R v L.M.S

A trial judge may comment, including trenchantly, on evidence and on the effects of delay, provided the jury’s exclusive role in deciding facts is made clear. However, standard directions will not cure comments which create a real and fundamental imbalance in the summing-up.

It is dangerous for an individual judge to guide a jury’s assessment of memory reliability by advancing contestable propositions based on personal experience, intuition or anecdote. Where such guidance favours one side on a central issue of credibility and reliability, and lacks support in expert evidence or established principle, the resulting convictions may be unsafe.

The appellant appealed, with leave, against convictions at the Crown Court at Warwick for historic sexual offences against his younger sister, C. The prosecution relied on C’s account and the appellant’s earlier admissions to police. The defence contended that the admissions were false and that C’s account was unreliable, relying in particular on the passage of time and inconsistencies concerning the date and circumstances of the alleged offending.

The appeal concerned the judge’s summing-up. The judge invited the jury to use their own childhood memories, illustrated by his personal recollection, when assessing the reliability of C’s evidence about events more than 20 years earlier. The central question was whether that guidance made the convictions unsafe.

1. Appeal allowed. The court quashed both convictions as unsafe. It ordered a retrial, directed service of a fresh indictment and re-arraignment within two months, and continued the appellant’s bail on the existing conditions.

2. A judge is entitled to comment on evidence, including its cogency and relevance, and may do so firmly. The judge must nevertheless make clear that factual decisions are exclusively for the jury and that comments should be disregarded unless the jury agree with them. Even proper standard directions will not remedy comments that create a fundamental imbalance in the summing-up. The same approach applies to comments on the impact of delay: proper legal directions permit relevant comment, but not comment that jeopardises fairness.

3. The court rejected the allegation that the judge lacked impartiality. However, his personal-memory exercise advanced a series of general propositions about the distinctiveness, dating and surrounding detail of memories of traumatic events. In this case, those propositions favoured the prosecution and undermined the defence.

4. Scientific expertise exists on memory reliability, but no expert evidence had been called. Criminal courts ordinarily rely on the experience and wisdom of judges and juries. Judicial guidance based on experience must be developed collectively, cautiously and incrementally. It was dangerous for an individual judge, from an authoritative position, to steer the jury using contestable theories based on personal experience, intuition or anecdote.

5. The impugned passage was in substance an unqualified instruction on the proper approach to the evidence. It downplayed conflicts about the alleged date and omitted matters central to the defence challenge to C’s reliability. C’s credibility and reliability were central, and there was no weighty independent corroboration. The error was therefore significant and rendered the convictions unsafe.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 96, allowed the appeal against conviction, quashed both convictions and ordered a retrial.
• Crown Court at Warwick: On 15 June 2023, convicted the appellant of indecent assault and sexual intercourse with a girl under 13.