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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Whitehead, R. v [2006] EWCA Crim 1486 (23 June 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/1486.html Cite as: [2006] EWCA Crim 1486

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PETERBOROUGH CROWN COURT
HIS HONOUR JUDGE WORSLEY

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 June 2006

Lord Justice Pill :

1. On 5 July 2001, in the Crown Court at Peterborough before His Honour Judge Worsley and a jury, Ian Kenneth Whitehead ("the appellant") was convicted of six counts of indecent assault on a male person. On two counts, Counts 5 and 7, he was convicted unanimously and on four counts, Counts 1,2,3 and 6 by a majority of eleven to one. He was sentenced to four years imprisonment concurrent on each count.
2. On 4 September 2003, the single judge refused an application for an extension of time of forty weeks for leave to appeal against conviction and sentence. The application for an extension of time and for leave to appeal against conviction was renewed to the full court and on 22 March 2004, the applications were refused by the court, Thomas LJ presiding.
3. Mr Whitehead subsequently made application to the Criminal Cases Review Commission ("CCRC"). The CCRC did not find merit in the points raised by the appellant but itself identified a further point which merited reference of the conviction to the court under Section 9 of the Criminal Appeal Act 1995. The appellant did not give evidence at his trial and the question raised is the adequacy of the judge's direction to the jury under Section 35 of the Criminal Justice and Public Order Act 1994. Subsections (2) and (3), which applied in this case, provide:

"(2) Where this subsection applies the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question."

