R v Cowan
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 12 October 1995 |
| Judgment citation (vLex) | [1995] EWCA Crim J1012-1 |
| Docket Number | 95/3790/X3 & 95/4054/X3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 12 October 1995 |
[1995] EWCA Crim J1012-1
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Turner and Mr Justice Latham
95/3790/X3 & 95/4054/X3
No. 95/2901/W4
MR MICHAEL MANSFIELD QC and MR M MAGARIAN appeared on behalf of THE APPELLANT COWAN
MR MICHAEL MANSFIELD QC and MR C BAUR appeared on behalf of THE APPELLANT GAYLE
MR B HURST appeared on behalf of THE APPELLANT RICCIARDI
MR D JEFFREYS QC, MISS S FARR, MR BYRNE AND MR A RADCLIFFE appeared on behalf of THE CROWN
Thursday 12 October 1995
THE LORD CHIEF JUSTICEThese three appeals raise important questions as to the proper interpretation and implementation of Section 35 of the Criminal Justice and Public Order Act 1994. The Section, which came into force on 10 April 1995, provides as follows:
"(1) At the trial of any person who has attained the age of fourteen years for an offence, subsections (2) and (3) below apply unless —
(a)the accused's guilt is not in issue; or
(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.
(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.
(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.
(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.
(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 —
(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
(b)the court in the exercise of its general discretion excuses him from answering it.
(6) Where the age of any person is material for the purposes of subsection (1) above, his age shall for those purposes be taken to be that which appears to the court to be his age.
(7) This section applies —
(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;
(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 section."
It is clear that the section alters and was intended by Parliament to alter the law and practice applicable when a defendant in a criminal trial does not give evidence. The issues raised are —
(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 is to apply in a jury trial, what directions should the judge give?
For all the appellants, it is argued that section 35 either breaches or verges on breaching long established principles. Although, therefore, it is conceded that some effect must be given to the enactment, it should be applied only very exceptionally and not in the general run of cases. Mr Mansfield QC, supported by Mr Hurst, submits that the section constitutes an infringement of the defendant's right of silence. By permitting a court or jury to draw an adverse inference should the defendant remain silent at trial, it is submitted that his free choice is inhibited.
It should be made clear that the right of silence remains. It is not abolished by the section; on the contrary, subsection (4) expressly preserves it. As to inhibitions affecting a defendant's decision to testify or not, some existed before the 1994 Act. On the one hand, a defendant whose case involved an attack on the character of a prosecution witness could well be inhibited from giving evidence by fear of cross-examination as to his own record. On the other hand, in certain cases, judges were entitled to comment on the defendant's failure to testify ( Martinez-Tobon, 98 Cr App R 375). Arguably, this put pressure on a defendant to give evidence. Even in a case calling only for the classic Bathurst direction (52 Cr App R 251), a defendant might be inhibited from remaining silent for fear the jury would hold it against him that he chose to leave the prosecution evidence uncontradicted.
It is further argued that the section alters the burden of proof or "waters it down" to use Mr Mansfield's phrase. The requirement that the defendant give evidence on pain of an adverse inference being drawn is said to put a burden on him to testify if he wishes to avoid conviction.
In our view that argument is misconceived. First, the prosecution have to establish a prima facie case before any question of the defendant testifying is raised. Secondly, section 38(3) of the Act is in the following terms:
"A person shall not …. be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in …. section 35(3)…."
Thus the court or jury is prohibited from convicting solely because of an inference drawn from the defendant's silence. Thirdly, the burden of proving guilt to the required standard remains on the prosecution throughout. The effect of section 35 is that the court or jury may regard the inference from failure to testify as, in effect, a further evidential factor in support of the prosecution case. It cannot be the only factor to justify a conviction and the totality of the evidence must prove guilt beyond reasonable doubt.
We therefore reject the two premises relied upon by
Mr Mansfield to support his submission that section 35 should only be invoked in exceptional cases. In any event, whatever the jurisprudential merits of the two premises, the plain words of the section simply do not justify confining its operation to exceptional cases. Section 35(1) deals with exceptional situations in which subsections (2) and (3) are not to be invoked. Otherwise, the section is in terms of general application. Indeed, subsection (2) is in mandatory terms. In cases other than those in subsection (1) "the court shall satisfy itself etc."
It is true that the operative subsection (3) as to the finding of the court or verdict of the jury is in permissive rather than mandatory terms. Accordingly, the judge has a discretion as to whether and in what terms he should advise a jury for or against drawing inferences. In what circumstances, then, should the court or jury be prepared to draw an adverse inference? Mr Mansfield's answer is: "only exceptionally where there is no reasonable possibility of an innocent explanation for the defendant's silence." He suggested a number of possible reasons for silence at trial which may be consistent with innocence. They were:
(1) a weak case barely surviving a submission of no case;
(2) other defence evidence contradicting prosecution evidence;
(3) if the defendant is nervous, inarticulate or unlikely to perform well;
(4) if the defendant's medical condition is abnormal although not within section 35(1);
(5) fear, duress or the protection of others;
(6) previous convictions of the defendant where he is liable to be cross-examined on them;
(7) a "mixed situation" —i.e. where the 1994 Act was not in force at the time of the defendant's arrest or interviews but was in force at the time of the trial.
If any of these reasons or excuses exist or may do so, it is submitted the court should not draw, or the jury should be directed not to draw, an adverse inference. Moreover, Mr Mansfield suggests such reasons or excuses could properly be advanced by defending counsel without the need for evidence.
The breadth of these propositions is patently inconsistent with the scheme and plain words of section 35. To use the inevitable cliché, they would drive a coach and horses through the statutory provisions. Mr Mansfield's approach frankly was that section 35 is so at variance with established principle, that its operation should be reduced and marginalised as far as possible. We cannot agree.
In particular, we should deal specifically with two of the suggested" good reasons". First, the general proposition that a previous criminal record upon which a defendant could be cross-examined (if he has attacked prosecution witnesses) is a good reason for directing a jury that they should not hold his silence against him, would lead to a bizarre result. 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...
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