Matthew Tallentire & Anor v R [2025] EWCA Crim 885

[2025] EWCA Crim 885Case Nos: 202400670 B3 & 202400714 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PRESTON CROWN COURT
His Honour Judge Medland KC
Ind. No. T20237045
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/07/2025
Before
LORD JUSTICE DINGEMANSMR JUSTICE SAINIHIS HONOUR JUDGE CHAMBERS KC(Recorder of Wolverhampton)
Between
Matthew TallentireAppellantsMark SmethurstAppellantRexRespondent
Mr Calder instructed by the Registrar of Criminal Appeals for Matthew TallentireMiss Fitzpatrick instructed by the Registrar of Criminal Appeals for Mark SmethurstMr Davis (who did not appear below) instructed by the Crown Prosecution Service for ProsecutionHearing Hearing date : 3 July 2025
Approved JudgmentThis judgment was handed down remotely at 12.00 noon on 14/07/2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
[1]This is the hearing of an appeal against conviction which raises issues about:(1) prosecution and judicial comments on the defence failure to call a witness; and(2) directions on lies told by co-defendants.[2]On 26 January 2024 the first appellant, Matthew Tallentire, was convicted of one count of vaginal rape, one count of anal rape, and one count of attempted oral rape on 26 January 2024 in the Crown Court at Preston following a trial before His Honour Judge Medland KC and a jury. The second appellant, Mark Smethurst, and a co-defendant Heather Reynolds, were both convicted of cruelty to a person under 16 years contrary to section 1(1) of the Children and Young Persons Act 1933. The victim, who I will refer to as A, has the benefit of lifelong anonymity pursuant to the provisions of the Sexual Offences Amendment Act 1992.[3]On 26 July 2024 Mr Tallentire was sentenced to 9 years imprisonment, concurrent on each of the three counts. Consequential orders were made. Mr Smethurst and Ms Reynolds were each sentenced to 2 years imprisonment. The factual background[4]A, then aged 13 years, was known to Mr Smethurst and Ms Reynolds. Mr Smethurst and Ms Reynolds were in a relationship. On 7 August 2020, during the COVID-19 pandemic, A, with her mother’s permission, went for a short holiday with Mr Smethurst and Ms Reynolds to Blackpool.[5]On 8 August 2020 they went to the beach. A said that they met Mr Tallentire and his partner Abbie Hutchinson. A said that she was given alcohol. She was also given some cannabis to smoke. Later on, Ms Reynolds suggested that she go back to their hotel room and change her clothes. It was also suggested that A should put on some make-up so that she would look older and they could visit some pubs.[6]During the evening they visited a number of pubs and A continued to drink and smoke cannabis. She said that the others were taking cocaine. A said that they went back to Mr Tallentire and Ms Hutchinson’s home. Due to the amount of alcohol that she had consumed, she went upstairs to the bathroom and vomited. A noted that there was a bedroom for a baby at the address.[7]At the end of the night, A said that she travelled by taxi to the hotel with Ms Reynolds, Mr Smethurst and Mr Tallentire. She asked Mr Tallentire why he was coming with them and he said that he needed to use a cash machine. He did not do so and ended up at their hotel room with them in the early hours of the 9 August 2020.[8]The hotel room contained a double bed and a bunk bed. A went to sleep on the lower part of the bunk bed still wearing her clothes. Eventually Mr Smethurst and Ms Reynolds got into the double bed. A thought that Mr Tallentire was going to sleep on the top bunk bed and so handed him a duvet. However she said that he got into bed with her. He was calling her “babe” and trying to touch her. She said that she told him “no” and to get off her. A said that Mr Smethurst was asleep but at one point she called out to Ms Reynolds to get Mr Tallentire off her. She said that Ms Reynolds simply responded by laughing.[9]A said that Mr Tallentire pinned her down and pulled her dress off. He moved her underwear to the side and vaginally raped her. He did not ejaculate (count 1). He then turned A around so that he was behind her and anally raped her (count 2). A continued to tell him no and to get off of her. A said that he held her by her neck and tried to force her to perform oral sex on him. She was resisting throughout and in the end he was unable to force her to do so (count 3). A said that Mr Tallentire vaginally and anally raped her numerous times over the course of approximately three and half hours. Mr Calder, on behalf of Mr Tallentire, pointed out some inconsistencies in A’s respective accounts, but it was not suggested that these meant that the jury would not be able to accept A’s evidence.[10]A said that Mr Tallentire went to sleep and left the following morning. She travelled home with Ms Reynolds and Mr Smethurst. At one point she heard Ms Reynolds say something about her “shagging the olders.” Other than this comment, A said that nothing else was said about the incident.