THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64714/01 by Ruben SMITH against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 12 December 2002 as a Chamber composed of

Mr G. Ress , President , Sir Nicolas Bratza , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 17 November 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ruben Smith, is a United Kingdom national , born in 1947, and he is currently in prison in Surrey. He is represented before the Court by Austin and Allen, a firm of solicitors practising in Bedfordshire.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1968 the applicant was convicted of inflicting grievous bodily harm.

On 30 August 1998 the applicant’s cousin shot a man at point blank range in the thigh with a sawn-off shotgun in the living room of the applicant’s home. The applicant was arrested on 31 August 1998. He denied any knowledge of the incident claiming that that night he had been to a number of pubs, gone home, had tea and gone to bed.

On 1 September 1998 he was interviewed by the police and he declined to answer questions. Later, on the same day, he requested an interview with the police. This time he told the police that he knew who was responsible for the shooting but that he had nothing to do with it. He said the shooting had taken place outside his house and that he had not been present. He was charged at the conclusion of that interview with wounding with intent to cause grievous bodily harm and with possession of a firearm. He then requested a further interview when he admitted that he had been at a pub with the victim and his cousin. The applicant claimed that when he arrived home the shooting had already happened and this time he named his cousin as responsible. When asked how he knew if he was not present at the time, he said that he had received a phone call from his cousin admitting responsibility.

On 26 March 1999, the applicant’s cousin was subsequently convicted of wounding with intent to cause grievous bodily harm and was sentenced on 10 September 1999 to ten years’ imprisonment.

The applicant, who had fallen ill during the trial, was tried later in August 1999 on one count of wounding with intent to cause grievous bodily harm and one count of possession of firearm with intent to endanger life. He did not give evidence at his trial or call any witnesses on his behalf. The victim’s evidence was that the applicant had entered the room in his house with a sawn-off shotgun, had pointed the gun at the victim’s head and legs and then left the room. He came back within a minute with his cousin, his cousin had the gun, the cousin pointed the gun at the victim’s head and then his legs and then shot the victim in the thigh. It was the prosecution’s case that the applicant had been behind the shooting and was responsible for providing the weapon. There was unchallenged evidence that the victim’s blood and flesh were found on the chair where he was shot in the applicant’s house and wadding from a shotgun cartridge and more of the victim’s blood were found outside the applicant’s house.

At the close of the prosecution case it was submitted on behalf of the defence that there was no case to answer. The trial judge rejected the application ruling that there was no inherent weakness sufficient to enable him to withdraw the case from the jury. The applicant, who began to feel unwell during these proceedings, did not leave the court until after the judge’s ruling. Since the applicant was not intending to give evidence or call any evidence in his defence, at that stage all that remained were the closing speeches of counsel to the jury. The trial judge had already enquired as to whether the applicant had been warned of the possible consequences of not giving evidence before the applicant was taken ill.

The trial judge adjourned the trial to seek a report on the applicant’s health. He was informed that the applicant was suffering from angina and was to be discharged from hospital that afternoon. The trial judge directed the trial to resume the next day. The applicant attended but his counsel requested permission for the closing speeches to be given in his absence. The prosecution and the trial judge agreed that the applicant could go home.

On 20 August 1999 the trial judge gave a detailed summing-up to the jury. In outlining to the jury the functions of the judge and jury, he stated:

“... You must ... be careful to decide the case only on the evidence which has been placed before you. You are entitled to draw inferences; that is to come to common sense conclusions based upon the evidence which you accept, but you must not speculate about what evidence there might have been because that amounts to no more than guessing, and you must not do that.”

As to the burden and standard of proof, he pointed out that:

“As in all cases under the English criminal law, the prosecution must prove that the defendant is guilty. [The applicant] does not have to prove his innocence. Indeed, he has chosen not to give evidence. That is his right.

In a criminal trial, the burden of proving the defendant’s guilt lies always upon the prosecution, and in order to succeed in proving the defendant’s guilt, the prosecution must make you sure of it. Nothing less than that will do, and so if after you have considered all the evidence you are sure than Mr Smith is guilty, then you must return a verdict of guilty. If you are not sure, your verdict must be not guilty.”

He then went on to deal with the separate consideration of the two counts against the applicant:

“[The applicant] faces two counts on this indictment. You must consider the case against and for the defendant on each count separately. They are merely there as a matter of convenience on the same sheet, but you may feel that in this instance they stand or fall together”.

and he then dealt with the earlier conviction of the applicant’s cousin:

“... you have heard that [the applicant’s cousin] who is named in count one of this indictment with [the applicant], has been convicted. Well, the only reason you have been given this information is because it is evidence which goes to prove that this offence was committed at least by [the applicant’s cousin] ... [The applicant’s cousin] and other evidence tells you that it occurred in a room in [the applicant’s] home, but that is the only purpose of the evidence. It does not prove anything else, and apart from its relevance to that matter, it has no bearing and must not have any bearing on your decision as to whether the prosecution has made you sure of this defendant’s guilt”.

