JURY DIRECTIONS

A sentence of six years’ imprisonment for gross negligence manslaughter was appropriate where a restaurant owner had persistently failed over several months to take steps to ensure that customers suffering from peanut allergies were not served with food containing peanuts. Even after one customer had suffered a violent allergic reaction, he did not improve his systems, with the consequence that another customer died after suffering an allergic reaction.

[2017] EWCA Crim 1783

The appellant’s conviction for indecent assault was rendered unsafe by directions of the trial judge which were unduly favourable to the complainant.

[2017] EWCA Crim 1774

A sentence of four years’ imprisonment was appropriate in the case of a 25-year-old gang member who had pleaded guilty to firing an imitation firearm at rival gang members during a street fight. Although gang members had to understand that the use of imitation firearms would be severely punished, the offender’s lack of previous convictions made a longer sentence inappropriate.

[2017] EWCA Crim 1713

An optometrist was not guilty of the gross negligence manslaughter of a young boy where she had breached her statutory duty of care to examine the internal structure of his eyes as part of a routine eye examination and consequently failed to identify an abnormality on the optic nerve which ultimately led to his death. That was not enough to found a case of gross negligence manslaughter as there had not been a “serious and obvious risk of death” at the time of the breach.

[2017] EWCA Crim 1168

A judge’s intervention and direction to the jury during defence counsel’s closing speech did not affect the safety of a defendant’s conviction. She ought to have put to counsel what she intended to say before she said it, and if she intended to criticise him in front of the jury, she ought to have raised that with him first. Overall, however, the summing-up was thorough and fair.

[2017] EWCA Crim 1174

The Criminal Cases Review Commission had been justified in not referring the claimant’s conviction for murder to the Court of Appeal.

[2017] EWHC 1219 (Admin)

A fraud conviction was rendered unsafe by the judge’s conduct in questioning the defendant in a way that went beyond elucidation of the evidence to undermining the defence, and in muddling his directions to the jury so that it was left open to them to draw adverse inferences from the defendant’s silence without the safeguards required by the Criminal Justice and Public Order Act 1994 s.34.

[2017] EWCA Crim 632

The risk of prejudice to a defendant following widely publicised remarks by the UK Prime Minister about corruption in Nigeria, made at the same time as a trial for corruption concerning the Nigerian mint, had been reduced to the absolute minimum by the judge’s careful jury directions. The fact that adverse publicity might risk prejudicing a fair trial was no reason for not proceeding with the trial if the trial judge had concluded that a fair trial was possible.

A judge had not erred when explaining to the jury the meaning of “harassment” in relation to an allegation of stalking involving serious alarm or distress contrary to the Protection from Harassment Act 1997 s.4A.

[2017] EWCA Crim 493

A professional footballer was refused permission to appeal against his conviction for sexual activity with a child under 16. Having permitted cross-examination on the timing of the footballer’s pleas of guilty to related grooming offences, it was unfortunate that the judge had not directed the jury on how to approach late guilty pleas. It would also have been wiser for the judge not to have given a direction in relation to adverse inferences, but neither error imperilled the safety of the conviction.

[2017] EWCA Crim 191

The risk that a jury considering a charge of sexual assault had been deprived of evidence relevant to its deliberations, including a refusal to allow the defendant to adduce character witness evidence, rendered the conviction unsafe. The court considered the law relating to character evidence, and the distinction between evidence as to a defendant’s general reputation and evidence of specific acts or individual opinions regarding the defendant.

[2017] NICA 19

Convictions for robbery and murder were not rendered unsafe by the admission into evidence of a co-accused’s guilty plea. The Court of Appeal also considered the impact on the convictions of the decision in R. v Jogee (Ameen Hassan) [2016] UKSC 8 in relation to the issue of joint enterprise.

[2017] EWCA Crim 268

Deficiencies in a judge’s legal directions to the jury, taken cumulatively with the absence of a structured route to verdict as well as other failures in his summing-up, were such as to render three convictions for joint enterprise robbery unsafe.

[2017] EWCA Crim 167

A bind-over, or the conduct leading to it, would not necessarily deprive a defendant of his entitlement to an unqualified good character direction. However, the defendant would not be entitled to have a bind-over simply ignored when the judge was considering whether to treat him as a person of good character.

[2017] EWCA Crim 35

The court considered the hearsay provisions of the Criminal Justice Act 2003, including those under s.121 concerning multiple hearsay, and R. v Twist (Andrew Terence) [2011] EWCA Crim 1143, when refusing renewed applications for permission to appeal against conviction on the basis of inadmissible hearsay evidence. The trial judge had not erred in deciding that, whether or not there were arguable grounds for excluding the evidence, it was admissible in the interests of justice.

[2017] EWCA Crim 340

A judge’s direction in a murder trial as to the meaning of “substantial” impairment within the Homicide Act 1957 s.2 as regards the defence of diminished responsibility had amply complied with the guidance given in R. v Golds (Mark Richard) [2016] UKSC 61; she had not elaborated unduly and the conviction was safe. The offender’s sentence of life imprisonment with a minimum term of 22 years, whilst severe, was not manifestly excessive.

There had been no misdirection and no unfairness to a defendant where a video recording of a victim’s achieving best evidence video had been played to the jury a second time at its request. The judge had summarised the defence case that the victim had changed her account, and had not been bound to remind the jury of the detailed way in which the case had been put.

[2017] EWCA Crim 1375

The court upheld a conviction for damaging property contrary to the Criminal Damage Act 1971 s.1(1) where the judge had given an appropriate direction as to lawful excuse and had correctly observed that no case on s.5(2) properly arose on the evidence.

[2017] EWCA Crim 1000

A count of being concerned in supplying a controlled Class A drug to another was not confined to dealings between co-defendants where 1kg of cocaine had been supplied by one defendant for another defendant. The scope of the trial did cover onward supply of the drugs, although that aspect was not in issue.

[2017] EWCA Crim 17

A conviction was not unsafe where, after examination-in-chief and cross-examination, the offender had been declared unfit to participate in the trial as a result of drug-induced psychosis. The offender’s condition was due to a voluntary decision to take drugs during the course of his trial and there had been abundant material on which the jury could be sure of his guilt.

[2016] EWCA Crim 1844

A judge in a murder trial had erred in refusing to leave alternative counts of gross negligence manslaughter and unlawful act manslaughter to the jury, as both potential defences to the charge of murder had been plausibly arguable in the circumstances. Also, although a plea to manslaughter had not been accepted by the Crown, defence counsel’s failure to reveal the precise basis on which the plea had been made was unsatisfactory.

[2016] NICA 51

A conviction on 15 historic counts of indecent assault was safe despite some unsatisfactory features of the judge’s summing up. The total sentence of fifteen years’ imprisonment was reduced to eight years, to take account of the offender’s advanced age and poor health.

[2016] EWCA Crim 1941

In terms of establishing a defence of duress, whether the relevant threat had been conveyed to the defendant directly or indirectly was just one factor to be taken into account. There was nothing to preclude reliance on an indirectly conveyed threat, but the more directly the threat was conveyed, the more it would be capable of constituting duress.

[2016] EWCA Crim 1794

The Supreme Court clarified the meaning of “substantially” in relation to the partial defence of diminished responsibility set out in the Homicide Act 1957 s.2, which required an abnormality of mental functioning which, among other things, substantially impaired the defendant’s ability to understand the nature of his conduct, form a rational judgment or exercise self-control. The court also set out how juries should be directed on the issue.

[2016] UKSC 61

Guilty verdicts on two counts of rape were not so inconsistent with acquittals on associated counts, concerning abduction and the administration of drugs, as to render the convictions unsafe. Although the Crown had linked the counts in putting its case, that was not binding on the jury’s verdict. The jury directions had been clear and detailed and the jury could convict on the rape counts irrespective of their decision on the other counts.

