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R v Dixon [2013] EWCA Crim 465, [2013] MHLO 42

(1) Despite the appellant's intellect and condition the judge was entitled to permit the jury to draw an adverse inference from his failure to give evidence. (2) The appellant argued that fresh medical evidence showed the judge's decision was wrong, but this evidence was not admitted. (3) The appellant had been able meaningfully to participate in his trial, which was fair, and the conviction was safe. (4) The minimum term of the appellant's detention at Her Majesty's pleasure was reduced from 14 to 13 years.

MHLR

The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2014 are available here: MHLR 2014.

Whether an adverse inference direction from the defendant not giving evidence had been proper in light of his mental health; whether fresh evidence was admissible; whether the defendant had been able to participate in the trial; whether the minimum term fixed under an indeterminate detention sentence was too high - R v Jordan Dixon – [2014] MHLR 148

Points Arising: (1) Whilst there does not have to be an adverse effect on the mental health of a defendant to make it undesirable for them to give evidence so as to avoid an adverse inference direction from their failure to give evidence (by reason of s35 Criminal Justice and Public Order Act 1994), difficulty in giving evidence does not make it unjust to give the adverse inference direction. Relevant factors include the potential significance of the evidence, the defendant’s behaviour after the event, the availability of an intermediary and the anticipated approach of a fair-minded jury. (2) Further evidence that merely amplified material available at the trial was not admissible under s23 Criminal Appeal Act 1968.

Facts and Outcome: JD faced trial for murder with 2 co-defendants based on a joint-venture attack on the victim; he raised self-defence. He had an intermediary during the trial in light of low IQ, and problems with attention and language. The judge allowed an adverse inference to be drawn from JD’s failure to give evidence (though not from his failure to answer police questions), taking into account his conduct at the time of the offence, the potential significance of the evidence (which was self-evident when the defence was self-defence), that the test was not met by difficulty in giving evidence, which was mitigated by the use of an intermediary, and that a jury would take into account his condition (which was in evidence). This was challenged on appeal, which was supported by further evidence that put his IQ lower (though the 2 experts had different views on whether JD had been able to participate). The Court of Appeal declined to admit the fresh evidence on the basis that it did not support a ground of appeal because it amplified evidence at the trial and the experts disagreed on the impact of the evidence; they also determined that on the facts the arrangements had enabled JD to participate, and the judge had reached a decision that was open to him in relation to the adverse inference direction. The Court of Appeal did, however, reduce the minimum term for 13 to 12 years on the basis that the trial judge had wrongly concluded that JD had a greater role in the attack.

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