LADY JUSTICE CARR DBE:
Introduction
- These are appeals brought with limited leave by two appellants, Mr Ilhan Sakin ("IS"), now 22 years old, and Mr Muctarr Gardrie ("MG"), now 24 years old, against their convictions on 23 May 2019 following trial by a jury in the Crown Court in Croydon before Her Honour Judge Charles ("the Judge") as follows:
i) IS: on four counts of causing a person to engage in sexual activity without consent contrary to s. 4 of the Sexual Offences Act 2003 ("the Act") (counts 7, 8, 11 and 12), one count of controlling prostitution for gain contrary to s. 53 of the Act (count 16) and one count of rape contrary to s. 1 of the Act) (count 19);
ii) MG: on four counts of causing a person to engage in sexual activity without consent contrary to s. 4 of the Act) (counts 7, 8, 11 and 12), one count of controlling prostitution for gain contrary to s. 53 of the Act (count 16) and one count of assault occasioning actual bodily harm contrary to s. 47 of the Offences against the Person Act 1861 (count 22).
- The appellants also renew their applications for leave to appeal against conviction on additional grounds to those for which leave has been granted.
- Both appellants were later sentenced by the Judge as follows: IS to an overall term of 14 years' imprisonment; MG to an overall term of 9 years' imprisonment. IS renews his application for leave to appeal against sentence.
- The offences were said to have involved the forced and controlled prostitution of two vulnerable girls, whom we shall call CH and AS, during the summer of 2018. Proceedings in relation to those counts involving AS (counts 1 to 6, 15 and 17), however, were halted either upon the prosecution offering no evidence or upon the Judge's direction to the jury to acquit at the close of the prosecution case. A co-accused, Mustapha Ghazlie (also known as and to whom we refer as "Gino"), was also acquitted at the close of the prosecution case on all counts on the Judge's direction. At the conclusion of the trial, the jury acquitted IS and MG on counts 9, 10, 13 and 14 (relating to multiple incident counts of causing CH to engage in sexual activity without consent).
- At the conclusion of the hearing before us, we announced that we would dismiss the renewed applications for leave and the appeal of MG, but would allow the appeal of IS and quash his convictions, with written reasons to follow. These are those written reasons.
- The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act.
The facts in overview
- In the summer of 2018 CH was about 20 years old and AS was about 19 years old. IS (also known as "T"), MG (also known as "Tallest") and Gino were said to have advertised the women on prostitution websites and to have retained the proceeds of the services that CH and AS provided.
- CH and AS had lived together for a short time at AS's shared sheltered accommodation in Mitcham. There was evidence of AS working as an escort. AS alleged that CH bullied her, controlled her escort business and took money from her. CH accepted involvement, but denied forcing AS into prostitution.
- CH and AS were due to be evicted on 10 August 2018 because of unpaid rent and complaints from their fellow tenants. They decided to throw a leaving party on their last night at the property. Gino, who knew CH, went along and introduced IS and MG to CH and AS at the party. IS invited them to stay at his family home in Bermondsey, his parents being away on holiday. CH and AS moved in to the Bermondsey property that night and the party continued. A day or two later MG arrived on the scene and thereafter stayed most nights. They all left the property just over a week after the arrival of CH and AS and thereafter rented various flats in Croydon and East London. AS left the group on 9 September 2018, CH on 19 September 2018.
- AS attended Wimbledon Police Station in the evening of 9 September 2018, and was ABE interviewed on 19 September 2018. CH attended hospital on 19 September 2018; the police were called, and she was ABE interviewed on 20 September 2018.
- AS's account was to the effect that, whilst at Bermondsey, she was drinking heavily and having sex against her wishes for money in IS' brother's bedroom. When the group moved on from Bermondsey, she was told by IS and MG that her job now was to have sex with then men who turned up and who had paid for it. She did not want to do it, and on occasions the men were violent. She was told that she had no choice. She received no money for her services. She was told that she would be hurt if she tried to leave and was punched and abused. The door was locked and when she stood outside she was guarded. Her movements were monitored. AS said that CH had taken her telephone and clothes away, and threatened her. She was not aware of CH having sex with the visiting men. She managed to escape on the pretext of taking the dustbins out and getting a cigarette.