[2016] EWCA Crim 2063

A judge had been correct to refuse a defendant’s application to discharge the jury after a prosecution witness deliberately disclosed prejudicial material. The impact of the material and the potential prejudice to the defendant were limited, and the judge took remedial action in his charge to the jury.

[2016] NICA 43

The conviction of a colorectal surgeon for manslaughter by gross negligence was rendered unsafe by the directions given by the trial judge to the jury. In particular, the judge’s direction on the “gross negligence” aspect of the offence was inadequate.

[2016] EWCA Crim 1716

A conviction for murder on the basis of joint enterprise was upheld where there was evidence that the appellant was present at the scene of the crime at the relevant time and had actively encouraged criminal activity with the intention of doing so. The judge’s direction to the jury had been sufficient in relation both to joint enterprise and to the matters which had to be established before guilt could be proved.

[2016] EWCA Crim 1887

The court upheld an offender’s conviction for the murder of a fellow sex worker. The evidence against her, although circumstantial, was overwhelmingly strong, and the judge had not erred in admitting hearsay statements or evidence of bad character.

[2016] EWCA Crim 1712

The court upheld a conviction for possession of a record containing information contrary to the Terrorism Act 2000 s.58(1)(b). The recorder had not erred in admitting internet material, the authorship of which had not been confirmed. The evidence did not amount to anonymous hearsay because the material had not been relied upon to establish its truth, but to show that it was strikingly similar to the material which the appellant possessed and that it was widely considered to have been written by a terrorist.

[2016] EWCA Crim 1618

A conviction for murder, where the offender had committed the offence in a state of drug-induced psychosis whilst in an at-risk state for schizophrenia, was not quashed as the jury directions had been clear in relation to intent and diminished responsibility.

[2016] EWCA Crim 1940

In refusing conjoined appeals and applications for permission to appeal against conviction, the court considered the impact on the convictions of the decision in R. v Jogee (Ameen Hassan) [2016] UKSC 8, [2016] 2 W.L.R. 681 in relation to the issue of joint enterprise.

[2016] EWCA Crim 1613

The court quashed a journalist’s conviction for encouraging the commission of misconduct in public office, relating to the making of payments to a serving police officer for confidential information, as the jury had not been provided with legally adequate directions tailored to the circumstances of the case.

[2016] EWCA Crim 1588

Where, in a criminal case, the Crown relied on several incidents to establish propensity on the part of the defendant, it did not have to prove beyond reasonable doubt that each incident had happened in the way alleged, and the jury did not have to consider the facts of each individual incident in isolation from one another. The jury had to consider the evidence in the round to determine whether propensity had been established to the criminal standard.

[2016] UKSC 55

Convictions for conspiracy to defraud and to convert or transfer criminal property were overturned where the trial judge had failed to state clearly to the jury what they were required to focus on and had not set out with sufficient clarity the nature of the case against the appellant.

[2016] EWCA Crim 1632

In a trial of counts of affray and attempting to cause grievous bodily harm with intent arising out of the defendant’s altercation with some police officers, the judge had erred in not leaving the issue of self-defence to the jury.

[2016] EWCA Crim 2230

A trial judge had not erred by not repeating the entirety of a hostile witness’s evidence when the jury asked a question in respect of that evidence. The jury had been well aware of the issue in relation to that witness as it had been dealt with in closing speeches and in the judge’s summing up not long before the question had been asked. Whether it was necessary to remind the jury of other aspects of the witness’s evidence was a matter for the judge’s discretion. Even if the remainder of the witness’s evidence should have been repeated, the failure to do so did not affect the safety of the conviction.

[2016] EWCA Crim 1582

A trial judge had erred in summing up a sexual assault case by providing an incomplete and confusing direction in respect of the burden and standard of proof and by failing to give the proper two-limb direction about good character covering credibility and propensity. The misdirections were such as to render the conviction unsafe.

