The Tallentire Principle: Judicial Comment on a Defendant’s Failure to Call a Witness

Introduction

Tallentire & Anor v Rex ([2025] EWCA Crim 885) presented the Court of Appeal (Criminal Division) with two practical trial-management questions:

1. When, and on what terms, may prosecution counsel and the trial judge comment on the defence’s failure to call a plainly relevant witness?
2. What is the proper scope of a lies direction where co-defendants accuse one another of fabrication?

The first appellant, Matthew Tallentire, was convicted of vaginal rape, anal rape and attempted oral rape of a 13-year-old complainant, A, at a Blackpool hotel in August 2020. Co-defendants Mark Smethurst and Heather Reynolds were convicted of cruelty to a child under 16, their liability being predicated on permitting Tallentire’s assaults. Central to Tallentire’s defence was the existence of an exculpatory phone call allegedly overheard by his partner, Abbie Hutchinson. Neither side called Ms Hutchinson, prompting jury questions and closing-speech comment. The trial judge gave a bespoke direction permitting the jury to treat the defence’s non-production of Ms Hutchinson as potential support for the Crown’s case, provided it was not the main basis for conviction. On appeal, the appellants contended that this direction (1) should not have been given; (2) was unfairly worded; and (3) was delivered at an unfair procedural moment. They also challenged the judge’s generic lies direction. The Court of Appeal dismissed all grounds, thereby crystallising what may now be called the Tallentire principle: a structured approach to judicial comment on an available but uncalled defence witness.

Summary of the Judgment

• The Court (Lord Justice Dingemans presiding) held that both Crown and defence were entitled to comment on Ms Hutchinson’s absence, and that the judge’s Gallagher-style direction was fair, balanced and necessary given the facts.
• The direction accurately reminded jurors that (a) the defence bore no burden of proof; (b) they could ignore the omission entirely; but (c) if they considered it significant, it could lend limited support to the Crown’s case on the disputed phone-call issue.
• The Court reaffirmed, then systematised, earlier authorities (Gallagher, Khan, Watson) on judicial discretion to comment where (i) the witness is obviously material, (ii) plainly available, and (iii) the fairness balance favours explanation rather than silence.
• The generic lies direction was held to be orthodox and not prejudicial; it catered equally for mutual accusations of lying and reminded the jury of the restrictive probative value of lies.
• Because Tallentire’s conviction was sound, the parasitic cruelty convictions of Smethurst and Reynolds, which turned on the rape finding, were also safe.

Detailed Analysis

A. Precedents Cited

1. Statutory Bar on Certain Comment – Police and Criminal Evidence Act 1984, s 80A: bars comment on a spouse/civil-partner’s failure to testify. The Court emphasised that the bar did not extend to an unmarried partner such as Ms Hutchinson.
2. R v Gallagher (1974) 59 Cr App R 239:
   • First authoritative statement that judges may invite the jury to consider the absence of a witness, subject to fairness.
3. R v Martinez-Tobin [1994] 1 WLR 388:
   • Lord Taylor CJ: The permissible scope and strength of comment is discretionary and fact-sensitive.
4. R v Khan [2001] EWCA Crim 486:
   • Endorsed judicial flexibility; recognised danger of dishonest evidence naming phantom witnesses in the comfort that no comment will follow.
5. R v Watson [2023] EWCA Crim 960:
   • Re-affirmed absence of a blanket prohibition on comment; emphasised trial-judge discretion and need for fairness safeguards.
6. Earlier cautionary authority R v Naudeer (1985) 80 Cr App R 9 and Whitton [1998] Crim LR 492 on spouses: used to illustrate that the statutory bar aims at domestic harmony, not wider fairness.

These authorities formed the backdrop against which Dingemans LJ distilled the fresh principle.