[11]In November 2020 A reported the allegations to her boyfriend and her mother.[12]Mr Tallentire was traced by the police on 5 May 2021, arrested and interviewed on the following day. He stated that he had met A, Ms Reynolds and Mr Smethurst on Blackpool beach and they spent the afternoon and evening drinking together. He said that A had told him that she was 19 years old which the co-defendants had confirmed. Mr Tallentire accepted that he had gone back to their hotel room but denied that any sexual activity occurred with A. He said that at some point, the co-defendants started arguing and as a result, he left the hotel to go home. Mr Tallentire agreed that there had been no contact with A since that night.[13]Mr Smethurst was arrested and interviewed on 16 July 2021. He said that he had travelled to Blackpool with A and Ms Reynolds. He said that they went to the beach on 8 August and met a couple of males that he knew and spoke to a couple with a child. He said that A had a little bit of alcohol but not too much as she was underage. A went back to the hotel to change her clothes as she had been in the sea earlier that afternoon and she did not return. He said that they called her and looked for her but they could not find her. They went to a pub and later went back to the hotel to sleep. The following morning they woke up to discover that A had returned to the hotel but she refused to tell them where she had been. He denied that he had met Mr Tallentire or anyone called Ms Hutchinson and denied that Mr Tallentire had travelled back to the hotel with them. He agreed that there had been no contact with A since the alleged offence.[14]In a defence statement uploaded on 29 June 2023, which was signed on 5 July 2023 (so over two years after his arrest and interview but about six months before trial), Mr Tallentire said that a few days after 9 August 2020 A had called him. Mr Tallentire had been in the company of Ms Hutchinson when A called, and he had put the call on loudspeaker so that Ms Hutchinson could hear it.[15]The prosecution called A, and her mother. A’s boyfriend, to whom the first complaint was made, was not called to give evidence and this became the subject of defence comment at the trial. The police officer to whom A first made her complaint was called, and there was evidence from DC Shaw. She said that a number attributed to Ms Hutchinson, Mr Mr Tallentire’s partner, was found in A’s phone, who could not remember how it got there. It was used to help locate Mr Tallentire.[16]During the course of the prosecution case the jury sent a note asking if they were going to hear evidence from Ms Hutchinson. The judge replied that they had not yet heard from all witnesses, and they should wait until the evidence had concluded.[17]It is apparent that the prosecution had obtained a witness statement from Ms Hutchinson. It appears that Ms Hutchinson had been inadvertently warned to appear as a prosecution witness but was not in the event called. There has been no suggestion that the prosecution had to call Ms Hutchinson given the view they had formed of her as a witness, but that is a different point from whether the prosecution should have commented on the failure of the defence to call Ms Hutchinson. Mr Tallentire’s case[18]Mr Tallentire gave evidence broadly in accordance with the account provided in his police interview. He accepted that he and Ms Hutchinson had met A and the co-defendants and that they had spent the afternoon drinking at the beach and then at his home. He had been told that the complainant was 19 years old. He said that he returned to their hotel room in order to carry on drinking. Ms Hutchinson had decided to stay at home and go to bed. He said that the complainant was acting in a flirtatious manner towards him and he politely rejected her advances. He wondered whether this may have caused her to make this false allegation.[19]Mr Tallentire said that Mr Smethurst and Ms Reynolds were lying when they denied meeting him on 8 August 2020. He said that A had subsequently called him. He had been in the company of Ms Hutchinson at the time and had put the call on loudspeaker so that Ms Hutchinson could hear it.[20]Thereafter, Mr Tallentire had contacted Blackpool CID to report the call from A, at Ms Hutchinson’s suggestion, as he had not mentioned this in his police interview. He said no one from the police station had been in contact with him. Evidence was also called from DS Houldsworth in relation to the fact that there was no record of any contact from Mr Tallentire to Blackpool CID. She said that it was possible that the call may have gone to the office but nobody had raised it with her or anyone else.