The trial judge then dealt with the question of the relevance of the earlier lies told by the applicant to the police:

“You know, you may feel, that [the applicant] has lied to the police. Certainly, virtually the whole of the first interview were lies and it may be that you will conclude that there are lies in [interviews] two and three as well. Well, you are entitled to consider whether this supports the case against him. You should consider: “Why did he lie?”. Now, the mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons. They may possibly be innocent ones ... in the sense that they do not denote guilt of this offence. For example, it may be ... to bolster a true defence mentioned to you by [the applicant’s counsel] a short while ago. It might be to protect somebody else or to conceal some conduct, which is not good conduct, but falls short [of] the commission of the offence, or it might be out of panic or confusion. If you think there is, or may be, an innocent explanation for the lies, then you should take no notice of them. It is only if you are sure that he did not lie for an innocent reason, then the lies can be regarded by you as evidence supporting the prosecution case and going towards the proof of guilt.”

He then directed the jury as regards the inferences that might be drawn from the applicant’s failure to give evidence:

“Now, [the applicant] has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. Indeed, it would be strange if he were not because at the start of every interview he is given a caution: “You do not have to say anything”, and a few more words are added.

So, ladies and gentlemen, you must not assume he is guilty just because he has not given evidence. Because failure to give evidence cannot on its own prove guilt. But, of course, he was told, and you have heard me mention it to [the applicant’s counsel] earlier today, that depending on the circumstances, you may take into account the failure to give evidence when deciding on your verdict.

[The applicant] did answer questions in interview and he now seeks to rely on those answers which are, of course, evidence in the case, but they are merely evidence of what he said then when being questioned by the police. It is a matter for you to decide what weight you should give to them, but you are entitled to bear in mind that those answers were not given here before you. They were not given on oath, and the prosecution has had no opportunity to test them before you in cross-examination.”

On 20 August 1999 the jury found the applicant guilty of wounding with intent to cause grievous bodily harm and of possessing a firearm with intent to endanger life. In October 1999 he was sentenced to life imprisonment pursuant to section 2 of the Crime (Sentences) Act 1997 and a tariff of 3 years and 6 weeks was fixed.

In his application for leave to appeal against conviction to a single judge of the Court of Appeal, the applicant argued that the trial judge wrongly rejected the defence submission that there was no case to answer and wrongly failed to withdraw the case from the jury. On 21 December 1999 the single judge rejected the applicant’s appeal, finding as follows:

“The trial judge pointed out with sufficient care the contradictions and weaknesses in the evidence against you. There was evidence that you told or indicated to your partner ... to leave the room; that you then entered the room where the victim was with a sawn-off shotgun and pointed it at his head, chest and legs; that you then left the room and returned with Edwin Smith who now held the gun which was loaded and you were present when he fired at the victim. The Jury were entitled to infer either that when you entered the room with the gun it was loaded or that it was subsequently loaded in your presence. There would have been no need to load it if the only intention was to frighten the victim. Thereafter you were seen to dispose of something in the garden and both you and [your cousin] tidied up the room where the shooting occurred. You then either lied to the Police or said that you had no comment to make to their questions.

In those circumstances, there was evidence for the Jury to consider and evidence from which they could infer that you had the necessary intent to be a joint participant in the offence.”

In June 2000 the applicant submitted amended grounds of appeal with his renewed leave to appeal application to the full Court of Appeal, adding numerous complaints about the trial judge’s summing up.

The full Court of Appeal rejected each ground of appeal against conviction on 30 June 2000. It “emphatically” agreed with the single judge’s views as regards the first ground of appeal (that there was no case to answer) and rejected each allegation as regards the trial judge’s summing up.

As to his claim that the trial judge invited the jury to consider the applicant’s failure to give evidence against him in terms that were not sufficiently clear, the Court of Appeal found that the trial judge could have said more at the relevant juncture but it wondered whether any further degree of clarity would have helped the applicant in the circumstances. It did not accept the applicant’s complaint about the trial judge’s reference to his not giving evidence as a “failure” to give evidence: it found that the use of the word “failure” in that context was neutral, proper, fair without innuendo or pejorative force.

Finally, the applicant’s claim that the trial judge had invited the jury to consider drawing an adverse inference against him for not giving evidence at his trial when in fact he was medically unfit to attend his trial was also rejected, the Court of Appeal noting that the defence had already declared before the applicant absented himself that it would not be calling any evidence and that the trial judge had satisfied himself, by asking the applicant’s counsel, that the applicant had been warned of the possible consequences of not giving evidence.

