Binoku & Anor, R. v

Under Criminal Procedure Rules 2015, Rule 3.29(4), separate trials are not required where offences form a series of the same or similar character and joinder causes no unfair prejudice. A caution about a co-defendant’s evidence is unnecessary unless the defendants advance genuinely cut-throat defences.

Judicial questioning must not become cross-examination. However, a conviction is unsafe only where departures from good practice are sufficiently grave, persistent, or incapable of cure to make the trial unfair. The appellate court must assess the whole trial, including directions, the parties’ ability to present their cases, and the evidence.

The appellants were convicted at Snaresbrook Crown Court of violent disorder arising from a street fight. The first appellant was also convicted of possessing an offensive weapon at a separate incident six days later. He received a suspended sentence of imprisonment; the second appellant received a Youth Rehabilitation Order.

They appealed against conviction. The grounds concerned the refusal to sever the weapon count, the timing of closing speeches, the absence of a caution concerning a co-defendant’s evidence, the balance of the summing-up, and judicial interventions during the first appellant’s evidence. The central question was whether any of those matters rendered the convictions unsafe.

1. The appeals were dismissed. None of the asserted irregularities rendered either conviction unsafe.

2. The judge correctly refused severance. Applying Rule 3.29(4) of the Criminal Procedure Rules 2015, the alleged offences were sufficiently connected in time, place and character. Both concerned alleged daytime street violence in the same broad area, only six days apart. Directions to return separate verdicts prevented unfair prejudice.

3. The judge was entitled, as a case-management decision, to require closing speeches before the five-day break. The later detailed summing-up of the defence cases meant that the delay could not affect the safety of the verdicts. Nor was a co-defendant-interest direction required. The accounts were not genuinely cut-throat: disagreement about how the fight began did not undermine the appellants’ self-defence cases on the critical issue.

4. Some interventions during the first appellant’s evidence were improper because they took the form of cross-examination. A judge’s function is to facilitate a transparently fair trial, not to advance a party’s case. But, applying Randall v The Queen [2002] UKPC 19, not every departure from good practice makes a trial unfair. The interventions were neither sufficiently gross nor persistent nor irremediable. The judge corrected one comment before the jury, the summing-up was fair, and the parties could fully advance their cases against the substantial CCTV and other visual evidence.

5. The court was sure that the jury had fairly evaluated the respective cases. The convictions were safe.

• Court of Appeal (Criminal Division): Appeals against conviction dismissed: [2021] EWCA Crim 48.
• Crown Court at Snaresbrook: The appellants were convicted of violent disorder; the first appellant was also convicted of possessing an offensive weapon.