Regina v. Becouarn (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

Where a defendant risks disclosure of previous convictions because he has attacked prosecution witnesses, that risk does not ordinarily prevent a jury from being directed under section 35 of the Criminal Justice and Public Order Act 1994. The defendant retains the right not to testify, but cannot thereby obtain immunity from legitimate comment on the absence of an answer to a sufficiently compelling prosecution case.

An adverse inference is permissible only where the jury concludes that the only sensible explanation for the defendant’s silence is that he has no answer, or none capable of surviving cross-examination. The inference cannot establish guilt by itself. The trial judge retains an overriding discretion to exclude the convictions or withhold an adverse-inference direction where fairness in the particular case requires it. A direction inviting speculation about undisclosed reasons for silence is inappropriate.

The appellant was convicted after a retrial of two murders. His defence alleged that the principal prosecution witnesses had deliberately identified him falsely. Because those allegations put his character in issue, a ruling made at the first trial permitted cross-examination about most of his previous convictions if he testified. He did not give evidence.

The trial judge directed the jury under section 35 of the Criminal Justice and Public Order Act 1994 that it could draw a proper inference from his silence if the prosecution case called for an answer and the only sensible explanation was that he had no answer capable of withstanding cross-examination. The Court of Appeal dismissed his appeal and certified questions concerning whether such a direction was appropriate where testifying risked disclosure of previous convictions, and the required terms of the direction.

1. Appeal dismissed unanimously. Lord Carswell delivered the leading speech. Lord Steyn, Lord Hoffmann, Lord Hope of Craighead and Lord Scott of Foscote agreed with his reasons and the proposed order.

2. Per Lord Carswell, the rule stated in R v Cowan [1996] QB 373 was correct. A defendant who has attacked the character of prosecution witnesses should not ordinarily be able to avoid legitimate scrutiny of his own credibility by remaining outside the witness box. The possibility that testifying would expose previous convictions does not itself make a section 35 direction unfair. Treating that possibility as sufficient would also confer an unjustified advantage on defendants with convictions over defendants of good character.

3. A jury may draw an adverse inference only after finding that the prosecution evidence is sufficiently compelling to call for an answer. The failure to testify cannot establish guilt by itself. The jury must also conclude that the only sensible explanation for the silence is that the defendant has no answer to the case, or none that would withstand cross-examination. The Judicial Studies Board specimen direction fairly expressed those safeguards, although a trial judge may adapt it to give the clearest and fairest guidance in the circumstances.

4. Per Lord Carswell, a Lucas-type direction was inappropriate. An allusive reference to possible undisclosed reasons for silence could reveal that the defendant had convictions or encourage unfounded speculation. It could also misleadingly conceal the possibility that reluctance to face cross-examination was the predominant reason for silence.

5. The first certified question was answered affirmatively, subject to deleting “always”. A trial judge retains an overriding discretion to refuse admission of the convictions or to withhold an adverse-inference direction where either course would be unfair in the particular case. The second certified question therefore did not arise. Section 101 of the Criminal Justice Act 2003 had materially changed the law for later cases, but its effect was reserved for future determination.

1. House of Lords: The appeal was dismissed unanimously. The first certified question was answered affirmatively, subject to the trial judge’s overriding discretion in the interests of fairness. The second question did not arise.
2. Court of Appeal (Criminal Division): The court upheld the section 35 direction and dismissed the appeal. It certified two points of law of general public importance but refused leave to appeal.
3. Crown Court at Liverpool: Following a retrial before Gray J and a jury, the appellant was convicted on two counts of murder and sentenced to life imprisonment.