Guyett & Anor v R

A refusal of further disclosure under Criminal Procedure and Investigations Act 1986, s.8(2), will not render convictions unsafe where the defence has the material point arising from the undisclosed documents and the remaining entries are irrelevant. Speculation that unreviewed material may assist the defence does not establish unfairness or prejudice.

A seriously defective initial summing-up may be cured if, before the jury finally retires, the judge gives a full and fair supplementary direction addressing the material weaknesses, inconsistencies and defence case. An appellate court will not substitute its own assessment of credibility and evidence for the jury’s where the jury were properly directed and the verdicts were safe.

The appellants were convicted at Luton Crown Court of historical offences of indecent assault and indecency with a child against Susan Guyett’s daughter and Douglas Guyett’s stepdaughter. They appealed their convictions on two grounds.

First, they contended that the trial judge wrongly refused further disclosure of the complainant’s diaries and medical records following applications under s.8(2) of the Criminal Procedure and Investigations Act 1986. Secondly, they contended that the judge’s summing-up was partial and defective because it initially omitted important inconsistencies and defence points.

The central questions were whether the disclosure ruling caused unfairness or prejudice, and whether the supplementary summing-up cured the admitted defects in the original directions.

1. Appeals dismissed. The convictions were safe.

2. The trial judge was entitled to refuse further diary disclosure under s.8(2) of the Criminal Procedure and Investigations Act 1986. The prosecution had disclosed entries referring to the appellants or the alleged incidents, and had stated in open court that there were no further such references in the relevant diaries. The material point for the defence was the absence of references to abuse in the diaries supplied to the police. It was unnecessary to disclose entries which did not concern the appellants or were otherwise irrelevant.

3. Relevant medical evidence and consultation notes had been disclosed. The possibility that other unreviewed diaries might contain material helpful to the appellants was speculative. No further review application, save in relation to the 2005 diary, was made at trial; that diary was directed to be reviewed and no complaint was made about the review. The refusal of further disclosure was therefore neither unfair nor prejudicial.

4. The first part of the summing-up was seriously defective because it omitted significant inconsistencies in the prosecution evidence and matters relied on by the defence. Had it ended there, the appeals would have succeeded.

5. However, after counsel drew the defect to the judge’s attention, he recalled the jury and gave a supplementary direction. It addressed the diary entries, the complainant’s state of mind and feelings towards her mother, the affectionate cards, the lack of diary references to abuse, and the inconsistencies relevant to credibility. The directions did not unfairly minimise the defence case or exceed proper judicial comment. The jury were thus aware of the matters bearing on credibility, and it was not for the Court of Appeal to replace their assessment of the evidence with its own.

• Court of Appeal (Criminal Division): Appeals against conviction dismissed in [2009] EWCA Crim 1943.
• Crown Court at Luton: The appellants were convicted by a jury on 4 February 2009 of indecent assault and indecency with a child, and sentenced on 3 April 2009.