Ali, R. v

A trial judge may comment robustly on the evidence and remind the jury of the parties’ submissions. The summing-up must nevertheless remain fair and impartial when read as a whole. It must not become unbalanced or turn the judge into an advocate.

The good character of a prosecution witness is generally not admissible merely to support credibility. It may, however, be admissible where it is relevant to an issue the jury must decide. Where the prosecution must prove that the defendant, rather than the principal prosecution witness, committed the offence, the witness’s character may be issue-relevant. Whether a direction causes unfairness depends on the circumstances and the safety of the conviction.

The appellant was convicted of murdering a 19-month-old child at Sheffield Crown Court on 18 November 2004 and sentenced to life imprisonment. The only realistic perpetrators were the appellant and the child’s mother, Zara Ali, who gave evidence for the prosecution.

On appeal against conviction, the appellant advanced two grounds. First, he contended that the final part of the judge’s summing-up was unbalanced and amounted to advocacy for the prosecution. Secondly, he contended that the judge improperly diluted his good-character direction by telling the jury that there was no evidence that Zara Ali was other than of good character.

1. Appeal dismissed. The summing-up, read as a whole, was fair and did not render the conviction unsafe.
2. A judge is entitled to comment on the evidence, but must sum up fairly and impartially. The judge must not make the summing-up as a whole unbalanced or assume the role of advocate. The impugned passage reminded the jury of the central defence submission, fairly identified the competing explanations for the mother’s changing account, and attributed much of the comment to the prosecution’s case. The concluding words, “You decide”, reinforced the earlier direction that the jury could reject judicial comment.
3. The court distinguished R v Reed, in which the conclusion of the summing-up had been one-sided and partly misleading. It applied the approach stated in R v Ungvari [2003] EWCA Crim 2346. The judge’s comments here were permissible and the jury could have been in no doubt that conviction required certainty that the appellant caused the child’s death.
4. As a general rule, the good character of a prosecution witness is not admissible merely as evidence of credibility, unlike a defendant’s good character. The rule does not prevent such evidence being received where it is relevant to an issue. In this case, the central issue was whether the appellant or Zara Ali committed the murder. Although the appellant bore no burden to prove that Zara Ali was responsible, the prosecution in substance had to exclude her as the perpetrator. Her good character was therefore potentially admissible as issue-relevant evidence.
5. The direction created no misdirection. Any technical good-character point was in any event of limited practical value because both principal witnesses had lied about events surrounding the death and there was evidence that each had previously used violence towards the child. Even if there had been error, it would not have affected the safety of the conviction. The court observed, without deciding the wider question, that the admissibility of prosecution-witness character evidence might merit reconsideration in a suitable future case following the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against conviction: [2006] EWCA Crim 1976.
• Sheffield Crown Court: convicted the appellant of murder on 18 November 2004 and imposed life imprisonment with a recommended minimum term of 17½ years. A previous appeal against the recommendation had failed.