England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 February 2010

Lord Justice Maurice Kay :

1. On 9 December 2008 in the Crown Court at Birmingham Adrian Joseph Barry (the appellant) was convicted of murder. He now appeals against conviction by leave of the single Judge.
2. The central facts giving rise to the conviction were not in dispute. Dawn Whitehouse (the deceased) had been disabled and confined to a wheelchair since 1999 as a result of a road traffic accident and subsequent medical complications. She had become a binge drinker. The appellant and the deceased had been in a relationship since 2004. It had been interrupted by, amongst other things, the absence of the appellant in prison. On 13 March 2008 the appellant and the deceased spent most of the day together. They had been drinking and subsequent calculations showed that by the end of the day they were each about four times over the legal limit for driving. In the evening they were present together in the flat of Colin Bird at 161a Trittiford Road. Soon after 10pm the appellant left the flat to buy a bottle of whisky at the request of the deceased. On his return an argument developed between them with the appellant accusing the deceased of using him to fetch and carry for her. The argument escalated and was aggravated by references to a relationship the deceased may have had whilst the appellant had been in prison. The other party to the relationship was said to be Jeffrey Bird, the brother of Colin Bird. At about midnight the appellant went to the kitchen, took a knife from a drawer and returned to the living room where he stabbed the deceased through the neck. The knife went downwards into her chest cavity, severing the aorta. She died as a result of the single stab wound. There was evidence that the blade of the knife had contacted the skin of her neck on two or three further occasions, the marks being consistent with the blade being drawn across the skin rather than with a stabbing action. There were further marks on her neck which were consistent with the application of pressure by fingers, although these had not contributed to her death.
3. At the time, and probably for some considerable length of time before that, the appellant was suffering from Alcohol Dependency Syndrome (ADS). When interviewed following his arrest, the appellant admitted that he had killed the deceased but said that he had no recollection of the stabbing. At trial, although the judge dutifully left provocation to the jury, it was common ground that the real issue was one of diminished responsibility. In the course of the prosecution case, Dr John Croft, a consultant forensic psychiatrist, gave evidence. He was in no doubt that, at the material time, the appellant was suffering from ADS, an abnormality of mind (induced by disease) within the meaning of Part 2 of the Homicide Act 1957. The question was whether, at the time of the killing, that abnormality of mind had substantially diminished the mental responsibility of the appellant for the killing. Dr Croft expressed no opinion on that. It was a matter for the jury, with the burden on the defence to prove substantial diminution on a balance of probabilities. The appellant did not give evidence at his trial. Although his legal representatives had a psychiatric report from another consultant forensic psychiatrist, they did not call him. His report added nothing to the evidence of Dr Croft.
4. This appeal is built upon a single point. At the end of the prosecution case, Mr Christopher Millington QC submitted that, in the event of the appellant electing not to give evidence, it would be inappropriate for the judge to direct the jury that, pursuant to section 35 of the Criminal Justice Public Order Act 1944, it might be permissible for the jury to draw adverse inferences from the failure to give evidence in the circumstances of this case. The judge rejected Mr Millington's submission and later directed the jury by reference to section 35. Before referring to his ruling, it is necessary to set out a little more of the evidence.
5. Mrs Ilene Teasdale, the mother of the deceased, gave evidence about the relationship between the appellant and the deceased. It included an account of past domestic violence and a reference to one occasion, at least nine months before the killing, and prior to the appellant's recent sentence of imprisonment, when he had said to the deceased in the course of an argument "If you ever fucking leave me again I will fucking slit your throat". As regards the appellant's drinking she said that she knew him to be a drinker but she did not consider him to be constantly drunk. In her view, some of the occasions of domestic violence had been perpetrated by him when he was not drunk. Indeed, she referred to only one instance when he had been extremely drunk.
