SUMMING-UP

A conviction for kidnap was unsafe where the judge had failed to properly assess the reliability of the hearsay evidence of an absent witnesses.

[2017] EWCA Crim 1461

The court determined that the interpretation in R. (on the application of Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin) of the Criminal Justice and Immigration Act 2008 s.76(5A) on self-defence in householder cases was correct. The court also gave guidance on summing up in such cases.

[2017] EWCA Crim 1391

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 judge’s summing-up, in a trial of three defendants on a charge of conspiracy to commit fraud by false representation, was not unfair.

[2017] EWCA Crim 1007

A defendant considering bringing a criminal appeal in the State of Mauritius was entitled, on payment of the cost of providing it, to a copy of the digital record of the trial. If the appeal court was asked to listen to such a recording, it was fully entitled to insist that that request was justified by counsel on behalf of whichever party had made the request.

[2017] UKPC 16

Convictions for wounding with intent, assault occasioning actual bodily harm, having an offensive weapon and criminal damage were upheld. The judge had not erred in her summing up and the appellant had not been prejudiced by an agreed admission placed before the jury.

[2017] EWCA Crim 491

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 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.

A jury in a murder trial had been entitled to reject the defence of diminished responsibility under the Homicide Act 1957 s.2 for an accused with an autistic spectrum disorder who had strangled a fellow care home resident in order to have sex with her undisturbed. The judge’s misstatement in his summing up that that outcome was irrational, despite one expert’s evidence to the contrary, and that the jury should focus on the decision-making process of the accused to assess his ability to form a rational judgment, had been helpful rather than adverse to the accused. However, it was over-refined to separate the decision-making process from the outcome and could lead to undue glossing of s.2.

A jury had reached inconsistent verdicts by convicting two offenders of the illegal importation of Class B drugs but acquitting them of importing Class A drugs which were also contained in the same consignment. However, that was not of itself sufficient to render the convictions unsafe.

[2017] EWCA Crim 41

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 judge had been entitled to use the word “grooming” to describe an offender’s behaviour even though the prosecution had not done so and nor had it alleged the offence of grooming. The prosecution had presented the case on the basis of an escalation of abuse, both in terms of the level of sexual activity and the means used to secure compliance, and grooming entailed no more or less than that.

[2016] NICA 61

In the trial of a mother and grandmother for causing or allowing the death of a child contrary to the Domestic Violence, Crime and Victims Act 2004 s.5, there was a body of evidence pointing to a possible conclusion that dehydration by neglect was a significant cause of death. The judge had been entitled to reject a submission of no case to answer and to place that issue before the jury.

[2016] EWCA Crim 1751

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

An offender’s appeals against convictions for sexual assault and sexual assault of a child under 13 and against a sentence of five-and-a-half-years’ imprisonment were dismissed as the judge’s summing up had been adequate and the sentence imposed reflected the totality of offending.

In a sexual abuse case a judge had been entitled to leave to the jury medical evidence of an injury that was consistent with constipation as well as penile penetration. The evidence had been presented fairly, it had been made clear that such an injury did not prove that there had been any abuse, and it was also emphasised that it was ultimately a matter of assessing the credibility of the witnesses.

[2016] EWCA Crim 1658

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

The Criminal Procedure Rules 2015 r.25.14(3)(a) required the court to summarise for the jury, to such extent as was necessary, the evidence relevant to the issues they had to decide; however, it was not necessary for the judge to recount all relevant evidence. A conviction for inflicting grievous bodily harm was safe despite the judge’s failure to summarise evidence on causation from a consultant forensic pathologist.

[2016] EWCA Crim 850

A judge had been entitled to admit into evidence a video recording of a police interview with a child complainant who was unable to attend trial. The interview could be admitted despite her mother, another key witness, being present during the interview in breach of Ministry of Justice guidelines.

[2016] EWCA Crim 598

Omissions by a trial judge when giving jury directions about alibi evidence and failure to mention facts pursuant to the Criminal Justice and Public Order Act 1994 s.34 had not, in the circumstances, been material omissions and had had no effect on the safety of the appellant’s conviction. Errors in s.34 directions could vitiate a conviction, but would not always do so.

[2016] EWCA Crim 609

In a trial involving sexual offences committed by a father against his two daughters, a judge had been entitled to allow into evidence the father’s previous conviction for sexual assault against his step-daughter. The father’s convictions were not rendered unsafe by the judge’s summing up, despite its defects.

A judge had erred when directing a jury in relation to the potential defences to offences of possession of indecent photographs of children and extreme pornographic images.

[2016] EWCA Crim 1076

A conviction for causing or inciting a child under 13 to engage in sexual activity was unsafe where there had been a number of failings in the judge’s summing up, in particular a failure to highlight the appellant’s autistic spectrum disorder or to give a direction in relation to whether the appellant’s actions had been sexually motivated.

Convictions for dangerous driving and aggravated vehicle taking were unsafe where a judge had failed to give adequate directions in relation to identification and alibi.

Although the nature and extent of a judge’s questioning and comments during the course of a trial were very unfortunate, they were not such as to make the trial or consequent convictions unsafe.

[2015] EWCA Crim 1715

Although parts of a judge’s summing-up could have been more balanced, the errors were not such as to render unsafe the accused’s subsequent conviction for production of cannabis.

[2015] EWCA Crim 1710

The murder convictions of four men, following the fatal shooting of a man in the context of an ongoing feud between two drug gangs, were safe. The trial judge’s summing up had not been biased in favour of the prosecution, and in relation to one of the defendants he had been right to admit evidence of his convictions for attempted murder committed shortly before the alleged murder and the fact that he had been shot two months earlier.

