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Royal Courts of Justice

Strand

London W2A 2LL

Wednesday, 26th March 1997

B e f o r e

LORD JUSTICE OTTON

MR JUSTICE BUTTERFIELD

HIS HONOUR JUDGE RANT CB QC

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REGINA

v.

BILLY-JOE FRIEND

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(Handed Down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

- - - - - -

MR BARKER QC appeared on behalf of the Appellant.

MS R POULET QC appeared on behalf of the Crown.

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J U D G M E N T

(As approved by the Court)

Crown Copyright

LORD JUSTICE OTTON: In the Central Criminal Court before His Honour Judge Michael Coombe the appellant was convicted of murder and ordered to be detained during Her Majesty's pleasure.

He appeals against conviction by leave of the single judge.

His co-accused, Edward Lee, pleaded guilty to murder on re-arraignment during the trial and Birch was convicted of manslaughter.

The appeal primarily raises novel points arising out of s.35 Criminal Justice and Public Order Act ("The 1994 Act") which in essence provides that if the mental condition of the accused makes it undesirable for him to give evidence no adverse inference may be drawn from his failure to give evidence.

The O'Connor brothers (Ben and Matthew) lived in a flat in a tower block in Plumstead. On the night of the murder, their friend Stephen Page was with the brothers at the flat with two girls, Anne Tullett and Michelle Wood, both aged 16. The appellant and Birch arrived and the group (with the exception of the appellant) drank contentedly together. An argument broke out between Page and Birch. Matthew O'Connor tried to persuade Birch to behave but he went for him and the appellant became excited and aggressive and threw a loud speaker on the floor. Ben entered the room and there was a general struggle between them all. Page escaped from the flat. The fracas continued between Matthew, Ben and Birch. The appellant left the flat saying that he was going to fetch Ned his brother. Ned had a reputation for violence. The appellant was seen to leave the block, run the short distance to his house and to re-emerge with his brother, Edward (Ned) Lee. The appellant was heard shouting and swearing and was heard to say that a mate was in trouble but that "Ben is still up there and we can fucking get him". Charlotte Nye a resident of the block, was in a lift. When it reached the ground floor two young men pushed in into the lift. She recognised Ned Lee. She noticed something in his hand, it seemed to be a knife but she could not describe it more accurately than it was small and about 6" in length. Lee seemed to turn the object away from her. Lee and the appellant entered the flat pushing past the girls. They went into the room where Ben and Birch were. The young women left and joined Matthew O'Connor who was waiting for the lift. When the lift arrived and the doors were closing the appellant entered the lift. He looked shocked and terrified and said to Matthew "Ned's stabbing your brother up" although he was not coherent.

The appellant left the others at ground floor level and walked towards his house. A short while later he was seen running with his brother and Ian Birch and later they were seen climbing about at the back of their row of houses. Subsequently a knife was found in a garden nearby which could have been the weapon used. The victim died from multiple stab wounds.

The three were arrested. The appellant was interviewed in the presence of his mother and a solicitor. Initially he made no comment. His solicitor subsequently explained that she had given this advice on account of his low mental age and the fact that full disclosure had not been given. However in a subsequent interview which lasted about 12 minutes he answered questions, on advice. He accepted his earlier presence at the flat. He denied running home to get Lee and said he left with Michelle. Lee was in bed when he got home, then Birch came home and went out into the garden to give the dog some water before having a wash and going to bed. He denied climbing about in the garden before his arrest and knowing anything about the stabbing until he was told about it in the police station.

It was the Crown's case that this was a joint enterprise between Birch, the appellant and Ned. The vital link was the appellant on the basis that he fetched Ned and went back into the flat with him and once inside Ned had stabbed the victim. Blood marks on Birch suggested that he was near Ben and might have indicated that he was holding him at some stage. No blood was found on the appellant.

His date of birth was 22 March 1981. The date of the offence was 17 August 1995 (when he was 14 years and 5 months). The trial started on 18 April 1996 (15 years).

