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Whether a Judge’s summing up can be grounds of appeal was explored in a recent case of R V M [2019] EWCA Crim 1094

This case related to a conviction for Wounding with Intent to do Grievous Bodily Harm.

The Appellant was also charged with attempted murder but the jury were unable to reach a decision on that charge and he was therefore acquitted.

The basis of the defence was that he did not intend to stab the victim and that it was an accident. The charge of s18 wounding is a charge where the prosecution has to show intention, namely intention to cause really serious bodily harm.

The Judge directed the jury that in order to convict they had to be sure that the appellant intended to cause really serious bodily harm and that if they were not sure of this, he should be acquitted.

The Court of Appeal agreed that the trial Judge’s direction was not as clear as it might have been. They expressed surprise that the Judge did not provide the jury with a written direction. The Court of Appeal has repeatedly urged Judges to provide written directions to the jury.

When he summed up, the Judge correctly told the jury that they had to be satisfied that the appellant intended to cause really serious bodily harm. However, after summarising the case for the prosecution and the defence, he added:

“… in particular, you need to look at whether those injuries could have been caused accidentally or whether they were in fact caused deliberately. And the prosecution would say that the facts speak for themselves, to some extent; it is not one wound it is three. That does not sound like an accident.”

The Court of Appeal commented that taken in isolation, that would, or at least might, suggest that it was sufficient for the prosecution to prove that the injuries were caused deliberately. That would, of course, be wrong.

The fact that these particular wounds were caused deliberately would be evidence from which the jury might (and indeed would be likely to) conclude that the appellant intended to cause really serious bodily harm. But that is, nevertheless, a matter about which they would need to be sure and not influenced by the Judge.

Although criticising the Judge the Court of Appeal felt that the summing-up on the question of intention must be taken as a whole, and, taken as a whole, the direction on intention was sufficient, and the inaccuracy, if such there was, does not render the appellant’s conviction unsafe.

 The Court of Appeal made a further criticism of the Judge.

“At the beginning of his summing-up, the Judge explained in conventional terms that he would first direct the jury on the law and would then remind them of the evidence. He then said:

‘I wish I did not have to do that. You have been reminded of the evidence by both counsel, perfectly appropriately, and in other countries this does not happen. But I am afraid it does in this country and I have to do it.’

The Judge would, with respect, have done better to keep his opinions to himself. It cannot have assisted the jury – or even encouraged them to pay attention – to suggest to them at the outset that a major part of the summing-up, which they were about to hear, was pointless and unnecessary. In fact, however, a balanced summary of the evidence from an independent and impartial Judge, pulling together the evidence on the important issues in the trial, is likely to be of assistance to the jury in all but the very simplest of cases, and even in those cases will at least reassure the jury as to the straightforward nature of their task, without taking very long to do.”

Notwithstanding these criticisms the Court of Appeal felt in this case that the conviction was safe and did not allow the appeal.

It is, however, a reminder of how important it is to obtain a copy of the summing up when considering an appeal. As experienced Criminal Appeal Solicitors we realise how important an appeal is and also understand the importance of getting it right first time. That’s why we look at all possible angles when dealing with an appeal.

If you or a member of your family considers that there are grounds for appeal in their case, feel free to contact our expert Criminal Appeals Solicitors for free initial advice.

Call us on 01623 397200 and speak to a Criminal Appeal Lawyer immediately.

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  • Private Prosecution