[21]Mr Tallentire was asked about Ms Hutchinson in cross examination by prosecuting counsel. Mr Tallentire confirmed that Ms Hutchinson was attending court and was supporting him. The case for Mr Smethurst and Ms Reynolds[22]The case for Mr Smethurst and Ms Reynolds was that they had travelled to Blackpool with A and the complainant for a couple of days to enjoy a short break. Mr Smethurst said that he had not had any involvement in the plans for the trip. He said that A went out on her own for around 10 hours on the day of the alleged incident and therefore was not in his or Ms Reynolds’ care. She returned to the hotel room at some point when he was asleep. He denied meeting Mr Tallentire and therefore denied that he had returned to their hotel room.[23]This defence from Mr Smethurst and Ms Reynolds was obviously inconsistent with Mr Tallentire’s defence. Mr Smethurst and Ms Reynolds also relied on agreed facts in relation to a letter sent to the complainant’s General Practitioner from November 2019 which stated that recently A was reported going on “midnight walks” and “to be missing 1–2 times per week.” Discussions about directions[24]It is apparent that there were some email exchanges between counsel and the judge about directions. Mr Calder, counsel on behalf of Mr Tallentire, had suggested that the judge give a direction about not speculating about what a witness might have said in relation to Ms Hutchinson, but there was no response to that suggestion from either the prosecution or the trial judge. The speeches[25]During the speech by trial counsel for the prosecution there was comment on Mr Tallentire’s failure to call Ms Hutchinson. “… the first time the defendant ever raised the issue of a call to Detective Constable Houldsworth was last week whilst this trial was already ongoing. In all probability the penny dropped. And as you know, Detective Constable Houldsworth was brought to court yesterday. She has no recollection of any such call. She has checked her day book and emails and no such call is recorded. She would, she says, have emailed the officer in the case if there had been such a call. There was none. The prosecution say there was no such call and of course if there was no such call you are back to, “I had no contact with her after the 9th, telephone or otherwise.” Yet he wants to suggest that [A] rang him from Manchester and so important was it he put it on loudspeaker so that Abi could hear it. It is correct you should not and cannot speculate about what a witness not called might have said but it is not speculation to say that a defendant has the right to call a witness who has relevant information. They don’t have to, it doesn’t switch the burden of proof in any way but they have the right to call evidence if they choose. It is not speculation to say that Matthew Tallentire asserts she heard the conversation because he put the phone on loudspeaker. It is not speculation to say that in his evidence he said that it was Abi who raised the importance of the call a few days after the interview which prompted him in essence to make the disputed call to Detective Sergeant Houldsworth, and it is not speculation to say that Abi has been with him every day at court during the trial giving him support. Furthermore, the prosecution say that if Abi remembered this call and prompted him to telephone the police about it, it is quite extraordinary that he, the defendant, didn’t get Abi to go to the police and provide this information, and he admits that he did not. He said that having made the call he just left it with the officer. You might say, “Well, I can understand that for a few weeks” – but three-and-a-half years? No. It all shows, the Crown say, that [A] is telling you the truth when she says there was no contact between her and Matthew after the Blackpool trip, which is what he admitted in his interview.”[26]Mr Tallentire’s counsel also commented on the failure to call Ms Hutchinson:
“You have heard reference to Abi Hutchinson and a note has been sent asking whether or not she would give evidence. Well, we know she hasn’t given evidence. The prosecution again make various points to you. While reminding you that you mustn’t speculate, they point out that she has been at court, she is here. Well, yes, she is. Have the prosecution called her? Have they put her in the witness box to support the prosecution case? No, they haven’t – no, they have not. Now, as far as Abi Hutchinson is concerned, and again you will receive a direction from his Honour, we don’t know what she says – you have to put her out of your mind entirely. The only relevance I would suggest to you respectfully is that when you are asking as a whole whether the prosecution has proved its case – because again it is not for Mr Tallentire to call witnesses to prove the truth of what he is saying, that is not how it works – if, when you are asking yourself “Has the prosecution done a good enough job?” you may take into account the fact they haven’t put before you the type of evidence that you would have liked to have seen. The type of evidence that could have really supported their case.”
