TOMLINSON v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a British national, born in Jamaica in 1956. He is currently serving a life sentence in the United Kingdom. He is represented before the Court by Mr D. Simpson, a solicitor practising in Sheffield, England. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 January 1997 the applicant was tried before a jury at Sheffield Crown Court on a charge of murder. According to the prosecution case, on 17 July 1996 the applicant deliberately mounted a pavement and drove his car at a pedestrian (“M.”), striking him. M. died on 4 August 1996 of his injuries. The applicant maintained that M. had without provocation attacked and beaten him shortly before the incident. A few minutes later, still dazed by the attack, he was driving his car along a street and saw M. throw or appear to throw a brick or similar missile at his vehicle. The applicant was forced to duck down with the result that he lost control of the car. When he regained control of the car he realised that he had hit something and that the car had been damaged. The windscreen and roof pillar (which M. had hit) were badly broken. He did not stop and drove to a garage where he left the car to be repaired. He was planning to collect the car the same day. Instead, as it turned out, it was collected by the police. The applicant later informed his girlfriend that M. had gone to throw a brick at him and that he had ducked, swerved and hit M. He telephoned the police and inquired about M.’s condition and whether he would obtain bail. The prosecution made a formal admission that the day after the incident the applicant’s girlfriend had told a police officer that within a very short time after the incident the applicant had given her this account. On 18 July 1996 the applicant went to a police station unaccompanied by a solicitor. He was arrested, charged with attempted murder and cautioned. He told the police that M. had beaten him for no reason and had thrown bricks at him. He stated repeatedly that he was sorry for what had happened and inquired about M.’s condition. The prosecution accepted that the applicant made this statement to the police. The applicant did not say however that he had ducked and that the collision had been an accident. Shortly afterwards a representative of his solicitors arrived at the police station and advised the applicant to remain silent during the police interviews on the ground that there had been inadequate disclosure of the police case against the applicant. The applicant maintains that during the time he spent in custody at the police station on 18 and 19 July 1996 he wished to answer police questions but accepted the firm advice of his representative to remain silent. Before each interview the applicant was cautioned in the following terms: “You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.” On each occasion the applicant acknowledged that he understood the meaning of the caution. The applicant’s solicitor was present throughout the interviews and had private consultations with him on a number of occasions. The applicant was asked numerous questions about the incident on 17 July 1996 and his involvement, if any, in it. He was asked, inter alia, about the conversation he had earlier in the day with the police officer; his acquaintance with M. and the fight they had had; the evidence of the two eyewitnesses; whether the collision was an accident and the applicant’s earlier explanations to his girlfriend. The applicant refused to comment. On 14 August 1996 the police again interviewed the applicant under caution and in the presence of his solicitor. On this occasion the applicant answered fully the questions put to him. His account of the incident was that he believed M. to be throwing an object at his car, he ducked, lost control of the vehicle and hit M. by accident. The applicant stated that he then panicked and did not stop at the scene. At one point in the first interview the applicant said that he did not know that he had hit M. until told by the police in that very interview. The applicant was also asked why he had swerved towards, rather than away from, a person whom he said was threatening him with a missile. Since M. had died in the meantime the applicant’s charge was changed to one of murder. At the trial two eyewitnesses gave evidence for the prosecution. Both witnesses testified that they saw the applicant’s car hit M. and drive off without hesitating or attempting to stop. One of the witnesses stated that he saw the car smoothly mount the pavement to the full extent possible so that it was more on the pavement than on the road. It drove straight at M. and hit him from behind as he walking along the pavement away from it. The car’s speed was a constant 30-40 miles per hour but it may have speeded up a little before hitting M. Neither witness had seen M. throwing a missile at the car. A pathologist testified that the bruising to the deceased’s calves indicated that he had been struck from behind. He also conceded that bruising was consistent with M. walking or “turning in some way”. In his evidence to the court, the applicant stated that he had not stopped at the scene of the incident because he had been afraid of M. and because he, therefore, panicked. After the collision he went to see his girlfriend and told her that he had “hit” M. after he received a telephone call there saying that M. was in hospital. The applicant strongly disagreed with the pathologist’s evidence. He insisted that M. had been facing the car throwing or appearing to throw a missile. The applicant confirmed the accuracy of the conversation he had with the police officer on 18 July 1996 before the interview. The applicant testified that he had not answered the questions put to him during the police interview on 18 and 19 July 1996 because his solicitor had advised him not to. The applicant waived legal professional privilege and his solicitor gave evidence. The solicitor testified that in private early on 18 July 1996 the applicant had given the same account of an accident as he had given to his girlfriend. The solicitor, however, advised the applicant not to answer any questions because he was not satisfied with the extent of disclosure by the