FOURTH SECTION
Application no. 16667/10
by Matthew O’DONNELL
against the United Kingdom
lodged on 15 March 2010

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Matthew O’Donnell, is an Irish national who was born in 1980. He is currently detained at HMP Maghaberry. He is represented before the Court by Mr P. McGrory, a lawyer practising in Belfast.
A.  The circumstances of the case
The applicant has an IQ of 63, which is within the bottom 1% of the general population. He has an understanding of spoken English equivalent to that of a six year old child. The present application relates to his trial and conviction for the murder of Mr Noel Alexander Williamson. The circumstances of the case, as submitted by the applicant, are as follows.
On the morning of 13 October 2004, the body of Mr Williamson was found on the banks of the Blackwater River in County Tyrone.
The applicant had spent most of the previous day drinking in public with the deceased and a third man, Mr Samuel Houston. There was evidence from witnesses that both Mr Houston and the applicant had been threatening and aggressive towards a number of individuals including the deceased. One witness also stated that, when Mr Houston produced a knife and said he was going to kill the deceased, the applicant encouraged him to “just kill him”. There was also evidence that the applicant and Mr Houston asked the deceased to come out to fight with them after they had been refused admission to a public house.
The deceased was last seen alive at around 1:30 a.m. on 13 October 2004 when he, Mr Houston and the applicant were seen making their way to a park area beside the Blackwater River. A post-mortem examination of the deceased revealed that he had been extensively beaten before his death and that he had sustained a number of knife wounds including a severance of the carotid artery.
The police searched the applicant’s home and found clothes which were heavily stained with the blood of the deceased. A plastic bag containing a knife was also found at the applicant’s house. The plastic bag and the knife contained blood which matched the blood of the deceased. Medical evidence indicated that the knife was one that could have been used to inflict the wounds sustained by the deceased.
Mr Houston admitted the manslaughter of Mr Williamson and was sentenced to ten years’ imprisonment.
The applicant was arrested in the Republic of Ireland. He was interviewed by Irish police officers about the death of Mr Williamson. Those interviews were videotaped. He was subsequently extradited to Northern Ireland in April 2007.
At the applicant’s trial, the prosecution sought to rely on the interviews which had been conducted in the Republic of Ireland. The applicant challenged the admissibility of those interviews, inter alia on the ground that the proper procedures for interviewing a suspect with a mental handicap had not been followed. A voire dire was held, in the course of which evidence was led from clinical psychologists and psychiatrists who had examined the applicant and watched the interview tapes. At the conclusion of the voire dire, the trial judge decided to exclude the interviews from evidence.
At the close of the prosecution case, the trial judge rejected a defence submission that there was no case to answer.
The defence then applied to the trial judge for a ruling that the applicant’s mental condition made it undesirable for him to be called to give evidence. The effect of a favourable ruling would have been that the jury would not be permitted to draw an adverse inference from any failure of the applicant to give evidence in his own defence (see Article 4 of the Criminal Evidence (Northern Ireland) Order 1988: relevant domestic law and practice below). In the course of the trial judge’s consideration of that application, a second voire dire was held, in which further evidence was given by one of the clinical psychologists, Dr Davies. The trial judge refused to allow Dr Davies to give evidence concerning the conclusions he had reached from watching the interview tapes. The trial judge reasoned that, once the interview tapes were excluded from evidence, they were excluded from evidence for all purposes. The trial judge did, however, hear evidence from Dr Davies as to his concern that the applicant’s low I.Q. would place him in considerable difficulty if he were to give evidence in his own defence. In Dr Davies’ view, the applicant would be highly suggestible, he would have problems understanding questions and would find it difficult to give coherent responses. The trial judge refused the defence application, finding that he, the trial judge, could control the manner in which questions would be asked and could ensure that no unfairness would result.
The applicant elected not to give evidence but Dr Davies was permitted to give evidence to the jury as to the applicant’s vulnerability and his difficult in giving evidence.
The prosecution invited the jury to draw an adverse inference from the applicant’s failure to give evidence. The trial judge’s summing up contained the following direction to the jury:
“I have said to you that the defendant has not given evidence and that is his right. He is entitled not to give evidence, to remain silent and to make the prosecution prove his guilt beyond reasonable doubt. Two matters arise from his not giving evidence. The first is that you try this case according to the evidence. You will appreciate that the defendant has not given evidence at this trial to undermine, contradict or explain the evidence put before you by the prosecution. The second matter, as you heard him being told when I addressed Mr McGrory [counsel for the applicant], is that the law is that you may draw such inferences as appear proper from his failure to give evidence. It is for you to decide whether it is proper to hold the defendant’s failure to give evidence against him when deciding whether he is guilty. On the basis of the evidence of Dr Davies, Mr McGrory invites you not to hold it against the defendant that he has not given evidence before you. Dr Davies’s uncontradicted evidence is that the defendant has an IQ of 62 and therefore is a person of very limited intellectual ability who should be regarded as mentally handicapped. He has the ability of a six year-old to understand spoken English. Dr Davies said that mentally handicapped people find giving evidence very challenging and his ability to provide a coherent and consistent account and to understand the implications of his replies is limited. Dr Davies said that he seems to have difficulty in functioning as an average person and has difficulty in maintaining relationships, keeping a job and performing everyday tasks such as looking after money.
