Tallentire& Anor v Rex

Factual and Procedural Background

This appeal concerns two appellants convicted following a trial in the Crown Court at Preston. The first appellant was convicted of multiple counts of rape and attempted rape, while the second appellant and a co-defendant were convicted of cruelty to a person under 16 years contrary to the Children and Young Persons Act 1933. The victim, anonymised as A, was 13 at the time of the events in August 2020 during a holiday in Blackpool with the second appellant and co-defendant. The first appellant met the group and subsequently was alleged to have committed the offences against A in a hotel room. The appellants were sentenced in July 2024 to imprisonment terms of 9 years and 2 years respectively.

The trial involved disputed evidence about the events of that night, including the presence and conduct of a witness, the first appellant's partner, referred to as Ms Hutchinson, who was not called to give evidence. The jury sent a note querying whether Ms Hutchinson would give evidence, prompting judicial directions on the failure to call her as a witness. The judge also gave directions regarding alleged lies told by the defendants.

Legal Issues Presented

1. Whether prosecuting counsel and the trial judge were entitled to comment on the defence's failure to call a particular witness (Ms Hutchinson).
2. The appropriateness and content of the directions given to the jury concerning the failure to call that witness.
3. The propriety and effect of the judge's directions on lies told by co-defendants.

Arguments of the Parties

Appellant's Arguments

• The first appellant contended that the judge should not have given a direction about Ms Hutchinson.
• The appellant argued that the content of the direction was incorrect because it omitted suggested additional points from the defence.
• The appellant submitted that the timing of the direction was unfair as it was given after the closing speeches, without the defence knowing what direction would be provided.
• It was accepted there was no duty on the prosecution to call Ms Hutchinson, but equally no duty on the defence to call her.
• The appellant did not challenge prosecuting counsel’s comments but argued the judge’s directions were flawed.

Co-Appellant's Arguments

• The second appellant argued that his conviction was dependent on the first appellant’s guilt and should be quashed if the first appellant’s conviction was unsafe.

Prosecution's Arguments

• The prosecution submitted that the judge was correct to give directions about Ms Hutchinson given the jury’s questions and the comments made by both prosecution and defence counsel.
• It was submitted that the judge’s directions were fair and balanced.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Naudeer (1985) 80 Cr App R 9	Judicial comment on failure to call a spouse or civil partner should be given with great circumspection.	Distinguished as Ms Hutchinson was not a spouse or civil partner; court confirmed statutory prohibition did not apply.
R v Gallagher (1974) 59 Cr App R 239; [1974] 1 WLR 1204	Permissibility of a judge telling the jury they may take into account failure to call a witness.	Supported the judge's discretion to comment on failure to call Ms Hutchinson.
R v Martinez-Tobin [1994] 1 WLR 388	Discretion of judge in permitting comment on failure to call witness depends on case circumstances.	Emphasised judge's discretion and fairness considerations in this case.
R v Khan [2001] EWCA Crim 486; [2001] Crim LR 673	Balancing dangers of adverse comment and need to warn jury not to speculate; comment on failure to call relevant witness may be permitted.	Reinforced judge’s discretion and importance of warnings to jury, applied in approving judge’s directions.
R v Watson [2023] EWCA Crim 960; [2024] 1 Cr App R 10	No authority prohibits appropriate comment on failure to call witnesses; circumstances depend on case.	Confirmed no prohibition on judge’s comment here; justified directions given.

Court's Reasoning and Analysis

The court began by considering the legal framework around comments on failure to call witnesses, noting the statutory prohibition in section 80A of the Police and Criminal Evidence Act 1984 applies only to spouses or civil partners, which did not include Ms Hutchinson. The court reviewed authoritative case law confirming that judges have discretion to comment on failure to call a witness, provided fairness is maintained and the jury are properly directed.

The court found that the jury’s question about Ms Hutchinson demonstrated that directions were necessary to address the issue fairly. Ms Hutchinson was available to both parties and was the first appellant’s partner, attending court to support him. The first appellant’s late evidence regarding a telephone call with the victim, witnessed by Ms Hutchinson, was inconsistent with his earlier police interview and made her potential evidence highly relevant.

Given these factors, the judge was entitled to give a direction allowing the jury to consider the failure to call Ms Hutchinson in assessing the credibility of the first appellant’s account. The direction appropriately reminded the jury that there was no burden on the defendant to call witnesses and that they should not convict solely or mainly on this point. The court rejected submissions that the direction’s content was inadequate or that its timing was unfair, noting that both counsel had addressed the issue before the judge’s ruling and there was no request for further opportunity to address the jury.

Regarding the lies direction, the court found it was properly formulated to caution the jury that lies by defendants do not prove guilt but may be considered if deliberate and intended to conceal guilt. The court emphasised that the convictions of the second appellant and co-defendant depended on the first appellant’s guilt, and no further directions were necessary.

Holding and Implications

The court DISMISSED the appeals against conviction for both appellants.

The judgment confirms the permissibility of judicial comment and directions on the failure to call a relevant witness, provided the jury is properly directed on the burden of proof and the discretion involved. The decision underscores the importance of context and fairness in such directions and affirms the appropriateness of lies directions in cases involving conflicting testimony. No new precedent was established beyond the application of existing principles to the facts of this case.