Case No: 201101754 C5
Neutral Citation Number: [2013] EWCA Crim 1025
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Oxford Crown Court
His Honour Judge King
T20077098
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/06/2013
Before:

LORD JUSTICE TREACY
MR JUSTICE MITTING
and
HIS HONOUR JUDGE MCCREATH, THE RECORDER OF WESTMINSTER
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Between:

	Regina		
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	James Henry Cox		

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Mr Charles Langley (instructed by Registrar of Criminal Appeals ) for the Appellant
Mr Adrian Redgrave QC (instructed by Crown Prosecution Service) for the Respondent

Hearing dates : 11-12th June 2013
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Judgment
Lord Justice Treacy: 
1.	This is a renewed application for a lengthy extension of time of almost three years coupled with an application for leave to appeal against conviction. 
2.	On 25th April 2008 in the Crown Court at Oxford the applicant was convicted of two counts of murder. On 17th October 2008 he was sentenced to life imprisonment with a minimum term of 20 years less time spent on remand being specified. 
3.	There are two interlinked grounds of appeal:
i)	On 21st April 2008 the applicant was not in a fit state to make a decision as to whether or not to give evidence and the case should have been adjourned until he was.
ii)	The judge in summing up should not have directed the jury that they could draw an adverse inference from the applicant’s failure to testify pursuant to Section 35(2) of the Criminal Justice and Public Order Act 1994.
4.	Different grounds of appeal, based on what was alleged to be fresh evidence, had been submitted to the Single Judge. He refused the application based on those grounds. When an oral application to renew was first made before this court in February 2012, those earlier grounds had been abandoned, and in their place the current grounds were put forward. 
5.	The matter comes before this court for hearing after an interval in which necessary witness statements, transcripts and other materials have been obtained. 
6.	Because of the nature of the grounds relied on, it is unnecessary to go into any great detail concerning the circumstances of the offence. The central personalities in the case, including this applicant, who at the time was aged in his early 60’s, were homeless alcoholics in the Oxford area. 
7.	In the small hours of 2nd January 2007 the two victims, Howard Blake and Sian Sanchez, died in a house fire at a derelict property used as a squat known as Red Cottage, Old Abingdon Road, Oxford. Their bodies were found in an upstairs bedroom. They had died as a result of inhalation of fumes. The seat of the fire was at the base of a staircase providing the sole means of access to the upper floor. 
8.	The applicant knew both deceased. He and Blake had very recently been in dispute. The applicant admitted visiting Red Cottage a few hours before the fire was discovered, and there had been a violent argument between himself and Blake. On the night in question the applicant was drunk. 
9.	The Crown’s case was that the applicant had deliberately started the fire intending to kill or seriously injure the deceased. The Crown relied on the applicant’s grudge against Blake as motive and on other evidence putting him in the vicinity of the cottage at the time the fire started. 
10.	The defence case was that the applicant had not started the fire, which, it was argued, could have been started by some other person or some other cause. In interviews with the police the applicant denied that he was responsible, but there were some inconsistencies in his account.
11.	On 21st April 2008 the Crown closed its case after a trial which had been running for about a fortnight at that stage. The applicant’s counsel indicated that he would not give evidence, but a fire expert was called to give evidence on behalf of the applicant. 
12.	At trial the applicant was represented by two counsel, Mr Stephen Mejzner, leading Mr John Simmons. Mr Mejzner was at the time of almost 30 years call. Mr Simmons was called in 2000. Ms Morgan Mulay attended on behalf of the applicant’s solicitors. 
13.	The materials placed before us reveal the following chronology which represents our best assessment of the way in which key events unfolded:
•	Friday 18th April 2008 – The court did not sit. The applicant’s legal team conferred with him in custody for several hours. The records show that the conference was held with a view to making a decision as to whether the applicant should give evidence. He was undoubtedly taken through matters in a structured way as if in preparation for giving evidence. However, we accept that no decision as to whether or not the applicant would give evidence had been taken by the end of this day. Counsel were clearly of the view, and had been for some time, that tactically the applicant would be better off not giving evidence. They had, we are satisfied, made that view clear to the applicant, but the outcome of the conference was that the decision would be left over until the following Monday. It is plain that there had been many conferences prior to and during the trial involving counsel; Mr Mejzner puts the figure at over 40 hours in total. It is clear that counsel and Ms Mulay had had the opportunity over many meetings to observe and assess the applicant. We accept that from the very outset there had been difficulties about lack of memory, confusion about events, and inconsistencies in account.  

