AS TO THE ADMISSIBILITY OF
by Rajendra SHUKLA
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 16 June 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 3 January 2007,
Having deliberated, decides as follows:
The applicant, Mr Rajendra Shukla was born in 1947 and lives in Kenton. He is represented before the Court by Jordans Solicitors, a firm of lawyers practising in Doncaster.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest and police interview
The applicant is a general medical practitioner who has practised for over 30 years. On 24 June 2003, he was arrested in connection with allegations of indecent assault carried out on two employees. The complainants were schoolgirls, referred to as “A” and “N”, who worked as part-time filing clerks at the applicant’s medical practice. At the time of the alleged offences, they were aged 14 and 15 years old respectively.
The applicant was detained overnight and interviewed under caution by the police on 25 June 2003. He accepted the services of the duty solicitor. Prior to the interview, the duty solicitor had been fully advised of what A, N and G, a witness who later gave evidence at trial, had said and was offered copies of the video tapes of the girls’ interviews.
In the course of the interview, the various allegations were put to the applicant. He denied complimenting the complainants on their appearance and bodies and acting inappropriately. He was questioned about a specific allegation made by A that the applicant had touched her inappropriately on the morning of 3 May 2003 in the nurse’s room. The applicant denied that the assault had happened. He said that he and A had not been in the nurse’s room together and that he had not touched her.
The applicant was also asked whether there was any reason why the complainants would invent the allegations. He replied that he had criticised their work and told them that unless their work improved, they would be dismissed.
2. The domestic proceedings
a. The proceedings before the Crown Court
The applicant was tried before a jury at the Crown Court on four counts.
Count 1 alleged that the applicant had indecently assaulted N on many occasions by touching her intimately; placing his hands around her waist; touching her bottom and back and breathing on her neck.
Count 2 alleged that on an occasion in June 2002, when N was 15, the applicant had examined her chest with a stethoscope inside her blouse and under her bra for no medical purpose.
Count 3 alleged that the applicant had touched A indecently and made inappropriate comments to her. The allegations were broadly similar to Count 1.
Count 4 alleged that on 3 May 2003, the applicant rubbed A’s breasts inside her top and put his hand between her legs near her vagina. It was alleged that the incident had occurred in the nurse’s room.
At trial, the complainants admitted that they had discussed the allegations but denied making them up because they were aggrieved at criticisms of their work made by the applicant. They also denied that the applicant had criticised their work.
The jury also heard evidence from G, a friend of A, who asserted that she (G) had confronted the applicant as he was leaving in his car on 3 May 2003 about the incident which was the subject of count 4. G claimed that the applicant had said that he was sorry and would not do it again. G described the applicant’s car as dark red and like a Volkswagen Golf, but evidence was heard that the applicant had never had such a car. The judge gave a warning that the jury should be particularly careful about G’s evidence.
The applicant’s case at trial was that he had told the complainants that their services were no longer required at the medical practice and that as a result, they had made up allegations that he had indecently assaulted them. As to why he had not previously mentioned this, he said:
“I didn’t explain fully in interview that I’d asked them to leave. I suppose I wasn’t concentrating particularly. I was tired and shocked. I’m not young any more”.
As to the alleged incident on 3 May 2003, the subject of count 4, the applicant explained that a handyman had visited the surgery that day and carried out small repairs between about 10.10 a.m. and 11.15 a.m. The handyman then joined the applicant in the nurse’s room and remained there for about 25 to 35 minutes. A was not there. As to why he had failed to mention this earlier, the applicant explained that he had only recalled the visit from the handyman about a month prior to the trial and had relied on the police to investigate matters. The handyman gave evidence supporting the applicant’s account of events.
In respect of G’s allegation that she had confronted the applicant on 3 May 2003, the applicant denied that any confrontation took place and relied for support on a conversation with a neighbour which he said took place at the same time as the alleged confrontation. He explained that he had first mentioned the conversation with the neighbour some five weeks before the trial. The reason he had not mentioned it earlier was because G’s statement referred to a red car and as the applicant did not have a red car, he thought no more about it. The neighbour gave evidence to the effect that he had met the applicant on the day in question and had a conversation with him. He had watched the applicant drive off in his car and did not notice any young girl.
