Scottish High Court of Justiciary Decisons

Shevlin v. Her Majesty's Advocate [2002] Scot 11 (28 February 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hamilton Lord McCluskey	Appeal No: 657/99 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in NOTE OF APPEAL by STEVEN JASON SHEVLIN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Crawley, Ronnie; Jim Friel & Co.

Respondent: McCreadie, A.D.; Crown Agent

28 February 2002

1. The appellant was tried at Glasgow High Court along with Martin John Reilly on the following charges:

"(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.

2. The appellant appeals against conviction on the ground that comments made by counsel for Reilly, Mr Donald Findlay QC, in his speech to the jury deprived him of a fair trial and that on that account there has been a miscarriage of justice.
3. The background to this appeal is that at his judicial examination the appellant said nothing about the matters with which he was charged. Before the trial each accused gave notice of incrimination against the other. At the trial, part of the evidence against the appellant came from the witnesses Deborah Chalmers and Tracey Craig, who said that near the scene of the incidents, and soon after they occurred, the appellant was accused of being responsible and did not deny it. Reilly gave evidence and incriminated the appellant. Counsel for the appellant cross-examined Reilly on the basis that Reilly struck the blows. The appellant did not give evidence.
4. In his speech to the jury Mr Findlay repeatedly referred to the appellant's silence at his judicial examination and his failure to give evidence. He also commented on the appellant's silence in the face of the accusation made against him soon after the incident.
5. Mr Findlay said of his own client the following:

"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."

6. The theme of silence culminated in the following passage in the speech that we shall quote in full.

"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."

7. The trial judge says in his Report that as the speech developed he had to consider carefully whether it was necessary for him to intervene. He says that the submissions to the effect that the appellant's silence was an eloquent admission of guilt were preceded by what could be described as "the evidence" given by Mr Findlay himself about the reluctance of lawyers to give evidence because of their knowledge of how difficult the exercise is. The trial judge says that that could be seen as commending Mr Findlay's own client's position. He says that he did not intervene because he considered that he could remove the risk of prejudice to the appellant in the course of his charge and because he had to bear in mind that any intervention during the course of the speech could reflect adversely on Reilly himself. He says that it was important that he should ensure that both accused had a fair trial.
8. In the course of his charge the trial judge dealt with counsel's attack upon the appellant. He said:

"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

9. Counsel for the appellant submitted that counsel for one accused is entitled to comment on the failure of a co-accused to state a defence at his judicial examination, or to give evidence at the trial, only where the circumstances are "very special" and that such comments must be made with restraint. Otherwise, he argued, one accused could ride roughshod over a co-accused's right to silence. The repeated and excessive comments of counsel for the co-accused had been seriously prejudicial to the appellant and had deprived him of a fair trial. The damage was finally and conclusively done by the final remark in the passage that we have quoted. The effect of these comments was such that the damage to the appellant's interests was not remediable by any direction that the trial judge could give.
10. Counsel for the appellant argued that since a judge may comment on an accused's failure to speak at judicial examination, or to give evidence, only when special circumstances require it and then only sparingly (Stewart v. H.M. Adv, 1980 SLT 245, at pp. 251-252); and since the same rule applies to the prosecutor, it should apply also to counsel for a co-accused. In this case there were no special circumstances entitling counsel to make any such comments at all. In any event those comments went far beyond the bounds of restraint.

The case for the Crown

11. The advocate depute accepted that there is no Scottish authority on the points raised in this appeal. He argued that there had never been a prohibition on the right of counsel for one accused to comment on the silence of a co-accused, at any rate in a case where that accused was affected by the co-accused's line of defence (R v Wickham, (1971) 55 Cr App R 199, at pp. 203-204; Renton and Brown, para. 24-12). The positions of the judge, who is impartial, and of the prosecutor, who is impartial as between one accused and another, were different from that of defence counsel. Defence counsel had a duty to present the case as strongly as he could and to the best advantage of his client. The only restraint placed upon counsel for the defence in this respect was the basic duty of fairness. The remarks made by Mr Findlay about the significance of the appellant's silence was not what a responsible counsel should have said and the Crown did not defend them. The trial judge had exercised his judgment in refraining from intervening during the speech. He had taken the appropriate course of giving the jury suitable directions in his charge. He had then bluntly and clearly corrected what Mr Findlay had said (Charge, p. 20C). Looking at the matter more generally, the advocate depute submitted that the only limitations placed upon the right of counsel to comment on the silence of a co-accused, in circumstances where that right existed at all, were those imposed by the professional responsibility of every advocate as an officer of the court. The Crown did not rule out the possibility that in an extreme case, it might be necessary for the court to desert the diet; but in this case the trial judge had acted promptly and correctly in what he said and did.