•	Sunday 20th April 2008 – The applicant was informed by the prison chaplain that his brother had died two days before. The applicant was extremely distressed and was seen by a doctor that morning. He was prescribed diazepam in suspension and also promethazine hydrochloride tablets to be taken at night to assist with sleep. 

•	Monday 21st April 2008 – The court sat in the morning in the usual way and further prosecution evidence was called. However, the applicant’s legal team became concerned about his condition that morning and as to whether he was fit for trial. 

At 11:40 junior counsel contacted HMP Bullingdon and obtained details of the medication provided to the applicant. He also asked for the attendance of Clare Davidson, who had known the applicant in the past through social work, and who had acted as an appropriate adult during some of the applicant’s interviews with the police. 

The solicitor’s representative, Ms Morgan Mulay, made a note of contacts between Mr Cox’s legal team and Mr Cox addressing the question of whether he should give evidence and his fitness to do so on the day in question. The first such meeting is recorded as taking place between 12 noon and 1:00pm. The content of the note is more important than the precise timing which appears to have been inserted later. 

We have come to the conclusion, after an examination of all the materials and evidence called, that the first meeting with the applicant took place during the luncheon adjournment and not between 12 noon and 1:00pm as stated. Those present, in addition to the applicant, were both counsel, Ms Mulay and Ms Davidson. 

After the luncheon adjournment the judge permitted the applicant to return to the cells, where a further conference took place, whilst Mr Mejzner made unsuccessful submissions of no case to answer to the judge. This second conference is shown as taking place between 2.10 and 2.30pm. 

In obtaining permission for this second conference to take place, the transcript shows that Mr Mejzner referred to the fact that the applicant’s brother had died and he went on to say:

“We have got a list of the medicines he was given. Whether or not they have any effect now, I do not know, but I have a real concern whether he is in a fit state to make a decision. It is an important decision, but I have real concerns at present. He was very distressed this morning and you saw him in the dock. He was very distressed over lunch in respect of what he was told yesterday…and it would help me if someone who has known him for a considerable period of time at least had a chance to speak to him.”

Again a note of the conference was made. It concludes with the recording of a decision, said to have been made by the applicant himself, not to give evidence. 

At 15:01 the court adjourned to enable Mr Mejzner to speak to the applicant. There is no separate note of Mr Mejzner’s meeting with the applicant, but we are satisfied that he did speak to the applicant, and that he was accompanied at least by Mr Simmons when doing so. The purpose of the meeting was for Mr Mejzner as leading counsel to ascertain the applicant’s decision as to giving evidence and to consider whether he was in a fit state to make a decision. At 15:23 the hearing resumed and Mr Mejzner informed the court that the applicant would not be giving evidence. Thereupon the defence fire expert began his evidence. 

The applicant’s decision not to give evidence was recorded following the practice recommended in R v Bevan [1994] 98 Cr App R 354, in a document signed by him that afternoon in these terms:

“I, James Cox, have decided not to give evidence at my trial. I have discussed the strengths and weaknesses of my case and the prosecution case. I have been told that in certain circumstances it may be held against me if I don’t. I have also spent time talking to my appropriate adult. I make this decision of my own free will.”

	We are satisfied that this document was signed at the meeting involving Mr Mejzner some time after 15:01 and before 15:23. 

•	Tuesday 22nd April 2008 – The evidence finished and counsel addressed the jury. 

•	Wednesday 23rd April 2008 and Thursday 24th April 2008 – Summing up.