Dr Davies’s evidence about the accused and the abilities of mentally handicapped people in general about which I have just reminded you is an important factor to bear in mind, but there are others that you should bear in mind and consider as well. There is no evidence that the defendant is not fit to stand his trial; in other words, it has not been suggested that he cannot understand questions, nor has it been suggested that he cannot instruct his legal advisers as to the nature of his case. It has not been suggested that he is unable to remember what happened that night, indeed, Dr Davies did not ask him to recall the events of that night, so you do not know from what Dr Davies has said to what extent the defendant can explain what he did or where he went, indeed, when he was charged with Mr Williamson’s death he replied, ‘I didn’t go near him’, not, ‘I don’t know anything about it’, or, ‘I didn’t have anything to do with it.’ You have to consider along with many other questions you have to consider whether the answer he gave is not merely a denial of guilt, which it plainly is, but whether it implies that he knows something about the circumstances of Mr Williamson’s death.
You should also consider whether the defendant, despite his undoubted handicaps, his low IQ and limited comprehension of English, could have answered questions in the witness box. I say that because Mr McGrory said in his closing remarks to you, ‘What chance would a man like that have in proceedings like this?’ I must tell you that the defence were well aware that had the defendant given evidence the court would have ensured he was treated fairly and given every chance to put his case and in particular that questions were simply phrased and put in such a way that they did not suggest the answer to him. It is not enough that a person would find it difficult to give evidence to excuse them from giving evidence. Many people have to give evidence and find it difficult - even children as young as six. Fortunately, we do not have that very often but it does happen sometimes. Every effort is made to simplify the proceedings and the form of questions to ensure that people like that can give evidence. If you think that because of the evidence of Dr Davies you should not hold it against the defendant that he has not given evidence do not hold it against him, but if you are satisfied beyond reasonable doubt that the evidence he relies on, that is, the evidence of Dr Davies, presents no adequate explanation for his absence from the witness box then you may hold his failure to give evidence against him.
If you consider that there is no excuse for his not giving evidence what proper inferences - in other words, what conclusions - can you draw from the defendant’s decision not to give evidence before you? You may think that the defendant would have gone into the witness box to give you an explanation or answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or none that could have stood up to cross- examination, then it would be open to you to hold against him his failure to give evidence. It is for you to decide whether it is fair to hold that failure against him. In considering that it might be useful for you to consider what sort of questions might the defendant have had to face if he had given evidence.”
The trial judge went on to give examples of questions that might have been asked of the defendant had he given evidence before emphasising that the jury should not find him guilty only or mainly because he had not given evidence, but that they might take it into account as some additional support for the prosecution’s case and in deciding whether or not the case made on his behalf was or might be true.
The applicant was convicted by the jury and sentenced to life imprisonment with a minimum term of twelve years. He appealed against his conviction on three grounds: (i) that the trial judge had erred in not allowing Dr Davies to give evidence concerning the conclusions he had reached from watching the interview tapes; (ii) that the trial judge had erred in rejecting the applicant’s submission that it was undesirable for him to be called to give evidence; and (iii) that the trial judge had failed to direct the jury that they should not draw adverse inferences unless they were satisfied that there was case to answer.
On 28 January 2009 an application for leave to appeal was refused by a single judge of the Court of Appeal in Northern Ireland. A renewed application was dismissed by the full court on 15 January 2010.
In respect of the first ground of appeal, the Court of Appeal accepted that the videotapes were in fact admissible to demonstrate how the applicant expressed himself and to demonstrate that he was suggestible. However, the portion of the videotape on which the applicant had intended to rely did not in fact touch on suggestibility and, in any event, the applicant’s suggestibility was not in dispute between the experts who had testified for the prosecution and defence. Therefore, the omission of the evidence would not have had any material effect on the trial judge’s decision.
In respect of the second ground of appeal, the Court of Appeal considered that the trial judge had reaching his conclusion in a proper and balanced manner and his conclusion was not unreasonable.
