Allen Brutnell v R

On an appeal against conviction, the question is whether the conviction is unsafe. A summing-up need not be perfect: the possibility of improvement does not itself make a conviction unsafe. The trial judge must tailor legal directions to the issues, remain impartial, and summarise the evidence and defence fairly. The judge may comment on facts, but must avoid a fundamentally unbalanced presentation. In assessing procedural fairness, the court weighs the seriousness of any irregularity. Minor departures may not invalidate a trial, while a gross, persistent or irremediable departure may do so regardless of the strength of the evidence. Directions on collusion, innocent contamination, delay and childhood memories were fair where factual issues remained for the jury.

Following an earlier trial at which the jury could not agree, the appellant was convicted at Newport Crown Court on 30 May 2022 of 26 incidents involving three complainants. The convictions arose from counts under section 14(1) of the Sexual Offences Act 1956 and section 7(1) of the Sexual Offences Act 2003. He received an overall sentence of three years and nine months.

By leave of the full Court, the appellant appealed against conviction. He alleged that the judge’s split summing-up was unfair, unbalanced and insufficient, particularly in its treatment of the complainants’ evidence, collusion, contamination, delay, the defence case and the description of the alleged touching. The central issue was whether the summing-up rendered the convictions unsafe.

Appeal dismissed.

1. Under section 2(1) of the Criminal Appeal Act 1968, the Court of Appeal allows an appeal against conviction where the conviction is unsafe. Paragraph 3(a) of Part 25.14 of the Criminal Procedure Rules requires directions on the relevant law and a necessary summary of the evidence relevant to the issues, with the judge remaining impartial.
2. A summing-up can almost always be improved, but that fact alone does not make a conviction unsafe. The judge must tailor directions to the particular case rather than give an academic summary, while ensuring that legal directions do not decide factual issues for the jury. A judge may comment on the facts, but must do so carefully and avoid a fundamentally unbalanced summing-up. The approach was consistent with Mears v The Queen [1993] 1 WLR 818.
3. Fairness is assessed by weighing the seriousness of any procedural irregularity. Not every departure from good practice makes a trial unfair, but a gross, persistent or irremediable departure may require a conviction to be quashed regardless of the strength of the evidence. The court applied the principles stated in Randall v The Queen [2002] UKPC 19 and [2002] 1 WLR 2237, and Bernard v The State of Trinidad and Tobago [2007] UKPC 34 and [2007] 2 Cr App R. 22.
4. Balance and fairness are the guiding principles when reviewing a summing-up. The fact that trial counsel did not raise a point is not necessarily fatal, although it may indicate that the omission did not appear significant at trial. The court followed the guidance identified in R v Awil [2022] EWCA Crim 1802 and R v BKY [2023] EWCA Crim 1095.
5. The directions on collusion and innocent contamination accurately distinguished deliberate fabrication from the adoption or influence of another witness’s recollection. They properly directed that if collusion was or might be established the appellant was entitled to acquittal, but that rejecting collusion did not itself establish guilt. The jury still had to be sure that the evidence relevant to each count was truthful, accurate and reliable. The directions on the complainants’ childhood memories and delay did not assume that the allegations were true.
6. The judge fairly summarised the prosecution and defence cases. Asking questions to clarify confusion about dates was permissible and did not show that the judge had taken sides. Describing the alleged touching as “surreptitious” was permissible because the term was used to summarise the prosecution case, not to endorse it as fact. The summing-up was not unfair and the convictions were not unsafe.

• Court of Appeal (Criminal Division): appeal against conviction dismissed; [2023] EWCA Crim 1331.
• Newport Crown Court: following an earlier inconclusive trial, the appellant was convicted on 30 May 2022 after a jury trial before Assistant Judge Advocate General Robert Hill and sentenced to three years and nine months.