- CH' s account to the police on 19 September 2018 was that she had been staying at AS's house. It became apparent that AS was in the escort business and was in the process of being evicted. AS had invited two men to the property. She and AS went to one of the men's property where she, CH, was encouraged to assist AS in her escort business by taking telephone calls. She was encouraged to become a masseuse, which she agreed to do, in order to avoid being an escort. She created a website account to advertise her services. Shortly after arriving at the property in Bermondsey, another man arrived and she was plied with alcohol and drugs. Men would then turn up and have sex with her. They would move frequently. The men controlled her telephone and social media. CH said that she had consensual sex with MG on several occasions. However, when she sobered up and refused, he assaulted her. She also said that MG assaulted her on 17 September 2018 when she returned a (false) positive pregnancy test.
- In her ABE interview CH said that that AS was already escorting before they left for IS' family home. Whilst there, AS escorted and CH partied and got close to MG. At one point he asked her to answer the telephones for AS. On day, still at Bermondsey, a man arrived and said that he was there for her. IS told her to go into the other room; she refused; MG grabbed her, put his arm around her neck, pushed her against the door and called her a whore. She was forced to have oral and vaginal intercourse with the man.
- On another occasion, after AS was out, she was made to service one of AS's clients with oral and vaginal intercourse. On another occasion, IS asked for oral sex and slapped her bottom. There was an argument; eventually she relented and gave him oral sex. As for the incident involving the pregnancy test, when she told MG, with whom she had been having consensual intercourse, he reacted by punching her in the face before pulling her down the stairs. He punched her again, kicked her in the leg and stomach and started banging her head on the floor. When she said she need to leave, she was told that she worked for them. They went to a drive through restaurant. She got out of the car, kept walking, got on a bus and went to the hospital.
- Overall, CH said that she never wanted to work as a prostitute. IS and MG forced her into it and she felt that she had no choice. She accepted that she posted photographs of herself on the internet in underwear but this was not for selling herself or for sexual purposes.
- IS and MG were arrested, as was Gino. Police searched their addresses and seized a variety of items, including telephones and a laptop computer. In interview, MG answered "no comment" to all questions. IS did likewise, but put forward a prepared statement stating that the allegations were false. He had not committed the offences.
The trial
- The trial commenced on Monday 29 April 2019 and concluded on 23 May 2019. The prosecution's case relied principally upon the evidence of CH and AS. It was accepted that both women engaged in "extremely reckless" behaviour both immediately before and after meeting IS and MG, but it was that behaviour that made them so vulnerable to the exploitation perpetrated by IS and MG.
- Reliance was also placed on the accommodation bookings made by IS and MG; their income and expenditure over the relevant period; emails between MG and an accommodation provider in which MG was said to have lied as to the nature and purpose of occupancy; various video clips showing CH and AS interacting with IS, MG and Gino in an ostensibly "happy and fun" environment; MG stating that other recordings were "all evidence" and should be deleted; a video by IS filming himself asking for God's forgiveness and exposing CH's breast while she was asleep; a recording of CH saying that IS had "blacked her eye".
- At the close of the prosecution case, the prosecution abandoned counts 1 to 6 against all defendants. This was because in her evidence AS had exonerated all three defendants. She was adamant that the person who had coerced her into working as a prostitute in July and August 2018 was CH. Following submissions, the Judge also ruled that there was insufficient evidence for the other counts relating to AS to proceed. Further, as already indicated, Gino was discharged.
- MG, who was of previous good character, gave evidence. It was his case that, before he ever met the women, CH was forcing AS to work as a prostitute to fund their lifestyle of drugs and alcohol. CH had operated her own website, posting pictures of herself in lingerie. When they moved in together, CH worked willingly as a prostitute. There was no force or coercion used against her. His position in summary was that CH was working in the sex industry before she ever met him and worked as a prostitute as a means of living. It was CH who was controlling prostitution for herself and AS. No assault ever took place.
- IS also gave evidence. His case was that he had a 'summer of fun' with AS, CH, MG and Gino. They moved between different apartments throughout London, drinking and smoking cannabis. IS also pursued his hobby of creating music. During that time, both AS and CH were carrying out escorting services; however, he was not involved. He suspected that CH was acting as the 'pimp' and bullying AS. The girls had a fraught relationship and had constant arguments. He had no financial motive to operate the girls' escort business. His income during this time was derived from the Department of Work and Pensions and a carer's allowance. His family had also left him some money. In addition, he was completing work experience at his uncle's hairdressing salon. AS and CH chose to stay with IS, MG and Gino because they enjoyed their company.
