LATIF and OTHERS v. THE UNITED KINGDOM
Inadmissible
Georg Ress;Mark Villiger;Nicolas Bratza
The applicants, Meina and Claire Latif and Mark Frank Francom, are United Kingdom nationals, who were born in April 1981, July 1978 and May 1976, respectively. They are currently detained in HMP Holloway, HMP Durham and HMP Long Lartin, respectively. They are represented before the Court by Mr J. Goodwin, a lawyer practising in Leeds. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were arrested and interviewed by police, along with two other persons, in connection with the robbery, false imprisonment and murder of a woman in April 1998. It was alleged that the victim, an eighteen-year old schizophrenic girl, had been held at the flat where two of the applicants lived and had been subjected to numerous acts of violence. According to the evidence later adduced at trial, the victim was, inter alia, punched and kicked, beaten with a snooker cue and an iron, urinated upon, forced to drink disinfectant and locked in a kitchen cupboard. Once the victim died, she had been placed in a shallow grave where she was found on 25 April 1998. During the police interviews, Meina and Clare Latif, on the advice of their solicitor, made no comment to questions put to them. In his first interview, Mark Francom admitted to disposing of the body and described the deceased’s appearance after she had been struck with an iron by another co-accused. He stated that the deceased had been put in a cupboard and described seeing the deceased with a plastic bag over her head and the same co-accused with her hands round the deceased’s neck. At his second interview, Mark Francom made no comment when the allegations of other witnesses were put to him. All three applicants were subsequently charged with murder and false imprisonment and Clare Latif was also charged with robbery. The two other persons arrested were also charged with murder, false imprisonment and one was charged with robbery. The trial of all five co-accused was held from 21 April to 28 May 1999. The evidence against the applicants consisted of forensic evidence and the statements of a number of witnesses who called at the flat while the deceased was there. The witnesses described injuries being inflicted upon the deceased by each of the applicants. There was also evidence from witnesses to admissions made by Meina and Clare Latif while they were in custody, in which they independently gave detailed descriptions of what had happened to the deceased while in the flat. One witness stated that Meina and Clare Latif had told her that they were going to try to blame it all on one co-accused and that it was Mark Francom who had placed the bag over the deceased’s head and burnt her with a cigarette. At trial, each of the applicants gave evidence and offered an account of events, admitting their presence at the flat but stating that it had been the acts of another co-accused which had killed the deceased without their encouragement or participation. The defence urged that it would not be appropriate to draw any inference from the applicants’ failure to mention during the police interviews facts later relied on in the trial as provided for by section 34 of the Criminal Justice and Public Order Act 1994. The trial judge, in the exercise of her discretion, agreed that she would direct the jury that they should not draw any adverse inference from the applicants’ silence. Leading counsel for one of the applicants told the jury that they would be directed to that effect by the trial judge. However, in her summing-up, the trial judge did not specifically direct the jury that they could not draw adverse inferences from the applicants’ silence at interview. On 28 May 1999, all three applicants were convicted of murder and false imprisonment. Clare Latif was also convicted of robbery. The applicants appealed against conviction and a single judge of the Court of Appeal granted leave to appeal on certain of the grounds of appeal relied upon. The full Court of Appeal granted leave to appeal including on the ground that the failure of the trial judge to specifically direct the jury that no adverse inference should be drawn from their silence during the police interviews rendered their trial unfair within the meaning of Article 6 of the Convention and the Court’s judgment in the case of Condron v. the United Kingdom (no. 35718/97, ECHR 2000-V). On 31 July 2000, the Court of Appeal dismissed the applicants’ appeals against conviction on the ground, inter alia, that any omission or error in the trial judge’s direction to the jury did not render their convictions unsafe or the trial unfair within the meaning of Article 6 of the Convention and the Condron case. The Court emphasised that everyone involved in the trial accepted that no adverse inference should be drawn and that nothing was said by either the trial judge or counsel which was inconsistent with this. Further, the trial wholly depended on which witnesses the jury believed and they clearly did not believe the accounts given by the applicants. The applicants subsequently applied to the Court of Appeal to certify that the case raised a point of law of general public importance and, having done so, to grant leave to appeal to the House of Lords. The Court of Appeal refused the application on 19 December 2000. Section 34 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) 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) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, 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 38(3) of the 1994 Act adds that: “(3) 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) ...” The Judicial Studies Board has adopted several specimen directions regarding the drawing of adverse inferences from silence according to section 34 of the 1994 Act. These specimen directions offer guidance to trial judges as to the directions they should give to the jury. The specimen directions are revised from time to time in accordance with developments in statute and case-law. Prior to May 1999 specimen directions existed for the situation in which a trial judge decided that it was open to the jury to draw an adverse inference. Following the case of R v. McGarry (1999) 1 Criminal Appeal Reports 377), specimen direction no. 40, adopted in May 1999, provided that, if a trial judge decided as a matter of law that it was not open to the jury to draw an adverse inference, a specific direction (contained in specimen direction no. 44) should be given to that effect.