C, R. v

A judge need not give a separate circumstantial-evidence direction merely because the prosecution case includes circumstances capable of supporting guilt. The need for such a direction depends on the issues genuinely raised at trial. Where a case turns on expert evidence and the defence case consists of testing that evidence through cross-examination, a clear direction on the role of expert evidence may be sufficient.

The form of a summing-up is for the trial judge. It must direct the jury correctly in law and present the evidence and the parties’ cases with clarity, coherence and fairness. A defence case may be adequately put by an integrated review of the concessions obtained from prosecution experts; a separate concluding section is not invariably required.

The appellant was convicted at Portsmouth Crown Court of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. His infant daughter suffered severe brain injury, retinal haemorrhages and a posterior rib fracture while in his sole care.

The Crown alleged a non-accidental injury. The defence did not advance a positive alternative mechanism, but relied on concessions obtained from medical experts concerning possible non-traumatic explanations and uncertainty about the mechanism of injury. On appeal, the appellant contended that the judge’s summing-up inadequately identified the defence case and should have included a direction on circumstantial evidence, particularly in conjunction with the adverse-inference direction arising from his failure to give evidence.

1. Appeal dismissed. The conviction was safe. The summing-up was balanced, fair and sufficient.
2. A separate direction on circumstantial evidence was not required. The appellant’s exclusive care of the child after a particular time was the only possible circumstantial feature identified, but it was not disputed and did not trigger such a direction. The real issue was whether the expert evidence made the jury sure of guilt.
3. The defence was entitled to put the Crown to proof without calling its own expert or advancing a positive mechanism of injury. Its case was that concessions obtained in cross-examination weakened the Crown’s expert case. The judge properly directed the jury on the status and effect of expert evidence and made clear that the jury remained the final arbiter of it.
4. The judge had sufficiently put the defence case. In reviewing each expert’s evidence, he repeatedly identified the concessions made in cross-examination, including the uncertainties concerning the cause and timing of the injuries and possible alternatives to a non-accidental mechanism. The jury could not reasonably have been left in doubt about the defence contention.
5. The structure of a summing-up is for the trial judge. Different methods may be proper, provided that the judge directs on the law, coherently explains the evidence and, where appropriate, rehearses the parties’ cases. Although a separate final section expressly contrasting the parties’ cases may sometimes be desirable, it was unnecessary here.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2009] EWCA Crim 2376.
• Crown Court at Portsmouth: convicted the appellant on 30 April 2009 of inflicting grievous bodily harm and sentenced him on 5 June 2009 to 16 months’ imprisonment, with disqualification from working with children.