Collins & Ors, R v

A trial judge should not invite a jury, at the close of the prosecution case, to exercise any residual common law power to stop the case. The practice has been comprehensively disapproved and could only conceivably arise in exceptional circumstances. Where the prosecution case is thought too weak, the judge must invite and determine submissions of no case to answer rather than transfer that responsibility to the jury.

An invitation to acquit risks premature conclusions without counsel’s submissions or proper legal directions. The risk is acute in a complex, multi-defendant trial and may be compounded by directions about a defendant’s failure to testify and an inadequate summing-up. Case-management powers cannot justify a material irregularity. The appellate court must assess the cumulative effect on the safety of the convictions.

At Teesside Crown Court, Collins, Morrison, Threadgill and Tyers were convicted of conspiracy to kidnap and conspiracy to blackmail following an alleged ransom kidnapping. The prosecution relied on, among other evidence, telephone data, ransom calls, and evidence from Anthony and Jonathan Pattison. The defence contended that the incident was a sham connected with contraband-cigarette dealings.

At the close of the prosecution case, the Recorder told the jury that it could return general verdicts of not guilty or choose to hear more. The jury chose to hear more. The judge later rejected submissions of no case to answer. The appellants challenged the resulting convictions, principally on the basis that the judge’s direction had been a material and irreparable irregularity.

1. The appeals were allowed. The convictions for conspiracy to kidnap and conspiracy to blackmail were quashed and a retrial was ordered.
2. The court did not hold that a jury’s residual common law right to stop a case had ceased to exist. It held, however, that inviting a jury to exercise that right had been comprehensively disapproved by R v Falconer-Atlee, R v Kemp and R v Speechley [2004] EWCA Crim 3067. The practice could only conceivably arise in exceptional circumstances and was plainly inappropriate in this complex, multi-defendant trial. It was also strongly arguable that the practice could not survive article 6 requirements.
3. If a judge considers the prosecution evidence too tenuous, unsafe or unsatisfactory to leave to the jury, the judge must take responsibility for deciding the issue after inviting submissions of no case to answer. The judge must not place that responsibility on the jury. Here, the judge should have followed that conventional course; there was in fact a clear case to answer.
4. The direction crossed the line between merely informing the jury and inviting acquittal. It risked a provisional conclusion about the credibility of the principal witnesses before submissions by counsel, a full direction on law, or a proper explanation of the evidence admissible against each defendant. The risk was aggravated by the later directions concerning the defendants’ failure to give evidence and by a summing-up which did not adequately structure the evidence and issues after a lengthy, interrupted trial.
5. The Criminal Procedure Rules overriding objective could not justify a material irregularity for case-management reasons. The abuse-of-process ground nevertheless failed: any unwitting deception about the Pattisons’ criminality had been cured by disclosure following the public-interest-immunity hearings.
6. The cumulative effect of the irregularity and other defects rendered the convictions unsafe. Morrison’s separate convictions on counts 3 and 5, entered following guilty pleas, were not challenged and remained valid.

• Court of Appeal (Criminal Division) — Allowed the appeals, quashed the convictions on counts 1 and 2, and ordered a retrial: [2007] EWCA Crim 854.
• Teesside Crown Court — On 24 January 2006, convicted the four appellants by majority verdicts of conspiracy to kidnap and conspiracy to blackmail. Morrison also pleaded guilty to separate prohibited-weapons counts.