England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		21st February 2001

1. MR JUSTICE PITCHFORD: At 5.30 am on 18th December 1999, two police constables were parked in their patrol car in North Common Road with the junction of Hangar Lane. Opposite, and some distance away, was parked a small red Metro car, occupied by the appellant and his two co-accused. The appellant was the driver. The other two were passengers. The appellant alighted from the vehicle, walked around it, and then returned to the driver's door. The appellant accepts (although the officers did not see) that he had been pouring petrol from a milk bottle into the tank of the car. The officers drove across the junction to the Metro.
2. Police Constable Bradshaw went to speak with the appellant who still had the empty milk bottle in his hand. There appeared to be some movement inside the car. A short time later, Police Constable Bradshaw found, in the footwell, behind the front passenger seat, a carrier bag in which was a milk bottle filled with petrol bunged with toilet paper. It appeared to be a home made petrol bomb. Other officers were called to the scene.
3. Underneath the front passenger seat was discovered a third bottle, half full of petrol. The neck was bunged with a peach coloured tissue. Near the front passenger door, on the pavement, Police Constable Humphries recovered a wad of orange toilet paper which could have been used to bung the milk bottle from which the appellant had poured petrol into the tank of his car. The appellant and his passengers were arrested.
4. In interview the appellant accepted that he was the owner of the car. A friend called Saam, whose full name and address he did not know, had been in possession of the car for one-and-a-half months. The appellant said he had collected it from Saam, the previous evening to drop his friends off. They had gone into London. Then they had gone for a drive and were on their way home. He had picked them up at 8.45 pm the previous night. During the return journey from London they had stopped to visit a friend, Ahmed. The car ran out of petrol. The appellant said that he had looked around and in the back of the car found a milk bottle. He removed the stopper, smelt petrol and emptied the petrol into the tank. He did not see the other two bottles in the car and he denied foreknowledge of any of the devices recovered.
5. The appellant and his companions were charged with an offence of having in their possession unlawfully an explosive substance contrary to section 4(1) of the Explosive Substances Act 1883. The trial took place at the Crown Court held at Middlesex Guildhall before His Honour Judge Fabyan Evans and a jury between Monday 17th July and Monday 24th July 2000. The appellant, who did not give evidence was convicted. His co-accused, who did give evidence, were acquitted.
6. The appellant appeals against his conviction by leave of the Single Judge. Grounds of appeal were settled by counsel who represented a co-accused at the trial. The appeal has been advanced by Mr Thwaites QC, who did not appear below. Prosecuting counsel at trial withdrew from the appeal and the Crown has been represented before us by Mr Moore.
7. The grounds of appeal advanced are that the appellant's representation at trial was flagrantly incompetent. The chief manifestation of the alleged incompetence is said to be defence counsel's insistence that the appellant should not give evidence in his own defence. A failure properly to advise the appellant and to call him to give evidence in his own defence led inevitably, contends Mr Thwaites, to a verdict which is unsafe. The Court has thus been required to investigate the allegation.
8. We have in this appeal received evidence from the appellant himself, his sister, Sheeda Chatroodi, Mr Michael Shaw, counsel first instructed to represent the appellant at his trial, Mr Barry Forward, counsel who appeared for the appellant at his trial, and the appellant's solicitor, Mr Martin Selwyn. We have been provided with a transcript of that evidence, which we propose to summarise in short form.
9. The appellant gave evidence that he had reposed confidence in counsel first instructed. Mr Shaw had advised the appellant to give evidence at his trial. Asked by Mr Thwaites QC whether, during his final conference with Mr Shaw on 26th June 2000 he had expressed any doubt about the prospect of giving evidence in his own defence, the appellant replied and we paraphrase: 'We were discussing it, I expressed no doubt. I wanted to give evidence from the beginning.'
10. There was a late change of counsel. A conference was arranged for 13th July at the offices of Selwyn & Co. He and his mother and sister arrived at about 4.00 pm. They spoke to Mr Selwyn for about 15 minutes, and then waited for up to an hour before Mr Forward arrived. Their meeting lasted 15 to 20 minutes he said. The appellant produced a self-typed witness statement. This was, he told us, the story he was going to tell.
11. His barrister, Mr Forward, advised him not to give evidence. The appellant responded that he would have to, it was his car. He felt disabled when they – meaning Mr Forward and his solicitor - told him not to give evidence. Mr Forward seemed to have made up his mind, just by looking at two pieces of paper.
