Welland, R. v (Rev 1)

There was a time when a person accused of a crime in this country was not allowed to give evidence at his trial – in accordance with a principle that no one could be a witness who had an interest in the outcome of the case. But conceptions of criminal justice have changed. The bar to a defendant giving evidence was abolished in 1898 and since 1994 an adverse inference may generally be drawn if a defendant does not give evidence. The right of a defendant to give evidence in his own defence is now recognised to be an essential aspect of a fair trial. The main issue raised on this appeal is whether the appellant, who did not give evidence at his trial, was afforded a fair opportunity to do so in the particular circumstances of this case.

The appellant was tried in the Crown Court at Norwich over five days between 12 and 16 February 2018. He was charged with two offences: wounding with intent and causing serious injury by dangerous driving. Both charges related to an incident which occurred on 20 September 2016 in Great Yarmouth, when a Range Rover car which the appellant was driving hit the complainant, James Smith, pinning his leg against a wall and causing him a serious injury. At the trial the appellant was acquitted of wounding with intent but convicted of the offence of causing serious injury by dangerous driving. This is his appeal against that conviction brought with leave of the single judge.

The background to the incident was a dispute between the appellant and James Smith who had known each other socially for some months – originally, it appears, through the connection that the appellant was James Smith’s hairdresser. The dispute arose from what the appellant believed to be James Smith’s role in causing the appellant’s partner, Racquel, to break off their relationship. Racquel was a good friend of James Smith’s partner, Claire. On the afternoon of 20 September 2016 the appellant turned up at Claire’s house demanding to see Racquel, who was present in the house, but Claire refused to let him in. Claire then called James Smith and told him what had happened. James Smith in turn called the appellant and they had an altercation on the phone. Following that phone call, at 6:36pm, the appellant made a 999 call to the police in which he claimed that James Smith had threatened to shoot him and had told him to meet at 7:30pm at a place called Barnard Bridge – presumably for a fight.

It so happened that James Smith was asked to go and collect Racquel’s son, Luca, from a friend’s house at 7pm. He went with two friends on foot. They collected Luca and were walking back when they saw the appellant, who was also on foot. This seems to have been a chance encounter, but the appellant went and fetched his car which was parked nearby and approached James Smith and the others in his car. An argument took place between the appellant, who was in his car, and James Smith, who was on the pavement. There were issues at the trial about what was said and about how James Smith then came to be injured. The prosecution case was that the appellant was telling James Smith to get into the car, where the appellant had a cut throat razor, and that, when James Smith refused to do so, the appellant drove deliberately at him and pinned his leg against the wall. The defence case was that the appellant was asking James Smith to let Luca get into the car, which he refused to do. According to the defence, James Smith then walked menacingly towards the car, and in a state of panic the appellant tried to put the car, which had automatic gears, into reverse but accidentally moved the gear stick into the drive position, causing it to lurch forward and collide with the complainant.

The trial was originally due to take place in July 2017, but in June the appellant was involved in a road traffic accident in which he sustained very significant injuries which caused the trial to be adjourned. The appellant also suffers from seizures. The trial began on Monday, 12 February 2018. At lunch time on the first day a letter from a hospital consultant was provided to the court which described the appellant’s medical condition. On the basis of this letter, defence counsel, Mr Volz, applied for an adjournment to enable the defence to obtain a full medical report. The suggestion at this stage was that such evidence could potentially support the appellant’s case by giving a possible explanation of how he could (as he alleged) accidentally have engaged the wrong gear. The judge, HHJ Shaw, refused the application, noting that the appellant was not himself claiming that he had had a fit at the time and that it had never been suggested that the case involved anything other than a factual dispute.

At the end of the first day, however, just after the jury had left court, the appellant suffered a fit in court. The fit lasted around 4 or 5 minutes. Paramedics were called, who oversaw the appellant’s recovery and administered first aid.

On the afternoon of the second day of the trial, when the appellant’s partner, Racquel, was giving evidence, he fitted again. This fit was witnessed by the jury. It lasted about 4 minutes and was managed by the dock officers until the paramedics arrived. He then had another fit, slighter shorter in duration. He was taken to hospital by ambulance, where various tests were carried out, all of which were apparently inconclusive. He was not discharged until 2:30am, returning home at 3.30am.

On the morning of the third day counsel for the defence applied to discharge the jury. The application was supported by counsel for the prosecution. It was submitted that medical evidence was needed to provide advice on the causation and management of the appellant’s seizures, and also to the enable the court to determine what, if any, special measures could be taken to enable the appellant to participate effectively in the trial and, if possible, to give evidence without a serious risk of further fitting. It was envisaged that because of the time that it was likely to take to obtain such evidence it was preferable to have a new trial before a fresh jury rather than allow the trial to continue.

