Director of Public Prosecutions, R (on the application of) v Kavanagh

MR JUSTICE STANLEY BURNTON: This is an appeal by way of case stated from a decision of the justices of the Ealing Petty Sessions Area, sitting as a Magistrates' Court in West Ealing, and subsequently at the Magistrates' Court in Acton, who, on 3rd August 2004, acquitted Sean Kavanagh, the respondent, of one offence of assaulting a police officer in the execution of his duty.

The assault alleged, on the prosecution case, took place at the respondent's home in West Ealing. There had been a 999 call earlier on the evening of 20th January 2004 from the respondent's younger brother who was clearly sufficiently frightened by a fight between the respondent and another brother, Aaron, to call the police. The police attended, matters seemed to have quietened down and they left, but two officers received a further call to come back to the premises. Other officers attended in addition. They entered the house, spoke to the younger brother, James, aged 14, and to Aaron, the second brother, went up to the respondent who was upstairs on the landing, and, according to the prosecution evidence, he was inebriated.

There was then an altercation between the respondent and two officers, PCs Hayward and Tagg, which led to the respondent being handcuffed. In the course of that altercation the respondent's head came into contact with PC Hayward's head. That altercation, which involved further violence on the prosecution case, led to the respondent being charged with an assault in the execution of the officer's duty. He was taken to the police station and interviewed.

The trial took place over two days. A number of police officers gave evidence. PC Hayward, the alleged victim of the head-butting assault, gave evidence, in the course of which he said that on the landing, during the struggle, the respondent:

PC Tagg also gave evidence. His evidence in chief was that the respondent went to head-butt PC Hayward who ducked but was caught on the head. PC Tagg "confirmed that the respondent had moved his head back and forward. He carried on being abusive." In cross-examination PC Tagg rejected the suggestion that the respondent's connection with PC Hayward's head was an involuntary act or that it was accidental.

The respondent's mother gave evidence. She said that she was not in a position, having been absent, to give evidence in relation to the incident itself, but she "did confirm her concerns about the respondent as he had been suffering from depression and had spent 1 year on medication although he was no longer on it."

The respondent did not give evidence at the trial. The magistrates, as I have said, acquitted him. I have a note on what they said at the time, but that is not part of the case stated. The correct procedure for that to have been incorporated in the case stated would have been for it to have been presented to the magistrates for them to consider by way of amendment to their draft case stated. Had they had an opportunity to consider it and if there were no issue as to the content of that note, it would have been open to this court to have caused the case stated to be amended so as to incorporate it. In the end I have concluded that it is unnecessary to do so, and probably inappropriate given the lack of opportunity to the respondent to consider its incorporation and correctness, and I can deal with this case on the basis of the formal case stated.

The magistrates' findings of fact set out the events prior to the officers attending Denmark Road on the second occasion and continued as follows:

Although it is not entirely clear, the finding in paragraph (e) would appear to be that the contact between the respondent's head and that of PC Hayward was accidental.

There were two issues for the magistrates to consider in this case. The first was whether there was an assault as alleged by the prosecution, namely a head-butt. The second was whether, if that assault took place, the officer was acting in the execution of his duty. I, of course, refer to PC Hayward, although it would be difficult to see that he was acting in the execution of his duty unless PC Tagg was also doing so.

The magistrates in the case stated refer to the submissions made to them. They say:

They set out the advice given by their legal adviser:

In paragraph 6 of the case stated they say:

The questions asked for the opinion of the High Court are:

The first question to consider is whether the justices were entitled not to draw inferences from the accused's silences at trial. Section 35(1) is in clear terms:

The court before whom a criminal trial takes place undoubtedly has a wide discretion in deciding on the issue to which subsection (1)(b) refers; that is to say, whether the physical or mental condition of the accused makes it undesirable for him to give evidence.

Two things, however, are to be noted. The first is that there must be an evidential basis for any determination by the court that it is undesirable for the defendant to give evidence (see R v Cowan [1996] QB 373). A statement or a submission by an advocate does not constitute evidence at all, let alone the kind of evidence on which a court can properly conclude that it is undesirable for a defendant to give evidence.