6. Colin Bird was a witness of potential significance. The killing had taken place in his premises and in his presence. He has health and disability problems, the result of a stroke. His evidence in chief took the form of a video interview. In a brief cross-examination he conceded that his recollection was poor. Indeed, the video interview was somewhat muddled and lacking in clarity. However, it included an account of the events of the evening of 13 March. He described the appellant becoming argumentative when the deceased asked him to go to the shop to purchase whisky. He described the appellant slapping the deceased across the face in the context of reference to her relationship with Jeffrey Bird whilst the appellant had been in prison. He further described the escalation of the argument in which the deceased was trying to tell the appellant that their relationship was at an end but he would not accept that. At one point she said that she was going to spit on him. He said that if she did he would stab her. Soon after that he went to the kitchen. The witness heard him searching through the cutlery. The appellant returned carrying a bread knife. He said to the deceased "I'll stab you". He then did so before placing the knife in a bowl. The appellant tried to dissuade the witness from calling an ambulance although he did not physically prevent him from doing so.
7. The witness statement of a paramedic was read to the jury. She described her attendance at the scene. In her view the appellant was pretending to be unconscious when she arrived.
8. There was little, if any, challenge to the evidence of what had happened on the night in question.
9. Dr Croft gave an account of the appellant's history of drinking. The appellant is now aged 38. He has been a drinker since his early teens. By his early twenties he was absenting himself from work as a result of hangovers. The problem intensified in his mid-twenties. He referred to alcohol-induced amnesia and withdrawal symptoms. He had approached Alcoholics Anonymous but only ever attended two sessions when he was respectively 28 and 34. His drinking had increased greatly by his mid-thirties. He reached the point where he was attempting to hide his consumption. There was a period when he resorted to illicit drugs, particularly heroin, as a result of which his alcohol consumption decreased for a time. However, he gave up heroin in 2007. He had not used heroin or cocaine since his release from prison in January 2008. Dr Croft considered that his use of illicit drugs could be excluded from the analysis. The appellant had been admitted to hospital in 2001, 2004 and 2005 to treat difficulties relating to alcohol misuse. In conversation, the appellant had admitted to past incidents of violence towards the deceased but limited to slapping. He had been very angry upon learning that the deceased had had a one night stand with Jeffrey Bird whilst the appellant had been in prison. This had led to a number of arguments, especially when the appellant and the deceased had been drunk. In interview, the appellant had appeared normal with no evidence of hallucinations or delusions. He was in the intellectually normal range. He had spoken of low mood but there was no diagnosis of clinical depression.
10. Dr Croft concluded that the appellant was fit to plead. He diagnosed ADS. The appellant was now abstinent as a result of his remand in custody. Dr Croft described the features of the appellant's condition as including a strong compulsion to drink alcohol, difficulty in controlling his use of alcohol, physiological withdrawal symptoms including disturbed sleep, sweating and shaking, tolerance to the effects of alcohol leading to increased consumption and continued consumption despite clear evidence of harmful effects. He described the withdrawal symptoms as being significant but not the most severe. Dr Croft was of the view that the ADS constituted an abnormality of mind. In addition, the appellant suffered from a dissocial personality disorder which did not amount to an abnormality of mind. It manifested itself in antisocial behaviour, a callous unconcern for the feelings of others, a gross and persistent attitude of irresponsibility, a disregard for social norms, rules and obligations, a low tolerance to frustration, a low threshold to the discharge of aggression, an incapacity to experience guilt or profit from experience including punishment and an incapacity to maintain lasting relationships.
11. Dr Croft attached no significance to the possibility that the appellant was pretending to be unconscious when the paramedics arrived. As to the appellant's inability to recall the events of 13 March, Dr Croft said that there were three possible causes: post-traumatic stress disorder which could cause amnesia, excess alcohol consumption leading to amnesia or choosing not to remember because the appellant did not want to remember. All three explanations could apply to an individual either with or without ADS. Dr Croft was not able to say whether the appellant's drinking had been voluntary or involuntary on the night in question. His ability to control his drinking was impaired by his alcoholism and he undoubtedly suffered from a loss of will. He fell somewhere in the middle between an alcoholic who simply found it very difficult not to drink and one who developed really serious withdrawal symptoms as soon as he stopped drinking and therefore had to drink. MRI scans disclosed no evidence of brain damage as a result of alcoholism. In cross examination, Dr Croft agreed that the appellant had manifested withdrawal symptoms on reception into prison and had had to be treated for them for up to six weeks. He also agreed that people suffering from ADS would feel anger more easily and more intensely than normal people.

