Wright v R
| Jurisdiction | UK Non-devolved |
| Judge | (Lord Neuberger of Abbotsbury, Lord Clarke of Stone-cum-Ebony, Lord Reed, Lord Hughes of Ombersley and Lord Toulson) |
| Judgment Date | 30 June 2016 |
| Court | Privy Council |
| Date | 30 June 2016 |
(Lord Neuberger of Abbotsbury, Lord Clarke of Stone-cum-Ebony, Lord Reed, Lord Hughes of Ombersley and Lord Toulson)
M. Wood, Q.C. and N. Dixey for the appellant;
D. Perry, Q.C. and A. Richardson for the respondent.
(1) Barlow v. R., [2009] UKPC 30, applied.
(2) Dial v. Trinidad & Tobago (State), [2005] 1 W.L.R. 1660; [2005] UKPC 4, referred to.
(3) Practice Direction (Criminal Proceedings: Consolidation), [2002] 1 W.L.R. 2870; [2002] 3 All E.R. 904; [2002] 2 Cr. App. R. 35, applied.
(4) R. v. Bathurst, [1968] 2 Q.B. 99; [1968] 2 W.L.R. 1092; [1968] 1 All E.R. 1175; (1968), 52 Cr. App. R. 251, referred to.
(5) R. v. Burridge, [2011] 2 Cr. App. R. (S.) 27; [2010] EWCA Crim 2847, referred to.
(6) R. v. Cowan, [1996] Q.B. 373; [1995] 3 W.L.R. 818; [1995] 4 All E.R. 939; [1996] 1 Cr. App. R. 1, referred to.
(7) R. v. Farooqi, [2014] 1 Cr. App. R. 8; [2013] EWCA Crim 1649, dictum of Lord Judge, C.J. considered.
(8) R. v. Lundy, [2013] UKPC 28, applied.
(9) R. v. Martinez-Tobon, [1994] 1 W.L.R. 388; [1994] 2 All E.R. 90; (1994), 98 Cr. App. R. 375, referred to.
(10) Stafford v. D.P.P., [1974] A.C. 878; [1973] 3 W.L.R. 719; [1973] 3 All E.R. 762; (1974), 58 Cr. App. R. 256, referred to.
(11) Tamasa v. R., C.A., January 12th, 2015, unreported; noted at 2015 (1) CILR N[2], considered.
Court of Appeal Law (2011 Revision), s.9:
. . . [T]he Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if the Court considers that no substantial miscarriage of justice has actually occurred.
Evidence Law (2011 Revision), s.18(b): The relevant terms of this sub-section are set out at para. 7.
Police Law 2010, s.149: The relevant terms of this section are set out at para. 5.
Criminal Procedurefair trialright to silencecourt to satisfy itself that defendant aware of right to testify and risk of adverse inferences if refuses (as required by Police Law 2010, s.149(2))failure by judge to enquire in open court whether defendant so advised not material irregularity making convictions unsafe if defendant clearly aware
The appellant was charged in the Grand Court with possession of an imitation firearm with intent to commit rape, rape and indecent assault.
The appellant broke into the victims house by kicking open her door, and then raped and indecently assaulted her. The victim reported the attack to the police, who went to the appellants house and found him hiding under a bed. After his arrest, he claimed that he had been invited to the victims home and that she had consented to sexual intercourse.
The appellant originally stated that he wished to give evidence at trial. He subsequently changed his mind and did not testify, relying instead on the statements that he had made to the police. At no point in the proceedings was he asked, as required by the Police Law 2010, s.149, whether he understood that he had a right to give evidence and that the court was entitled to draw inferences from his refusal to do so. The Grand Court (Henderson, J., sitting alone) found the appellant guilty of rape and indecent assault, relying in part on the fact that he had failed to provide an innocent explanation for the broken door to the victims apartment or any reason for hiding from the police. The charge relating to the imitation firearm was struck out.
The Court of Appeal upheld the appellants convictions (that decision is reported at 2014 (2) CILR 300), holding that, although the court had failed to satisfy itself that the appellant had been aware of his right to give evidence and the risk of an adverse inference, the convictions were not unsafe as the irregularity had not made the trial unfair. There was sufficient evidence on which to base the convictions without relying on any adverse inference.
On further appeal, the appellant submitted that his convictions were unsafe, as the irregularity in the proceedings in the Grand Court had been material. The Crown submitted in reply that the convictions were not unsafe and s.149(2) was only intended to emphasize to a jury that a
defendant was aware of his right to give evidence and had voluntarily opted not to testify.
Held, dismissing the appeal:
(1) The failure to follow the procedure set out in s.149(2) of the Police Law 2010 was not a material irregularity and the appellants convictions were therefore not unsafe. Section 149(2) would ordinarily be satisfied by an enquiry by the judge, in open court, of defence counsel as to whether a defendant had been advised (a) that he had a right to give evidence; and (b) that there was a risk of an adverse inference if he chose not to give evidence without good cause. What mattered, for the purposes of s.149(2), was that the appellant had been given the necessary advice. Although an omission to ask whether a defendant had been given the necessary advice was an irregularity, if it were nevertheless clear that the advice had in fact been given, the irregularity would be immaterial to the safety of the conviction. In the present case, notwithstanding the omission to follow the s.149(2) procedure, it was clear that the appellant had been aware of his right to give evidence (he had originally intended to do so) and it was also highly likely that he had been advised of the risk of an adverse inference being made (he had discussed the possibility of giving evidence with his attorney on at least two occasions and it was highly improbable that the attorney had failed to warn him of the risk of an adverse inference should he fail to give evidence). Although the irregularity was not material and the appellants appeal against his convictions would be dismissed, the importance of the s.149(2) procedure should be emphasized. It was not a mere formality. Failure to follow the procedure would be a material irregularity unless there were a legitimate conclusion that the failure had made no difference. It was the responsibility of counsel as well as the judge to ensure that it was carried out as the statute required (paras. 1421).
(2) It was not, therefore, necessary to consider whether the Court of Appeal had upheld the conviction on the basis of the proviso to the Court of Appeal Law (2011 Revision), s.9, which provided that the court was able to dismiss the appeal if no substantial miscarriage of justice had occurred. If the court had relied on the proviso, however, it should not have asked itself whether a verdict of guilty could have been established on the facts without drawing adverse interests. Rather, the question that should have been addressed was whether, despite the irregularity, there was any reasonably possible verdict other than guilty (para. 22).
1 LORD HUGHES OF OMBERSLEY, delivering the opinion of the Board: The appellant, Dwight Wright, was convicted of the offences of rape and indecent assault, committed on the same occasion. He had elected trial by judge alone, without a jury. The judge relied, in part, on an adverse inference drawn against him in consequence of his having declined to give evidence at his trial. His case is...
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