APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: 657/99
OPINION OF THE COURT
THE LORD JUSTICE CLERK
NOTE OF APPEAL
STEVEN JASON SHEVLIN
HER MAJESTY'S ADVOCATE
Appellant: Crawley, Ronnie; Jim Friel & Co.
Respondent: McCreadie, A.D.; Crown Agent
28 February 2002
"(1) on 5 April 1999 at House 73, Floor 17, 12 Riverford Road, Pollokshaws, Glasgow, you did assault Michael Edward McGarrigle or Hutchison or Hutchinson, House 52, Floor 11, 12 Riverford Road, Pollokshaws, Glasgow, strike him on the head with an imitation firearm namely a revolver or similar instrument, repeatedly strike him on the head, neck and body with knives or similar instruments and you did murder him, and you did previously evince malice and ill will towards him;
(2) on 5 April 1999 at House 73, Floor 17, 12 Riverford Road, Pollokshaws, Glasgow, you did assault James Michael Livingstone, care of Aikenhead Road Police Office, Glasgow, repeatedly strike him on the head with an imitation firearms namely a revolver or similar instrument and repeatedly strike him on the head and body with knives or similar instruments, all to his severe injury, permanent disfigurement and to the danger of his life; and you did attempt to murder him."
The appellant and Reilly incriminated one another. They were convicted on both charges, subject to the deletion from charge 2 of the allegation of attempted murder.
"Now, Mr. Reilly has gone into the witness-box. He had some difficulty going into the witness-box. He changed his mind. Anybody fancy their chances in the witness-box? Having seen what it's like to be in the witness-box, any takers? If you were somewhat reluctant ever to go into a witness-box, you would join a happy band that includes most lawyers, because it would require chains to get me into a witness-box. I've stood on this side for too many years ever to want to be in the middle of it. So it's not an easy thing, and an accused person doesn't have to go into the witness-box. Mr. Shevlin exercises his right. He sits in the dock and says, 'No, I am not going into the witness-box. I say to the Crown "You say I did this. You prove it". I'm contributing nothing to this ... (one word indistinct)'. That is his right."
"Mr. Reilly has accepted this. He has described to you what happened. He has described what Mr. Shevlin did. Mr. Shevlin has remained silent throughout, and in that silence Mr. Shevlin has admitted to you his guilt of this crime because you will remember very plainly the evidence, that Mr. Reilly accused Mr. Shevlin of having inflicted the fatal blow and Mr. Shevlin said not a single word.
In courts of law it is quite right that you will not take anything against a man's interests because he remains silent. For all we know, Mr. Shevlin could be somebody who would be paralysed by nerves if he went into the witness-box and would fail to do himself justice, and that wouldn't be fair to the man, and at the end of the day Mr. Shevlin will get advice from his lawyers and, if he has any sense, he will take that advice - that's why you have lawyers - so if you want to blame an accused person for not going into the witness-box, you really blame the lawyers, you don't blame him, but in the real world out there, never mind legal principles, in the real world if I came to any one of you and said, 'You scratched my car last night. I saw you' and you were to turn round and say, 'I am not obliged to say anything and I'm not going to say anything. Prove it', what would, in common sense, our reaction be? It would be, 'So you did!'. You would take that as being an admission, and if I was to come to you and say, 'I saw you letting the air out of my tyres last night. I saw you doing it', and you just looked at me and said not a word, what would be our reaction? It would be to say, 'Ah well, you did then, didn't you?', because if an allegation is made to you in the real world which is false, it really is inconceivable that you wouldn't turn round and say, '(Four/five words indistinct) did no such thing. A ridiculous suggestion'. I don't know many of us that, if we were accused of something that we didn't do in the real world, we would simply stand on some kind of dignity and say, 'Go on, prove it' and, if they did, I suggest to you I think we would all know what our reaction to that would be.
Not once did Mr. Shevlin say to anybody, 'I didn't have a knife. I didn't stab him. I didn't kill him. Why are you accusing me of this when you know you did it'. Not once did Mr. Shevlin ever in the hearing of a single, solitary witness deny that he had stabbed Mick Hutchison. Not once, and, ladies and gentlemen, in the real world not because of what he did in this Court, which is his right, but because of what he did out there at the ... (one/two words obliterated by coughing) in his silence there is the most eloquent statement of admitted guilt as you would ever wish to hear."
"I direct you the burden of proving the case lies solely on the Crown throughout the case; an accused does not have to prove anything. He's held to be innocent unless you return a verdict of guilty. It's not for the accused to prove he is innocent and it is his right not to give or lead any evidence. The fact that an accused person has not given evidence adds nothing to the Crown case. You would observe that the advocate depute did not suggest that it did.
You should draw no adverse conclusion against Mr. Shevlin simply because he exercised his right not to give evidence. Mr. Findlay suggested that you should draw conclusions against Mr. Shevlin because he exercised that right but, what Mr. Findlay did not explain was how Mr. Shevlin's silence proves anything against him, in the light of his right to remain silent. What matters throughout this case is what the positive evidence in the case proves against each accused. For example, if you were to believe a material part of what Martin Reilly said and the allegations he made against Steven Shevlin, the fact that Steven Shevlin had stayed silent in Court, would add nothing to it. You believed him.
If, on the other hand, you reject what Martin Reilly said against Steven Shevlin, then the fact that he remained silent can't be regarded as a substitute for the rejected evidence of Martin Reilly. So, his silence again contributes nothing.
Your verdict depends on the evidence you accept as true and reliable and the only conceivable help you could get from the absence of evidence from Steven Shevlin is that it might make it easier to interpret the positive evidence that has been led against him and, which you accept as proving a point against him, but that's the only, and I stress the only, way in which you can find assistance in the absence of an explanation from him. So, I'll repeat what I said at the beginning of that - it adds nothing to the case against him.
Similarly, you should bear in mind that at the judicial examination both of Mr. Reilly and of Mr. Shevlin, it was made clear by the sheriff, in the introductory part that you heard, that the accused is not obliged to answer any of the questions, and you'll remember the police interview of Martin Reilly and also when Steven Shevlin was charged, they were both told clearly they were not obliged to answer any questions, because that is the law. Now, that may be an example of the law you don't like, for all I know, but the fact of the matter is, it's the law, and you've got to apply it."
In our view, that was a strong and accurate direction to the jury on the question of the appellant's right to silence.
The case for the appellant
The case for the Crown
"It seems right to this Court that whereas there is a fetter on the prosecution, a co-accused ought to be free through his counsel to put his case as he in his discretion thinks fit."
"That case, so far as it goes, does seem to us to be an authority which supports the right of counsel to comment on the failure of a co-accused to give evidence and we can find nothing in statute or authority to limit his right to do so. In our opinion, there is no discretion in the judge to intervene, although of course he always has the last word and no doubt can make very forceful comment in a case where he thinks it right and draw the jury's attention to the undoubted right of an accused not to give evidence, and if he thinks that counsel has gone rather too far or has been unfair, he can deal with that satisfactorily in the course of his summing-up ... We are dealing of course here with a case where there was a clear conflict between Wickham and the two co-accused. In a case where there is in fact no conflict at all, responsible counsel would no doubt feel that there was no justification for making comment of that kind (at p. 205)."
There are procedural differences between the two jurisdictions, but in our view the approach taken by the court in R v Wickham (supra) is consistent with Scots law and should be applied in this case. In Scotland the trial judge is entitled to intervene in the course of a speech to the jury; but in most cases it will be sufficient for him to reserve his comments for his charge.