Hampson, R v

Where the Crown tenders a defendant’s mixed interview or statement, the jury must consider both its incriminating and exculpatory parts when deciding where the truth lies. A judge should state that requirement expressly.

Nevertheless, the omission will not make a conviction unsafe if the summing-up, read as a whole, plainly directs the jury to evaluate the interview account as part of the evidence. A proper reminder that the account was not repeated on oath and was not tested in cross-examination concerns weight; it does not require the jury to disregard it.

The appellant was convicted of murder at Bristol Crown Court on 4 November 2002 and sentenced to life imprisonment. DNA evidence established that his semen was found on the victim. In police interviews, he denied murder and gave an account of consensual sexual activity, maintaining that the victim was alive when they parted.

Permission to appeal was refused on four grounds concerning the evidence and summing-up, but granted on a fifth ground. The issue before the Court of Appeal was whether the trial judge’s failure expressly to direct the jury that the whole of the appellant’s interview account was evidence to be considered in deciding the truth rendered the conviction unsafe.

1. Appeal dismissed. The conviction was safe despite the absence of an express direction that the whole content of the appellant’s police interviews was evidence to be considered when deciding where the truth lay.

2. The court reaffirmed the rule in R v Duncan 73 Cr.App.R 359, approved in R v Sharp 86 Cr.App.R 274 and R v Aziz [1996] AC 41. Where the Crown tenders a mixed statement, the jury must consider both its inculpatory and exculpatory parts in deciding the truth. The judge should therefore have stated expressly that the interviews formed part of the evidence for that purpose.

3. That omission did not, however, mislead this jury. The judge had repeatedly directed it to decide the facts on the evidence, had summarised the interviews fairly and in considerable detail, and had described that summary as completing her review of the evidence. The jury had transcripts, heard parts of the interview recordings, and asked to hear passages again after retiring.

4. The direction concerning the appellant’s failure to give evidence did not tell the jury to disregard his interview account. It permissibly identified that the account had not been repeated on oath or tested in cross-examination, which was relevant to its weight. Read in its context, the direction did not detract from the jury’s obligation to assess the account.

5. The court held that an express direction could not possibly have altered the jury’s approach to the interviews or its verdict. The appeal against conviction was therefore dismissed.

• Court of Appeal (Criminal Division): By judgment dated 4 November 2004, [2004] EWCA Crim 3100, dismissed the appeal against conviction.

• Permission stage: The single judge refused leave. The full court refused leave on grounds 1 to 4 but granted leave on ground 5 concerning the jury direction on the police interviews.

• Crown Court at Bristol: On 4 November 2002, the appellant was convicted of murder and sentenced to life imprisonment.