England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday 27th March 2000

LORD JUSTICE HENRY:

1. This is the judgment of the Court. On 30th April 1999 in the Crown Court at Carlisle before His Honour Judge Robert Brown, the appellant was convicted of rape, and was sentenced to six years' imprisonment. He now appeals against conviction with the leave of the Single Judge. The count on which he was convicted was the first count of a three count indictment. Count 2 was one of indecent assault, and Count 3 one of rape. Each of those three counts reflected a different attack on a different young woman, all occurring within a few hours of each other, at an end of season farewell party at a holiday village. The appellant was acquitted on Counts 2 and 3.
2. The trial took seven working days (including more than five days of evidence) and the jury were out for approximately seven hours before they convicted on Count 1 and went on to consider Counts 2 and 3.
3. The Grounds of Appeal are startling, in that the trial judge decided that he would not sum up the facts of the case to the jury, and took this decision without the benefit of discussion with counsel despite the fact that he had leading counsel representing both the Crown (Mr Holroyde QC) and the Defence (Mr Birkett QC). Nor did he warn the jury of his intentions. The consequence complained of by the appellant is that the jury were not reminded of the evidence which supported the appellant's defence that the sexual intercourse was consensual.
4. The summing-up started with the normal sequence of directions of law to the jury: the functions of judge and jury; the burden and standard of proof; the elements of the offence; separate consideration of each count; the relevance of good character; the effect of intoxication on the formation of an intent; and recent complaint in rape cases. No complaint can be made of those directions. The judge concluded by giving them the direction on unanimity. He then said:

"Normally at this stage in the trial, members of the jury, I would review the salient points of the evidence. I'm not going to do so. I'm going to tell you why. First, you have had the advantage of listening this morning to two speeches of very experienced and able counsel who have between them covered every salient point which is worth your consideration in this case, and for me to remind you of them now would I think simply be otiose repetition. But not only that, you have with you and will take with you when you retire the defendant's account which he gave to the police in two lengthy interviews which is entirely consistent with the evidence which he gave to you when he gave evidence before you; so you have his.

The evidence of the complainants is, I am absolutely certain, very clear in your mind, and finally I noticed that throughout the trial several of you were taking meticulous notes of the evidence, so what I'm going to do now, members of the jury, is I'm going to invite you to retire but with this caveat, and that is if during the course of your deliberations there is any difference of recollection of any particular part of the evidence and you are not able to resolve that through your own discussions then please write a short note and give it to the jury bailiff and I'll invite you back into court and refresh your memory on that particular aspect, but for me to embark now upon a sort of safety net exercise to ensure that you've been reminded of every single salient point in the case would I think be unnecessary and repetitious."

5. Of these reasons we have these comments. First, counsels' closing speeches are no substitute for a judicial and impartial review of the facts from the trial judge who is responsible for ensuring that the defendant has a fair trial. And the first step to such a trial is for the judge to focus the jury's attention on the issues he identifies. That responsibility should not be delegated (or more accurately here, abandoned) to counsel, doubly so when they do not know, when making their speeches, what the judge is expecting of them.
6. Second, the fact that members of the jury were taking notes does not relieve the judge of this responsibility. Evidence is not given sequentially - it comes out witness by witness and needs to be marshalled and arranged issue by issue. This is the judge's responsibility - it involves work out of court, which he cannot simply pass on to the jurors.
7. Third, that the jurors had in written form the defendant's account in the transcripts of two lengthy interviews, which was consistent with the evidence that he gave, would have helped the jury, but would not have gone all the way to meeting the judge's responsibility of summing-up the case, as we will show later. The judge's confidence that the evidence of the three complainants was very clear in the minds of the jury was expressed despite the fact that large parts of that evidence had been given nearly a week before.
8. Lastly, the suggestion that what good judicial practice requires of a judge is to

"... embark ... upon a sort of safety net exercise to ensure that you've been reminded of every single salient point in the case"

is neither an accurate nor a fair description of the judge's task in summing up.

9. Useful guidance on the obligation of the judge to sum up is given in R -v- Farr (so far unreported, judgment given by Lord Justice Rose, Vice-President, 8th December 1998, Reference 98/2830/X5):

"The fact that, following a 13 day trial, the summing-up lasted only an hour in itself affords no ground for legitimate complaint. On the contrary, brevity in summing up, as in examination or cross-examination of witnesses and in counsels' speeches, is a virtue not a vice. It cannot be too strongly emphasised that the judge is under no obligation, when summing up, to rehearse all the evidence or all the arguments. As Lord Morris of Borth-y-Gest said in McGreevy 57 Cr App R 424 at 430, quoting Lord Lowry, Chief Justice of Northern Ireland:

'It is not essential that a judge should make every point that can be made for the defence ... The fundamental requirements are correct directions in points of law, an accurate review of the main facts and alleged facts, and a general impression of fairness.'

In Wilson, reported, though not on this point, in [1991] Crim LR, Lord Lane CJ said (Court of Appeal transcript of 14 May 1991 at page 5D):

'It was, as we have already pointed out, a very short trial. The judge took the view that it was not necessary for him to go into detail about the evidence which had been given by the girl. Indeed at page 5 of the transcript of the summing-up he says this:

"Members of the jury, the evidence has been within a very small compass. You heard the girl in the witness-box. You heard the defendant in the witness-box. I do not think I need to review the facts with you."

There is no reason why he should not take that line. Indeed, it is a line which, in a case as short and simple as this, might well be more generally adopted.'

Those observations we respectfully and emphatically endorse. Of course, generally speaking, the longer a trial lasts, the greater will be a jury's need for assistance from the judge relating to the evidence. Many jurors do not have the experience, ability or opportunity of a judge to note significant evidence and to cross reference evidence from different sources which relates to the same issue. Accordingly, in a trial lasting several days or more, it is generally of assistance to the jury if the judge summarises those factual issues which are not disputed, and, where there is a significant dispute as to material facts, identifies succinctly those pieces of evidence which are in conflict. By so doing, the judge can focus the jury's attention on those factual issues which they must resolve. It is never appropriate, however, for a summing-up to be a mere rehearsal of the evidence."

10. The Court later went on to consider an element lacking from that summary: "The necessity for a judge, when summing up, to place fairly before the jury such defence as is advanced." In this context it is pertinent to note Professor Birch's commentary on the case of Brower [1995] Crim LR 746 at 747:

"Putting the defence fairly and adequately to the jury has rightly been described as the 'over-riding rule' when summing up (Spencer -v- Smalls [1986] 2 AER 938 at 938, per Lord Ackner) and it is hard to see how this can be done without referring to the evidence when the defence has sought to exploit inconsistencies in the prosecution witnesses' accounts."

11. This case illustrates the difficulty Professor Birch drew attention to. All the jury were reminded of was the defendant's interviews. That restricted the summing up of the defence to events that the defendant had been party to. He called two witnesses, Mr Miah and Mr Hannan, who were of importance if believed. The jury was not reminded of the evidence of either of those witnesses, nor were they reminded of any of the points assisting the defence arising from cross-examination, just as Professor Birch foresaw. We are satisfied that any judge summing up the facts would have reminded the jury of the evidence of those two witnesses and some at any rate of the points Mr Birkett made in his closing speech. We will return later to the issue of whether the defence case was properly put to the jury.
12. We are entirely satisfied that this was not a "short and simple case" like Wilson (above), where no review of the facts by the trial judge was required. Accordingly it was a procedural irregularity for the judge to sum up as he did. The Court considered the amended version of Section 2 of the Criminal Appeal Act, 1965 (under which this appeal lies) in R -v- Graham & Others [1997] 1 Cr App R 302 at 308, where Lord Bingham said:

"The new provision ... is plainly intended to concentrate attention on one question, whether in the light of any arguments raised ... on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any ... irregularity in the conduct of the trial ... the Court will dismiss the appeal. But if, for whatever reason, the Court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal."

13. Here, as in Farr, the question is whether we are sure that a jury, properly directed both as to the defence relied on and the evidence and issues in the case, would have convicted. If we are not sure we must allow the appeal.
14. Here the Crown emphasised the strength of the prosecution case. Here was a virgin with powerful religious objections to sex before marriage, with someone she barely knew. Even had she been disinhibited by alcohol earlier in the evening, that had worn off by the time in question. Would she really have abandoned the tenets of her upbringing on a rough piece of ground against the back wall of a club with someone she hardly knew, when she was menstruating?
15. Mr Holroyde QC for the Crown made the point that the judge had effectively summed up the case for the defence by putting the defendant's interviews before the jury, and telling them, no doubt accurately, that his evidence had been consistent with those interviews. He submitted that if the judge had summed up the victim's evidence, that could not have improved his chances of acquittal. Accordingly, he submitted that the verdict was safe.
16. However, he had to concede that the defence was deprived of the benefit of the judge putting before the jury the matters summarised in paragraph 11 hereof.
17. We have a good idea what facts the judge would have summed up had he thought the situation required it. Just after the jury retired, the judge said to prosecuting counsel:

"Some studying going on, Mr Holroyde?"

Counsel indicated:

"I was surprised by Your Honour's approach to the facts, and I just wanted to see if there was any law on the topic"

After the jury had been out for 1½ hours, the judge returned to court at approximately 4.20pm with a view to allowing the jury to separate for the night. He said to counsel:

"I did prepare in fact a summary of evidence. Do you want me to give it to the jury?

MR BIRKETT: A summary?

THE JUDGE: Yes, in case I thought it was needed as part of this summing-up .... If you wish me to give it, I've been looking at Archbold ...

MR BIRKETT: Your Honour, I don't ask that you embark on that now or in the morning.

THE JUDGE: Are you sure?

MR BIRKETT: Yes."

18. Mr Birkett explained to us that he did not think it right that the jury should be given a further tranche of summing-up 1½ hours after they had retired without them having made any request for it. We do not criticise him for that course. We see that there would have been doubt as to the propriety of taking that course uninvited by the jury after so long a retirement.
19. We return to the evidential matters of the failure to sum up the defence case referred to in Paragraph 11. First, there was the evidence of the two witnesses directed to the complainant's conduct in the car and how she initiated intimate contact whilst in the back of the car after the rape. One of these witnesses had seen her outside the club kissing the appellant, evidence that she denied. The difficulties in her account were that people were leaving the club by the rear doors who must have passed close to the position where the incident happened. There was no damage to her clothing, there was no evidence to suggest that she was distressed when she returned into the club, she asserted that the incident had lasted ... hour and the club had emptied when they returned in doors. There were police outside the club and she had friends from work nearby yet she did not immediately complain. There was no evidence from anyone, in or outside the club tending to confirm her account. It was submitted that her conduct before and after the incident was incompatible with her allegation of rape.
20. Those were all matters relating to the defendant's case which the defendant was entitled to expect the judge to sum up to the jury, though he would not have been bound to direct the jury on every point made by counsel. We cannot confidently say that the jury would inevitably have convicted even if there had been a proper summing-up of the defence case and the facts. There must remain the possibility that they might not have. Accordingly, we have no choice but to allow this appeal and quash the conviction. This is a case where the interests of justice demand a retrial. We allow the appeal and order a retrial with heavy hearts because we are concerned that the complainant should go through the ordeal of giving evidence a second time.