•	Friday 25th April 2008 – Verdicts delivered. 
14.	Sentencing did not take place until 17th October 2008. On that date Mr Mejzner attended. Prior to that there were three hearings before the judge at which Mr Simmons attended. These were on 21st July, 15th August and 5th September 2008.
15.	The issue of the applicant’s not giving evidence was not raised or discussed at any point after the afternoon of 21st April 2008 when the decision was made until many months later and considerably after Mr Mejzner had submitted grounds of appeal based on what was said to be fresh evidence. 
16.	Mr Langley, for the applicant, submits that he was not in a fit state to make an informed decision as to whether to give evidence in his own defence. Since the decision was of crucial importance, the applicant’s counsel should have asked for time to be allowed until the applicant was in a fit state to make such an important decision. In deciding what course to take, it would have been prudent to instruct a doctor or psychiatrist to assess the applicant. By failing to ask for time, the applicant was denied the opportunity of making the decision when he was in a fit state to do so. 
17.	Moreover, the defence should have asked for the applicant to be seen by a doctor so that evidence could have been called as to the effect of his brother’s death on his failure to testify. Because no such evidence was obtained, there was no material in that respect upon which reliance could have been placed by the defence in inviting the jury not to draw an adverse inference pursuant to Section 35(2). 
18.	Indeed it was submitted that the matter should not have reached that stage; the applicant’s counsel should have applied to the judge to hold that no adverse inference should be drawn because of the applicant’s vulnerable state on the day he was due to give evidence. 
19.	In support of these contentions Mr Langley has sought to adduce evidence from the applicant himself, Ms Davidson and Ms Mulay. We heard this evidence de bene esse. In addition, after waiver of legal privilege, the applicant’s trial counsel had provided statements of their recollection of events. We heard evidence from both counsel, again de bene esse. In the interests of justice, we permitted both the Crown and the applicant to cross-examine trial counsel. 
20.	Before we deal with the evidence which we heard, we return to the notes of the two conferences held with the applicant on 21st April 2008. In the first conference it is recorded that the applicant was told that his advisers thought that he should not give evidence because of his confusion “especially now as brother passed”. On the evidence we have heard we have come to the conclusion that this phrase is the notetaker’s editorial addition, rather than a reflection of the advice given. 
21.	The applicant raised concerns that failure to give evidence would be held against him. There was discussion about the applicant’s confusion about events on the night and inconsistencies revealed. The applicant commented that he was fed up with being made to look like a liar. He said he was frightened he would mess the case up because he was confused “right now”. 
22.	The position was explained to Ms Davidson, who appears to have arrived partway through the lunchtime conference with the applicant. There was discussion with the applicant about adverse inferences and what could be said by the defence to avoid one being made. The applicant was concerned that he would “fuck everything up” if he gave evidence. Ms Davidson is recorded as having said that that she had never seen the applicant in such a distressed state, and at that stage saying that he was not in a fit state to make a decision that day. 
23.	The note of the second conference held in the afternoon shows that counsels’ concerns about the applicant giving evidence were reiterated. The applicant wanted to know whether giving evidence could make the case worse. There was discussion of the advantages and disadvantages of giving evidence. 
24.	The final entries in the notes show the applicant saying:
“I don’t want to give evidence. I’m confused and afraid I’ll mess up the case.”
25.	The note then says:
“Clare [Ms Davidson] feels Jim is fully aware of the decision to give evidence and has made the decision himself.”
26.	The prison log for 21st April 2008 shows that on his return from court that day, the prisoner was seen by Staff Nurse Webb at 6pm. The log records:
“Prisoner returned from court. States fit and well. Promethazine issued as prescribed.”
27.	Turning then to the evidence given before us, the applicant described how upset he was at the death of his brother, and said he had had little sleep on the night of 20th-21st April. The following day he said that he was totally confused. He was drowsy and kept falling asleep. He had wanted to give evidence. He said however, that Mr Mejzner had made up his mind for him. He had made the decision on Mr Mejzner’s recommendation. However, when he had done so, he was “totally out of it”. When he signed the waiver document confirming that he did not wish to give evidence he thought he was signing a consent for a doctor to come and examine him. He agreed the document had been read over to him before he signed it. He had understood from previous conversations that the decision as to giving evidence was for him to make. At times he said he did not know what he was agreeing to. At other times he appeared to express regret for making a decision in which he had acted upon Mr Mejzner’s advice. 
28.	We do not find the applicant’s evidence impressive or credible. On the high point of his evidence that he did not know the nature of the document he was signing, we reject his evidence. It is plain from the contemporaneous documentation and the evidence of all other witnesses that the discussions over the course of the day were focussed on the question of whether the applicant should give evidence. The relevant considerations were spelt out to him more than once, and the applicant himself asked questions pertinent to that process. 
