MARLOW v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a British national, born in 1944 and living in Gloucester, England. The applicant, using a pseudonym, published a book about the cultivation and production of cannabis. The book was advertised for sale in three magazines. Some five hundred copies were sold. The police obtained the names of various customers, established the identity of the applicant and arrested him. When questioned by the police the applicant denied that the book was intended to incite buyers to cultivate cannabis. When pressed about the question of encouragement and incitement, the applicant, on the advice of his solicitor, declined to answer questions saying that the questions were “too conjectural”. The applicant was subsequently charged with three offences under the Misuse of Drugs Act 1971 (“the 1971 Act”). He stood trial before a jury at Worcester Crown Court in February 1996. The applicant pleaded guilty to the charges of producing and having in his possession cannabis and not guilty to the charge of incitement to commit an offence under the 1971 Act. The prosecution case was that the applicant’s book amounted to an incitement of those who bought it to cultivate cannabis and was in effect a grower’s guide. The prosecution relied on the fact that when the police raided the homes of a number of buyers, cannabis plants were found being cultivated according to methods similar to those described in the book. According to the prosecution, the applicant’s intention in writing and publishing the book could be inferred from the book itself and from the effect which it had on the purchasers of the book. The prosecution called as witnesses several such purchasers who were found to be using the method advocated in the book (“the Tricameral method”) to grow cannabis. The applicant’s counsel contended in his defence that his book was a genuine contribution to the debate about the legalisation of cannabis, that it only contained general advice and information freely available elsewhere, that it made it clear that growing cannabis was an offence and that its contents were too remote from the likely actions of those who read it. The applicant relied, inter alia, on the testimony of an expert witness to the effect that many books had been published about the cultivation of cannabis. The expert sought to establish with reference to the contents of those books that the applicant did not intend to incite others to break the law. According to the applicant, his counsel informed the trial judge that he would not be giving evidence on medical grounds and submitted a medical report indicating that the applicant’s performance in the witness box might be prejudiced on account of the stressful circumstances of his court appearance. As to the ingredients of the offence of incitement, the judge in his summing up directed the jury that they had to decide whether they were sure that the book: “may encourage or persuade, or if you like to put it another way, is capable of encouraging and persuading other people to produce the drug cannabis and thus to break the law. The prosecution do not have to prove that it may encourage and persuade, or is capable of doing that, in relation to people who have never grown cannabis before or who had stopped growing cannabis. As I have said, if it may encourage and persuade people to start up again or to carry on and produce more cannabis that would be quite sufficient for proof of the offence. ... If ... you say that it is an encouragement and persuasion, then you must be sure of something else before you can convict the [applicant], and that is that he knew at the time he was disseminating the book that what he was inciting other people to do would be a crime on their part if they did it but that he nevertheless intended to go ahead and do it anyway. It does not have to be proved of course that that was his only intention in publishing the book. It would be quite enough to show that it was one of his intentions. ...” As to the applicant’s silence during police interview and at his trial, the judge directed the jury in the following terms: “... You have had a summary of the [applicant’s] police interviews from which you know that, although he answered many of the police questions, he declined to answer others. The answers which he gave you will of course give such weight to as you think right. ... Some of the questions in the interview, as I have said, he did not want to answer. He did not want to answer questions on the central question of incitement when the police officers were putting them to him. He was quite entitled not answer questions if he did not want to. He could of course have done so but he had an absolute right not to do so. Where he was silent or said, ‘I don’t have any comment’ or, ‘I don’t want to answer that question’ you must not use that as any evidence that he is guilty or take the view that it makes the prosecution case any stronger than it otherwise would do. Then there is the question of him not giving evidence in the witness box in court to you. That stands on a slightly different footing. He has an absolute right not to do that but, as he has been told by me through his barrister, the law is that you are allowed to draw any inference, deduction that is, which you think right from the fact that he had declined to go into the witness box and give evidence on oath. The prosecution cannot prove their case simply by the fact of his silence. What you should do is ask yourselves whether, on the evidence that you have heard, there is a case against him which calls for an answer from him. If not, if there is not, then his silence would have no significance. But if there is a case against him then you would be entitled to come to the conclusion that the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him or no answer which would stand up to being cross-examined by counsel for the prosecution. You are entitled to use that inference, together with all the other evidence in the case, in concluding that he must be guilty of the charge if that is the inference you choose to draw. But it is entirely up to you to say whether you think it is right to do so or not. Of course you will also ask yourselves first of all whether there may be any other harmless reason, if I can use that phrase, for his silence. You may think that no such reason is readily obvious and that he is the person in the best position to tell you what his intention was, for example, in producing this book if he thought that it would advance his case to tell you. As I say, it is up to you what inferences you draw, if any.” Later on in his summing up the judge stated: “What he has never told you of course or told the police is what other books he knows about or has read, nor has he told you how any such books may have affected his own intentions in writing his own. As I say, he could have done because the question of intention has been very much in issue, but he has not. His counsel has made certain suggestions about that but you may think the person best able to explain all that would have been the defendant himself. ... The police then pressed him on the question of encouragement and incitement and it was at that point that he asked his solicitor how he should answer ... .” On 18 March 1996 the jury by an eleven to one majority found the applicant guilty of the offence of incitement. The applicant received a twelve month prison sentence concurrent on the three offences with which he was charged. The applicant applied for leave to appeal. In his amended grounds of appeal the applicant maintained that the trial judge failed to give the jury a proper direction on the inferences which could be drawn from his silence at the police interview and at his trial. In particular, he alleged that the trial judge failed to inform the jury that there was medical evidence which could explain his silence at the trial. The applicant further stated that the trial judge misdirected the jury on the notion of incitement. The full Court of Appeal gave the applicant leave to appeal on the last ground only. On 14 July 1997 the Court of Appeal dismissed the applicant’s appeal. Delivering judgment, Lord Justice Potter, with reference to precedent, considered that the trial judge in his direction should have invited the jury to ask itself whether the book encouraged or persuaded rather than whether it may encourage or persuade or was capable of encouraging or persuading readers to produce cannabis and thus to break the law. However, having regard to the trial judge’s direction as a whole with respect to the defence relied on by the applicant, Lord Justice Potter considered that the jury was properly apprised of the requisite ingredients of the offence. He also rejected the applicant’s contention that sections 18 and 19 of the Misuse of Drugs Act 1971, which set out the offence of incitement, did not refer to the production of cannabis. According to Lord Justice Potter, this was an obvious drafting error and sections 18 and 19 were to be construed in relation to section 4 of the same Act which criminalised the production of cannabis. The Court of Appeal substituted a sentence of six months’ imprisonment in respect of the applicant’s convictions for possession and production of cannabis but upheld the twelve month prison sentence he received in respect of the offence of incitement. The relevant domestic law and practice relating to the drawing of adverse inferences from an accused’s silence during police interview or at his trial is described in detail in the Condron v. the United Kingdom judgment of 2 May 2000 (application no. 35718/97).