The judge refused the application and made it clear that he proposed to proceed with the trial. He said that the appellant need not remain in court that day and could take the time to rest but that he proposed to carry on and hear the rest of the prosecution evidence. The judge granted a short adjournment to enable Mr Volz to speak to the appellant about what he had said. When the court reconvened, Mr Volz renewed his application for the jury to be discharged. The judge maintained his decision that the trial could fairly proceed without the appellant being present in court. The judge indicated that if the next day, when the time came for the defence to present their case, the appellant felt well enough to give some evidence, the court would seek to manage it. If not, the judge said that he would direct the jury that the appellant’s failure to give evidence must not be held against him.

The trial then continued, with the judge explaining to the jury why the appellant was not present in court.

On the fourth day, the Thursday, when the prosecution case was closed, Mr Volz informed the court that it had, throughout the trial, been the firm intention of the defence to call the appellant to give evidence. He said that he had, however, now taken the decision himself that it would be irresponsible to do so knowing that the appellant was likely to fit when giving evidence. Not only would this put an intolerable stress on the appellant, but it could also expose him to physical danger. Accordingly, the appellant did not testify. The trial continued with the appellant not present in court but watching the proceedings over a video link from a room in the court building.

On the fifth and final day of the trial the judge summed up the case to the jury. In his summing-up, the judge outlined the fits which the appellant had experienced during the trial and directed the jury, as he had said he would, that the fact that the appellant had not given evidence in court must not be held against him.

The jury returned their verdicts early in the afternoon. As mentioned earlier, they acquitted the appellant of the offence of wounding with intent, but convicted him of causing serious injury by dangerous driving.

The main ground of appeal is that the judge was wrong to reject the applications made by the defence to discharge the jury in circumstances where the appellant’s ability to participate in the trial was severely compromised and he was not in a fit condition to give evidence as he had intended to do. Mr Volz submits that the result of the judge’s decision that the trial should continue was that the process was rendered unfair and the appellant’s conviction unsafe.

On behalf of the Crown, Ms Ascherson has argued that the appellant was able to and did participate effectively in his trial until its conclusion. She emphasises that his fits did not affect his ability to give instructions to his counsel and that he was able to view the proceedings via the video link. Ms Ascherson also draws attention to the fact that no medical evidence has been provided to establish that, if there were another trial, the appellant would be able to give evidence without suffering stress-related fits. She submits that there is therefore no evidence to show that discharging the jury would have made any difference to the process ultimately followed. She also relies on the judge’s direction to the jury not to hold the appellant’s failure to give evidence against him and on the fact that the judge summarised in his summing-up the appellant’s account of events given when he was interviewed by the police. She submits that in these circumstances the trial was fair.

We agree that this is not a case where a trial has taken place in the absence of the defendant or without his participation. Apart from his absence for part of the third day – which was encouraged by the judge and cannot be said to have prejudiced the appellant – he was throughout the trial either present in court or observing the proceedings over a video link and was able to give instructions to his counsel. The fact remains, however, that the judge required the trial to continue even if that meant that the appellant would not give evidence without properly investigating whether steps could be taken that might enable him to do so.

It must be emphasised that this is not a case where, as sometimes happens, a judge takes the view that a defendant is feigning or exaggerating illness or using illness as a pretext to seek to frustrate the trial process. It was and is not in doubt that the appellant had suffered several seizures in court, that they were genuine fits apparently induced by stress, and that there was perceived by both counsel and the judge to be a high risk that he would have further fits if he gave evidence in court. The judge’s acceptance of the latter point is implicit in his direction to the jury that they must not hold the appellant’s failure to give evidence against him. Under s.35 of the Criminal Justice and Public Order Act 1994 a judge will ordinarily direct the jury that, in determining whether the defendant is guilty of the offence charged, they may draw such inferences as appear proper from the defendant’s failure to give evidence. There is an exception, however, if “it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence.” As discussed in Blackstone’s Criminal Practice (2018) at F20.46, that is a high test, but the judge evidently considered that it was satisfied in the present case.

The second point which requires emphasis is that the right of a defendant who wishes to do so to give evidence in his own defence is – as we have indicated – an important element of the right to a fair trial. If this right is to be real and not illusory, a defendant who wishes to give evidence must be given a full and fair opportunity to do so. A decision to proceed in circumstances where such a defendant is understood not to be in a fit state to give evidence should be taken, if at all, only after the most full and careful consideration. Again, there is no doubt that in this case the appellant intended and wanted to give evidence. We are satisfied that this is not a case of a defendant who was happy to avoid having his story exposed to cross-examination without adverse comment. There were significant differences between his account of events and that of the complainant, James Smith, and the credibility of their respective accounts went to the heart of the case. We do not doubt that the defendant wanted to testify and that his counsel considered it essential to his defence that he should do so.

