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Shaw, R. v
Factual and Procedural Background
This was an application for permission to appeal against conviction, referred to the Full Court by the Registrar. The application concerned section 35(1)(b) of the Criminal Justice and Public Order Act 1994 and the use of adverse inferences where an accused does not give evidence. [1][2][3][4]
The Applicant, who was under 18 at the relevant times, was convicted with co-defendants at the Crown Court at [Location] of two counts of attempted murder and one count of possessing a firearm with intent to endanger life. He was sentenced to 14½ years’ detention. [5][6][7]
The Applicant did not give evidence at trial. He had mental-health difficulties and a traumatic brain injury, including fatigue, anxiety, limited processing speed, memory difficulties and increased suggestibility. [8][9]
At trial, the judge provided an intermediary, regular breaks, shorter days, conferences and other adjustments. After a voir dire, the judge refused the Applicant’s application under section 35(1)(b) to prevent the standard adverse-inference direction. The Applicant then chose not to give evidence, and the direction was given to the jury. [10][11][12][13][14][15]
Legal Issues Presented
- Whether the trial judge erred in refusing to conclude that the Applicant’s physical or mental condition made it undesirable for him to give evidence under section 35(1)(b) of the Criminal Justice and Public Order Act 1994. [1][6]
- Whether the standard adverse-inference direction should therefore have been withheld. [12][13][15]
Arguments of the Parties
Applicant’s Arguments
- The Applicant relied on his mental-health conditions, traumatic brain injury, fatigue, impaired memory and difficulties with comprehension and engagement. [8][9]
- It was submitted that the legal approach to mental health had changed and that section 35(1)(b) should potentially be applied more liberally. [16][17]
- The evidence indicated that giving evidence could cause psychological detriment, including reduced self-esteem, irritability, distress and reduced engagement. [18][19][20]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Friend [1997] 2 All ER 111 | Section 35(1)(b) will rarely require consideration; cases involving such issues may involve unfitness to plead. | The Court treated the statutory exception as exceptional and distinguished the present case from one involving unfitness to plead. [21][22] |
| R Dixon [2013] EWCA Crim 465 | The court has a wide discretion under section 35(1)(b), and each case turns on its facts. | The Court held that the trial judge’s discretionary decision could not be challenged absent an irrelevant consideration, a failure to consider a relevant matter, or a conclusion no reasonable judge could reach. [21][23] |
| R v Ensor [2009] EWCA Crim 2519 | The focus is on whether giving evidence would damage the accused’s physical or mental well-being, potentially irretrievably. | The Court found insufficient evidence of a significant detrimental effect on the Applicant’s physical or mental health. [24][25] |
| R v Hamberger [2017] EWCA Crim 273 | Section 35(1)(b) may apply where giving evidence presents a potentially life-threatening physical risk. | The Court contrasted that situation with the present case, where giving evidence was accepted not to threaten the Applicant’s physical health. [26][25] |
| R v Tabbakh [2009] EWCA Crim 464 | The existence of a physical or mental condition does not automatically establish that giving evidence is undesirable; ordinary difficulties in giving evidence may be assessed by the tribunal of fact. | The Court held that possible difficulties with responsiveness, mood and recall could be managed by the judge, counsel and appropriate jury directions. [27][28][29] |
| R v Biddle [2019] EWCA Crim 86 | A condition alone does not automatically satisfy section 35(1)(b). | The Court applied the principle that the Applicant’s condition, without sufficient evidence of harmful consequences from giving evidence, was inadequate to engage the statutory exception. [27][25] |
Court’s Reasoning and Analysis
The Court held that the trial judge had a wide discretion and had given a detailed ruling addressing the relevant issues. There was no suggestion that the judge considered an irrelevant matter or failed to consider a relevant one. [23]
The evidence did not show that giving evidence would significantly harm the Applicant’s physical or mental health. The psychologist accepted that there would be no physical-health effect; possible damage to self-esteem or psychological upset was insufficient to make giving evidence undesirable under section 35(1)(b). [30][25]
The Court distinguished health damage from practical difficulties in giving evidence. Concerns about fatigue, mood, responsiveness, recall and the possibility of making a poor impression on the jury were difficulties capable of management within the trial process. [29]
The Applicant’s evidence would have been limited and relatively uncomplicated. The principal issue was whether he was one of the two men who left the vehicle and participated in the shooting. [31][32]
The existing safeguards—including the intermediary, shorter days, regular breaks and other ground rules—could have facilitated the Applicant’s evidence. [33]
The Court accepted that understanding of mental health had developed, but concluded that this supported using modern participation measures more fully, rather than invoking section 35(1)(b) more readily. Where such measures could not assist, the accused might instead be unfit to plead; the Court found that this was not the present case. [16][17][22]
Holding and Implications
Permission to appeal was refused. The Court concluded that the proposed appeal was not arguable and upheld the trial judge’s refusal to disapply the standard adverse-inference direction. [34][35]
The direct effect was that the Applicant’s conviction and the use of the adverse-inference direction were not disturbed. The opinion identifies no further consequence for the parties and states no new precedent beyond applying the existing statutory principles. [15][35]
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