29.	Ms Morgan Mulay, now a solicitor, but then a paralegal, told us that the applicant was anxious and upset over the death of his brother on 21st April, but that he was able to follow what was going on. Part of his anxiety related to the decision as to whether to give evidence. The applicant was aware that a decision had to be made and that was part of the reason for his agitated state. It was Ms Mulay who made the notes recording the fact that the applicant had made a decision not to give evidence of his own free will as set out in paragraph 25 above. Clare Davidson had felt that the applicant had made an informed and voluntary decision himself and she had recorded that. She held the same opinion. In our view there was nothing in Ms Mulay’s evidence which advanced the case for the applicant. 
30.	Clare Davidson had been asked to attend on 21st April because counsel knew a crucial decision in the case had to be made and were concerned about the applicant’s condition on the morning. Ms Davidson described him as being drowsy and incoherent. That description does not tally that given by the other professional witnesses, who speak of an agitated state. 
31.	Ms Davidson said that at her first encounter with the applicant she had never seen him in such a distressed state, and that she considered he was not in a fit state to make a decision that day. He was shaking, confused and moved from one topic to another.
32.	It seems to us on the totality of the evidence that confusion, volatility and lack of concentration were characteristics which the applicant had previously displayed, both in police interview and particularly in his many subsequent legal conferences with his counsel or solicitors. One of the reasons they had been concerned about the applicant giving evidence lay in those very characteristics which he had regularly displayed in their dealings with him. 
33.	Ms Davidson was asked about the comments attributed to her in the notes at the end of what is described as the second conference (see paragraph 25 above). She said that if she had said the words attributed to her, she had meant to convey that the applicant understood that he was deciding whether or not to give evidence, and that he had made that decision. She commented that she did not think that the applicant was fully aware when making the decision because of his state of mind. However, she went on to say that he understood he was making a decision not to give evidence. In her opinion he did not fully understand the potential consequences of not giving evidence. 
34.	Ms Davidson, who, like the other professional witnesses, struck us as doing her best to give an accurate account and to recollect events after a significant period of time, had little training or experience in acting as an appropriate adult. She had attended on one of the days when the applicant was interviewed. Attending court in a serious trial was a totally new experience for her. We do not consider that she would have appreciated the often pressured and stressful circumstances for any Defendant who has to make a serious decision of this sort in a major criminal trial. That decision can frequently be fraught and stressful. 
35.	Both counsel gave evidence to us. The effect of their evidence was that they had always had strong reservations about the applicant giving evidence because they felt he would come across as a poor, unpredictable, and ultimately unconvincing witness based on their knowledge of him and their discussions with him about the case. 
36.	Notwithstanding that, they had prepared at the conference of 18th April for the eventuality that the applicant would give evidence, although the final decision was deferred until Monday 21st. On the morning of 21st April they were sufficiently concerned about the news of the applicant’s brother’s death and by the applicant’s agitation, to take steps to enquire about the medication he had been provided with, and to consider with him on more than one occasion whether he was fit to make an important decision and the terms of that decision. 
37.	Part of their concerns were exemplified by their decision to ask for Ms Davidson, who had known the applicant in the past, to attend. Neither of them was aware of Ms Davidson’s view that the applicant was unfit to make the decision. Had Ms Davidson said that in their presence, they would have been very concerned; there would have been further consideration and discussions, and as Mr Simmons put it, it would have rung “major alarm bells”. Ms Mulay’s notes show that whilst Ms Davidson thought the applicant was unfit at the time of the first conference, her view was different later on. 
38.	There has been a degree of confusion over the timing of contacts with the applicant, but assessed overall it seems to us that all witnesses met with the applicant over the luncheon adjournment. Then shortly after 2:00pm there was a further meeting which Mr Mejzner did not attend, followed by a final meeting which Mr Mejzner did attend. We have no doubt that counsel carefully and properly explained to the applicant the nature of the decision he had to make and the relevant considerations surrounding it. This had happened on more than one occasion during the course of the day and, we are satisfied, had been discussed on occasions before 21st April. Moreover, there is evidence within the notes of conferences on 21st April that the applicant did understand the consequences of not giving evidence (see, for example, paragraph 21 above). 
39.	The transcript shows that Mr Mejzner had expressed his concern to the judge about the applicant’s condition after the luncheon adjournment. He explained that he had indeed been concerned, and that his purpose was to alert the judge to the possibility of an application for an adjournment, but that he wanted to assess the position further after he and/or his legal team had had further discussions with the applicant. Both counsel said that they were satisfied that the applicant was fit to make a decision that day. Had there been any question of that not being so, they would have sought an adjournment, initially until the following day. 