A voir dire was held on the mental capacity of the appellant to give evidence. Dr Gisli Gudjonsson, a Consultant Clinical Psychologist at the Maudsley Hospital, was called to give evidence. In essence, he explained that 100 was the average IQ and an IQ of below 70 was 30% below average and usually considered indicative of some mental handicap. His mental age at the material time was difficult to assess but equated to about a child of 9. Dr Gudjonsson described how on arrival at the Glenthorne Assessment Centre shortly after his arrest his IQ was 56, which was exceedingly low - 4 per 1000 of the population would achieve this level. Shortly before trial further tests were carried out which revealed an IQ of 63 - a mental age of between 9-10. The improvement was probably related to an increased ability to concentrate. He remained within the handicapped bracket. He had also been educationally disadvantaged (he came from a family of travellers) which meant that his potential had not been fully developed. He was virtually illiterate with reading skills of a boy of six years. He was tested for 'suggestibility' in order to establish whether he was suggestible as an interviewee and might agree with what the police put to him. He was found to be less suggestible than other average people. As to comprehension and his ability to give an account of himself, his overall performance was limited. If he was allowed time in an interview to express himself and care was taken to ensure that he understood, he could give a clear account but questioning in the witness box might be a different matter.

Mr Brian Barker QC leading counsel for the appellant submitted to the trial judge that on this evidence the jury should not be invited to draw adverse inferences from the failure to give evidence. His mental condition made it undesirable to do so in the light of s.35(1)(b) of the Act. He contended that suggestibility and comprehension were irrelevant. The important consideration was whether Friend could express himself verbally, concentrate and do justice to himself. There was ample evidence that he could not.

The judge declined to rule that his mental condition made it undesirable for the appellant to give evidence. The trial proceeded; the appellant did not give evidence but Dr Gudjonsson did. In summing-up the judge drew the jury's attention to the failure to give evidence and directed that it was open to the jury to draw an adverse inference. The jury unanimously convicted the appellant of murder and Birch of manslaughter.

Statutory Background

The Criminal Evidence Act 1898 S.1(b) provided that the failure of the accused to testify was not to be made the subject of any comment by the prosecution. Comment by the judge was permissible but the scope for it was limited and had always to be accompanied with a reminder that the accused was not bound to give evidence and that, while the jury had been deprived of the opportunity of hearing his story tested in cross-examination, they were not to assume that he was guilty because he had not gone into the witness box. R v Bathurst [1968] 2 QB 99. Stronger comment was permitted where the defence case was involved the assertion of facts which were at variance with the prosecution evidence, or additional to it or exculpatory, and which if true, would have been in the accused's own knowledge. (see R v Martinez-Tobon [1994] 1 WLR 388)

The Criminal Justice and Public Order Act 1994 repealed s.1(b) of the 1898 Act. S.35(2) requires the court to satisfy itself that the accused is aware that the stage has been reached at which evidence can be given for the defence, that he can, if he wishes, give evidence and that, if he chooses not to give evidence or, having been sworn, without good cause refuses to answer any question, it will be permissible for the jury to draw such inferences as appear proper from his failure to give evidence of his refusal without good cause, to answer any question. Sub-section 1 provides that ss.2 does not apply if at the conclusion of the evidence for the prosecution the accused's legal representative informs the court that the accused will give evidence.

By ss.3, where ss.2 applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.

However it will not be permissible for the court or jury to draw such an inference if it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence.

