OWEN v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a British national, born in 1951. He is currently serving a prison sentence in the United Kingdom. He is represented before the Court by Ms Nuala Mole, a lawyer attached to the London-based Aire Centre. The facts of the case, as submitted by the parties, may be summarised as follows. Between 29 January 1996 and 20 February 1996 the applicant and two other co-defendants, B. and G., were tried before a jury at Bristol Crown Court on two counts of conspiracy to produce and possess with intent to supply cannabis. B. pleaded guilty to two fire-arms charges. The charges against the applicant arose out of a police raid on a house of which he had previously been a tenant. The police found that cannabis was being cultivated on the premises using hydroponic equipment. According to the prosecution the applicant had used his scientific expertise to set up a cannabis-making factory in the house and had bought hydroponic equipment for this purpose between 1992 and 1994 while living in the house. He had then moved out in order to distance himself from the operation. The applicant did not answer questions when interviewed by the police following his arrest. At the close of the prosecution’s arguments, the applicant’s counsel advised him that he need not give evidence since he considered that there was no real evidence against him. The applicant did not testify. In his summing up to the jury at the close of the trial, the trial judge, Judge Bursell QC, with reference to section 34 of the Criminal Justice and Public Order Act 1994, directed the jury on the manner in which they were to deal with the applicant’s failure to give evidence. The judge’s direction was based on the Judicial Studies Board specimen directions. Specifically, he said: “[The applicant], of course, has not given evidence, and that is, as [the applicant’s] counsel] quite properly reminded you, [the applicant’s] legal right. The burden of proving the case still remains on the Prosecution throughout, and [the applicant] is quite entitled to say, as he has through [his counsel], ‘The Prosecution has failed to prove its case, and I stand on that’. Moreover, failure to give evidence on its own cannot prove guilt. On the other hand, if, and only if, you are satisfied that the evidence relied on by the Prosecution established that there is a case to answer, then in those circumstances you may consider [the applicant’s] failure to give evidence. If, and only if, the sole sensible explanation for [the applicant’s] decision not to give evidence is that he has no answer to the case against him, or none that could stand up to cross-examination, then it would be open to you, if you think fit, to hold against him his failure to give evidence. It is for you and you alone to decide whether it is fair to do in the circumstances of this case.” The jury retired to consider their verdict. A note was subsequently sent through to the judge from the jury stating that: “Regarding the evidence relating to [the applicant] we are unable to find definitive evidence to show guilt. However we do feel that there is a ‘case to answer’. Are we able to infer that there is no defence because [the applicant] failed to give evidence? Ultimately we believe that [the applicant] was involved but we are experiencing difficulty in finding facts. Would your Honour please clarify his comments relating to the exercise of defendant’s right not to give evidence.” In the absence of the jury, the trial judge addressed the applicant’s counsel as follows: “I take the view, subject of course to anything that you say, that the correct course would be for me to remind the jury of that which I said firstly about circumstantial evidence, but then in relation to the failure to give evidence...” The applicant’s counsel agreed and also proposed that the jury be reminded again that the prosecution bore the burden of proving the applicant’s guilt beyond reasonable doubt. The judge agreed. The jury returned and announced a verdict of guilty against one co-defendant, B., and acquitted another, G. However, as regards the applicant, the jury informed the judge that they had not yet reached a verdict. The judge then gave the jury further directions in relation to the evidence against the applicant and his failure to give evidence. He stated: “May I first of all remind you of that which I have said about circumstantial evidence. It sometimes happens that a jury is asked to find some fact proved by considering direct evidence of it. Direct evidence may take many forms... On the other hand it is often the case that direct evidence of a crime is not available and the jury is required to decide the case on what I call ‘circumstantial evidence’. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and to the defendant in order to demonstrate that some or all of the circumstances, when taken together, establish the defendant’s guilt. Because the only conclusion to be drawn from that evidence is that it was the defendant who committed the crime ... the evidence must lead you to the sure conclusion that the charge that the defendant faces is proved against him. Circumstantial evidence can be powerful evidence, but it is clearly important that you do examine the evidence with care and consider whether the evidence upon which the Prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence, you should consider whether the evidence reveals any other circumstances which are or may be of sufficient reliability or strength to weaken or destroy the Prosecution case... But may I turn now to the failure of [the applicant] to give evidence, and may I remind you that that is his legal right not to give evidence. In spite of his not giving evidence, the burden of proving the case still remains on the Prosecution throughout. [The applicant] has to prove nothing... Moreover, failure to give evidence on its own cannot prove guilt. On the other hand, if and only if, you are satisfied that the evidence relied on by the Prosecution establishes that there is a case for him to answer, then in those circumstances you may go on to consider [the applicant’s] failure to give evidence. If, and only if, the sole sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or no answer that could have stood up to cross-examination, then it would be open to you, if you thought fit, to hold against him failure to give evidence. It is for you to decide whether it is fair to do in all the circumstances of this case.” The judge then allowed the jury to reach a majority verdict of ten to one. The jury retired at 3.02 p.m. to consider their verdict. At 3.52 p.m. they returned a verdict of guilty by a majority of ten to one. On 3 April 1996 the applicant was sentenced to two concurrent terms of imprisonment of eight years. The applicant sought to have his conviction overturned on the ground, inter alia, that the trial judge had erred in his second summing up to the jury by failing to mention that it was for the prosecution to prove beyond reasonable doubt that the applicant was guilty. The applicant was granted leave by the Single Judge to appeal to the Full Court of the Court of Appeal against conviction and sentence. On 17 October 1996 the Court of Appeal dismissed the applicant’s appeal against conviction but reduced his sentence. Lord Justice Brooke, delivering the judgment of the court, agreed with the argument put forward by counsel for the Crown that the trial judge was not obliged to repeat a direction on the burden of proof if he had already given one to that effect. Lord Justice Brooke stated: “The fact that the matter had to be proved to the criminal standard of proof was one on which the Judge had given the jury a very clear and correct direction at the beginning of the summing up and although it is a pity that he forgot to do what he had clearly intended to do, we do not consider that this late direction to the jury can be faulted on those grounds.” The applicant did not seek leave to appeal to the House of Lords. 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 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.” Following the Court of Appeal’s judgments in R. v. Cowan and R. v. Condron, the following specimen direction in respect of section 35 was drawn up by the Judicial Studies Board. It states: “The defendant has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. You must not assume he is guilty just because he has not given evidence because, failure to give evidence cannot, on its own prove, prove guilt. However, as he has been told, depending on the circumstances, you may take into account his failure to give evidence when deciding on your verdict. 1. In the first place when considering the evidence as it now is you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution. (...) 2. In the second place, if you think that in all the circumstances it is right to do so, you are entitled, when deciding whether the defendant is guilty of the offence(s) charged, to draw such inferences from his failure to given evidence as you think proper. In simple terms, this means that you may hold this failure against him. [There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against the defendant that he has not given evidence. That evidence is (here set out the evidence). If you think that this amounts to a reason why you should not hold it against the defendant that he has not given evidence, do not hold his silence against him. If, on the other hand, it does not in your judgment provide an adequate explanation for his absence from the witness box, then you may, if you think it right, hold his failure to give evidence against him.] What inference can you properly draw from the defendant’s decision not to given evidence before you? If you conclude that there is no case for him to meet, you may think that if he had an answer to it he would have gone into the witness box to tell you what it is. If, in your judgment, the only sensible reason for his decision not to give evidence is that he has no explanation or answer to give, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence, that is, 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.” In R. v. Birchall ([1999] Criminal Law Reports) Lord Bingham CJ stated, with reference to section 35 of the 1994 Act: “Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant’s failure to give oral evidence at his trial until they have concluded that the Crown’s case against him is sufficiently compelling to call for an answer by him. ... There is a clear risk of injustice if the requirements of logic and fairness are not observed (...)” 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”. In R. v. Chalkey and Jeffries ([1998] 2 Criminal Appeal Reports 79) the Court of Appeal recognised that the omission of the word “unsatisfactory” which had been contained in the former section 2 of the 1968 Act had changed the law. A conviction will not be liable to be quashed on account only of procedural irregularity, or abuse of process or a failure of justice to be seen to be done. However in R. v. Mullen