- In chronological terms, he was introduced to AS and CH by Gino. They arrived in Mitcham, where both AS and CH were staying and began 'partying'. It was at this time that he was told by CH that she was an escort. They moved to his family's home at Bermondsey. The reasons why he offered to allow AS and CH to stay at his family residence were twofold: first, he wanted to continue the party; secondly, he understood that AS was on the verge of becoming homeless and he wanted to help. He said that he was from a 'decent family'. He cared about the girls and this was reflected in his concern for the family home whilst they were staying there. He repeated his concerns that he wanted to ensure that the property was not damaged and refused to allow AS to carry out escorting services in his parents' bedroom, in case a stranger stole an item of property. He said that none of MG's friends came to his home.
- Following their stay in Bermondsey, they moved to 50 Sydenham Road. The move between the different properties was part and parcel of their 'summer of fun'. It was intended to replace the holiday to Turkey that they had planned. Their short stay at each property was a result of the booking process. They were only able to reserve the property for a few nights before it became fully booked. At Sydenham Road IS allowed AS to borrow his mobile telephone so that she could contact friends and relatives. He then became aware that she was most likely utilising the telephone to operate her escorting business. He did not consider that this was any of his business and saw no need to stop her. He assumed that both AS and CH were working as prostitutes at this address; however, he did not see any money exchanging hands.
- He said that he was not continuously with AS and CH during their time between the properties. He had to repeatedly leave to care for his grandmother.
- In relation to specific alleged incidents that are alleged to have occurred, IS:
i) Denied having a physical fight with CH. He only argued with CH about her consistent consumption of his alcohol and her failure to replace it;
ii) The video created by IS was a 'music video', made whilst drunk and intended to be posted on social media. The knife brandished by MG was for visual effect;
iii) IS recorded both AS and CH after the police visit because he had become paranoid after smoking cannabis;
iv) IS did not witness the alleged fight between MG and CH. He was in the back room. However, he suggests it sounded more like a conversation.
- The defence also relied, amongst other things, on AS's account that CH had worked willingly as a prostitute; visits by the police when CH had not made any complaint to them; hearsay evidence from a fellow occupant of the shared accommodation in Mitcham to the effect that CH was forcing AS to work as a prostitute; social services records; text messages showing CH making arrangements with clients for threesomes with herself and AS; sexual health clinic visits; the rental property arrangements; online comments calling AS a liar when AS said that CH had kidnapped her.
Ruling on cross-examination of CH
- IS sought leave pursuant to s. 41 of the Youth Justice and Criminal Evidence Act 1999 ("s. 41") to ask questions about the sexual behaviour of C, including as to the suggestion that she had had consensual sex with IS on the first night at his property and by reference to a statement of DC Innes dated 1 May 2019 (served late during the course of trial). That statement indicated that between January and March 2019 CH had set up a premium snap chat site and was selling intimate pornographic pictures and videos of herself online. She told DC Innes that she had twice agreed to meet men for sex, but had not in fact done so.
- Whilst the Judge granted permission to the defence to explore CH's activities as an escort prior to the indictment period, she refused permission to explore these particular two topics.
- As to the suggestion of consensual sex with IS, the submission was that that activity went to the issue of consent. However, as the Judge noted, the issue on count 16 (oral rape) was not consent but whether or not the incident had occurred at all. As for the further submission that the jury was entitled to know the background to the allegations: the summer was "free and easy", that too was not relevant to any issue in the case. Nor would it assist the jury's evaluation of IS' intentions when filming CH and exposing her breast whilst she was asleep, something in relation to which IS could give his own full account. The Judge thus ruled that this line of questioning and evidence would not be permitted.
- As to the matters arising out of the statement of DC Innes, it was submitted that, unless the defence could cross-examine CH on these matters, the jury would be left with the false impression that CH was not inclined to sell herself but for the intervention of the appellants. The Judge commented that the defence line of reasoning fell "into the forbidden category": the jury would be invited to infer that, had CH been controlled by IS in her work as an escort, she would have been affected such that she would be unlikely to engage in any similar behaviour again. What CH had chosen to do subsequently was irrelevant to the question of whether her escort work was controlled earlier by others. Evidence of related work, falling short of escorting, was irrelevant. The Judge confirmed that she had considered broader considerations of relevance in line with R v A no 2 [2002] 1 AC 45.
