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FOURTH
SECTION
CASE OF
ADETORO v. THE UNITED KINGDOM
(Application
no. 46834/06)
JUDGMENT
STRASBOURG
20 April
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Adetoro v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 23 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 46834/06) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Mr David Adetoro (“the applicant”), on 30
October 2006.
- The
applicant was represented by Stephensons Solicitors, a firm of
solicitors practising in Wigan. The United Kingdom Government (“the
Government”) were represented by their Agent, Ms J. Gladstone,
of the Foreign and Commonwealth Office.
- The
applicant alleged that he did not have a fair trial as a result of
the trial judge's misdirection to the jury on the drawing of adverse
inferences as regards his refusal to answer questions during police
interviews.
- On
25 May 2009 the Acting President of the Fourth Section decided to
give notice of the application to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background facts
- The
applicant was born in 1972 and is currently detained in
HMP Whitemoor, Cambridgeshire.
- Between
June 1995 and March 1997 eight robberies and six aborted robberies
took place in the Manchester area. The robbers targeted security
vehicles carrying cash; banks; one post office; and one supermarket.
More than once, firearms were discharged. Police officers chasing the
robbers were fired upon and on one occasion a lorry driver who used
his vehicle to ram the robbers' getaway car was shot and seriously
injured.
- The
prosecution case was that the applicant joined the conspiracy in
around April 1996 after his release from prison, after four of the
robberies had been committed. The evidence against the applicant was
almost entirely circumstantial and the case relied heavily on
evidence from a police surveillance exercise carried out over a
period of about one year. The prosecution argued that the
applicant's recorded movements were consistent with his playing an
active part in the conspiracy.
- The applicant was arrested on 21 March 1997. He denied
any involvement in the conspiracy to rob and was interviewed under
caution in March and June 1997. The terms of the caution were that he
did not have to say anything but that it might harm his defence if he
did not mention when questioned something on which he later sought to
rely in court. During the interviews, he was asked to give an
explanation for his movements as recorded by the police in their
surveillance exercise, his association with a variety of individuals
and his whereabouts at the time of the robberies. On each
occasion, he replied “no comment”.
B. Domestic proceedings
- The
applicant subsequently pleaded not guilty to conspiracy to rob and
other offences arising out of the conspiracy.
1. Proceedings before the Crown Court
- At
trial before the Crown Court, the applicant gave evidence in his own
defence. His case was that he was not involved in the conspiracy.
He claimed that he was not even aware of the robbery conspiracy
or his associates' involvement. However, he admitted being involved
in the buying and selling of stolen cars and argued that the police
observations showed his involvement in that business, rather than in
any conspiracy to rob.
- The
applicant also provided answers to all the questions which he had
declined to answer during the police interviews in March and June
1997. In particular, he accounted for his association with
various individuals, provided explanations for why he had moved
certain vehicles on certain dates, gave detailed accounts of his
movements on relevant dates, provided reasons why he was observed
wearing gloves on specific occasions and gave explanations for
conversations recorded by covert surveillance.
- The
applicant was asked why he had not provided these explanations at the
time of the police interviews. He responded that he had not wanted to
incriminate people in relation to the stolen vehicles.
- In his summing up to the jury, the judge directed them
as to the burden of proof and the standard of proof in the case:
“...The burden [of proof] lies upon the
prosecution throughout the case, to prove their case against the
defendant. The defendant does not have to prove anything at all,
there is no burden upon him to prove anything.
...
The next matter of law, is the standard of proof, this
is a very simple concept, the standard is, that you must be sure. You
must not convict this man unless you are sure he is guilty and
nothing less than being sure will do.”
- He subsequently gave them the following direction
regarding lies:
“Another matter of law, ... which I should
mention, concerns the telling of lies or being untruthful. You may
come to the conclusion that this defendant has told you a lie or a
number of lies; I'm not suggesting that he has or he hasn't, it is
simply a matter that you may wish to consider. Because, I have to
tell you as a matter of law, that the fact that a defendant tells a
lie, is not of itself, evidence of guilt. A defendant may lie for
many reasons. He may lie because he doesn't want to disclose
something or out of confusion, panic or something of that sort.
