Guy, R v

A summing-up is not unsafe merely because some directions could have been clearer. The appellate court must assess the directions and trial as a whole, including whether the jury retained its fact-finding role and whether any defect caused unfairness.

Where evidence of illegal drug use is admitted as bad-character evidence, the jury should be told why it was admitted and warned against giving it disproportionate weight. A lie may support the prosecution case only if the jury is sure that it was deliberate, concerned a significant issue, and had no innocent explanation. Directions on delayed complaint, childhood memory and distress must avoid unjustified assumptions and leave the evaluation of credibility to the jury.

The appellant was convicted before HHJ Fowler and a jury of two counts of sexual assault of a child under 13 and one count of sexual activity with a child, contrary to the Sexual Offences Act 2003. The jury did not reach a verdict on a separate rape count.

He appealed on the ground that the summing-up lacked structure and clarity and unfairly endorsed the complainant’s evidence. The complaints concerned drug-taking and lies, the sexual element of the offences, delayed reporting, childhood recollection, and the complainant’s displays of distress.

1. Appeal dismissed. Although parts of the summing-up were open to justified criticism, the convictions were safe. The summing-up, viewed as a whole, was neither confusing nor unfairly prosecutorial. The judge did not usurp the jury’s function, repeatedly left factual matters to it, and gave points favourable to the defence.

2. The evidence that the appellant had used illegal drugs was bad-character evidence. It should have been formally admitted, with a ruling, and the jury should have been told why it had heard the evidence and warned against giving it disproportionate weight. Directions about admitted or proven lies should identify the alleged lies before speeches. The jury must be sure that a lie was deliberate, related to a significant issue, and was not told for a reason unconnected with guilt before using it as support for the prosecution. The actual direction should have been clearer, but it contained the critical safeguard that lies about drug-taking could not prove the charged offences.

3. The direction on the sexual element of the offences was adequate. The conduct alleged in the first two counts was plainly sexual. On the third count, the jury was correctly directed to decide whether the touching was deliberate rather than accidental and whether a reasonable person would regard it as sexual under section 78 of the Sexual Offences Act 2003.

4. A jury should not assume that a delayed complaint by a child is inconsistent with truth. A useful direction is tied to the facts and arguments, identifies the danger of unjustified assumptions, and reminds the jury of the prosecution’s burden. Delay may also disadvantage a defendant and should be considered in the defendant’s favour. Here the brief direction was sufficient because the defence was a complete denial, no particular prejudice on counts 1 to 3 was identified, and the only specific date concerned the rape count.

5. Directions on childhood memory and witness distress require caution. The judge’s unsupported observations about brain development were inappropriate, but did not amount to a misdirection. The jury remained free to assess any deficiency in recollection. It was also properly left to the jury to decide whether the complainant’s distress was genuine; the further comments did not impermissibly shift the burden onto the defence.

• Court of Appeal (Criminal Division): Leave was granted by the full court and the appeal against conviction was dismissed.
• Crown Court: Before HHJ Fowler and a jury, the appellant was convicted of two counts of sexual assault of a child under 13 and one count of sexual activity with a child. The jury did not reach a verdict on a rape count, and the prosecution did not seek a retrial.