[27]The next day, because a juror was absent, the issue of directions in respect of Ms Hutchinson was considered. The judge heard argument about whether he should give directions about Ms Hutchinson. The judge ruled:
“Mr. Cadwallader focuses his comments in his closing speech and his response to this legal argument directly to the issue of the telephones, making these points: that during his evidence, Tallentire stated that Ms. Hutchinson was with him when he received a call from [A] after the events in Blackpool. I pause here to observe that that is a matter of high importance in this case. [A] denies having made any such call, and its relevance if she did is so obvious that I need not here state it, but to go back to Mr. Tallentire’s account, that he also stated that he called Blackpool CID after his interview to discuss his telephone [call], which he had not mentioned in that interview. That again is a matter of some importance, and there is a contest to be had between the voracity and credibility of his evidence on that point and the evidence of Detective Sergeant Houldsworth. His account was that he had stated that Ms Hutchinson was the person who had reminded him to do this, thus adding weight to his assertion that that was what he did. The prosecution does not accept that these assertions by Matthew Tallentire as to the call from [A] and the call that he says he made to Blackpool CID are true. The prosecution assert that his failing to call Ms Hutchinson as a witness to support his account of these two episodes is significant. They argue that she was available to him. She could have given evidence in support of his account as to those two points. It seems to me that this is a case where this issue has to be addressed head on. It seems to me, with my understanding of this case, that it would be quite wrong simply to tell the jury that they must not have any regard to Ms Hutchinson not being called as a witness, given the nature of the defendant’s evidence on those two specific points. Accordingly, I take the view that it would be correct and proper for me to give the jury a direction to that extent, namely that it is open to them to take account of the failing to call Ms Hutchinson in respect of those two matters, but they do not have to …”
[28]Mr Calder submitted that the judge should incorporate some additional matters suggested by the defence. These were to the effect that if A had told the truth, Ms Hutchinson could corroborate the prosecution case, and that there was no property in a witness. The summing up[29]There was no split summing up, and after the speeches had been given and the day had been lost because of the absence of the juror, the judge summed up.[30]The judge did give directions about Ms Hutchinson. The judge said:
“Because a defendant does not bear the burden of proving their innocence, they are not required in law to call witnesses to support their account. However, there is one subject matter which I need to address relating to Tallentire only. It is irrelevant in respect of Smethurst or Reynolds. During his evidence, Matthew Tallentire stated that Abi Hutchinson was with him when he received a call from [A] after the events in Blackpool and that he put his phone on speaker so she could hear it. He also stated that he called Blackpool CID after his interview to discuss his telephone [call] which he had not mentioned in that interview. He stated that Abi Hutchinson was the person who reminded him to do this. Now the prosecution does not accept that these assertions by Matthew Tallentire as to the call from [A] and his call to Blackpool CID are true. The prosecution asserts that his failure to call Abi Hutchinson as a witness to support his account of these two episodes relating to the telephone call from [A] and his call to Blackpool CID is significant that it tends to demonstrate that his account as to these matters is untrue. They argue that she was available to him as a witness and, if he had told you the truth in his evidence as to the telephone matters, she could have corroborated that account. Thus, by failing to call her in support, it makes it less likely that he is telling you the truth about these two matters. The defence for Matthew Tallentire does not agree, they rely on him not being under an obligation to call witnesses in support of his case and that he bears no burden of proving his innocence. Secondly, they argue, that Miss Hutchinson was available also to the prosecution to call as a witness. They argue that Abi Hutchinson not being called as a witness by Matthew Tallentire is a red herring and that you should judge his evidence as a whole, and specifically as to these two points, on its own merits and ignore that he didn’t call Abi Hutchinson. It is for you to decide whether to hold against him that he didn’t call her as a witness in support. If you think it of no importance, ignore it. If you think it is important, then you may take it into account against him by way of it reflecting on the truthfulness of his account as to these two points relating to the telephone calls. If you do decide to hold it against him, you mustn’t convict him wholly or mainly on account of it, but it can amount to some support for the prosecution’s case against him if you think that right.”
