THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44014/98 by Alan Peter RANDALL against the United Kingdom

The European Court of Human Rights ( Third Section) , sitting on 5 December 2000 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 1 October 1998 and registered on 20 October 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1952. He is currently serving a prison sentence in the United Kingdom.

He is represented before the Court by Mr Dennis A. Clarke, a lawyer practising in Tonbridge , England.

A. Particular circumstances of the case

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

In July 1997 the applicant was tried before a jury at Maidstone Crown Court on a charge of murdering his girlfriend (“T.”) at her home.

The court heard that the police were called to T.’s home in the early hours of 2 June 1996 and found her body in the kitchen. The applicant was lying on the floor with his head resting on her stomach. T. had been stabbed eighteen times, most of the wounds being to her left hand. There were two deep wounds, one to her face and one to her left breast area.

According to Dr Rouse who carried out the post mortem analysis on behalf of the Crown, either of those wounds was fatal. Dr Rouse also examined stab wounds, seven in all, found on the applicant’s body. He advised that there was no evidence of defensive injuries either to the applicant’s arms or hands. At the same time, Dr Rouse was unable to determine whether or not the wounds were self-inflicted or inflicted by a third party.

D.L., a friend of the deceased, testified at the trial that the applicant telephoned her shortly after midnight on 2 June 1996 and exclaimed that:

“ T.’s dead and I’m dead.”

When she arrived at T.’s house, the applicant was holding a kitchen knife. He told her:

“I’ve killed T., I’ve got to kill myself.”

According to two police officers who arrived at the scene, the applicant stated:

“Well lads, I’ve done it now but I tell you what, I love her.”

The police recovered two blood-stained carving knives from the kitchen, either of which could have caused the injuries to T. and the applicant.

The applicant was taken to a hospital where he underwent lengthy surgery for his injuries. He remained in intensive care for a period of time and was finally discharged on 17 June 1996. He was taken directly to a police station. Although a doctor had expressed the opinion on 13 June 1996 that the applicant was not fit to be interviewed, a contrary opinion was given by another doctor who examined him on the morning of 17 June 1996 and found that, although in pain, he was fit to be interviewed. The applicant was subsequently interviewed between 10.52 a.m. and 12.50 p.m. on 17 June 1996.

The applicant was cautioned as follows in the presence of his solicitor:

“You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.”

The applicant’s solicitor advised him not to answer police questions and referred to the pain which the applicant was suffering as well as his lack of sleep. On the strength of that advice the applicant made no comment to the questions put to him during the interview. The questions centred on his presence at the deceased’s house, the presence of blood on his clothes and body, his being in possession of knives when the police arrived at the scene and the injuries which he had sustained. He was also questioned about the defence injuries to the deceased’s body and the absence of any defence injuries to his own body.

On 17 June 1997 the applicant was charged with T.’s murder.

At his trial the applicant did not dispute that he had stabbed T. However he pleaded that he had acted in self-defence. In the alternative, he relied on the defence of diminished responsibility under the terms of section 2(1) of the Homicide Act 1957, as well as that of provocation.

As to the latter defences, he relied on the testimony of Dr Beck, a clinical psychologist, and Dr Eastman and Dr Sugarman , both consultant psychiatrists. Dr Eastman stated that, in his opinion, the applicant was suffering from a mild to moderate depressive illness at the time of the incident. In Dr Sugarman’s opinion the applicant was suffering from a moderate depressive illness at the time. They both expressed the view that the applicant was suffering from an abnormality of mind sufficient to impair substantially his mental responsibility. As to the defence of provocation, Dr Eastman testified that if the court concluded that the applicant had not got over his mother’s death and that his condition arose out of inadequacies in his personality, and if it were accepted that the applicant was suffering from mild to moderate depressive illness at the time of the offence, that would be relevant to explaining the applicant’s reaction and his susceptibility to some types of alleged provocation. Dr Beck observed that the applicant had real difficulty in processing multiple sources of information, a failing which could be linked to possible brain damage which the applicant sustained in a traffic accident when he was young. The other doctors had earlier stated that their conclusions would be reinforced by evidence of brain damage.

