R v Luke Ryan

A judicial summing-up may properly identify and summarise evidence adverse to a defendant. The decisive safeguard is that the judge must not usurp, or appear to usurp, the jury’s function as arbiter of guilt or innocence.

The fairness and safety of the conviction must be assessed in the context of the summing-up as a whole. A judge may suggest a rational order in which the jury might examine the evidence, provided the choice remains theirs and the directions leave the ultimate factual and dishonesty questions to them.

The applicant was convicted at the Crown Court at Southwark of fraudulent trading arising from the sale of voluntary-emission-reduction carbon credits as personal investments. He was sentenced to six years’ imprisonment.

He sought an extension of time and renewed his applications for permission to appeal against conviction and sentence after the single judge’s refusal. The conviction challenge concerned a passage in the summing-up which invited the jury to consider the applicant’s own evidence and admissions when following the route to verdict. The sentence challenge alleged errors in the assessment of his role, gain and harm, and disparity with a co-accused.

1. The renewed applications for permission to appeal against conviction and sentence were refused.

2. The judge’s summing-up was not unfair and the conviction was not unsafe. There was nothing intrinsically unfair in summarising evidence adverse to a defendant. The material limit is that the judge must not usurp, or appear to usurp, the jury’s function as arbiter of guilt or innocence.

3. The impugned passage had to be assessed in the context of the whole summing-up. It was a short part of a lengthy, fair and thorough summing-up after a 15-week trial. The judge did not direct the jury to convict. She made clear that the order in which it considered the evidence was a matter for the jury, and that it might begin with the applicant’s own evidence.

4. The applicant accepted that the passage contained no factual or legal error. The suggested approach was one the jury could properly have adopted without judicial prompting. The route to verdict still left the jury to determine whether he exercised a controlling or management function, whether the business had a fraudulent purpose, whether he knew how the credits were being sold, and whether he was dishonest.

5. The six-year sentence was neither wrong in principle nor manifestly excessive. The judge was entitled to use the analogous fraud guideline, assess the applicant as having a leading and highly culpable role, and take account of the sums paid into his accounts as an indication of involvement and gain. The asserted sentencing errors and comparison with the co-accused disclosed no arguable basis for intervention.

• Court of Appeal (Criminal Division): the renewed applications for permission to appeal against conviction and sentence were refused: [2022] EWCA Crim 1347.

• Crown Court at Southwark: on 12 May 2021, the applicant was convicted of fraudulent trading. On 28 May 2021, HHJ Cahill QC sentenced him to six years’ imprisonment.

• Single judge: permission to appeal against conviction and sentence was refused on the papers.