The Need to Sum Up the Evidence in 'Short and Simple' Cases (R v Ravinskiy)

It is somewhat surprising that the Court of Appeal has, yet again, had to grapple with the need for judges to provide a summary of the evidence. In the preface to the December 2019 edition of the Crown Court Compendium, Lord Burnett CJ reminded judges of the need to provide a ‘short and focussed summing up’ both in respect of the law and the facts. Although he accepted that there was an exception for the ‘simplest cases’, he reminded judges that it was best practice to provide ‘a recitation of all the evidence’ but that ‘all the points made on each side is unlikely to be helpful; brevity and a close focus on the issues is a virtue and not a vice’.

The effect of this decision is that judges, if they do not propose to sum up on the facts, should raise the matter with counsel so that submissions on the point can be made. Counsel should also have advance notice so that they can tailor the speeches’ approaches appropriately.

Without wishing to give a ‘definitive definition’ of what constitutes a ‘short and simple case’, the court has given some welcome guidance. A ‘short and simple case’, it is suggested, would be one where the trial is of short duration, where there is no (or no material) dispute as to the evidence, where the evidence is straightforward and requires no explanation from the judge, and that the summing up follows so soon after the evidence that the evidential picture remains clear in the minds of the jury.

What was the background?

The defendant was charged with the attempted murder of his wife (and with grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861, in the alternative). The issue for the jury was whether the defendant had an intention to kill. The evidence was largely agreed there had been powerful blows to the victim’s head with a hammer committed while she slept. The attack continued when she woke during which the defendant tried to strangle her, picked up a knife and tried to cut her wrist. She fled naked into the street with very serious injuries.

The defence case was that the appellant accepted the attack had occurred, but had no recollection of it. He relied on his psychiatric history which included recent visits to his GP and in-patient treatment. It was accepted that he had been mentally ill in the period preceding and following the incident.

The issue for the jury was, therefore, whether or not he had an intention to kill.

During the trial a large amount of evidence was agreed as to the defendant’s mental health: 24 paragraphs over six pages, including evidence from a consultant psychiatrist that the defendant was suffering from severe depression, both before and immediately after the offence. The appellant’s amnesia could be dissociative amnesia. The defendant gave evidence and denied having an intention to kill.

The trial was short. In his summing up, the judge did not attempt a ‘systematic’ summary of the evidence: he concluded that given the limited areas of dispute and because the trial had been short, such a summary was unnecessary.

The Court of Appeal noted that the judge told the jury on three occasions what did not constitute an offence; however, the jury were not directed as to what in fact was a defence, nor did he provide a possible route to acquittal.

What did the court decide?

The Court of Appeal, without wishing to ‘give a definitive definition’, said that a short and simple case would be one where the trial is of short duration, where there is no (or no material) dispute as to the evidence, where the evidence is straightforward and requires no explanation from the judge, and that the summing up follows so soon after the evidence that the evidential picture remains clear in the minds of the jury.

The court noted that even in such cases, a summary still may be required.

If a judge proposes not to sum up on the evidence, the court suggested that ‘it might well be prudent for the judge to canvas that view with counsel’ so that submissions could be made on the point or to enable a closing speech to be altered accordingly.

In this case, the court concluded that the conviction was unsafe by virtue of the judge’s failure to sum up on the facts for six reasons:

• the judge’s summary of the facts, such as it was, risked being only a partial account.
• those facts referred to by the judge were the most inculpatory. The facts he did not refer to were the most exculpatory, creating an imbalanced summing up.
• the factual summary was interwoven with the directions of law. The court was concerned that ‘the jury could have been misled into believing that these were the only facts of relevance’.
• a failure to give counsel warning that no factual summary would be given could have affected the way in which speeches were prepared or delivered—in particular, counsel may have given greater weight to the exculpatory facts that were omitted from the judge’s summary.
• the judge’s approach effectively delegated the task of addressing the evidence and the inferences to be drawn from it to counsel, instead of making it clear in judicial terms what the possible inferences were.
• that although (on one view) the evidence against the defendant was ‘overwhelming’, it was even more important to ‘set out the defence so as to ensure a due and fair balance in the overall presentation of the case to the jury’.

This analysis was first published on Lexis®PSL on 22 February 2021 and can be found here (subscription required).