R v Barry

Factual and Procedural Background

On 9 December 2008, the Appellant was convicted of murder in the Crown Court at The City. The conviction arose from the stabbing death of the deceased, who had been disabled and wheelchair-bound following a road traffic accident and subsequent medical complications. The Appellant and the deceased had been in a relationship since 2004, intermittently interrupted by the Appellant's imprisonment. On 13 March 2008, after a day of heavy drinking, the Appellant and the deceased were at a flat when an argument escalated, culminating in the Appellant stabbing the deceased in the neck with a kitchen knife, causing fatal injury. The Appellant admitted the killing but claimed no recollection of the stabbing. The trial focused on whether the Appellant's Alcohol Dependency Syndrome (ADS) constituted diminished responsibility. The Appellant did not testify, and the jury was directed on the law regarding adverse inferences from silence under section 35 of the Criminal Justice and Public Order Act 1994. The Appellant appealed against conviction by leave of a single Judge.

Legal Issues Presented

1. Whether it was appropriate for the trial judge to direct the jury that they might draw adverse inferences from the Appellant's failure to give evidence under section 35 of the Criminal Justice and Public Order Act 1994 in a diminished responsibility case.
2. The scope and application of section 35 in cases involving diminished responsibility, particularly where the defendant suffers from Alcohol Dependency Syndrome but is not suffering from a mental condition making it undesirable to give evidence.
3. Whether the jury direction regarding the drawing of inferences from silence risked unfairly withdrawing the diminished responsibility defence from the jury.

Arguments of the Parties

Appellant's Arguments

• The evidence of ADS and abnormality of mind was undisputed, making the drawing of adverse inferences from silence inappropriate.
• The Appellant's impaired control over drinking at the time of the killing was established and undisputed.
• The Appellant had consumed a large quantity of alcohol at the time and suffered withdrawal symptoms in custody.
• There was minimal dispute about the facts, and the Appellant's memory loss was not contrived.
• The jury had a complete evidential picture, rendering any additional evidence from the Appellant unlikely to be significant.
• The summing up direction to the jury almost withdrew the diminished responsibility defence from their consideration.

Respondent's Arguments

• Even if the Appellant had no memory of the stabbing, he could have provided relevant evidence about the relationship history, drinking habits, degree of impairment, events leading up to the stabbing, and his emotions such as jealousy.
• The judge was correct in ruling that there were matters relevant to the central issue on which the Appellant could have given evidence.
• The direction under section 35 was conventional, included protective passages, and did not risk unfairness or withdraw the diminished responsibility defence.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analyzed the interplay between pre-1994 case law and the provisions of section 35 of the Criminal Justice and Public Order Act 1994. It recognized that Bathurst represented an era when judicial comment on failure to testify in diminished responsibility cases was limited to rare circumstances involving mental incapacity. Section 35 now explicitly addresses such mental or physical incapacity, removing the need for Bathurst's approach in those cases.

The Court emphasized that section 35 permits adverse inferences to be drawn unless the defendant's condition makes it undesirable to testify. The Court acknowledged the discretion trial judges have under Cowan to advise juries against drawing adverse inferences where appropriate. However, in the present case, the Appellant was fit to plead, not suffering from a condition making testimony undesirable, and could have given relevant evidence on central issues such as voluntary control over drinking and emotional state.

The Court found the trial judge's ruling that a section 35 direction was appropriate to be justified. It rejected the Appellant's contention that the summing-up direction risked unfairly withdrawing the diminished responsibility defence, noting the inclusion of protective passages and explicit reminders to the jury about the nature of the evidence.

Holding and Implications

The Court DISMISSED the Appellant's appeal against conviction, affirming that the conviction was safe.

The direct effect of this decision is the upholding of the murder conviction. The Court clarified the application of section 35 in diminished responsibility cases, confirming that adverse inferences from silence may be properly directed when the defendant is fit to give evidence and relevant matters remain unaddressed. No new precedent was established beyond the reaffirmation of existing principles and statutory interpretation.