If you think that the defendant has lied in evidence,
but you think that there is or might be some innocent explanation for
any lie, then ignore it, take no notice of it at all. If, on the
other hand, you were to find that the defendant did lie and you are
sure that he didn't lie for any innocent reason, then any such lie
can be evidence going to support the prosecution's case.”
- The judge went on to deal with the questioning of the
applicant by the police. In this regard, he noted:
“... there [were] some six hours – if I've
added it up correctly – of interviews between the police and
the defendant, from the day of his arrest in March through to June of
last year and at each of those various interviews, he was cautioned.
The words of the caution being, that he was told that he did not have
to say anything, but that it may harm his defence if he didn't
mention when questioned, something which he may later rely on in
court. He was told that anything which he might say may be given in
evidence.”
- The judge noted that the applicant had not answered
questions put to him during the police interviews, replying “no
comment” to each of the questions posed. He reminded the jury
that the applicant did not suggest that he was advised by his lawyer
not to comment but said that he had not answered questions because he
did not want to incriminate people in relation to stolen vehicles.
The judge also reminded the jury of some of the specific questions
asked of the applicant during the police interviews and of the
subsequent answers relied upon by the applicant during his evidence
at trial and added:
“[The applicant] knew, as he accepted when he gave
evidence before you, that he had been arrested for armed robbery. He
admits that he failed to mention any of the facts to which I have
just referred, when he was interviewed and he says his reason for
that, was that although well knowing that others had been arrested
for the much more serious offence of armed robbery, as he had been,
he didn't want to incriminate them in the stealing of cars.”
- The judge concluded with the following direction:
“You must decide, whether in the circumstances,
these facts to which I have referred, were facts which the defendant
could reasonably have been expected to have mentioned in the light of
that caution, which was repeatedly given to him, over that period
from March to June.
If you find that he could reasonably be expected to have
mentioned those facts, then the law is, that you may draw such
inferences as appear proper, from his failures to mention such
matters when interviewed.
I reminded you of the period of the interviews. Failures
to mention such matters cannot on their own prove guilt, but you may
hold such failures against the defendant when deciding whether he is
guilty, that is to say, you may take them into account as some
additional support for the prosecution's case. You are not bound to
do so, it's a matter entirely for you to decide whether it is fair to
do so.”
- On 18 June 1998 the jury found the applicant guilty of
the offences charged. He was sentenced to 26 years' imprisonment. The
Criminal Cases Review Commission (see paragraph 21 below) summarised
the comments of the trial judge on sentencing as follows:
“111. In sentencing Mr Adetoro, the judge noted
that he had six previous convictions dating from 1998, including a
conviction for conspiracy to rob ...The trial judge described him as
a dangerous, cunning and intelligent man and he was satisfied that
after he had joined the conspiracy, he had played a commanding role
...
112. Mr Adetoro did not take part in the first four
robberies because he was in prison in respect of a previous matter
connected with armed robbery. He was released in September and by
October was associating with his co-accused ... Thereafter he joined
the conspiracy. Once he had joined the tactics and execution of the
various robberies increased in gravity. The judge noted that he was
satisfied that Mr Adetoro was involved in the sixth robbery and
ignored his assertion that he was with Mr Shearer and Mr
Stephenson at the material time. He was a 'rather clever and
determined liar' and his alibi 'fell apart'. The judge was not
prepared to place reliance on anything he said and made no finding in
respect of Mr Shearer and Mr Stephenson's presence or absence in
the circumstances of the sixth robbery.”
2. First appeal to the Court of Appeal
- The
applicant appealed to the Court of Appeal arguing, inter alia,
that the summing up contained a Lucas direction (a direction
to the jury in relation to lies – see paragraph 33 below) where
it was wholly inappropriate; and that the trial judge had not given
any direction to the jury regarding the drawing of adverse inferences
from the applicant's silence during the police interviews in
circumstances where such a direction was appropriate.
- On 21 June 1999, the Court of Appeal handed down its
judgment. It agreed that there had been no need for a Lucas
direction. However, it considered that the fact that one was given
did not prejudice the applicant's defence or the safety of his
conviction. Regarding the adverse inferences direction, the court
concluded, having regard to the transcript of the trial judge's
summing up, that the judge had given such a direction to the jury. It
considered the applicant's case in the round and noted that the
evidence against the applicant was overwhelming. The applicant's
appeal against conviction was dismissed. However, his sentence was
reduced to 22 years' imprisonment.
