Neill, R v

A trial judge must fairly and clearly identify the issues for the jury. A lengthy, unedited recitation of evidence, coupled with emotive presentation of one party’s case, risks distracting the jury from that task and may render convictions unsafe.

On an appeal against conviction, however, the court does not assess the quality of a summing-up as an end in itself. It must decide whether the defects could have deflected the jury from a proper and fair consideration of the issues. Where the issues remained clear and the jury was properly focused on the decisive conflict in the evidence, serious criticism of the summing-up need not make the verdicts unsafe.

The appellant was convicted at Bristol Crown Court of four counts of indecent sexual assault upon the 13-year-old daughter of a neighbour. The allegations concerned conduct said to have escalated over about six months, including an alleged incident on 9 January 2012.

He appealed against the convictions returned on 3 December 2012. He contended that His Honour Judge Horton’s summing-up was excessively long, amounted in part to an emotive presentation of the prosecution case, and improperly repeated evidence which the jury had been told could not support the prosecution.

The central issue was whether those deficiencies rendered the convictions unsafe.

1. Appeal dismissed. The court strongly criticised the summing-up but was not persuaded that the convictions were unsafe.

2. Criminal trials depend on effective independent advocacy and on the judge’s fair and clear identification of the matters which the jury must decide. The judge should summarise the evidence and identify the issues. An extensive recital of evidence, witness by witness, tends to distract rather than assist the jury.

3. The judge had unnecessarily recited evidence for about four and a half hours over two days. His account of the prosecution case used emotive language and was capable of appearing to argue that case. He also unnecessarily repeated parts of the mother’s evidence about the complainant’s truthfulness after correctly directing that it was not evidence supporting the prosecution.

4. Those were serious defects in a finely balanced case. The appellate question was nevertheless whether their effect made the verdicts unsafe, rather than whether the summing-up met an appropriate standard.

5. The issues before the jury remained clear. It had to decide whether it was sure that the complainant was truthful, notwithstanding the circumstances relied on by the defence, particularly those surrounding 9 January 2012. It also had to assess the appellant’s account that he had been accused of touching the complainant’s leg in a non-intimate way. The court concluded that the defects could not have deflected the jury from a fair consideration of those issues.

6. The four convictions therefore stood. There was no challenge to the suspended sentence.

• Court of Appeal (Criminal Division): dismissed the appeal against the four convictions in [2013] EWCA Crim 2617.
• Bristol Crown Court: the jury returned four convictions for indecent sexual assault on 3 December 2012. A suspended sentence was imposed later; it was not challenged on appeal.