Campbell, R. v

A trial judge may comment on an accused’s failure to call an available and apparently relevant witness, but must do so fairly. The jury should be cautioned against speculation, and the burden of proof remains on the prosecution.

Procedural departures during a summing-up do not make a conviction unsafe without actual prejudice. In assessing disputed bad-character evidence, the jury must be sure of the prosecution’s factual case before considering whether it demonstrates misconduct and what, if any, limited support it gives to the prosecution case. A separate Lucas direction is unnecessary where the relevance lies in proved misconduct rather than in the fact of a lie.

The appellant was convicted at the Central Criminal Court of murder and three robberies arising from a fatal shooting during an attempted drugs robbery. He received life imprisonment for murder, subject to a minimum term of 30 years, with concurrent sentences for the robberies.

He appealed against conviction principally on the basis of alleged misdirections and unfairness in the summing-up. The complaints concerned comments on witnesses and an expert not called by the defence, possible further cell-site evidence, a juror’s note about a telephone call, the treatment of bad-character evidence, and the absence of a Lucas direction.

1. Appeal dismissed. The judge’s comments about defence witnesses who were not called did not shift any burden to the appellant. They were measured, reflected the proper caution against speculation, and were particularly understandable in a trial involving a co-accused who advanced a cut-throat defence.

2. The judge was entitled to be concerned that a potentially important point about cell-site coverage had been overlooked. It would, however, have been better not to tell the jury that further enquiries might be made, because that created a risk of speculation. The risk did not prejudice the appellant. No further evidence was admitted, and the jury were told that the further work would not materially assist them either way.

3. Likewise, the judge should first have shown the juror’s note about a telephone call to counsel before raising it in the jury’s presence. The appellant nevertheless suffered no prejudice. Counsel gave the logical reason why he would not be recalled: his evidence was that he had not been involved with the co-accused or the enterprise at all.

4. The summing-up dealt fairly with the cell-site evidence. On the bad-character issue, the judge did not reverse the burden of proof. The jury had to reject the appellant’s explanation and be sure of the Crown’s alternative factual case before treating the firearm and residue evidence as showing that he was a gunman. Even then, the evidence could provide only limited support and could not prove guilt by itself.

5. No Lucas direction was required. If the appellant’s account might be true, the bad-character issue fell away. If the jury rejected it and were sure of the Crown’s factual case, the relevant issue was proved misconduct within section 98 of the Criminal Justice Act 2003, rather than the evidential significance of a lie.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 1076, dismissed the appellant’s appeal against conviction.

• Central Criminal Court: Before HHJ Roberts QC, convicted the appellant of murder and three robberies.