Director of Public Prosecutions, R (on the application of) v Kavanagh

Under section 35 of the Criminal Justice and Public Order Act 1994, a court may decline to draw an inference from a defendant’s silence only where there is an evidential basis for finding that the defendant’s physical or mental condition made it undesirable for him to give evidence. A submission or warning by an advocate is not evidence. A condition that merely makes giving evidence difficult is insufficient.

Where the prosecution case is sufficiently strong to call for an answer, and no sensible explanation for silence appears, an adverse inference will ordinarily be appropriate. Magistrates must also distinguish between rejecting prosecution evidence or finding it insufficient and positively finding that an event did not occur.

The Director of Public Prosecutions appealed by way of case stated from the acquittal of Shaun Kavanagh by justices of the Ealing Petty Sessions Area. He had been charged with assaulting a police officer in the execution of his duty after his head came into contact with the officer’s head during a struggle at his home.

The magistrates found that the contact was not intentional and declined to draw an inference from Mr Kavanagh’s failure to give evidence. The case stated raised questions concerning the drawing of inferences from silence, the available findings on intention and recklessness, and whether the magistrates’ conclusions were open on the evidence.

1. Appeal allowed. The case was remitted to a fresh bench of magistrates or a criminal district judge.

2. Section 35(1)(b) of the Criminal Justice and Public Order Act 1994 gives the trial court a wide discretion to decide whether the defendant’s physical or mental condition makes it undesirable for him to give evidence. That discretion requires an evidential basis. A solicitor’s warning that the defendant might not give evidence is not evidence, and evidence that the defendant had suffered from depression, without more, did not justify the conclusion that giving evidence was undesirable. The magistrates had also failed to ask themselves the statutory question.

3. The fact that a defendant may have difficulty giving evidence is insufficient. Such difficulties generally bear on the reliability or weight of evidence, rather than justifying a comprehensive failure to give evidence. Where the prosecution case is so strong that it clearly calls for an answer, and the only sensible explanation for silence is that the defendant has no answer or none capable of bearing examination, the court will ordinarily draw an adverse inference. In the circumstances, the magistrates’ stated reason for drawing no inference was not proper or sufficient.

4. The magistrates’ positive finding that the defendant had not acted deliberately was not rationally open on the evidence as stated. They recorded that the police evidence was clear and unequivocally described a deliberate head-butt. They did not reject that evidence or find it insufficient to prove deliberateness, and there was no positive evidence that the contact was accidental. They could reject the officers’ evidence or find the prosecution had not proved a deliberate head-butt, but could not positively find that the defendant had not acted deliberately on the evidence before them.

5. The question concerning recklessness was not answered because the case stated did not make the factual basis sufficiently clear. The questions concerning deliberateness, silence and the findings made by the magistrates were answered in the negative.

• Magistrates’ Court: The justices acquitted the defendant on 3 August 2004.
• High Court (Administrative Court): The appeal by way of case stated was allowed. The case was remitted to a fresh bench of magistrates or a criminal district judge.