On 12 July 2001, on the applicant’s appeal against sentence, the Court of Appeal quashed the sentence of life imprisonment and substituted a term of seven years’ imprisonment.

B. Relevant domestic law and practice

Section 35 of the Criminal Justice and Public Order Act 1994, which concerns the exercise of the defendant’s right to silence at trial, provides that:

“(1) At the trial of any person for an offence, sub-sections (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 evidence 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 evidence 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 or his refusal, without good cause, to answer any question.”

Section 38 (3) adds that:

“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...”

Section 35(2) of the 1994 Act is the subject of Practice Direction: Crown Court (Defendant’s Evidence) ([1995] 2 Cr.App.R . 192 (Court of Appeal) Guidance) which sets out how the trial judge must ensure in open court that a defendant who decides not to give evidence at trial has been warned (by his counsel) that the jury may draw adverse inferences from this.

In R. v. Cowan ([1996] 1 Cr.App.R . 1), Lord Taylor considered the direction that should be given by the trial judge to the jury and emphasised five essential points.

“1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.

2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.

3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.

4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.

5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”

The Judicial Studies Board specimen direction for the use of trial judges concerning section 35 at the time of the applicant’s trial stated:

“The defendant has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. You must not assume he is guilty just because he had not given evidence because failure to give evidence cannot, on its own, prove guilt. However, as he has been told, depending on the circumstances, you may take into account his failure to give evidence when deciding on your verdict.

1. In the first place when considering the evidence as it now is, you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution.

2. In the second place if you think in all the circumstances it is right to do so, you are entitled, when deciding whether the defendant is guilty of the offence(s) charged, to draw such inferences from his failure to give evidence as you think proper. In simple terms, this means that you may hold this failure against him.

[There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against the defendant that he has not given evidence. That evidence is (here set out the evidence). If you think that this amounts to a reason why you should not hold it against the defendant that he has not given evidence, do not hold his silence against him. If, on the other hand, it does not in your judgment provide an adequate explanation for his absence from the witness box, then you may, if you think it right, hold his failure to give evidence against him.]

What inference can you properly draw from the defendant’s decision not to give evidence before you? If you conclude that there is a case for him to meet, you may think that if he had an answer to it he would have gone into the witness box to tell you what it is.

If, in your judgment , the only sensible reason for his decision not to give evidence is that he has no explanation or answer to give, or none that would have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence, that is, taken it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.”

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he did not have a fair hearing, in particular in that there was a breach of his right to silence by inadequate directions to the jury by the trial judge in respect of his choice not to give evidence at his trial. He also invoked Article 6 § 2 in this regard.

Following the quashing of the life sentence by the Court of Appeal, the applicant withdrew his complaints concerning the imposition of the automatic life sentence imposed pursuant to section 2 of the Crime (Sentences) Act 1997 and following receipt of the Government’s observations he withdrew his other complaints under Article 6 § 1 concerning his trial.

THE LAW

The applicant complains that he did not have a fair trial as the judge failed properly to direct the jury concerning the inferences that could be drawn from his failure to go into the witness box. He invokes Articles 6 §§ 1 and 2 of the Convention, which provide as relevant:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The applicant submits that the trial judge failed to direct the jury that they had to be first satisfied that there was a prima facie case before drawing an adverse inference. As the judge only said that failure to give evidence could not on its own prove guilt, the jury could have relied on some evidence falling well short of a prima facie case. The fact that the judge found a prima facie case could not discharge the jury from themselves considering whether there was sufficient evidence against an accused that could, without more, entitle them reasonably to convict, in particular since the applicant’s case was that, in any event, even if the prosecution evidence was true and taken at its highest it could not lead any reasonable jury to convict. As a result, the judge’s direction was unfair. The applicant also submits that the jury were given no clear guidance on what inference it was that could possibly be fairly drawn that could support the contention that the applicant knew that his cousin would pull the trigger of the shotgun as opposed to merely threatening the victim with it. Nor did it avoid the real danger that the jury would rely far too heavily on the applicant’s silence and conclude that they were entitled to infer that the prosecution’s wildest claims were true (in particular the unsubstantiated assertion that the applicant was “behind the shooting”).