- In summary, the Judge concluded that the main purpose of exploring these two topics would be to impugn CH's credibility. A refusal of leave would not be likely to render unsafe any conclusion of the jury.
Grounds of challenge
- For IS, Ms Meek advances (or seeks leave to advance) the following grounds of appeal against conviction:
i) (leave sought): the Judge erred in refusing to permit under s. 41 cross-examination of CH (or evidence in rebuttal) by reference to the matters arising out of the statement of DC Innes and to admit into evidence CH's continued consensual work in the sex industry and meeting men for sex (which CH in fact denied having done). This was submitted to be an important matter, given the thrust of CH's evidence which was to the effect that she would not have provided sexual services unless she had been forced to by the defendants;
ii) (leave granted): the Judge erred in permitting the prosecution to close its case as it did and in failing to deal adequately in the summing up with the evidence that AS gave against CH in this regard. No assistance was given to the jury as to how it should deal with the inconsistencies in the evidence of the two witnesses. On the particular facts of this case, where the tension between the evidence of CH and AS was so great, the jury were entitled to "more assistance" by way of further legal direction as to how to deal with their conclusions on the inconsistencies, and the extent to which such conclusions might (or might not) support the defence. Reliance was placed on the fact that, whilst the counts relating to AS had been removed from the jury, AS' evidence was still in play (and relied on in part by the prosecution in its closing speech);
iii) (leave granted): the Judge erred in failing to summarise his defence to the jury in summing-up. The unfairness was compounded by the fact that, whilst the jury had received evidence of IS's previous bad character, the appropriate associated legal direction (whilst provided to them at the end of the written legal directions) was never read out to them or drawn specifically to their attention.
- On the question of sentence Ms Meek submits that there was no adequate account taken of IS' youth, of the acquittals, or of the relevant sentencing ranges in the Sentencing Council Guideline on Sexual Offences; the sentence of 6 years on the count of oral rape did not reflect the true culpability or harm in what was an unusual case. The sentences also failed to take into due account the principle of totality.
- For MG, Ms Merrick advances (or seeks leave to advance) essentially the same first two grounds of appeal against conviction put forward for IS. She adopted Ms Meek's submissions.
Grounds of opposition
- Mr Khan for the Respondent contends that the Judge was right to restrict the cross-examination of CH for the reasons that she gave. IS and MG, through concession by the Respondent and/or leave of the Judge, had considerable latitude in cross-examining CH, which they did at considerable length. The directions to the jury in relation to the evidence of AS were entirely adequate.
- The Respondent's Notice was, to our surprise, silent on the ground of appeal arising out of the Judge's failure to sum up IS' evidence. However, orally, Mr Khan sought to uphold IS' convictions on the basis that there were sufficient references in the summing-up to the nature of his defence, which raised issues very similar to those arising in the case of MG, in respect of whom the summing-up was entirely fair.
Renewed application for leave in relation to the application to cross-examine CH
- S.41 provides materially as follows:
"1) If at a trial a person is charged with a sexual offence the, except with the leave of the court,
a) No evidence may be adduced, and
b) No question may be asked in cross-examination,
by or on behalf of any accused at the trial about any sexual behaviour of the complainant."…
- By s. 41(2) the court can give leave in relation to any evidence or question only if satisfied that (3) or (5) applies and that a refusal of leave might have the result of rendering unsafe a conclusion of the court or jury on any relevant issue in the case. S. 41(3) applies, amongst other things, if the evidence or question relates to a relevant issue in the case that is not an issue of consent, or if it is an issue of consent and the sexual behaviour of the complainant in question is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused. S. 41(4) provides:
"For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness".
- Once the criteria in s. 41 for admissibility are met, it is not open to a judge to exclude the evidence (see Re T [2012] EWCA Crim 2358; [2013] Crim LR 596). S. 112(3)(b) of the Criminal Justice Act 2003 provides that the restriction in s. 41 is not affected by the bad character provisions of the Criminal Justice Act 2003. Any evidence about a complainant's sexual history that amounts to bad character has to satisfy the requirements of both s. 100 and s.41.