Criminal Justice and Public Order Act 1994, section 35

12. Section 35 provides:

"(1) At the trial of any person … for an offence, subsections (2) and (3) below apply unless –

(a) the accused's guilt is not in issue; or

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

But subsection (2) below does not apply if, at the conclusion of the case for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.

(2) Where this subsection applies, the court shall, at the conclusion of the case for the prosecution, satisfy itself (in the case of proceedings on indictment … , in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence on his refusal, without good cause, to answer any question."

The ruling at Trial

13. The judge observed that the central issue for the jury was that of substantial impairment of the appellant's responsibility for his act, as to which the burden lay on the defence. He added:

"… the sort of question that the jury will be looking at in order to determine what the answer to that issue is will revolve around a number of factors, but in particular they will revolve around the extent to which the defendant's drinking was voluntary or involuntary or, to put it another way, the amount of control he may have had over his drinking at the time at which he did the killing and the extent to which he was affected in what he did by the jealousy, which has been raised by him in interview, that he had of the victim with whom he was arguing about some affair which he either believed or she had told him she had had at some point before they had got back together again …

These things … are very much at the heart of what the jury will have to determine."

14. The judge then referred to the pre-1994 Act case of Bathurst (1968) 52 Cr App R 251 in which Lord Parker CJ said (at pages 255-256):

"… this Court feels strongly that while it may be there are cases in which a defendant ought to go into the witness box, albeit his plea is one of diminished responsibility, yet the cases when comment on his failure to do so can properly be made must be very rare … almost in every case counsel defending a prisoner raising this defence would prevent him, if he could, from going into the witness box. He may well be suffering from delusions, he may be on the border of insanity; it would be the last thing that any counsel would do to allow his client to go into the witness box, and in those cases at any rate any comment on his failure to do so would be clearly unfair.

Having said that, the court is prepared to concede that there may be cases where a defendant ought to go into the witness box, and where his failure to do so may be commented on, albeit the plea is one of diminished responsibility."

15. Lord Parker then gave as an example a point "which could only be spoken to by the defendant as opposed to some relative, friends or the like" and considered that "in such a case, probably a very rare case, some comment might be justified".
16. Of course, before the 1994 Act the Prosecution could not comment upon or invite an inference from the omission of a defendant to give evidence. The only issue was one of permissible judicial comment. However, in the present case the judge was referred to Archbold which has continued to include this passage in relation to diminished responsibility (see 2010 edition, paragraph 19-75):

"It seems probable that, save in those few cases where the defendant might have expected to give evidence (ie where limited comment would previously have been appropriate) judges will direct juries that it would be improper to draw any inference adverse to the defendant from his failure to give evidence."

17. The judge did not criticise this passage. He referred to another pre-1994 Act case – Bradshaw (1986) 82 Cr App R 79 – in which Lord Lane said (at page: 83):

"In proper cases, for example, where as here the defendant has completely recovered from any abnormality of mind by the time of trial, there is no reason why the judge should not comment upon the fact that the defendant could have provided the necessary evidence had he wished to do so, the burden of proof being upon him."

18. Neither Archbold nor leading counsel in the present case referred the judge or this Court to the survival of the Bathurst approach in a post-1994 diminished responsibility case. In ruling against the defence submission, the judge said:

"… [the defendant] has now been in prison and has not been drinking. The evidence from the psychiatrist is that his state now is that, certainly dealing with him in interview, he appeared to be completely normal and, indeed, it is not contended or suggested that he would be under any disadvantage, if he chose to do so, to give evidence about this case.

It seems to me that, in spite of what is said in Archbold about this, where the burden of proof, albeit on the balance of probabilities, is upon the defendant then … if there are matters about which he could give evidence which are relevant to the central issue for the jury, as I find there are here, then I cannot think of any good reason why some exception should be made for the defendant in terms of the proper direction to be given to the jury about his failure to give evidence in that way."

19. The judge therefore ruled that a direction pursuant to section 35 was appropriate, albeit that it would need to be "careful".