[31]The judge also gave a lies direction in respect of all three defendants. The judge said:
“It is said by Matthew Tallentire, through his counsel, to Mark Smethurst and Heather Reynolds that they have lied during their evidence. Mark Smethurst specifically put to Matthew Tallentire that he had tailored his account to fit around the prosecution evidence, and it is said by the prosecution that Matthew Tallentire, Mark Smethurst and Heather Reynolds have each lied. If you are sure a defendant has deliberately lied to you, that does not of itself prove that the defendant is guilty. You may hold a lie against a defendant if you think it right to do so, but only if you are sure that the defendant deliberately lied because they had no answer to the evidence against them or none which could withstand scrutiny because they are guilty and are seeking to hide that guilt behind the lie. If it might be that any lies told were because the defendant was flustered, or embarrassed, or confused, or trying to bolster an otherwise true defence, then do not hold the lies told for such reasons against them. If, however, you are sure that the defendant lied in an attempt to cover up their guilt, then it could amount to some support for the case against that defendant, and I remind you also that you mustn’t convict any such defendant wholly or mainly because of a lie or lies told, but it can amount to support for the case against them if you think that right.”
Respective cases on appeal[32]Mr Calder on behalf of Mr Tallentire submitted that the conviction was unsafe because:(1) the judge should not have given a direction about Ms Hutchinson;(2) the content of the direction that was given was wrong, because it ignored additions which had been suggested on behalf of Mr Tallentire; and(3) the timing of the direction was unfair, because it followed the speeches which had been given, and it was not known what direction, if any, would be given by the judge. Mr Calder accepted that there was no duty on the prosecution to call Ms Hutchinson as a witness, having regard to well-known principles and the fact that Ms Hutchinson was supporting Mr Tallentire, but submitted that there was equally no duty on the defence to call Ms Hutchinson. Mr Calder did not criticise the comments made by prosecuting counsel, but submitted that the judge had gone wrong with the directions.[33]Miss Fitzpatrick on behalf of Mr Smethurst pointed out that Mr Smethurst’s conviction was parasitic on Mr Tallentire’s guilt. This was because the case of cruelty against Mr Smethurst and Ms Reynolds had been put on the basis that they had permitted Mr Tallentire to rape A. Therefore if Mr Tallentire’s conviction was quashed, Mr Smethurst’s conviction was unsafe and should also be quashed.[34]Mr Davis, who did not appear below, submitted on behalf of the prosecution that it was obvious from the jury’s question that something would need to be said by the judge about Ms Hutchinson, and that was made even clearer by the questions asked by prosecuting counsel about whether Ms Hutchinson was in court and supporting Mr Tallentire. It was apparent that both prosecuting and defence counsel had commented on the fact that Ms Hutchinson had not given evidence, and the judge had therefore properly addressed the matter, and had done so in a fair and balanced manner.[35]We are very grateful to Mr Calder, Miss Fitzpatrick and Mr Davis, for their helpful written and oral submissions. Relevant provisions of law[36]Although the issue in this appeal relates to the directions given by the judge about the failure to call a witness, the logical starting point is whether it is permissible for counsel to comment on the defendant’s failure to call a witness. The court was referred to relevant authorities about comments made by prosecuting counsel about the failure to call a witness, and the directions that might be given by a judge about such a failure.[37]So far as comments by prosecuting counsel on the failure to call a witness are concerned there is a statutory prohibition, now set out in section 80A of the Police and Criminal Evidence Act 1984, preventing prosecuting counsel from commenting on the failure of a spouse or civil partner of a person charged in any proceedings to give evidence, see generally Archbold Criminal Pleading Evidence and Practice 2025 4-425 and Blackstone’s Criminal Practice 2025 D18.15-18.19. This prohibition does not extend to unmarried partners, or persons with whom the defendant has children. Parliament has set the limit at spouses and civil partners, mirroring the exemption from liability for conspiracy in section 2(2)(a) of the Criminal Law Act 1977. It was therefore common ground that this statutory prohibition did not apply to prosecuting counsel’s comment on the defence’s failure to call Ms Hutchinson.