Reynolds v R

Statements deployed to show their falsity do not engage the hearsay gateway in section 114(1) of the Criminal Justice Act 2003. Their admission instead turns on relevance and probative value. A trial judge may exclude material that has no probative value on the issue to be decided and would create collateral, distracting disputes.

A factual summing-up must be impartial, balanced and accurately identify the issues. It need not rehearse every document or every point made in counsel’s speeches. In a lengthy documentary trial, concise directions and the jury’s ability to consult electronic material may properly shape the review. Parties should identify material factual or legal errors in a summing-up at once. Silence permits an appellate court to treat the point as not material at the time.

The appellant was convicted, after a retrial at the Crown Court at Southwark, of conspiracy to corrupt contrary to section 1 of the Criminal Law Act 1977. The charge concerned corrupt payments made to secure contracts for companies in the Alstom group in Lithuania. The prosecution case was that the appellant knowingly joined the conspiracy; his case was that others had deceived him.

The first jury had been unable to agree. At the retrial the judge excluded extracts from a co-conspirator’s Serious Fraud Office interview, in which allegations had been made about prosecution witnesses. The appellant appealed against conviction on three grounds: lack of balance in the summing-up, directions about his evidence, and the exclusion of the interview extracts.

1. Appeal dismissed. The conviction was safe. The judge’s summing-up was fair and balanced, and the identified deficiencies did not deprive the appellant of a fair trial.
2. The proposed interview extracts were not hearsay because they were tendered to show that their maker was lying, rather than to prove the truth of what he said. Section 114(1) of the Criminal Justice Act 2003, and Chapter 2 of Part 11, therefore had no direct application. The judge was nonetheless entitled to exclude the extracts as irrelevant. They added nothing material to the established fact that the co-conspirator had been deceitful, and they had no probative value on whether he had deceived the appellant. Their admission would have generated collateral disputes about allegations against witnesses who were not the issue for decision.
3. A judge must give an impartial factual review and accurately identify the issues which the jury must determine. The review may be selective and concise. It need not repeat every argument advanced in closing speeches, particularly in a long documentary trial where the jury has electronic access to the material. The judge sufficiently identified the defence case that the appellant had not known of, or joined, the corrupt scheme. The individual and cumulative complaints about the factual summing-up did not undermine the safety of the verdict.
4. Under Part 1 of the Criminal Procedure Rules, both prosecution and defence counsel should raise apparent factual or legal errors in a summing-up when they can be corrected. Where counsel remains silent, the appellate court may treat the point as not regarded as a material error at trial, although a cumulative challenge may still be available.
5. The comment that the stresses of giving evidence might be the same for a truthful or untruthful defendant should not have been made. Read in context, however, the judge clearly directed the jury to make appropriate allowance for the appellant’s position. Other comments about his evidence and the conduct of examination-in-chief did not amount to a misdirection or improperly undermine his evidence.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2019] EWCA Crim 2145.
• Crown Court at Southwark — at a retrial, the appellant was convicted on 19 December 2018 of conspiracy to corrupt and sentenced to 54 months’ imprisonment. The earlier jury had been unable to agree.