Phillips, R v

Defence counsel may invite a jury to consider a reason for a defendant’s failure to give evidence only where there is an evidential foundation for that reason. The jury must not be invited to speculate about whether silence arose from fear, loyalty, or another possible motive. A relationship with a person who may have been implicated in the events, without evidence that it influenced the defendant’s decision, does not supply that foundation.

The appellant was convicted at Nottingham Crown Court of conspiracy to rob, contrary to section 1(1) of the Criminal Law Act 1977, and sentenced to eight years’ imprisonment.

The Crown case was circumstantial. It relied principally on telephone and vehicle-purchase evidence said to connect the appellant with the acquisition of a getaway car. The appellant did not give evidence or call witnesses.

In his closing speech, defence counsel invited the jury to infer that the appellant’s silence might have reflected fear for, or loyalty to, his girlfriend, who was the mother of his child and had initially been charged. The trial judge ruled that counsel could not advance reasons for silence without evidential support. The appellant appealed against conviction and sentence, contending that the intervention was wrong and undermined the defence case.

1. The court dismissed the appeal against conviction and sentence.

2. A defence advocate may address the jury on the whole of the evidence. However, counsel may not invite the jury to attribute a particular reason to the defendant’s silence unless evidence provides a foundation for that inference. The suggested motives of fear and loyalty were distinct, and there was no evidence from which the jury could safely determine whether either affected the appellant’s decision not to testify.

3. The court applied the approach identified in Cowan (1996) 1 Cr.App.R 1 and Becouarn [2005] 1 WLR 2589. The optional direction considered in Becouarn requires evidence capable of supporting the proposed explanation for silence. No such evidence was before this jury. The defence submissions were therefore impermissible, and the judge’s intervention was appropriate.

4. The court also rejected the contention that the intervention rendered the conviction unsafe. The judge’s language was moderate and confined to the improper invitation to speculate. It did not undermine the remainder of counsel’s submissions.

5. On sentence, the judge had properly taken account of the appellant’s limited role together with the serious aggravating features of the planned robbery, including multiple offenders, a getaway car, disguises, threats of shooting, the victim’s distress, and the appellant’s antecedents. The eight-year sentence was not excessive.

1. Court of Appeal (Criminal Division) — by [2015] EWCA Crim 836, dismissed the appeals against conviction and sentence.

2. Crown Court at Nottingham — on 6 February 2014, convicted the appellant of conspiracy to rob contrary to section 1(1) of the Criminal Law Act 1977 and imposed an eight-year sentence.