It is regrettable that no medical evidence has been obtained by the defence at any stage addressing the appellant’s medical condition and whether there were measures which could reasonably have been taken to enable him to give evidence without undue risk to his physical or mental health. There is force in the point made by Ms Ascherson that there is no evidence to show that there were any measures reasonably available which would have enabled the appellant to give evidence by some means if the trial had been adjourned for a day or so and then resumed or if the jury had been discharged and a new trial had later taken place. We consider, however, that a proper opportunity ought to have been afforded to the defence to explore that question by obtaining medical evidence when problems occurred during the trial, that it is unfair to blame the defence for failing to adduce such evidence when that opportunity was denied and that it would be wrong to speculate about what such evidence would have shown.

The judge was entirely justified in our view in refusing the application for an adjournment made on the first day of the trial. There was no evidential basis for suggesting that the appellant had had a fit at the time of the incident and it was not at that stage anticipated that his seizures were likely to interfere with his participation in the trial. Circumstances changed, however, when the appellant suffered several fits in court. We accept that the judge sought to manage the situation as he thought best and that an appeal court should be slow to review case management decisions. Nevertheless, we consider that, in the particular circumstances of this case, the judge’s decision made on the third day of the trial to require the trial to proceed without intermission, even if this meant that the appellant did not give evidence, was a clear error.

We do not in fact think that the judge need necessarily have discharged the jury at that stage – although he was invited to do so by the prosecution as well as by the defence. It might, at least in the first instance, have been sufficient to adjourn the trial. But the judge should in our view have allowed time for medical evidence to be obtained addressing the significance of the appellant’s fits and any means of controlling them. Such evidence was required to find out whether any measures could be taken – for example, allowing the appellant a day or two of rest and/or through the use of any medication – which might enable him to give evidence. To insist that the trial must proceed without exploring that possibility and without establishing through medical evidence that there was no realistic means of enabling the appellant to give evidence was unfair.

We would add that, even if there had been a sufficient basis for concluding that no measures could reasonably be taken which would enable the appellant to give evidence and that the trial should nevertheless proceed, we do not consider that the direction given to the jury about his failure to do so was adequate. It is fair to record that, in accordance with best practice, the direction was provided in written form to counsel in draft and was agreed by them. But insufficient attention was in our view given to its content. On more than one occasion in the summing up the jury was told that the appellant had the judge’s “permission” not to give evidence. That was an inapt expression, as the decision whether or not to give evidence is that of the defendant and his legal representative. It is not a matter in gift of the judge. Simply then to tell the jury that they must not hold against the appellant the fact that he did not give evidence was cursory to say the least. In our view the direction should have spelt out the consequences of the fact that the appellant had been unable to give evidence – in particular, that the jury had not had been able to hear at first hand his account of events – including where it conflicted with that of other witnesses – and assess its credibility. Consideration should also have been given to whether specific points of significance had been raised by the prosecution evidence which were not covered in the appellant’s police interview and which he had therefore never had an opportunity to address.

We conclude that in the circumstances the trial process was unfair and that the appellant’s conviction is unsafe.

In view of this conclusion, it is unnecessary to deal in any detail with the second ground of appeal. It was argued that the judge’s summing up was unfair in that he emphasised and urged the jury to consider carefully various points in relation to the evidence that were favourable to the prosecution but, in contrast, made no mention at all of points on which the defence relied. It was submitted that, in consequence, the summing up was entirely unbalanced.

We think there is force in the criticisms made of some of the judge’s comments which were clearly favourable to the prosecution. It is not the function of the judge in summing up the evidence to tell the jury that particular pieces of evidence are “significant” or “important”, as the judge did in a number of places. It is, however, a misconception to suggest that a summing up must be “balanced” in the sense that observations favourable to the prosecution must be offset by points relied on by the defence. The essential task is to remind the jury of the most relevant evidence and to do so in a way that relates the evidence to the factual issues which the jury need to consider. The summing up in this case fulfilled that function. In particular, the judge reminded the jury of the defence case and of the main evidence relied on in support of that case, including what the appellant had said in interview. The points favourable to the defence which it is suggested that the judge should have made were mostly matters of argument and are points which no doubt were made in argument on behalf of the defence. Notwithstanding our reservations about some of the comments made, we do not consider that the judge exhibited a bias in favour of the prosecution of a kind which made the trial unfair.

For the reasons already given, however, we have concluded that the appellant’s conviction is unsafe because the decision to proceed with the trial was made without proper regard to the principle that an accused is entitled to a fair trial, which includes a fair opportunity to give evidence in his own defence.

Accordingly, the appeal is allowed and the conviction will be quashed.