4. The case against the appellant was that in the years from 1987 to 1989 he had indecently assaulted C, born in December 1975, the son of neighbours and friends of his in Somersham. The appellant was a travelling salesman, then in his forties. He took the complainant away on trips, which included overnight stays, on which the same bedroom was used. On occasions, he took the complainant to his home. The complaint to the police was not made until 2000. The prosecution case was that the complainant had been sexually assaulted persistently during the trips and at the appellant's home. The appellant accepted that he did take the boy on a number of trips but he denied that sexual assaults had occurred.
5. The complainant's evidence was that the appellant took him away, first on day trips, about which the boy was initially enthusiastic. Count 1 related to a stay in a hotel in Scotland. The complainant and the appellant shared a double bed and the appellant put his hands inside the complainant's underpants and masturbated him to ejaculation. He felt very nervous and self-conscious about it. The appellant then masturbated himself with the complainant's hand. In cross-examination, the complainant said he was nervous about it and asked himself whether it was right or normal. The appellant put his arm around him and told him he liked him and would never hurt him.
6. Count 2 is alleged to have taken place on the following night at a Travelodge. They shared a room with two single beds which the appellant pushed together. The complainant said he was frightened. He tried to push the appellant away but the appellant persisted and masturbated him to ejaculation. The appellant then masturbated himself using his own hand with a grip on the complainant's hand. The appellant told him not to tell anyone. On arrival home, the complainant told his father and stepmother that he had had a good time. He was not getting on well with his stepmother and did not think he would be believed if he told the truth.
7. Some months later (Count 3) the complainant went with the appellant on a trip to Wigan and to Wales. They stayed in a Travelodge in a double bed. The appellant first masturbated the complainant to ejaculation and then performed oral sex on him. Cross-examined, the complainant accepted that he cannot have mentioned oral sex to the police, though he was convinced he had told them. It was difficult telling a stranger about the incidents.
8. The complainant stayed at the appellant's bungalow in Whistoe (Count 5). The appellant told him to sleep in his double bed as there were too many things in the spare bedroom. The appellant masturbated him to ejaculation.
9. On what he thought was the same weekend (Count 6), the appellant made the complainant put on a pair of cycling shorts with a hole cut out of the back. He masturbated the complainant to ejaculation. The appellant put his penis through the hole in the shorts so that it touched the cheeks of his bottom. The complainant felt frightened but could not stand up to him.
10. The complainant and the appellant visited an exhibition in south London (Count 7) and stayed at the Exhibition Hotel. They shared a double bed and on the Friday night and on the Saturday night, the appellant masturbated the complainant. On the journey home the appellant pulled into a lay-by, asked the complainant to sit on his knee and then masturbated him.
11. The complainant said he did not mention the incidents until 2000 because he was scared to do so. He was young and confused and did not realise how serious the incidents were and wondered whether such activity might be normal. He did not think he would be believed. He felt he could not confide in his father, from whom he felt distant. He eventually told the police after discussing the situation with his long-term girlfriend.
12. The complainant said that on a number of occasions the appellant talked to him about homosexuality. He told the complainant that he, the complainant, was gay and there was nothing wrong with it. He told him about "giver" and "receiver" types and said that he, the complainant, was a receiver. The appellant indicated that he wanted to have gay sex with him but that he was under age and the appellant would get into trouble if he were found out. He had been to the appellant's bungalow between 15 and 20 times. On each occasion sexual assaults in the form of masturbation had taken place and, on one occasion, oral sex.
13. On a couple of occasions, the complainant met the appellant's wife E. The appellant told him that she would like to see him in school uniform and perform oral sex on him. On a Saturday morning, the appellant took him to accommodation where his wife was warden. He said that he would like to watch the complainant having sex with his wife but he should wear a condom. He felt scared and didn't want to do it. She lowered her clothing and was lying on a sideboard or table. He did not have sex with her but the appellant did. He, the complainant, did not know what to do. The appellant told him not to tell anyone.
14. The complainant said that that was the last time he could remember having seen the appellant. The appellant sent him a card, he thought on his sixteenth birthday, saying he could reach him, the appellant, if he wanted to do so. The complainant said: "I didn't contact him. I felt disgusted. I wanted to forget it. I wanted to bury it". The complainant thought that the appellant might have telephoned him once or twice but he did not want to speak to him.
15. The complainant gave a description of the appellant's body. When they had first met, the appellant was not circumcised. When the complainant was about fourteen, the appellant told him that he had had a private operation to be circumcised.
16. In cross-examination, the complainant said it was possible that it was later, when he was eighteen, when the appellant told him that he was circumcised. He could not recall visiting the appellant's house with his first car, a VW Polo. If it did happen, he would have "wanted to show him that I was taking my power back, that I was breaking free of him but I don't recall that it did happen". He did have a memory of having a cup of tea with the appellant's wife.
17. The complainant said that he enjoyed the trips with the appellant for the trips themselves and at first he thought that the sexual assaults would not happen again. He thought he would get into trouble with his parents if he declined to go on a trip. The appellant would always ask him in front of his parents and he felt scared and overpowered by the appellant. He agreed that in his statement to the police he had said that he had told his parents that he did not want to go but had not given reasons. In evidence, he said that his natural mother had asked him whether anything was going on with the appellant and he denied that there was. He said that he did not have the guts to tell her.
18. The complainant's father gave evidence that there were eight to ten overnight trips. He recalled the appellant telephoning a few times in 1991 and 1992 to enquire how the complainant was. The complainant's natural mother returned to the family at the beginning of 1989. She said that, following her return, there were about five overnight trips.
19. In interview, the appellant denied that any indecency had taken place. He could not recall sharing a bed with the complainant but it was possible. He had met the family in 1985 when they came to live in his road and he kept in touch with them after he moved in August 1987. The complainant and his father had helped with the move. He kept in touch thereafter and befriended the complainant because he felt sorry for him. His work as a travelling salesman between March 1987 and April 1988 involved some overnight trips. He accepted that there had been overnight trips and accepted the destinations the complainant said they had visited. He accepted that the complainant had stayed in his flat and in the same room as him. The allegations of indecency were all totally untrue.
20. The appellant said that he had told the complainant in 1994 that he had been circumcised. He had never spoken to the complainant about gay sex. He could not understand why the complainant had made the allegations.
21. The appellant did not give evidence but relied on his answers in interview. His wife gave evidence that she had married the appellant in January 1991. She had not met the complainant before 1994 when he came to their bungalow in Whistoe. He stayed for two to three hours and there was general conversation over tea. She denied all aspects of the sexual episode which the complainant said had occurred. She was unaware of the trips the complainant and the appellant had taken.
22. It is clear that the complainant was thoroughly cross-examined at the trial and his evidence was fully summarised to the jury. The jury were directed to take into account the undoubted inconsistencies between the complainant's statement to the police and his evidence. They were reminded that none of the alleged incidents occurred in the presence of others. Though not the subject of a charge, the judge referred to the alleged sexual incident in the presence of the appellant's wife. In relation to that, the judge stated, at page 16F:

"If at the end of it you are not sure that C is accurate and truthful about that you would obviously have to be very cautious indeed before concluding that you are sure that he is truthful about the incidents the subject of the indictment because, as has been said by both counsel, these incidents, it is not a question of memory testing and somebody possibly being wrong. The same can be said of the incident with the wife. Somebody must you may think not be telling the truth about it."

