R v Steven McInerney

Where a defendant does not give evidence, defence counsel may challenge the strength of the prosecution case and rely on the judge’s direction protecting the right to silence. Counsel must not invite the jury to speculate about possible reasons for the silence where no evidence supports them. Specific reasons why an adverse-inference direction would be unjust must be raised before the judge decides whether to give it under the Criminal Justice and Public Order Act 1994. Once the direction is properly given, the model direction provides appropriate safeguards but does not permit unsupported speculation. A conviction may remain safe where sufficient independent evidence supports leaving participation and identity to the jury.

Following a jury trial in the Crown Court at Liverpool, Steven McInerney was convicted of murder. He renewed his application for leave to appeal against conviction and sought a three-day extension of time. The central complaint concerned the trial judge’s ruling preventing counsel from suggesting possible reasons why the applicant had not given evidence, where there was no evidence about his reasons. The applicant argued that this restriction was unfair. The court considered the interaction between counsel’s closing submissions, the judge’s adverse-inference direction and the prohibition on jury speculation.

The court granted the requested short extension of time but dismissed the renewed application for leave to appeal.

1. Submissions about silence. The applicant had not given evidence and there was no evidence about the reasons for that decision. Counsel could properly challenge the strength of the prosecution case and argue that it did not call for an answer. Counsel could not, however, suggest possible reasons why an innocent defendant might remain silent. That would invite the jury to speculate about matters outside the evidence and which they could not properly assess. The restriction imposed by the judge was therefore correct (paras [16]–[19]).
2. Proper procedural stage. Section 35 of the Criminal Justice and Public Order Act 1994 permits a defendant to raise specific reasons why an adverse-inference direction would be unjust before the judge decides whether to give it. The court referred to R v Dixon (Jordan), [2013] EWCA Crim 465; [2014] 1 WLR 525. Once the judge has decided that the direction is appropriate, the model direction carefully balances the right to remain silent, the prosecution’s burden of proof and the limited circumstances in which adverse inferences may be drawn. Counsel must not undermine that balance by inviting unsupported speculation (paras [17]–[18]).
3. Safety of the conviction. In any event, the conviction was safe. Even discounting the challenged evidence from a co-defendant, there was evidence of the applicant’s close association with the Williams brothers, his arrival with one of them after relevant telephone calls, and evidence that four men had taken part in the attack, including a fourth man wearing dark clothing. That evidence was sufficient to leave participation and identity to the jury. The renewed application was dismissed (paras [20]–[22]).

• Court of Appeal (Criminal Division): On 6 February 2024, the court granted a short extension of time but dismissed the renewed application for leave to appeal against conviction: [2024] EWCA Crim 165.
• Crown Court at Liverpool: Following a jury trial, the applicant was convicted of murder on 6 February 2023.