MM, R, v R

A criminal summing-up remains fair where the judge gives measured common-sense assistance on why a child who has been abused may delay reporting it. The judge must leave the issue to the jury, make clear that the observations are not directions of law, and preserve the defence case that delay supports fabrication.

Fairness is assessed by reading the summing-up as a whole. A judge need not rehearse every item of evidence, especially where omitted matters are peripheral. Directions that fairly present the prosecution and defence cases will not be impugned merely because particular evidential details or alternative inferences receive less emphasis.

The appellant, the stepfather of K and R, was convicted at the Crown Court at Sheffield of three counts of rape of K and three counts of indecent assault of R. He received concurrent sentences of 12 years’ imprisonment for the rape counts and concurrent sentences of 12 months’ imprisonment for the indecent-assault counts.

He appealed against conviction with the single judge’s leave. His sole ground was that the trial judge’s summing-up was unfairly slanted towards the prosecution. The principal complaint concerned the judge’s comments on possible reasons why children who had been abused might not disclose it promptly, in circumstances where the defence alleged that both complainants had fabricated their accounts.

1. Appeal dismissed. The Court of Appeal held that the summing-up, read as a whole, was fair and did not favour the prosecution.

2. The trial judge had first warned the jury that the delay in making the complaints could cause real difficulty and prejudice to the appellant. That was a direction favourable to the defence and required the jury to bear delay in mind when deciding whether the prosecution had made them sure of guilt.

3. The subsequent comments on possible reasons for delayed disclosure were permissible. In a case where fabrication was the defence, the jury could properly be assisted with measured common-sense observations about why a child might be inhibited from reporting abuse, particularly within a family relationship. The judge did not present those matters as law or as facts proved in the case. He repeatedly left it to the jury to decide whether they applied and reminded them of the complainants’ own explanations.

4. The jury would already understand that allegations might be fabricated. They might not equally understand why an early complaint was not made. The comments therefore did not amount to the judge giving the Crown’s case his personal endorsement.

5. The remaining criticisms did not establish unfairness. A judge need not remind a jury of every evidential detail, particularly in a short trial. The omitted details concerning physical description and the complainants’ knowledge of sexual matters were peripheral, and the comment on collusion was permissible. The judge fairly set out the appellant’s evidence and case, and put the issues before the jury fairly and squarely.

• Court of Appeal (Criminal Division) — dismissed the appellant’s appeal against conviction.
• Crown Court at Sheffield — convicted the appellant of three counts of rape and three counts of indecent assault, and imposed concurrent sentences.