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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dixon v R  EWCA Crim 465 (17 April 2013)
Cite as:  Crim LR 141, (2013) 177 JP 361,  WLR 525,  3 All ER 242, 177 JP 361,  1 WLR 525,  EWCA Crim 465
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ON APPEAL FROM CENTRAL CRIMINAL COURT
HHJ HONE QC
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SAUNDERS
HIS HONOUR JUDGE MILFORD QC
| Jordan Dixon
|- and -
Mr Altman QC and Mr D Atkinson (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 12th - 13 March 2013
Crown Copyright ©
Lord Justice Treacy:
The adverse inference and pre-trial reports
"10.4 Dixon was examined by a forensic medical examiner at 10:50pm on 9th January. He indicated to the doctor that he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) three years earlier, and suffered from learning difficulties and in particular dyslexia. He was deemed fit to be interviewed, providing that an appropriate adult was present to assist him and monitor his welfare in view of his learning difficulties, and further he indicated that he had difficulties reading and writing. Dixon was seen by another doctor at 11:49am on 10th January.
10.5 Following two full recent assessments it was determined that: (a) Jordan Dixon has a full scale IQ of 68; (b) further, he has: (i) low non-verbal abilities, (ii) poor working memory, (iii) a lack of knowledge and concepts normally gained through education, (iv) a limited vocabulary and semantic knowledge, and (v) a severe stammer. (c) Jordan did not know what a "jury" "defence" "evidence" "oath" "alleged" meant; (d) people with learning difficulties are often compliant and easily led, (e) Jordan has language levels around the equivalent of a 7-8 year level."
The Grounds of Appeal in summary
The First Ground
" (b) It appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence."
"The physical or mental state has to be such that it is "undesirable for the accused to give evidence". That must mean that, because of the defendant's physical or mental state, if he gives evidence it will have a significantly adverse effect on him, such as to make it "undesirable" for him to give evidence."
"We accept that apart from the mandatory exceptions in Section 35(1), it will be open to a court to decline to draw an adverse inference from silence at trial and for a judge to direct or advise a jury against drawing such inference if the circumstances of the case justify such a course. But in our view there would need either to be some evidential basis for doing so or some exceptional factors in the case making that a fair course to take. It must be stressed that the inferences permitted by the section are only such "as appear proper". The use of that phrase was no doubt intended to leave a broad discretion to a trial judge to decide in all the circumstances whether any proper inference is capable of being drawn by a jury."
We emphasise the phrase "in all the circumstances."
"The test posed by Section 35(1)(b) requires to be answered according to the physical or mental condition of the accused. Its terms make that clear. It does not however follow that in answering the very broad question whether it appears to the court to be undesirable for the defendant to give evidence that all the circumstances of the case do not fall to be taken into account."
"We agree with the broad conclusion of Stanley Burnton J in [Kavanagh] .The question posed by Section 35 is a wide question for the judgment of the judge. It is plainly not sufficient that the defendant suffers from some (his and our emphasis) physical or mental condition; it must be a mental condition which is such as to make it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so. Many, if not most, difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact in a Crown Court trial by the jury. The purpose of Section 35(1)(b) is clearly to enable the judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence."
The application to adduce fresh evidence
The Second Ground
The Third Ground
"The Court accepts the government's argument that Article 6(1) does not require that a child on trial for a criminal offence should understand or be capable of understanding every point of law or evidential detail. Given the sophistication of modern legal systems, many adults of normal intelligence are unable fully to comprehend all the intricacies and exchanges which occur in the courtroom: this is why the Convention, in Article 6(3)(c), emphasises the importance of the right to legal representation. However, "effective participation" in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court. The defendant should be able to follow what is said by the prosecution witnesses and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence."