Neutral Citation Number: [2018] EWCA Crim 1077
Case No: 201703609 C1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 1 May 2018
 
B e f o r e:

LORD JUSTICE SINGH 

MR JUSTICE EDIS 

MRS JUSTICE MCGOWAN DBE 
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R E G I N A 
v 
MJ 
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Mr J Upton appeared on behalf of the Appellant

Mr M Walsh appeared on behalf of the Crown
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J U D G M E N T (Approved)

If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached.  This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
LORD JUSTICE SINGH:  
This is an appeal against conviction brought with the leave of the single judge.  
On 11 July 2017, in the Crown Court at Oxford, the appellant was convicted by the jury of six offences on an indictment which contained seven counts.  He was acquitted on count 5.  On the same date, he was sentenced by Recorder Campbell.  Four of the offences concerned sexual assault of a child under the age of 13, contrary to section 7 of the Sexual Offences Act 2003.  They were counts 1, 2, 6 and 7.  Count 3 concerned assault of a child under 13 by penetration, contrary to section 6 of the 2003 Act.  Count 4 concerned causing or inciting a child under 13 to engage in sexual activity, contrary to section 8 of the 2003 Act.  The total sentence passed was one of 8 years' imprisonment.  A sexual harm prevention order was made and other appropriate directions were made given the nature of this case.
The facts can be summarised for present purposes relatively briefly as follows.  The appellant and his wife, EJ, were employed by a family, the D family, from June 2009 to May 2012.  Their duties including helping around the house and assisting with childcare.  The family had four children, three of whom were girls: ED, whose date of birth was [a date in]  2001; ID, whose date of birth was [a date in] 2005; and SD, whose date of birth was [a date in] 2007.  
During this period, the girls' parents, BD and DD, had been told that the appellant had kissed the girls.  He had been told to stop.  On one occasion in May 2012, when a cousin, CY, whose date of birth was [a date in] 2001, came to stay, she reported that the appellant had kissed her and put his tongue in her mouth.  He was dismissed but EJ was permitted to stay on, on the basis that the appellant was not allowed on the property.  BD and DD questioned their daughters, who all reported the appellant having kissed them on the lips; however, no other physical contact was reported.  
In 2005, ID reported that she had been sexually abused by the appellant when she was 6 or 7.  ED and SD were also spoken to by their parents.  
In interview, the appellant made no comment but provided two pieces of paper which stated that he had not sexually abused the girls.  
The prosecution case at the trial was that the appellant had sexually abused all four girls: that he had kissed ED (the subject of count 6) and CY (the subject of count 7) on the lips; in relation to ID, the allegation was that he had kissed her (that was the subject of count 1), that he had touched her nipples (that was the subject of count 2), that he had touched her vagina (that was the subject of count 3) and that he had forced her to touch his penis (that was the subject of count 4).  As we have mentioned, the appellant was acquitted of the only count relating to SD, which was count 5.
The prosecution relied at trial on the evidence of the four complainants.  The defence case was one of fabrication.  The appellant himself gave evidence and relied on his good character.  His wife also gave evidence on his behalf.
The issue at the trial therefore for the jury related to the credibility of the parties.
It is necessary at this juncture to set out pertinent passages in the Recorder's summing‑up in order to explain the ground of appeal in this case.
At the very beginning of her summing‑up the Recorder said:

"Members of the jury, did [BD] warn M in the month before his sacking not to kiss her daughters?  Why?  Did he take [ED] outside to sit and see the deer?  If so, why?  If not, why did she say that?  Was [SD] massaged by the defendant?  Was it done openly?  What caused [CY] to complain of kissing by the defendant?" 
The Recorder continued:

"These are some questions, members of the jury, that you may consider when you go out to think about your deliberations in this case but I use and I suggest the word 'may', members of the jury, because in this case our roles are quite different from one another.  As I said to you already, members of the jury, you are the judges of the facts.  I am the judge of the law.  

