R v Fuad Awil

A trial judge may analyse the evidence and identify matters which support or undermine either side. The summing-up must nevertheless remain objective, balanced and fair. It must faithfully place the defence before the jury and focus attention on the material evidence and factual issues.

A judge must not appear to advocate for the prosecution or enter the arena. Expressing a personal view of the evidence requires particular caution. Repeatedly presenting the prosecution case as fact, omitting material weaknesses in it, and using pejorative rhetorical questions to undermine the defence may render a trial unfair. A reminder that the jury decide the facts will not necessarily cure a fundamentally unbalanced summing-up.

The appellant was convicted at Isleworth Crown Court of possessing a prohibited firearm and possessing ammunition without a firearms certificate. The prosecution alleged that he had possessed a bag containing a revolver and ammunition. He denied ever touching the bag or knowing that it contained a firearm.

The central evidence included the accounts of a police officer and a civilian witness whose statement was admitted as hearsay. The defence relied on significant discrepancies and omissions in that evidence. On appeal, the appellant principally contended that the judge's summing-up was unfair because it omitted material defence points and impermissibly advanced the prosecution case.

1. Appeal allowed. The convictions for the firearm and ammunition offences were quashed. The summing-up crossed the boundary between permissible judicial comment and unfair, unbalanced advocacy.

2. A judge must explain the law, identify the defence case, and give an objective and impartial account of the essential evidence bearing on the issues the jury must decide. The judge may identify strengths and weaknesses in either case. However, the controlling touchstones are balance and fairness. A judge should remain an impartial arbiter and should never appear to advocate for the prosecution or enter the arena.

3. The summing-up did not fairly present the material weaknesses exposed in the cross-examination of the police officer on the critical issue of possession. It substantially underplayed an admitted error in his account and omitted other significant discrepancies and omissions. In contrast, it repeatedly bolstered prosecution evidence and presented it as established fact while treating the appellant's evidence merely as assertions.

4. The judge's extended rhetorical questioning and personal characterisation of the defence account as farfetched amounted in substance to a prosecution speech. The subsequent direction, following a jury question that demonstrated concern about that characterisation, did not adequately cure the unfairness.

5. The failures were pervasive. There was a real likelihood that the tone and content of the summing-up unfairly and decisively influenced the jury's deliberations. The apparent strength of the prosecution case could not remove the appellant's absolute right to a fair trial. Reporting of the appeal was postponed under Contempt of Court Act 1981, section 4(2), pending any retrial or further order.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the convictions for possessing a prohibited firearm and possessing ammunition without a firearms certificate: [2020] EWCA Crim 1802.
• Crown Court at Isleworth: On 24 January 2020, convicted the appellant by a majority of possessing a prohibited firearm and possessing ammunition without a firearms certificate.