Prosecuting counsel emphasised in her closing address the applicant’s failure to mention that he had dismissed the complainants and his failure to mention the handyman and the neighbour, relevant to the allegation contained in count 4, during his police interview.
The judge, in his summing up, referred to the fact that the applicant had omitted to mention the visit from the handyman and his conversation with the neighbour on 3 May 2003 during his police interview. He reminded the jury of the applicant’s explanation for the omissions and summarised the evidence of the handyman and the neighbour. He concluded:
“... members of the jury, ... do look at the interview carefully. You are entitled to consider it and the absence of any detail of the handyman in there, or indeed of the neighbour to whom he said he had words and shook hands, or waved, who invited him in to tea. They do not appear in his interview at all.
Of course, the defendant was told, and it is the law, that he needn’t say anything, but he did elect to give a very full explanation of his position with regard to these allegations and they are omitted ... It may be that the conditions in which he was kept all night clouded his memory, his tiredness from not sleeping at all, having been up all day the previous day with pressures and worry on his mind. But there it is, it’s a fact that you are entitled to take into account, and he’s been tested on it, he doesn’t mention these matters in his interview”.
The judge also referred to the fact that the applicant had not mentioned during his police interview that he had dismissed the complainants but had merely said that he had criticised their work. Again, the judge reminded the jury of the applicant’s explanation for his failure to raise this matter and, having done so, concluded:
“That was [the applicant’s] evidence”.
Neither counsel addressed the judge regarding the possible making of a section 34 direction (a direction to the jury regarding the drawing of adverse inferences – see further below) in light of the discrepancies between the statements made by the applicant during his police interview and subsequently at his trial. The judge did not make such a direction.
On 6 April 2004, the applicant was convicted by a jury of two offences of indecent assault, namely counts 1 and 3 on the indictment, by majority verdicts of 10-2. He was acquitted of count 2. The jury were unable to reach agreement on count 4 and the applicant was accordingly discharged. He received financial penalties for each of the two counts for which he was convicted and was ordered to pay prosecution costs.
b. The Court of Appeal proceedings
The applicant applied to the Court of Appeal for leave to appeal, which was refused by the single judge. He was subsequently granted leave to appeal by the full court on three grounds, including that the trial judge had erred in failing to give a direction to the jury under section 34 of the Criminal Justice and Public Order Act 1994, despite drawing attention to the alleged discrepancies between what the applicant said during the police interviews and what he said in evidence at trial. Counsel for the applicant argued that the trial judge’s summing up amounted to an invitation to the jury to draw an adverse inference if they wished without warning them not to draw an adverse inference unless they were satisfied that the appellant could be expected to have advanced his full defence in interview; that the only sensible explanation for his failure to do so was that he had no answer at that time or none that would have stood up to scrutiny; and that the prosecution’s case was so strong as to call for an answer.
Counsel for the prosecution submitted that the evidence which would have been the subject of a section 34 direction went only to count 4, in respect of which the applicant was found not guilty, and disputed that the failure of the judge to give an adverse inference direction could have affected the safety of the applicant’s convictions on counts 1 and 3. In reply, counsel for the applicant argued that an adverse inference in respect of count 4 may have affected the general credibility of the applicant. Furthermore, the trial judge had drawn attention to discrepancies between what the applicant had said in interview about the complainants’ poor work and what he had said in evidence, namely that he had dismissed them, which was relevant to counts 1 and 3.
Before judgment was handed down, a draft was sent to counsel for correction of any obvious errors, in accordance with common practice. In the draft judgment, the Court of Appeal rejected the applicant’s appeal.
On 4 April 2006, in light of the draft judgment, the applicant submitted a draft certified question for the court to consider. The question was in the following terms:
“Where Crown Counsel substantially relies during their closing speech upon the failure of a Defendant to mention facts in police interviews but then subsequently relies upon those facts in their evidence, is there any positive duty to give the full Section 34 direction to a jury and thereby safeguard the rights of the Defendant to a fair trial?
If such a duty does exist, does the failure to mention such facts affect a Defendant’s credibility as a whole or simply the counts upon which those facts were relevant?”
