R v Shay Shaw

Section 35(1)(b) is concerned with whether giving evidence would damage an accused’s physical or mental well-being, potentially irretrievably. A condition does not automatically make giving evidence undesirable. Fatigue, poor recall, concentration difficulties, unresponsiveness, mood changes, or concern about a poor impression are ordinarily difficulties to be managed in the trial process. The trial judge has a wide, fact-sensitive discretion. An appellate challenge is arguable only for an irrelevant or omitted relevant factor, or a conclusion no reasonable judge could reach. Measures including an intermediary, regular breaks, short days and structured questioning may facilitate evidence. In light of such developments, the exception should be invoked even more infrequently.

Shay Shaw was convicted at Snaresbrook Crown Court of two counts of attempted murder and possessing a firearm with intent to endanger life. He had mental health difficulties and a traumatic brain injury. An intermediary and other trial accommodations were provided. After he declined to give evidence, the judge gave the statutory adverse-inference direction. The applicant sought permission to appeal against conviction, arguing that the judge should have excluded the direction under section 35(1)(b). The central issue was whether his physical or mental condition made it undesirable for him to give evidence.

Application for permission to appeal refused. The Full Court held that the proposed appeal against conviction was not arguable.

1. Section 35(1)(b) of the Criminal Justice and Public Order Act 1994 concerns whether giving evidence would damage the accused’s physical or mental well-being, possibly irretrievably. The issue is not merely whether the accused has a condition or might find giving evidence difficult. The court applied the approach described in R v Ensor [2009] EWCA Crim 2519. R v Hamberger [2017] EWCA Crim 273 illustrated a case in which giving evidence was potentially life-threatening.
2. The provision confers a wide, fact-sensitive discretion on the trial judge. The court applied the principle identified in R Dixon [2013] EWCA Crim 465. A challenge is arguable only where the judge took an irrelevant factor into account, failed to take a relevant factor into account, or reached a conclusion that no reasonable judge could have reached.
3. A physical or mental condition does not automatically engage the exception. Difficulties involving fatigue, recall, responsiveness, mood or the risk of making a poor impression can ordinarily be managed by experienced judges and counsel, with suitable directions to the jury. Concern about loss of self-esteem was insufficient. The court applied the reasoning in R v Tabbakh [2009] EWCA Crim 464.
4. The judge had observed the applicant throughout a three-week trial and had made a detailed ruling. An intermediary, regular breaks, short days, conferences, visual material and potentially pre-approved questions were available. The evidence the applicant might give was narrow. There was no evidence of a significant detrimental effect on his physical or mental health, and the identified difficulties could be accommodated.
5. The court accepted that understanding of mental health and trial-support measures had developed. It concluded that section 35(1)(b) should therefore be invoked even more infrequently. If such measures were unavailable or could not properly assist, the defendant might instead be unfit to plead, as in R v Friend [1997] 2 All ER 111. That was not this case.

1. Crown Court at Snaresbrook: The applicant was convicted on 21 October 2025 and sentenced to 14½ years’ detention.
2. Court of Appeal (Criminal Division): The Registrar referred the application for permission to appeal against conviction to the Full Court. The application was rejected.