3. Second appeal to the Court of Appeal
- On 20 July 2005, the Criminal Cases Review Commission
(“CCRC”) referred the applicant's conviction to the Court
of Appeal on the basis of the trial judge's direction to the jury in
relation to the applicant's silence at the police interviews. The
main ground of appeal was that the direction on adverse inferences
was defective in that the jury were not directed that an adverse
inference could only be drawn where it was satisfied that the real
reason for the applicant's silence was that he had no answer to the
questions asked, or no answer that would hold up to scrutiny. The
CCRC report noted that legal advice dated 9 July 1998 on the merits
of an appeal made reference to the omission in the jury direction but
that this issue was not pursued beyond the initial advice and was not
incorporated into the applicant's grounds of appeal at that time. The
Court of Appeal subsequently observed that this ground:
“was not one of the ten grounds of appeal advanced
by experienced counsel who appeared for the appellant at trial.”
- On the morning of the appeal hearing, counsel for the
prosecution informed counsel for the applicant that he considered
there to be no justification for opposing the appeal and that the
only issue would be whether or not there ought to be a retrial.
- The Court of Appeal disagreed and found that, despite
the misdirection by the trial judge, the conviction was safe. It
distinguished between cases where an accused exercised his right to
silence pursuant to legal advice or because he was tired or ill and
those where, as in the present case, the reason for not answering
questions was linked to the accused's defence itself. It found
that the jury had rejected the applicant's defence and, in doing so,
must also have rejected the applicant's explanation of why he failed
to answer questions in the police interview, noting:
“Here the appellant's explanation was inextricably
linked to his defence which was: 'I was involved with the others in
buying and selling stolen cars, but not in armed robbery'. In saying
that he did not answer questions because he did not wish to implicate
others in this business, the appellant was necessarily advancing his
own defence. The jury rejected this defence and it seems to us that
in doing so they must also have rejected the appellant's explanation
for his failure to mention facts at interview.”
- The court also noted that the judge had given the jury
an unnecessary Lucas direction which, in the event, provided
assistance to the jury in how to approach the question of adverse
inferences which could be drawn from the applicant's failure to
provide an explanation of his conduct during the police interviews.
It concluded that:
“The direction the judge gave could only have
related to lies told by the appellant in court. The jury were told
that if they thought there was an innocent explanation for any such
lie told by the appellant they should not hold it against him. So, as
the jury must have concluded that the appellant's explanation for his
silence ('I wanted to protect others') was a lie, following the
judge's direction they would have had to consider whether there was
an innocent explanation for it before they could have used it as
supportive of the Crown's case. If therefore they did use his lying
explanation against him, the jury must have concluded that the lie
was not innocent – in other words the reason he was lying about
why he had not answered the questions was because he had no answer to
them or none which would withstand scrutiny.
... So on analysis if the jury in this case did draw
adverse inferences against the appellant from his silence at
interview, they could only have done so by following the same thought
processes as they would have had to follow if the proper section 34
direction had been given. This is therefore not a case in which one
cannot say what the jury would have done if such a direction had been
given. Put shortly, if they did draw adverse inferences against the
appellant following the directions which they were given, they could
only have done so if they considered that the reason for his silence
was that he had no or no sustainable answer to the questions he was
asked.”
- The court referred to the earlier judgment of the
Court of Appeal, which found the evidence against the applicant to be
overwhelming, and concluded:
“This was not therefore a case in which one could
say that the correct direction would have tipped the balance”.
- The
applicant's appeal against conviction was dismissed on 7 June 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Section 34 of the Criminal Justice and Public Order Act 1994
- 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;
...
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
...
(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) provides 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) ...”
- A number of domestic cases have considered the
application of section 34 in practice. In R v. Cowan ([1996] 1
Criminal Appeal Reports 1), Lord Taylor CJ set out five “essentials”
when making a direction on adverse inferences:
“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.”
