Sidhu, R. v

A jury direction that a defendant’s evidence must be approached fairly is not, in itself, a legal direction whose omission necessarily amounts to a misdirection. The adequacy of a summing-up must be assessed as a whole and by asking whether any arguable deficiency could affect the safety of the conviction.

Where a witness has made a previous inconsistent statement, section 119(1) of the Criminal Justice Act 2003 makes both the oral account and the earlier statement evidence. It is sufficient to explain that the jury may accept either account, or neither, and may act on the account they find accurate. An express direction that the inconsistency may affect general reliability is not invariably required.

The applicant was convicted at Birmingham Crown Court of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, following an attack with a metal bar. His case at trial was that he intended to strike the complainant’s body rather than head and did not intend really serious injury.

He made a renewed application for permission to appeal against conviction. He alleged misdirection in the judge’s treatment of the defendant’s evidence and of a prosecution witness’s previous inconsistent police statement. The central issue was whether the summing-up, read fairly and as a whole, inadequately directed the jury on fairness and the evidential effect of the earlier statement.

1. The renewed application for permission to appeal was dismissed. There was no legitimate complaint about the summing-up and no arguable defect capable of affecting the soundness of the conviction.

2. A reminder that the jury must assess a defendant’s evidence fairly is commonly appropriate, but it is not itself a legal direction. The jury’s oath and the ordinary directions to consider the evidence carefully already require a fair assessment. In any event, the judge twice reminded this jury to approach the applicant’s evidence fairly. The location of that reminder outside a section headed “Legal Directions” could not amount to a material misdirection.

3. Under section 119(1) of the Criminal Justice Act 2003, both the witness’s oral evidence and his earlier inconsistent police statement formed part of the evidence. The judge correctly explained that the jury were not bound to accept either account and could prefer, and act on, the account they found accurate in any respect.

4. The judge was not required expressly to state that the inconsistency might undermine the witness’s general reliability or that the passage of time might have affected memory. His direction implicitly permitted the jury to reject both accounts. It concisely conveyed the matters arising from the statutory provision and the inconsistency.

5. A summing-up is not to be scrutinised sentence by sentence in isolation. The proper question is whether, taken in the round, it contains an arguable failure capable of affecting the safety of the conviction. On that approach, neither ground disclosed an arguable misdirection.

• Court of Appeal (Criminal Division): renewed application for permission to appeal against conviction dismissed in [2013] EWCA Crim 1962.

• Birmingham Crown Court: the applicant was convicted on 18 October 2012 of causing grievous bodily harm with intent and received a total sentence of six years’ imprisonment for that and other counts to which he had pleaded guilty.