The second point is that it is not sufficient that the defendant suffers from some physical or mental condition. The mental condition must be such that makes it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence, for example, is insufficient to justify a conclusion that it is undesirable for the defendant to give evidence. Many, if not most, difficulties that a defendant, or indeed any other witness, may have in giving evidence, are matters to be taken into account by the judge of fact, be it magistrates or a jury, in assessing the reliability of his evidence. It does not justify a comprehensive failure to give evidence. It may go as to the weight of evidence, not as to the decision whether or not it is undesirable for him to give evidence.

Secondly, the court will draw an inference against a defendant in circumstances where, to use the language of the standard direction, (a) the prosecution's case is so strong that it clearly calls for an answer by him, and (b), that the only sensible explanation for his silence is that he has no answer or none that would bear examination.

In the present case the evidence of the police officers was clear, as the magistrates say in the case stated. That being so, the prosecution's case clearly was sufficiently strong to call for an answer.

The question then arises whether there was a sensible explanation for his silence other than that he had no answer. That is an issue which the magistrates did not address, but it is difficult, on the facts of this case, to see that that question sensibly bore any answer other than "no". The reason given by the magistrates in the present case for their not drawing an inference is that:

The fact that they were warned by the respondent's solicitor that he might not give evidence was quite irrelevant to the decision to be made by the magistrates under section 35(1)(b). It was neither evidence nor any statement as to the mental or physical condition of the accused.

The only other evidence of his physical or mental condition that was before the magistrates was that of his mother to which I have referred. That was wholly inadequate to justify a court rationally coming to the conclusion that his physical or mental condition, as at the date of trial, made it undesirable for him to give evidence. I say that because although his mother said that he was depressed, he was no longer taking medication for that depression. There was, so far as appears from the case stated, no medical evidence. Although one does not expect, on a trial of a relatively minor offence before magistrates, for there to be live expert evidence in all cases, it must be doubtful whether the evidence of Mrs Kavanagh, on any basis, would have been sufficient for the purposes of section 35(1)(b). But the actual evidence she gave, in any event, was insufficient.

Moreover, there is nothing to suggest that the magistrates asked themselves the right question under section 35(1)(b), namely whether such evidence as they had as to the physical or mental condition of the respondent made it undesirable for him to give evidence. It seems to me that was not a question they could have answered affirmatively.

The magistrates then took into account that scintilla of evidence in deciding that it would be unfair to draw inferences from the silence of the respondent. It is unclear from the case stated whether they were then acting, in making their decision, under section 35(1)(b), or that they were exercising the discretion under section 35(2) to draw such inferences as appeared proper from his failure to give evidence.

Again, the judge of fact has a wide discretion as to what inferences appear proper to draw from a failure to give evidence. However, it is difficult to see, in circumstances in which there is no evidence justifying a conclusion that it is undesirable for the defendant to give evidence, not to draw some adverse inference. Indeed, the reason given by the magistrates for not drawing an inference appears to me to be one which was not a proper reason for the conclusion they came to, and certainly insufficient having regard to the evidence they had before them.

Leaving that aside, I turn to the question whether the evidence before the magistrates entitled them to find, as they did, that the defendant did not act deliberately. It is difficult, from the case stated, to understand the thought process of the magistrates because they say that the evidence of the police officers was clear, and that evidence was unequivocally that there had been a deliberate head-butting. The magistrates do not suggest that they rejected any of the evidence of the police officers or that they were unsure about the vital evidence, namely the evidence as to what occurred on the landing when the alleged head-butt occurred, and yet they decided, apparently positively, that the defendant did not act deliberately. In other words, they did not say "the evidence did not satisfy us that the defendant acted deliberately". They positively find that he did not act deliberately.

That, it seems to me, on the evidence before them, once they accepted the evidence of the police officers, was not rationally a finding open to them. It was particularly not a finding open to them where there was no positive evidence that the head-butt had been accidental. That was only put in cross-examination.

In those circumstances I am bound to answer the questions for the opinion of the High Court as follows:

In those circumstances the appeal will be allowed subject to any further submissions. The case will be remitted to be heard by a fresh bench of magistrates or by a criminal district judge.