police. After further disclosure, he changed this advice and the applicant answered police questions. The passenger who was in the applicant’s car at the time of the incident testified on the applicant’s behalf, supporting his account. Following a ruling by the trial judge on the voir dire the prosecution in their closing speech to the jury was allowed to invite the jury to draw inferences from the applicant’s silence when interviewed by the police on 18 and 19 July 1996. Counsel for the prosecution indicated that: “A proper inference to draw from his failure to say in the first formal interviews these things, is that this was not an accident at all, and that the idea of saying that it was an accident came to him later, and is designed to mislead you.” In his summing up to the jury the trial judge directed the jury that the law permitted it to draw such inferences as appeared proper from the applicant’s failure to mention at the police interview on 18 and 19 July 1996 the facts he subsequently relied on in his defence. He stressed however that it was not obliged to hold the applicant’s failure to reply to police questions at that interview against him and that his silence could not alone amount to proof of guilt. The judge continued: “Now, in deciding whether to draw inferences adverse to the accused ... you must have regard to a number of factors. For instance, the times of the day when he was being interviewed; his age and his experience of life; his apparent mental capacity; his state of health... You have to bear in mind the legal advice he was given... ... You must, as best you can, judge the condition and capacity of this particular [applicant] on the particular occasion of these first formal interviews, and take into account any evidence that is before you as to his qualities, knowledge and fears, and whatever advice he was receiving at the time.” The judge directed the jury that: “The weight of any adverse inference which you are invited to draw in this case, may well be diminished by the evidence of things said by the [applicant] before the process of interviewing began and before he received his solicitor’s representative’s advice. Such things will be factors for you to consider in deciding what inferences, if any, should be drawn from his failure to mention these particular matters in the first round of formal interviews.” The judge reminded the jury of what the applicant had related to his girlfriend on the day of the incident and the similarity between that account and his subsequent account to the police on 14 August 1996. The jury was advised that this did not necessarily mean that that the account was true. The trial judge stressed that it was the same account which the applicant gave in due course to the police and at the trial. He explained that this factor undermined the prosecution’s suggestion that the applicant had fabricated the account at a later stage and the invitation to the jury to draw an adverse inference from the applicant’s silence during the first round of interviews. The judge also addressed the fact that the applicant remained silent on the advice of his legal representative. He stated: “Now, you are entitled to draw inferences from his refusal to answer questions in the first two interviews, but whether it is right to do so is for you to judge, and you may think ... that since the same account was apparently being given in detail before he was interviewed to [the applicant’s girlfriend] and, it was being suggested ... before interview to [a police officer] and it was then given in detail on 14 August to the police ... you may think ... that the reason why he did not say it to the police on 18 and 19 July was that he was advised not to say anything by the solicitor. If that advice of the solicitor was bad advice ... you do not hold it against this [applicant], and if you have any doubt about this question of whether it is right to hold the matter against the [applicant], then if you have any doubt about it, you resolve any such doubt in his favour rather than against him.” On 3 February 1997 the applicant, by a unanimous verdict, was found guilty of murder. The applicant was sentenced to life imprisonment. On 13 May 1997 the applicant’s application for leave to appeal against his conviction was refused by a Single Judge. The Single Judge stated: “The [trial judge’s] direction cannot be faulted. The fact that you were advised not to say anything by your solicitor (whether that advice was good or bad) is not an automatic reason for forbidding a jury to draw any inference from your silence. It is merely one of the circumstances – a powerful one – for the jury to take into account. In fact when the [trial judge] came to direct the jury he practically told them not to hold your silence against you; and in view of the fact that you had given your account of it being an accident to your solicitor and to [your girlfriend] before being interviewed, it is virtually inconceivable that they did.” The applicant renewed his application for leave to appeal before the Court of Appeal. In the grounds of appeal reference was made, inter alia, to the fact that the judge had erred in allowing the jury to draw inferences from the applicant’s silence at the police interviews on 18 and 19 July 1996. However before the Court of Appeal the applicant’s counsel stated that he could not support either that ground of appeal or indeed the other grounds prepared by the applicant’s trial solicitor. Mr Justice Owen in the Court of Appeal observed that the grounds of appeal prepared by the applicant’s trial solicitor would not have been sufficient to ground a successful appeal and that he was not surprised that the Single Judge had refused leave to appeal. The applicant’s counsel pleaded the application for leave to appeal on the ground that the jury were not directed on the issue of provocation. On 28 October 1997, following argument on that ground alone, the Court of Appeal refused the applicant’s application for leave to appeal. Section 34 of the Criminal Justice and Public Order Act 1994 provides that: “1. Where in any proceedings against a person for an offence, evidence is given that the accused – (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies. 2. Where this subsection applies ... (c) the court, in determining whether there is a case to answer; and (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. 3. Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.” Section 35 (2) and (3) provides: “(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.” Section 38 (3) adds that: “A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...” Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R. v. Cowan ([1996] 1 Criminal Appeal Reports 1). The relevance of these dicta to directions under section 34 of the same Act was confirmed by the Court of Appeal in R. v. Condron ([1997] 1 Criminal Appeal Reports 185). The Judicial Studies Board guideline direction at the time of the Court of Appeal’s consideration of the applicant’s appeal provided that: “If he failed to mention [a fact] ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention. The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its own, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take into account as some additional support for the prosecution’s case. It is for you to decide whether it is fair to do so.” The dicta of Lord Taylor CJ are as follows: “We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight: 1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is. 2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. 3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act. 4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence. 5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.” The current specimen direction for section 34, up-dated in May 1999 in the light of the judgments of the Court of Appeal in R. v. Argent ([1997] Criminal Appeal Reports 27) and in the instant case, provides: “[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence. The defendant as part of his defence has relied upon [...] (here specify precisely the fact(s) to which this direction applies). But [the prosecution case is] [he admits] that he did not mention this [when he was questioned before being charged with the offence] [when he was charged with the offence] [when he was officially informed that he might be prosecuted for the offence]. The prosecution case is that in the circumstances, and having regard to the warning which he has been given, if this fact had been true, he could reasonably have been expected to mention it at that stage, and as he did not do so you may therefore conclude that [it has since been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny]. If you are sure that he did fail to mention [...] when he was [charged] [questioned] [informed], it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time. If it was, the law is that you may draw such inferences as appear proper from his failure to do so. Failure to mention [...] cannot, on its own, prove guilt. But, if you are sure that quite regardless of this failure, there is a case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about this matter is true, i.e. you may take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so. [There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so. That evidence is [...]. If you think this amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if it does not in your judgment provide an adequate explanation, and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him.]” In R. v. Argent the Court of Appeal confirmed that legal advice is one circumstance to be taken into account by the jury. The Court of Appeal explained six conditions that had to be met before section 34 of the 1994 could allow inferences to be drawn. As regards the sixth condition, Lord Bingham CJ stated: “The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could be reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ... Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.” In R. v. Roble ([1997] Criminal Law Reports 449) the Court of Appeal stressed the defendant’s right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury (by way of oral evidence from the defendant himself and / or the solicitor who gave the advice) about the contents of the advice, that is the reasons why he was so advised. The approach in R. v. Roble was confirmed in the later cases of R. v. Daniel ([1998] 2 Criminal Appeal Reports 373), R. v. Bowden ([1999] 1 Weekly Law Reports 823), and R. v. Fitzgerald (judgment of 6 March 1998, unreported). In R. v. McGarry ([1999] 1 Criminal Appeal Report 377) the Court of Appeal held that where a trial judge decides, as a matter of law, that no jury could properly conclude that the requirements of section 34 of the 1994 have been satisfied and, therefore, it is not open to the jury to draw an adverse inference under section 34(2), he must specifically direct the jury not to draw any inference. In R. v. Doldur (judgment of 23 November 1999: “The Times”, 7 December 1999) the Court of Appeal (per Lord Justice Auld) stated: “Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt. Something more may be required, which may be provided by an adverse inference from silence if they think it proper to draw one. What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them. The direction approved in Cowan has a different object. It is to remind the jury that they cannot convict on adverse inferences alone. It is to remind them that they must have evidence, which, in the sense of section 34 inferences, may include defence evidence where called and which, when considered together with any such adverse inference as they think proper to draw, enables them to be sure both of the truth and accuracy of that evidence and, in consequence, guilt.” The Government submitted in the Condron v. the United Kingdom case (judgment of 2 May 2000, no. 35718/97, to be published in ECHR 2000-V) that the case of R. v. Doldur is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under section 34 of the 1994 Act. In R. v. Bowden ([1999] 2 Criminal Appeal Reports 176) the Court of Appeal confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial. Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides a single, composite ground of appeal against a criminal conviction. It states that the Court of Appeal: “shall allow an appeal against conviction if it thinks that the conviction is unsafe”.