Section 35(1)(b) CJPOA 1994: Modern Participation Measures Narrow “Undesirable to Give Evidence” and Reinforce Adverse Inference Directions

Case: Shaw, R. v [2026] EWCA Crim 1061 (CACD), 19 June 2026

Court: England and Wales Court of Appeal (Criminal Division) (Coulson LJ, Brunner J, HHJ Lucking KC)

Key statutory provision: Criminal Justice and Public Order Act 1994, s 35(1)(b)

1. Introduction

This application for permission to appeal against conviction concerned the threshold for disapplying the adverse inference regime under s 35 of the Criminal Justice and Public Order Act 1994 where a defendant does not give evidence at trial. The applicant (a youth, “S.S.”) argued that his mental condition—compounded by a moderate/severe traumatic brain injury—made it “undesirable” for him to give evidence, so the trial judge should not have permitted an adverse inference direction to be given to the jury.

The Court of Appeal upheld the trial judge’s refusal to apply s 35(1)(b), emphasising both (i) the high bar set by the statutory language and authorities, and (ii) a forward-looking point of principle: modern trial participation measures (intermediaries, ground rules, breaks, adapted questioning) mean s 35(1)(b) should be invoked even more rarely than in the past, because many difficulties can now be managed without disapplying the adverse inference framework.

The underlying trial involved convictions (with co-defendants) for two counts of attempted murder and one count of possession of a firearm with intent to endanger life, arising from a shooting in Canning Town. The applicant did not testify; the sole appeal ground concerned the propriety of the adverse inference direction given that choice.

2. Summary of the Judgment

  • The Court of Appeal refused permission to appeal; the challenge to the s 35(1)(b) ruling was “simply not arguable”.
  • The trial judge exercised a wide discretion, gave a detailed ruling, and took into account the relevant matters. No error of principle, irrelevant consideration, or failure to consider relevant factors was shown.
  • Evidence did not demonstrate that giving evidence would significantly damage the applicant’s physical or mental health. “Knocks to self-esteem” and the risk of appearing moody/unresponsive or struggling with recall were not enough to make it “undesirable” to give evidence.
  • The applicant’s anticipated evidence was narrow and not technically complex; extensive supports were already in place (full intermediary, frequent breaks, adapted approach).
  • Importantly, the Court stated that societal and procedural developments in understanding and accommodating mental health conditions point to more infrequent use of s 35(1)(b), not a more liberal one; where participation measures cannot render a fair process, the more appropriate route may be unfitness to plead, not disapplication of adverse inference.

3. Analysis

3.1 Precedents Cited

R v Friend [1997] 2 All ER 111

The Court treated Friend as illustrating the typical context in which s 35(1)(b) issues arise: where a defendant’s condition is so significant that it may intersect with fitness to plead. The Court observed that in “the majority of cases” where mental condition makes giving evidence “undesirable”, there will be evidence the accused is unfit to plead. That framing supported the conclusion that s 35(1)(b) is exceptional and should not become a general-purpose mechanism to avoid adverse inferences where the defendant remains fit and supported.

R Dixon [2013] EWCA Crim 465

Dixon was cited for the breadth of the trial judge’s discretion under s 35(1)(b). The Court of Appeal adopted a restrained appellate posture: intervention would be justified only for misdirection, irrelevant/relevant factor error, or a conclusion no reasonable judge could reach. This reinforced that a properly reasoned first-instance decision is difficult to disturb.

R v Ensor [2009] EWCA Crim 2519

The Court used Ensor to define the statutory focus: whether the accused’s physical or mental well-being would be damaged—“possibly irretrievably”—by giving evidence. This emphasis anchored the Court’s rejection of arguments centred on forensic disadvantage (how the defendant might appear to the jury) rather than health harm.

R v Hamberger [2017] EWCA Crim 273

Hamberger served as a paradigm of when s 35(1)(b) may apply: an elderly defendant with angina where the act of giving evidence could be life-threatening. The contrast highlighted how far the applicant’s circumstances fell short of the statutory threshold.

R v Tabbakh [2009] EWCA Crim 464

Tabbakh provided the key distinction between (a) a condition making it “undesirable” to testify and (b) ordinary difficulties in giving evidence that the tribunal of fact can assess with judicial management. The Court relied on Hughes LJ’s statement that “difficulty” in giving evidence is insufficient; such matters are commonly addressed in Crown Court trials. This was central to the Court’s treatment of fatigue, attention, recall and responsiveness as manageable features rather than disqualifying ones.

R v Biddle [2019] EWCA Crim 86

Biddle was cited alongside Tabbakh for the proposition that a mental or physical condition does not automatically engage s 35(1)(b). It supports a consistent line: the provision is not triggered merely because giving evidence would be harder than usual.