23. The jury were directed:

"Consider very carefully … why didn't he [the complainant] tell anyone and why did he go on going on these trips? The defence say that this throws light on the truthfulness because if these things really had happened would he not have told somebody before? Would he have gone on the trips again? You must assess these points obviously carefully."

The judge referred to the evidence about that in considerable detail.

24. The judge stated, at page 15G: "I make it clear that you are perfectly entitled to convict the defendant on C's evidence alone but only after I suggest having first carefully assessed his reliability and the point [defence counsel] rightly brings to your attention as to his reliability as a witness …" Inconsistencies are mentioned.
25. The judge referred to the interviews given by the appellant stating that they "must consider those because it was the defendant's reaction to the police". His statements at interview were summarised. At page 8A, the judge stated:

"In fairness to the defendant you should also make allowances for the fact that from his point of view the longer the time since the incidents the more difficult it may be for him to answer it … If you decide that because of this [the delay] the defendant has been placed at a real disadvantage in putting forward his case take that into account in his favour when deciding if the prosecution have made you sure".

26. Near the end of his summing up, at page 31H, the judge stated:

"Members of the jury, the defence say at the end of it you have got to be sure of guilt and they are quite right in that. You have got to be sure of C's evidence. Can you be absolutely sure? Can you be sure that for some reason, though the defendant and the defence cannot point to it, for some unfathomable reason that he is not lying about these indecent assaults?

It is not for the defendant to show why he might be lying. That is right. You have got to be sure at the end of the day that on the prosecution case he is not lying. The defence say the defendant has not given evidence but he has said effectively all he can say in interview and though you are entitled to draw an adverse inference against him in those circumstances you should not hold his silence at trial against him. You can see he has been frank in interview, they say, for example, by saying they shared rooms on their trips."

The judge made further references to the inconsistencies in the complainant's evidence and summarised what prosecution and defence said about them.

27. It has been necessary to describe, in some detail, the evidence at the trial and the summing-up to consider the point on which the reference has been made. The evidence took something over two days and, following the summing-up, the jury retired soon after 3pm on the third day. They deliberated until 4:30 on that day and from 10:14am until 12:04pm on the following day. It was then that they returned their verdicts on Counts 5 and 7. They again retired and returned their verdicts on the other counts at 1:11pm.
28. The direction to be given to the jury by a judge in a case in which a defendant has not given evidence was considered in this court in R v Cowan & Ors [1996] 1 Cr App R 1, Lord Taylor CJ presiding. At page 7, certain "essentials" were highlighted:

"1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is.

2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. The right of silence remains.

3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.


4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant's silence.

5. If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant's having no answer or none that would stand up to cross-examination, they may draw an adverse inference."

29. In explaining the need for such guidance, Lord Taylor stated, at page 4:

"First, the prosecution have to establish a prima facie case before any question of the defendant testifying is raised. Secondly, section 38(3) of the Act is in the following terms:


"A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in ... section 35(3) ..."


Thus the court or jury is prohibited from convicting solely because of an inference drawn from the defendant's silence. Thirdly, the burden of proving guilt to the required standard remains on the prosecution throughout. The effect of section 35 is that the court or jury may regard the inference from failure to testify as, in effect, a further evidential factor in support of the prosecution case. It cannot be the only factor to justify a conviction and the totality of the evidence must prove guilt beyond reasonable doubt."

