Whitehead, R. v

A jury must consider the prosecution evidence before considering an adverse inference from a defendant’s failure to testify. It may draw that inference only where the prosecution case is sufficiently cogent to call for an answer, and the inference can operate only as an additional evidential factor. The requirement is a necessary consequence of the rule that silence cannot alone prove guilt.

An express direction in those terms is strongly desirable. Its omission does not, however, automatically make a conviction unsafe. The summing-up must be assessed as a whole, including the directions on the burden and standard of proof, the central prosecution evidence, and the risk that silence might improperly reinforce weak evidence.

The appellant was convicted at Peterborough Crown Court of six counts of indecent assault and sentenced to concurrent terms of four years’ imprisonment. He had not given evidence at trial, although he relied on his police interviews.

After earlier applications for leave to appeal had failed, the Criminal Cases Review Commission referred the convictions under section 9 of the Criminal Appeal Act 1995. It identified a question about the adequacy of the trial judge’s direction on adverse inferences following the appellant’s failure to testify under section 35 of the Criminal Justice and Public Order Act 1994.

The issue was whether the absence of an express direction that the jury must first find a prosecution case sufficiently compelling to require an answer rendered the convictions unsafe.

1. Appeal dismissed. The convictions were safe despite the omission of an express statement of the fourth essential identified in R v Cowan & Ors [1996] 1 Cr App R 1.

2. A jury must not begin with the defendant’s silence. It must first decide whether the prosecution evidence is sufficiently cogent to call for an answer. Only then may it treat the absence of evidence from the defendant as a further evidential factor. Silence cannot by itself establish guilt.

3. The fourth Cowan essential was not an independent additional requirement. It was the necessary and logical consequence of the prohibition on convicting solely because of silence. Judges should ordinarily state it expressly, but a prescribed formula is unnecessary if the summing-up ensures that the jury performs the correct exercise.

4. The evidence capable of calling for an answer need not include independent corroboration. A complainant’s evidence may suffice if, assessed in its context, it is sufficiently cogent. The word compelling in R v Birchall [1999] Crim LR 311 did not impose a heightened standard beyond that.

5. Here the judge repeatedly directed the jury that the prosecution case depended wholly on the complainant’s truthfulness, that they had to be sure of his evidence, and that the appellant’s silence could not alone prove guilt. The evidence disclosed no fundamental defect. Read as a whole, the summing-up left no real possibility that the jury used silence to bolster the complainant’s evidence before deciding that there was a case requiring an answer. The jury’s verdicts were therefore safe.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction: [2006] EWCA Crim 1486.
• Criminal Cases Review Commission Referred the convictions to the court under section 9 of the Criminal Appeal Act 1995 after identifying the issue concerning the direction on silence.
• Court of Appeal (Criminal Division) On 22 March 2004 refused the renewed applications for an extension of time and for leave to appeal against conviction.
• Crown Court at Peterborough On 5 July 2001 convicted the appellant of six counts of indecent assault and imposed concurrent four-year sentences.