B. Legal Reasoning of the Court

1. Necessity of Guidance: The jury physically asked whether they would hear from Ms Hutchinson. Silence risked speculation. Both advocates had already opened the evidential vacuum; fairness required judicial curation.
2. Availability and Materiality Test: Ms Hutchinson was (i) attending daily to support Tallentire; (ii) said to have overheard a key phone call; and (iii) assessed by the Crown as unreliable but not hostile. The Gallagher/Khan line therefore justified comment.
3. Balance of Comment:
   • Reminded jury of the burden and standard of proof on the Crown.
   • Made clear they could ignore the omission completely.
   • Limited any adverse inference to the narrow phone-call issue; forbade conviction wholly or mainly on that basis.
4. Procedural Fairness: Although the direction came after speeches, (a) counsel had been consulted in the absence of the jury, and (b) defence made no application to re-address the jury. Therefore timing caused no unfairness.
5. Lies Direction: The standard four-part Lucas direction (though not named) was carefully tailored—reminding jurors:
   • Lies are not evidence of guilt unless they are deliberate and motivated by consciousness of guilt.
   • Lies may merely reflect confusion, embarrassment, or an attempt to bolster a weak but honest defence.

C. The Tallentire Principle Explained

The judgment’s real significance lies in paragraphs 42-47, where the Court reframes earlier case law into an explicit template. In synthesis:

The Tallentire Principle – When a plainly material witness is (a) demonstrably available, and (b) their evidence lies peculiarly within the defence’s knowledge, a trial judge may (not must) direct the jury that it is open to them to regard the defence’s failure to call that witness as making the relevant aspect of the defence case less likely to be true, provided:

1. The jury are reminded the defendant bears no burden of proof.
2. They are told they may equally treat the omission as irrelevant.
3. They are warned not to convict wholly or mainly because of that omission.
4. Counsel are given an opportunity to be heard on wording and timing.

Importantly, the principle slides neatly underneath the statutory bar in s 80A PACE, applying only where that bar has no purchase.

D. Potential Impact

1. On Trial Advocacy – Defence teams will need to make strategic, documented decisions about calling supportive witnesses. If the witness is manifestly available and centrally relevant, silence may now invite a Tallentire direction.
2. On Prosecution Strategy – The Crown may more confidently explore obvious omissions without fear of triggering a mistrial, provided they remain within the new guardrails.
3. On Judicial Practice – Expect increased use of split summings-up or pre-summing directions conferences to give counsel clarity and reduce the risk of post-speech surprise.
4. On Appellate Litigation – Future appeals will likely focus on whether the four-limb Tallentire template was respected. Failure in any limb could found an arguable ground of unsafe conviction.
5. On Legal Education – Criminal-procedure syllabi will update their teaching of Gallagher and Khan with the more structured Tallentire principle.

Complex Concepts Simplified

• Burden of Proof: In criminal cases the prosecution must prove guilt beyond reasonable doubt. The defence owes no duty to prove innocence or call any evidence.
• Adverse Inference: A modest, fact-specific conclusion the jury may draw (never must) from a party’s omission. It is weaker than direct proof and cannot alone ground conviction.
• Lies Direction (Lucas direction):
  1. Is the alleged lie deliberate?
  2. Relates to a material issue?
  3. Motivated by consciousness of guilt/fear of truth?
  4. No innocent explanation?
  Only if all four elements are satisfied can the lie lend support to guilt.
• No Property in a Witness: Either side may call a witness unless privileged or otherwise barred; there is no exclusive ownership of testimony.
• Spouse/Civil-Partner Comment Bar: Statutory rule (PACE s 80A) forbids the Crown from criticising a defendant’s spouse or civil partner for not testifying—an exception built on protecting marital/civil solidarity.

Conclusion

Tallentire & Anor v Rex fortifies the discretionary power of trial judges to guide juries where a key defence witness is conspicuously absent. By articulating the Tallentire principle, the Court of Appeal balances:

• The defendant’s fundamental right to silence and the presumption of innocence;
• The jury’s legitimate curiosity about missing, material evidence; and
• The broader public interest in preventing fabricated defences reliant on uncalled phantom witnesses.

The case also demonstrates that a conventional lies direction, carefully delivered, remains a robust tool even amid mutually accusatory defences. Practitioners should therefore expect more proactive judicial engagement with witness-omission issues, and must prepare to justify tactical decisions in open court. In the wider tapestry of criminal jurisprudence, Tallentire provides a clear, four-step script for courts wrestling with the perennial tension between fair trial rights and evidential completeness.