Tabbakh, R v

Under section 35(1)(b) of the Criminal Justice and Public Order Act 1994, the question whether it is undesirable for an accused to give evidence is a broad judicial evaluation. Although the statutory exception is founded on the accused’s physical or mental condition, the court may consider all the circumstances, including the significance of the evidence the accused could give.

A diagnosis or some difficulty in giving evidence does not itself make testimony undesirable. The judge must assess the nature and degree of the risk. Where the risk is limited and can be understood by a properly directed jury, the possibility of an adverse inference may remain available.

The appellant was convicted of preparing terrorist acts contrary to section 5(1) of the Terrorism Act 2006. The prosecution alleged that his written instructions and collected chemicals showed an intention to make a bomb. He maintained that he intended to make fireworks.

At trial, the appellant elected not to give evidence. He relied on post-traumatic stress disorder following torture in Syria, a risk of loss of self-control or memory difficulty, and a risk of self-harm. The trial judge ruled that section 35(1)(b) of the Criminal Justice and Public Order Act 1994 did not prevent the jury from drawing an adverse inference from his silence. He appealed against conviction and also sought leave to appeal a seven-year sentence.

1. The appeal against conviction was dismissed. Section 35(1)(b) poses a broad question for the trial judge. Its focus is the accused’s physical or mental condition, but the judge may consider all the circumstances in deciding whether giving evidence would be undesirable.

2. The trial judge was entitled to consider the importance of the evidence which the appellant could give on the central issues. The judge had found that the appellant had post-traumatic stress disorder and that giving evidence could increase a risk of self-harm. However, that risk was not one of severe harm. The appellant’s possible loss of self-control could be understood and allowed for by a jury, and the evidence did not establish a material inability to recall the relevant matters.

3. The court approved the broad conclusion in R (on the application of Director of Public Prosecutions) v Kavanagh [2005] EWHC 820 Admin. A physical or mental condition, or a difficulty in giving evidence, is insufficient unless its nature and effect make it undesirable for the accused to testify. The trial judge therefore made no flawed ruling. The jury was properly left to decide whether to draw an inference, having received careful directions and the medical evidence.

4. The application for leave to appeal sentence was refused. An eight-year starting point, reduced to seven years for the appellant’s mental condition, was neither manifestly excessive nor outside the available range for preparation to make a bomb for terrorist acts, notwithstanding that no viable bomb had yet been made. The court declined to lay down a general sentencing range. It also refused to certify a question of law of general public importance.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed in [2009] EWCA Crim 464. The application for leave to appeal against sentence and the application to certify a question of law were refused.
• Crown Court: The appellant was convicted by a jury of preparing terrorist acts and sentenced to seven years’ imprisonment.