Mathew Jones v R

Under section 35(1)(b) of the Criminal Justice and Public Order Act 1994, the question whether it is undesirable for a defendant to give evidence requires a broad assessment of all relevant circumstances. Difficulty in giving evidence will usually be insufficient, and cases meeting the threshold will be exceptional. However, where uncontested psychiatric evidence establishes that a defendant cannot distinguish reality from delusion, it is undesirable to expect that defendant to testify. The jury should not be invited to draw an adverse inference from the resulting silence.

Expert psychiatric evidence may assist the jury to understand a defendant's presentation. It must not usurp the jury's exclusive function of deciding the truthfulness or credibility of the defendant's account, save where an opinion on an ultimate issue is necessary to provide substantial assistance.

Mathew Jones v R concerned an appeal against a conviction for murder in the Crown Court at Manchester. The appellant accepted responsibility for killing the deceased but relied on self-defence and the partial defences of loss of control and diminished responsibility.

Both psychiatrists agreed that the appellant had paranoid schizophrenia, lacked insight into his illness and could not distinguish his delusions from reality. The trial judge nevertheless permitted an adverse-inference direction following the appellant's decision not to give evidence, under section 35 of the Criminal Justice and Public Order Act 1994. The central issue was whether his mental condition made it undesirable for him to give evidence and whether the direction rendered the conviction unsafe.

1. Appeal allowed. The court quashed the murder conviction and ordered a retrial. The section 35 direction could have had a significant and impermissible adverse effect on the jury's assessment of self-defence, loss of control and diminished responsibility. The verdict was therefore unsafe.

2. The inquiry under section 35(1)(b) of the Criminal Justice and Public Order Act 1994 is broad. The judge must consider all relevant circumstances in deciding whether a defendant's physical or mental condition makes it undesirable for that person to give evidence. A condition or an ordinary difficulty in giving evidence does not suffice. The provision will ordinarily apply only exceptionally.

3. This was such an exceptional case. The psychiatrists' uncontested evidence was that the appellant could not distinguish reality from delusion. No adjustment to the giving of evidence could cure that fundamental difficulty. Taking an oath or answering basic questions would have been essentially meaningless, and the jury had no rational basis for rejecting the agreed clinical fact. It was consequently undesirable to expect the appellant to testify, and the jury should have been directed not to hold his silence against him.

4. The court also held that the trial judge had adopted a wrong approach to the psychiatric evidence. Following R v Mulindwa [2017] EWCA Crim 416, expert evidence may help a jury understand the presentation of a defendant with a disability. It may not amount to an opinion on the credibility or truthfulness of the defendant's account, which remains for the jury. The experts could identify features tending to indicate a real or delusional account and their relative force, but the jury should ordinarily decide the ultimate question for itself.

• Court of Appeal (Criminal Division): In Mathew Jones v R [2021] EWCA Crim 1315, the court allowed the appeal against conviction, quashed the conviction and ordered a retrial.

• Crown Court at Manchester: On 27 January 2021, the appellant was convicted of murder. On 1 February 2021, he was sentenced to life imprisonment with a 20-year minimum term under section 322(2) of the Sentencing Act 2020, less time spent on remand.