On 6 April 2006, the Court of Appeal issued an amended judgment in substantially the same terms as the draft judgment, with some changes in light of the certified question submitted by the applicant. In its final judgment, the Court of Appeal found that:
“53. We say at once that we can see some force in [counsel for the applicant’s] submission that the judge encouraged the jury to consider the differences between the interview and the evidence at trial, in respect of the handyman and the neighbour. That might well have encouraged them to doubt the appellant’s credibility. However, the first question we must answer is whether there was any duty on the judge to give an adverse inference direction. In respect of the appellant’s failure to mention the handyman and the neighbour, we think that section 34 was potentially engaged in that there was a failure to mention matters later relied on in evidence. In respect of the evidence about the shortcomings of the girls’ work and whether they had been dismissed, we do not think that section 34 was engaged at all. The appellant had not failed to mention something in interview; he had given one account in interview and a different account in evidence. It is important to remember the origin and purpose of section 34. It was introduced at the time when the accused’s right to silence became qualified. If he chose not to answer questions in interview or to mention facts that he would later rely on in his defence, an adverse inference might be drawn subject to the various warnings that the judge had to give. This section was never intended to apply where a defendant gave one explanation in interview and said something different in evidence. That frequently happened in trials before 1994 and there was no duty on the judge to give any particular warning about it. Everyone knew that the change in explanation might cast doubts upon the defendant’s credibility. He would do his best to explain why it had happened but it was a matter for the jury to make of it what they wished. Accordingly, we are quite satisfied that there was no requirement for any direction or warning as to the jury’s approach to the evidence relating to the girls’ dismissal. Indeed, [counsel for the applicant] has not suggested that there was.
54. As we have said, the evidence relating to the handyman and neighbour did potentially engage section 34. In our view, as prosecuting counsel had cross-examined on the failure to mention the handyman or the neighbour in interview and had addressed the jury on those issues, she ought to have raised with the judge the question of whether he would permit the jury to draw an adverse inference. It seems to us that the Crown might well have been justified in seeking a section 34 direction. It appears that the defence probably did not want such a direction. Their case was that the appellant had not had access to his diary; without it he could not remember what had happened on 3rd May. The full blown direction might well have done the defence case more harm than good.
55. If addressed, the judge would have had to make a ruling. If he decided that this was a case in which the jury could properly draw an adverse inference, he would have had to give the full direction. If he decided that this was not a case for an adverse inference, he should have told the jury that they could not do so ... What he ought not to have done was to leave the jury to draw an inference if they chose without giving any warning at all. We think that the words he used had that effect.
56. Accordingly, we conclude that the judge did err in the way in which he summed up the evidence relating to Count 4. Had the appellant been convicted on that count, we would have been concerned about the safety of that conviction. However, he was not. [Counsel for the applicant] submitted that the inadequacy of the direction under count 4 affected the appellant’s credibility so as to render the other convictions unsafe.
57. We do not accept that submission. We have already said that the judge was not under any duty to give a warning about the appellant’s shifting evidence in relation to his claim that he had dismissed both girls. Because of the differences between what he had said in interview and what he said in evidence, his credibility was called into question. It was open to the jury to draw an adverse inference from that inconsistency if they chose to do so. The grounds for doing so were far stronger than they had been in respect of the handyman and the neighbour. It was entirely credible that, without access to his diary, the appellant might have forgotten what he had done on 3rd May and might have forgotten about the handyman and the neighbour. But in respect of the evidence about dismissing the girls, he had no such explanation for the change. The jury would be entitled to conclude that he must always have known whether he dismissed the girls as he claimed in cross-examination or only gave them encouragement to improve, as he claimed in interview. In short, the attack on the appellant’s credibility was far stronger in respect of counts 1 and 3 than it was on count 4. The judge summed up the facts in relation to that point very even-handedly and left the jury to make their minds up. That was a perfectly proper approach. We do not think that the fact that the judge had wrongly permitted the jury to draw an adverse inference in respect of Count 4 on which they did not convict undermines the safety of the convictions on Counts 1 and 3.”
On 11 April 2006, the applicant submitted an amended point of law of general importance in the following terms:
“In a multi-count indictment where an adverse inference direction under Section 34 of the Criminal Justice and Public Order Act 1994 is improperly given on one count does it affect the credibility of the accused and thereby affect the fairness of the trial in respect of the remaining counts?”
On 7 July 2006, the Court of Appeal refused to certify a point of law of general importance and refused leave to appeal.
