Neutral Citation Number: [2013] EWCA Crim 2536
Case No: 201206569/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Thursday, 10th October 2013
 
B e f o r e: 
LORD JUSTICE LAWS
MR JUSTICE GLOBE 
MR JUSTICE JAY
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R E G I N A

v 

FREDERICK WRIGHT WALTON
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Mr A Hawks appeared on behalf of the Appellant  
Mr G Doig appeared on behalf of the Crown 
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J U D G M E N T 
1.	LORD JUSTICE LAWS:  This appellant faced an indictment containing 12 counts alleging sexual offences.  On 26th October 2012 before His Honour Judge Sloan QC at the Newcastle Crown Court he was convicted by the jury on all counts.  Counts 1 to 4 alleged offences of rape.  Counts 5 to 12 alleged offences of indecency with a child.  On 23rd November 2012 he was sentenced to concurrent terms of 16 years' imprisonment for each of the rape offences and lesser concurrent terms on the other counts.  He appeals against his conviction by leave of the single judge.
2.	The complainant on all counts was a girl, C, born on [a date in] 1988.  The appellant was a long‑standing friend of her father.  The Crown case was that he had repeatedly abused her sexually between 1999 and 2002 when she was aged between 11 and 14.  The counts were all specimen counts:  counts 1 to 4 of rape; counts 5 to 8 of occasions when he placed his penis in her mouth and counts 9 to 12 of occasions when he masturbated in front of her.  On C's evidence the first offence was one of rape when she was 11, in a building in G Road in Sunderland.  It happened again a fortnight later and thereafter she was abused two or three times a week at different addresses over a period of years.  He would give her money and sweets.  He would threaten to kill her if she told anyone.  She first reported the abuse to the police on 19th October 2012 when she said she was drunk.  A friend of hers, SG, gave evidence that before that C had told her that she had been raped by her father's friend.
3.	Interviewed by the police on 24th November 2011 the appellant, acting on his solicitor's advice, produced a prepared statement denying the allegations and stating that he had been away from the area at various times between 1999 and 2003.  He declined to answer any questions asked by the police.  In evidence he said he was not at G Road when the abuse allegedly occurred there.  But the Crown relied for one occasion on the police log of a 999 call made from the G Road premises on 21st December 1998, with the caller logged as the appellant.  He said someone else made the call.
4.	The appellant was asked no questions in the witness‑box, in chief or cross‑examination, about why he had declined to answer the police questions in interview.  Nor was any reference made to this fact in Crown counsel's closing speech.  However, after the defence was closed and before speeches to the jury the trial judge, in the absence of the jury, indicated that he proposed to give a direction under section 34 of the Criminal Justice and Public Order Act 1994, to the effect that it would be open to the jury to draw an adverse inference against the appellant from his failure to answer questions in interview.  Defence counsel objected, submitting, as we understand it, there is no transcript that Crown counsel has not cross‑examined about the appellant's silence in interview and was not seeking a direction as to adverse inference.  Crown counsel confirmed to the judge that that was so.  However, the judge was seemingly unmoved and proceeded in his summing‑up to give such a direction.
5.	The principal ground of appeal is that in the circumstances he was quite wrong to do so.  A secondary ground is that the form of the direction was itself prejudicial.  It may have left the jury with the impression that there were further matters beyond those mentioned by the judge, which the appellant ought to have mentioned when he was interviewed.
6.	It is only necessary to read that part of the direction that relates to this second ground (summing‑up transcript page 16B):  
"For example, he never mentioned in interview that [S] did not go with him, at all, to certain properties.  He did not mention, when interviewed, that she was always accompanied by others ‑ family members ‑ when she did attend other properties.  He never mentioned that he was never alone with her.  None of those facts, upon which he now relies, were mentioned by him when interviewed."
7.	We do not consider that there is anything in this second ground to the effect that the jury may have thought that there were other matters not referred to that the appellant ought to have raised in interview. The argument really rests on the judge's use of the phrase "for example" at 16B.  It is in our judgment not realistic to suppose that this phrase left any particular impression on the jury.
8.	However, the first ground of appeal has much force.  It is elementary that an adverse inference of guilt should only be drawn from a defendant's silence in interview if the only reasonable explanation for that silence is that he had no answer to the accusation put to him or none that would stand up to scrutiny.  But here the appellant was never asked what his explanation was.  Nothing was said, nothing suggested to the jury about the appellant's silence at any stage in the evidence or in counsel's closing speeches.  Yet the jury were invited to consider an adverse inference without knowing what if anything the appellant might have had to say about his silence.  That in a case where, as Mr Doig for the Crown has fairly accepted this morning, the essential issue was who the jury believed.
9.	Mr Doig says the complainant was a strong witness.  That may have been so.  But we are quite unable to conclude that the result in this case must have been the same even had the judge not given the impermissible direction.  It was a wrong and unfair direction.  These convictions are unsafe.  The appeal is allowed.
10.	MR DOIG:  My Lord, we seek a retrial.  
11.	 LORD JUSTICE LAWS:  Mr Hawks?  Mr Hawks you cannot resist.  We will order a retrial.  There are standard directions. The Registrar has a helpful crib.  So we allow the appeal and quash the conviction or specify counts or offences which are quashed. The convictions on all counts on the indictment are to be quashed and the appellant is to be retried on all those counts.  We direct that a fresh indictment be served under see section 8(1) of the Criminal Appeal Act and that the appellant be arraigned on the fresh indictment within 2 months of today's date.  I do not think it says so here. The position is that the venue of the retrial is a matter, strictly speaking, for the presiding judge of the relevant circuit (the north east circuit in this case) but presumably subject to any fresh directions for any special reason it will go back to Newcastle.  I would have thought so.
12.	As regards custody or bail, unless Mr Hawks has any submissions, and speaking for myself I think he is to remain in custody.  If there were to be an application for bail it be made to the Crown Court.
13.	MR HAWKS:  Yes, I am not in a position to make an application at the moment.
14.	 LORD JUSTICE LAWS:  Certainly not today.  Do we make an order under section 4(2) of the Contempt of Court Act restricting reporting of the proceedings until after conclusion of the trial?  I do not think you want potential future jurors reading my judgment, do you? I would not have thought so. 
15.	MR DOIG:  No thank you.
16.	 LORD JUSTICE LAWS:  We make such an order until after the conclusion of the retrial.  I think that is everything.  We are to note that your legal aid order does not cover a retrial, and you probably know this already, I better tell you, since the end of June 2010 representation orders for the retrial can no longer be made by this court.  Legal representations should be, we are told, that applications for such orders should be made to the Highbury Coroner Magistrates' Court.  I have the address here.  In Holloway Road, London N7, so there you are.
17.	MR HAWKS:  Perhaps we can go there on our way back to Newcastle my Lord.