CD v R [2025] NICA 34 – When Missing Words Do Not Miscarry Justice: The Non-Fatal Omission of “or mainly” in Right-to-Silence Directions

1. Introduction

CD v R ([2025] NICA 34) is a Court of Appeal in Northern Ireland decision upholding 29 convictions for historic sexual offences notwithstanding an admitted defect in the trial judge’s summing-up. The appellant, CD, had remained silent at trial. The judge directed the jury on adverse inferences but omitted the explicit warning that jurors “should not find the defendant guilty only, or mainly, because he did not give evidence” – wording found in the Crown Court Bench Book and underpinned by European Convention jurisprudence on the right to silence. Leave to appeal was granted solely on that ground.

The appellate court (Treacy LJ, Colton J, Kinney J) held that, although best practice was not followed verbatim, the charge as a whole adequately protected the accused’s Article 6 rights. Consequently, the verdicts were deemed safe and the appeal was dismissed. The judgment sets a useful precedent on the flexibility of jury directions and the circumstances in which an omission from a specimen charge will not render a conviction unsafe.

2. Summary of the Judgment

The trial judge told the jury that (i) CD had the right to remain silent, (ii) they could draw inferences only if the prosecution’s case clearly demanded an answer, and (iii) they must decide whether silence was because CD had no answer that would withstand cross-examination. In a supplemental charge he added that jurors must not “just decide bluntly” that silence equals guilt.
He did not add the words “or mainly”. Defence counsel objected; the judge declined to revisit the point a second time.
The Court of Appeal accepted the omission but found, on a holistic reading, that the summing-up effectively required the jury to:
1. First analyse the prosecution evidence; and
2. Only then, and secondarily, consider possible inferences.
That structure made it impossible to convict mainly on silence.
Applying the Pollock test (“does the court think the verdict is unsafe?”) and relying on the overwhelming evidence of guilt, the court held that any misdirection was not of such gravity as to make the trial unfair or the verdict unsafe.
The appeal was therefore dismissed and the convictions and 20-year sentence remain in force.

3. Detailed Analysis

3.1 Precedents Cited

Murray v UK (1996) 22 EHRR 29 – Established that a conviction based “solely or mainly” on silence violates Article 6.
Condron v UK (2001) 31 EHRR 1 and Beckles v UK (2003) 36 EHRR 162 – Reinforced the Murray principle.
R v Togher [2001] 1 Cr App R 33 – Lord Woolf CJ: denial of a fair trial almost inevitably renders conviction unsafe.
R v Pollock [2004] NICA 34 – Governs appellate review of safety of verdicts in NI.
Randall v The Queen [2002] 1 WLR 2237 – Lord Bingham on departures from good practice not automatically rendering trials unfair; need for gross/persistent prejudice.
Adeyinka [2014] EWCA Crim 504 – Omission of a direction may be cured where evidence is overwhelming.

3.2 Court’s Legal Reasoning

The appellate court dissected the summing-up in two stages:

The Primary Direction: Jurors were told their duty was to decide the case “according to the evidence”. Before drawing any inference they had to be satisfied that the prosecution evidence “clearly calls for an answer”. That command requires jurors to focus first on the evidential strength of the Crown case.
The Supplemental Direction: Jurors were expressly forbidden from a shortcut of equating silence with guilt: “you can’t just say … he didn’t give evidence, therefore he’s guilty”. They were reminded to apply the earlier “procedure”.

Treacy LJ reasoned that these two conditions logically prevent a verdict that is “mainly” founded on silence, even if the particular adverb never crossed the judge’s lips.

The court accepted that specimen directions are highly desirable, but—leaning on Lord Lane’s and Lord Bingham’s dicta—declined to elevate them to “magic formulae”. A controlled flexibility remains with trial judges; what matters is whether the direction, taken as a whole, meets the legal test.

3.3 Potential Impact of the Decision

Flexibility in Jury Directions: Northern Irish (and likely wider UK) trial judges are re-assured that verbatim adherence to Bench Book wording, though best practice, is not a prerequisite for safety of conviction where the essential principles are conveyed.
Clarification of “Mainly” Standard: The decision distinguishes between a failure to mention the word “mainly” and an instruction that effectively prevents a “mainly-on-silence” conviction. Future appellants will need to show not merely linguistic omission but genuine risk that the jury relied principally on silence.
Article 6 Jurisprudence: The judgment harmonises domestic practice with Strasbourg case law by focusing on substance over syntax.
Appellate Strategy: Defence lawyers considering appeals based on summing-up defects must address Pollock head-on and demonstrate a “significant sense of unease” about verdict safety, not simply point to technical non-compliance.

4. Complex Concepts Simplified

Right to Silence: A defendant is entitled not to testify; jurors may draw an adverse inference only under statutory safeguards (Criminal Evidence (NI) Order 1988) and fair-trial principles.
Adverse Inference: A logical deduction that silence may indicate a lack of an innocent explanation. Must supplement, not replace, the prosecution’s evidence.
Specimen Directions / Bench Book: Officially issued model wording for judges’ guidance. They promote consistency but are not legally binding incantations.
“Safe” vs “Unsafe” Verdict: The appellate test (Pollock) is whether the court has real doubt about the correctness of the jury’s decision, considering the entirety of the evidence and any procedural missteps.
“Solely or Mainly”: Strasbourg shorthand for prohibiting convictions based only, or principally, on silence. Courts must ensure silence is supportive, not determinative.

5. Conclusion

CD v R [2025] NICA 34 confirms that an otherwise impeccable summing-up will not be rendered defective simply because it omits the exact phrase “or mainly”. Where the jury is clearly directed (a) to decide the case on the evidence, and (b) to treat silence as secondary, Article 6 requirements are satisfied. The case underscores the importance—but not the infallibility—of Bench Book adherence and illustrates the pragmatic stance of appellate courts: guarding fair-trial rights while resisting the elevation of forensic semantics into automatic grounds for overturning convictions.

Key Takeaway: In Northern Ireland, a trial judge’s slight departure from specimen wording on the right to silence will not, in itself, vitiate a conviction. Safety depends on the summing-up’s effect, not its verbatim form.