United Kingdom House of Lords Decisions

Bingham, R v. [1999] UKHL 13; [1999] 1 WLR 598 (11th March, 1999)

LORD STEYN

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friends, Lord Lloyd of Berwick and Lord Hope of Craighead. For the reasons they have given, I would dismiss both appeals.

LORD LLOYD OF BERWICK

My Lords,

On 20 December 1994 the appellants Graham Carlo Bingham and Samuel David Cooke were convicted of the murder of Ann Marie Smyth, a young Catholic woman from Armagh. Higgins J. found that the murder took place on the evening of 23 February 1994 in a house belonging to the appellant Cooke at 241 Cregagh Street, Belfast. The motive was sectarian. There were three others involved, all of whom admitted being present on the night in question. Their appeals were allowed by the Court of Appeal, and verdicts of assisting an offender were substituted. Bingham and Cooke denied all knowledge of the murder. Their appeals were dismissed.

Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 provides a procedure whereby an accused can be called upon by the court to give evidence in his own defence. If, having been called upon, he refuses to be sworn, or, having been sworn, he refuses to answer any question without good reason, the court can draw such inference as appears proper. In the present case the judge was satisfied on the prosecution evidence that both appellants were guilty of murder. So he had no need to draw any adverse inference under article 4, and did not do so. But he went on to hold that he would have drawn an adverse inference had it been necessary. The Court of Appeal agreed with the judge.

Counsel for the appellants cannot argue (as they have very properly conceded) that the judge was wrong to rely on an adverse inference under article 4 for the simple reason that he did not do so. Instead they submit that the appellants did not have a fair trial. The only basis for this submission was that the appellants were denied the opportunity of being cross-examined by the prosecution. Such an argument has an air of unreality. To understand it, I must set out the background in greater detail.

At the end of the prosecution case Mr. Adair Q.C. on behalf of Bingham informed the court that he would not be calling his client. The judge then indicated that he was about to call Bingham to give evidence on his own behalf, and warned him that if he refused to come into the witness box and be sworn, or if he refused to answer any question without good reason, then such refusal might be taken into account against him, and might also be regarded as corroboration of the prosecution evidence. He concluded:

 "I now call upon you to come to the witness box to be sworn and to give evidence in your own defence."

In so saying the judge was following the language of the practice direction which was then current.

Bingham thereupon entered the witness box and was sworn. There followed a submission by Mr. Adair that Bingham was now the court's witness; and that while at common law a witness called by the court could be examined and cross-examined with the leave of the court, the position under article 4 was different. There was no express power to allow examination and cross-examination in the case of a witness called by the court under article 4, and such a power should not be inferred. Mr. Adair was not aware of any authority in support of his submission.

After a short adjournment, the judge gave a provisional ruling rejecting Mr. Adair's argument. He held that a defendant who has been called upon to give evidence in accordance with article 4 does not become the witness of the court. The following morning the judge indicated a further provisional view that a defendant who has been sworn in these circumstances, and who is not then asked any question by his own counsel, cannot be cross-examined by the prosecution. There was another short adjournment. Mr. Adair then said he had no questions for Bingham, whereupon counsel for the prosecution, Mr. Appleton, made a formal application to cross-examine.

The following morning the judge asked Mr. Adair whether he was resisting Mr. Appleton's application. Mr. Adair replied that it was too late for Mr. Appleton to make the application when he did, as the judge had already given a provisional ruling on the matter. As to whether Mr. Appleton would have had a right to cross-examine if he had made the application in time, Mr. Adair reserved his position. The judge then gave his formal ruling, confirming the provisional views which he had already expressed.

The main argument advanced in the Court of Appeal was that the judge should have ruled that there was no case for the appellants to answer, as the main prosecution witness was an habitual liar and a thief, and was hopelessly unreliable. The Court of Appeal rejected that argument. They held that the judge was entitled to reach the view he did. He had taken full account of the witness's bad character. But he was satisfied that she had been so appalled by the evil of what she had witnessed on the night of 23 February 1994, that she had gone to the police on 2 March 1994 to tell the truth, and had done so. There is no appeal against that finding. As already mentioned the sole ground of the appeal is that Bingham did not have a fair trial, because of the judge's refusal to permit the appellants to be cross-examined.

Mr. Adair did not go so far as to suggest that Bingham had a legal right to be cross-examined. He specifically disclaimed any such suggestion. But he argued:

(1) That an inference had been drawn, or could have been drawn, against his client without his having refused to answer any questions in cross-examination, and

(2) That he had been denied the opportunity of refuting the allegations against him in cross-examination.

As to (1) I have already made clear that the judge was satisfied beyond reasonable doubt of the appellant's guilt without the need to draw any inference, so the question whether he was entitled to draw an inference does not arise, as indeed Mr. Adair conceded in another part of his argument.

As to (2) it will be remembered that Mr. Adair initially argued that the prosecution had no right to cross-examine. But putting that on one side, the remedy lay in Bingham's own hands. If he had wanted the opportunity of refuting the allegations against him in cross-examination, all he had to do was to give evidence in chief. Thus the submission that Bingham did not have a fair trial is utterly without merit, legal or moral.