[2015] EWCA Crim 1350

A conviction for conspiracy to blackmail was safe where the judge’s summing up had made clear to the jury that the burden of proving the particular issues raised lay on the prosecution. There had been no need for the judge to raise the question of the offender’s belief that he had reasonable grounds for making the demand and that the use of menaces was the proper means for reinforcing it as that had not been a live issue in the case. The sentence of seven years’ imprisonment was appropriate where repeated threats of violence had been made and the offender’s previous convictions were a serious aggravating feature.

[2015] EWCA Crim 1617

A conviction for theft was safe where a judge had not given a good character direction to the jury in circumstances where an offender had disputed his criminal record, but his previous conviction was evidenced.

In a murder trial where diminished responsibility had been put in issue, deficiencies in psychiatric reports, in the cross-examination of psychiatrists and in the summing-up relating to the psychiatric evidence led to an unsafe murder conviction.

[2015] UKPC 34

A judge had been entitled to direct a jury that they were allowed to consider whether they recognised the voice in a tape recording as belonging to an individual accused of conspiracy to defraud. The judge was required to warn the jury of the need for care in conducting such an exercise, and although his warning in that regard could have been more emphatic, it was not a serious shortcoming in his summing-up. The judge had also not erred in directing the jury that they were entitled to consider a particular piece of evidence in regard to one defendant but not in relation to another.

[2015] EWCA Crim 1507

The common law offence of escape did not require that an offender had to have intended to escape permanently or indefinitely. Accordingly, a prisoner who had gone beyond the boundaries of an open prison intentionally and deliberately, despite his claim that his only intention was to return, was guilty of the offence.

A recorder should not have attempted to go beyond directing a jury that grievous bodily harm meant anything other than really serious bodily harm. However, reading his summing up as a whole, the court was satisfied that the jury was not misdirected and the conviction was safe.

[2015] EWCA Crim 1292

Despite the deficiencies in which a judge had dealt with a criminal trial, such as telling defence counsel to stop wasting time, and reprimanding her for raising an issue of perceived bias in his summing up, the case against the offender was strong and his convictions for assault and assault with intent to rob were not rendered unsafe.

[2015] EWCA Crim 853

A recorder had not been required to give a direction under the Criminal Justice and Public Order Act 1994 s.34 after he referred in summing up to inconsistencies between the accused’s statements in interview and his evidence at trial. The Crown was using the inconsistencies as matters going to credit and was not seeking any other inference to be drawn.

[2015] EWCA Crim 1293

A mother’s conviction for wilful child neglect was quashed where the way in which the judge had summed up the charge to the jury, focusing on whether the mother had been wrong to leave the children with their father, the state of their house, and a damaged adaptor plug, was not enough to support a conviction.

A conviction for conspiracy to rob was safe where a judge had refused to allow a jury to consider reasons advanced by defence counsel for a defendant’s silence at trial. It was not proper for an advocate to give reasons for a defendant’s silence in the absence of any evidential foundation. A judge was entitled to go outside the sentencing guidelines in sentencing the defendant to eight years’ imprisonment to reflect the defendant’s role, his previous convictions and the impact of the conspiracy on the victim.

An appellant’s murder conviction was safe: the grounds of his appeal had been sufficiently addressed by the trial judge, who had given explicit instructions to the jury in his summing up. There was no reason to think that the jury could not have been trusted to abide by those instructions.

[2015] UKPC 18

A judge had not erred by failing to provide a Turnbull direction when a jury was invited to identify an offender based on a photograph and the accused’s appearance in the dock. There was no invariable or inflexible rule in such cases that a jury had to be expressly warned of the risk that it might make a mistaken identification.

[2015] EWCA Crim 783

Convictions for conspiracy to murder were quashed where CCTV evidence, which was 22 minutes behind real time, did not support the Crown’s case that the appellants had been in a car conspiring at the alleged times and locations.

[2015] EWCA Crim 71

A conviction for drug trafficking was safe despite the succinctness of the judge’s summing up and his failure to summarise the evidence. There had only been one issue for the jury to determine, namely whether the defendants had knowledge of the drugs which were found concealed in their car, and the prosecution case had been overwhelming.

[2015] EWCA Crim 345

A judge had not erred in stating that an appellant’s bad character had been agreed during a rape trial in which both the appellant and victim had impugned each other in their evidence. The conviction was safe despite the fact that allegations of past violence by the appellant had been made. The judge’s direction had been adequate to deal with the issue.

A judge had been right to refuse severance of a defendant’s indictment for child abduction from his co-defendants’ additional indictments for rape. The jury had not misunderstood the scope or nature of the case against the defendant, they had been directed carefully and the summing up had been clear.

[2015] EWCA Crim 372

An ex-serviceman’s convictions for possession of prohibited firearms with intent to endanger life were upheld, notwithstanding the appellant’s criticism of the judge’s summing up regarding the requisite intention. However, concurrent sentences of 10 years’ imprisonment were reduced to eight years to reflect the additional impact of a sentence of imprisonment on the appellant who was of previous good character, had an exemplary military record and had been diagnosed as suffering from post-traumatic stress disorder.

[2014] EWCA Crim 1994

The court considered the safety of a murder conviction which relied on the analysis of a mixed profile Low Copy Number DNA. Two prosecution witnesses had produced inconsistent conclusions in 2011 and 2013 from the same sample. The court was prepared to accept that the 2013 analysis was a sufficiently reliable scientific basis in light of the fact that scientific understanding in the interpretation of mixed DNA profiles had developed significantly between 2011 and 2013.

[2014] EWCA Crim 2513