12. On Monday 17th July, at court, the appellant told us that he repeated to Mr Forward his wish to give evidence. Mr Forward told him he was going to do better than that and arrange for the audio tapes of the appellant's interview to be played. When his turn came to give evidence Mr Forward told the judge that his client was not going to give evidence. During the intervening period Mr Forward had told the appellant that everything was going well. To the appellant's surprise, at the end of the evidence, Mr Forward asked him to enter the witness-box. He gave evidence about a heart irregularity which had required surgery several years ago but not about his defence to the indictment. The appellant, again to paraphrase him, did not know what was happening. He was confused.
13. He was asked in cross-examination by Mr Moore whether there was, during the trial, any discussion between himself and Mr Forward about the prospect of giving evidence. He replied that there was. He had told Mr Forward that his last barrister said he should give evidence. According to the appellant, Mr Forward replied that he knew better. Mr Forward told the appellant that, having read all the papers and listened to the interview on tape, his advice was the same as it had been on 13th July.
14. The appellant agreed, however, that he had accepted the advice of counsel Mr Forward. He said the reason he had agreed with it was because Mr Forward had told him that it would turn out better for him if he did. The appellant claimed that, contrary to the indication given by Mr Forward, the audio tapes of his interview were not played to the jury.
15. Sheeda Chatroodi confirmed at the conference on 13th July that Mr Forward advised her brother not to give evidence. She says she was surprised since she had understood that he intended to give evidence. She said that at the trial there was a lack of communication between the appellant and his legal representatives. At one point the solicitor's representative approached unsuccessfully a doctor giving character evidence on behalf of the co-accused to enquire whether he would be prepared to examine the appellant with a view to giving evidence that he had in the past undergone heart surgery. The doctor refused. On the Thursday of the first week of trial, her brother was called into the witness-box, she said, with no prior explanation.
16. Mr Michael Shaw was instructed well in advance at trial. He received his brief to represent the appellant on 11th February 2000. His first conference took place on 14th February 2000, attended also by the appellant's mother and sister. The second conference took place on 6th April at the offices of his instructing solicitor. Mr Shaw kept notes of both conferences on his computer and we have been provided with hard copies.
17. On 11th April 2000 Mr Shaw prepared a written advice. In it he reviewed his instructions received directly from the appellant. His case was that he was in possession of the milk bottle from which he was pouring petrol into the tank of his car lawfully. The appellant denied possession of the second two devices found in the car. By necessary implication, all three devices must have been left in the vehicle either by a previous occupant of the vehicle or by one of his co-defendants. It was no part of the appellant's case, however, that either of his co-accused had placed these articles into the car. They had been in the appellant's company all that night.
18. Mr Shaw noted that the appellant had not told the police the whole truth about the origin of the vehicle, nor his knowledge of the full name and address of the man, Saam Forouhar, from whom he had collected the vehicle that evening. He had not told the police of a man called Derek, who had borrowed the car from Saam, before returning it to him at 5.30 pm, the evening before the car was stopped by the police. Mr Shaw advised that a further proof of evidence be taken from the appellant, dealing with five specific issues.
19. On 26th June 2000 Mr Shaw's third and last conference with the appellant took place. Mr Shaw's handwritten notes of that conference are no longer available. He recalls that his client was getting cold feet about giving evidence. He adopted his usual practice of taking the client through the pros and cons of giving evidence in his own defence. There were difficulties. He had given a different version in interview from that which he proposed to give to the jury in evidence. He was therefore open to searching cross-examination. It was, on the other hand, possible and, in Mr Shaw's view, preferable to agree the police evidence as to events at the scene. Mr Shaw would have preferred to avoid issues between the evidence of the appellant and the evidence of the police officers. It was a fine balance but, on the whole, Mr Shaw thought that the appellant should give evidence to deal with the circumstances in which the devices could have been left in the car without the appellant's knowledge.
20. The appellant was vacillating. Mr Shaw told him that he would keep the matter under review during the trial. On 10th July Mr Shaw discovered that, by reason of a clash of commitments, he would be unable to attend the trial. Mr Barry Forward agreed to accept instructions by way of a return. Mr Shaw alerted him to the difficulties which might arise if the appellant gave evidence. Mr Shaw was concerned that the appellant would not make a particularly good witness. That was Mr Shaw's last involvement with the case before the appellant's present appeal.
21. We found Mr Shaw to be a compelling and reliable witness, whose care of his work was to a high standard.
22. Mr Forward told us that his advice to the appellant on 13th July was not as clear cut as that suggested by the appellant. On that day, Mr Forward received a letter, probably by way of facsimile, from Mr Selwyn, the appellant's solicitor which reads as follows:

