course. Criticism of the state of the law, not least of the effect of the ruling in R v Butterwasser, and the degree of advantage which it conferred on defendants in criminal trials, mounted – in the Eleventh Report of the Criminal Law Revision Committee (1972) (Cmnd 4991) p 83, para 131 it is stated that "To many it is highly objectionable that the accused should be able to do this with impunity." Eventually Parliament enacted the provisions contained in section 35 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"), with the objective of redressing the perceived imbalance:
Effect of accused's silence at trial
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(1) At the trial of any person … for an offence, subsections (2) and (3) below apply unless—
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(a) the accused's guilt is not in issue; or
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(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;
but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.
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(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.
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(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.
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(4) This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.
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(5) For the purposes of this section a person who, having been sworn, refuses to answer any question shall be taken to do so without good cause unless—
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(a) he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or
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(b) the court in the exercise of its general discretion excuses him from answering it.
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(6) …
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(7) This section applies—
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(a) in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section;
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(b) in relation to proceedings in a magistrates' court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this...
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