- Subsequently, in R v. Argent ([1997] Criminal
Appeal Reports 27), Lord Bingham CJ (as he was then) added a sixth
condition that had to be met before section 34 of the 1994 Act would
allow inferences to be drawn:
“The sixth condition is that the appellant failed
to mention a fact which in the circumstances existing at the time the
accused could 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.”
- Guidance as to the direction which the judge should
give the jury are provided by the Judicial Studies Board, which
provides specimen directions. The present specimen direction on
section 34 is based on the five “essentials” listed in R
v. Cowan, as applied in subsequent section 34 cases before the
domestic courts, including R v. Argent, and by this
Court in John Murray v. the United Kingdom, 8 February
1996, Reports of Judgments and Decisions 1996 I and
Condron v. the United Kingdom, no. 35718/97, ECHR
2000 V).
- The Judicial Studies Board specimen direction, which
was last amended in December 2004, prior to the applicant's second
appeal, provides as follows (the sections in bold indicate
substantive differences from the version of the guidelines in force
at the time of the applicant's trial):
“1. Before his interview(s) the defendant was
cautioned ... He was first told that he need not say anything. It
was therefore his right to remain silent. However, he was also
told that it might harm his defence if he did not mention when
questioned something which he later relied on in court; and that
anything he did say might be given in evidence.
2. As part of his defence, the defendant has relied upon
(here specify the facts to which this direction applies - see Note
10). But [the prosecution say][he admits] that he failed to mention
these facts when he was interviewed about the offence(s). [If you are
sure that is so, this/This] failure may count against him. This is
because you may draw the conclusion ... from his failure that he [had
no answer then/had no answer that he then believed would stand up to
scrutiny/has since invented his account/has since tailored his
account to fit the prosecution's case/(here refer to any other
reasonable inferences contended for ... )]. If you do draw that
conclusion, you must not convict him wholly or mainly on the strength
of it ...; but you may take it into account as some additional
support for the prosecution's case ... and when deciding whether his
[evidence/case] about these facts is true.
3. However, you may draw such a conclusion against
him only if you think it is a fair and proper conclusion, and you are
satisfied about three things: first, that when he was interviewed he
could reasonably have been expected to mention the facts on which he
now relies; second, that the only sensible explanation for his
failure to do so is that he had no answer at the time or none that
would stand up to scrutiny ... ; third, that apart from his failure
to mention those facts, the prosecution's case against him is so
strong that it clearly calls for an answer by him ...
4. (Add, if appropriate:) The defence invite you not to
draw any conclusion from the defendant's silence, on the basis of the
following evidence (here set out the evidence ... ). If you [accept
this evidence and] think this amounts to a reason why you should not
draw any conclusion from his silence, do not do so. Otherwise,
subject to what I have said, you may do so.”
B. Lucas directions
- A Lucas direction is a direction from the judge
to the jury to the effect that the fact that the accused has told
lies, or is alleged to have told lies, does not in itself indicate
guilt. The jury should be invited to consider other explanations why
the accused might have lied, including any he provides during the
trial. The relevant case is R v. Lucas ([1981] Q.B. 720), in
which it was held that:
“To be capable of amounting to corroboration the
lie told out of court must first of all be deliberate. Secondly it
must relate to a material issue. Thirdly the motive for the lie must
be a realisation of guilt and a fear of the truth. The jury should in
appropriate cases be reminded that people sometimes lie, for example,
in an attempt to bolster up a just cause, or out of shame or out of a
wish to conceal disgraceful behaviour from their family. Fourthly the
statement must be clearly shown to be a lie by evidence other than
that of the accomplice who is to be corroborated, that is to say by
admission or by evidence from an independent witness.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant complained that the trial judge's direction to the jury on
the making of adverse inferences as regards his silence during the
police interviews violated his right to a fair trial as provided in
Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
a. The applicant
- The
applicant alleged that he did not have a fair trial as a result of
the trial judge's misdirection to the jury on the making of adverse
inferences as regards his silence during the police interviews, in
particular the omission of a direction to the effect that adverse
inferences could only be drawn where the jury was satisfied that the
real reason for the applicant's silence was that he had no answer to
the questions asked, or no answer that would hold up to scrutiny.