As to the wider aspects of the trial, the Court of Appeal said of the judge that he had considered the evidence and the issues with painstaking care. I agree; and would say the same of the judgment of the Court of Appeal. As for the novel point, justly described by the Court of Appeal as a stratagem adopted by counsel to evade the provisions of article 4, it occupied the court from the early afternoon of 23 August 1994 until the late morning of 26 August 1994 and fills about 130 pages of transcript. The judge dealt with the point admirably. He was right to hold that he would have been entitled to draw an inference against the appellants had it been necessary, if not under the terms of article 4, then at common law. For the evidence against them was such that it called for an answer: see Murray v. D.P.P. [1994] 99 Cr.App.R. 396 per Lord Mustill at p. 399. But as I have said, the question does not arise for decision.

I ought, however, to add a word on the certified question which was as follows:

 "Whether a judge is entitled to refuse permit cross-examination of a defendant who has been duly sworn under the provisions of article 4 of the Criminal Evidence (Northern Ireland) Order 1988 on the ground that his counsel has not asked him any questions."

I can well understand why the judge refused to permit cross-examination of the appellants, and why the Court of Appeal upheld his ruling. No doubt they were leaning over backwards to be fair to the accused. But in my opinion they were wrong. Once Bingham had entered the witness box and been sworn, albeit in the belief that he had been called by the court, and not by the defence, he was exposing himself to cross-examination by the prosecution and his co-accused, like any other witness who is tendered for cross-examination. The judge ought therefore to have permitted the prosecution to cross-examine. But this does not affect the result of Bingham's appeal, which, for the reasons I have given, must be dismissed.

Cooke's appeal is on all fours with Bingham's appeal and must also be dismissed.

LORD HOPE OF CRAIGHEAD

My Lords,

I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Lloyd of Berwick. I agree with it, and for the reasons which he has given I too would dismiss these appeals. But in view of the novelty of the point which has been raised by the certified question, and out of respect for the careful way in which the judge dealt with it, I should like to add these observations.

It should be noted at the outset that article 4 of the Criminal Evidence (Northern Ireland) Order 1988, which deals with inferences from the accused's silence, was amended by paragraph 61(3) of Schedule 10 to the Criminal Justice and Public Order Act 1994. In its amended form it is in the same terms in all essential respects as section 35 of that Act which applies to England and Wales. But, as these amendments were not brought into force until after the date of the trial in this case, it is the provisions in their unamended form which are relevant to this appeal.

Articles 4(2) to 4(4) of the Order in their unamended form were in these terms:

 "(2) Before any evidence is called for the defence, the court--

  (a) shall tell the accused that he will be called upon by the court to give evidence in his own defence; and

  (b) shall tell him in ordinary language what the effect of this Article will be if--

   (i) when so called upon, he refuses to be sworn;
   (ii) having been sworn, without good cause he refuses to answer any question;

 and thereupon the court shall call upon the accused to give evidence.

 "(3) If the accused--

  (a) after being called upon by the court to give evidence in pursuance of this Article, or after he or counsel or a solicitor representing him has informed the court that he will give evidence, refuses to be sworn; or

  (b) having been sworn, without good cause refuses to answer any question, paragraph (4) applies.

 "(4) The court or jury, in determining whether the accused is guilty of the offence charged, may --

  (a) draw such inferences from the refusal as appear proper;

  (b) on the basis of such inferences, treat the refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the refusal is material."

These provisions were framed against the background of two basic rules about the giving of evidence by a witness in a criminal trial under our adversarial procedure. The first is that, except in relation to children to whom special rules apply, he or she must be sworn before giving evidence. The second is that, once the witness has been sworn, he or she is available to give evidence and must answer any competent and relevant questions which may be put by or on behalf of any of the parties to the trial or by the trial judge.

The judge was informed by Bingham's counsel before he embarked on the procedure which article 4(2) laid down that he would not be calling his client to give evidence. When he was called upon by the judge to give evidence Bingham entered the witness box, and he did not object to being sworn. So he could not be faulted on the first of the two conditions which were set out in article 4(3). Everything then turned on whether, having been sworn, he would, without good cause, refuse to answer any question which was put to him. If he were to be faulted on that condition, it would be open to the judge under article (4) to draw the appropriate inferences. There was no risk of his being faulted under that condition so long as the matter as to whether he should be questioned was in the hands of his own counsel. The assumption which his counsel had made was that, so long as he did not put any questions to him, he could not be questioned by anyone else except the judge - whose scope for putting any questions would be so restricted by the rules of fairness that it could be assumed that none would be put. If this assumption was right, it could not be said that his client had failed to answer any question which was put to him, and there would be no basis for drawing any inferences.