For the third ground, the Court of Appeal recognised that, in England and Wales, trial judges were required to direct juries that they, the jury, had to find that there was a case to answer on the prosecution evidence before drawing an adverse inference (see relevant domestic law and practice below). By contrast, in Northern Ireland, it was left to the judge in each case to decide whether to direct the jury in this manner, depending on the strength of the prosecution case. The Court of Appeal considered that, in the applicant’s case, the absence of such a direction to the jury reflected the trial judge’s view that this was not a case where the evidence was so weak as to require such a direction. The substantial body of evidence against the applicant supported that view. The trial was not, therefore, unfair. The Court of Appeal nonetheless recommended that the practice in Northern Ireland should be amended to follow the approach taken in England and Wales.
The applicant asked the court to certify questions of general public importance for the consideration of the Supreme Court. It refused to do so in a decision handed down on 29 January 2010.
B.  Relevant domestic law and practice
Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 where relevant provides:
“Accused to be called upon to give evidence at trial
4.—(1)  At the trial of any person (other than a child) for an offence paragraphs (2) to (7) apply unless —
...
(b)  it appears to the court that the physical or mental condition of the accused makes it undesirable for him to be called upon to give evidence;
...
(2)  Before any evidence is called for the defence, the court—
(a)  shall tell the accused that he will be called upon by the court to give evidence in his own defence; and
(b)  shall tell him in ordinary language what the effect of this Article will be if—
(i)  when so called upon, he refuses to be sworn;
(ii)  having been sworn, without good cause he refuses to answer any question;
and thereupon the court shall call upon the accused to give evidence.
(3)  If the accused—
(a)  after being called upon by the court to give evidence in pursuance of this Article, or after he or counsel or a solicitor representing him has informed the court that he will give evidence, refuses to be sworn; or
(b)  having been sworn, without good cause refuses to answer any question, paragraph (4) applies.
(4)  The court or jury, in determining whether the accused is guilty of the offence charged, may—
(a)  draw such inferences from the refusal as appear proper;
(b)  on the basis of such inferences, treat the refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the refusal is material.
(5)  This Article does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a refusal to be sworn.”
At the time of the applicant’s trial, the relevant specimen direction of the Judicial Studies Board for Northern Ireland left it to the judge in each case to decide whether to direct the jury that they should consider whether the prosecution case was so strong that it called for an answer. Further assistance was set out at Note 4 of the specimen direction, which stated:
“Where the judge has refused an application for a direction, or no application has been made, it is considered that it is normally inappropriate to state that the jury has to be directed to consider whether the defendant has a case to answer, despite the remarks of Lord Taylor CJ in R v Cowan & others [1996] 1 Cr. App. R.1 [see below]. However, there may be circumstances (e.g. where the defence case is that the evidence against the defendant is so weak that it does not require an answer) where a direction along these lines may be appropriate.”
C.  Adverse inferences in England and Wales
The drawing of adverse inferences in England and Wales is governed by section 35 of the Criminal Justice and Public Order Act 1994, which is in similar terms to Article 4 of the Northern Ireland Order. As stated in Adetoro v. the United Kingdom, no. 46834/06, § 29, 20 April 2010, in R v. Cowan Lord Taylor CJ set out five “essentials” when making a direction on adverse inferences:
“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:
1.  The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.
2.  It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.
3.  An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4.  Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
5.  If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”
In R. v Chenia [2002] EWCA Crim 2345 and R v Whitehead [2006] EWCA Crim 1486 the Court of Appeal found that, while it desirable for a trial judge to include a direction including the fourth “essential” in Cowan, any failure to do so would not render a conviction unsafe or unfair if no jury could possibly have concluded that there was no case to answer on the facts.
COMPLAINTS
The applicant complains under Article 6 of the Convention that his trial was unfair. He advances two grounds in support of this complaint. First, he alleges that the trial judge’s ruling under Article 4(1)(b) (as to the desirability of the applicant giving evidence) was improper and unfair. This was particularly so when the trial judge had erred in refusing to consider the Dr Davies’ evidence regarding his observations of the excluded videotaped interviews. Second, he alleges that the trial judge’s direction to the jury in respect of adverse inferences was flawed. The trial judge should have been required to direct the jury that they should not draw any adverse inferences unless they considered that there was a case to answer.
QUESTION TO THE PARTIES
Has there been a violation of Article 6 § 1 of the Convention arising from:
(i)  the trial judge’s decision to allow the jury to draw adverse inferences from the applicant’s failure to testify, despite the applicant’s low I.Q.; and/or
(ii)  the fact that the trial judge did not direct the jury that they could not draw adverse inferences from the applicant’s failure to testify unless they considered there was a case to answer?