A & Ors v R

A conviction is unsafe where defects in the conduct of a criminal trial deprive the jury of a fair opportunity to reach a rational verdict. Delay, fragmented sittings and breaches of case-management requirements do not by themselves establish unfairness. The decisive question is whether, in the circumstances, a fair trial remained possible.

A summing-up must accurately identify and analyse the live factual issues for both sides. That duty becomes especially important in a long and disrupted trial. A recital of evidence which does not relate the prosecution case and the defence responses to the issues for decision cannot cure the effects of serious disruption.

The three appellants were convicted at the Crown Court at Kingston upon Thames of conspiracy to contravene section 170 of the Customs and Excise Management Act 1979. The prosecution alleged that alcoholic drink ostensibly sent in bond to overseas destinations had been diverted for sale in the United Kingdom, supported by false delivery documents.

The trial, estimated at four months, extended over about 11 months. It involved many short sittings, long interruptions to accommodate jurors’ commitments, and a 17-day break during the jury’s deliberations. The appellants contended that the fragmented trial and inadequate summing-up made their convictions unsafe. The central issue was whether the trial process nevertheless gave the jury a fair opportunity to assess the evidence and reach rational verdicts.

1. Appeals allowed. The court held that the convictions were unsafe because the trial process was so defective that the jury had been deprived of a fair opportunity to reach rational conclusions.

2. The overriding question was the fairness of the particular trial. The right to a fair trial was absolute, but departures from good practice, the Criminal Procedure Rules 2005, or the Lord Chief Justice’s Protocol were factors in the safety assessment rather than automatic grounds for quashing a conviction. Nor did the duration of a trial alone make a conviction unsafe. The question was whether its length and disruption had made a fair trial impossible.

3. The court found that the trial had lasted far too long and had been repeatedly disrupted. The principal cause was the failure to ensure sufficient and full sitting days. Allowing individual jurors to take holidays after the trial had overrun its estimate created inevitable further disruption.

4. The summing-up did not satisfy the requirements explained in R v Lawrence, [1982] AC 510, and R v Nelson, [1997] Crim.L.R. 234. Although legally accurate, it did not identify the real issues concerning each appellant’s knowledge, the prosecution evidence said to establish it, or the defendants’ responses. Reading extracts from the defendants’ evidence was not an adequate direction on those issues.

5. That failure was aggravated by the 17-day interruption during deliberations, against the background of the earlier fragmentation. The apparent strength of the prosecution case and the jury’s conscientious conduct could not provide objective assurance that the verdicts resulted from a fair process. The court would hear argument on whether to order a new trial.

• Court of Appeal (Criminal Division): Allowed all three appeals in [2007] EWCA Crim 2485 after concluding that the convictions were unsafe. The court reserved the question whether a new trial should be ordered.

• Crown Court at Kingston upon Thames: Convicted the appellants of conspiracy to contravene section 170 of the Customs and Excise Management Act 1979.