In R v Cowan [1995] 3 WLR 881 the Court of Appeal (Lord Taylor CJ presiding) rejected an argument that s.35 should be permitted to operate in exceptional cases only. The court held that the effect of s.35 was simply to add a further evidential factor in support of the prosecution case. The court emphasised that silence cannot be the only factor on which a conviction was based and that the prosecution remains under an obligation to establish a prima facie case before any question of the defendant is raised. The court indicated that the judge should make it clear to the jury that they must be convinced of the existence of a prima facie case before drawing an adverse inference from silence. Moreover the plain wording of s.35 indicated that it was not limited to exceptional cases; on the contrary, exceptional cases were those dealt with in s.35(1) in which the provisions were not to be invoked. And at 6(D) the Lord Chief Justice said :

"We accept that apart from the mandatory exceptions in s.35(1), it will be open to a court to decline to draw an adverse inference from silence at trial and for a judge to direct or advise a jury against drawing such inference if the circumstances of the case justify such a cause. But in our view there would need to be either some evidential basis for doing so or some exceptional factors in the case making that a fair course to take."

The court gave no example of the situation in which it would be improper to draw an inference from silence and indicated that each case must turn on its own facts.

Later, Lord Taylor said at p.9A-B :

"We wish to stress, moreover, that this court will not lightly interfere with a judge's exercise of discretion to direct or advise the jury as to the drawing of inferences from silence and as to the nature, extent and degree of such inferences. He is in the best position to have the feel of the case and so long as he gives the jury adequate directions of law as indicated above and leaves the decision to them, this court will be slow to substitute its view for his".

Central to the principal ground of this appeal is the judge's ruling on the voir dire. Having analysed s.35 he accepted the approach of counsel on both sides that he should construe the word "undesirable" objectively:

"I shall construe it purely from the point of view of the physical or mental condition of the accused making it undesirable for him to give evidence".

at 39b he continued :

"I confess I do find it a very difficult matter to construe for this reason : if a defendant were unable to instruct counsel or understand the nature of the proceedings then, of course, he would be unfit to plead. No issue of unfitness to plead has been raised in this court because the medical evidence shows that he was fit to plead. Therefore, one does start from the fact that I can safely rely upon the fact he does understand the proceedings and is able to instruct a solicitor and counsel as to his defence.

There must be some area not defined by authority between a man who is unfit to plead and a man who has no physical or mental condition which troubles me. There must be some grey area in which, despite the defendant's fitness to plead, therefore, he is put on trial and in the position of the man of normal intelligence. I accept that argument.

The question therefore, in this case, is which side of the line does this defendant fall? There is no doubt at all, of course --- I accept the evidence of a very experienced consultant clinical psychologist that his intellectual standing is well below average -- that he is to some degree mentally retarded. His intelligent quotient is low. The intelligent quotient of 70 I am told will be the equivalent age of a normal child of 10. As he comes below 70 we can think of this defendant as having the normal intelligence only of a boy of eight or nine. Therefore, certainly, he is in this grey area. I still have to consider the matter as to where one puts him, so to speak, in that grey area."

The judge then considered the contents of Dr Gudjonsson's report which included :

"Billy Joe denies having anything to do with the murder and claims he was not present at the time the stabbing occurred. He claims not to know who committed the murder and denies having made the aggressive comments about the victim as stated by prosecution witnesses. He admits having sworn at the victim before the stabbing occurred but made no serious threats against him . He claims to have first learned of the stabbing after he was arrested. Billy Joe says that he had not had much alcohol to drink at the material time and did not feel intoxicated.

I am not concerned with the truth or otherwise of his assertion. What does concern me is that despite his handicaps, he is able to express himself, no doubt,in the atmosphere which this court, with the best intentions of the world, could never produce of Dr Gudjonsson's surgery. So, I raised that with Dr Gudjonsson. It is the key really of the whole case. I am going to read my note. "If you allowed him plenty of time and you can settle him down and get him to concentrate, obviously he can give a coherent account." If we stop there my ruling is easy, the answer is his mental condition does not make it undesirable for him to give evidence if he can. Dr Gudjonsson qualified it in this way, "I think he would find it more difficult to listen to questions and to concentrate if he was under stress." There is bound to be, with the best will in the world, stress in this court which does not exist when Dr Gudjonsson is seeing him alone. I accept that. Dr Gudjonsson went on to say that he is restless and tense. His concern arises because this defendant is restless and tense, an anxious individual, very restless. "My concern is whether he could to justice to himself. My concern would be his distractibility. He would not have the same intellectual resources. One must have an overall view of his ability to concentrate."