- Like the Single Judge, we do not consider that there is any arguable flaw in the Judge's rulings under s. 41.
- The Judge permitted cross-examination of CH, and for evidence to be led by the defence, as to whether CH had worked as an escort, prostituting herself, and as whether she was controlling AS, prior to the involvement of either MG or IS. She permitted cross-examination of CH as to whether she was controlling AS during the weeks when they were all together. She judged that to be relevant to the question of whether CH was a willing or unwilling prostitute on any of the occasions when money was paid by visiting men to use her whilst she was with IS and MG.
- By contrast, whether or not CH had had consensual sex with IS on the first night at his family home (which CH disputed) was irrelevant. The question on count 16 was whether or not the incident happened at all, not whether or not CH had consented. As for general context, context has to be relevant to be admissible. The Judge was fully entitled to consider it to be irrelevant; and in so far as it could be said to have any relevance, it would be based on pure speculation. On appeal IS did not seek to pursue any challenge to this part of the Judge's ruling.
- The Judge was also fully entitled to conclude that it was also irrelevant that, after CH parted company with MG and IS, she may have made money by selling explicit photographs and/or videos of herself engaging in consensual sexual activity. To allow such questioning would have been to invite the jury to consider that CH was less capable of belief in her claims of forced activity directed by MG and IS because of some otherwise unrelated consensual activity. This is the sort of illogical reasoning and/or speculation which s. 41 is designed to prevent.
- We therefore refused the renewed applications for leave on these grounds.
Direction on inconsistencies
- The suggestion for the Appellants is that the jury should have been directed along the following lines:
i) Each alleged inconsistency should have been "particularised and identified";
ii) In respect of each alleged inconsistency, the jury was to consider if they found it significant;
iii) If considered significant, the jury would have to decide whether there was an acceptable explanation for it;
iv) If there was an acceptable explanation, it might not affect the witnesses' reliability;
v) However, if the inconsistency is fundamental to an issue that they were considering, they "would be less willing to overlook it".
- These are directions that may (in some form) be considered appropriate in a situation where there are internal consistencies in a single witness' evidence. But they are not apt (and certainly not necessary) in a situation where, as here, what is alleged are inconsistencies between the evidence of two separate witnesses.
- Those allegedly "key and fundamental" inconsistencies were fairly highlighted in the summing up, as was rightly accepted for both Appellants. They can be referred to as follows: Mitcham prior to meeting "the boys"; meeting "the boys"; moving to Bermondsey and events there; move to Sydenham Road; visit by the police; events at later properties and allegations against CH by AS; outcalls and the clinic visits to GUM; final property with AS and CH at Aldgate East.
- The jury were duly directed that it was for them to assess the evidence that they had heard. Where the evidence conflicted, they would want to assess the truthfulness, accuracy and reliability of those witnesses whose evidence was in issue. There was no material error in the Judge's directions.
- Consistent with this conclusion, no concern or query as to sufficiency of the Judge's directions was raised in this regard by any counsel at trial, including at the time when her written legal directions were under scrutiny.
- We therefore did not consider that the convictions of either IS or MG are unsafe on this ground. That disposed of the appeal so far as MG was concerned.
Failure to sum up Mr Sakin's evidence
- As set out above, IS gave evidence at trial during all of Tuesday 14 May 2019 and in the morning of Thursday 16 May 2019. He gave a full account and denial.
- Having handed out written legal directions and repeated a large number of them (though not all) orally, the Judge explained to the jury how she would sum up the evidence:
"Let me turn to my summary of the evidence now. We will deal with what was going on before Mitcham and what went on at Mitcham and then, perhaps, we will stop when we get to Bermondsey because I have endeavoured to do this chronologically. I will try to read together all the evidence the Crown called, address by address. It is sometimes difficult to do so because it is not entirely clear, perhaps, which address we are dealing with at any given point. When we come to the defence evidence, however, I will simply remind you of what each defendant said. Firstly, it is fresher in your minds anyway and secondly, that was the way they gave their evidence and it is important, perhaps, that I remind you of how that flowed."
- The Judge kept to her word so far as the evidence for the prosecution was concerned. Having summarised that evidence, she then turned to the defence evidence:
"We will turn to what each defendant said. You have heard this rather more recently, so I am not going to repeat every word of what each defendant said, but it is only fair to the defendants if I remind you in summarised form of their accounts."
