R v Becouarn

The House of Lords upheld the Court of Appeal and dismissed the appellant's challenge to a jury direction given under section 35 of the Criminal Justice and Public Order Act 1994 allowing an adverse inference to be drawn from the defendant's failure to give evidence. The court affirmed the correctness of R v Cowan [1996] QB 373 and the Judicial Studies Board specimen direction as a fair formulation, while recognising that the trial judge retains a discretion to refuse to allow previous convictions to be put or to withhold a section 35 direction where, in the particular circumstances, doing so would be unfair.

The court rejected the submission that a Lucas-type direction should be given to invite jurors to consider a range of other possible reasons for silence, holding that such allusive directions risk misleading jurors or prompting unfounded speculation and are therefore unsuitable in cases where the defendant's previous convictions could legitimately be put to him.

Background and facts:

• On 1 October 1998 two men were shot dead and the appellant was later identified at an identification parade as the gunman by three witnesses present in the gymnasium. The appellant denied the identifications and challenged the witnesses' credibility. There was also circumstantial evidence linking the appellant to the getaway motorcycle and a mobile telephone call traced to him or his family near the time of the shooting.
• The appellant was tried, his first trial ending in a hung jury, and was retried before Gray J who convicted him of two counts of murder on 26 May 2000 and sentenced him to life imprisonment.

Procedural posture and relief sought:

• The appellant appealed to the Court of Appeal and then to the House of Lords. He contended that the section 35 direction given by Gray J was unfair because he had not given evidence partly out of fear that his previous convictions, if disclosed in cross-examination, would prejudice the jury. He sought to challenge the conviction on that basis.

Issues framed by the court:

1. Whether it is appropriate, where a defendant has previous convictions and may be cross-examined on them, to give a section 35 direction permitting an adverse inference to be drawn from the defendant's silence.
2. If so, what should be the form of such a direction.

Court's reasoning and decision:

• The House of Lords affirmed R v Cowan and the Judicial Studies Board specimen section 35 direction as generally fair to defendants. The court emphasised the continuing right to silence but accepted that, where a defendant has attacked the prosecution witnesses, it would be misleading to allow him to avoid cross-examination on convictions while also shielding him from legitimate comment on his silence.
• The court rejected the invitation to require a Lucas-type direction listing other possible reasons for silence: that approach risked signalling the existence of convictions or encouraging speculation about other reasons. The trial judge retained a discretion, however, to refuse to allow convictions to be put or to decline to allow adverse inferences where doing so would be unfair in the particular circumstances.
• The House of Lords therefore dismissed the appeal and answered the certified question about appropriateness of a section 35 direction in the affirmative but qualified by deleting the word "always" to reflect the trial judge's overriding discretion. The second certified question (on terms) did not arise.
• The court noted that section 101 of the Criminal Justice Act 2003 subsequently effected a material change in the law but reserved detailed comment on that change for a future case.

Appeal dismissed. The House of Lords held that a section 35 direction in the terms approved in R v Cowan and the Judicial Studies Board specimen is not unfair merely because the defendant might have refrained from giving evidence for fear that previous convictions would be exposed. The court rejected a requirement to give a Lucas-type direction and affirmed that trial judges retain an overriding discretion to withhold permission to put convictions or to decline to permit inferences where unfair in the particular case. The second certified question did not arise.

Convicted at the Crown Court at Liverpool after a retrial before Gray J (26 May 2000). An earlier trial before Owen J had resulted in a ruling permitting previous convictions to be put if the defendant testified. The Court of Appeal (Tuckey LJ, Keith J and Sir Brian Smedley) dismissed the appellant's appeal, certified two points of law of general public importance and refused leave to appeal; the case proceeded to the House of Lords, which dismissed the appeal ([2005] UKHL 55).