Good, R. v

On an appeal alleging deficient advocacy, the decisive question is whether the conviction is unsafe. Deficient representation alone does not suffice. The appellant must show an identifiable error or irregularity which made the trial unfair or unsafe.

Counsel advising a defendant whether to give evidence must explain the consequences of silence under Criminal Justice and Public Order Act 1994. A decision not to give evidence should be recorded, read to the defendant and signed before the statutory warning. Even where advice was inadequate and the defendant's decision was not informed, the conviction may remain safe after a full assessment of the trial evidence and directions.

The appellant was convicted at the Crown Court at Croydon of assault occasioning actual bodily harm. His defence was lawful self-defence after an altercation with a taxi driver. He gave no evidence and had answered no comment in police interview, although his defence was put in cross-examination.

After obtaining an extension of time and leave, he appealed against conviction. He contended that his trial counsel's advice had prevented him from making an informed decision whether to give evidence. The central issue was whether the advice was inadequate and, if so, whether his consequent failure to testify rendered the conviction unsafe.

1. Appeal dismissed. The court held that the appellant had not made an informed decision not to give evidence, but that the conviction remained safe.

2. By reference to Day [2003] EWCA Crim 1060, the court confirmed that criticism of trial advocacy does not itself establish a ground of appeal. The appellate court must determine whether identifiable errors or irregularities caused by the deficient representation rendered the process unfair or the conviction unsafe. It must make its own assessment of the evidence and of the effect of the alleged deficiency.

3. Counsel should advise, where appropriate, on the desirability of giving evidence and the consequences of not doing so under section 35 of the Criminal Justice and Public Order Act 1994. The court endorsed the practice identified in Bevan 98 Cr App R 354: where a defendant elects not to give evidence, counsel should record the decision and reasons, read the record to the defendant, obtain a signature before the statutory warning, and retain a copy.

4. The advice in this case was inadequate. Counsel incorrectly said that matters could not become worse if the appellant did not testify. He did not accurately explain that silence could permit an inference that there was no explanation, or none capable of withstanding cross-examination, where the prosecution case called for an explanation. The absence of evidence also reduced the basis on which the appellant could advance self-defence.

5. Nevertheless, the defence of self-defence had been fully put to the complainant and the jury received an unchallenged, full direction upon it. The evidence of the appellant's conduct after arrest, the marked disparity and nature of the injuries, and the excessive force used supplied a strong basis for rejecting an honest belief in the need for force or the proportionality of the force used. The deficient advice therefore did not make the conviction unsafe.

• Court of Appeal (Criminal Division) Granted an extension of time and leave to appeal, then dismissed the appeal against conviction: [2016] EWCA Crim 1054.
• Crown Court at Croydon The appellant was convicted by a jury of assault occasioning actual bodily harm and sentenced to 18 months' imprisonment.