3.2 Legal Reasoning

The Court’s reasoning proceeded in four main steps.

  1. Discretion and appellate restraint: The decision whether s 35(1)(b) applies is fact-sensitive and entrusted to the trial judge. Here the judge held a voir dire, heard expert evidence, and gave a detailed ruling. Without a demonstrable error of approach, the appeal was not arguable.
  2. Proper target of s 35(1)(b): health harm, not forensic discomfort: The Court treated the statutory language (“physical or mental condition... makes it undesirable for him to give evidence”) as directed to significant detriment to well-being. Evidence that testifying might affect self-esteem or highlight disability, or that the defendant might struggle in front of the jury, did not meet the threshold.
  3. Manageable difficulties are not “undesirability”: Concerns about fatigue, irritability, recall, suggestibility, and performance were characterised as trial-management issues. The Court considered they can be mitigated by experienced judges and counsel and explained to juries where appropriate (consistent with Tabbakh).
  4. Context matters: scope of evidence and existing supports: The Court accepted that extensive measures had been used: a full intermediary, ground rules-style management, regular breaks, time for conferences, and familiarisation. The applicant’s likely evidence was “extremely limited” (principally whether he exited the car and engaged in the shooting). That combination weakened any claim that giving evidence was “undesirable” in the statutory sense.

The Court also addressed a broader submission that the “landscape has changed” regarding mental health. It agreed—yet drew the opposite conclusion: modern procedural supports reduce the need to exempt defendants from adverse inference consequences. Where supports cannot make participation safe and fair, unfitness to plead may be the more coherent route than expanding s 35(1)(b).

3.3 Impact

Although arising from a permission application, the judgment contains a clear signal about future deployment of s 35(1)(b) in cases involving mental conditions:

  • Higher practical threshold: Courts are likely to treat s 35(1)(b) as reserved for cases of serious health jeopardy (physical or psychological), not where the defendant’s condition mainly affects presentation, stamina, or recall.
  • Management-first approach: Intermediaries, ground rules hearings, structured and time-limited examination, pre-approved questions, breaks, and adapted timetabling will be treated as the primary tools for enabling testimony rather than reasons to dispense with adverse inference.
  • Sharper line between participation supports and unfitness: The Court’s reasoning encourages a binary framing: either the defendant can testify with support (and adverse inference may follow silence), or the case may raise unfitness to plead rather than s 35(1)(b).
  • Youth defendants: The judgment implicitly indicates that youth plus neurocognitive difficulty does not, without more, displace s 35; what matters is demonstrable health harm from testifying, not general vulnerability.

4. Complex Concepts Simplified

Adverse inferences (CJPOA 1994, s 35)

If a defendant chooses not to give evidence at trial, the judge may direct the jury that it is permitted to draw “such inferences as appear proper” from that silence when deciding guilt. This does not mean silence proves guilt, but it can be used to evaluate whether the prosecution case is left unanswered.

What s 35(1)(b) does

Section 35(1)(b) is an exception: if the defendant’s physical or mental condition makes it “undesirable” for them to give evidence, the adverse inference regime does not apply. The focus is not on whether giving evidence is difficult, uncomfortable, or strategically unhelpful, but whether it would be genuinely inappropriate because of the condition’s impact on well-being.

Voir dire

A voir dire is a trial-within-a-trial where the judge hears evidence (often expert) to decide a legal issue—in this case, whether s 35(1)(b) should prevent an adverse inference direction.

Intermediary and ground rules

An intermediary supports communication for a vulnerable participant (here, the defendant), helping ensure questions are understood and answers can be given. Ground rules and related case management can shape how questioning happens (pace, language, breaks, timing), aimed at enabling effective participation.

Unfit to plead

A defendant is unfit to plead if they cannot participate in the trial process to the required standard (for example, understanding proceedings or instructing lawyers). The Court treated many serious mental-condition cases as more naturally analysed through this doctrine than through s 35(1)(b).

5. Conclusion

Shaw, R. v [2026] EWCA Crim 1061 confirms a stringent approach to s 35(1)(b): the exception is engaged only where giving evidence would be genuinely “undesirable” in terms of health and well-being, not merely because the defendant may struggle, fatigue, appear poorly, or suffer a hit to confidence. Drawing on R v Tabbakh and related authorities, the Court treated most such difficulties as manageable through modern participation measures and judicial control.

The most notable forward-looking point is the Court’s statement that advances in understanding mental health and expanded procedural supports should make s 35(1)(b) less frequently invoked, not more. In practice, this reinforces a management-first paradigm: accommodate testimony where possible; reserve s 35(1)(b) for truly exceptional cases of substantial health jeopardy; and consider unfitness to plead where accommodation cannot deliver safe and fair participation.