R v Friend

JurisdictionEngland & Wales
JudgeLORD JUSTICE OTTON
Judgment Date26 March 1997
Judgment citation (vLex)[1997] EWCA Crim J0326-6
Docket NumberNO: 9603695 Z2
CourtCourt of Appeal (Criminal Division)
Date26 March 1997
Regina
and
Billy-Joe Friend

[1997] EWCA Crim J0326-6

Before

Lord Justice Otton

Mr Justice Butterfield

His Honour Judge Rant Cb QC

NO: 9603695 Z2

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

Strand

London W2A 2LL

MR BARKER QC appeared on behalf of the Appellant.

MS R POULET QC appeared on behalf of the Crown.

LORD JUSTICE OTTON
1

In the Central Criminal Court before His Honour Judge Michael Coombe the appellant was convicted of murder and ordered to be detained during Her Majesty's pleasure.

2

He appeals against conviction by leave of the single judge.

3

His co-accused, Edward Lee, pleaded guilty to murder on re-arraignment during the trial and Birch was convicted of manslaughter.

4

The appeal primarily raises novel points arising out of s.35 Criminal Justice and Public Order Act ("The 1994 Act") which in essence provides that if the mental condition of the accused makes it undesirable for him to give evidence no adverse inference may be drawn from his failure to give evidence.

5

The O'Connor brothers (Ben and Matthew) lived in a flat in a tower block in Plumstead. On the night of the murder, their friend Stephen Page was with the brothers at the flat with two girls, Anne Tullett and Michelle Wood, both aged 16. The appellant and Birch arrived and the group (with the exception of the appellant) drank contentedly together. An argument broke out between Page and Birch. Matthew O'Connor tried to persuade Birch to behave but he went for him and the appellant became excited and aggressive and threw a loud speaker on the floor. Ben entered the room and there was a general struggle between them all. Page escaped from the flat. The fracas continued between Matthew, Ben and Birch. The appellant left the flat saying that he was going to fetch Ned his brother. Ned had a reputation for violence. The appellant was seen to leave the block, run the short distance to his house and to re-emerge with his brother, Edward (Ned) Lee. The appellant was heard shouting and swearing and was heard to say that a mate was in trouble but that "Ben is still up there and we can fucking get him". Charlotte Nye a resident of the block, was in a lift. When it reached the ground floor two young men pushed in into the lift. She recognised Ned Lee. She noticed something in his hand, it seemed to be a knife but she could not describe it more accurately than it was small and about 6" in length. Lee seemed to turn the object away from her. Lee and the appellant entered the flat pushing past the girls. They went into the room where Ben and Birch were. The young women left and joined Matthew O'Connor who was waiting for the lift. When the lift arrived and the doors were closing the appellant entered the lift. He looked shocked and terrified and said to Matthew "Ned's stabbing your brother up" although he was not coherent.

6

The appellant left the others at ground floor level and walked towards his house. A short while later he was seen running with his brother and Ian Birch and later they were seen climbing about at the back of their row of houses. Subsequently a knife was found in a garden nearby which could have been the weapon used. The victim died from multiple stab wounds.

7

The three were arrested. The appellant was interviewed in the presence of his mother and a solicitor. Initially he made no comment. His solicitor subsequently explained that she had given this advice on account of his low mental age and the fact that full disclosure had not been given. However in a subsequent interview which lasted about 12 minutes he answered questions, on advice. He accepted his earlier presence at the flat. He denied running home to get Lee and said he left with Michelle. Lee was in bed when he got home, then Birch came home and went out into the garden to give the dog some water before having a wash and going to bed. He denied climbing about in the garden before his arrest and knowing anything about the stabbing until he was told about it in the police station.

8

It was the Crown's case that this was a joint enterprise between Birch, the appellant and Ned. The vital link was the appellant on the basis that he fetched Ned and went back into the flat with him and once inside Ned had stabbed the victim. Blood marks on Birch suggested that he was near Ben and might have indicated that he was holding him at some stage. No blood was found on the appellant.

9

His date of birth was 22 March 1981. The date of the offence was 17 August 1995 (when he was 14 years and 5 months). The trial started on 18 April 1996 (15 years).

