Walton, R. v

An adverse inference from a defendant’s silence in police interview may be left to the jury only where the only reasonable explanation for that silence is that the defendant had no answer to the accusation, or no answer capable of withstanding scrutiny. A direction is unfair where the jury are invited to draw such an inference without evidence or submissions addressing the defendant’s explanation for remaining silent. Where credibility is the essential issue, the resulting conviction will be unsafe unless the appellate court can conclude that the verdict must have been the same without the direction.

The appellant was convicted at Newcastle Crown Court of four specimen counts of rape and eight specimen counts of indecency with a child. The prosecution alleged repeated sexual abuse of a girl aged between 11 and 14.

In police interview the appellant gave a prepared statement denying the allegations and then declined to answer questions on legal advice. At trial he gave evidence, but neither counsel questioned him about his interview silence or addressed it in closing speeches. The judge nevertheless directed the jury under section 34 of the Criminal Justice and Public Order Act 1994 that it could draw an adverse inference.

The appeal, brought with leave of the single judge, challenged the propriety and wording of that direction and raised whether the convictions were safe.

1. Appeal allowed. The convictions on all counts were quashed because the direction on adverse inference from interview silence was wrong and unfair. A retrial was ordered on all counts.

2. An adverse inference of guilt may be drawn from silence in interview only if the only reasonable explanation is that the defendant had no answer to the accusation, or none that would withstand scrutiny. That inquiry requires the jury to have a proper basis for assessing the explanation, if any, for the silence.

3. Here, the appellant was not asked in evidence why he had declined to answer police questions. Neither party referred to the silence in closing speeches, and the Crown did not seek an adverse-inference direction. The jury were therefore invited to draw an inference without knowing what explanation the appellant might have given.

4. The court rejected the separate complaint about the judge’s use of “for example” when identifying matters omitted in interview. It was unrealistic to suppose that this wording suggested further unspecified matters which the appellant should have raised.

5. The essential issue was whether the jury believed the complainant or the appellant. The court could not conclude that the verdicts must have been the same without the impermissible direction. Under section 8(1) of the Criminal Appeal Act, it directed service of a fresh indictment and arraignment within two months. It also made a reporting restriction under section 4(2) of the Contempt of Court Act until the retrial concluded.

• Court of Appeal (Criminal Division): Allowed the appeal in [2013] EWCA Crim 2536, quashed all convictions and ordered a retrial.

• Newcastle Crown Court: On 26 October 2012, convicted the appellant on four counts of rape and eight counts of indecency with a child. On 23 November 2012, imposed concurrent sentences of 16 years’ imprisonment on the rape counts and lesser concurrent sentences on the remaining counts.