Cox, R v

A conviction appeal based on a defendant’s alleged inability to decide whether to testify will fail where the evidence does not show that distress, medication or other circumstances deprived the defendant of the capacity to make an informed and voluntary decision. Experienced counsel may give firm tactical advice, but must convey that the ultimate decision is the defendant’s. An adjournment or medical assessment is not required where, after proper assessment, counsel reasonably conclude that the defendant is fit to decide.

An adverse-inference direction under section 35(2) of the Criminal Justice and Public Order Act 1994 is not undermined merely by the same unsubstantiated complaint.

The applicant was convicted at Oxford Crown Court of two murders arising from a fire at a derelict property. During the trial, shortly after learning that his brother had died, he decided not to give evidence. He later contended that he had not been fit to make that decision and that the trial should have been adjourned. He also challenged the judge’s direction that the jury could draw an adverse inference from his failure to testify.

The renewed application, made almost three years out of time, was supported by proposed additional evidence from the applicant, an appropriate adult, a member of the defence solicitors’ staff and trial counsel. The central issues were whether the applicant could make an informed decision and whether the adverse-inference direction was thereby invalid.

1. The court refused an extension of time and dismissed the renewed application for leave to appeal against conviction. The proposed fresh evidence was not received under section 23 of the Criminal Appeal Act 1968, because it did not support a complaint capable of belief or afford a ground for allowing the appeal.

2. The court rejected the applicant’s account that he did not understand the signed document recording his decision not to testify. The contemporaneous records and the other evidence showed repeated discussions about whether he should give evidence, the consequences of not doing so, and the fact that the ultimate choice was his.

3. Trial counsel had properly recognised the seriousness of the decision. They investigated the medication, sought assistance from a person known to the applicant, assessed his condition at further conferences, and remained alert to a possible adjournment. Their evidence, supported by the solicitor’s representative and the contemporaneous material, established that the applicant was distressed but able to make an informed decision. There was no medical evidence that the medication had impaired that ability.

4. Counsel’s advice that the applicant should not give evidence was a tactical decision within the range reasonably open to them. Although another advocate might have sought a medical assessment or a short postponement, the failure to take either step was not wrong. The events of the weekend did not invalidate the applicant’s decision.

5. The challenge to the direction under section 35(2) of the Criminal Justice and Public Order Act 1994 could not succeed independently. There was no complaint about the terms of the summing-up. The judge included the defence’s countervailing arguments and properly left the question of adverse inference to the jury. There was no basis for a voir dire or medical evidence on that issue.

• Court of Appeal (Criminal Division): refused the applicant’s lengthy extension of time and dismissed his renewed application for leave to appeal against conviction.

• Oxford Crown Court: convicted the applicant of two counts of murder on 25 April 2008. On 17 October 2008 he was sentenced to life imprisonment with a minimum term of 20 years, less time spent on remand.