10

A voir dire was held on the mental capacity of the appellant to give evidence. Dr Gisli Gudjonsson, a Consultant Clinical Psychologist at the Maudsley Hospital, was called to give evidence. In essence, he explained that 100 was the average IQ and an IQ of below 70 was 30% below average and usually considered indicative of some mental handicap. His mental age at the material time was difficult to assess but equated to about a child of 9. Dr Gudjonsson described how on arrival at the Glenthorne Assessment Centre shortly after his arrest his IQ was 56, which was exceedingly low—4 per 1000 of the population would achieve this level. Shortly before trial further tests were carried out which revealed an IQ of 63—a mental age of between 9–10. The improvement was probably related to an increased ability to concentrate. He remained within the handicapped bracket. He had also been educationally disadvantaged (he came from a family of travellers) which meant that his potential had not been fully developed. He was virtually illiterate with reading skills of a boy of six years. He was tested for 'suggestibility' in order to establish whether he was suggestible as an interviewee and might agree with what the police put to him. He was found to be less suggestible than other average people. As to comprehension and his ability to give an account of himself, his overall performance was limited. If he was allowed time in an interview to express himself and care was taken to ensure that he understood, he could give a clear account but questioning in the witness box might be a different matter.

11

Mr Brian Barker QC leading counsel for the appellant submitted to the trial judge that on this evidence the jury should not be invited to draw adverse inferences from the failure to give evidence. His mental condition made it undesirable to do so in the light of s.35(1)(b) of the Act. He contended that suggestibility and comprehension were irrelevant. The important consideration was whether Friend could express himself verbally, concentrate and do justice to himself. There was ample evidence that he could not.

12

The judge declined to rule that his mental condition made it undesirable for the appellant to give evidence. The trial proceeded; the appellant did not give evidence but Dr Gudjonsson did. In summing-up the judge drew the jury's attention to the failure to give evidence and directed that it was open to the jury to draw an adverse inference. The jury unanimously convicted the appellant of murder and Birch of manslaughter.

13

Statutory Background

14

The Criminal Evidence Act 1898 S.1(b) provided that the failure of the accused to testify was not to be made the subject of any comment by the prosecution. Comment by the judge was permissible but the scope for it was limited and had always to be accompanied with a reminder that the accused was not bound to give evidence and that, while the jury had been deprived of the opportunity of hearing his story tested in cross-examination, they were not to assume that he was guilty because he had not gone into the witness box. R v Bathurst [1968] 2 QB 99. Stronger comment was permitted where the defence case was involved the assertion of facts which were at variance with the prosecution evidence, or additional to it or exculpatory, and which if true, would have been in the accused's own knowledge. (see R v Martinez-Tobon [1994] 1 WLR 388)

15

The Criminal Justice and Public Order Act 1994 repealed s.1(b) of the 1898 Act. S.35(2) requires the court to satisfy itself that the accused is aware that the stage has been reached at which evidence can be given for the defence, 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 jury to draw such inferences as appear proper from his failure to give evidence of his refusal without good cause, to answer any question. Sub-section 1 provides that ss.2 does not apply if at the conclusion of the evidence for the prosecution the accused's legal representative informs the court that the accused will give evidence.

16

By ss.3, where ss.2 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.

17

However it will not be permissible for the court or jury to draw such an inference if it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence.

18

In R v Cowan [1995] 3 WLR 881 the Court of Appeal (Lord Taylor CJ presiding) rejected an argument that s.35 should be permitted to operate in exceptional cases only. The court held that the effect of s.35 was simply to add a further evidential factor in support of the prosecution case. The court emphasised that silence cannot be the only factor on which a conviction was based and that the prosecution remains under an obligation to establish a prima facie case before any question of the defendant is raised. The court indicated that...

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    • House of Lords
    • 14 July 2005
    ...at common law for a person under a duty to provide for an infant of tender years to neglect to do so and thereby injure his health: see R v Friend (1802) Russ & Ry 20. A comprehensive offence of ill-treating, neglecting, abandoning or exposing a child was enacted in the Prevention of Cruelt......
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    • 22 May 2001
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5 books & journal articles
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    • United Kingdom
    • International Journal of Evidence & Proof, The No. 22-4, October 2018
    • 1 October 2018
    ...of OP) vthe Secretary of State for Justice and Others [2014] EWHC 1944 (Admin);RvRashid [2017] EWCA Crim 2; CPD, 3F.13.43. RvFriend [1997] 1 WLR 1433.Owusu-Bempah 2011). In determining whether it is undesirable for a defendant to give evidence, quality of evidence canbe taken into account,4......
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    • South African Criminal Law Journal No. , May 2019
    • 24 May 2019
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    • International Journal of Evidence & Proof, The No. 2-3, July 1998
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