"As you know Michael Shaw was dealing with this case but unfortunately is not able to complete it and I gather that you have agreed to take over the case which is for hearing at the Middlesex Guildhall Crown Court on Monday 17th July 2000. Michael should have given you all the papers that he has in the matter which should give you all the background necessary. I have taken a further statement from Mr Chatroodi in which he changes his story yet again but I thought you should see it and I have asked Mr Chatroodi to let me have his observations on the statement so that we can discuss this at the conference at my office at 4.00 pm today."

23. Mr Forward had not in fact received all the papers and it is not possible now to recall everything he read before that first conference. He was late for the conference because he had been detained at court. During it, a conference which he noted lasted one-and-a-half hours, Mr Forward listened to exchanges between Mr Martin Selwyn and the appellant. He was not himself fully conversant with the facts of the case but he was consulted by Mr Selwyn as the conversation continued. Having listened, Mr Forward says that he expressed the view that the appellant had little to gain by giving evidence and that at present he would not advise him to do so. He says there was a palpable feeling of relief amongst those others at the meeting. Mr Forward agreed that at trial the appellant wanted reassurance about the decision not to give evidence, since he had learned that his co-accused intended to give evidence themselves. Mr Forward confirmed that the decision remained open and the final decision was a matter for the appellant.
24. The trial was going better than expected because Mr Forward had succeeded in securing removal of some passages in the interview from transcripts placed before the jury. Mr Forward was quite explicit to us that his opinion and his advice to the appellant did not change throughout the trial. He agreed that conferences at court with a client were held not in a designated interview room but in a foyer, outside court 3 at Middlesex Crown Court. That was a common meeting place between counsel and their clients. Contrary to Miss Sheeda Chatroodi's assertion, Mr Forward maintained that there were many conversations between himself and his client during which she was always an active participant. We refer to a short passage from the evidence of Mr Forward on this topic:

"His sister was always present and took a very active and lively part in those conversations because she wanted to understand everything that was going on. Things were explained over and over again, so they were quite clear. About the tape recording, once we decided that he would give evidence, I said: 'Well it would be possible for the jury to hear your voice if we were to play the tape.' That became impossible because there were so many edits to the tape that it was never feasible. Again that was fully explained to him, so was the matter of the voire dire."

25. Both Mr Shaw and Mr Forward recall seeing three proofs of evidence from the appellant apart from the self typed instructions delivered on 13th July. During a vigorous cross-examination by Mr Thwaites QC, Mr Forward explained how his original advice not to give evidence arose. At the start it was clear that the issue whether the appellant should give evidence had been considered in the past. The appellant's solicitor, Mr Martin Selwyn, regarded the situation as unsatisfactory because there were inconsistencies in the different accounts which the appellant had given to his solicitor from time to time. The appellant appeared to be under the impression that solicitor and counsel would prepare or select a statement for the purpose of trial.
26. As the conference was coming to an end, the appellant mentioned his heart condition. Mr Forward thought that it might be useful to obtain medical evidence of that condition, for the purposes of supporting a decision not to give evidence. Later, during the course of the trial, Mr Forward did see a medical report upon the appellant, prepared in 1986, not of course dealing with his ability to give evidence at the trial. Mr Forward denied that he had placed pressure on the appellant not to give evidence. He justified his advice by pointing out the difficulties of cross-examination, already considered by Mr Shaw. Secondly, and in Mr Forward's mind conclusive of his advice, the appellant had available, to give evidence on his behalf, Saam Forouhar, a man of good character, who would by all appearances be a satisfactory witness to the movements of the Metro motor car before it came into the possession of the appellant. He would be able to say that on 17th December 1999, he had lent the vehicle to a man called Derek, who kept it for most of the day, and then returned it shortly before the appellant called to collect it.
27. Mr Forward was taxed in cross examination on the reason why he had not obtained written instructions of a voluntary acceptance by his client of the advice he had tendered. He replied that he usually endorsed his brief, only if the client insisted on acting against advice. He did not consider that written instructions were necessary since his advice had been accepted in the presence of his solicitor and nothing had changed since to re-open the issue.
28. We shall pause in our summary of the evidence to explain the circumstances in which Mr Forward's conduct of a voire dire, at the conclusion of the second defendant's evidence, came to be criticised.
29. Section 35(1)(b) of the Criminal Justice Act 1994 provides:

"At the trial of any person for an offence subsections (2) and (3) below apply unless it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence."

