Clarifying Judicial Commentary in Summing-Up: Safety of Conviction in R v Butkus [2025] EWCA Crim 441

Introduction

R v Butkus ([2025] EWCA Crim 441) concerns the appeal by Mr Vidmantas Butkus, a Lithuanian‐born HGV driver convicted under section 170(2) of the Customs and Excise Management Act 1979 for knowingly facilitating the importation of cocaine. The Court of Appeal, Criminal Division, was asked to decide whether certain comments made by the trial judge in her summing-up—particularly references to “organised crime groups” and the use of phrases such as “we know”—rendered the conviction unsafe. The appellant contended that these unsolicited, emotive observations had the potential to prejudice the jury and deprived him of a fair trial.

Summary of the Judgment

The Court of Appeal refused Mr Butkus’s renewed application for leave to appeal. While acknowledging that some of the judge’s language—especially terms like “we know”—might have been imprudent, the court held that her overall directions preserved the jury’s autonomy. The agreed facts, the judge’s repeated invitations (“you may think,” “if I appear to express views… do not adopt them unless you agree”), and the clear statement of the sole issue for determination (“did Mr Butkus knowingly become involved in the fraudulent importation?”) meant there was no real risk that the jury was diverted from a fair consideration of the evidence.

Analysis

Precedents Cited

• R v Cohen (Max) (1909) 2 Cr App R 197
  Establishes that judges may express confident opinions on matters of fact and that juries are presumed intelligent enough not to be bound by judicial factual observations.
• R v Marchant [2018] EWCA Crim 2606; [2019] 4 WLR 20
  Emphasises that, in reviewing a contested summing-up, the appellate court must ask whether there is a “real risk” that unfair comment materially impeded the jury’s ability to reach a just verdict.

Legal Reasoning

The court’s reasoning proceeded in three stages:

1. Context of Agreed Facts and Directions: The judge had already defined the uncontested elements (the prohibition on importation, the fraudulent evasion, and the appellant’s involvement) and focused the jury on the single question of knowledge.
2. Judicial Warnings and Jury Autonomy: The summing-up included repeated reminders that:
   • Jury were sole judges of fact.
   • They must decide on the evidence alone.
   • If the judge appeared to express views, they should only adopt them if in agreement.
3. Fairness of the Disputed Observations: Although references to “organised and sophisticated operations” and to “we know” were stronger than strictly necessary, they were fair in light of:
   • The overwhelming agreed evidence: 17 kg of branded cocaine, DNA from multiple individuals, wholesale value ~£28,000/kg, street value ~£1.7 million.
   • The legitimate inference that such an enterprise would require coordination by third parties.
   • The absence of any suggestion that Mr Butkus planned or orchestrated the scheme—his role was confined to driving the HGV.

Impact

R v Butkus clarifies the boundary between permissible evidential comment and prejudicial judicial intervention. Key take-aways for future trials:

• Judges retain a broad discretion to comment on the strength of factual material, provided they repeatedly reinforce that the jury must weigh and decide facts independently.
• Use of collective language (“we know”) or emotive descriptors (“organised criminal gangs”) can, at most, be viewed as imprudent but will not automatically render a conviction unsafe if counterbalanced by clear judicial directions.
• Where the evidential backdrop is strong and largely uncontested, appellate courts are unlikely to conclude that such comments created a “real risk” of jury misdirection.

Complex Concepts Simplified

“Fraudulent Evasion” (CEMA 1979, s 170(2))

Dishonest and deliberate steps to bypass a legal prohibition on importing certain goods.

“Knowingly Concerned”

The requirement that the defendant was aware he was facilitating the import of prohibited items.

“Standard of Proof”

Criminal conviction demands proof “beyond reasonable doubt.”

“Summing-Up”

The judge’s review of evidence and legal directions to the jury before deliberation.

Conclusion

R v Butkus reinforces that appellate scrutiny will focus on whether judicial commentary created a genuine risk of jury bias, not on whether individual turns of phrase could—if isolated—be deemed unwise. The decision confirms that robust, even emphatic, judicial observations on evidential matters are permissible so long as the jury’s instruction remains paramount: to decide on the evidence, guided but not bound by judicial opinions. This precedent provides clear guidance for trial judges on maintaining the delicate balance between helpful comment and undue influence, ensuring the continued fairness and integrity of criminal trials.