MJ, R. v

The propriety of questions or comments in a criminal summing-up depends on their effect on the fairness and balance of the summing-up as a whole. Their form is not decisive. A judge may comment where appropriate, but excessive or one-sided comment may unfairly damage a party's case and is not cured merely by a standard direction on the respective functions of judge and jury.

Trial judges should consider a written route to verdict and a split summing-up. Any introductory factual narrative should be neutral and balanced.

The appellant was convicted at Oxford Crown Court of six sexual offences against children and sentenced to eight years' imprisonment. He appealed against conviction with the leave of the single judge.

The sole ground pursued was that the Recorder's opening questions in her summing-up were rhetorical, trespassed upon the jury's fact-finding function, and unfairly favoured the prosecution. The issue was whether, viewed as a whole, the summing-up rendered the convictions unsafe.

1. Appeal dismissed. The Recorder's opening questions did not render the trial unfair or the convictions unsafe.
2. The governing issue was the effect of the questions on the fairness and balance of the summing-up as a whole, rather than the particular form in which a comment or question was expressed.
3. R v Spencer unreported - 15 June 1994 was materially different. In that case, repeated rhetorical questions and largely one-sided comments had been excessive and partisan. Here, the questions were directed to issues the jury had to decide and did not assume answers or convey the judge's view.
4. The Recorder immediately reminded the jury that they alone were judges of fact and later gave the standard direction on that division of functions. The acquittal on the count concerning one complainant also showed that the jury had considered the evidence carefully and fairly. No objection had been raised before the summing-up concluded.
5. The structure of a summing-up is generally for the trial judge, provided that it is balanced and fair. As guidance, judges should consider a written route to verdict, a split summing-up, and an opening factual narrative that is neutral and fair to both parties.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2018] EWCA Crim 1077.
• Crown Court at Oxford: on 11 July 2017, convicted the appellant of six offences and imposed a total sentence of eight years' imprisonment.