30. Subject to that condition the trial judge was required by subsection (2), at the close of the evidence for the prosecution, to ascertain that the accused person was aware that unless he gave evidence in his own defence, the jury might draw inferences against his interest. By subsection (3) the jury were entitled to draw such inferences "as appear proper from the failure of the accused to give evidence."
31. At the close of the prosecution case, His Honour Judge Evans made the enquiry of Mr Forward whether the appellant had been advised of the consequences of failing to give evidence pursuant to the Practice Direction issued by Lord Taylor CJ on 10th April 1995. Mr Forward replied that he had and the warning was given. He indicated that his client would not be giving evidence.
32. Evidence was called in the course of the appellant's case. Mr Forward made the decision, following the cases for his co-accused, to make application to the trial judge with a hope of a ruling that the appellant's physical condition was such that it had been undesirable for him to give evidence; accordingly, that the provisions of section 35(3) did not bite. If he was correct, he could prevent a direction to the jury in the terms of subsection (3).
33. Mr Forward called the appellant to give evidence in that application and the result was almost inevitable. It did not escape the attention of the learned judge that, while maintaining a submission that the appellant was not fit to give evidence, the appellant was in fact giving evidence to prove it. This the learned judge rightly called a paradox. He rejected the application, and the section 35 direction was given to the jury in the course of his summing-up.
34. Having exposed his client to the witness-box for the purpose of supporting the application, Mr Forward then made no application to re-open the defence case and call him to give evidence in the trial. Asked, in somewhat mocking terms by Mr Thwaites, how he came to make these decisions, Mr Forward responded that he agreed that there was justifiable criticism of the procedure he had adopted but there remained no advantage to the appellant giving evidence in the trial at large. He had merely hoped to remove the remaining risk of the direction to the jury to the effect that they could draw adverse inferences from the appellant's silence at trial.
35. Finally, Mr Thwaites raised the issue of a character witness called on the appellant's behalf. Mr Forward called the witness knowing that the appellant had a previous conviction, thus running the risk that his previous conviction could be proved before the jury. In fact it was not. Asked how and why he could have taken such a course, Mr Forward said he had decided to call the character witness to prove that the appellant had no terrorist sympathies or the like which otherwise might have explained his possession of explosive devices.
36. Mr Moore called Mr Martin Selwyn to give evidence. Mr Selwyn explained that he was a sole practitioner specialising in commercial and personal injury work. He had been instructed by the appellant's father in various non criminal matters. He agreed at the request of Mr Chatroodi senior to represent his son. He felt competent to do so since the issues were relevantly straightforward and he intended to rely on the judgment of counsel. He became concerned that the changes in account with which the appellant was presenting him. That concern came to a head on 13th July 2000, at a meeting between himself, the appellant and his mother, before the arrival of Mr Ford. It was, he thought, the fourth time that the appellant had changed his story and, as Mr Selwyn said he "really got quite angry about this". He told the appellant that he wanted to be told the truth or at least to have an account from the appellant which was consistent. He formed the view that the appellant expected him to select a story for him. He anticipated that Mr Forward might advise him not to give evidence. Mr Selwyn's attendance note concludes "but at the end of the day it was up to him. Things calmed down a bit and he produced a statement which he said he had prepared himself which accorded to Hatoum's statement." Hatoum was a co-accused.
