Thursday Law Report: Brevity is a virtue in a summing-up

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The Independent Culture
10 December 1998

Regina v Farr

Court of Appeal (Lord Justice Rose, Vice-President, Mr Justice Rougier and Mr Justice Johnson) 8 November 1998

APPEALS AGAINST conviction based merely on a judge's failure in a summing-up to refer to particular pieces of evidence or arguments by counsel would not find favour with the court.

The Court of Appeal allowed the appeal of Roger Farr against his conviction of trading with intent to defraud a creditor and failing to give the liquidator documents of a company being wound up, but ordered a retrial.

The defendant and his wife bought a hotel which they subsequently leased to a company of which they were the sole directors and shareholders. They sold 570 "room weeks" to members of the public on a timeshare basis. The purchasers agreed to pay an initial capital sum, and maintenance charges for 15 years. At the end of the period the capital sum, less VAT, would be repaid.

The Crown alleged that he had acted dishonestly by "using the small print of the agreement with the timeshare owners to hike the annual charges". It was also part of the Crown's case that very substantial monies had been dishonestly diverted by the defendant to the USA.

It was the defendant's case that he had never acted dishonestly, and that he had always intended to repay to the timeshare owners the capital sums when they fell due. He appealed against conviction on the ground that his conviction was unsafe because, inter alia,

(i) the judge's summing-up was inadequate in terms of his failure to put salient features of the defence, and as a consequence

was unbalanced and generally unfair in tone to the defendant, and, furthermore, the judge had made a succession of comments adverse to the defence;

(ii) the judge's direction to the jury on the defendant's good character was inadequate in form and was in any event undermined by what the judge said subsequently.

Jeffrey Pegden QC and Patrick Gibbs (Registrar of Criminal Appeals) for the defendant; Ian Glen QC and Jane Miller (Crown Prosecution Service) for the Crown.

Lord Justice Rose VP said that the summing-up, following a 13-day trial, had lasted for just over an hour. That in itself afforded no ground for legitimate complaint. On the contrary, brevity in summing up, as in examination or cross-examination of witnesses and in counsels' speeches, was a virtue, not a vice.

It could not be too strongly emphasised that a judge was under no obligation, when summing up, to rehearse all the evidence or all the arguments. Generally speaking, the longer a trial lasted the greater would be the jury's need for assistance from the judge in relation to the evidence. Many jurors did not have the experience, ability or opportunity of a judge to note significant evidence and to cross-reference evidence from different sources which related to the same issue.

Accordingly, in a trial lasting several days or more it was generally of assistance to a jury if the judge summarised those factual issues which were not disputed and, where there was significant dispute as to the material facts, identified succinctly those pieces of evidence which were in conflict. By so doing, the judge could focus the jury's attention on those factual issues which they had to resolve.

It was never appropriate, however, for a summing-up to be a mere rehearsal of evidence. The court did not and would not look favourably on appeals based merely on a judge's failure to refer to particular pieces of evidence or particular arguments by counsel.

In the present case, however, the summing-up regrettably did not strike the reader as well-structured, nor did it give the impression of fairness and balance, having many of the characteristics of a speech for the Crown. Several important aspects of the defence were not referred to at all. Moreover, the direction on the defendant's good character was flawed, and, since the question of his good character was at the heart of the case, the importance of that direction was self-evident. The convictions would, accordingly, be quashed, but a retrial would be ordered.