Robinson v Crown Prosecution Service

A criminal trial is not necessarily unfair, or abusive, because the judge does not use the precise wording of a practice direction concerning the defendant’s right to give evidence and possible adverse inferences. Fairness is substantive and depends on the circumstances, including whether the omission caused, or could have caused, procedural prejudice. Where the defendant already intends to give evidence, omission of an additional warning about adverse inferences will not ordinarily establish unfairness. The abuse-of-process jurisdiction is engaged where it is unfair to try the defendant at all or where no fair trial is possible because of an unfair procedure.

The appellant had been convicted of using an uninsured quad bike on a road or public place, contrary to section 143 of the Road Traffic Act 1988. His appeal to the Crown Court was dismissed. The Crown Court inferred from the sand on the bike, the heat of its engine and its movement from the beach to the cinema car park that the appellant had used it, although no witness had seen him riding or pushing it.

Before the Divisional Court, the appellant challenged the fairness of the Crown Court proceedings. He argued that, as an unrepresented 17-year-old, he had not been adequately warned that adverse inferences might be drawn if he did not give evidence. The question was whether that omission made the trial unfair or an abuse of process.

1. Appeal dismissed. The Crown Court was entitled to infer beyond reasonable doubt that the appellant had used the quad bike in moving it from the beach to the car park. Direct eyewitness evidence was unnecessary where the surrounding evidence made the inference inevitable unless satisfactorily explained.
2. The governing abuse-of-process test, stated in R v Derby Magistrates ex parte Brooks [1985] 80 Cr App R 164 and R v Beckford [1996] 1 Cr App R 94, required consideration of whether it was unfair to try the defendant at all or whether no fair trial was possible because of an unfair procedure.
3. The Crown Court judge explained that the appellant could give evidence and that he was not required to do so. Although the judge did not complete the practice-direction wording by expressly stating that the court might draw adverse inferences, that omission did not make the trial unfair in context. The appellant had already decided to give evidence, so the omission did not cause him to remain silent when he might otherwise have spoken.
4. Fairness is a matter of substance rather than form. A trial is not necessarily unfair merely because the judge does not use the precise language of a practice direction. The judge’s explanation was accessible and appropriately adapted to the appellant’s age.
5. There was no abuse of process. The appellant’s admissions and the surrounding evidence meant that his conviction did not depend on any unfair inducement to give evidence at the Crown Court.

• High Court (Administrative Court): The Divisional Court considered the Crown Court’s dismissal of the appellant’s appeal against conviction and dismissed the appeal.