- The
applicant refuted the argument that his explanation for his silence
at police questioning was the same as his defence to the substantive
charges. The fact that a section 34 direction was given at all made
it clear that the question of the silence of the applicant was
potentially an important one, and the prosecution had argued at trial
that his silence gave additional support to their case. According to
the applicant, members of the jury may well have concluded that the
applicant had refused to answer questions in interview in order to
avoid implicating others in the stolen car ring. However, because of
the deficient direction, they would nonetheless have been at liberty
to draw an adverse inference against him, despite the fact that they
were not entitled to do so. He argued that it was impossible to know
if this was what happened and whether any adverse inference, wrongly
drawn, had contributed to the rejection of his defence. It was for
this very reason that the Court had made it clear that careful
directions safeguarding an accused's Article 6 rights had to be in
place in cases involving the drawing of adverse inferences.
- The
applicant further argued that the Lucas direction, given in a
different part of the judge's summing up with no reference to the
applicant's explanation for his silence during questioning, was
insufficient to remedy the unfairness caused by the deficient section
34 direction.
- Although
defence counsel had failed to complain about the misdirection at the
time, the applicant argued that this was a mere oversight and did not
diminish the fact that the jury were wrongly directed and that the
safeguards designed to protect the applicant's rights were not
present.
- Finally,
the applicant did not consider that the review of his conviction by
the Court of Appeal was sufficient to remedy any defect in the
judge's direction on adverse inferences.
b. The Government
- The
Government considered that, while the terms of the trial judge's
directions to the jury were of particular relevance to the assessment
of the fairness of the trial (citing Beckles v. the United
Kingdom, no. 44652/98, § 59, 8 October 2002), they were
not decisive. Whether the direction resulted in a violation of the
applicant's Article 6 rights was a question to be assessed in light
of all the circumstances of the case, including the situations in
which adverse inferences could be drawn, the weight attached to them
and the degree of compulsion inherent in the situation (citing John
Murray, cited above, § 47). The Government
highlighted that the legislative scheme itself contained safeguards
to prevent adverse inferences being drawn in situations where it
would be unfair to the accused, pointing out in particular that no
adverse inferences could be drawn where a person had not been
cautioned or where a person did not later seek to rely on a fact
which he might reasonably have been expected to mention during police
questioning.
- The Government acknowledged at the outset that the
trial judge had failed to direct the jury that adverse inferences
could only be drawn where the jury was satisfied that the real reason
for the applicant's silence was that he had no answer to the
questions asked, or no answer that would hold up to scrutiny.
However, they argued that it did not follow that the applicant's
trial as a whole was unfair within the meaning of Article 6 § 1.
They contended, first, that there was formidable prosecution evidence
in the case, a factor which was relevant to the Court's assessment
(citing John Murray, cited above, §§ 52 and 54).
They accepted that the evidence against the applicant was mostly
circumstantial but explained that most of it was not disputed and was
simply read to the court. They also highlighted that, in sentencing
the applicant, the trial judge had made a number of findings as to
his involvement in the conspiracy and his credibility (see paragraph
18 above). The Government, referring to the findings of the Court of
Appeal (see paragraph 25 above), maintained that this was not a
borderline case in which an adverse inference might have tipped the
balance between a guilty and a not guilty verdict.
- The
Government further argued that the jury had clearly given
consideration to the applicant's explanation for his silence and had
rejected it: his explanation for his silence at the police interviews
and his defence to the substantive conspiracy charge were
fundamentally one and the same, namely that he and his co-accused had
been involved only in selling stolen cars and had not participated in
the armed robbery. In the context of the direction to the jury as a
whole, and in light of the direction that the jury could not hold a
lie against the applicant in considering his defence except where
there was no innocent explanation for that lie, the jury could not
have been in any doubt that if they had thought that the explanation
advanced by the applicant was, or may have been, true, they should
not draw an adverse inference against him. Accordingly, the
Government concluded, there was no realistic possibility on the facts
that the jury believed the applicant's story to be true but at the
same time drew an adverse inference against him. They distinguished
Condron and Beckles, both cited above, on the grounds
that in Condron the applicants were suffering from heroin
withdrawal and the concern was whether they were sufficiently lucid
to understand the consequences of their silence, while in Beckles
the trial judge had potentially positively undermined the value of
the applicant's explanation for his silence by wrongly referring to
the lack of independent evidence as to the legal advice given.