The judge contrasted this with the evidence of the interviews with the police when he was represented by a solicitor and accompanied by his mother. And concluded :

"He seems to have been able to give a very coherent account if not true but certainly a coherent account in answer to the questions being put to him.

The judge then considered the evidence of Dr Gudjonsson on the suggestibility scores which the doctor considered of key importance :

"They fall within normal limits, indicating that he is not particularly suggestible. His total suggestibility score of 4 falls below average for normal persons. He is not a very suggestible young man. He is not going to agree with a co-defendants question or the Crown's question very easily."

The judge then addressed the appellant's behaviour soon after the offence insofar as it threw light on the appellant's mental condition, and in particular "that he was able to go with a co-defendant, it may be in the jury's mind, to dispose of the murder weapons".

There then follows a passage to which exception is taken.

"I have to look at the overall picture. I remind myself of two things in this connection, one is that it is not unusual in these courts to have somebody who is physically only eight giving evidence. The other is, of course, that although it might be a witness who is under the most enormous stress who has to do so because he or she is the victim of sexual assault, nevertheless perhaps nothing is the same as standing trial for murder when you yourself are in the dock. I also bear this in mind it seems to me and always has seemed to me one of the most important of all judicial functions is trying to see that every witness, whoever he or she may be and whatever age he or she may be, is not put under improper pressure. Clearly one does not exercise, otherwise a judge might be always interfering one's inherent power to restrain cross-examining counsel where the witness is, let us say, a man of few years about whom there is no question of anything but mental normality.

And later

"If the judge feels the witness is being bullied by cross-examination it is one of the fundamental judicial qualifications to be able to try at least to see that witnesses and everybody appearing in the court are treated fairly and courteously. -- I would certainly see the defendant did understand every question put, took time and we will take breaks".

The judge concluded :

"I believe on balance that his mental condition is not such as to make it undesirable to give evidence and I base myself on the explanation he was able to give in particular to the police and to Dr Gudjonsson and also on the powers of the court which we exercise frequently now in favour of defendants and their witnesses to see that they are not put under any undue pressure if they have any handicap of any kind.

I am not therefore prepared to rule that a condition is such that it makes it undesirable for him to give evidence and therefore to exclude the comment which I must then make under the Act".

The First Ground of appeal asserts that the judge erred in principle and in the exercise of his discretion under s.35 of the Act.

Mr Brian Barker for the appellant submits that the judge based his decision upon the wrong test in rejecting the submission that the appellant's mental condition made it undesirable for him to give evidence. The judge based his decision at least in part upon the fact that children as young as eight give evidence in Crown Court trials. This was 'accommodated by the trial judge ensuring that no undue pressure was put upon a child witness'. There was undisputed evidence that the appellant had a mental age of a child of nine. On a proper construction of 35(1) it was envisaged by Parliament that the inferences to be drawn from a defendant's failure to give evidence should not apply unless a defendant had attained the age of 14. Parliament also intended that child defendants between the ages of 10 and 14 should not have inferences drawn against them if they fail to give evidence. The judge's decision required the defendant to give evidence or suffer the consequences of an adverse inference and was thus 'Wednesbury unreasonable'.

It is further submitted that the judge erred in the exercise of his discretion. The appellant was mentally handicapped with a mental age of a child of nine at the time of the offence. There was evidence that the appellant could not do himself justice in giving evidence because of his poor ability to concentrate and express himself. Moreover the judge gave disproportionate weight to the appellant's interview, lack of suggestibility and the fact that he was alleged to have gone with John Birch to dispose of a knife. These were 'exceptional factors' (as contemplated by Lord Taylor in R v Cowan (supra)) where the jury should not have been directed that an adverse inference could be drawn. Accordingly the conviction is unsafe.