In connection with his plea of self-defence the applicant told the jury that T. had become argumentative when they went back to her home after an evening spent at a club. T. suddenly began to stab him with a kitchen knife and he defended himself with a fork. T. then attacked him with a bigger knife. He stated in his testimony that he must have taken out a knife from the kitchen drawer during this time. He tried to wrestle her to the floor, but she continued to stab him. He must have lashed out and caused the injury to her face, but did not remember doing so. Eventually she stabbed herself in the chest, telling him that she loved him. He then pulled the knife out of her body. The witness, D.L., arrived at some stage and he had to smash a glass panel to let her into the house. He told her: “I think T. is dead. I love her, I’m going with her.” With those words, he stabbed himself in the throat and on the chest and lay down on the kitchen floor with his head resting on T.’s stomach.

When cross-examined as to why he did not give this account of the incident to the police on 17 June 1996 during interview, the applicant replied that he wanted to answer the questions put to him but:

“[that his] solicitor said I was in no condition to answer. I would have tried my best to answer the questions. I understood what they said. It was fuzzy to me. My recollection was I couldn’t recall, but it came back to me in flashbacks. I couldn’t remember everything. ... I had to keep trying to remember. I tried to remember the best I could. ... I must have been responsible for it, cos she wouldn’t be dead.”

When asked by prosecution counsel what he had remembered on the day of the interview, the applicant replied that he knew that T. had attacked him, that she had deliberately plunged a knife into him and that he had reacted as he did in self-defence.

He was then asked whether he could have told the police about these matters on the morning of the interview. The applicant replied in the affirmative adding:

“... I was advised not to say anything. On ill health, because I was so drugged up from the hospital. Like, I was hurting bad – and they knew I was hurting bad.”

In the course of the trial, the prosecution invited the judge to leave the jury with the option of drawing adverse inferences from the applicant’s silence during police interview on the ground that the applicant’s account of the incident had been fabricated before interview and that he knew that it would not withstand police questioning.

Counsel for the applicant, with reference to the Court of Appeal’s judgment in R. v. Condron ([1997] 1 Criminal Appeal Reports, p. 185) contended that adverse inferences could only be drawn from an accused’s silence under caution when the failure to mention facts in interview which are later relied on at the trial can only be explained in terms of their fabrication after the interview.

The trial judge rejected the applicant’s submission. At the close of the trial the judge in his summing up reminded the jury of the answers given by the applicant under cross-examination. He directed the jury in the following terms:

“Those were questions asked by [prosecution counsel] in cross-examination, members of the jury. You will remember that [counsel] was asking them to establish what the defendant said was his state of knowledge at the interview. He was telling you in evidence that at the interview he knew full well that [T.] had struck him the first blow, was the aggressor. He knew full well that she had caused a situation where he was acting in self defence. He knew full well that, in the end, she had plunged that knife deliberately into her chest.

Now those are all matters which you heard about in evidence, but which the officers in the interview ... did not hear at all, because when they asked questions directed to these matters the answer was no comment.

You have been rightly told as to what the law is in relation to inferences that you can draw. I told you a little earlier this morning that I would come to the law on this subject after I had dealt with the answers the defendant had given in his evidence before you as to why he did not mention those facts at the time of the interview. I now, therefore, give you this direction in law. As it is a direction in law, you must take the law from me. The facts, of course, are for you.

The defendant, as part of his defence, has relied on facts which he alleges. Those facts include the fact that [T.] attacked him and struck him first, and that what he did was only in self defence. She then plunged the knife into herself. He admits that he did not mention those facts when he was questioned under caution, before being charged with the offence.

The prosecution case is in the circumstances, when he was questioned, he could reasonably have been expected then to mention those facts. If you are sure that he did fail to mention them when he was questioned, and he accepts that, then you decide whether, in the circumstances, they were facts which he could reasonably have been expected then to mention. If they were, the law is that you may draw such inferences as appear proper from his failure to mention these matters at that time.

Failure to mention such a fact cannot on its own prove guilt but, depending on the circumstances, you may hold it against him in deciding whether he is guilty. That is, take it into account as some additional support for the prosecution case. You are not bound to do so. It is for you to decide whether it is fair to do so.