[2016] EWCA Crim 1605

There had been sufficient evidence of joint enterprise on a count of arson being reckless as to whether life was endangered. Witnesses had given evidence that the defendant and his co-accused had left the scene together arguing and were arrested together shortly afterwards. Whether the evidence established an agreement between them was a matter for the jury.

[2016] EWCA Crim 1302

A trial judge’s summing up had contained very serious misdirections involving giving the jury his opinion on the central factual issue in the case in uncompromising terms, rendering the convictions unsafe. It was not clear that any jury acting properly would inevitably have convicted the defendant without the misdirections, so the convictions were not saved by the proviso to that effect in the Montserrat Supreme Court Act s.39.

[2016] UKPC 19

The nature and content of a judge’s summing up did not render an offender’s conviction for conspiracy fraudulently to evade the prohibition on the importation of cocaine unsafe; the judge had approached the evidence correctly, had identified the issues the jury had to resolve and had identified the alleged weaknesses in the prosecution case with sufficient specificity.

[2016] EWCA Crim 2072

A judge had not erred in his treatment of a note, submitted after the jury had retired to consider its verdicts, in which one juror stated that he felt threatened by other jurors. Although he should have discussed the note with counsel after he received it, his failure to do so did not lead to the defendants’ convictions for money laundering offences being unsafe. His decision to give further instructions to the jury was a decision properly reached in the exercise of his discretion.

[2016] EWCA Crim 1119

The trial judge had been justified in admitting evidence of gang affiliation in the trial of the three appellants, who were being charged with offences arising from their alleged involvement in what was said to be a gang-related shooting.

[2016] EWCA Crim 668

A judge in a manslaughter trial had not erred in allowing the prosecution to produce animations made by one of its expert witnesses which illustrated her opinion as to how the death had occurred. The decision was well within the ambit of the judge’s discretion under the Police and Criminal Evidence Act 1984 s.78 and he had directed the jury that animations did not constitute any form of independent scientific evidence.

[2016] EWCA Crim 681

A recorder had misdirected a jury in relation to conduct referred to in a count of indecent assault that might have occurred before the defendant’s 14th birthday. He had failed to direct that the defendant’s guilty knowledge had to extend beyond the evidence of the acts amounting to the offence itself.

[2016] EWCA Crim 674

An indictment which referred incorrectly to the legislation breached as an indecent assault on a woman but the victim was male did not render the conviction unsafe. It was a technical drafting error. Both offences carried the same sentence and the error had caused no prejudice, nor had the trial been unfair.

[2016] EWCA Crim 454

The test in R. v Stone [1955] Crim. L.R. 120, as adopted in R. v Durante (Reginald William) [1972] 1 W.L.R. 1612, set out a clear test where inconsistency between verdicts was advanced as a ground of appeal, namely that the defendant had to satisfy the court that the verdicts were not merely inconsistent but were so inconsistent as to demand interference by an appellate court. The test was to be applied without further elaboration. It should rarely be necessary for a court to reformulate, or add a gloss to, well-established law. Where a court thought it necessary to summarise the law or add a gloss that might assist in a particular decision, its judgment should not be treated as a new formulation of the law, unless it was made expressly clear in the judgment that a change or development of the law was being made.

[2016] EWCA Crim 550

A conviction for theft was not rendered unsafe by the trial judge’s statement that any request for a good character direction would have to be balanced by disclosure of the defendant’s fiscal warning for shoplifting. Although leading counsel had proffered support for the contention that in Scottish proceedings she would have been entitled to assert good character despite the existence of the warning, the Crown’s case against her was strong even without the disclosure of extraneous bad character evidence.

[2016] EWCA Crim 451

A recorder had properly directed the jury that gang-related evidence, admitted under the Criminal Justice Act 2003 s.98, went to the issue of the intent of a 19-year-old offender charged with possession of a firearm with intent to endanger life. A sentence of 11 years’ detention, although severe given the offender’s age, was not manifestly excessive or wrong in principle.

[2016] EWCA Crim 447