England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 3 March 2009

1. THE VICE PRESIDENT: The issue raised by this appeal against conviction concerns the judge's ruling that it was open to the jury to draw inferences adverse to him from the fact that he did not give evidence. The appellant contends that the judge should have held that the defendant's physical or mental condition was such as to make it undesirable for him to give evidence. The question which had to be answered by the judge derives from section 35(1)(b) of the Criminal Justice and Public Order Act 1994. Section 35 of course provides that it is ordinarily open to the jury to draw such an inference. Paragraph (b) provides an exception. The exception is expressed in this way:

"... (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence."

2. This defendant was charged with the preparation of terrorist acts contrary to section 5(1) of the Terrorism Act 2006. The Crown's case was that he had compiled a set of bomb-making instructions and had gone some but limited way towards assembling the ingredients. He had not on any view yet succeeded, in part because, first, the ingredients which he had collected, although of the right substances, were of poor grade which would not in fact explode, and secondly, he had yet to make or obtain a detonator. The case advanced by him in police interviews and in due course on his behalf at the trial was that he was intending to make not a bomb but some fireworks by way of small business for use at the Eid Festival coming at the end of Ramadan. The offence is made out only if the defendant does what he does with the intention of committing acts of terrorism or assisting somebody else to do so. The issues in the trial were therefore:

(1) was it a bomb or a firework; and

(2) if the former was it with the necessary intention?

3. There was no issue but that the defendant had written the instructions which were found. The instructions were for a chemical mix at least consistent with the intention to make explosives, although they could have been ingredients used simply to burn. The instructions included diagrams of something which it was suggested were plainly electric wires and they contained a reference to the words "metal can". Also present in the instructions was the instruction: "Don't use the bottles in which I put the liquid because my fingerprints are on them." The defendant's case as to that was that he had written it because he was conscious that he had no licence to make fireworks. The instructions also contained the prayer that "Allah will keep you safe and grant you success in your work for the sake of Allah." Three bottles were found contained ingredients and there was also evidence of some other findings relied upon by the Crown as support in the form of what were said to be Jihadist songs. The defendant's contention as to those was that they were akin to rap material and the content was not to be taken as representing the views of anybody who happened to listen to them. There was also found a computer memory stick which had in the past contained videos, including one from the Al Qaeda media website showing an attack on a coalition convoy. That was the broad outline of the case on each side.
4. The defendant indicated, if not from the outset at least from an early stage, that he did not propose to give evidence. In due course Mr Menon on his behalf sought from the judge a ruling that the possibility of adverse inference should not be left to the jury because the question posed by section 35(1)(b) should be answered by saying that it was undesirable for the defendant to give evidence. The course the trial took was that the evidence which bore on that question was given not in a voir dire but in front of the jury because it was going to be material in any event. The evidence consisted of two consultant psychiatrists and a social worker who had dealt with the defendant in prison and had made considerable efforts to gain his trust.
5. The background to the question arising was the defendant's assertion, which was not contradicted, that some years previously in his native country of Syria he had been arrested, it would appear for the possession of anti-government literature, and then tortured both physically and mentally. There was detail of that and it was not a trivial experience at all. Subsequently the defendant had travelled to England where his claim for asylum had been accepted and he had indefinite leave to remain.
6. The judge correctly summarised the evidence going to the section 35(1)(b) question as giving rise to three possible adverse effects upon the defendant were he to give evidence. The first was a risk that the defendant would not do himself justice in the witness box because he might be unable to retain control of himself. The evidence of the psychiatrists included evidence of that risk and of particular incidents which illustrated it, and there had been at least one incident in the course of the police interview on which the defendant relied. Secondly, there was a risk that the defendant might not remember sufficiently parts of his evidence. Thirdly, the defendant had a history of self-harm, not of the most serious kind but distressing, and there was a risk that the stress of giving evidence might give rise to an increase in incidents of such behaviour.
7. As to those matters the judge effectively rejected (1) and (2), although he had of course to, and plainly did, consider the three elements of the case together. As to (1) he said that whilst it was plain that the defendant suffered from post traumatic stress disorder and there was a possibility of loss of self-control, that was something which a jury could perfectly well understand and allow for in the event that it were to happen. As to loss of memory, the judge reminded himself, correctly, that the principal import of the defendant's evidence would be about what he had been doing with the chemicals found in his possession and what he had meant by the instructions that he had written. The defendant is a graduate who had studied chemistry, although his eventual degree was in maths and physics. In the course of the preparation for the trial he had given comprehensive factual instructions upon the scientific issues to the explosives expert instructed on his behalf, as well as giving an account in the course of the police interviews.
8. As to the possibility of self-harm, the judge reminded himself of the unchallenged diagnosis of post traumatic stress disorder. There was a history of self-harm and indeed the judge was satisfied that the defendant had been a self-harmer for some time, probably quite a long time, and including during the six days that the trial had lasted. He concluded, plainly correctly on the evidence, that the risk of the nature of the damage was not a severe one, but he accepted that having to deal with questions from somebody perceived to be hostile might in the short term increase the risk of further such episodes. The judge then added this, which forms the basis of Mr Menon's careful contention that his decision was legally flawed. Having reached the conclusions to which we have already adverted, the judge said:

"... in an ideal world, with no other factors to be considered, one would want to avoid a situation arising where anyone was put under stress to self-harm. But his own health and welfare is not the only issue, in my judgment, which I should take into account in reaching a judgment as to whether it is undesirable for him to give evidence... there are cases where a defendant's evidence is marginal, of marginal importance. Indeed there are some cases where it may be of no importance at all... In those circumstances one can conceive of a situation where one might say it was undesirable for him to give evidence. But I think the area in which he can give evidence is one of the facts I am entitled to take into account in determining whether in the overall scheme of things it is undesirable.

