Joseph, R. v

A jury summing-up must fairly present the prosecution and defence cases. The appellate court assesses alleged imbalance by considering the summing-up and trial as a whole. Inappropriate, emotive or repeated comments do not necessarily make a conviction unsafe where there is no material omission, the jury are clearly directed that fact-finding is their responsibility, and the court remains satisfied that the trial was fair.

When applying section 227 of the Criminal Justice Act 2003, an extended sentence is justified where its statutory conditions are met and the extension period is no longer than necessary to protect the public from serious harm caused by further specified offences.

The appellant was convicted at Reading Crown Court of two rapes, assault by penetration, causing a child to engage in sexual activity and sexual assault. He received concurrent extended sentences of 15 years on the rape counts, comprising 10 years’ custody and a five-year extension period.

He appealed against conviction on the ground that the trial judge’s summing-up was unbalanced and unfairly adverse to the defence. He also challenged the extended sentence, principally the necessity and length of the extension period. The central questions were whether the summing-up rendered the convictions unsafe and whether the sentence was wrong in principle or excessive.

Both appeals were dismissed.

1. The Court accepted that the summing-up contained several comments that ought not to have been made. The judge used unduly strong language about the defence case, repeated the appellant’s admitted lies more than was appropriate, and at times risked suggesting that defence inconsistencies were insignificant. His treatment of the evidence of a potential witness and of an alleged police-car remark was also capable of criticism.

2. Those defects did not undermine the fairness of the trial or the safety of the convictions. The summing-up contained no major gap and drew attention to the relevant features of both cases. The jury had received conventional and proper directions that they alone decided the facts and could disregard the judge’s observations. The evidence against the appellant was very strong. Reviewing the case as a whole, the Court had no lingering doubt of the kind referred to in R v Cooper [1969] 1 QB 267.

3. On sentence, the conditions for an extended sentence under section 227 of the Criminal Justice Act 2003 were met. Despite some confusion in the pre-sentence report, the appellant presented a significant risk to the public of serious harm through further specified offences. The five-year extension period was not longer than necessary for public protection. Completion of relevant prison programmes and a possible reduction in risk after the appellant reached 25 gave no assurance that the remaining risk would then be acceptable. The 10-year custodial term and five-year extension were neither wrong in principle nor excessive.

• Court of Appeal (Criminal Division) — in [2010] EWCA Crim 2445, dismissed the appeals against conviction and sentence.
• Reading Crown Court — convicted the appellant on 27 August 2009 and, on 15 October 2009, imposed concurrent extended sentences of 15 years on the rape counts.