40.	Both emphasised their recognition of the importance of the decision to be taken, and that if they thought it was influenced by the death of the brother or the applicant’s condition, they would not have gone ahead. They were aware of the medication prescribed, (valium, followed by sleeping pills at night), having ascertained that from the prison. They did not consider that a doctor was necessary. Although the applicant was tearful and confused at times, his state was not very different from that which they had seen throughout their dealings with him. Despite the applicant’s distress at his brother’s death, his overall condition do not appear materially different from their general experience. 
41.	The evidence of both counsel, who were considerably more experienced in dealing with matters of this sort than either Ms Davidson or Ms Mulay, impressed us as truthful and essentially accurate. We are satisfied that they were appropriately concerned about the applicant’s condition and took significant steps to consider it. We consider that they were entitled, based on their experience of the applicant, to form a judgment after proper assessment that the events of the weekend and the medication had not so affected the applicant as to deprive him of the ability to make a properly informed decision. 
42.	We are satisfied that the necessary considerations relating to the decision were fully and properly spelt out on more than one occasion. Further, notwithstanding the fact that counsel made their advice as to the best course clear to the applicant, they also successfully conveyed to him that the ultimate decision was for him to make. 
43.	The merits of their advice not to give evidence do not fall for consideration in this case. The decision was plainly a tactical one, but was within a range of reasonable tactical decisions properly open to counsel. It may be that some advocates would have taken the additional step of seeking the judge’s permission for a doctor to assess the applicant or, in any event, to postpone matters until the following day. However, we do not consider that the decisions which counsel made in those respects can be characterised as wrong; those decisions, after due consideration, were properly open to them. 
44.	Insofar as there is a difference between their opinion as to the fitness of the applicant and his general condition on the day in comparison to their prior experience of him, we prefer the evidence of Mr Mejzner and Mr Simmons, supported as it is by that of Ms Mulay, to that of Ms Davidson, and also to that given by the applicant. This application is unsupported by any medical evidence to suggest that the medication taken did or could have impaired the applicant’s ability properly to make a decision of this sort. 
45.	This was a difficult situation, but not untypical in a case of gravity. Defendants frequently find the decision to be a very stressful one. In our view the events of the weekend did not cause the applicant to be in a condition which could deprive the decision of its validity. 
46.	We have examined the evidence tended to us with care, but as this analysis shows, we have come to the conclusion for the reasons given above, that looked at overall the complaints made in support of the proposition that the applicant was in no fit state to make a decision as to whether or not to give evidence is unsupported by that evidence. That central complaint is not one which appears to us to be capable of belief on the evidence we have heard, nor is it evidence which might afford a ground for allowing the appeal. 
47.	In the circumstances we decline to receive the evidence as additional evidence under Section 23 of the Criminal Appeal Act 1968 as amended. It follows that the first ground of appeal must fail. 
48.	As to the second ground relating to the judge’s direction that the jury could draw an adverse inference, it is accepted that this cannot succeed independently of the first ground. There is no complaint about the terms in which the judge summed up that matter to the jury. His directions included countervailing arguments made on behalf of the applicant, and properly left the matter for the jury’s assessment. 
49.	In the light of our previously expressed assessment of counsel’s actions and decisions on the day, there is no basis for arguing that a voir dire should have been held or that medical evidence should have been adduced for the jury to consider. Accordingly, this second ground of appeal also fails. 
50.	The consequence of our findings is that this appeal cannot succeed. In the circumstances we refuse the application for an extension of time, noting that considerable time elapsed before the matters now before the court were raised at all. We refuse that extension after a consideration of the merits of the case. 
51.	We note that our conclusion is supported by the prison log as to the applicant’s condition when he returned to custody on the evening of 21st April. We note there is further support in that no complaint was made by him during his further dealings with counsel prior to sentence or indeed when Mr Mejzner was advising as to appeal on other grounds which have not now been pursued. The belated raising of the present matters, in those circumstances, provides a degree of support for the view taken by counsel at the time and for our conclusions. 
52.	We, therefore, refuse and dismiss this renewed application for leave. Before leaving the case, we express our appreciation of the arguments put before us by counsel, particularly by Mr Langley, who replaced trial counsel, and who has represented the applicant admirably.