Welland, R. v (Rev 1)

An accused who wishes to give evidence must receive a full and fair opportunity to do so. Where genuine illness during trial makes testimony unsafe or impracticable, the court should not continue without carefully investigating, including by obtaining medical evidence where appropriate, whether reasonable measures could enable the accused to testify.

A direction that no adverse inference may be drawn under Criminal Justice and Public Order Act 1994 is not necessarily sufficient to cure the resulting unfairness. The direction should explain the practical consequence that the jury has not heard and assessed the accused’s account first hand.

The appellant was tried in the Crown Court at Norwich for wounding with intent and causing serious injury by dangerous driving after his vehicle injured the complainant. He was acquitted of wounding with intent but convicted of causing serious injury by dangerous driving.

During the trial he suffered several genuine stress-induced seizures, including seizures in court. The defence had intended to call him, but counsel decided that it was unsafe for him to give evidence. The trial judge refused to discharge the jury or allow time for medical evidence about measures that might enable him to testify. The appellant appealed against conviction on the basis that the process was unfair and his conviction unsafe.

1. Appeal allowed and conviction quashed. The trial was unfair and the conviction was unsafe because the judge required the trial to continue without properly considering whether the appellant could be enabled to give evidence in his own defence.

2. The appellant remained able to follow the proceedings and instruct counsel, including through a video link. This was therefore not a trial held in his absence. But participation alone did not answer the separate and important question whether he had a real opportunity to testify.

3. The appellant genuinely wished to give evidence, and the conflicting accounts of the incident made credibility central. His seizures were genuine, apparently stress-induced, and created a substantial risk of further seizures if he testified. Once those circumstances arose, the initial refusal of an adjournment no longer governed the position.

4. The judge should have allowed time to obtain medical evidence on the significance and management of the seizures, and on reasonable measures such as rest or medication which might have enabled testimony. It was unfair to proceed without investigating that possibility and then to criticise the absence of such evidence.

5. The judge’s direction under section 35 of the Criminal Justice and Public Order Act 1994 that no adverse inference could be drawn did not itself resolve the problem. The court stated, as an alternative observation, that a sufficient direction should explain that the jury had not heard the appellant’s account first hand or assessed its credibility, and should address significant matters not covered in interview.

6. The court rejected the separate submission that a summing-up must mechanically balance prosecution-favourable observations with defence points. Its essential function is to identify the most relevant evidence and relate it to the factual issues. Although some comments were inapt, the summing-up did not independently render the trial unfair.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction for causing serious injury by dangerous driving.
• Crown Court at Norwich: Acquitted the appellant of wounding with intent and convicted him of causing serious injury by dangerous driving.