Sakin & Anor, R. v

A trial judge must fairly put the substance of each defendant’s case to the jury. A wholesale failure to summarise a defendant’s evidence will ordinarily render the conviction unsafe, even if the prosecution case is strong, the evidence was heard recently, and counsel did not identify the omission at trial.

Under Youth Justice and Criminal Evidence Act 1999, section 41, questions about a complainant’s sexual behaviour must concern a genuinely relevant issue and satisfy the statutory safeguards. Unrelated later consensual sexual activity cannot rationally undermine an account of earlier compelled sexual activity.

A conventional direction requiring the jury to assess conflicting witnesses for truthfulness, accuracy and reliability may suffice where alleged inconsistencies arise between two witnesses rather than within one witness’s evidence.

The appellants were convicted at Croydon Crown Court of offences arising from the alleged forced and controlled prostitution of CH. IS was also convicted of rape, and MG of assault occasioning actual bodily harm.

Both challenged the trial judge’s refusal to permit further cross-examination of CH under section 41 of the Youth Justice and Criminal Evidence Act 1999. They also contended that the jury required a more detailed direction about differences between the evidence of CH and AS. IS additionally argued that his convictions were unsafe because the judge did not summarise his defence evidence.

The central issue was whether the rulings and summing-up had denied either appellant a fair trial.

1. IS’s appeal was allowed and his convictions were quashed. MG’s appeal was dismissed. The renewed applications concerning the section 41 ruling were dismissed, as was the challenge based on the direction about alleged inconsistencies.

2. The judge correctly refused the proposed further cross-examination of CH. Section 41 required a relevant issue and the statutory safety conditions. Whether CH had consensual sex with IS on an earlier occasion was irrelevant where the issue on the rape count was whether the alleged incident occurred at all. Her later sale of explicit images or videos was also irrelevant. It invited the illogical and speculative inference that unrelated consensual activity made her less credible in alleging earlier compelled sexual activity. Once the statutory conditions are met, there is no separate discretionary exclusion under section 41: Re T [2012] EWCA Crim 2358.

3. The proposed staged direction on inconsistencies was not required. It might assist where a single witness’s account contains internal inconsistencies, but the asserted differences here were between CH and AS. The judge fairly identified the principal areas of conflict and correctly directed the jury to assess the truthfulness, accuracy and reliability of the witnesses.

4. A summing-up must fairly put a defendant’s case. It need not repeat every fact or argument, but the judge’s impartial summary cannot be replaced by recent recollection of the evidence or by counsel’s speeches. Where a cardinal defence receives no reflection in the summing-up, it will be very rare for a conviction to remain safe. The strength of the prosecution case is no answer: R v Reynolds (Nicholas) [2019] EWCA Crim 2145.

5. The judge wholly failed to summarise IS’s defence evidence, despite saying that she would do so. Sporadic references to denials did not cure that omission. The failure was particularly serious because the jury retired with video material that IS had explained in evidence, but without a reminder of that explanation. The absence of an oral bad-character direction compounded the unfairness. Counsel’s failure to alert the judge could not cure this fundamental error.

6. IS was ordered to be retried on counts 7, 8, 11, 12, 16 and 19. Reporting restrictions were imposed under section 4(2) of the Contempt of Court Act 1981 pending the retrial.

• Court of Appeal (Criminal Division): In [2021] EWCA Crim 291, allowed IS’s appeal against conviction, quashed his convictions and ordered a retrial; dismissed MG’s appeal and the challenges to the section 41 ruling and the inconsistency direction.
• Croydon Crown Court: On 23 May 2019, following trial before Her Honour Judge Charles, convicted IS and MG on the counts that remained before the jury.