R v RT

Where section 34 of the Criminal Justice and Public Order Act 1994 is not engaged, it does not automatically require a direction that no adverse inference be drawn from a defendant’s silence. The trial judge retains a fact-sensitive discretion.

However, where a no-comment interview is admitted, questioning may suggest recent fabrication, and the trial is a finely balanced credibility contest, the jury may require protective guidance. Leaving the silence without direction can create a serious risk that it will be treated as probative of guilt and render the conviction unsafe.

The defendant was convicted at St Albans Crown Court of three indecent assaults and one attempted indecent assault arising from historical allegations. The prosecution placed his no-comment police interview before the jury, but did not seek an adverse-inference direction under section 34 of the Criminal Justice and Public Order Act 1994. No direction was given explaining how the jury should treat his silence.

Permission to appeal was sought out of time. The central issue was whether, notwithstanding the non-application of section 34, the circumstances required a direction of the kind discussed in R v McGarry [1999] 1 Cr App R 377.

The court granted an extension of time of 160 days and permission to appeal. It allowed the appeal and quashed the convictions. The Crown indicated that no retrial would be sought, so the court lifted the postponement order made under section 4(2) of the Contempt of Court Act 1981.

1. Extension of time. The court considered the length and reasons for the delay and the overall interests of justice, including finality, the interests of victims, retrial practicality and possible injustice to the defendant. Strong merits did not automatically justify an extension. In this case, the delay was relatively short, the appellant was not responsible for the principal cause, and the new legal team acted promptly after identifying the ground.
2. Section 34 and judicial discretion. Section 34 permits an adverse-inference direction in an appropriate case. Where the Crown does not seek such a direction, the provision does not itself require the judge to direct the jury not to draw an adverse inference. The judge nevertheless retains a fact-sensitive discretion as to whether guidance is required. That approach was supported by R v Thacker [2021] EWCA Crim 97, R v Jama [2008] EWCA Crim 2861 and R v Thomas [2002] EWCA Crim 1308, and was consistent with the case-specific holding in R v McGarry.
3. Application. The no-comment interview formed part of the evidence. The prosecution’s questioning could have suggested that the defendant was withholding information or had recently fabricated his account. The jury were not told the terms of the caution or that the defendant had a right to remain silent. In a finely balanced credibility contest, there was an obvious risk that the jury would treat the silence as supporting guilt or undermining credibility. The absence of any guidance left the jury without protection against that risk and created serious prejudice. The convictions were therefore unsafe.

• Court of Appeal (Criminal Division): Permission to appeal was granted after an extension of time. The appeal was allowed and the convictions were quashed under [2023] EWCA Crim 1118. No retrial was sought and the publication postponement order was lifted.
• Crown Court at St Albans: On 4 May 2022, the defendant was convicted before His Honour Judge Simon and a jury. On 29 June 2022, he received a community order and a compensation order.