Matthew Tallentire & Anor v R

A trial judge may, in the exercise of discretion, comment on the defence failure to call an available and apparently relevant witness. The judge should first allow defence counsel to address the issue in the jury’s absence and must remind the jury that the defendant bears no burden of proof. An adverse comment is unfair where the witness is unavailable.

A direction should present both sides fairly, allow the jury to disregard the omission if unimportant, and make clear that the defendant cannot be convicted wholly or mainly because the witness was not called. In a multi-defendant trial, lies told by one defendant do not of themselves prove another defendant’s guilt.

The first appellant was convicted at Preston Crown Court of three sexual offences against a 13-year-old girl and was sentenced to nine years’ imprisonment. The second appellant and a co-defendant were convicted of cruelty to a person under 16 and each sentenced to two years’ imprisonment.

The first appellant challenged the judge’s direction concerning his failure to call his partner, including its content and timing. The second appellant argued that his conviction was unsafe if the first appellant’s conviction was quashed, because the prosecution case against him depended on the first appellant’s guilt. The central issues were whether comment on the uncalled witness was permissible and whether the directions on co-defendants’ lies were adequate.

Appeals dismissed.

1. Comment on an uncalled witness. The statutory prohibition in Police and Criminal Evidence Act 1984, section 80 A, prevented prosecuting counsel from commenting on a spouse or civil partner’s failure to give evidence, but did not apply to an unmarried partner. The authorities established that a judge may, in a proper case and in the exercise of discretion, comment on the defence failure to call an available witness: R v Gallagher (1974) 59 Cr App R 239; R v Martinez-Tobin [1994] 1 WLR 388; R v Khan [2001] EWCA Crim 486; and R v Watson [2023] EWCA Crim 960. The judge should allow defence submissions in the absence of the jury and remind the jury that the defendant bears no burden of proof. It is unfair to make an adverse comment where the witness is unavailable. Comments concerning a spouse or civil partner require particular circumspection, as noted in Whitton and R v Naudeer.
2. Application to the first appellant. The judge was entitled to comment on the failure to call the partner. She was available, had witnessed the alleged telephone call relied upon by the first appellant, and was relevant to a material part of his late account. The jury had raised the issue, and both prosecution and defence counsel had commented on the omission. The direction fairly stated the parties’ positions, reminded the jury that there was no obligation to call a witness, allowed the jury to ignore the point if unimportant, and prohibited conviction wholly or mainly on that basis. No further direction was required.
3. Timing. The direction was not unfair merely because it followed the speeches. The judge had addressed its proposed terms with counsel, and no request had been made for an opportunity to add to the defence speech. A split summing-up might have assisted counsel, but its absence did not render the conviction unsafe.
4. Lies direction. A lie by one defendant about meeting another did not itself prove the other defendant’s guilt. The jury could accept that the defendants had met while rejecting the allegation that the first appellant had committed the sexual offences. The direction adequately explained the limited use of lies, so no further direction was necessary.

• Court of Appeal (Criminal Division): In [2025] EWCA Crim 885, both appeals against conviction were dismissed.
• Preston Crown Court: The first appellant was convicted of three sexual offences and sentenced to nine years’ imprisonment. The second appellant and a co-defendant were convicted of cruelty to a person under 16 and sentenced to two years’ imprisonment.