Branchflower, R v

A summing-up is sufficient if it clearly identifies the issue for the jury and the substance of the defence. It need not repeat an accused’s interview account where the jury has heard it, has the transcript and has been accurately directed on the competing case.

An adverse inference from a failure to testify may be drawn only where the jury is sure that the accused has no answer, or no answer capable of withstanding examination. Where interview silence is disclosed, an appropriate direction should be given, but its omission will not render a conviction unsafe unless it could realistically have affected the verdict.

The appellant was convicted of murder after taking a car from a confined forecourt and running over its owner. He had pleaded guilty to manslaughter and aggravated vehicle taking, but denied deliberately driving at the deceased.

A previous, limited appeal had been rejected. The Criminal Cases Review Commission later referred the conviction under section 9 of the Criminal Justice Act 1995. The appellant advanced further grounds concerning the summing-up, adverse-inference directions, psychiatric evidence, advice on his plea and advice not to give evidence.

The central issue was whether any alleged deficiency made the murder conviction unsafe.

1. Appeal dismissed. The summing-up adequately identified the decisive issue: whether the appellant deliberately drove at the deceased intending to kill or cause really serious harm. It also made clear that, if the appellant had merely intended to drive away and could not avoid the deceased falling in front of the car, the proper verdict was not guilty of murder. Although it would have been better to repeat the interview account, the jury had heard it and had the relevant material.

2. The direction on failure to give evidence correctly confined any adverse inference to the case where the jury was sure that the appellant had no answer, or none which would withstand cross-examination. The jury were also directed that there must first be a case to answer and that any inference had to be fair.

3. A direction on interview silence should have been given. The appellant had given no-comment answers on legal advice. However, no one had suggested that he was at fault for those answers, and any effect of interview silence was insignificant beside his failure to give evidence. The omission did not affect the safety of the conviction.

4. There was no basis for criticising counsel’s decision not to call psychiatric evidence. The report did not establish an inability to testify, and calling the psychiatrist would have exposed damaging matters. The real reason for the appellant’s absence from the witness-box was the proper assessment that his account would not withstand examination.

5. The advice to plead guilty to manslaughter was proper in substance. In any event, the plea could not have affected the murder verdict, since murder required the jury to be satisfied that the appellant deliberately drove at the deceased knowing that he was there.

6. There was no evidential basis for a direction that the appellant had remained silent on legal advice. Counsel could not rely before the jury on such advice without disclosing its basis, which was prohibited by R v Cowan [1996] 1 Cr App R 1. Disclosure with consent would waive privilege and invite inquiry into why the advice was given.

• Court of Appeal (Criminal Division): dismissed the appeal against the murder conviction in [2009] EWCA Crim 1239.
• Criminal Cases Review Commission: referred the conviction under section 9 of the Criminal Justice Act 1995; the reference operated as leave to appeal.
• Earlier Court of Appeal proceedings: a limited challenge concerning aggravated vehicle taking was rejected; no citation is stated in the judgment.
• Trial court: convicted the appellant of murder. He had pleaded guilty to manslaughter and aggravated vehicle taking.