Discussion

20. Although the survival of the Bathurst approach appears to have played a prominent part in Mr Millington's submissions at trial and in his written submissions on this appeal, he began his oral submission to us by downplaying it. He said that he was relying not on principle but on the unusual facts and circumstances of this case. In our judgment, that was a wise starting point. We consider that the passage in the current edition of Archbold, to which we have referred, does not accurately state the position as it now is under section 35. It is clear from the judgment in Bathurst that the Lord Chief Justice had in mind diminished responsibility in a case where the defendant, at trial, was suffering from delusions or was "on the border of insanity". Such situations are now addressed specifically by section 35(1)(b). If the judge considers that the physical or mental condition of the defendant makes it undesirable for him to give evidence, section 35(3) does not apply.
21. Where, on the other hand, the defendant is not suffering from such a condition at trial, section 35(3) permits the drawing of "such inferences as appear proper". The Act does not disapply the provision in diminished responsibility cases. This does not mean that, whenever the exceptions provided by section 35(1) are absent, it is open season for the drawing of inferences. In Cowan [1996] 1 Cr App R 1, Lord Taylor CJ said (at page 6):

"We accept that apart from the mandatory exceptions in section 35(1), it will be open to a court to decline to draw an adverse inference from silence at trial and for a judge to direct or advise a jury against drawing such inference if the circumstances of the case justify such a course. But in our view there would need either to be some evidential basis for doing so or some exceptional factors in the case making that a fair course to take. It must be stressed that the inferences permitted by the section are only such 'as appear proper'. The use of that phrase was no doubt intended to leave a broad discretion to a trial judge to decide in all the circumstances whether any proper inference is capable of being drawn by the jury. If not, he should tell them so, otherwise it is for the jury to decide whether in fact an inference should be properly drawn."

22. In the course of his submissions, Mr Millington sought to rely on that passage, contending for both "some evidential basis" and "exceptional factors". He made the following points: (1) the evidence of Dr Croft about ADS and abnormality of mind was undisputed; (2) Dr Croft also agreed that, before his reception into custody, the appellant's ability to control his drinking was impaired by his alcoholism; (3) the appellant had consumed a large amount of alcohol at the time of the killing; (4) he suffered withdrawal symptoms whilst in custody; (5) there was very little dispute about the facts; and (6) the appellant's loss of memory about the killing was not shown to be contrived. In short, the jury had a complete picture and any evidence given by the appellant to the jury would have been unlikely to have been significant.
23. As against this, Mr Mark Wall QC submitted that, even if the appellant had no memory of the stabbing (a hypothesis which the prosecution would have sought to probe if the appellant had given evidence), he could have given relevant evidence about everything up until the final denouement – for example, about (1) the history of his relationship with the deceased; (2) his drinking habits (about which Mrs Teasdale had been challenged); (3) the extent of the impairment of his ability to resist alcohol; (4) how events developed on the night of the stabbing up to the point of his loss of memory; and (5) his emotions (he had admitted in interview to "a bit" of jealousy).
24. We apprehend that these were essentially the points made by Mr Wall to the judge and which informed his ruling that there were "matters about which [the appellant] could give evidence which are relevant to the central issue for the jury", viz the degree of impairment of his responsibility for the killing. In our judgment, that ruling was justified in the circumstances of the case. We accept that, whether in the context of diminished responsibility or far removed from it, there are cases in which a judge may conclude that there is really no scope for the drawing of an inference from silence and that, in the words of the Lord Chief Justice in Cowan, he should "direct or advise the jury against drawing such inference". For example, the defence may not relate to the defendant's conduct or state of mind at all but may concern, say, causation or whether a particular exhibit is or is not a firearm or a controlled drug. We are prepared to assume that there may be cases where the issue is diminished responsibility and, quite apart from section 35(1)(b), there is no scope for the drawing of a relevant inference. In the present case, however, we are satisfied that the judge was entitled to conclude otherwise.
25. In addition, to his complaint about the judge's ruling, Mr Millington also made a submission to the effect that the direction to the jury in the summing up "almost withdrew diminished responsibility from the jury". We reject that submission. The direction as to the law under section 35 was conventional and included the appropriate protective passages. Moreover, the judge specifically reminded the jury of Mr Millington's submission that this was not a case for the proper drawing of an adverse inference from silence because "what this case is really about … is what the psychiatrist has told you and your judgment of the evidence which is not much contradicted by [the defendant] in any case". We do not consider that there was any risk that unfairness flowed from these appropriate directions.

Conclusion

26. We are satisfied that this conviction is safe and, accordingly, we dismiss the appeal. We express our gratitude to counsel on both sides for their helpful and succinct submissions.