[38]It might be noted that the prohibition on counsel for the prosecution commenting on the failure to call a spouse or civil partner, does not prevent a judge commenting on such a failure, and if the judge commented that might even subsume an error by counsel in commenting in breach of the statutory prohibition, see Whitton [1998] Crim LR 492. That said if a judge does make such a comment on the failure of a spouse or civil partner to give evidence, it should be after a “great deal of circumspection”, see R v Naudeer (1985) 80 Cr App R 9.[39]In R v Gallagher (1974) 59 Cr App R 239; [1974] 1 WLR 1204 the Court of Appeal confirmed that “it is permissible for a judge in an appropriate case to tell the jury that they are entitled to take into account the fact that a potential witness who has not been called has not indeed been called”. Lord Taylor CJ noted in R v Martinez-Tobin [1994] 1 WLR 388 that the dividing line between permissible and impermissible comment was not easily discernible. He recorded that “the nature and strength of such comment must be a matter for the discretion of the judge and will depend on the circumstances of the individual case.”[40]In R v Khan [2001] EWCA Crim 486; [2001] Crim LR 673, the Court of Appeal considered a number of earlier authorities and addressed the problem of commenting on the absence of a witness being called by the defence. It was said “there is no simple answer to the problem and much depends on the judge’s sense of fairness in the particular situation … the dangers of making adverse comments and of failing to warn the jury not to speculate will usually be the paramount consideration. On the other hand, now that a defendant’s failure to give an explanation in interview or his failure to disclose his case in advance may be the subject of comment, the case for permitting comment on the failure to call an available and obviously relevant witness may be stronger. The absence of power to comment would be an encouragement to dishonest evidence naming persons alleged to know of relevant events, if they can be named in the certain knowledge that the jury will be directed not to speculate on why they have not been called”. The protection of reminding the jury of the burden of proof and inviting submissions before a comment is made were emphasised.[41]In R v Watson [2023] EWCA Crim 960; [2024] 1 Cr App R 10 Macur LJ reviewed a number of previous authorities and held that there was no authority prohibiting appropriate comment regarding a defendant’s failure to call witnesses and, at paragraph 37 of the judgment, the court declined to specify the circumstances in which it would be appropriate to make a comment on the failure to call a witness.[42]It is apparent from this review of the authorities that a judge may, as a matter of discretion, and depending on the judge’s assessment of fairness in the particular circumstances, comment on the failure of the defence to call a witness. If a judge is intending to make such a comment, counsel for the defence should be given an opportunity, in the absence of the jury, to address whether a judge should in fact make a comment. If the judge does make a comment the judge should remind the jury that there is no burden of proof on the defendant. What fairness requires will obviously depend on the circumstances, but it will not be fair to make an adverse comment about the failure to call a witness who is not available to be called. It is more productive for prosecution, defence and judge to consider the evidence that has been called, rather than the evidence which has not. A permissible direction on the failure to call Ms Hutchinson[43]We consider that, in the particular circumstances of this case, the judge was entitled to comment on the failure to call Ms Hutchinson as a witness. It was apparent, from the note sent during the prosecution case, that the jury were wondering whether they would hear evidence from Ms Hutchinson. The evidence showed that Ms Hutchinson was available to be called as a witness, by either prosecution or defence. The evidence showed that Ms Hutchinson was Mr Tallentire’s partner and that she was attending court to support Mr Tallentire. It was accepted that the prosecution was not under an obligation to call Ms Hutchinson, given the view that they had formed of her evidence. Both counsel for the prosecution and counsel for the defence had commented on the failure of the other side to call Ms Hutchinson.