Dixon v R

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 broad and fact-specific. It is not confined to the risk of harm to the accused’s health. The court may consider the accused’s condition, the practical safeguards available, the importance and nature of the proposed evidence, and whether a fair-minded jury can assess any resulting difficulty. Mere difficulty in giving evidence does not suffice.

A vulnerable accused must be enabled to participate effectively, but procedural shortcomings do not make a trial unfair where the accused understands its essential issues, can instruct lawyers, and receives effective practical assistance. Fresh expert evidence will not ordinarily be admitted where it merely amplifies material available at trial and affords no ground for allowing the appeal.

The appellant, aged 17 at the time of the offence, was convicted at the Central Criminal Court of the murder of Ben Gardner. The Crown alleged that he and two co-accused were jointly responsible for a fatal group assault. The appellant relied principally on self-defence and did not give evidence.

The trial judge permitted an adverse inference from his failure to testify under section 35(1)(b) of the Criminal Justice and Public Order Act 1994. The appellant had significant learning, language and communication difficulties, but a registered intermediary assisted him throughout most of the trial.

On appeal, he challenged the adverse-inference ruling, sought to adduce further psychological evidence, and contended that shortcomings in the trial arrangements prevented effective participation. He also appealed the 14-year minimum term imposed on his detention at Her Majesty’s pleasure.

1. The appeal against conviction was dismissed. Section 35(1)(b) of the Criminal Justice and Public Order Act 1994 is not confined to cases in which giving evidence would damage the accused’s health. The statutory question is broad. It requires consideration of the accused’s condition and all the circumstances, while recognising that ordinary difficulties in giving evidence are normally matters for the tribunal of fact.

2. The trial judge was entitled to consider the appellant’s ability to give a self-defence account, his earlier accounts of events, the assistance available from an intermediary, and the likely approach of a fair-minded jury. The judge had not applied an unduly narrow test from R v Ensor [2010] 1 Cr App R 18. No blanket rule applies to young accused persons or those with mental difficulties; the statutory decision must be made on the facts of the individual case.

3. The proposed fresh evidence was not admitted under section 23 of the Criminal Appeal Act 1968. Apart from a lower IQ measurement, it substantially amplified difficulties known before trial. Similar evidence could reasonably have been obtained and used then. It afforded no ground for allowing the appeal, and admission was not in the interests of justice.

4. There had been regrettable shortcomings in adapting the trial for a vulnerable defendant, including the absence of a ground-rules hearing and insufficient modification of courtroom language. Nevertheless, the appellant participated effectively. He understood the essential issues, could instruct his lawyers, and received real assistance from the intermediary. The evidence was comparatively straightforward and was repeatedly available on CCTV. The shortcomings therefore did not render the trial unfair.

5. The appeal against sentence was allowed. A modest increase from the 12-year starting point was justified, but the appellant’s age and maturity had to remain material when setting that increase. In a truly joint enterprise, no adequate reason justified increasing his minimum term by two years when the older co-defendants received increases of one year. The minimum term was reduced to 13 years, with remand time to count in the usual way.

• Court of Appeal (Criminal Division) — In [2013] EWCA Crim 465, dismissed the appeal against conviction but allowed the appeal against sentence to the extent of reducing the minimum term from 14 to 13 years.
• Central Criminal Court — On 12 October 2010, convicted the appellant of murder. On 15 October 2010, ordered detention at Her Majesty’s pleasure with a 14-year minimum term, less time spent on remand.