B. Relevant domestic law and practice
1. 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
(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) 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 ( 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 ( Criminal Appeal Reports 27), Lord Bingham CJ 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 in respect of section 35 of the Criminal Justice and Public Order Act 1994 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 appeal, provides as follows:
“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.”
The applicant complains under Article 6 § 1 of the Convention that he did not have a fair trial as a result of the trial judge’s failure to provide a direction to the jury on the drawing of adverse inferences, where counsel for the prosecution had relied heavily on alleged discrepancies between what the applicant had said in his police interview and what he said during the trial proceedings, and the effect that such a failure had on his credibility in the eyes of the jury.
The applicant alleges that he did not receive a fair trial as guaranteed by Article 6 of the Convention, which provides, insofar as relevant, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
Although not specifically mentioned in Article 6 of the Convention, the Court has consistently reiterated that the right to remain silent during police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure. By providing the accused with protection against improper compulsion by the authorities, these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6 (see, inter alia, John Murray v. the United Kingdom, 8 February 1996, § 45, Reports of Judgments and Decisions 1996 I; Saunders v. the United Kingdom, 17 December 1996, § 68, Reports of Judgments and Decisions 1996 VI; and Allan v. the United Kingdom, no. 48539/99, § 44, ECHR 2002 IX).
The Court recalls that both the right to silence and the privilege against self-incrimination are concerned with ensuring that the prosecution in a criminal case are required to prove the case against the accused without resorting to evidence obtained through means of coercion or oppression in defiance of the will of the accused (Saunders, cited above, §§ 68-69; and Allan, cited above, § 44). As the Court has previously noted, the right to silence is intended to protect the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police (Allan, cited above, § 50). It follows that, in the absence of coercion or oppression, where an accused chooses to cooperate fully with the arresting or investigating authorities and elects to speak and explain his actions or to give his account of events in his own defence, the issue of safeguarding his privilege against self-incrimination and his right to silence does not arise.
In the present case, the applicant, after availing himself of the services of the duty solicitor, chose to respond to questions put to him in the police interview in order to defend himself against the accusations made by the complainants. At no time during the interview on 25 June did he seek to invoke his right to silence and refuse to answer questions. Although he failed to raise certain matters on which he later sought to rely at trial, this was not through an assertion of his right to silence and his privilege against self-incrimination but because, on his own admission, he forgot to raise the matters at the time. In such a case, the Court concludes that the omissions during the police interviews cannot be viewed as having any relevance to the applicant’s right to silence, which has not been invoked. The Court is therefore of the opinion that the applicant’s complaint must be assessed with regard to the general guarantees of fairness contained in Article 6 § 1.
Having regard to the fairness of the applicant’s trial as a whole, and in particular the absence of any detailed direction to the jury on adverse inferences, the Court observes, first, that the matters raised by the applicant which he had not previously mentioned during the police interview pertained to the events contained in count 4 of the indictment only. The Court considers it significant that the jury were unable to reach a finding of guilt on that count and that the applicant was therefore discharged. For the Court, it is implicit in the jury’s failure to reach a verdict on count 4 that some members of the jury, at least, considered the applicant’s version of events to be persuasive, notwithstanding his failure to raise pertinent issues during the police interview. This in itself would be sufficient for the Court to conclude that the applicant’s complaint that his general credibility in the eyes of the jury was affected by the failure of the judge to provide a full adverse inferences direction is without foundation.
Further, and in any event, the directions of the trial judge on the matter of the applicant’s changes to his version of events and his omission of facts relevant to his defence do not disclose any unfairness. As regards the change in his evidence, the Court agrees with the Court of Appeal that such a change clearly gives rise to issues regarding the credibility of the applicant in light of which a jury can, rightly, draw adverse inferences. As regards the applicant’s failure to mention certain relevant facts, the Court notes that the judge reminded the jury of the applicant’s explanation for the omissions in clear terms. The jury were entitled to consider whether the applicant’s explanation was credible on the basis of the evidence before them. In the circumstances, the Court does not consider that there was any need for the trial judge to further limit the jury’s discretion in deciding whether, and to what extent, to draw adverse inferences from this failure.
There is accordingly no appearance of a breach of the fairness guarantees in Article 6 § 1 of the Convention on account of the judge’s direction to the jury. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki