REGINA v Tabbakh

Factual and Procedural Background

The Defendant was charged with the preparation of terrorist acts contrary to section 5(1) of the Terrorism Act 2006. The prosecution alleged that the Defendant had compiled bomb-making instructions and had partially assembled ingredients, although these were of poor quality and lacked a detonator, rendering the bomb non-viable. The Defendant asserted that the materials and instructions were intended for making fireworks for a small business related to a religious festival. The key issues at trial were whether the device was a bomb or a firework, and if a bomb, whether it was made with the requisite terrorist intent.

The Defendant chose not to give evidence at trial. Counsel for the Defendant sought a ruling that adverse inferences should not be drawn from this silence on the basis that the Defendant's physical or mental condition made it undesirable for him to give evidence, pursuant to section 35(1)(b) of the Criminal Justice and Public Order Act 1994. Evidence relating to the Defendant’s mental and physical health, including testimony from two consultant psychiatrists and a social worker, was presented in front of the jury.

The Defendant had a history of torture in his native country, Syria, and was diagnosed with post-traumatic stress disorder (PTSD). The judge considered risks including loss of self-control, memory issues, and self-harm if the Defendant were to testify. The judge ultimately ruled that despite these risks, it was not undesirable for the Defendant to give evidence, and therefore permitted the jury to draw adverse inferences from his silence. The Defendant appealed this ruling.

In addition to the appeal against conviction, the Defendant sought leave to appeal against a sentence of seven years' imprisonment, reduced from eight years due to his mental condition related to his Syrian experience. The court considered comparable cases and declined to interfere with the sentence.

Legal Issues Presented

1. Whether the trial judge erred in ruling that it was open to the jury to draw adverse inferences from the Defendant’s failure to give evidence, specifically whether the Defendant’s physical or mental condition made it undesirable for him to testify under section 35(1)(b) of the Criminal Justice and Public Order Act 1994.
2. Whether the sentence of eight years (reduced to seven) was outside the permissible range for the offence of preparing terrorist acts where the bomb was not yet viable.
3. Whether a point of public importance should be certified regarding the interpretation of section 35(1)(b) and the factors a judge may consider in deciding if it is undesirable for a defendant to give evidence.

Arguments of the Parties

Appellant's Arguments

• The Defendant contended that the judge should have found that his physical or mental condition made it undesirable for him to give evidence, thereby precluding adverse inferences being drawn.
• Counsel argued that the judge misdirected himself by considering the importance of the Defendant’s potential evidence when deciding whether it was undesirable for the Defendant to testify, submitting that the greater the importance of the evidence, the less desirable it should be for a defendant with relevant mental conditions to give evidence.
• Regarding sentencing, the Defendant submitted that eight years was outside the appropriate sentencing range based on comparable cases.
• Finally, counsel sought certification of a point of public importance concerning whether a judge may consider matters unconnected to the Defendant’s physical or mental condition in ruling on section 35(1)(b).

Respondent's Arguments

• The Crown contended that the judge correctly applied section 35(1)(b) by assessing the Defendant’s mental and physical condition and balancing the risks of harm against the importance of the Defendant’s evidence.
• The Crown argued that the judge’s ruling was well within his discretion and that the jury was properly directed to consider all evidence including the Defendant’s mental health history.
• Regarding sentencing, the Crown maintained that the sentence was within the permissible range and consistent with relevant case law.
• The Crown opposed certification of any point of public importance.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory provision in section 35(1)(b) of the Criminal Justice and Public Order Act 1994, which allows a judge to rule that it is undesirable for a defendant to give evidence due to physical or mental condition, thereby preventing adverse inferences from silence. The court emphasized that this provision requires more than a mere difficulty in giving evidence; the condition must be sufficiently serious to render testimony undesirable.

The judge had carefully considered evidence from medical experts and the Defendant’s history, including PTSD and risk of self-harm. Although acknowledging these risks, the judge found them not severe enough to make testimony undesirable. The judge also considered the significance of the Defendant’s evidence, concluding that it was important enough to outweigh the risks. The court held that taking into account the importance of the evidence was permissible in the overall assessment.

The court rejected the Defendant’s submission that the judge’s approach was a misdirection, affirming that the judge’s ruling was within his discretion and supported by the evidence. The court further held that the jury was properly instructed and left to decide whether to draw adverse inferences.

Regarding sentencing, the court reviewed comparative cases and concluded that the sentence was not outside the permissible range. The court declined to establish a general sentencing range and refused leave to appeal the sentence.

Lastly, the court refused to certify any point of public importance, finding no novel legal question arose from the case.

Holding and Implications

The court DISMISSED the appeal against conviction, holding that the trial judge correctly applied section 35(1)(b) and properly left the question of adverse inference to the jury. The court also refused leave to appeal the sentence, ruling that it was within the acceptable range for the offence.

The direct effect is that the Defendant’s conviction and sentence stand. No new legal precedent was established, and no point of public importance was certified for further consideration.