R v Aaron Hewson

A trial judge may comment on the evidence, but the summing-up must remain objectively fair and balanced. The judge must not appear to advocate for either side or invite the jury to adopt the judge’s own view of disputed evidence.

Formulaic language such as “you may think” does not make a comment neutral. Where comments repeatedly undermine the defence case, particularly without a balanced reminder of important defence evidence, they may create a real risk that the jury will regard the judge as favouring the prosecution. Standard directions that the jury are the judges of fact will not necessarily cure that imbalance.

The appellant was convicted at the Crown Court at Norwich of three sexual assaults and one assault by penetration. He appealed against conviction, contending that the Recorder’s summing-up was unfairly weighted towards the prosecution.

The appeal concerned comments made about the credibility of the complainants and the defence case of consensual sexual activity and collusion. It also concerned omissions from the summary of defence evidence, including apparent inconsistencies in one complainant’s first account and evidence bearing on the appellant’s case.

The central issue was whether the cumulative effect of the summing-up rendered the convictions unsafe.

1. Appeal allowed. The court quashed the convictions on all contested counts. The guilty plea on count 7 was unaffected.

2. The governing requirement was that a summing-up must deal with the essentials of the case and be fair and balanced. A judge may identify matters capable of supporting or undermining either side’s case, but must remain impartial, avoid appearing to advocate, and leave disputed factual conclusions to the jury. The court applied the principles summarised in BKY v R [2023] EWCA Crim 1095, including the procedural requirement under the Criminal Procedure Rules to summarise the evidence to the extent necessary for the issues to be decided.

3. The Recorder’s observation that the defence collusion case was an “odd story” indicated his own adverse view of that case. In context, it was also a bad point: the defence case concerning one complainant was that sexual activity had occurred but had been consensual, rather than that no sexual activity had occurred. The Recorder compounded the error by telling the jury that they had to take the point into account when deciding whether the complainants were truthful.

4. Other comments repeatedly invited conclusions adverse to the defence, including comments about the complainants’ accounts and the appellant’s messages. Some comments reflected prosecution points, but their repetition and presentation as matters the jury “may think” risked conveying the Recorder’s own view. Important defence evidence was not fairly recalled, notably inconsistencies between a complainant’s signed first account and her trial account, and evidence bearing on the defence case of collusion and reasonable belief in consent.

5. The standard directions that the jury alone assessed the facts did not cure the cumulative imbalance. There was a real risk that the jury considered that the Recorder favoured the prosecution. The resulting unsafety extended to all contested convictions because the complaints were relied on as cross-admissible propensity evidence and the most serious complaint affected the reporting and assessment of the others.

6. Defence counsel’s failure to seek correction immediately after the summing-up did not alter that conclusion. Although counsel should assist in correcting errors, the complaint concerned the overall effect of numerous comments rather than an isolated defect.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed the contested convictions: [2023] EWCA Crim 1657.
• Crown Court at Norwich — the appellant was convicted after trial of three sexual assaults and one assault by penetration. He had pleaded guilty before trial to possession of extreme pornographic images (count 7).