30. We would add the comment, accepting on this point the submission of Mr Pini, for the respondent, that the word "therefore", with which proposition 4 begins, demonstrates that it follows from proposition 3. The fourth essential is not really a separate point but is the necessary and logical consequence of the third. It amplifies and spells out what is in any event inherent in the third, that failure to give evidence cannot on its own prove guilt.
31. Having referred to the authorities, the CCRC considered the consequences of the admitted absence, in the summing-up, of express statement of the fourth essential. The CCRC stated:

" Whether or not there was a case to answer was the first question for the jury to determine, based on the prosecution evidence. If the jury had not been able to conclude, on the basis only of the prosecution evidence, that C was a reliable and credible witness, then consideration of the defence evidence and of the question of adverse inferences would not have arisen for determination.

The Commission concludes, therefore, that the "fourth essential" in Cowan was a direction which was of particular significance in this case, especially as the case hinged entirely on the credibility and reliability of the prosecution witness, C. The Commission considers that there was a danger that, if they were in doubt about whether C was telling the truth, the jury might have used Mr Whitehead's failure to give evidence to shore up C's evidence and to undermine Mr Whitehead's account given in interview.

The Commission acknowledges the artificial nature of this situation, whereby the jury, in determining whether there was a case sufficiently compelling to require an answer from the accused, would have had to ignore the evidence which was presented by the defence, and determine the matter purely on the basis of the evidence presented by the prosecution. This demanded a degree of sophistication from the jury and presumed a direction from the trial judge which was sufficiently detailed and structured to assist them in the determination of such a complex issue. Such a direction is the logical outcome of Cowan as affirmed by Birchall and Bromfield. While the Commission acknowledges that the complexities highlighted will not arise in most cases, it considers that the instant case was one where such complexities could not be avoided and was one for which the "fourth essential" was, perhaps, most particularly designed."

32. For the appellant, Mr Thorogood, who did not appear at the trial, adopts and develops the reasoning of the CCRC. The prosecution case rested entirely on the credibility and reliability of C. The complainant had delayed before reporting these offences, there were inconsistencies between his accounts at interview and those given in evidence and there was continuing contact with the appellant. In such circumstances, the fourth essential, in an undiluted form, was an essential feature of a summing-up, it is submitted. It is accepted that there was evidence before the jury which entitled them to convict but, because of the defect in the summing-up, it cannot be known what role the appellant's silence played in the decision to convict. It is possible that the jury had reservations about the reliability of the complainant's evidence and used the appellant's silence to shore up that evidence. The overall fairness of the summing-up, and the warnings given, do not remedy the defect, it is submitted.
33. The judge stated, at page 9:

"Members of the jury, I think this is the last direction I am going to give you and therefore the last thing I say before lunch. The defendant chose not to come into the witness box and give evidence before you. How are you to approach that? How can you approach that in law?

It is his right to do that. He is entitled to remain silent and to require the prosecution to prove its case and you must not assume he is guilty just because he has not given evidence because a failure to give evidence cannot on its own prove guilt.

On the other hand, you heard me say to Mr Beddoe his barrister whether the defendant had specifically been told that if he chose not to give evidence at trial that was something from which the jury could draw inferences against him, and yes, he had been told that and he was with that advice nonetheless choosing not to give evidence. So depending on the circumstances you may if you think it right and fair in the circumstances take into account his failure to give evidence when deciding on your verdicts.

In the first place when considering the evidence as it now is at the end of the prosecution case and the defence case you may bear in mind that there is no evidence from the defendant himself to you which in any way undermines or contradicts or explains the evidence put before you by the prosecution.

But pausing there for a moment, the defendant did answer questions in interview and of course he now seeks and rightly seeks to rely on those answers and they are of course evidence in the case."

34. The judge gave a direction as to how to approach the answers in interview. The judge continued:

"I prefaced all those remarks by saying "in the first place." In the second place if you think in all the circumstances it is right to do so you are entitled when deciding whether the defendant is guilty of the offences charged to draw such inferences from his failure to give evidence as you think proper. In simple terms this means that you may if you think it is right and proper in the circumstances hold his failure to give evidence against him. If in your judgment the only sensible reason for his decision not to give evidence is that he has no explanation or answer to give or none that could have stood up to cross-examination then it would be open to you to hold against him his failure to give evidence, that is to take it into account as some additional support for the prosecution's case. You are not bound to do that, members of the jury. It is for you to decide having regard to everything whether it is fair to do so."