Decision

12. There are four questions in this appeal. The first is whether counsel for one accused has the right to comment on the fact that a co-accused was silent at judicial examination or at the trial. The second is, if such a right exists, what limitations, if any, restrict its exercise. The third is whether the comments of counsel in this case constituted an impropriety. The fourth is whether the trial judge dealt correctly with the difficulties that those comments raised.
13. Circumstances may arise in which it is appropriate in the presentation of the case for one accused for his counsel to comment on the case presented on behalf of a co-accused. In particular, counsel must be entitled to do so when his client may be adversely affected by such a case; for example where, as happened here, his client is incriminated by the co-accused. In that situation, he must be permitted to present his client's defence fully. He is therefore entitled to comment on the content and the quality of any evidence led in support of the case for the co-accused and on the absence of potentially important evidence in support of it by reason of the co-accused's silence at his judicial examination or at the trial.
14. This question arose in R v Wickham (supra), where the Court of Appeal said of such comments:

"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."

15. The court then referred to Kennedy v Browne (The Times, 23 May 1927) where counsel for one defendant was permitted to comment on the failure of a co-defendant to give evidence, and concluded:

"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.

16. We are further of the view that comments on the silence of a co-accused, where they may properly be made, are not qualified by the somewhat uncertain requirement of restraint that applies to such comments when made by the judge or prosecutor. We agree with the submission for the Crown that the nature of defence counsel's task is fundamentally different from those of the judge and the prosecutor in the respects mentioned by the advocate depute.
17. In a case such as this counsel is entitled to present his client's defence to the fullest extent that is open to him. In the exercise of his right to comment on the case for another accused, counsel is subject only to the normal restraints of professional propriety and courtesy. He may not mislead the jury as to the facts or the law and he should express himself with the discretion that both judge and jury are entitled to expect. If he is to comment on the fact that the co-accused was silent in circumstances where he had a right to be silent, counsel must in making such comments duly acknowledge that the co-accused had that right.
18. The next question that we have to decide is whether Mr Findlay transgressed these principles in the comments that he made. It is unfortunate that the transcript is defective in the key passage in the speech. It is our impression that the comments about the effect of silence as implying guilt were mainly directed at the silence of the appellant soon after the incident when he was taxed with having been responsible for the two assaults. However, we also have the impression that Mr Findlay did not attempt clearly to distinguish the appellant's silence at judicial examination and at the trial from his silence in the face of accusations made to him after the event. The evidential implications of the latter point were quite different. We consider that, overall, Mr Findlay's speech was undisciplined and that his comments on the appellant lacked the care and precision that this delicate evidential question required. We are particularly unimpressed by Mr Findlay's supposed distinction between the legal rules about what is evidence and the conclusions that are drawn from evidence in the real world. However, given the state of the transcript, we cannot definitely conclude that Mr Findlay's remarks constituted an impropriety.
19. However, if those remarks did constitute an impropriety, we consider that they did not prejudice the appellant's defence irremediably and that the trial judge acted correctly in the manner in which he dealt with them. It was suggested at one stage in the argument that the trial judge ought to have intervened during the speech. We do not agree. We have had the opportunity, which the trial judge did not have, to consider the matter at length. The trial judge had to decide in an instant whether to interrupt the speech or to leave the matter for his charge. He exercised his judgment reasonably, and in our view correctly. Moreover, his directions on the point were more than adequate to bring home to the jury the proper approach to the appellant's right to silence. On that view, there was no miscarriage of justice.
20. We therefore refuse the appeal.