Interrogations-and-Confessions-Handbook

274 A Psychology of Interrogations and Confessions
that Section 35 and its sister sections may lead to wrongful convictions. The Court
was of the view that it seemed very possible that the application of these provisions
could lead to decisions adverse to the United Kingdom at Strasbourg under
Article 6(1) and (2) of the European Convention on Human Rights unless the
provisions were the subject of very carefully framed directions to juries (p. 312).
In the present case the omission to give full directions rendered the conviction
unsafe because after consideration of new evidence the Court did not consider the
Crown’s case called for an answer from the appellant. The Court was left in doubt
as to the appellant’s guilt and accordingly quashed his conviction (pp. 312–313).
Section 35 applies to defendants who are 14 years or older. However, according
to Subsection 1(b) no adverse inferences should be drawn if
...it appears to the court that the physical or mental condition of the accused
makes it undesirable for him to give evidence.
The leading case with regard to the issue of undesirability due to mental factors
is that of R. v. Billy-Joe Friend ([1997], Cr.App.R. 231). The case involved
a 15-year-old youth who was charged with murder. Shortly prior to trial, I had
assessed the defendant for the defence and found him to have an IQ score of
63. He did not prove to be suggestible on testing. I testified at the Central
Criminal Court during a voire dire and stated that in spite of his low intelligence
the appellant could give a clear account in an interview if allowed time
to express himself and if care was taken that he understood, but his performance
in the witness box might be a different matter due to the increased
stress. The defence counsel submitted that on the basis of my evidence the
jury should not be invited to draw an adverse inference from his failure to give
evidence
. . . because his mental condition made it undesirable to do so in light of Section
35(1)(b). The judge declined so to rule and referred to the fact that children as
young as eight years old gave evidence in Crown Court trials. In his summing-up
he directed the jury that it was open to them to draw an adverse inference from
the appellant’s failure to give evidence. The appellant was convicted of murder
(p. 231).
The judge’s decision was appealed; the Court of Appeal delivered a detailed
judgment concerning the weight of the psychological evidence and stated:
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 (p. 241).
The case highlighted the fact that there are no formal guidelines as to how
to exercise their discretion under Section 35. There are no specific tests that
can be routinely applied to cases when construing the meaning of the word
‘undesirable’. The court concluded that