35. Adverse inferences from a defendant's silence at trial were first permitted in Northern Ireland (Criminal Evidence (Northern Ireland) Order 1988) ("the 1988 Order"). In Murray v DPP [1994] 99 Cr App R 396, the House of Lords considered the approach a fact-finding tribunal should adopt, and required a prima facie case to be established by the prosecution before the drawing of adverse inferences from the failure of a defendant to give evidence could arise.

Lord Mustill stated, at page 400:

"Everything depends on the nature of the issue, the weight of the evidence adduced by the prosecution upon it … and the extent to which the defendant should in the nature of things be able to give his own account of the particular matter in question.

Lord Slynn of Hadley, giving the leading speech, with which the other members agreed, stated at page 405:

"If there is no prima facie case shown by the prosecution there is no case to answer. Equally, if parts of the prosecution case had so little evidential value that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt. On the other hand, if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty."

36. The effect of proposition 4 was considered in this court in R v Birchall [1999] Crim LR 311. Giving the judgment of the court, Lord Bingham CJ stated, first, that the court is reluctant "to countenance the view that direction of a jury calls for the mouthing of a number of mandatory formulae, and departure by the trial judge from a prescribed form of words will by no means always justify the upsetting of a jury's verdict". Lord Bingham added that "the drawing of inferences from silence is a particularly sensitive area" and referred to Article 6 of the European Convention on Human Rights. Lord Bingham added:

"Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant's failure to give oral evidence at his trial until they have concluded that the Crown's case against him is sufficiently compelling to call for an answer by him. What was called the "fourth essential" in Cowan was correctly described as such. There is a clear risk of injustice if the requirements of logic and fairness in this respect are not observed".

37. It follows from that statement that, in a jury trial, the requirement is not satisfied merely because the judge has found that there is a prima facie case. The judge's task, at the close of the prosecution case, is to consider whether there is a case fit to go before the fact-finding tribunal, the jury. The decision on the facts is theirs. The court in that case did itself analyse weaknesses in the evidence of the prosecution, including that of the main prosecution witness, with respect to which new damaging material was available to the court.
38. Professor Birch commented on that decision, as also cited by the CCRC:

"But it is the judge's job to rule on the existence or otherwise of a prima facie case, and for the jury to decide whether, on the evidence as a whole, guilt is established beyond reasonable doubt. To require the jury to divide up the evidence into stages, taking account of the accused's silence in court only insofar as the case against him is otherwise so compelling as to require an answer, seems at one and the same time to duplicate effort and to sow the seeds of confusion in the jury's mind ([1999] Crim. L.R. 313) "

39. In R v Powell [2004] EWCA Crim 1621, the court, Rose LJ Vice-President presiding, in treating a conviction as unsafe, drew attention to the judge's failure to "say to the jury that the adverse inference could only be drawn if the jury were satisfied that there was cogent other evidence".
40. In R v Bromfield [2002] EWCA Crim 195, essential 4 was absent from the summing-up. The court, Rose LJ presiding, referred to the prosecution evidence, which was not all from the same source. The court stated, at paragraph 54:

"In short, we have no doubt there was a sufficiently compelling case for the appellant to answer. The jury could not have come to a different conclusion. The judge made it clear that the fact that the defendant had not given evidence could not prove his guilt. He emphasised the right to silence. He emphasised that the appellant had to prove nothing. The failure to give direction four could not affect the safety of the conviction".

