Factual and Procedural Background
The case concerns an application for leave to appeal against conviction relating to the extent to which a psychiatrist or psychologist may comment to a jury on the presentation of a mentally disordered defendant. On 27 November 2015, the Defendant was convicted at the Crown Court at Kingston-upon-Thames of conducting preparatory acts for terrorism contrary to section 5(1) of the Terrorism Act 2006. It was common ground that at trial the Defendant suffered from paranoid schizophrenia. The Defendant was sentenced to six years' imprisonment on 21 December 2015. After an initial refusal by a single judge, the application for leave to appeal was renewed and heard by the Full Court on 15 February 2017, with judgment reserved.
The sole issue on appeal was whether the trial judge erred in ruling, before the Defendant decided whether to give evidence, that an adverse inference direction under section 35 of the Criminal Justice and Public Order Act 1994 would be appropriate if the Defendant chose not to testify. The defence argued that due to the Defendant's mental health, it was "undesirable" for him to give evidence, and thus no such direction should be given. The judge disagreed, reasoning that the defence could call the clinical psychologist who examined the Defendant to explain potential difficulties in giving evidence. The Defendant ultimately did not give evidence, the section 35 direction was given, and the Defendant was convicted.
Factual background includes the Defendant's psychiatric history, including admission to Springfield Hospital diagnosed with schizophrenia, periods of deterioration, and discharge on licence. The Defendant was arrested at Heathrow Airport attempting to travel to Somalia, with evidence including access to extremist websites and possession of terrorist-themed media. The prosecution alleged radicalisation occurred during hospitalisation. The defence contended the evidence was insufficient to prove intent to commit terrorist acts, highlighting inconsistencies and the Defendant's mental condition.
Legal Issues Presented
- Whether the trial judge was correct to rule, prior to the Defendant deciding to give evidence, that an adverse inference direction under section 35 of the Criminal Justice and Public Order Act 1994 would be appropriate if the Defendant did not testify.
- Whether, given the Defendant's mental health condition, it was "undesirable" for him to give evidence such that a section 35 direction should not be given.
- The permissible scope of expert evidence from a psychologist or psychiatrist to the jury regarding the presentation and reliability of a mentally disordered defendant's evidence.
Arguments of the Parties
Appellant's Arguments
- The Defendant's unreliability as a witness was a manifestation of his mental illness and psychological impairment, raising concerns about the reliability of any evidence he might give.
- The judge's approach allowing the psychologist to give evidence "as necessary" to explain the Defendant's difficulties contradicted the principle forbidding expert evidence on witness credibility.
- If expert evidence was required to explain why some of the Defendant's evidence might be unreliable, it was "undesirable" for him to give evidence, and thus a section 35 direction should not have been given.
- The scope of the psychologist's evidence was unclear, potentially allowing impermissible commentary on the truthfulness of specific answers.
Respondent's Arguments
- The trial judge was correct in ruling that the psychologist could give general evidence about the Defendant's difficulties in giving evidence.
- The defence did not call the psychologist, but the jury received agreed facts about the Defendant's mental state, allowing submissions that the failure to give evidence should not be held against him.
- Expert evidence may legitimately assist the jury in understanding the presentation of a mentally disordered witness without infringing on the jury's role to assess credibility.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Tabbakh [2009] EWCA Crim 464 |
Assessment of whether it is "undesirable" for a defendant to give evidence requires consideration of all relevant circumstances beyond mere damage to health. |
The court approved a restrictive approach, upholding section 35 directions even where defendants had significant mental impairments. |
| R v Dixon (Jordan) [2013] EWCA Crim 465 |
Endorsed the approach in R v Tabbakh regarding section 35 directions and defendants with mental health issues. |
Supported the trial judge's decision to give a section 35 direction despite mental health difficulties. |
| O'Donnell v United Kingdom [2015] 61 EHRR 37 |
Use of adverse inference directions does not breach Article 6 ECHR if supported by weight of circumstantial evidence and availability of special measures. |
Supported the legitimacy of the section 35 direction in the Defendant's case. |
| Toohey v Metropolitan Police Comr [1965] AC 595 |
Medical evidence is admissible to show a witness's disease or defect affecting reliability, including foundation and extent of credibility impact. |
Confirmed admissibility of expert evidence explaining a witness's mental condition affecting evidence reliability. |
| R v Robinson [1994] 3 All ER 346 |
Expert evidence must not amount to "oath helping" by commenting directly on witness credibility. |
Imposed limits on the scope of expert evidence on witness reliability. |
| R v VJS [2006] EWCA Crim 2389 |
Expert evidence may assist the jury in understanding a witness's presentation due to disability, without deciding credibility. |
Accepted expert evidence explaining autistic complainant's behaviour to aid jury understanding. |
| R v Rashid [2017] EWCA Crim 2 |
Provision for intermediaries to assist witnesses with difficulties giving evidence under Criminal Practice Direction 2015. |
Referenced as a safeguard not deemed necessary in this case. |
| R v Pinfold [2003] EWCA Crim 3643 |
Court must guard against evidence that detracts from jury's task of assessing credibility unless based on medical abnormality. |
Emphasised limits on expert evidence affecting jury's credibility assessment. |
| R v Henry [2005] EWCA Crim 1681 |
Low IQ alone does not justify expert evidence on intent or credibility. |
Rejected expert evidence on credibility based solely on IQ. |
| R v H [2014] EWCA Crim 1555 |
Expert evidence admissible to inform jury of medical or scientific experience relevant to reliability of witness's account. |
Clarified that mental ill health does not preclude reliability; jury decides credibility. |
Court's Reasoning and Analysis
The court analysed the scope and limits of expert evidence from psychiatrists or psychologists regarding a mentally disordered defendant's presentation and reliability in giving evidence. It distinguished between permissible expert evidence that assists the jury in understanding behavioural manifestations of mental disorder and impermissible expert evidence that opines on the credibility or truthfulness of specific testimony, which is exclusively for the jury.
The court found that the trial judge correctly applied this principle, recognising that the psychologist's evidence could explain to the jury the Defendant's mental illness effects on presentation without infringing on the jury's role. The judge's proposed safeguards—such as simple questions, short evidence phases, and limited expert explanation—were appropriate to mitigate the Defendant's difficulties.
The court rejected the argument that the need for expert explanation rendered it "undesirable" for the Defendant to give evidence. It emphasised that the Defendant was fit to plead and stand trial, and that the psychologist's evidence was properly limited to assisting the jury's understanding, not assessing credibility.
Further, the court noted that the defence was able to rely on agreed expert evidence presented to the jury to explain why the Defendant did not give evidence, fulfilling the purpose of the section 35 direction without prejudice.
Holding and Implications
The court REFUSED the renewed application for leave to appeal against conviction.
The holding confirms that it is not an error of law for a trial judge to permit expert evidence from a psychologist or psychiatrist to assist the jury in understanding the presentation of a mentally disordered defendant, provided such evidence does not cross the line into commenting on credibility or truthfulness. The decision affirms the appropriateness of a section 35 adverse inference direction where the defendant chooses not to give evidence, even if mental health issues are present, so long as it is not "undesirable" for the defendant to testify under the safeguards identified. No new precedent was set beyond applying and clarifying existing principles regarding expert evidence and section 35 directions in the context of mental disorder.