Ensor, R. v

For the exception in section 35(1)(b) of the Criminal Justice and Public Order Act 1994 to apply, there must be evidence that the accused’s physical or mental condition makes giving evidence undesirable. Difficulty, ordinary stress, or a merely possible adverse effect on mental health is insufficient. Expert evidence relied on for that purpose must be disclosed promptly under the Criminal Procedure Rules. A grave and tactical breach of those duties may justify exclusion.

A judge need not hold a voir dire where the witness statements provide credible evidence capable of proving the disputed continuity issue before the jury. Where the section 35 exception is not established, the judge retains a discretion to give an adverse-inference direction.

The appellant was convicted at Stafford Crown Court of robbery, possessing a firearm while committing a specified offence, and possessing criminal property. The prosecution case was circumstantial. It included evidence linking keys found in the appellant’s garage to padlocks securing a garage containing the car used in the robbery.

After the close of the prosecution case, the defence sought to adduce a psychiatrist’s report to explain why the appellant would not give evidence and to prevent an adverse inference under section 35 of the Criminal Justice and Public Order Act 1994. The trial judge refused the application because of its late disclosure and its content. He subsequently directed the jury on the possible inference from the appellant’s silence.

The appeal challenged the exclusion of the report and, by renewed application, the refusal to hold a voir dire on the continuity of the keys and padlocks. A contingent renewed application challenged the sentence.

1. The appeal against conviction was dismissed. The renewed application on the continuity ground was refused. The renewed application for leave to appeal against sentence was also refused.

2. Section 35(1)(b) of the Criminal Justice and Public Order Act 1994 requires evidence from which the court can conclude that the accused’s physical or mental condition makes it undesirable for him to give evidence. The statutory word denotes a significantly adverse effect arising from giving evidence. Extreme difficulty in testifying, ordinary courtroom stress, and a stated possibility of harm did not meet that standard on the psychiatrist’s report. R v Anwar & Ors [2008] 2 Cr App R 36 was materially different because the judge there had accepted medical evidence that it was undesirable for the accused to testify.

3. The defence had gravely breached the Criminal Procedure Rules by failing to alert the court and prosecution promptly to its potential reliance on expert evidence. The report had been obtained before trial, but was disclosed only after the defence had decided that the appellant would not testify. The judge was entitled to regard that course as a tactical ambush and to exclude the evidence. If the psychiatrist was not to testify, section 30(2) of the Criminal Justice Act 1988 independently required leave for the report to be adduced.

4. Once the report was excluded, there was no evidential basis for the section 35(1)(b) exception. The judge could therefore give the adverse-inference direction and exercised that discretion without error.

5. On the continuity issue, the judge had the relevant police statements and could decide that they disclosed credible evidence capable of proving the connection between the keys and the padlocks. A voir dire would have served no purpose; the issue was properly left to the jury.

6. The twelve-year sentence for the armed robbery was neither wrong in principle nor manifestly excessive, having regard to the value taken, the sawn-off shotgun, the disguise and the appellant’s record.

• Court of Appeal (Criminal Division) — dismissed the conviction appeal under [2009] EWCA Crim 2519, refused the renewed application on the continuity ground, and refused renewed leave to appeal against sentence.
• Crown Court at Stafford — following a jury trial before His Honour Judge Eades, convicted the appellant of robbery, possessing a firearm while committing a specified offence, and possessing criminal property; imposed concurrent sentences of 12 years’ and two years’ imprisonment.