- The Judge then summed up the evidence of MG in some detail (covering some 10 pages of transcript). At one point she referred to what he said about an apparent inconsistency between his evidence and his defence statement. She interposed a reference to a similar issue in relation to Mr Sakin's evidence but only in the context of the prosecution's case that there was a material inconsistency with the contents of his defence statement. When she did so, she said that she would remind the jury of his evidence later.
- However, having dealt with MG's evidence, the Judge then simply said:
"That completes my review of the evidence."
- This coincided with the end of the court day. So the jury were sent home with a view to retirement first thing the next day - which is exactly what happened. When they retired, they took with them, amongst other things, the video material on which IS had commented in his evidence.
- No-one said anything to the Judge about her failure to sum up the evidence of IS, and she self-evidently herself did not notice the omission at the time either. It is difficult to understand how (all four) counsel failed to identify what was a clear and obvious failure to cover IS's evidence. They cannot have been listening (or, if listening, concentrating) at all.
- The error here concerns the failure by the Judge to refer in summing-up to IS' evidence in defence, as she clearly had intended to do.
- The relevant general principles are to be found in a well-known line of authority which includes R v Dinnick (1910) 3 Cr App R 77; R v Badjan (1966) 50 Cr App Rep 141, CAA; R v Tillman [1962] Crim LR 701; R v Jones (Peter) [1987] Crim LR 701; R v Bury [1997] 10 Archbold News 2 ("Bury"); R v Ward, Andrews, Broadley [2000] All ER (D) 2382; R v Akhtar [2001] Archbold News 2; R v Holloran, Hughes [2003] EWCA Crim 3282; R v Rodney [2003] EWCA Crim 1194; R v McCartney [2003] EWCA Crim 1372; R v Harish Patel [2012] EWCA Crim 2479; for more recent authority see in particular R v Uddin & Ors [2021] EWCA Crim 14 and R v Reynolds (Nicholas) [2019] EWCA Crim 2145; [2020] 1 Cr App R 2020; [2020] 4 WLR 16 ("Reynolds").
- A simple distillation of the relevant principles for present purposes, can be set out uncontroversially as follows:
i) Summing-up the facts to a jury in a criminal trial serves two purposes: first, to the extent necessary, it reminds the jury of the salient facts and the prosecution and defence cases in relation to those facts; and secondly, since a jury's verdict is not reasoned, it provides an assurance that the verdict is founded on the facts described in the summing-up, albeit that it is not necessary for a summing-up fully to rehearse all the facts and argument;
ii) When a defence is raised by a person charged, it should be fairly put to the jury. This is a paramount principle. The need for a Judge in summing up properly to summarise the defendant's case is part and parcel of the broader requirement to ensure there is a fair trial;
iii) Where a cardinal line of defence is placed before the jury and that finds no reflection at any stage in the summing-up, it is in general impossible to say that the conviction is secure in those circumstances. However, it may depend on the particular circumstances of the individual case but it must be a very rare case where a defence case is not included in the summing-up and yet a court can reach the conclusion that a verdict of guilty was safe;
iv) It is not enough to say that the jury would have heard the evidence not very long ago (or something along those lines). It still remains the judge's task to summarise the evidence to the jury. even if not in any great detail but so as to make it plain to the jury that it was material worthy of mention by him or her and worthy of consideration by the jury. Nor are counsel's closing speeches a substitute for a judge's impartial review of the facts;
v) It is irrelevant that the case against the defendant was a strong one. If he did not have a fair trial, the conviction is unsafe;
vi) It is not the duty of the judge summing up to mention every argument or point in favour of one side or another. What is required will depend on the particular circumstances of the case but may involve reminding the jury of important points in the prosecution evidence, including cross-examination of prosecution witnesses, and/or in the submissions of defence counsel;
vii) If no complaint or suggestion is made at the time of a summing-up by counsel it may be regarded on an appeal as relevant to the validity of any later complaint. In Reynolds (supra) Simon LJ stated the position as follows (at [66]):
"However, in our view, whatever the historic approach might have been, the present position should be understood differently. First, it would be inconsistent with Part 1 of the Criminal Procedure Rules, the duty of the parties to conduct the case in accordance with the Overriding Objective, for either prosecuting or defence counsel not to raise with the judge what appears to be an error in the summing-up, whether of law or fact. Second, there is nothing necessarily inconsistent between defence counsel's duty to a client and acting in that interest so as to correct what may be mistakes in the summing-up which may result in a conviction. The client's interests are unlikely to be best served by relying on the success of an appeal against conviction and the possibility of a retrial. In these circumstances, if counsel remains silent, this Court is entitled to proceed on the basis that what was said in a summing-up was not regarded as an error or at least a material error at the time. We would add that subsequent trawls through the transcript of a summing-up searching for infelicities of expression is not an exercise which is likely to prove productive of a successful appeal."
