CH, R. v

Factual and Procedural Background

The Applicant, aged 81 at the time, was convicted following a jury trial of multiple sexual offences against their granddaughter, who was seven years old during the period of offending between February and April 2022. The offences included 11 counts of sexual assault of a child under 13, one count of sexual assault by penetration, and one count of inciting a child under 13 to engage in sexual activity. The Applicant denied the allegations, suggesting the complainant had been influenced by her mother. The trial was conducted before a judge and a jury, which returned a majority guilty verdict. The Applicant was sentenced to four years' imprisonment, split between custody and licence, alongside ancillary orders including disqualification from working with children and a Sexual Offences Prevention Order. The Applicant sought leave to appeal the conviction, which was initially refused by a Single Judge, leading to the renewed application considered in this appeal.

Legal Issues Presented

1. Whether the trial judge erred in failing to remedy prejudice caused by the presence of a "worry monster" toy during the complainant’s Achieving Best Evidence (ABE) interviews.
2. Whether the trial judge erred in refusing sufficient time for the defence to complete evidential preparations regarding the complainant’s alleged suggestibility.
3. Whether the trial judge misdirected the jury regarding adverse inferences drawn from the Applicant's failure to mention certain facts during police interview under caution, specifically in relation to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988.

Arguments of the Parties

Appellant's Arguments

• The presence of the "worry monster" during the complainant’s ABE interviews was prejudicial, associating the complainant with trauma or abuse, and the judge failed to provide a judicial direction or have the toy pixelated out.
• The judge prevented adequate time for the defence expert to investigate the complainant’s suggestibility by refusing an adjournment, thereby undermining the Applicant’s right to a fair trial.
• The judge misdirected the jury by allowing adverse inferences to be drawn from the Applicant’s initial "no comment" answers in police interview without proper Article 3 warnings, thus rendering the convictions unsafe.

Respondent's Arguments

• The prosecution agreed that if possible, the "worry monster" should have been removed from the ABE footage, but it was not feasible at trial; the toy acted as a comfort and did not prejudice the jury.
• The prosecution opposed the adjournment for further expert investigation, considering it unnecessary and potentially traumatic for the complainant, and argued the defence had sufficient material to test suggestibility.
• The prosecution contended that no Article 3 adverse inference direction was necessary because the Applicant did not rely on any previously undisclosed fact at trial; the "no comment" answers related only to a limited number of counts and did not trigger the statutory provision.
• They further argued that their cross-examination addressed credibility rather than inviting adverse inferences, and that the judge’s directions were fair and appropriate.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered the presence of the "worry monster" during the complainant’s ABE interviews. Both parties agreed it should ideally have been removed from the footage, but the Police Service lacked the resources to pixelate it out in time for trial. The court found that the judge exercised appropriate judicial discretion by balancing the need for expedition with fairness. The absence of a jury direction on the toy’s presence was noted as arguably poor practice, but the court concluded that no real prejudice arose as the toy was simply a comfort object without any recognized stigma that would unfairly influence the jury.

Regarding the refusal to adjourn the trial to allow the defence expert to interview relevant individuals about the complainant’s suggestibility, the court found the evidence of suggestibility weak and the expert’s requests speculative. The court upheld the judge’s discretion, noting the paramount importance of minimizing trauma to the young complainant and that the defence had access to sufficient material to test the allegations effectively during cross-examination.

The most significant analysis concerned the Article 3 adverse inference issue. The court examined the statutory framework and authoritative guidance, emphasizing that adverse inferences may only be drawn when the accused fails to mention facts later relied upon in defence. Here, the Applicant’s "no comment" answers were limited and did not conceal any such facts. The prosecution conceded that no Article 3 warning was required. However, the trial judge’s directions left open the possibility for the jury to draw adverse inferences without properly identifying the facts or giving a McGarry direction to caution the jury against unfair weight on silence. This constituted a material error. The court expressed concern that the prosecution’s cross-examination and closing submissions improperly invited adverse inferences under the guise of credibility challenges, thereby risking unfair prejudice to the Applicant. The failure to correct this during trial was regrettable.

Holding and Implications

The court dismissed grounds 1 and 2 of the appeal. It held that the presence of the "worry monster" and the refusal to adjourn for further expert investigation did not render the convictions unsafe.

However, the court granted leave to appeal and allowed the appeal on ground 3 relating to the Article 3 adverse inference direction. The court quashed the convictions due to the material errors in jury directions and the risk that the convictions were unsafe.

The court indicated it would hear submissions on whether a retrial should be ordered. No new precedent was established beyond the application and reinforcement of existing legal principles concerning adverse inferences and fair trial rights.