37. Mr Selwyn prepared a separate attendance note for that part of the meeting in which Mr Forward was involved. He too has noted that the time engaged was one-and-a-half hours. Mr Selwyn recorded that his client accepted Mr Forward's advice, that it would be preferable if he did not give evidence since, to do so might have an adverse effect upon his case. The witness Saam would be present at trial as also would be a character witness. Mr Selwyn confirmed that at the end of the meeting Mr Forward requested any recent medical report which was available concerning the appellant's heart condition.
38. Mr Selwyn was asked why he did not attend trial personally. He replied that he was due to take his annual holiday on Wednesday 19th July. The client knew well in advance of his intention and did not demur. In his place Mr Selwyn arranged for his son (a final year law student) to sit behind counsel and assist. He was competent to do so.
39. As long ago as 1993 Watkins LJ, giving the judgment of this Court in R v Bevan 98 Cr App R 354, said that it should be the invariable practice of counsel to record any decision of a defendant not to give evidence, signed by the defendant himself, indicating, clearly, that the decision had been made of his own free will, and that in reaching that decision has borne in mind advice tendered by counsel. We are bound to express some dismay at the knowledge that comparatively senior counsel, advising a client not to give evidence, notwithstanding the provisions of section 35 of the Criminal Justice Act and Public Order Act 1994, was unaware of this obligation.
40. While we would not expect counsel to record every detail of every conference between himself and his client, we would expect some written record of a conversation relevant to the important question whether it was in the defendant's interests to give evidence at his trial. This Court suffers the disadvantage, in the absence of such a record, of being required to evaluate the recollections of counsel, on the one hand, and the appellant on the other. The only written record which survives is Mr Selwyn's attendance note of 13th July, which precedes the commencement of trial by four days.
41. On the morning of the first day of trial, Mr Forward agreed to accompany his client and solicitor's representative to meet with his witness, Saam Forouhar. His presence, Mr Forward told us, was requested by the client, and he merely observed the witness being taken through his proof.
42. We are concerned that counsel should have thought that this was a request which he could, with propriety, accept. On the face of it, Mr Forward permitted himself to become party to the rehearsal of a witness in relation to evidence which that witness was likely to give at the trial. Mr Forward does not appear to have appreciated, either, the significance of making his client a hostage to fortune in the voire dire, nor to have considered or considered adequately that the basis for his advice to the client had nothing do with any medical condition, but was motivated solely by a tactical approach to the trial.
43. These features of Mr Forward's conduct of the trial, on behalf of the appellant, have caused us concern. However, we make it plain that, while Mr Forward's judgment may have been at fault, rigorous cross-examination on these features by Mr Thwaites QC did not reveal any calculated breach of propriety, certainly none which effected the fairness of the appellant's trial. Secondly, whatever reservations we have expressed about some aspects of Mr Forward's judgment, we found him to be an honest witness.
44. This appeal concerns the quality of advice given, and the issue whether that advice was accepted on its merits. It is important that we identify what has been our approach to the ultimate issue before us which is whether this conviction is safe. We have derived assistance from a decision of this Court in the case of R v Clinton (1993) 97 Cr App R 320. Delivering the judgment of the Court, Rougier J reviewed the authorities applying to cases in which the conduct of trial counsel was criticised. At page 320 he said this:

"The Court was rightly concerned to emphasise that where counsel had made decisions in good faith after proper consideration of the competing arguments, and, where appropriate after due discussion with his client, such decisions could not possibly be said to render a subsequent verdict unsafe or unsatisfactory. Particularly does this apply to the decision as to whether or not to call the defendant. Conversely and, we stress, exceptionally, where it is shown that the decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, it may be open to an appellate Court to set aside the verdict by reason of the terms of section 2(1)(a) of the Act. It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to assess its effect on the trial and the verdict according to the terms of the subsection."

45. That guidance was applied by the Court this Scollan and Smith [1999] Crim LR 566, decided since the amendment to section 2(1)(a) of the Criminal Appeal Act 1968. We read from the headnote of the Criminal Law Review report synopsis for brevity's sake:

"...despite the change of wording in section 2(1) of the Criminal Appeal Act 1968 due to the amendment made by the Criminal Appeal Act 1995, the principle that it was open to an appellate court to set aside a verdict where it has been shown that counsel had taken a decision either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way. The proper approach to be adopted in such circumstances was to seek to assess the effect of counsel's alleged ineptitude on the trial and the verdict."

46. We are satisfied that before Mr Forward accepted the return of Mr Shaw's brief, the appellant was having second thoughts about the wisdom of giving evidence. Second, we accept the evidence of Mr Shaw that, in the particular circumstances of this case, the issue how counsel should advise the client was finally balanced. Third, we conclude that advice to the appellant not to give evidence could not be described as incompetent. On the contrary, it was advice well within the acceptable exercise of counsel's judgment, given the exigencies of the particular client and the facts of the case with which counsel was dealing.
47. Of particular relevance were the following factors:

1. The appellant was an unreliable historian;

2. The appellant had demonstrated a willingness to change his evidence in contradiction of his interview with the police to accord with a version which might be given by a co-accused, and in a way which would involve an unnecessary conflict with the evidence of police;

3. The appellant gave the appearance of being an excitable witness who was liable to be trapped in cross-examination, particularly on inconsistencies between his evidence and his interview;

4. The appellant's evidence as to the circumstances in which some other person may have deposited the explosive devices in his car, was of limited value, since he had collected it from his friend Saam only hours before. It was Saam who could provide the missing chain of events; 5. However, the trial judge was bound to give a direction to the jury of their ability to draw an adverse inference pursuant to section 35 of the Criminal Justice Act and Public Order Act 1994.

48. The appellant had denied full knowledge of the devices during interview and the jury would hear evidence of the previous movement of the vehicle from two witnesses of good character.
49. We can, in the light of these considerations, contemplate counsel forming his judgment on either side of the balance and with different degrees of enthusiasm. However, by no stretch of the imagination, could we characterise the advice given as inappropriate or inept. Provided that the appellant was fully appraised of the reasons for the advice and the risks attendant upon following it, no unfairness could result, if he chose to accept it. The appellant told us that he did accept it.
50. Finally, therefore, we consider the issue whether it may be that the appellant accepted advice without a full understanding of the possible consequences. Since the appellant accepts that he was fully advised by Mr Shaw, who had thought that he ought to give evidence, we conclude that he knew full well of the risk of an adverse inference if he did not. We are satisfied, having considered the evidence of Mr Shaw, and the evidence of Mr Forward, supported by Mr Selwyn and his contemporaneous note of 13th July, that the appellant appreciated also the possible advantage of him of avoiding exposure to cross-examination upon inconsistencies. We reject his evidence that he was in a state of confusion and that his own will was overborne. We accept the evidence of Mr Forward that, while his advice was given at trial in forthright terms, he made it clear to the appellant that it was his life and he must make the decision.
51. Mr Thwaites QC submits that specific review of the decision should have taken place once it was known that the tapes could not be played. We accept Mr Forward's evidence that it was explained and the ultimate decision not to give evidence was not affected.
52. We have considered the evidence which the appellant gave in the voire dire, with a view to reaching a conclusion upon the appellant's awareness of the strategy being adopted. The appellant told this Court that he did not understand why he was being called to give evidence, and was not consulted about it in advance. We note, however, Mr Forward's first question in examination in-chief was: "What we are interested in Mr Chatroodi is your physical condition. Can you tell us what happened to you when you were much younger?" The appellant proceeded to give an account of his physical condition which discloses no confusion in the appellant's mind as to why he was being asked these questions. Without being asked leading questions, he informed the learned judge of the effect of stress upon him. He agreed, wrongly, as it turns out, that he suffered heart pain. He volunteered to remove his shirt in order to show the trial judge his scar. He described the possible physical effect upon him of giving evidence before the jury.
53. In cross-examination by prosecuting counsel, the appellant demonstrated an awareness of the issue the learned judge was being asked to resolve. We are satisfied that, while the appellant should not have been put in the position of giving evidence in the circumstances we have described, he was complicit with the strategy. We accept that he wished to be reassured during trial, that the advice tendered by Mr Forward had not changed in the light of the decision of his co-accused to give evidence, and that he was in fact reassured by confirmation.
54. We conclude that no occasion arose for the appellant to reconsider his decision, not to give evidence following the judge's ruling because, it was at all times recognised by him that the decision was tactical and had nothing to do with his medical condition.
55. While the appellant's criticism of counsel at trial has been wide ranging, we are concerned with a narrow issue, namely whether incompetence led to unfairness affecting the safety of the verdict. While some of the criticisms of counsel's judgment at trial had substance, we cannot and do not conclude that, upon the central issue, he was incompetent. The appellant, with knowledge of the advantages and disadvantages of not giving evidence, accepted the advice given. In the result no unfairness arose from the late application on the voire dire since the jury was not present and did not hear that the appellant had given evidence before the judge, or that defence counsel had made his application. The failure of the application returned the appellant to the same position, which he had accepted and approved before the learned judge addressed counsel in accordance with the Practice Direction.
56. For these reasons we do not consider that the safety of the jury's verdict is in doubt and the appeal is dismissed.