Mrs Rebecca Poulet QC for the Crown submits that the learned judge exercised his discretion in a proper and balanced manner, assessing and taking a view of the facts, having heard live evidence from an expert Dr Gudjonsson and having had the benefit of his report. There are no formal guidelines set down as to the exercise of discretion under s.35, hence it is inappropriate to contend that the learned judge based his decision upon the "wrong test" provided the exercise of the learned judge's discretion cannot be said to be "Wednesbury unreasonable". The learned judge properly exercised his discretion by applying his mind to all the relevant factors and did not consider irrelevant factors.

In reaching our conclusion we take as our starting point that it will only be in very rare cases that a judge will have to consider whether it is undesirable for an accused to give evidence on account of his mental condition.

In the majority of cases there will be evidence that he is "unfit to plead". This concept is a wide one and is virtually invariably associated with mental illness or disability. R v Pritchard [1836] 7 CP 303 concerned a deaf mute who was otherwise of sound mind. Aldonson B directed the jury in terms which are "firmly embodied in the law" :

"There are three points to be inquired into: First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence - to know that he might challenge [any jurors] to whom he may object - and to comprehend the details of the evidence ... if you think that there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge; you ought to find that he is not of sane mind. It is not enough, that he may have a general capacity of communicating on ordinary matters."

The test of unfitness is whether the accused will be able to comprehend the course of the proceedings so as to make a proper defence. Whether he can understand and reply rationally to the indictment is obviously a relevant factor, but the jury must also consider whether he would be able to exercise his right to challenge jurors, understand details of the evidence as it is given, instruct his legal advisors and give evidence himself if he so desires. The issue whether the accused is fit to plead may be raised by either the prosecution or defence. Subject to a special procedure contained in the Criminal Procedure (Insanity) Act 1964, s.4(2), the issue must be determined a soon as it arises (s.4(4)). If the issue is raised by the defence, the burden of proof is on them to establish on a balance of probabilities that the accused is unfit (R v Robertson [1968] 1 WLR 1767). If raised by the prosecution, they bear the burden of proof beyond reasonable doubt (R v Podola [1961] QB 325).

Thus if the accused is not found unfit (ie found fit to plead or mute of malice) the case will proceed to trial. Circumstances may never the less arise in the course of the trial where the question arises whether he is still fit to stand or has become unfit to stand his trial. No case was brought to our attention where that had arisen but it is not difficult to envisage in practice how the judge would proceed to resolve this issue.

S.35 CJPOA 1994 sets out the procedure to be followed in order to ascertain whether an accused will give evidence and the consequences of failure by him to give evidence or refusal by him without cause, to answer any question. S.1(b) in effect provides no adverse inference may be drawn if the mental condition of the accused makes it undesirable for him to give evidence. Its clear purpose is to mitigate any injustice to a person who is physically or mentally handicapped. The language of the section is such as to give a wide discretion to the trial judge :

"1. At the trial of any person who has obtained the age of 14 years for an offence (an adverse inference may be inferred from silence) unless :

(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;"

In the present case the issue was never raised as to whether he was unfit to plead. It can thus be safely inferred that those representing him at least, felt that he crossed the threshold of fitness in that he was of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence and to know that he might challenge jurors and comprehend the details of the evidence.

We do not accept the proposition that because he had a mental age of nine he had or should have had the same immunity from adverse inference as a person under the age of 14. S.9 Family Law Reform Act 1969 provides :

"The time at which a person attains a particular age expressed in years shall be the commencement of the relevant anniversary of the date of his birth".

It is a fair inference that the draftsman had s.9 in mind when he used the expression "attained the age of 14 years" in the 1994 Act. Thus the appellant notwithstanding his mental age fell within the ambit of the section.