There is evidence before you, on the basis of which [defence counsel] invites you not to hold it against him that he failed to mention these facts. That evidence I have just reminded you of. It is evidence as to the state of his health at the time, the pain that he was experiencing and that he was acting on legal advice. If you think that that amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if it does not, in your judgment, provide an adequate explanation, or you are sure that the real reason for his failure to mention these facts was that he had no answer, or none that would stand up to cross-examination, then you may hold the adverse inference against him.

Let me warn you as to one inference which I direct you is one that you may not draw against him. You may not draw against him an inference that his account was only made up after the interview, and that it is therefore a post interview fabrication. That is because in his trial he was cross-examined. He said at the interview he was fully aware, when the police officers were questioning him, that T. had attacked him, that she had plunged the knife into herself, and that he had been acting only in self defence.

When he gave those answers in the witness box, the prosecution did not challenge that account. They accepted it. The inference they invite you to draw was not that it was made up after the interview. It is a different one. The inference they invite you to draw is that the account was false, and had already been made up on the day of the interview. But, on that day, the defendant was simply not prepared to expose the account to critical questioning and examination, which he feared would expose its falsity, in that it would not stand up to questioning and cross-examination at all.

That is the law in relation to inferences. You are entitled to look at the situation in that light, and come to the conclusion whether you will draw inferences against the defendant, or whether you will not.”

In a separate direction the trial judge also directed the jury that if they were to find the applicant guilty of manslaughter by reason of his diminished responsibility at the time of the offence they had to be satisfied that the applicant was suffering from an abnormality of mind, that that abnormality was caused or induced by disease or injury and that the abnormality “substantially impaired” the applicant’s responsibility for his act. The judge stated with reference to the expert medical witnesses called by the applicant and to the statutory requirements of section 2(1) of the Homicide Act 1957:

“You will probably be quite satisfied that the defence has established an abnormality of mind, has established that it was caused by disease. It will be the third element that you will move on to. Abnormality of mind proved to the necessary standard by the defendant. Abnormality induced by disease, the disease of a depressive illness, again proved.

So you would have to go on to the third question, which is whether the defendant’s mental responsibility was or was not substantially impaired by that abnormality of mind. You will want to consider the views of the experts on that question. But as you have heard, and as is the law, the decision as to whether or not his responsibility was substantially impaired is a matter for you, the jury.”

The trial judge subsequently advised the jury on the issue of “expert evidence” and the approach which they should take to the evidence given by the medical experts called by the applicant. He noted that Dr Eastman had stated under cross-examination that even if all three of the requirements contained in the Homicide Act 1957 were satisfied, his view depended on what he had been actually told by the applicant after the commission of the offence. The trial judge concluded his summing up by stating that the decision as to whether or not the applicant’s responsibility was “substantially impaired” was a matter for the jury to decide and that they were not bound by what the medical witnesses had said. The jury was told that if there was no evidence to cast doubt on the medical evidence, then they must accept that evidence. The judge then dealt with the issue as to what the defendant had said to the doctors on the basis on which they had formed an opinion. He reminded the jury that Dr Eastman had acknowledged that if that evidence was undermined, the basis for his opinion would disappear.

On 31 July 1997 the applicant was convicted of murder. He was given a mandatory life sentence.

On 8 December 1997 the Single Judge refused the applicant’s application for leave to appeal against conviction.

The applicant’s renewed application was heard by the Court of Appeal (Criminal Division). In his perfected grounds of appeal, the applicant asserted, inter alia , that the trial judge had misdirected the jury by leaving them the option of drawing an adverse inference in circumstances where the prosecution had not alleged that his account at the trial had not been recently fabricated. He maintained in the alternative that the trial judge was wrong to leave the jury the option of drawing adverse inferences in circumstances where the applicant had given unchallenged evidence that he could have given his account of the incident in interview.

The applicant also maintained before the Court of Appeal that the trial judge had misdirected the jury as regards the medical evidence which supported his defence of diminished responsibility. He referred in particular to his concerns that the judge’s first directions on this matter were contradictory and that the judge had failed to say what evidence pointed against the medical experts’ opinion.