And in this case, whilst there would be an increased risk of self-harm, which I add of itself is not the most serious harm, I think the help he could give is so important that I am not prepared to say that the problems that he has make it undesirable for him to give evidence."

Says Mr Menon on his behalf, that was a misdirection. It is, he submits, irrelevant what the significance or importance of the defendant's evidence in any case might be; indeed he submits that the greater its importance the less desirable it is that a defendant with a relevant mental condition should give evidence.

9. The test posed by section 35(1)(b) requires to be answered according to the physical or mental condition of the accused. Its terms make that clear. It does not however follow that in answering the very broad question whether it appears to the court to be undesirable for the defendant to give evidence that all the circumstances of the case do not fall to be taken into account. If one contemplates a defendant with a marginal mental health condition creating a marginal risk of modest or temporary distress or regression if he were to give evidence, one can see that if the only issue to which his evidence could go was one of very peripheral significance the judge would be entitled to take that into account in concluding that it was undesirable for him to give evidence.
10. In the present case reading the judge's ruling as a whole, it is perfectly clear to us that the judge ruled that the risk of self-harm was not such in his judgment to make the giving of evidence undesirable and he went on to add that it did not become undesirable because any evidence that the defendant might give would be of insignificant relevance. That approach was, we are satisfied, one which the judge was quite entitled to take.
11. We agree with the broad conclusion of Stanley Burnton J (as he then was) in R (on the application of Director of Public Prosecutions) v Kavanagh [2005] EWHC 820 Admin The question posed by section 35 is a wide question for the judgment of the judge. It is plainly not sufficient that the defendant suffers from some (his and our emphasis) physical or mental condition; it must be a mental condition which is such to make it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so. Many, if not most, difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact - in a Crown Court trial by the jury. The purpose of section 35(1)(b) is clearly to enable the judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence. In this case the evidence was by no means all one way, even though the factual background abroad was accepted. The judge had ample material on which to reach the conclusion that he did.
12. Having reached that conclusion, it remained of course for the jury to decide whether in its judgment it was right to draw any adverse inference against the defendant. No one here can know whether the jury did draw such an inference or not. But what is clear is that the judge left the whole history and all the medical evidence to the jury with punctilious care over ten pages of summing-up, as he did the possible contra-indications for which the Crown had argued. In other words the question was properly left to the jury. There is not and could not be any criticism of the terms of the summing-up. The question which matters in this appeal, as Mr Menon has helpfully put it, depends upon whether the judge's original ruling was flawed. It was not, we are satisfied, and in those circumstances the appeal against conviction must be dismissed.
13. MR MENON: My Lord, I have an application under section 33 for the certification of a point of public importance. I think I have some time to do that. It maybe I need to reflect on the judgment.
14. THE VICE PRESIDENT: You certainly cannot do it without submitting a question.
15. MR MENON: I have done a draft of a question but clearly that needs to be considered in the light of my Lord's ruling.
16. THE VICE PRESIDENT: Yes. You can, if you like, make that. You need to submit a question in any event so if you have not got it now.
17. MR MENON: There is a draft I have written but I am not entirely sure--
18. THE VICE PRESIDENT: We will deal with it now if you are satisfied that you have formulated the question.
19. MR MENON: This is the question I formulated: "Is a judge entitled to take into account matters unconnected with a defendant's physical or mental condition when deciding whether or not it was undesirable for him to give evidence pursuant to section 35(1)(b) of the 1994 Act?"
20. THE VICE PRESIDENT: That is a rather wider than the issue in the case. All right. Mental or physical condition when deciding?
21. MR MENON: Whether or not it was undesirable for the defendant to give evidence pursuant to section 35(1)(b).
22. THE VICE PRESIDENT: We will think about that. Do you want to go on to deal with the application against sentence?
23. MR MENON: Yes, please.
(There followed an application for leave against sentence)
24. THE VICE PRESIDENT: The judge passed a sentence of seven years having said that he reduced it from eight years for the mental condition of the appellant consequent upon his Syrian experience - in particular those were experiences likely to mean that imprisonment would bite more severely upon this appellant than might be true of people generally.
25. The defendant was born in 1969 and was just short of 39 when he was sentenced. He had no previous conviction.
26. Mr Menon's admirably constructed submission is that a sentence of eight years is outside the bracket available to the judge. He has drawn our attention, with appropriate diffidence, to three cases. Two at first instance, Khan and Roddis, and one, an Attorney General's reference in this case, Qureshi [2008] EWCA Crim 1054. The facts however of these various cases were all different. Khan was a case of the purchasing of equipment for sending out to insurgents in Afghanistan; Roddis was a case of the acquisition of materials which could have been made into a bomb by a rather inadequate 23-year-old who had subsequently planted a hoax bomb; and Qureshi, whilst a decision of this court, has two things that need to be said about it. The first is that there was no explosive material involved, although the defendant was arrested in the course of embarkation at Heathrow with general military-style equipment with a view to fighting abroad somewhere. Secondly, Qureshi is a case in which this court said no more than that a sentence of six years was a lenient one, although not so lenient that the court felt compelled to intervene.
27. In effect the question is this: If a defendant is doing his best to make a bomb in this country with a view to terrorist acts but has as yet neither a detonator nor the right sort of grade of ingredients and therefore as yet the bomb is not a viable one, is a sentence of eight years outside the range available to the judge? The maximum of course is life imprisonment. None of the cases to which we have been referred purport to lay down any general range, nor on an application for leave to appeal against sentence are we prepared to do so. We confine ourselves to saying that eight years is not either manifestly excessive or outside the range and the application for leave to appeal against sentence must accordingly be refused.
28. Lastly, Mr Menon, we are not disposed to certify any question. On the basis on which we have decided this case no question of law of general public importance arises.