R v Vidmantas Butkus

A judge may comment forcefully on evidential matters. Such comment may nevertheless imperil a conviction where, viewed in the context of the trial as a whole, it creates a real risk that the jury was materially impeded from considering both cases fairly and reaching a just verdict according to the evidence. Comments suggesting organised criminality may be permissible where supported by agreed facts and legitimate inferences. Strong or ill-advised wording does not necessarily make a conviction unsafe. Clear directions that the jury alone determines the facts, must decide on the evidence and need not adopt the judge’s views are material safeguards. The decisive question is the overall effect of the summing-up on the jury’s ability to decide the critical issue fairly.

The applicant, a lorry driver, was convicted at Canterbury Crown Court on 9 May 2024 of fraudulent evasion of a prohibition on importing cocaine, contrary to section 170(2) of the Customs and Excise Management Act 1979. The indictment identified the prohibited goods by reference to section 3(1) of the Misuse of Drugs Act 1971. His defence was that he believed he was carrying pressed tobacco.

After a single judge refused leave to appeal, he renewed his application. He argued that the Recorder’s comments about organised crime groups and criminal gangs lacked an evidential basis, were emotive and prejudiced the jury. The central issue was whether those comments rendered the conviction unsafe.

The renewed application for leave to appeal was refused. The conviction was not arguably unsafe.

1. The court reaffirmed that a trial judge may comment, including forcefully, on evidential matters. That entitlement is subject to the wider requirement that judicial comment must not become so unfair, unbalanced, improper or prejudicial as to imperil the safety of the conviction. The propositions concerning confident judicial opinions and the jury’s independence from the judge’s factual views in R v Cohen (Max) (1909) 2 Cr App R 197 remained good law.
2. Criticisms of judicial comment must be assessed by standing back and considering their potential impact on the trial as a whole. The operative question, identified in R v Marchant [2018] EWCA Crim 2606, was whether there was a real risk that the jury had been materially impeded from considering the prosecution and defence cases fairly and reaching a just verdict according to the evidence.
3. The complained-of passages had to be read with the Recorder’s legal directions, route to verdict and repeated instructions that the jury alone judged the facts, avoided speculation and need not adopt any view expressed by the judge unless they agreed with it. The agreed evidence supported legitimate inferences of serious and organised criminality, including the quantity and value of the cocaine, its packaging, its labelling and the DNA evidence.
4. Although it would have been wiser to avoid some expressions, including statements in terms of what the jury knew, the Recorder was commenting on the evidence and did not remove the factual issue from the jury. The precise description of the organisers as an organised criminal gang was not materially significant. The critical question remained whether the applicant knowingly played his limited role in the importation. No real risk of material impediment was shown.

1. Court of Appeal (Criminal Division) — The renewed application for leave to appeal against conviction was refused. The conviction was not arguably unsafe: [2025] EWCA Crim 441.
2. Single judge — The initial application for leave to appeal was refused.
3. Crown Court at Canterbury — Following a trial before Miss Recorder Walters and a jury, the applicant was convicted on 9 May 2024 of one count of fraudulent evasion of a prohibition on importing cocaine, contrary to section 170(2) of the Customs and Excise Management Act 1979.