The Government submit that according to the Court’s case-law the right to silence was not absolute and that whether the drawing of inferences was unfair was to be determined in light of all the circumstances of the case. They argued that there was no unfairness in this case as the trial judge stressed to the jury that the burden of proof rested firmly on the prosecution to the criminal standard and that the applicant had the right to remain silent. He also emphasised that the applicant’s failure to give evidence could not be taken alone as proof of guilt. Thus the jury must have been satisfied that without drawing inferences there was a prima facie case against the applicant. They also drew attention to the fact that the judge had ensured in open court that the applicant had been warned that inferences could be drawn from his silence. The Court of Appeal did not consider that the applicant’s defence could have been helped by any clearer direction by the judge, in particular since if he had asked the jury to consider whether they would not have expected the applicant to go into the witness box if he had an innocent explanation this would not have helped the applicant as he had not in fact put forward any alternative explanation. The evidence against the applicant clearly called for some sort of explanation yet none was given.

The Court recalls that in its Condron v. the United Kingdom judgment (no. 35718/97, judgment of 2 May 2000, ECHR 2000-V, §§ 56-57) it confirmed in line with its earlier John Murray v. the United Kingdom judgment ( Reports of Judgments and Decisions 1996-I) that the right to silence is not an absolute right. Accordingly, the fact that a trial judge leaves a jury with the option of drawing an adverse inference from an accused’s silence either, as in the instant case, during police interview or during his trial cannot of itself be considered incompatible with the requirements of a fair trial.

The Court further stressed in its Condron judgment that since the right to silence, like the privilege against self-incrimination, lay at the heart of the notion of a fair procedure under Article 6, particular caution was required before a domestic court could invoke an accused’s silence against him. Thus it would be incompatible with the right to silence to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. Nevertheless, it is obvious that the right cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution ( ibid .).

For the Court, whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation (ibid.). Of particular relevance are the terms of the trial judge’s direction to the jury on the issue of adverse inferences.

Turning to the facts of this case, the Court observes that the applicant was represented at his trial and that the trial judge verified from his counsel that he had been advised that if he did not give evidence the jury might draw inferences from that failure. There is no indication therefore on the facts of the case that the applicant was unaware of the consequences or did not make a free, informed decision.

As to the trial judge’s direction, it may be noted that the applicant’s counsel made no complaint at the time that the judge erred in the manner in which he instructed the jury to approach the applicant’s failure to give evidence. The Court observes that the judge emphasised the key elements that the prosecution had to prove its case to the criminal burden of proof and that the failure to give evidence could not prove guilt on its own. In reviewing the judge’s direction, the Court of Appeal found that it had been clear and commented that it would not necessarily have been helpful to the applicant if the judge had spent more time with the jury on the point. As the Government pointed out, this would have underlined the fact that the applicant had chosen not to give the jury his version of events and had not provided any explanation for not doing so.

The applicant has complained however that the judge did not warn the jury expressly that they should not draw an inference from the applicant’s silence unless the prosecution had established a prima facie case. This raised the danger, he said, that the jury placed too much weight on his silence in reaching their decision as to guilt. The Court observes that the defence had already made a submission of no case to answer which the judge rejected, finding that there was no such inherent weakness in the prosecution case. The Court of Appeal emphatically agreed with him when his decision was reviewed on appeal. There was evidence from the victim as to the applicant’s allegedly active role in the shooting incident, as well as forensic evidence and the applicant’s lies to the police in interview. The Court is therefore not persuaded in the circumstances of the present case that the lack of any express reference in the judge’s direction to the prima facie case threshold was unfair to the applicant. The situation could reasonably be regarded as one which called for an explanation from the applicant.

While the applicant has also complained that the judge did not give any detailed guidance either to the jury as to the content of the inferences which it would have been proper to draw from the applicant’s silence, the Court notes that this type of elaborate explanation does not appear to have been recommended by the Judicial Studies Board or the Court of Appeal in their considered examination of the appropriate directions to be given to juries. Nor was this criticism raised on appeal. The Court would in any event note that the trial judge directed the jury as to the constituent elements of the offences with which the applicant was charged and it does not find any issue of fairness arising from the judge leaving it to the common sense of the jury as to the relevance and weight to attach to the applicant’s failure to provide them with an explanation of his role in events.

Though the applicant has relied on the Condron judgment in his submissions that case concerned the drawing of inferences from the accuseds ’ silence during police interview in which situation particular concerns may arise about coercion and the ability of the accused to make free, informed decisions ( judgment cited above, § 60). It may also be noted that the judge’s direction to the jury in that case contained a significant omission, acknowledged by the Court of Appeal, in that it failed properly to deal with the applicants’ explanation for their silence. This may be contrasted with the present case which concerns the applicant’s silence at trial where there was no explanation to be left to the jury at all.

The Court concludes that in the instant case the jury’s discretion on the question of drawing adverse inferences was confined in a manner compatible with the exercise by the applicant of his right to silence at trial. It finds no appearance of a violation of either Article 6 § 1 or 2 of the Convention and this application must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the  application inadmissible.

Vincent Berger Georg R ess Registrar President