R v Swinbourne

If a judge accepts that a defendant is unfit for the trial process, and his mental impairment has not changed from the time of his interview, then his interview should not be admitted as evidence, as there is a real risk that he failed to understand the caution. Nevertheless in this particular case, although the interview should not have gone in, the trial was not thereby rendered unsafe.

The appellant (S) appealed against a jury's findings that he had committed the acts alleged in relation to two counts of rape.  S had severe learning difficulties. He had been charged with four counts of rape against one complainant who had mild learning difficulties. The appellant was interviewed with a solicitor and appropriate adult present. During the police station interview he denied that he had engaged in any sexual acts with the complainant.


Forensic testing revealed that the appellant’s semen was present on the complainant’s nightdress. S was subsequently found to be unfit to plead and the Crown sought to rely upon his denial, in interview, that he ever engaged in any sexual acts with the complainant. S did not give evidence and nor was evidence called on his behalf.


The defence had submitted at the original trial that, as it was inappropriate for the appellant to give evidence, it would be wrong for his interview to be put before the jury. Furthermore it was submitted that the interview was only relevant to his intention and it could not provide evidence as to the actus reus of the offence.


The trial judge had ruled that an extract from the interview, including S's denial of any sexual act with the complainant could be admitted in evidence as the interview had been properly conducted and the Crown wished to rely upon a single fact from the interview, which did not relate to the defendant’s intention; namely that the appellant denied any sexual conduct with the complainant.


The appellant appealed on the grounds that the judge had erred in admitting

the interview extract and that the jury's decision was further vitiated by the  failure of the judge to give a Lucas direction in relation to the lie told during the interview. 


The Court of Appeal held there was:


no doubt in our judgment that the contents of this interview – including the short extract set out in the agreed facts – should not have gone before the jury, given the appellant’s mental impairment resulted, in all likelihood, in a failure on his part to understand the real significance of the caution’


However the Court further noted the appellant had from the outset stated no sexual contact had taken place and there was no evidence to render this assertion unreliable due to his disability.  Therefore no prejudice had been created by allowing the interview in as evidence, as that was the basis on which the appellant challenged the complainant’s account.  In light of the above the judge not passing a Lucas Direction did not render the conviction unsafe, although the Court noted that a modified or extended Lucas ought to have been given, as the jury were entitled to know on what basis the complainant’s account was being challenged.  The appeal against conviction was dismissed.



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