BKY & Ors v R

A criminal judge must remain impartial and must not descend into the arena or appear to act as an advocate. A summing-up must fairly and objectively present the prosecution and defence cases, while leaving factual conclusions to the jury. The judge may identify evidence supporting or undermining either case, but must avoid skewing the review or directing the verdict. A break in the trial is not, by itself, a basis for quashing a conviction; its effect must be addressed by an adequate reminder of the evidence and issues. An appellant generally cannot rely on criticisms affecting co-defendants without showing unfair prejudice to his or her own case. Statutory bad-character evidence concerning a deceased person remains subject to the applicable admissibility criteria.

Ten young appellants were convicted of murder at the Crown Court at Newcastle-upon-Tyne on 1 June 2022 after a group attack in which the deceased was fatally stabbed. They were sentenced to detention at His Majesty’s pleasure.

The appeals concerned the fairness and balance of the judge’s summing-up following a two-week interruption, judicial interventions, identification directions, applications to dismiss and submissions of no case to answer, bad-character evidence concerning the deceased, and an alleged overwhelming supervening act. Mayo also appealed against sentence. Maddison sought an extension of time and leave to appeal. The central issues were whether the convictions were unsafe and whether Mayo’s minimum term was manifestly excessive.

Disposition. The court refused Maddison’s applications for an extension of time and leave to appeal. It dismissed all appeals against conviction and dismissed Mayo’s appeal against sentence.

1. Judicial conduct and summing-up. A judge must not descend into the arena or appear to act as an advocate. The principles in R v Hulusi (1974) 58 CAR 378 and R v Inns [2018] EWCA Crim 1081 applied even where a defence account appeared implausible. Under Criminal Procedure Rules Part 25.14, the judge had to direct the jury on the relevant law and summarise the evidence necessary to resolve the issues. The guidance in R v Haddon [2020] EWCA Crim 887, R v Merchant [2018] EWCA Crim 2606 and R v Awil [2020] EWCA Crim 1802 required an objective, impartial and balanced presentation. A judge may point out evidence supporting or undermining either case, but must not trespass on the jury’s fact-finding role or skew the presentation.
2. Interruption and collective complaints. The two-week break did not itself make the convictions unsafe. It did require a sufficiently full reminder of the evidence, issues and principal arguments. Viewed as a whole, the summing-up was thorough and fair. A failure by counsel to identify an omission when invited to do so was not automatically fatal, but was relevant to whether the omission appeared significant at trial. Although a multi-defendant summing-up might exceptionally be so unfair as to affect several convictions, an appellant could not generally rely on complaints concerning others without identifying unfair prejudice to that appellant’s own case.
3. Individual grounds. The judge’s direction concerning the uncalled witness was accurate. The evidence against Mayo was sufficient to go to the jury, and there was no basis for a lurking-doubt appeal except in the most exceptional circumstances. The identification direction concerning AGN was sufficient. The interventions concerning Sewell and Wheatley caused no unfair prejudice, although the question asked after Wheatley’s re-examination was inappropriate. The judge’s error concerning BGS’s attempted kick was corrected and caused no prejudice. The evidence concerning the deceased’s bad character was rightly excluded under Criminal Justice Act 2003 s100(1)(a) and (b). No direction on an overwhelming supervening act was required because the evidence made it impossible to say that nobody in BGS’s position could have contemplated the violent use of a knife.
4. Sentence. Mayo’s minimum term of 11 years was within the range properly open to the sentencing judge. The judge had assessed the aggravating and mitigating factors and was best placed to evaluate culpability. The sentence was not manifestly excessive.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 1095, refused Maddison’s applications for an extension of time and leave to appeal, dismissed all conviction appeals, and dismissed Mayo’s sentence appeal.
• Crown Court at Newcastle-upon-Tyne: Following trial before HH Judge Jameson KC, all ten appellants were convicted of murder on 1 June 2022 and later sentenced to detention at His Majesty’s pleasure. Mayo received a minimum term of 11 years.