As envisaged in Cowan there was some evidential basis before the judge. Dr Gudjonsson had written a comprehensive report and gave evidence. This evidence, impressive as it undoubtedly was, was not conclusive of the issue. The judge was fully entitled to consider the rest of the evidence in the case including, in our view, the conduct before and after the offence was committed and the answers he gave to the police at interview. Wisely the judge did not consider the commission of the offence itself.

In C (a minor) v DPP [1995] 2 CAR 166 the House of Lords held that the presumption between the ages of 10 - 14 was doli incapax could be rebutted only by clear positive evidence that the child knew that the act was seriously wrong, and the evidence of the commission of the acts amounting to the offence itself is not sufficient to rebut the presumption. Interviews with the child are capable of providing the necessary insight into the mental functions of the child from which inferences may be drawn to rebut the presumption. The conduct of the child before or after the act may go to prove his guilty mind. See also L (a minor) v DPP & Ors Div Court May 1996 and A v DPP Div Court May 1996.

Some further assistance is to be derived from Murray v DPP [1994] 1 WLR 1 a decision concerning the equivalent provision of the Criminal Evidence (Northern Ireland) Order 1988. M was convicted of attempted murder and possession of a firearm with intent to endanger life. Scientific evidence linked M with a car used in the attack. M advanced various explanations during interrogation but gave no evidence at trial from which failure the trial judge drew adverse inference. The House of Lords considered that the inference was justified. The 1988 Order was intended to change the law and practice and to lay down new rules as to the comments which could be made and inferences which could be drawn. An accused is not compellably to testify, but he must risk the consequences if he does not do so. These consequences are not simply that specific inferences may be drawn from specific facts, but include in a proper case the inference that the accused is guilty. As to what is proper Lord Slynn said at page 160 :

"If there is no prima facie case shown by the prosecution there is no case to answer. Equally if pats of the prosecution case had so little evidential value that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt."

We do not consider that the judge erred in principle in applying the wrong test. It cannot be said that he applied the wrong test if only because there is no right test. Indeed we do not consider it appropriate to spell out a test to be applied in such a situation. The language of this part of the section is simple and clear. It is for the judge in a given case to determine whether or not it is undesirable for the accused to give evidence. A physical condition might include a risk of an epileptic attack; a mental condition, latent schizophrenia where the experience of giving evidence might trigger a florid state. If it appears to the judge on the voir dire that such a physical or mental condition of the accused makes it undesirable for him to give evidence he will so rule, the inference cannot thereafter be drawn and he will so direct the jury. Thereafter and by operation of ss.(3) the jury in determining whether the accused is guilty may draw such inferences "as appear proper" from the failure to give evidence and in doing so may take account of medical or other evidence directed to this issue. This is precisely what happened in the instant case. Thus we consider that the clarity of the language is such that it is not necessary to supplement the Act with a test. The section itself is a practical framework within which the provision and purpose of the Statute can be put into effect and no formal guidelines are called for.

Against this analysis we are unable to find that the judge erred in principle in approaching this issue. He carefully considered Dr Gudjonsson's evidence in some detail. He took account of the experts opinion that the appellant could not do himself justice in giving evidence because of his poor ability to concentrate and express himself. This assertion was somewhat vague and having explored it with the witness the judge was entitled to give such weight to it as he felt appropriate. He was able to balance it against Dr Gudjonsson's conclusions on the suggestibility score that they fell within normal limits and that the appellant was not a very suggestible young man and coupling it with the judge's own powers to mitigate the stress of giving evidence. We can find no error in principle in taking into account his behaviour after the offence (as opposed to the commission of the offence) and his answers in interview. It is not possible to fault the judge's conclusion or the manner in which he reached it. We accept Mrs Poulet's submission that the decision can only be impugned if it can be shown that it was "unreasonable" in the Wednesbury sense ie that no judge faced with this evidence could rationally have reached this conclusion. We are satisfied that the judge reached his conclusion in a proper and balanced manner. He took into account relevant matters, he did not consider those that were irrelevant. It was thus open to him to arrive at the conclusion that he did on the evidence before him and there is no basis for this court to substitute a contrary conclusion.

