CONSTANTINOU v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Mr Charalambous Constantinou, is a United Kingdom national, who was born in 1972 and is currently serving a sentence of imprisonment in HM Prison Frankland. He is represented before the Court by Hadgkiss, Hughes and Beale, solicitors practising in Birmingham. The facts of the case, as submitted by the applicant, may be summarised as follows. On 13 February 1997, Michael Menson died as a result of severe burns sustained during an incident in a street on the night of 27-28 January 1997, when he was sprayed with a form of accelerant and the back of his clothing set alight. As a result of their investigation, the police arrested and charged in the United Kingdom three men, the applicant, Maria Pereira and Husseyin Abdullah. A fourth man implicated in the incident, Ozzie Cevat, had gone to Cyprus. He was arrested and tried in Cyprus and convicted of manslaughter. The trial in the United Kingdom took place in November-December 1999. The prosecution case was that Pereira and Cevat had set Menson on fire while the applicant assisted by acting, inter alia, as lookout and that Abdullah had committed subsequent acts intended to pervert the course of justice (namely, by covering up the evidence of the incident). In the case of Pereira, the prosecution relied on the evidence of witnesses who said that he confessed his involvement to them; on covert tape recordings of conversations between him and his co-accused; and on the lies which he had told the police. As regarded the applicant, the prosecution relied on his own account that he had watched Pereira and Cevat carry out the attack, making no attempt to leave and doing nothing to prevent what happened. Afterwards he had taken Menson’s personal stereo. In his case too, the prosecution relied on the covert recordings and the lies he told. The applicant had a history of mental illness and delusions. The doctor in charge of his treatment for the previous years stated that the applicant suffered from a longstanding personality disorder which at times of stress could be prone to paranoid states of mind. Expert opinion was obtained by the defence at the beginning of the trial as to whether he was fit to stand trial. In a report dated 21 September 1999, Dr Wilkins stated: “... [the applicant] is fit to plead and stand trial. He gave a clear and consistent account of his version of events. It coincides with the known facts and I consider him well enough at the present time to instruct his solicitors and to enter an appropriate plea. He is also able to engage in court procedure. The only issue that is less certain is his ability to give evidence on his own behalf.” During the trial, on 30 November 1999, Dr Wilkins saw the applicant again. He took the view that the applicant had improved and was capable of giving evidence. However, the applicant did not give evidence during the trial and counsel made no submission to the judge that he should exercise his powers under section 35(1)(b) of the Criminal Justice and Public Order Act 1994 not to draw inferences from his silence. Dr Wilkins gave evidence for the defence to the effect that the applicant’s personality disorder would have inhibited his ability to walk away from the incident and made it unlikely that he would have taken any part in it. In his summing-up, the judge directed the jury as to the circumstances in which they might draw an inference from the applicant’s failure to give evidence if they thought appropriate, warning inter alia: “Each [defendant] is entitled to remain silent and to require the prosecution to prove its case, and you must not assume that he is guilty just because he has not given evidence, because failure to give evidence cannot on its own prove guilt. If, for instance, you are not sure that the prosecution has made out any case against the defendant, his failure to give evidence will add nothing to the prosecution case ...” On 21 December 1999, the applicant was acquitted of murder and convicted of manslaughter and a count of perverting the course of justice. He was sentenced to ten years’ imprisonment for manslaughter and an additional two years on the second count. Pereira was convicted of murder. The applicant was refused permission to appeal by a single judge of the Court of Appeal. He renewed his application. At a hearing held on 9 April 2001 concerning the applications of himself and Pereira, the applicant’s counsel informed the court that in light of instructions received from the applicant he no longer felt able to continue to represent him. The court adjourned consideration of the applicant’s applications and directed that the prison authority should obtain a medical report on his current psychiatric condition and whether he was able to instruct lawyers. An examination took place in November 2001 and indications were given that the applicant was capable of giving instructions. The court adjourned the matter further in February 2002 to give the applicant’s new counsel time to prepare. The applicant changed his solicitors and counsel on a number of occasions. The case finally came for hearing on 24 June 2002. As regarded the applicant’s argument that new evidence should be admitted concerning his mental state at the time of trial showing that the trial judge should not have allowed inferences to be drawn from his failure to give evidence, Lord Justice Buxton said: “Put shortly, the contention before us is that it was sufficiently clear that it was undesirable for [the applicant] to give evidence for the judge to have been asked to give a ruling under section 35(1)(b), in the hope that the otherwise damaging direction to the jury as to [the applicant’s] failure to give evidence would be withheld. ... Throughout the trial there are various notes [by the solicitors] about [the applicant] complaining of various events and engaging in inappropriate discussion and making inappropriate statements, including fears about aliens and unidentified flying objects. Also he expressed concern to his solicitor’s representative about sitting in court. On 30 November ... the applicant was seen again by Dr Wilkins ... the upshot of that encounter appears to have been that the doctor thought that the applicant had improved, and was capable of giving evidence. There were a number of disturbing observations by [the applicant] after that but on 6th December there was a conference between Dr Wilkins and the lawyers ... when Dr Wilkins appears to have said that, in light of his most recent examination ... he effectively withdrew what he had said in the report of 21st September 1999. ... [Dr Wilkins] says this: ‘On 30th November I am much less convinced that he was unable to give evidence at all and in fact, on balance, I have concluded that he probably could, although his ability to do so credibly and persuasively was almost impossible to predict. Bearing in mind fluctuations one would have expected in the context underlying mental health problems. It is possible that he could have done so at certain times and other times he would have been less able to do so. ...’ He added that his agreement that [the applicant] was able to give evidence was ‘couched with a certain degree of equivocation’ and he emphasised the need for [the applicant] to have regular breaks during the course of the trial. We do not know, as we have said, what decision was then taken or the basis upon which it was taken. But the position seems to us quite clear that advice had been given to those representing [the applicant] that he could, in certain circumstances, and subject to certain conditions, give evidence. It would therefore have been extremely difficult for those representing [the applicant] properly to make any submission to the judge that he should exercise his powers under section 35(1)(b). However broadly one interprets that section, it is clear and accepted that a decision of the judge must be based upon evidential material. The evidence that would have been given to the judge, so far as one can work it out, would have been the evidence of Dr Wilkins that he has sketched out in his helpful recent report. If that evidence had been given to [the trial judge] it seems extremely difficult to see how he could have said that it met the requirements of section 35(1)(b). It is argued before us that this should be regarded as a fresh evidence case ... and therefore the fresh evidence should be, first of all, the observations of the solicitors... and secondly the recent report of Dr Wilkins. The difficulty about that one would have expected the observations made by the solicitors to have been drawn to Dr Wilkin’s attention, and certainly drawn to the attention of leading counsel. Although one cannot speculate, it may well be precisely because of that that Dr Wilkins was asked to intervene again on 30th November. But be that as it may, it cannot be material that can be used to offset the professional view of the doctor. The professional view of the doctor was that [the applicant] could, with some caution, give evidence. In our judgment therefore this matter does not fall within section 23(2) at all. It is a case where a decision was taken by leading counsel at trial, who had effectively all the information now before the court. Of course, as [counsel for the applicant] has argued and argued powerfully, this Court will not always exclude cogent and relevant new evidence just because it was available at the original trial and not made use of. But there are limits to that latitude. One of them is where it is apparent on all material that the advisors were perfectly seized of the factual position and made a decision, rightly or wrongly, that they could not follow a particular course. Everything that we have seen about how this case was conducted suggests that both the solicitors and counsel representing [the applicant] were giving the matter the most anxious and urgent consideration, down to, as we have said, bringing in Dr Wilkins for a further report. It is really impossible, at this stage, to suggest that the matter should be re-opened. Indeed, as we have said, even if it were to be re-opened it seems to us that it would founder on the evidence that we now have from Dr Wilkins, which is consistent with the advice that he is reported to have given on 30th November and thereafter ... We have gone into this matter in some considerable detail because it has been carefully and strongly pressed by [counsel for the applicant]. We are well aware of the concerns that are felt about the impact of [the applicant’s] mental state upon this trial. But there is really nothing in the matter that has been put before us to suggest that it would be justified to re-open that issue, which we are satisfied was carefully considered on the basis of full information at the time of the trial, and which it should be noted played no part in the grounds of appeal that were originally put before this Court ...” The Court of Appeal rejected the applicant’s other grounds of appeal but on his appeal against sentence reduced the sentence on manslaughter from ten to seven years. Section 35(2)-(3) of the Criminal Justice and Public Order Act 1994 (the 1994 Act) provide as relevant: “(1) At the trial of any person who has attained the age of fourteen years for an offence, subsections (2) and (3) below apply unless- (a) the accused’s guilt is not in issue; or (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence; but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence. (2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question. (3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”