R v Scott Marsden
[2023] EWCA Crim 1610
R v RT
12 September 2023
[2023] EWCA Crim 1118
Court of Appeal
A man was convicted of sex offences, but the court threw out the case because the judge didn't tell the jury they shouldn't assume his silence during questioning meant he was guilty. The judge should have given clearer instructions about how to interpret his silence, even though there wasn't a specific law requiring it.
Key Facts
- •RT was convicted of three counts of indecent assault and one count of attempted indecent assault.
- •RT remained silent during a police interview (no comment) and did not offer any explanation during the interview.
- •The prosecution did not seek a section 34 direction (Criminal Justice and Public Order Act 1994) regarding RT's silence.
- •The judge did not give a McGarry direction instructing the jury not to draw adverse inferences from RT's silence.
- •The trial was a credibility contest between RT and the complainant (AB).
- •There was limited independent corroboration for AB's allegations.
- •The "no comment" interview was presented as evidence to the jury.
- •Defence counsel addressed the jury about the "no comment" interview and the possibility of negative inferences.
Legal Principles
Section 34 of the Criminal Justice and Public Order Act 1994 permits adverse inferences to be drawn from a defendant's silence during questioning, but only if certain conditions are met.
Criminal Justice and Public Order Act 1994, s. 34
Even if section 34 is not triggered, a judge may still direct the jury not to draw adverse inferences from a defendant's silence (McGarry direction). This is a discretionary decision.
R v McGarry [1999] 1 Cr App R 377
The Sexual Offences (Amendment) Act 1992 restricts the publication of information that could identify victims of sexual offences.
Sexual Offences (Amendment) Act 1992
Outcomes
The appeal was allowed, and the convictions were quashed.
The court found the convictions unsafe because the jury was left without guidance on how to interpret RT's silence during the interview. The lack of a McGarry direction, coupled with the prosecution's and defence counsel's handling of the 'no comment' interview, created a risk that the jury improperly considered the silence as evidence of guilt.
An extension of time for the appeal was granted.
The court considered the reasons for the delay and the overall interests of justice.