Shirley, R v (Rev 1)

An out-of-court statement is not a mixed statement merely because it contains admissions. Its inculpatory elements must be significant to the prosecution case as conducted at trial. Only a true mixed statement requires the jury to consider both its inculpatory and exculpatory elements when deciding where the truth lies.

A summing up must be fair and balanced when read as a whole. A judge need not assemble every defence point in a single passage if the material points have been adequately drawn to the jury’s attention during the review of the evidence. The adequacy of the summing up depends on the circumstances, including the length of the summing up and the proximity and quality of the defence speech.

R v Shirley was an appeal against convictions at the Crown Court at Bristol for 12 offences of sexual assault by penetration, four rapes and unlawful wounding. The appellant received life sentences, with minimum terms for the sexual offences.

The prosecution relied principally on the complainant’s evidence, supported by identification, evidence concerning the appellant’s use of the name Mark and claimed military background, and admitted previous convictions. The defence challenged the complainant’s reliability and identification evidence, relying on delay, mental illness, inconsistencies and improbabilities.

The appeal alleged that the trial judge had failed to present the defence case fairly and, by an additional ground, had misdirected the jury about the evidential use of the appellant’s prepared statement and police interview.

1. Appeal dismissed. The convictions were safe. The jury had heard the complainant tested over four days and had ample opportunity to assess her credibility and reliability. There was evidence capable of supporting her account.
2. The appellant’s statement and interview were not mixed statements. Although they contained limited admissions that he used the name Mark and told people he had been in the army, those admissions were not significant to the prosecution case as conducted at trial. They had to be viewed with his denial that he had attended the relevant bar. The judge was therefore entitled to direct that the exculpatory assertions were not evidence of the facts asserted.
3. The court accepted the governing approach stated in R v Duncan, (1981) 73 Cr App R 359, but applied the limiting principle explained in R v Garrod, [1997] Crim LR 445, and R v Papworth and Doyle, [2008] 1 Cr App R 36. A statement does not become mixed simply because it contains an admission; the inculpatory part must be significant in relation to the prosecution case.
4. The summing up, read as a whole, was fair and balanced. The judge drew attention to substantially all points capable of undermining the complainant’s reliability, although he could have dealt more fully with some evidence about a white van. He was not obliged to gather every defence point in one place. The short summing up followed immediately after a cogently presented defence speech, and the jury had been properly directed on delay and the appellant’s difficulty in answering old allegations.

• Court of Appeal (Criminal Division): dismissed the appellant’s conviction appeal and held that the convictions were safe.
• Crown Court at Bristol: on 27 September 2012, convicted the appellant of sexual offences and unlawful wounding and imposed life sentences for the sexual offences.