Practice and Procedure


PUBLISHED August 2, 2003

Lawyers who were careful to obtain instructions and explore any available defence properly represented their client. It was not enough for an accused to say that he was acting on legal advice when exercising his right to silence during interview. It was for the jury to consider whether the defendant could reasonably have been expected to mention during interview the facts on which he later relied.Appeal against a conviction for murder. On 28 February 2001 in the Crown Court at Inner London the appellant was convicted of the murder of G. The appellant advanced three grounds of appeal: (i) that the lawyers who represented him at his trial failed to present the additional defence that the appellant may not have been responsible for the fatal wound; (ii) that the trial judge failed to direct the jury that causation was a live issue, and (iii) that the trial judge misdirected the jury as to the inferences which could be drawn from the appellant's almost complete silence when interviewed.HELD: (1) It was necessary to consider what the appellant's lawyers knew or ought to have known about his case prior to and during the course of the trial. The appellant's lawyers had been careful to obtain and follow the appellant's instructions, and to explore any defence which might realistically have been available to him. (2) The judge need not have said more about the issue of causation. By the end of the trial causation was not in reality a live issue, and no summing up should dwell on issues which were no longer alive. (3) Before a jury drew inferences from a failure to mention facts when questioned, account was to be taken of all the relevant circumstances existing at the time of questioning. Only rarely would it be right for the judge to direct the jury that they should, or should not, draw the appropriate inference. (4) Evidence from the defendant that he had been advised not to answer questions in interview was not likely to be regarded as sufficient reason (of itself) for not mentioning facts relevant to the defence. The evidence had to indicate the reason for that advice. (5) There could have been good reason why an accused was advised by his solicitor to maintain his silence (Condron v The United Kingdom [2001] EHRR 1). (6) The drawing of an adverse inference from silence could infringe Art.6 of the European Convention on Human Rights. The issue of whether it did or not turned on whether an appropriate balance had been drawn between the exercise by the accused of his right to silence and the fair drawing of an adverse inference by the jury. There was not a licence to a guilty person to shield behind the advice of his solicitor (Betts and Hall (2001) 2 Cr. App. R. 257). (7) It was for the jury to consider whether the defendant could reasonably have been expected to mention the facts on which he relied. (9) The judge's direction in this particular case was not a model direction, but when read as a whole it was not a misdirection. The observations of the judge did not go beyond the bounds of appropriate comment. There was no substance in any of the grounds of appeal.Appeal dismissed.

[2003] EWCA Crim 2219