Smith, R. v

The safety of a conviction must be assessed by reference to the trial and summing-up as a whole. An ill-judged judicial intervention or adverse comment will not render a conviction unsafe unless, in its context, it deprived the defendant of a fair trial or materially affected the verdict.

Fresh evidence showing that particular facts were wrongly put to the jury must be assessed for its actual significance in the light of the remaining evidence. In sentencing a parent for murder of a child, the court must apply Criminal Justice Act 2003 Schedule 21 flexibly and proportionately, avoid double counting connected aggravating factors, and give proper weight to youth and immaturity.

The appellant was convicted at the Crown Court at Birmingham of murdering her young child and of child cruelty. She received life imprisonment with a minimum term of 24 years.

She appealed against conviction on the grounds that the trial judge had intervened improperly during the defence closing speech and had presented the evidence unfairly in the summing-up. After further disclosure, she also sought to adduce fresh evidence showing that the jury had been wrongly informed about a purported weight measurement and the circumstances of a minor finger injury.

The appeal against sentence challenged the minimum term as excessive. The central questions were whether the conviction remained safe when the trial was viewed as a whole, and what minimum term properly reflected the aggravating and mitigating factors.

1. The conviction appeal was dismissed. The judge should have told defence counsel what she proposed to say before addressing the jury, and the personal reference to what counsel knew should not have been made without first raising the matter with him. Some comments in the summing-up also went further than other judges would have gone. Those matters required assessment by their effect on the safety of the conviction, not as isolated errors.

2. The jury should not be told that a judge has rejected a submission of no case to answer. But the significance of such information depends on the circumstances. Here there was plainly a case to answer, the challenged submission about alternative counts was incorrect, and the intervention did not undermine the defence so as to make the verdict unsafe. The summing-up, read as a whole, was thorough and fair. The appellant’s inability to explain the injuries and her changing accounts of the events before the child’s collapse provided ample evidence for the verdicts.

3. Under section 23 of the Criminal Appeal Act 1968, the court received the fresh evidence. The asserted weight on 3 February 2014 was wrong, but the remaining medical evidence established failure to thrive during the material period. The error about the finger blister was peripheral. Neither matter undermined the safety of the conviction.

4. The sentence appeal was allowed. Schedule 21 to the Criminal Justice Act 2003 required a flexible and proportionate assessment of all the facts. Vulnerability and breach of trust were aggravating factors, but the court must avoid double counting where both arise from the parental relationship. For a young and immature parent, a minimum term exceeding 20 years will ordinarily require very serious aggravating features and careful reflection. The 24-year term did not properly reflect the circumstances, prior conduct, other offences and mitigation. It was quashed and replaced by a minimum term of 19 years, less time spent on remand.

• Court of Appeal (Criminal Division): In [2017] EWCA Crim 1174, dismissed the appeal against conviction and allowed the appeal against sentence by substituting a 19-year minimum term.
• Crown Court at Birmingham: Convicted the appellant of murder and child cruelty, imposed life imprisonment, and fixed a minimum term of 24 years.