- The
Government also emphasised that the applicant's defence counsel had
made no complaint regarding the terms of the trial judge's direction
either at the time or on his first appeal to the Court of Appeal.
Relying on, inter alia, Wood v. the United Kingdom (dec.),
no. 23414/02, 20 January 2004, the Government argued that this
consideration was relevant in assessing whether the misdirection had
resulted in unfairness.
- Finally,
and in any event, the Government considered that any unfairness which
resulted from the trial judge's direction was remedied by the full
consideration given to the applicant's case by the Court of Appeal.
The Government distinguished Condron in this regard, arguing
that in that case the Court was concerned that the Court of Appeal
had no way of knowing whether the applicant's silence played a
significant role in the jury's decision to convict them. In the
Government's view, the Court of Appeal in the present case was able
to assess what the jury's approach had been.
2. The Court's assessment
a. General principles
- The
Court recalls at the outset that the right to silence is not an
absolute right (see John Murray, cited above, § 47;
Condron, cited above, § 56; and Beckles,
cited above, § 57). The fact that a trial judge leaves a jury
with the option of drawing an adverse inference from an accused's
silence during police interview cannot of itself be considered
incompatible with the requirements of a fair trial. However, as the
Court has previously emphasised, the right to silence lies at the
heart of the notion of a fair procedure under Article 6 and
particular caution is required before a domestic court can invoke an
accused's silence against him (see Beckles, cited above, §
58; and Condron, cited above, § 56).
- It
would be incompatible with the right to silence to base a conviction
solely or mainly on the accused's silence or on a refusal to answer
questions. However, it is obvious that the right cannot and should
not prevent that the accused's silence, in situations which clearly
call for an explanation from him, be taken into account in assessing
the persuasiveness of the evidence adduced by the prosecution (see
Condron, cited above, § 56; and Beckles, cited
above, § 58).
- Whether
the drawing of adverse inferences from an accused's silence infringes
Article 6 is a matter to be determined in the light of all the
circumstances of the case, having regard to the situations where
inferences may be drawn, the weight attached to them by the national
courts in their assessment of the evidence and the degree of
compulsion inherent in the situation (John Murray, cited
above, § 47; and Condron, cited above, § 56). In
practice, adequate safeguards must be in place to ensure that any
adverse inferences do not go beyond what is permitted under Article 6
§ 1 of the Convention. Of particular relevance are the terms of
the trial judge's direction to the jury on the issue of adverse
inferences (see Beckles, cited above, § 59).
b. Application of the general principles to the
present case
- The
Court observes, first, that the applicant was under no compulsion to
answer the questions put to him by the police. Before each of the
police interviews conducted with him, he was cautioned in terms which
made it clear to him that he did not need to say anything but that
his silence could be held against him at any subsequent trial (see
paragraphs 8 and 15 above). The applicant does not contest the
clarity of the caution.
- The
Court further observes that an accused may choose to remain silent
during police interviews for a number of reasons. Some will be
unconnected with the accused's substantive defence. Such cases
include where the accused has remained silent on the advice of his
lawyer or because he does not consider that he is sufficiently lucid
to understand the questions asked or the nature of the proceedings
(see, for example, Beckles and Condron, both cited
above). In other cases, an accused will choose not to answer
questions at a police interview for a reason which is inherently
linked to his substantive defence. Such cases generally arise where
the accused has some reason to conceal the truth. In such cases, it
is artificial to separate consideration of the substantive defence
from consideration of the explanation for the accused's silence
because in order to accept the plausibility of the explanation for
the applicant's silence, the plausibility of the applicant's account
of events from which the reason for silence stems must also be
accepted.
- In the present case, the applicant refused to answer
questions put to him by the police. At trial, his defence was that he
had not participated in any robbery conspiracy but had merely been
involved in the buying and selling of stolen cars. His explanation
for his failure to mention this in response to direct questions
during the police interviews was that he did not wish to incriminate
others in respect of the buying and selling of stolen cars. The Court
therefore concludes that the reason for the applicant's silence falls
into the second category outlined in the preceding paragraph.