My job is to oversee the trial process, to deal with points of law or procedure as they arise now at the end of the trial to tell you how the law applies to this case.  I'm going to give you my legal directions in writing in a moment and you must follow them.  They provide you with the legal framework in which you are to do your job of deciding the facts.  As I say, members of the jury, your job is quite different to mine.  Your job is to judge the evidence and to reach verdicts based on the evidence.  No one else plays any part in that.  Although I will remind you of some of the evidence in this summing‑up, I play no part in judging it.  That is your job and your job alone." 
Later in her summing‑up, at the point when she had finished going through directions of law and was, as she put it, on the brink of turning to the evidence, she gave a direction in standard terms (see page 9 C to E) as to the respective roles of a judge and a jury in a criminal trial when it comes to the evidence.  So far as material, she said:

" ... when it comes to the evidence, members of the jury, about the evidence, all about the facts, that's your job alone and it's your judgment alone that counts. 

As I go through the evidence, if I appear to express an opinion or emphasise a particular part of that evidence, only adopt that opinion or emphasis if you agree with it because it's you, not me, that judges the evidence in the case.  I should add, members of the jury, it's not my intention to express any view of the evidence, so please don't try to second guess what I may think about the case.  It's your views alone that matters [sic]." 
It is unnecessary to set out other parts of the summing‑up.  We should note, however, that our attention has also been drawn by Mr Upton, on behalf of the appellant, in his written submissions to the part of the summing‑up which dealt with a legal direction as to cross‑admissibility (see page 7D to page 8C of the summing‑up).
He submits that the ground of appeal which he now advances has a bearing on that matter also, as will become apparent.
On behalf of the appellant, Mr Upton advances a single ground of appeal for which leave was given by the single judge.  Mr Upton has confirmed that ground 2 in the original grounds of appeal is no longer relied upon.  No application for leave to rely upon it was renewed before this court.
The single ground of appeal which is advanced is that at the start of her directions the Recorder prefaced her direction on the respective functions of a judge and a jury with various questions which have been described by Mr Upton as being rhetorical questions.  Mr Upton submits that in doing that the Recorder trespassed on the function of the jury and that her later directions as to their being judges of the facts alone were not sufficient in this case to cure the defect; the harm, he submits, had already been done.  In that context Mr Upton also emphasises the timing of these particular questions: they were posed right at the outset of the Recorder's summing‑up.  Therefore Mr Upton submits they would have had a particular prominence and would have had a particular impact on the memory of the jury as they listened to the summing‑up.
Mr Upton submits that the cumulative effect of what he describes as the rhetorical questions together with their positioning right at the start of the summing‑up was to give an impression to the jury which may have coloured the whole of the summing‑up and unfairly influenced the jury as to the views of the judge and slanted matters in favour of the prosecution.  Mr Upton submits, as we have mentioned, that this is particularly important in the light of the cross‑admissibility direction to which we have referred.  
In support of his submissions, Mr Upton relies upon the decision of this court in R v Spencer (unreported ‑ 15 June 1994) in which the judgment of the court was given by Henry LJ.  He cites that case to illustrate the proposition that the court has often deprecated the use of rhetorical questions in a summing‑up.  However, Mr Upton fairly accepts that the present case is not as "extreme", as he puts it, as that case.
We have been assisted in this appeal by Mr Matthew Walsh, who has lodged a respondent's notice with grounds of opposition, has filed a skeleton argument and has made oral submissions at this hearing.
In essence, Mr Walsh submits that is there no merit in the single ground of appeal advanced in this case.  He submits that the Recorder's approach was one which she was entitled to take, the questions were relevant to issues in the trial and he submits were clearly designed to focus the jury's attention on key issues of fact that they would have to consider in their deliberations.  
Mr Walsh also submits that the questions were in fact not rhetorical questions which assumed the answer that should be given to them, thus expressing indirectly views of the judge herself; rather, he submits, the questions were often phrased in an open way and sometimes left alternatives to be addressed by the jury.
Mr Walsh also submits that the standard directions were given, as we have already summarised.
Finally, Mr Walsh submits that the decision of this court in Spencer is readily distinguishable on its fact from the present case.
We are grateful to both counsel for their written and oral submissions, which have been made with commendable brevity.  
We are not persuaded by Mr Upton's submissions that there was any unfairness in this trial.  The case of Spencer was very different on its facts from the present case, as is apparent in particular from pages 9 to 14 in the judgment delivered by Henry LJ.  At page 9, Henry LJ noted that in that summing‑up the judge had asked rhetorical questions no fewer than seven times.  Examples of those questions were then specifically set out in the judgment of Henry LJ.  As he went on to state at page 10:

" ... in each case the context only permitted one reply: that it was unlikely that Chantelle had made the whole thing up, or that Mr Buckley had put her up to concocting this false story, yet the defence were quite entitled to raise the question of her truthfulness ... " 
Later, at page 10, Henry LJ observed:

" ... we think to ask essentially the same rhetorical question seven times was excessive, unhelpful to the jury, and unfairly damaging to the defence.  

The linked complaint as to unfairness relates to comments the judge made as to the evidence he was summarising and the almost exclusively one‑way nature of those comments ‑ hostile to the defence ... " 
At page 13, Henry LJ made this observation:

"Juries are more robust than people often give them credit for, and comment one way or the other is often necessary to keep a fair balance in adversarial proceedings, particularly where one side or the other (more usually but not invariably the defence) has in counsel's address apparently made headway with a point which in the view of the court is unmeritorious.  Judges must not feel that they have to be Trappist in austerely eschewing comment, provided that the standard Direction is given.  But the giving of that standard Direction will not excuse excessive and largely one‑sided comment."
Finally, as to the particular facts of Spencer, Henry LJ said this at page 14:

"In our judgment, the rhetorical questions and the comment here were excessive, were unduly partisan, unbalanced the trial process and made the jury's task more difficult." 
Each case, of course, must turn on its own facts.  The critical question, as it seems to us, is not precisely what form does a comment or a question take; rather, what is its impact on the fairness of the trial?  In particular, the fairness and balance of the summing‑up when taken as a whole.  
In our view, on the facts of this case, the questions which were posed at the start of the summing‑up did not have such an effect as to render the trial unfair.
As we have already observed in quoting from the relevant part of the summing‑up, the Recorder immediately followed up those questions with a direction that the jury alone were the judges of fact.  She also supplemented that with the standard direction on that matter, which was given at page 9C.
It is clear that the jury considered the whole of the evidence carefully and fairly, not least because the appellant was acquitted on the only count (count 5) which related to the complainant SB.  We note that SB was the subject of one of the questions of which complaint is now made.
We also note that no issue was raised about this by trial counsel at the time and before the Recorder had finished her summing‑up.  
The way in which a judge structures his or her summing‑up is essentially a matter for him or her as long as the summing‑up taken as a whole is balanced and fair.  
The questions with which the Recorder began her summing‑up in this case were, in our view, largely down to style.  Other judges might have done things differently but that does not render this summing‑up unfair. 
We have come to the firm conclusion that there was no unfairness in the summing‑up when considered as a whole nor does any of this affect the safety of the conviction in the present case.  
Before we leave this appeal, we would make three brief observations which may be helpful in other cases.  The first is to remind trial judges, as this court has frequently done, that it may be helpful to have a written route to verdict, even in the simplest of criminal trials.  Their value to the jury should not be underestimated.  In that way, the questions which the jury will have to address as they deliberate on the evidence they have heard at the trial can be focused and accurately set out, they can be the subject of any comment that counsel wish to make and of course the jury have them to take away into the privacy of the jury room.  
Secondly, as has become increasingly common practice in the last couple of years, trial judges should consider giving a split summing‑up in which directions of law are given before closing speeches and a summary of the evidence after.  
Thirdly, it is not at all unusual for a summing‑up to begin before any directions of law have been given as to the respective functions of the judge and jury with a brief narrative of the facts of the case, essentially to introduce what the case is about and the central issue or issues which the jury will have to decide.  What we would emphasise in that context is that such a factual narrative, if it is to be given at the beginning of a summing‑up, should be expressed in a neutral and balanced way which is fair to both parties.  
That all said, as we have already mentioned, we have come to the firm conclusion that the way in which the Recorder structured her summing‑up in this case, and in particular the questions of which complaint is made in this appeal, did not render the summing‑up unfair.  
For the reasons we have given, this appeal is dismissed. 

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