The Court of Appeal dismissed the applicant’s appeal in its judgment delivered on 3 April 1998. Lord Justice Evans stated with respect to the issue of adverse inference:

“The third suggested ground of appeal arises under section 34 of the 1994 Act with regard to inferences that the jury might draw from the ‘No comment’ answers in interview. In his summing-up the learned judge reminded the jury of what had happened and in particular of the fact that the defendant’s solicitor had advised him not to answer questions at that stage. He referred also to the parts of the evidence where the defendant had been asked about this, and in particular he quoted the defendant’s answers which were as follows: ‘My solicitor said I was in no condition to answer. I would have tried my best to answer the questions. I understood what they said. It was fuzzy to me. My recollection was I couldn’t recall, but it came back to me in flashbacks. I couldn’t remember everything.’ He said, ‘I had to keep trying to remember. I tried to remember the best I could.’ He tried to work out what went on.

He was also asked: ‘You had the ability that day to say all of those things to the police, did you not?’ He said he could have said them to the police. He was asked, ‘You could have said those things?’, and said, ‘But I was advised not to say anything. On ill health, because I was so drugged up from the hospital. Like, I was hurting bad – and they knew I was hurting bad’.

Then the learned judge proceeded to consider the question of inferences, and he gave the jury an extended direction... He concluded as follows:

‘When he gave those answers in the witness box, the prosecution did not challenge that account. They accepted it. The inference that [they] invite you to draw was not that it was made up after the interview. It is a different one. The inference they invite you to draw is that the account was false, and had already been made up on the day of the interview. But, on that day, the defendant was simply not prepared to expose the account to critical questioning and information, which he feared would expose its falsity, in that it would not stand up to questioning and cross-examination at all.’

It was, in other words, not put to the defendant that he had invented or fabricated his account after the interview.

The submission made to us, as it was made to the learned judge in the course of the trial, was that no inference was possible and therefore the jury should have been directed, since the prosecution did not rely upon that inference, that no inference should be drawn by them against the defendant. This had been the subject of a ruling on 23rd July before speeches began. The judge ruled that it was unnecessary for the defence to call the solicitor who had given the advice because there was no suggestion of recent fabrication, meaning post-interview intervention.

We would hold that the submission which [prosecution counsel] made, and which the learned judge upheld, was correct. The inference described by the learned judge to the jury was a possible inference for the jury to draw. It would mean that the defendant already had it in mind to say that he had acted in self-defence, and the question would remain, if that was in his mind, why should he not say so? We therefore reject that suggested ground of appeal also.”

As to the issue of how the trial judge dealt with the applicant’s defence of diminished responsibility, Lord Justice Evans stated that he had no hesitation in holding that the trial judge’s directions on the matter were sufficient since he had made it clear to the jury that the doctors had agreed at the trial that their opinions were based on what the applicant had told them after the offence about his mental condition. It was in that context that the jury had to consider whether or not the applicant’s account to them was truthful.

B. Relevant domestic law and practice

Criminal Justice and Public Order Act 1994

Section 34 of the Criminal Justice and Public Order Act 1994 provides that:

“1. Where in any proceedings against a person for an offence, evidence is given that the accused –

(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.

2. Where this subsection applies ...

(c) the court, in determining whether there is a case to answer; and

(d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.

3. Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.”

Section 35(2) and (3) provides:

“(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)...”

Further details of the law and practice governing the interpretation of these provisions are set out in the Condron v. the United Kingdom judgment of 2 May 2000 (application no. 35718/97, to be published in the Court’s official reports).

Section 2(1) of the Homicide Act 1957 provides:

“Where a person kills or is a party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested development or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.”

COMPLAINTS

The applicant complains that he was denied a fair trial in breach of Article 6 § 1 of the Convention. In his submission, the trial judge erred in allowing the jury to draw inferences against the applicant’s interests notwithstanding the medical evidence dealing with both his physical and mental condition at the relevant time and that he was given no opportunity of dealing with such matters in cross-examination.

The applicant also complains under Article 6 § 2 of the Convention that the judge in his direction allowed the jury to draw an adverse inference from his failure to answer questions when interviewed by police officers on 17 June 1996.

THE LAW

The applicant complains that he was denied a fair trial, in breach of Article 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 ... hearing...

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

1 . The applicant maintains with reference to Article 6 § 1 of the Convention that the trial judge’s handling of the issue of his mental and physical condition at the time of the death of T. prejudiced the fairness of his trial. He criticises the judge’s direction to the jury on this point and complains that he was not given an opportunity to address these matters in cross-examination.

The Court notes that the applicant has not substantiated in what way he was unable to deal with the terms of the judge’s direction on this issue in cross-examination. In any event, it observes that the applicant was able to take this grievance on appeal. The Court of Appeal concluded that it found no reason to impugn the judge’s approach to the applicant’s alternative defences of diminished responsibility and provocation. For its part, the Court sees no reason to do so either and finds that the applicant’s complaint under this head does not disclose an appearance of a violation of Article 6 § 1.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2 . The applicant contends that the decision of the trial judge to leave the jury with the option of drawing an adverse inference from his silence during interview breached his right to be presumed innocence. The applicant refers in this connection to the arguments he advanced in the Court of Appeal proceedings. He relies on Article 6 § 2 of the Convention.

The Court recalls that in its Condron v. the United Kingdom judgment of 2 May 2000 (application no. 35718/97, to be published in the Court’s official reports) it considered a similar complaint from the standpoint of Article 6 § 1 of the Convention. It proposes to adopt the same approach in the instant case and to examine the applicant’s complaint from the standpoint of the fairness of the proceedings as a whole (see the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 249-B, pp. 34-35, §§ 34 and 39).

The Court notes that in the above-mentioned Condron case, 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 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. 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 . §§ 55-57).

With reference to the circumstances of the instant case, the Court observes that the applicant was under no legal compulsion to co-operate with the police and could not be exposed to any penal sanction for his failure to do so. The police were required under domestic law to administer a clear warning to the applicant about the possible implications of withholding information which he might later rely on at his trial. The applicant has not disputed that the police complied with this requirement. The Court further observes that the applicant’s solicitor was present throughout the whole of his interviews and was able to advise him not to volunteer any answers to the questions put to them.

The existence of these safeguards, although crucially important, cannot be considered decisive of the issue of fairness. The terms of the judge’s direction to the jury must also be carefully scrutinised in order to determine whether it struck the right balance between the applicant’s right to silence and the circumstances in which an adverse inference may be legitimately drawn from silence by the jury.

The Court notes in this connection that the trial judge gave due weight in his direction to the applicant’s explanation at his trial for his silence, namely his reliance on the advice of his solicitor that his physical and mental condition during the police interview made it inadvisable for the applicant to volunteer answers. The trial judge advised the jury:

“If you think that that amounts to a reason why you should not hold [the applicant’s] failure against him, do not do so. On the other hand, if it does not, in your judgment, provide an adequate explanation, or that you are sure that the real reason for his failure to mention these facts was that he had no answer or, or none that would stand up to cross-examination, then you may hold the adverse inference against him.”

In the Court’s opinion, the judge’s direction cannot be said to have addressed the applicant’s explanation for his silence in the police station in terms which left the jury at liberty to draw an adverse inference notwithstanding that it may have been satisfied as to the plausibility of the explanation (cf. the above-mentioned Condron judgment, § 61). It is to be further noted that the judge’s direction on this issue also came immediately after his warning to the jury that it was not bound to hold the applicant’s silence against him, that his silence could not “on its own prove guilt” and that an inference could only be drawn as a matter of common-sense. In this latter connection the Court must have regard to the weight of the evidence against the applicant at the time of the police interview.

The Court notes that, in accordance with section 34 of the Criminal Justice and Public Order Act 1994, it was the function of the jury, properly directed, to decide whether or not to draw an adverse inference from the applicant’s silence. It finds that in the instant case, and bearing in mind the other safeguards in place, the jury’s discretion on this question was confined in a manner which was compatible with the exercise by the applicant of his right to silence at the police station.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President