Reid, R v

A trial judge has a discretion to recall a defendant or co-defendant before summing up. Ordinarily, a defendant must give a full account when first giving evidence and should not be recalled merely to advance a contradictory version that was then available. That principle is almost universal, but the discretion is not subject to an absolute bar.

In highly unusual circumstances, recall may serve the interests of justice where it enables the jury to examine an already apparent inconsistency and there is an evidential basis for concluding that intimidation may have distorted earlier evidence. The judge must preserve the opposing party's fair opportunity to meet the new account. A conviction remains safe where the disputed evidence was only part of the evidence before the jury and the appellant had that opportunity.

The appellant was acquitted of murder but convicted of manslaughter at Chelmsford Crown Court after stabbing the deceased. His co-accused, Tedman, was convicted of assisting an offender.

At trial, Tedman initially gave evidence supporting the appellant's account of self-defence, contrary to his earlier accounts. After closing speeches, Tedman stated that his evidence had been false and caused by intimidation from the appellant. The trial judge reopened Tedman's case and recalled him. Tedman then returned to his earlier account, and the appellant denied exerting pressure.

The appellant appealed against conviction, contending that the judge should not have permitted the recall and that the resulting verdict was unsafe.

1. Appeal dismissed. The judge was entitled to permit Tedman to be recalled in the highly unusual circumstances of this trial. The governing principle is that a defendant normally has one opportunity to give a complete account and should not be recalled simply to replace it with a contradictory account that was available when first in the witness box.

2. That principle did not impose an immutable prohibition. The court followed the qualification recognised in R v Ikram and Parveen [2008] EWCA Crim 586: exceptional circumstances may require recall in the interests of justice. The judge therefore had to exercise a real discretion, rather than apply a rigid rule.

3. This case was materially different from R v Cook [2005] EWCA Crim 2011 and R v Ikram and Parveen. Tedman was not seeking to devise a wholly new account after hearing a co-defendant's evidence. His interview account and his evidence were already inconsistent. His proposed further evidence would explain that inconsistency and permit the jury to decide whether intimidation had caused it.

4. There was an evidential basis for that possibility. Tedman's changed account had mirrored the appellant's account, although supporting the appellant's self-defence case was not necessarily in Tedman's own interest. Leaving the apparent change unexplained risked impairing the integrity of the trial. The judge correctly left the truth and reliability of Tedman's accounts to the jury and allowed the appellant a full opportunity to answer the allegation.

5. In any event, the verdict was not unsafe. Tedman's evidence was only part of the evidence bearing on self-defence. The jury had other eyewitness evidence, had reason to treat Tedman's shifting accounts with caution, and heard the appellant's response to the allegation of intimidation.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2010] EWCA Crim 1478.
• Crown Court at Chelmsford: On 11 April 2006, the appellant was acquitted of murder and convicted of manslaughter. He received imprisonment for public protection with a minimum term of five years.