The trial judge ruled that counsel's failure to conduct an examination in chief of his client was to be regarded as a failure by Bingham to give evidence. He also held that Crown counsel was not entitled to cross-examine him as he had not given evidence. With great respect to the trial judge, who was plainly doing his best to find a sensible answer to what might well have been thought to be an abuse of the procedure which article 4 had laid down, I think that he was wrong on both points.

In the first place, it could not be said that Bingham had failed to give evidence until he had been given the opportunity to answer any questions which might be put to him. As I have said, he had entered the witness box and been sworn. So he was available to give evidence. In the second place, there is no rule which prevents a witness who has been sworn but has not been asked any questions by counsel for the party on whose behalf he has entered the witness box from being questioned by or on behalf of other parties to the trial who can demonstrate that they have an interest in putting questions to him. Rules have been devised which regulate the order in which the various parties may subject the witness to questioning. Other rules regulate the nature of the questions which may be put in cross-examination to the witness and which may be put to him in re-examination. But on the simple question as to whether a witness who has not been questioned by his own side is thereby disabled from answering any questions which any other side might wish to put to him, the answer is plain. Once the witness has been sworn he is available for questioning under oath by or on behalf of any party who has a legitimate interest in putting questions to him.

Support for these propositions can be found in the The King v. James Paul; The King v. Robert McFarlane [1920] 2 K.B. 183. In that case the appellants had been charged jointly with three other persons with breaking and entering into a warehouse and stealing furs from it. Near the end of the trial one of the other prisoners was told by the Recorder that he was not bound to give evidence upon oath unless he wished, but that if he wished to go into the witness box and give evidence he could do so. The prisoner went into the witness box and, after having been sworn, said merely that he pleaded guilty and that he had nothing more to say. He was then cross-examined by counsel for the prosecution. In the course of his cross-examination he gave evidence which implicated the appellants in the commission of the crime. The main question in the appeal was whether counsel for the prosecution ought to have been allowed to cross-examine the prisoner in these circumstances. The judgment of the court, which dismissed the appeal, was delivered by the Earl of Reading C.J. He said this at p. 185:

 "It is said that although that Act [section 1 of the Criminal Evidence Act 1898] makes a prisoner a competent witness for the defence, if the prisoner goes into the witness-box and says that he is guilty he cannot be cross-examined by the prosecution as the issue is then dead. That contention is, however, based upon a fallacy. When a prisoner goes into the witness-box to give evidence for the defence and has been sworn he is in the same position as an ordinary witness, and therefore subject to cross-examination. It is immaterial whether he stands mute or whether he gives evidence for the defence or for the prosecution. It is not what he says in the witness-box that subjects him to cross-examination, but the fact that he is called as a witness for the defence. As soon as a prisoner goes into the witness-box as a witness for the defence and is sworn counsel for the prosecution is entitled to cross-examine him."

The facts of that case were different from those of the present case, as it could be said that the prisoner went into the witness box in order to give evidence. I have not found any authority which is on all fours with the problem which faced the judge in this case, as the judge had been told by Bingham's counsel before he called upon Bingham to give evidence that he would not be giving evidence, and we were not referred to any such authority by counsel. But Dickson, A Treatise on the Law of Evidence in Scotland, 3rd ed. (1887), para. 1765 states: "When a witness has been called merely in order to be shown to the jury, he must be sworn, in order to give the other side an opportunity to examine him."

In support of that proposition he cites Her Majesty's Advocate v. Milne (1866) 5 Irvine 229, in which this point was raised in the course of a trial in the High Court at Aberdeen of a policeman who had been charged with the crime of robbery. In the course of the trial a question was raised about the reliability of the identification evidence. The victim said that the person who had assaulted and then robbed him was the accused. But it appeared that he had said to several people after the incident that his assailant was "like Geordie Milne or Willie Beg." Beg was on the list of Crown witnesses, but he was not called by the Crown. At the end of the Crown case counsel for the defence informed the judge that he wished to put Beg into the witness box to show the jury how unlike he was to the accused. He said that he did not wish him to be sworn as he had nothing to ask him, to which he received this response from the trial judge, at p. 231:

  "The Court, however, said that it was incompetent to use him merely to show him to the jury, without explanations; but that, having been called, he must be sworn, in order to give the public prosecutor the opportunity of asking him any questions he might think necessary."

The witness was accordingly sworn and, although no questions were put to him by the accused's counsel, he was examined for the Crown by the Advocate-Depute. The verdict at the end of the trial was not proven, so the accused was acquitted of the charge.

The decision which the trial judge took in that case has never been questioned, and the passage in Dickson's book continues to form the basis upon which these matters are handled in practice in the Scottish courts. I think that, although the case comes from another jurisdiction, it lends further support to the view that, once Bingham had been sworn, Crown Counsel were entitled to cross-examine him despite the fact that no questions had been put to him by his own counsel.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Lloyd of Berwick and Lord Hope of Craighead. For the reasons they have given, I too would dismiss these appeals.

LORD MILLETT

My Lords,

I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Lloyd of Berwick and Lord Hope of Craighead. For the reasons they have given I too would dismiss these appeals.