Insofar as he exercised his discretion it cannot be said that he erred in principle or that he exercised it capriciously. Finally we are satisfied that the circumstances of the case were not such as to be "exceptional" as envisaged by Lord Taylor in Cowan.

Consequently we are not persuaded that the judge was wrong to reject the submission that the applicant's mental age made it undesirable for him to give evidence.

The Second Ground advanced is that the judge in summing up allowed the ruling he had made concerning the appellant's failure to give evidence to colour his whole approach and placed excessive emphasis upon the applicant's answers in interview to the police. The judge thereafter linked the appellant's alleged lies in interview with the way in which the jury should consider Dr Gudjonsson's evidence. While the judge gave an satisfactory direction in terms of R v Lucas this was early in the summing up and completely separated from the extended passage which dealt with the appellant's interview with the police which came just before the retirement of the jury on the second day of the summing up. The jury were not directed as to the approach they were to adopt, namely, that (1) they had to consider whether they were sure that the appellant knew that his brother had a knife and he either intended or foresaw that really serious harm would come to Ben O'connor (2) that the lies could only be evidence of guilt if he told them to the police out of a desire to hide his own guilt and not out of fear for his brother's position (3) the linking of the lies to the failure of the appellant to give evidence could only be used as evidence of guilt if the jury were sure that there was no other sensible explanation for his silence.

We consider there is no force in these submissions. We do not accept that the judge allowed the ruling on the voir dire to colour his approach or that he gave undue emphasis to the police interviews. The judge gave proper and clear directions as to the way the jury should approach the evidence of all the young witnesses in the case. He directed that the jury had to consider carefully the evidence of those who they decided had lied, and whether thereafter they might be telling the truth or still telling lies. These directions preceded the 'Lucas' direction, which not only applied to the appellant but to other witnesses.

It was inevitable that the judge linked the appellant's alleged lies in interview with the way the jury should consider Dr Gudjonsson's evidence. The central issue for them to consider was the weight to be given to the answers at interview and this could only be done in the light of Dr Gudjonsson's evidence as to his mental state. This evidence was also of vital importance in regard to intent and foresight of injury. The judge put it thus at p.78 C-F :

"In considering his foresight, indeed in considering his intention generally, taken into account Dr Gudjonsson's evidence. He, of course, is much older than it is suggested at the time, a very rough parallel, that his mental age might be that only of an eight year old.

Looking at Dr Gudjonsson's evidence with the greatest possible care, taking it very seriously as I know you would wish to and also at all the other evidence as to his behaviour that night, you have to consider whether on the one hand he did, in fact, intend to do really serious injury, on the other that he did foresee the carrying of a knife may result in really serious injury being done".

The judge went on to direct them on whether an adverse inference could be drawn at 87 A-D :

"So far as the [appellant] is concerned, the position is, of course, to some extent, perhaps to a very large extent, affected by Dr Gudjonsson's evidence. It was urged on you, by Mr Barker, that this boy was mentally handicapped but there were reasons why it could be considered by you undesirable that he should have given evidence. It could be put another way, that it is a matter you would take into account in his favour when considering whether or not to draw adverse inferences from his silence."

and finally at 152F-153.

"This is important for various points of view. You have to make up your own mind about Dr Gudjonsson's evidence in relation to Friend. First of all in relation to his intention, secondly in relation to his foresight. What effects it had on intention and foresight, which I dealt with yesterday fully, and to which I do not return In this context, you have really to make up your minds about whether Dr Gudjonsson is right in saying : "This man should not be faulted by not giving evidence in front of you." Bearing in mind that when he was interviewed by the police, when his mental age was lower than it is now you will remember, he seems to have had sufficient wit, if that be the right word, to tell a number of undoubted lies."

