Yousefi, R v

A criminal judge must give the jury a fair, accurate and focused summing-up. It must identify the real issues, explain the principal cases for the prosecution and defence, and relate the salient evidence to those issues. Brevity is appropriate, particularly in a long trial, but counsel’s speeches cannot replace an impartial judicial review.

The jury must not draw an adverse inference from the defence’s failure to call a witness. Directions on bad character and interview silence must state clearly the limited and proper use of that evidence. Pervasive failures in these respects can render convictions unsafe, even where directions on the individual counts are later corrected.

The appellant was convicted after an eight-week jury trial at the Crown Court at Isleworth of identity-document and fraud offences arising from benefit claims made under several identities. He received an aggregate sentence of 11 years and six months’ imprisonment.

He appealed by leave against conviction. The sole surviving ground challenged the judge’s summing-up. The Crown accepted that it was brief, unstructured and deficient, but contended that later corrections and the jury’s evident diligence meant that the convictions remained safe.

The central issue was whether the directions and omissions in the summing-up, viewed cumulatively, had deprived the appellant of a fair trial and rendered the convictions unsafe.

1. Appeal allowed. The convictions were unsafe and were quashed. The court directed a retrial.

2. The judge had a clear duty to identify the issues and give an impartial, selective review of the material evidence relevant to them. A summing-up need not recite every item of evidence, but it must explain the principal prosecution and defence cases and assist the jury to reach a logical conclusion. In this long and document-heavy trial, the judge did not summarise the evidence, identify the contested issues, or explain the defence case. Counsel’s speeches could not cure that failure.

3. The judge should have directed the jury not to draw an adverse inference from the appellant’s failure to call witnesses. They should decide the case on the evidence heard, without speculating about evidence an absent witness might have given. The contrary and confusing comments risked detracting from the burden of proof.

4. The bad-character direction was inadequate. The judge should have explained why the evidence had been admitted and the matters to which it was logically relevant. Admission through a gateway under the Criminal Justice Act 2003 does not itself exhaust the permissible use of the evidence, but the jury must receive a clear warning against undue reliance on previous convictions.

5. The directions on interview silence omitted essential safeguards. The jury needed to identify facts later relied on by the appellant, decide whether the prosecution case at interview clearly called for an answer, and consider whether there was any sensible explanation for silence other than the absence of an answer capable of withstanding scrutiny. They also had to be told not to convict wholly or mainly on that silence. The later correction did not cure all of these omissions.

6. Although the fresh written directions on the counts remedied the earlier defective directions, and the late amendment of the fraud counts caused no unfairness, the remaining defects were pervasive. Several would independently have undermined the safety of the convictions.

• Court of Appeal (Criminal Division) — By [2020] EWCA Crim 791, allowed the appeal by leave, quashed the convictions and directed a retrial.
• Crown Court at Isleworth — The appellant was convicted by a jury of identity-document and fraud offences and sentenced to an aggregate term of 11 years and six months’ imprisonment.