SMITH v. THE UNITED KINGDOM
Inadmissible
Georg Ress;Nicolas Bratza
The applicant, Mr Ruben Smith, is a United Kingdom national, born in 1947, and he is currently in prison in Surrey. He is represented before the Court by Austin and Allen, a firm of solicitors practising in Bedfordshire. The facts of the case, as submitted by the parties, may be summarised as follows. In 1968 the applicant was convicted of inflicting grievous bodily harm. On 30 August 1998 the applicant’s cousin shot a man at point blank range in the thigh with a sawn-off shotgun in the living room of the applicant’s home. The applicant was arrested on 31 August 1998. He denied any knowledge of the incident claiming that that night he had been to a number of pubs, gone home, had tea and gone to bed. On 1 September 1998 he was interviewed by the police and he declined to answer questions. Later, on the same day, he requested an interview with the police. This time he told the police that he knew who was responsible for the shooting but that he had nothing to do with it. He said the shooting had taken place outside his house and that he had not been present. He was charged at the conclusion of that interview with wounding with intent to cause grievous bodily harm and with possession of a firearm. He then requested a further interview when he admitted that he had been at a pub with the victim and his cousin. The applicant claimed that when he arrived home the shooting had already happened and this time he named his cousin as responsible. When asked how he knew if he was not present at the time, he said that he had received a phone call from his cousin admitting responsibility. On 26 March 1999, the applicant’s cousin was subsequently convicted of wounding with intent to cause grievous bodily harm and was sentenced on 10 September 1999 to ten years’ imprisonment. The applicant, who had fallen ill during the trial, was tried later in August 1999 on one count of wounding with intent to cause grievous bodily harm and one count of possession of firearm with intent to endanger life. He did not give evidence at his trial or call any witnesses on his behalf. The victim’s evidence was that the applicant had entered the room in his house with a sawn-off shotgun, had pointed the gun at the victim’s head and legs and then left the room. He came back within a minute with his cousin, his cousin had the gun, the cousin pointed the gun at the victim’s head and then his legs and then shot the victim in the thigh. It was the prosecution’s case that the applicant had been behind the shooting and was responsible for providing the weapon. There was unchallenged evidence that the victim’s blood and flesh were found on the chair where he was shot in the applicant’s house and wadding from a shotgun cartridge and more of the victim’s blood were found outside the applicant’s house. At the close of the prosecution case it was submitted on behalf of the defence that there was no case to answer. The trial judge rejected the application ruling that there was no inherent weakness sufficient to enable him to withdraw the case from the jury. The applicant, who began to feel unwell during these proceedings, did not leave the court until after the judge’s ruling. Since the applicant was not intending to give evidence or call any evidence in his defence, at that stage all that remained were the closing speeches of counsel to the jury. The trial judge had already enquired as to whether the applicant had been warned of the possible consequences of not giving evidence before the applicant was taken ill. The trial judge adjourned the trial to seek a report on the applicant’s health. He was informed that the applicant was suffering from angina and was to be discharged from hospital that afternoon. The trial judge directed the trial to resume the next day. The applicant attended but his counsel requested permission for the closing speeches to be given in his absence. The prosecution and the trial judge agreed that the applicant could go home. On 20 August 1999 the trial judge gave a detailed summing-up to the jury. In outlining to the jury the functions of the judge and jury, he stated: “... You must ... be careful to decide the case only on the evidence which has been placed before you. You are entitled to draw inferences; that is to come to common sense conclusions based upon the evidence which you accept, but you must not speculate about what evidence there might have been because that amounts to no more than guessing, and you must not do that.” As to the burden and standard of proof, he pointed out that: “As in all cases under the English criminal law, the prosecution must prove that the defendant is guilty. [The applicant] does not have to prove his innocence. Indeed, he has chosen not to give evidence. That is his right. In a criminal trial, the burden of proving the defendant’s guilt lies always upon the prosecution, and in order to succeed in proving the defendant’s guilt, the prosecution must make you sure of it. Nothing less than that will do, and so if after you have considered all the evidence you are sure than Mr Smith is guilty, then you must return a verdict of guilty. If you are not sure, your verdict must be not guilty.” He then went on to deal with the separate consideration of the two counts against the applicant: “[The applicant] faces two counts on this indictment. You must consider the case against and for the defendant on each count separately. They are merely there as a matter of convenience on the same sheet, but you may feel that in this instance they stand or fall together”. and he then dealt with the earlier conviction of the applicant’s cousin: “... you have heard that [the applicant’s cousin] who is named in count one of this indictment with [the applicant], has been convicted. Well, the only reason you have been given this information is because it is evidence which goes to prove that this offence was committed at least by [the applicant’s cousin] ... [The applicant’s cousin] and other evidence tells you that it occurred in a room in [the applicant’s] home, but that is the only purpose of the evidence. It does not prove anything else, and apart from its relevance to that matter, it has no bearing and must not have any bearing on your decision as to whether the prosecution has made you sure of this defendant’s guilt”. The trial judge then dealt with the question of the relevance of the earlier lies told by the applicant to the police: “You know, you may feel, that [the applicant] has lied to the police. Certainly, virtually the whole of the first interview were lies and it may be that you will conclude that there are lies in [interviews] two and three as well. Well, you are entitled to consider whether this supports the case against him. You should consider: “Why did he lie?”