Higgins & Anor v The Crown

A judge should not express personal views on contentious issues when summing up. The proper course is to present the prosecution and defence cases fairly. Formulaic reminders that the assessment is for the jury do not cure a summing-up that is substantively unbalanced.

However, an appellate court must assess an alleged misdirection in the context of the evidence as a whole. A strongly expressed and unconventional character direction did not render these convictions unsafe where the independent evidence, particularly the pattern of card withdrawals and unsuccessful attempts, was inconsistent with the defence account.

The appellants were convicted at the Crown Court at Chelmsford of robbery, kidnapping, fraud and assault occasioning actual bodily harm. The prosecution alleged that they assaulted the complainant, took his bank card at knife-point and used it to obtain cash and goods. The defence alleged that he had voluntarily participated in drinking and drug-taking and had invented the allegations to conceal his own expenditure.

On appeal, the appellants challenged the judge’s handling of evidence about a hair sample, the character direction concerning their previous convictions, and, in Guy’s case, the adverse-inference direction following his decision not to give evidence. The central issue was whether any of those matters rendered the convictions unsafe.

1. Appeals dismissed. The court held that none of the complaints rendered the convictions unsafe.

2. The judge’s initial response to the jury’s question about the complainant’s hair sample was open to criticism because it invited an inference about a negative result when no result was in evidence. The judge later withdrew his earlier comments and confined the jury to the evidence actually given. Assuming that the jury nevertheless inferred a negative result, the point did not undermine the safety of the convictions. The available expert report did not establish whether the complainant had consumed drugs on the relevant evening, and there was no independent material suggesting that he was a regular drug user willing to spend substantial sums on cocaine. The court therefore refused to adjourn for further expert evidence.

3. The character direction was unconventional and excessive in tone. Applying the guidance in [2004] EWCA (Crim) 1816, judges should not express their own views on contentious matters but should fairly summarise the rival cases. The judge came close to usurping the jury’s function by inviting them to think long and hard before acting on the appellants’ word. Nevertheless, the direction did not make the convictions unsafe. The history of withdrawals and attempted withdrawals, including those at Tesco, was strongly inconsistent with the defence case that the complainant had acted willingly.

4. The challenge to the adverse-inference direction in Guy’s case had no merit. The jury were entitled to assess the evidence bearing on each appellant. If they considered Higgins’s case separately, they could take account of the fact that Higgins’s evidence was the only evidence said to undermine the complainant’s credibility.

• Court of Appeal (Criminal Division): The appeals against conviction were dismissed: [2010] EWCA Crim 308.
• Crown Court at Chelmsford: Before HHJ Ball QC, the appellants were convicted on 3 August 2009 of robbery, kidnapping, fraud and assault occasioning actual bodily harm.