We accept Mr Barker's proposition that in the light of very difficult decisions the jury had to make in applying the law to the facts very clear directions were required. We are satisfied that this criterion was satisfied. There was a plain, clear and appropriate 'Lucas' direction. It was given at the correct stage of the summing up when the judge was giving directions on the law and before embarking on an analysis of the evidence. There was no need to repeat the direction on the second day of the summing-up. There was a correct and helpful linkage with Dr Gudjonsson's evidence. The judge correctly left the 'undesirability' and adverse inference issue to the jury. The issue of foreseeability was correctly addressed and left to the jury and did not call for the refinements or elaboration contended for. We reject the suggestion that the jury could have been left with the impression that a series of lies coupled with not giving evidence was sufficient to convict.

In the light of this analysis of the summing-up there is no reason to suspect that the conviction is unsafe on this ground.

The Third Ground arises out of an unusual occurrence during the trial when two jurors were seen to be wearing ribbons or favours supporting the private prosecution of the alleged murderers of Stephen Lawrence. Leading counsel submitted to the trial judge that the jury would be influenced by outside considerations stemming from the bringing of this private prosecution by the aggrieved parents and applied for the jurors concerned to be discharged. The judge declined. Leading counsel contends that the judge erred in the exercise of his discretion. The open wearing of favours went beyond mere general support to a conscious and deliberate expression of views concerning that case gained only from the attendant publicity. The circumstances of that trial and this were so close that the possibility of influence was all the more real. The case against the alleged killers of Stephen Lawrence collapsed before the end of the prosecution case against the appellant. Any supporters of the private prosecution would have been deeply disappointed. There is thus a real possibility that these jurors might have allowed their disappointment to affect their judgement of the appellant's case. Accordingly the conviction is unsafe.

We consider that this ground is devoid of merit. The judge carefully considered the arguments advanced. He was entitled to find that save that the fatal injuries were caused by stabbing there were no similarities between the two cases and several dissimilarities. In particular when considering the aspect of race he said :

"In this case there is no evidence, it seems to me, of racism rearing its ugly head. The victim in this case was a white boy. the alleged murderers are white. Two of them, possibly even three it is suggested could be labelled gypsies. It is very far removed, it seems to me, from the situation in the Lawrence case where it was white thugs, or suggested necessarily the ones in the dock, I do not know what the strength of the evidence is and what the jury's decision will be, but white thugs they were who murdered that unfortunate boy who was black, it is a long way from this case."

When considering the consequences of discharging the jury and

ordering a re-trial he said :

"It would not merely be a waste of public money and time, I would feel that it was a burden for the brother of the deceased, who is clearly emotionally upset, and for those young women who would have to undergo giving their evidence yet again, not a conclusive factor, but that aspect of the matter cannot wholly be disregarded and it is not."

In R v Gough [1993] 97 CAR, the House of Lords, albeit in a case of wholly different circumstances, held that the test to be applied in all cases of apparent bias was whether there was a real danger of bias on the part of the relevant member(s) of the tribunal in question, and if so, whether there was a real danger that the bias had influenced the decision.

Although it might have been wiser for the jurors not to have expressed support for an attempt to remedy injustice in another case, it is difficult to see how there was a real danger of bias in the instant case. In our view the judge correctly considered whether the expression for support for the Lawrence family amounted to a real danger of bias on the part of the jurors who sported favours and decided that there was not. We are satisfied that this conduct did not amount to a material irregularity. The exercise of the judge's discretion cannot be faulted.

The Fourth Ground avers that the matters relied on, if not sufficient individually to render the conviction unsafe do so when re-viewed collectively. We are unable to accede to this submission. None of the previous grounds has real substance and when considered jointly they do not amount to a real suspicion that the conviction is unsafe.

The appeal is accordingly dismissed.

Mr Justice Butterfield is on circuit but has given his approval to the final draft of this judgment. For the reasons given in the judgment which has been handed down, this appeal is dismissed. Are there any applications?

MR BARKER: No, my Lord.

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