[44]It is also apparent that Mr Tallentire’s case on the phone call after 9 August 2020 from A was:(a) different from what he had said when he was interviewed by the police, when he agreed that there had been no contact with A after the alleged offences;(b) if true, would suggest that his case about A (namely that she had flirted towards him, but he had politely rejected her advances) was likely to be correct; and(c) was all witnessed by his partner Ms Hutchinson, who had also met A on the beach.[45]In these circumstances it was apparent that the judge was going to have to give the jury directions about Ms Hutchinson, and that it was fair to do so. We therefore reject the submission that the judge should not have given a direction.[46]As to the contents of the direction, set out in paragraph 30 above, it is apparent that the judge reminded the jury that a defendant does not have to call witnesses. The judge set out a fair summary of the prosecution case, namely that if Mr Tallentire’s late evidence was true, the jury might have expected to have heard from Ms Hutchinson about the phone call. The judge also set out a fair summary of the defence case, namely that there was no obligation to call Ms Hutchinson, the prosecution had not called Ms Hutchinson, and that Mr Tallentire’s evidence should be judged on its own merits. The judge told the jury that it was for them to decide what to make of the point, that if they thought it was of no importance they should ignore it, but that they were entitled to take account of it when assessing Mr Tallentire’s account of the phone call with A. The judge reminded the jury that they should not convict Mr Tallentire wholly or mainly because of it. We do not consider that the judge was required to add in the further directions suggested by the defence. This is because the judge had covered all of the material matters in the direction.[47]In our judgment this direction and comment by the judge was a proper direction in this case. It specifically reminded the jury of the respective cases and made it clear that it was not the main part of the case against Mr Tallentire. We therefore reject the submission that the content of the direction was wrong.[48]Finally we do not consider that the timing of the direction was unfair. It was apparent from the jury’s question about Ms Hutchinson and the cross examination of Mr Tallentire by prosecuting counsel, that the absence of Ms Hutchinson’s evidence was an issue.[49]We agree that when both prosecuting and defence counsel addressed Ms Hutchinson’s absence as a witness, counsel did not have the judge’s final directions. In that respect there are many advantages in a split summing up, because counsel can tailor their speeches to the directions given by the judge. It is also apparent from the terms of Mr Calder’s closing speech that he was then expecting that the judge might give a direction to the effect only that the jury should not speculate about what Ms Hutchinson might have said. However the judge addressed with counsel, in the absence of the jury, whether he should give a direction and its terms, and there was no request for an opportunity to add to the closing speech on behalf of Mr Tallentire to address the jury on that specific matter.[50]In all of these circumstances we do not consider that the judge erred in giving the direction about Ms Hutchinson that was given, or that the direction made Mr Tallentire’s conviction unsafe. Lies direction[51]The direction given by the judge is set out in paragraph 31 above. That direction set out fairly that Mr Tallentire on the one hand, and Mr Smethurst and Ms Reynolds on the other hand, were accusing each other of lying. The jury were directed that even if they were sure that Mark Smethurst and Heather Reynolds had lied about not meeting Matthew Tallentire, that did not itself prove that they were guilty, and it followed that if they were lying it did not prove that anyone else was guilty.[52]This is particularly so when the convictions for Mr Smethurst and Ms Reynolds depended on the jury being sure that Mr Tallentire was guilty of the offences alleged against him. It was open to the jury to conclude that Mr Tallentire had gone back to the hotel room with Mr Smethurst and Ms Reynolds and that they had lied about that matter, but that Matthew Tallentire had not raped A in the room. In the circumstances, no further direction was required.[53]The lies direction was a proper direction in this case, and it did not render the conviction unsafe. Conclusion[54]For the detailed reasons set out above, Mr Tallentire’s appeal against conviction is dismissed. It follows that Mr Smethurst’s appeal against conviction is also dismissed.