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Commenting on the failure of the defence to call potentially relevant witnesses
  • Apr 17, 2024
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by Paul Patterson – 16 February 2024
Commenting on the failure of the defence to call potentially relevant witnesses: R vWatson [2023] EWCA Crim 960.

A recent case and its lessons for defence practitioners
1. Is it permissible for the prosecution, or judge, to comment on the failure of the defence to call a witness who may be able to support the defence case? R v  Watson (Roshane) [2023] EWCA Crim 960.

2. The appellant appealed against his conviction of murder, possession of a firearm with intent to endanger life and perverting the course of justice, for which he was sentenced to life imprisonment with a specified minimum term of 32 years.

3. On 29 July 2020, the appellant was one of two men (Man A and Man B) that exited an Audi motor car on a road in Edmonton and approached the victim’s car. Man A fired 2 shots fatally injuring the victim. The issue in the case was identification in which the prosecution relied on CCTV evidence, telephone attribution, contact and cell site evidence. The stripping of the Audi after the incident was circumstantial evidence and made up the charge of perverting the course of justice. Clothing from a music video recorded on the 19 June 2020 as well as Body Worn Video of a stop and search from 9 July 2020 matched a still from the CCTV of Man A who the prosecution said was Watson getting out of the Audi on 29 July 2020.

4. Watson’s defence was that the clothes were commonplace, and the phone was not in his possession at the time of the shooting. On that basis, the prosecution’s evidence against him was so weak and tenuous that it did not call for an answer from him and no adverse inference should be drawn. However, one of Watson’s co-accused presented an alibi defence; that Watson was seen by X, Y and Z in company with others at a party. This was not challenged by Watson, and no alibi notice had been served by Watson, and there was no legal impediment to calling witnesses to substantiate his claim. This prompted a note from the jury asking whether they would hear evidence from X, Y and Z.

5. After discussion with counsel, the judge directed the jury in the following terms: “You know the answer to that question now, because the evidence has closed. Let me give you this direction, and I hope in the clearest possible terms. Members of the jury, you must not-and I stress those words-must not speculate as to why these persons have not been called by either side. You must not speculate as to what they might have said had they been called to give evidence, and you must try this case only on the evidence you have received in this trial, remembering at all times where the burden and standard of proof lies.”

6. The judge repeated that the jury were not to speculate during his route to verdict. When prosecution counsel made his closing speech, he commented on Watson’s failure to give evidence and/or his failure to call certain witnesses. This was raised by counsel for Watson as an issue and therefore the Judge prevailed upon the prosecution to correct his position. The prosecution said: "can I be perfectly clear, please, that nothing I have said or raised about any defendant not calling any witnesses to support his or her case undermines or was ever intended to undermine His Honour's clear and unambiguous written directions as to where the burden of proof lies. From beginning to and we bear it, and we bear it now."

7. The single judge granted permission to appeal against conviction on the ground that: “The judge failed to give the jury a direction to correct extensive and impermissible prosecution closing comments as to the appellant’s failure to call witnesses in support of his defence caused incurable prejudice to his case.” This was then expanded to two grounds (paraphrased):

a. The comments had transferred the burden of proof onto the defendant.

b. Section 35(2) of the Criminal Justice and Public Order Act 1994 does not give a direction on a defendant’s failure to call a witness for good reason.  

8. The Court dismissed the appeal. Watson’s submissions invited the Court to ignore clear precedent. There was no per curiam decision prohibiting appropriate comment on the failure of a defendant to call witnesses.

Comment on failure to call a witness: review of authorities
9. The Court of Appeal reviewed the following  authorities: (Wheeler [1967] 1 W.L.R. 1531, Gallagher [1974] 1 W.L.R. 1204, Wright [2000] Crim. L.R. 510, Yousefi (Parviz) [2020] EWCA Crim 791, Shakeel Khan [2001] EWCA Crim 486 (itself reviewing other authorities), Martinez-Tobon [1994] 1 W.L.R. 388, Cowan [1996] Q.B. 373, Sparrow [1973] 2 Q.B. 99 and, on stare decisis in the Court, Simpson [2003] EWCA Crim 1499; [2004] Q.B. 118).

10. The authorities differ in their interpretation based on the circumstances of the case. In Wheeler [1967], a trial in which neither prosecution nor defence called the only other witness to a murder, Winn LJ suggested that any such comment was improper (at 1535). Whereas Gallagher [1974], a trial where the defendant offered an alibi defence with 4 other witnesses, but called none of them, Megaw LJ noted that a comment could be made if worded in a suitable way (at 1211). In Wilmot (1989) 89 Cr. App. R. 341, where the defendant refused to wave privilege and call their solicitor after being accused of a recent fabrication at trial, Glidewell LJ stated that “it would be rare” to make such a comment (at 352).

11. Khan [2001], considered the balance that must be struck, particularly in weighing off a jury’s speculation with the other factors for the defendant not calling a witness such as: poor credibility of the witness; reluctance of association with the witness; or, availability of the witness.

12. In Khan [2001], the Court referred to the commentary on Wright by Professor Sir John Smith: ”Where the defendant’s story involves close relatives or friends who are not charged or called as witnesses, a jury might naturally wonder why they have not appeared to testify in support of their accused relative or friend. They may think that the reason must be that they would not support his story—why otherwise should they not be there? If a jury were to think along these lines, they would not be reversing the burden of proof. If they were to conclude that, bearing in mind the whole of the evidence, and the surprising absence of testimonial support for the defendant, they were quite certain he was guilty, they would have applied the judge’s direction on burden of proof exactly as they should. If they have erred, it is not because they have misapplied the law governing onus, but because they have attached unjustifiable relevance to the absence of the expected witnesses. The arguments in the present case that the effect of the judge’s direction would be to reverse the onus of proof are wide of the mark.”

13. In short, “the balance of authority clearly favours the view that comment on the failure by the defence to call evidence that would be relevant to a contested issue in the case may be the subject of comment. However, it is important that the direction to the jury is worded with great care, both to ensure that the jury do not engage in improper speculation about why the witness(es) were not called, and also to ensure that they do keep in the front of their minds that the burden is on the Crown to prove that the defendant is guilty, not on the defence to prove that the defendant is innocent” (P Hungerford-Welch, ‘Closing speech: R. v Watson (Roshane)’ Crim. L.R. 2023, 783, 787).

Lessons for practitioners
14. The value of this case lies in its review of the authorities, and clear statement that comment may be permissible, depending on the circumstances, rather than there being an absolute bar. The lesson for defence practitioners is that they should consider reasons why it would be unfair to allow such comment in their particular case.

15. Counsel must take care not to undermine the judge's legal directions in their closing address to the jury. Due circumspection is required. Comment will not always be appropriate and may in certain circumstances call for immediate judicial rebuke and challenge (Watson [2023] at 41).

Paul Patterson

Pupil Barrister 3PB
01962 868884