Reynolds v R [2019] EWCA Crim 2145: grounds for challenging judge’s summing-up further restricted
The Court of Appeal, in a judgment led by Simon LJ, have outlined the limited grounds on which the contents of a judge’s summing-up may be challenged.
The Appellant in this case was charged alongside several co-conspirators with the offence of giving, or agreeing to make, corrupt payments to public officials as inducement or reward for the award of contracts with the Lithuanian government. An earlier trial resulted in a hung jury and prior to the retrial the two named co-conspirators had pleaded guilty.
The trial involved a vast body of evidence. The jury were given electronic tablets, loaded with a timeline of relevant documents and events, which enabled them to access a total of 688 documents over the course of the trial. In addition to this, there was a hardcopy jury bundle which contained a 24-page schedule of Agreed Facts and 48 pages of graphics. The trial itself began on 22 October 2018 and concluded on 7 December 2018. It was an exceptionally long and complex case.
The Appellant appealed his conviction on three grounds, all of which were rejected by the Court. Ground 1 contended that the Judge’s summing-up was imbalanced and was comprised of several separate criticisms of its contents. Ground 2 challenged the Judge’s directions to the jury about the credibility and content of the Appellant’s evidence. Ground 3 challenged the Judge’s decision to refuse to admit a piece of evidence undermining a co-conspirator’s credibility.
The Court of Appeal held that the trial judge’s exercise of his discretion to exclude irrelevant evidence had been appropriate in relation to Ground 3.
More interesting were the Court’s comments in relation to Grounds 1 and 2 of the appeal. The Court conceded that some elements of the Judge’s summing-up had been adverse to the Appellant, but nonetheless did not serve to undermine the Appellant in the eyes of the jury. In reaching this conclusion the Court made six ‘general observations on the purpose and nature of the summing-up of facts’ which are listed below:
- Closing speeches made by counsel are no substitute for a judge’s impartial review of the facts. Nonetheless, there is no obligation on the judge to recite all the evidence and points made on each side – in many cases this will not be appropriate.
- A succinct and concise summing-up is particularly important in long and complex trials. It is likely that the longer a trial has lasted, the great the jury’s need for assistance in relation to the evidence.
- There is no obligation to remind the jury of points made in counsel’s speech.
- If counsel remain silent during the summing-up, the Court of Appeal will proceed on the basis that what was said was not regarded as an error or at least a material error at the time. This is a change from the historical position where there was a more limited duty on defence counsel to raise criticisms at the time.
- As a matter of fairness, if a judge is considering introducing an issue that has not been canvassed in the course of a trial, he or she should warn the defence advocate before final speeches so that the position can be discussed.
- A judge must consider whether to express his or her personal views carefully. There can be no rules of universal application in this area, but use of the refrain, ‘it is entirely a matter for the jury’ will not necessarily absolve a judge who was strayed into advocacy on behalf of the prosecution.
In spite of these seemingly cautionary remarks directed towards judges it seems that this judgment in fact reinforces the obstacles to be surmounted when appealing conviction on the basis of the judge’s summing-up. The Court criticised a number of the trial judge’s remarks but was reluctant to conclude that any amounted to a misdirection or illegitimate observation on the quality of his evidence. Indeed, it is unclear whether failure to abide by one of the guidelines stated above would be sufficient to enable a successful challenge in the Court of Appeal alone.
