Oriakhel, R. v

Where a judge introduces an unadvanced defence into a summing-up, subjects it to adverse comment, and gives an unheralded direction permitting adverse inferences from its omission, a later acknowledgement of error will not necessarily cure the prejudice. The adequacy of any correction depends on its nature, the strength of the prosecution case, and the likely influence on the jury. A defendant is entitled to have the defence actually advanced placed fairly before the jury. Where that has not occurred and the error may have affected the verdict, the conviction is unsafe.

Following a retrial at Isleworth Crown Court, the appellant was convicted of perverting the course of justice after reporting his BMW stolen. The prosecution alleged that he had lent the car for criminal use and made a false report to the police.

In summing up, the judge referred repeatedly to a stolen-keys account contained in the appellant’s defence statement but not advanced at trial. He criticised that account and effectively directed the jury under section 34 of the Criminal Justice and Public Order Act 1994. After the jury retired, the judge acknowledged the error but refused to discharge them.

The appeal concerned whether those directions and the inadequate correction rendered the conviction unsafe.

1. Appeal allowed. The conviction was unsafe and was quashed. The Crown’s application for a second retrial was refused.

2. The judge wrongly introduced the stolen-keys account from the defence statement. It was not evidence and was not part of the defence advanced to the jury. He compounded the error by criticising that unadvanced account, by observing that it had not been mentioned to the police, and by effectively giving a direction under section 34 of the Criminal Justice and Public Order Act 1994.

3. The later correction did not cure the prejudice. Although the judge admitted his error and restated the prosecution’s burden of proof, he did not place before the jury the appellant’s actual defence: that the car had been stolen during the afternoon or evening of 25 March. The jury had also been left in retirement for almost an hour after hearing adverse judicial comment on a defence which had never been advanced.

4. The court applied the factors identified in R v Tufail [2006] EWCA Crim 2879: the nature of the attempted cure, the strength of the prosecution case, and the extent to which the jury may have been influenced. Those factors may be relevant where an error occurs before a jury, but this case materially differed because the unadvanced defence had itself been subjected to adverse comment.

5. The circumstantial prosecution case was strong, but that did not make the verdict safe in the circumstances. The case should have been withdrawn from the jury when the error became apparent.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the conviction, and refused the Crown’s application for a second retrial.
• Crown Court at Isleworth: Following a retrial before Judge Ferris and a jury, convicted the appellant of perverting the course of justice and imposed six months’ imprisonment suspended for 12 months.