MB, R. v

A criminal judge must put the defence case fairly and sufficiently. Where an unrepresented defence is contained in a police interview, the judge should make a proper and structured summary of the material defence. A separate reference to the availability of the interview transcript will not ordinarily suffice. The requirement is met where the summing-up repeatedly and cogently identifies the substance of the defence.

A good-character direction normally addresses credibility and propensity, including where the defendant gave an exculpatory interview but did not testify. Its omission does not inevitably make a conviction unsafe. A reasonable tactical decision not to seek the direction, because it might permit damaging bad-character evidence, cannot later be recast as counsel’s error. In any event, safety depends on the strength of the evidence as a whole.

The applicant was convicted at Nottingham Crown Court of two offences of cruelty to a person under 16. She received concurrent suspended sentences of 20 weeks’ imprisonment with an unpaid-work requirement.

Nearly two years later, she sought an extension of time to apply for leave to appeal against conviction. Her defence at trial, advanced through police interviews and counsel’s cross-examination, was that nursery staff had fabricated allegations of assaults on her child to conceal injuries caused at the nursery.

She contended that the trial judge had failed fairly to summarise that defence and had failed to give a good-character direction. The central issues were whether the summing-up adequately conveyed her interview case and whether the absence of a good-character direction rendered the convictions unsafe.

1. Extension of time refused. The court held that, if time had been extended, it would also have refused permission to appeal because neither proposed ground showed that the convictions were unsafe.

2. The judge had fairly and sufficiently put the defence case. The obligation identified in Curley and Cadwell [2004] EWCA Crim 2395 requires a proper and structured reference to a material interview account where a defendant neither gives nor calls evidence. It does not require a formulaic reference to the interview itself. Here the summing-up repeatedly identified the essential defence: that the child was not present on the first date and that nursery staff had fabricated allegations to conceal their own wrongdoing. The later reference to the available interview transcript did not stand alone. The jury could not have misunderstood the defence they had to assess.

3. A good-character direction is important where it is appropriate and properly raised. It ordinarily covers both credibility and propensity, and may be relevant to an exculpatory interview even where the defendant does not testify. But the applicant’s advocate had made a reasonable tactical decision not to seek such a direction. At the time, pending allegations could potentially have led to damaging bad-character evidence under the Criminal Justice Act. An unqualified good-character direction would in any event have been inappropriate.

4. The absence of a direction did not render the convictions unsafe. The prosecution evidence that the child attended the nursery on the first date was strong, and the alleged fabrication would have required complex manipulation of records. The applicant’s accusations against the nursery staff were not given on oath. The unexplained length of the delay further supported refusal of the extension, although the lack of merit in the appeal was decisive.

• Court of Appeal (Criminal Division): refused the applicant an extension of time to seek leave to appeal against conviction: [2013] EWCA Crim 1295.
• Crown Court at Nottingham: convicted the applicant on 14 June 2010 of two counts of cruelty to a person under 16, and on 1 November 2010 imposed concurrent suspended sentences of 20 weeks’ imprisonment with 150 hours’ unpaid work.