Philip David John Peace v Regina

Where the prosecution invites a jury to treat an alleged earlier incident as evidence supporting guilt, the jury should be directed that it may rely on that incident only if sure of it. A failure to give that tailored direction does not automatically make a conviction unsafe. The appellate court must assess the summing up as a whole, the central issues at trial, and whether the jury would nevertheless have understood that the prosecution bore the burden of proving guilt to the criminal standard.

The agreement of directions by experienced trial advocates, and the absence of any contemporaneous objection, may support the conclusion that the trial was fair and that no material misunderstanding arose.

The appellant was convicted of murder at the Crown Court at Wolverhampton after his five-month-old daughter died from a fatal brain injury. The prosecution alleged that he had deliberately shaken her, possibly also striking her head against a soft surface. He denied this and relied on medical explanations and inadvertent handling after her collapse.

On appeal, the sole issue was whether the conviction was unsafe because the judge had not specifically directed the jury that it had to be sure that an alleged older subdural bleed was a non-accidental injury deliberately inflicted by the appellant before using it as evidence of an earlier shaking incident and propensity.

1. Appeal dismissed. The omission of a tailored direction was not sufficient to render the murder conviction unsafe.

2. The court agreed that the jury should have been expressly directed that it could use the alleged earlier incident only if sure that the older subdural bleed demonstrated that the appellant had unlawfully shaken the child on that earlier occasion. It would have been wrong to use a mere possibility of such an incident against him.

3. However, the summing up as a whole made the criminal burden and the real issues unmistakably clear. The jury had been directed that the prosecution had to make it sure that the appellant shook the child, caused the fatal injuries, and intended to kill or cause really serious harm. The older bleed was a small part of the evidence. The court was confident that the jury would have ignored it if uncertain whether it established an earlier unlawful shaking.

4. The approach was supported by R v Gabbana [2020] EWCA Crim 1473, which showed that an omitted express direction on the criminal standard for a disputed bad-character issue does not necessarily make a conviction unsafe if the summing up sufficiently conveys the point overall. The observations in R v Hunter [2015] EWCA Crim 631 were also directly relevant: agreed directions and the absence of a contemporaneous objection may indicate that those at trial regarded the proceedings as fair.

5. The directions had been carefully agreed by counsel, and the summing up was otherwise flawless. The court was unpersuaded that the verdict was unsafe.

• Court of Appeal (Criminal Division): appeal against conviction dismissed.
• Crown Court at Wolverhampton: on 25 February 2021 the appellant was convicted of murder; on 26 February 2021 he was sentenced to life imprisonment with a minimum term of 14 years, less three days spent on remand.