Clarke, R. v

A trial judge must put the defence case to the jury fairly and sufficiently. Where an accused has neither given nor called evidence, but has given detailed interviews containing the defence, the summing-up must make proper and structured reference to the material points in those interviews.

A general instruction to make what they will of the interviews, coupled with adverse observations, does not adequately present that defence. A conviction will only rarely remain safe despite such an omission. The question is whether the case is truly exceptional, having regard to the evidence and the clarity of the account given in interview.

The appellant was convicted at Kingston-upon-Thames Crown Court of conspiracy to steal and conspiracy to handle stolen goods. He was acquitted of conspiracy to burgle.

The prosecution case against him was circumstantial. It relied on his association with co-defendants near occasions when stolen cars were sold, evidence placing him near relevant events, an allegation that he drove a stolen vehicle, and keys found at his home. He did not give evidence, but in lengthy police interviews consistently denied participation in any conspiracy.

His appeal challenged the judge's summing-up on the ground that it did not fairly present the defence apparent from those interviews. The central issue was whether that omission rendered the convictions unsafe.

1. Appeal allowed. The convictions for conspiracy to steal and conspiracy to handle stolen goods were unsafe. The Crown did not seek a retrial.

2. The judge had a plain duty to put the defence fairly and sufficiently. Where a defendant has not given or called evidence, a detailed and relevant interview account may constitute the evidential material supporting the defence. The judge must summarise that material properly and in a structured way. The court applied the principles described in R v Akhtar (4th October 1999) and R v Curley & Cadwell [2004] EWCA Crim 2395.

3. The summing-up did not discharge that duty. It referred generally to the interviews and invited the jury to make what they wished of them, but did not identify the appellant's consistent case that his associations and presence at particular events did not establish complicity in the conspiracies. The judge's substantive comments on the interviews were adverse to the appellant.

4. This was not an exceptional case in which the omission could be disregarded. The case was wholly circumstantial and the interviews contained a clear and consistent denial of involvement. Although the jury had acquitted the appellant on the burglary-conspiracy count, that did not show that the convictions on the remaining counts were safe without proper assistance on the defence case.

5. The appeal was therefore allowed on counts 2 and 3. No retrial was ordered.

• Court of Appeal (Criminal Division): Allowed the appellant's appeal against conviction in [2010] EWCA Crim 684.
• Crown Court at Kingston-upon-Thames: On 3 June 2009, convicted the appellant of conspiracy to steal and conspiracy to handle stolen goods, and acquitted him of conspiracy to burgle.