. Now, the mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons. They may possibly be innocent ones ... in the sense that they do not denote guilt of this offence. For example, it may be ... to bolster a true defence mentioned to you by [the applicant’s counsel] a short while ago. It might be to protect somebody else or to conceal some conduct, which is not good conduct, but falls short [of] the commission of the offence, or it might be out of panic or confusion. If you think there is, or may be, an innocent explanation for the lies, then you should take no notice of them. It is only if you are sure that he did not lie for an innocent reason, then the lies can be regarded by you as evidence supporting the prosecution case and going towards the proof of guilt.” He then directed the jury as regards the inferences that might be drawn from the applicant’s failure to give evidence: “Now, [the applicant] has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. Indeed, it would be strange if he were not because at the start of every interview he is given a caution: “You do not have to say anything”, and a few more words are added. So, ladies and gentlemen, you must not assume he is guilty just because he has not given evidence. Because failure to give evidence cannot on its own prove guilt. But, of course, he was told, and you have heard me mention it to [the applicant’s counsel] earlier today, that depending on the circumstances, you may take into account the failure to give evidence when deciding on your verdict. [The applicant] did answer questions in interview and he now seeks to rely on those answers which are, of course, evidence in the case, but they are merely evidence of what he said then when being questioned by the police. It is a matter for you to decide what weight you should give to them, but you are entitled to bear in mind that those answers were not given here before you. They were not given on oath, and the prosecution has had no opportunity to test them before you in cross-examination.” On 20 August 1999 the jury found the applicant guilty of wounding with intent to cause grievous bodily harm and of possessing a firearm with intent to endanger life. In October 1999 he was sentenced to life imprisonment pursuant to section 2 of the Crime (Sentences) Act 1997 and a tariff of 3 years and 6 weeks was fixed. In his application for leave to appeal against conviction to a single judge of the Court of Appeal, the applicant argued that the trial judge wrongly rejected the defence submission that there was no case to answer and wrongly failed to withdraw the case from the jury. On 21 December 1999 the single judge rejected the applicant’s appeal, finding as follows: “The trial judge pointed out with sufficient care the contradictions and weaknesses in the evidence against you. There was evidence that you told or indicated to your partner ... to leave the room; that you then entered the room where the victim was with a sawn-off shotgun and pointed it at his head, chest and legs; that you then left the room and returned with Edwin Smith who now held the gun which was loaded and you were present when he fired at the victim. The Jury were entitled to infer either that when you entered the room with the gun it was loaded or that it was subsequently loaded in your presence. There would have been no need to load it if the only intention was to frighten the victim. Thereafter you were seen to dispose of something in the garden and both you and [your cousin] tidied up the room where the shooting occurred. You then either lied to the Police or said that you had no comment to make to their questions. In those circumstances, there was evidence for the Jury to consider and evidence from which they could infer that you had the necessary intent to be a joint participant in the offence.” In June 2000 the applicant submitted amended grounds of appeal with his renewed leave to appeal application to the full Court of Appeal, adding numerous complaints about the trial judge’s summing up. The full Court of Appeal rejected each ground of appeal against conviction on 30 June 2000. It “emphatically” agreed with the single judge’s views as regards the first ground of appeal (that there was no case to answer) and rejected each allegation as regards the trial judge’s summing up. As to his claim that the trial judge invited the jury to consider the applicant’s failure to give evidence against him in terms that were not sufficiently clear, the Court of Appeal found that the trial judge could have said more at the relevant juncture but it wondered whether any further degree of clarity would have helped the applicant in the circumstances. It did not accept the applicant’s complaint about the trial judge’s reference to his not giving evidence as a “failure” to give evidence: it found that the use of the word “failure” in that context was neutral, proper, fair without innuendo or pejorative force. Finally, the applicant’s claim that the trial judge had invited the jury to consider drawing an adverse inference against him for not giving evidence at his trial when in fact he was medically unfit to attend his trial was also rejected, the Court of Appeal noting that the defence had already declared before the applicant absented himself that it would not be calling any evidence and that the trial judge had satisfied himself, by asking the applicant’s counsel, that the applicant had been warned of the possible consequences of not giving evidence. On 12 July 2001, on the applicant’s appeal against sentence, the Court of Appeal quashed the sentence of life imprisonment and substituted a term of seven years’ imprisonment. Section 35 of the Criminal Justice and Public Order Act 1994, which concerns the exercise of the defendant’s right to silence at trial, provides that: “(1) At the trial of any person for an offence, sub-sections (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.” 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)...” Section 35(2) of the 1994 Act is the subject of Practice Direction: Crown Court (Defendant’s Evidence) ([1995] 2 Cr.App.R. 192 (Court of Appeal) Guidance) which sets out how the trial judge must ensure in open court that a defendant who decides not to give evidence at trial has been warned (by his counsel) that the jury may draw adverse inferences from this. In R. v. Cowan ([1996] 1 Cr.App.R. 1), Lord Taylor considered the direction that should be given by the trial judge to the jury and emphasised five essential points. “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 Judicial Studies Board specimen direction for the use of trial judges concerning section 35 at the time of the applicant’s trial stated: “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 had not given evidence because failure to give evidence cannot, on its own, 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 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 give 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 give evidence before you? If you conclude that there is a 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 would have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence, that is, taken 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.”