- In
his summing up, the judge reiterated that the applicant had been
cautioned prior to the police interviews and that he had refused to
explain his movements on certain days and at certain times, as well
as his connection with particular individuals (see paragraph 15
above). The judge reminded the jury members of the applicant's
explanation for this refusal (see paragraph 16 above). He further
reminded them that it was for the prosecution to prove its case and
that the applicant was not required to prove anything (see paragraph
13 above). He concluded by advising them that if they found that the
applicant could reasonably have been expected to mention during the
police interviews the facts on which he later relied in court, then
they could draw such inferences as appeared proper from his failure
to mention the facts when interviewed. In this context, the judge
emphasised that such failure could not on its own prove guilt (see
paragraph 17 above). However, he omitted to advise the jury
members that no inferences could be drawn unless they were satisfied
that the reason for the applicant's silence was that he had no answer
to the questions asked or none that would stand up to
cross-examination. The Court notes that the Court of Appeal accepted
that, in omitting this detail, the judge's direction to the jury was
deficient. However, the finding by a domestic court that a direction
was deficient does not necessarily lead to a conclusion by this Court
that the trial was unfair (see, for example, Wood, cited
above). It is for the Court to assess whether, on the facts of the
present case and in light of all the relevant circumstances, the
applicant's trial was fair notwithstanding the omission in the
judge's direction. In making this assessment, the Court will have
regard to the overall summing up to the jury as outlined above, the
effect of the omission in the judge's direction, insofar as this can
be identified, and any other safeguards present to protect the
applicant's right to a fair trial.
- As
regards the effect of the omission, the Court observes that in light
of the defective direction, the jury members might well have
considered themselves able to draw an adverse inference from the
applicant's silence even if they were satisfied with his explanation
that the reason he did not respond to police questions was that he
was afraid of incriminating others. However, as noted above (see
paragraph 52), the applicant's explanation for his silence was
inherently linked to his substantive defence. Accordingly, unlike in
Condron, cited above, § 63, there is some indication of
how the jury approached the question of the weight to be given to the
applicant's silence during the police interviews. The Court of Appeal
concluded that, as the jury had convicted the applicant, it had
clearly rejected his defence and in doing so must also have rejected
his explanation for his silence. The Court agrees that in order to
consider plausible the applicant's explanation that he was afraid of
incriminating others, the jury would have had to accept that the
applicant's movements on certain days and at certain times, as well
as his connection with certain people, was explained by his
involvement in buying and selling stolen cars and not by his
participation in a robbery conspiracy. It can be concluded from the
fact that the jury rejected the applicant's defence that it also
rejected his explanation for his silence. It is not plausible to
suggest that, having accepted the applicant's explanation for his
silence, wrongly-drawn adverse inferences led the jury to reject the
applicant's overall defence to the robbery charges. Moreover, the
jury's conclusions as to the lack of credibility of the applicant's
explanation are supported by the comments of the trial judge when
passing sentence on the applicant (see paragraph 18 above).
- The
Court further notes that the applicant was represented by senior
counsel during the trial proceedings. However, no complaint was made
about the judge's summing up, and in particular the direction on
adverse inferences, at the time, a fact to which the Court has
previously attached some importance (see Wood, cited above).
Moreover, the complaint that the direction was deficient in omitting
to specify that adverse inferences could only be drawn where the jury
was satisfied that the applicant's failure to answer questions was
because he had no answer or none that would stand up to scrutiny was
not included in the ten grounds of appeal advanced during the
applicant's first appeal, despite the fact that the applicant and his
counsel were aware of the deficiency at the time (see paragraph 21
above).
- Finally,
the Court notes that the Court of Appeal reviewed the evidence
against the applicant and found it to be “overwhelming”
(see paragraph 20 above). In its subsequent reconsideration of the
case, the same court referred to its previous finding and concluded
that this was not a case where a technically correct direction on
adverse inferences would have tipped the balance between a guilty and
a not guilty verdict (see paragraph 25 above).
- The
Court therefore concludes that this is not a case where the applicant
was convicted on the strength of his silence alone. Taking into
consideration all the circumstances of the present case, the Court
finds that notwithstanding the deficient direction to the jury, there
was no unfairness in the applicant's trial as a whole.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 20 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
