Introduction

The Court of Appeal in Northern Ireland delivered its judgment in CH, R. v ([2025] NICA 9) on January 30, 2025, concerning multiple serious sexual offence counts leveled against an 81‑year‑old defendant. The case centers on a series of allegations of sexual assault against the defendant’s seven‑year‑old granddaughter. Key issues addressed in the judgment include the management of the Achieving Best Evidence (ABE) process and the use of a “worry monster” toy in the child’s interview, as well as questions regarding the sufficiency of the defendant’s opportunity to prepare his defence relevant to the alleged suggestibility of the complainant, and finally the application of Article 3 adverse inferences from the defendant’s “no comment” responses during his police interview.

The parties before the court included the applicant (the defendant) represented by Mr McCartney KC and Mr Michael Halleron, and the Crown represented by Mr Connor KC with Mr Farrell. The crucial points of contest in the appeal pertain to judicial discretion concerning the treatment of evidence and jury instructions in relation to silence, a matter that could affect the fairness of the trial.

Summary of the Judgment

The Court of Appeal considered three principal grounds of appeal:

• The alleged failure by the trial judge to remedy potential prejudice caused by the presence of a “worry monster” toy during the child’s ABE interviews.
• The contention that the trial judge prevented adequate time for the defendant to complete evidential preparations regarding the complainant's alleged suggestibility.
• The claim that the trial judge erred in not issuing a proper Article 3 adverse inference direction related to the defendant’s “no comment” responses during his police interview.

While the Court dismissed the first two grounds, it found significant fault with the handling of ground three on the Article 3 adverse inference. Notably, the judgment critiqued the trial judge’s failure to clearly caution the jury against drawing unwarranted adverse inferences from the defendant’s reliance on his solicitor’s advice. Consequently, the Court granted leave to appeal on this ground alone and quashed the convictions, with further directions that the parties be heard over a potential retrial.

Analysis

Precedents Cited

The judgment references several key precedents that were central to the court’s reasoning:

• R v Pollock [2004] NICA 34: The principles set out in this case served as guidance in determining whether a verdict was “unsafe.” The Court stressed that appellate review should be about assessing the overall safety of the conviction rather than retrying the case.
• R v Haughey & Ors [2001] NICA 12: This case was used to argue regarding the proper scope and application of adverse inference warnings when a defendant’s silence might be prejudicial.
• R v McGarry [1999] 1 WLR 1500: The judgment invoked this case to emphasize that where the statutory threshold is not met, the jury should be instructed not to draw adverse inferences.
• Argent [1997] 2 Cr App R 27 and other key texts: The judgment refers to statutory directions and Blackstone’s Criminal Practice to highlight the necessary standard for issuing a correct adverse inference instruction in light of a defendant’s silence.

These precedents established a rigorous framework for assessing when and how a jury may be permitted to weigh a defendant’s failure to mention facts during police questioning.

Legal Reasoning

In addressing the appeals, the Court of Appeal’s reasoning was methodical and focused on judicial discretion, evidential integrity, and the protection of the accused’s rights. The reasoning can be broken down as follows:

• Management of Evidence and Witness Comfort (Ground 1): The presence of the “worry monster” toy in the ABE process was scrutinized. Although both the prosecution and defence agreed on the desirability of removing the toy from the recorded interviews, logistical limitations prevented its pixelation. The trial judge’s decision to manage the situation through judicial direction (rather than exclusion of the evidence) was deemed reasonable and not unfairly prejudicial.
• Adjournment for Expert Preparation (Ground 2): The applicant argued that insufficient time was allowed for the expert, Dr Timothy Green, to complete interviews necessary to assess the complainant’s suggestibility. However, given the sensitive nature of the evidence collection process with a young child and the existing disclosures, the judge’s refusal to grant further adjournment was upheld. The court found that a delay would have compromised both the child’s welfare and the trial’s efficiency.
• Article 3 Adverse Inference (Ground 3): The most significant aspect of the decision focused on how the trial judge handled the defendant’s “no comment” responses during his initial police interview. The Court of Appeal observed that under Article 3 of the 1988 Order, where a defendant fails to mention a fact later relied on in defence, adverse inferences may only be drawn if the jury is adequately directed. The trial judge’s instructions, however, left open the possibility for the jury to draw an adverse inference from the defendant’s silence. The appellate court found this omission critical, noting that the failure to clearly caution the jury not to rely on the defendant’s initial non-responses, especially when they were offered on the sound advice of legal counsel, rendered the convictions unsafe.

Impact on Future Cases and the Area of Law

The decision is likely to have profound implications in two key areas:

• Jury Directions on Silence: This judgment underscores the necessity for trial judges to issue precise and comprehensive adverse inference directions when a defendant’s silence is at issue. Future cases may now be subject to rigorous appellate scrutiny if such warnings are found lacking.
• Use of Special Measures in Evidence Gathering: The discussion surrounding the “worry monster” highlights the delicate balance between creating a supportive environment for vulnerable witnesses and maintaining a neutral evidentiary record. This ruling may influence protocols in ABE processes, resulting in stricter guidelines regarding the presence of any therapeutic or comfort items during interviews.

By clarifying the limits of permissible jury inferences from silence and reinforcing the fundamental right to a fair trial under the ECHR, the court’s decision is poised to affect both criminal procedure and the treatment of vulnerable witnesses in future proceedings.

Complex Concepts Simplified

Several complex legal concepts were central to this judgment:

• ABE (Achieving Best Evidence) Interviews: Structured interviews designed to help vulnerable or young witnesses give their best possible account. The debate over whether a non-standard item (the “worry monster”) in the recording could prejudice the evidence is now clarified as subject to pragmatic judicial discretion.
• Judicial Discretion in Trial Management: Judges must balance the interests of efficiency, fairness, and the welfare of vulnerable parties. In this case, while an ideal situation (removing the toy) was not attainable, the judge’s attempt to manage the situation through directions was deemed acceptable.
• Adverse Inferences from Silence (Article 3): Traditionally, an accused’s right to remain silent cannot automatically lead to negative conclusions about their guilt. This judgment reinforces that adverse inferences can only be drawn when the jury is properly warned and when the defendant has failed to mention a key fact – a safeguard against “ambush” defences.

Conclusion

In summary, the Court of Appeal’s decision in CH, R. v ([2025] NICA 9) has set an important precedent regarding the treatment of adverse inferences derived from a defendant’s silence. While the concerns about the presence of the “worry monster” and the sufficiency of expert preparation were rejected, the court found that the failure to provide a clear and adequate adverse inference warning amounted to a serious procedural flaw.

The ruling not only quashes the convictions on the Article 3 ground, but also provides clear guidance for future cases in similar contexts. By mandating stringent judicial directions concerning how a jury may treat an accused’s “no comment” responses, and by emphasizing the need for neutrality during evidence collection involving vulnerable witnesses, this judgment underscores the balance between effective trial management and the protection of fundamental rights.

Legal practitioners and trial judges will need to adjust their protocols accordingly, ensuring that every step—from the management of witness comfort items in ABE interviews to the precise articulation of jury instructions—is handled with utmost care to safeguard a fair trial process. This decision reinforces key international standards on the right to silence and fair judicial procedures in criminal trials.