- Turning to the facts here, it would be an unsustainable premise to proceed on the basis that counsel's silence at the time means that what was said (or not said) in summing-up was not a material error. The fact that it was the duty of both prosecution and defence counsel to draw the Judge's omission of any summary of IS' evidence to her attention (and of the necessary "bad character" direction) and that they failed to do so cannot detract from the fact that this was a fundamental failure.
- As the authorities make clear, the strength of the case against a defendant is no answer. Nor can counsel's speeches be relied on so as to mitigate the position. (In any event we note that the defence closing speech for IS did not refer in any detail or at any length to IS' own evidence. Rather it focussed on the alleged unreliability of CH's evidence and other alleged weaknesses' in the prosecution case).
- It is right that on occasion during her summing-up the Judge referred to the fact that IS (or the defence generally) denied a particular allegation. However, such references were bald, sporadic, sometimes placed in the context of a legal direction, and limited in number (amounting to no more than nine during the course of the entire summing-up and one during the course of an answer to a jury note). In so far as there were similarities between the two defences and no complaint can be made of the summing-up in relation to MG, the jury was obliged always to consider separately and distinctly each defendant, and in any event the evidence of IS.
- It is of significance that, as we have noted, the jury in retirement had video material which, on one view, was damaging to IS' defence. IS had been cross-examined at some length in relation to this material. He gave an explanation for it which, if accepted, would have at least reduced its incriminatory effect. The jury were not reminded of this evidence. They simply had the video material. This is a stark example of how the failure to sum up IS' evidence rendered the trial unfair.
- This was not a situation where the Judge failed to refer to one aspect or some detail of IS' evidence or defence. There was a wholesale (and no doubt unintentional) failure to remind the jury of the substance of IS' evidence. The position was compounded by the failure to give the jury the necessary "bad character" direction orally (which the Judge must have intended to give during the course of her summing-up of IS' evidence).
- In short, the summing-up did not reach the standard of fairness to which the Judge herself expressly recognised IS was entitled and which she had obviously intended to achieve. Applying the principles identified above, we concluded that IS' convictions were to be regarded as unsafe.
- IS' convictions were accordingly quashed. In the light of this, his renewed application for leave to appeal against sentence fell away.
Conclusion
- We conclude by emphasising the obvious importance of the duty on all trial counsel to be alert during the course of a judge's summing up to any obvious errors or omissions of the type that occurred in this case, and to draw them immediately to the judge's attention. We have no doubt that the Judge had a summary of IS's evidence ready to deliver to the jury. Her summing up as a whole had been prepared scrupulously. She had given notice more than once in her summing up that she would sum up the evidence of IS. Had her attention been drawn to her omission, we are sure that she would have been ready there and then to deal with IS's case. As it is, the failure of all those present in court to do or say anything has had grave consequences.
- For the reasons set out above, we:
i) Dismissed the applications for permission to appeal the Judge's refusal to permit cross-examination of CH;
ii) Dismissed the appeals based on the Judge's alleged failure to give a detailed direction on alleged inconsistencies between CH and AS;
iii) Allowed the appeal against IS's convictions on the basis that they are unsafe as a result of the Judge's failure to sum up IS' evidence to the jury.
- We also ordered a re-trial of IS on counts 7, 8, 11, 12, 16 and 19. In these circumstances, reporting restrictions under s.4(2) of the Contempt of Court Act 1981 will apply to this written judgment. It appearing necessary for avoiding a substantial risk of prejudice to the administration of justice in the forthcoming criminal re-trial of IS, we order that the publication of any report of these reasons (but not the outcome of the appeals) be postponed until the conclusion of the re-trial or further order.
