Millard, R. v

The structure of a summing up is a matter for the trial judge’s case-specific judgment. A conventional form is not mandatory. The appellate question is whether the summing up, read as a whole, was complete, fair and balanced, without suggesting that the burden of proof had shifted or disproportionately presenting either side’s case.

A judge may review evidence by reference to each defendant where that is logical, the prosecution case is already clear, and the jury is properly directed on separate consideration and the burden of proof. A failure to direct that one defendant’s interview is inadmissible against another does not make a conviction unsafe unless, assessed against the whole summing up and the admissible evidence, the omission may have affected its safety.

Two defendants appealed against convictions at Isleworth Crown Court for being knowingly concerned in the importation of ten kilogrammes of cocaine. The prosecution relied substantially on telephone contacts, movements, the recovery of cocaine from locations linked to the defendants, and evidence connecting the separate seizures.

The principal ground challenged the trial judge’s decision to structure the summing up by reviewing the evidence relating to each defendant, rather than giving a fuller sequential summary of the prosecution case. One defendant also complained that the jury had not been directed that the other defendant’s police interview was inadmissible against him. The central issue was whether those matters rendered either conviction unsafe.

1. Both appeals against conviction were dismissed. The Court held that the summing up was fair, balanced and did not reverse the burden of proof.
2. The form of a summing up is a matter for the trial judge’s case-specific judgment. The Court explained that R v Reeves and others, unreported, 4th December 1998, identified defects arising from the particular summing up in that case. It did not prescribe a mandatory structure. The decisive inquiry was whether the summing up under review was complete and fair, including whether it might suggest that the defendants had to disprove the prosecution case or present the evidence in an unfairly unbalanced way.
3. Here, the judge had given repeated and clear directions that the prosecution bore the burden of proof, that no defendant had to prove innocence, and that each defendant’s case required separate consideration. The prosecution case was contained in schedules, admissions and the evidence, and was clear to the jury. Reviewing the evidence by reference to each defendant was logical in a multi-defendant trial and caused no prejudice. Fairness did not require the judge artificially to strengthen a weak case advanced by either side.
4. Millard’s police interview was inadmissible against Middleton, and the judge should have expressly directed the jury to ignore it for that purpose. The jury could, however, consider admissible evidence suggesting that Millard had lied in evidence to protect Middleton. Taking the omission most favourably to Middleton, the Court was wholly unpersuaded that it affected the safety of the conviction, given the summing up as a whole and the strength of the admissible prosecution evidence.
5. The Court recorded that the single judge had refused leave to appeal against sentence; any renewed application would be considered later.

• Court of Appeal (Criminal Division): In [2003] EWCA Crim 3629, dismissed both appeals against conviction. It recorded that a renewed application for leave to appeal against sentence would be considered later.
• Crown Court at Isleworth: On 10 August 2001, HHJ McDowall and a jury convicted the defendants of being knowingly concerned in the importation of cocaine.