Barry, R v

Section 35 of the Criminal Justice and Public Order Act 1994 is not excluded merely because diminished responsibility is in issue. The statutory safeguard applies where the accused’s physical or mental condition at trial makes it undesirable to give evidence. Otherwise, the judge must decide whether an adverse inference would be proper in all the circumstances.

A direction is not automatic. The judge should prevent an inference where the evidence or exceptional circumstances leave no proper scope for one. A careful direction may, however, be given where the accused could give evidence materially relevant to the degree of diminished responsibility.

The appellant was convicted of murder at Birmingham Crown Court on 9 December 2008 after stabbing his partner while both had been drinking heavily. He suffered from Alcohol Dependency Syndrome, which was accepted to be an abnormality of mind for the purposes of diminished responsibility. The issue at trial was whether it had substantially diminished his responsibility for the killing.

The appellant did not give evidence. The trial judge ruled that the jury could receive a careful adverse-inference direction under section 35 of the Criminal Justice and Public Order Act 1994. The appeal challenged that ruling and the resulting direction, contending that it was inappropriate in a diminished-responsibility case.

1. Appeal dismissed. The conviction was safe. The trial judge was entitled to give a careful direction under section 35 of the Criminal Justice and Public Order Act 1994.

2. Diminished responsibility does not create a general exemption from section 35. The older approach reflected in Bathurst (1968) 52 Cr App R 251 concerned defendants who were, at trial, affected by delusions or close to insanity. Such circumstances are now specifically addressed by section 35(1)(b), which prevents section 35(3) applying where the accused’s physical or mental condition makes it undesirable to give evidence.

3. Where that statutory safeguard does not apply, section 35(3) permits only inferences that appear proper. Following the approach in Cowan [1996] 1 Cr App R 1, a judge may direct the jury against drawing an inference where there is an evidential basis or exceptional feature making that course fair. The discretion remains broad and requires attention to the circumstances of the individual case.

4. Here, the appellant was not disadvantaged from giving evidence at trial. Even if he genuinely lacked memory of the stabbing, he could have addressed matters material to diminished responsibility, including his drinking, ability to resist alcohol, relationship with the deceased, events before the stabbing and his emotions. There was therefore proper scope for an inference. The conventional direction included the necessary safeguards and did not withdraw diminished responsibility from the jury.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2010] EWCA Crim 195.
• Crown Court at Birmingham: convicted the appellant of murder on 9 December 2008.