41. Mr Pini submits that the present case is covered by that approach. Mr Thorogood submits that there is an important distinction because in Bromfield the prosecution case did not depend, as it does in the present case, solely on the oral evidence of a single prosecution witness.
42. At the time of the trial, the JSB specimen direction as to what inference can properly be drawn from a defendant's decision not to give evidence was: "If, and only if, you conclude that there is a case for him to meet, you may think that if he had an answer to it he would have gone into the witness box to tell you what it is". The 2004 direction provides that the jury "may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about two things: first, that the prosecution case is so strong that it clearly calls for an explanation by him …; and second, that the only sensible explanation for his silence is that he has no answer, or none that would bear examination". The expression "so strong" presumably arises from Lord Bingham's use of the word "compelling" in Birchall. We doubt that Lord Bingham intended the word "compelling" as an intensifier and doubt that he intended to depart from earlier guidance. The case must be sufficiently cogent to call for an answer by the defendant.
43. Both in Birchall and in Bromfield, this court conducted an analysis of the prosecution case, apart from any reliance on silence. On the facts, the present case is distinguishable from both of them. In Birchall, on the one hand, the court entertained, and had reason to entertain, very considerable doubts about the evidence of the main prosecution witness and the case as a whole. In Bromfield, the court's analysis revealed supporting evidence which gave credibility to the evidence of the main prosecution witness. In the present case, there is no significant supporting evidence from an independent source.
44. In terms of the availability of corroborative evidence, the case is not, for present purposes, as strong as Bromfield but, on the analysis which it is open to this court to conduct, the court must consider whether it passed the test contemplated in the authorities. In Murray, Lord Slynn plainly contemplated that evidence "taken alone", as well as taken in combination with other facts, may call for an explanation which the defendant ought to be in a position to give. The Commission on Human Rights in Murray (John) v United Kingdom (1944) 18 EHRR, CD1, stated: "Inferences from a failure to give explanation or evidence in court only become permissible under the [1988] Order when there is a prima facie case i.e. the prosecution has submitted material which might lead to the conviction of the accused". That formulation, cited in Cowan, equally does not require evidence from a source independent of a complainant.
45. In a summing-up impeccable, subject to the omission complained of, the judge, in addition to a direction on the burden and standard proof, stated that "the prosecution case depends exclusively on the evidence from C", … "the whole case really does entirely depend on whether you are sure in relation to these allegations on the indictment that C is truthful", "you have got to be sure at the end of the day that on the prosecution case he [the complainant] is not lying". There are many references in the summing-up to the jury having to be "sure" that the complainant was telling the truth. The jury were directed that "failure to give evidence cannot on its own prove guilt". The importance of the complainant's evidence, and its crucial role, were fully and repeatedly stated in the summing-up. There was the plainest direction that failure to give evidence cannot on its own prove guilt.
46. The complainant's evidence, as to which these directions were given, must then be considered in the context of an admitted relationship involving a boy going on trips with and staying at the home of a middle aged man. It is in that context that the issue must be considered. Analysis of the complainant's evidence, in context, does not reveal any fundamental defect. It was for the jury to decide whether it made them sure of guilt but we cannot doubt that it was required to be treated seriously by the jury.
47. We are far from encouraging judges not to state the fourth essential in terms but we have concluded that the evidence in the case, and the way in which the issues were treated in the summing-up, make the possibility that the jury relied on the appellant's silence, before first deciding that there was sufficient evidence to call for an answer, a fanciful one. The jury must first ask themselves, to adopt an expression used by Mr Thorogood in his helpful and forceful submissions, whether there is "something in this" before considering the significance of silence. We have no doubt that, to the extent of crossing the threshold so as to permit consideration of silence, there was to put it no higher, enough, for present purposes, to call for an explanation. The structure of the summing-up, stressing the great importance of the evidence of the complainant and of the jury's view of it, ensured that the jury would perform the correct exercise.
48. The problem identified by Professor Birch, in her comment already cited, is a real one and one to which there is no simple answer. If the jury are sure of the reliability of a complainant's evidence, corroborated or not, reference to the defendant's silence is unnecessary. Parliament has intended that a jury should be entitled to bear silence in mind in cases in which they have not already decided upon guilt. Clearly, the jury should start with a consideration of the evidence and not with the defendant's silence. They must conclude that it is sufficiently cogent to call for an explanation before considering the implications of the defendant's silence. Having crossed that threshold, the jury are entitled to consider the defendant's silence, as a further evidential factor, in the words of Lord Taylor, and in the context of the evidence as a whole. The fourth essential is not really a separate point but is the necessary and logical consequence of the third. It amplifies and spells out what is in any event inherent in the third, which was included in the summing-up, that failure to give evidence cannot on its own prove guilt. We see no real possibility that the jury failed to approach the case correctly.
49. That being so, we have no doubts about the safety of the jury's verdicts and, for the reasons given, this appeal against conviction is dismissed.