Where a defendant gave a no comment interview and gave no evidence at trial, and it was agreed that no adverse inferences were to be drawn from the no comment interview, his conviction was safe even though the judge refused to give a counterweight direction to that effect but gave a s.35 Criminal Justice and Public Order 1994 direction.Appeal against conviction by leave of the single judge. On 14 December 2001 at Wood Green Crown Court, before HH Judge Uziell-Hamilton, the defendant ('L') was convicted of being carried in a conveyance taken without authority and possession of an offensive weapon. He was sentenced to 18 months' of community rehabilitation and 100 hours' community punishment. A co-accused was convicted of aggravated vehicle taking and another co-accused of handling stolen goods. On 5 June 2001 a stolen car with false number plates was recovered following a police chase. The defendants all got out of the car and ran off separately. L was wearing a dark jacket when he ran off; he was caught trying to climb over a fence and had taken off his jacket which was found nearby and in which it was claimed a car door barrel and key were found. The police found an extendible baton in his trouser pocket. Fingerprints from all three defendants were found in and on the vehicle. L gave a no comment interview. It was the prosecution's case that L was a passenger who knew the car was taken without authority or consent. L gave no evidence at trial and a written statement was read out which stated that there was insufficient evidence to establish that he knew the car was stolen and denied that the baton was found in his pocket. The judge gave a s.35 Criminal Justice and Public Order Act 1994 direction on L's failure to give evidence at trial. It was common ground that no adverse inferences were to be drawn from L's no comment interview. The matter was taken up with the judge who declined to give a counterweight direction in pre-1994 form. L appealed against conviction on the ground that a counterweight direction as set out in R v McGarry (1999) 1 CAR 377 should have been given as no adverse inferences were to be drawn from L's no comment interview. He contended that the absence of a direction may have prejudiced the jury as L was the only defendant to give a no comment interview and the jury would have heard the terms of the police caution. The prosecution relied on the existence of the s.35 direction as a sufficient safeguard and contended that the jury would have been confused if they had been given a counterweight direction on the no comment interview and then been given a s.35 direction regarding the failure to give evidence at trial.HELD: (1) In the circumstances it could not be accepted that failure to give a counterweight direction as set out in R v McGarry (supra) made the conviction unsafe. Throughout L denied all involvement and throughout he declined to give an explanation. The situation was different from that in R v McGarry as, in that case, the defendant had given evidence and had not refused to answer questions throughout. When first arrested he refused to answer questions on legal advice. He was re-arrested five weeks later and produced a written statement. In those circumstances it was possible that the risk would arise that unless an appropriate direction was given the jury would take against the defendant the fact he declined to answer questions and then later produced a written statement. (2) In the present case there was bare denial throughout. It would be fanciful to suggest that in the circumstances of this case, adverse inferences would be drawn from the failure to give evidence just because no direction was given. The correct approach, to consider the fairness of the trial and the safety of the verdict, was set out in R v Francom & Ors (2001) 1 CAR 237. There was no lack of fairness in failing to give a counterweight direction and no question arose over the safety of the verdict.Appeal dismissed.

[2003] EWCA Crim 1471

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