Introduction

Drummond v R [2020] EWCA Crim 267 is a significant case adjudicated by the England and Wales Court of Appeal (Criminal Division) on February 14, 2020. The appellant, Ben Drummond, a 20-year-old male, sought permission to appeal against his conviction for murder and violent disorder, following his sentencing in the Central Criminal Court. Accompanied by co-appellant Isaiah Popoola, Drummond's conviction stemmed from a series of violent incidents that occurred over a two-hour period on February 20, 2018, in North London. This commentary delves into the intricacies of the judgment, analyzing the court's handling of read-in witness evidence, the legal reasoning employed, precedents cited, and the broader implications for future criminal cases.

Summary of the Judgment

The Court of Appeal reviewed Drummond's application for permission to appeal his murder conviction. The appellant challenged the trial judge's summing-up, particularly regarding the treatment of read-in eyewitness evidence that was not subjected to cross-examination. Drummond argued that the judge improperly directed the jury to approach this evidence with caution, potentially undermining its exculpatory value.

The appellate court meticulously examined the trial proceedings, including the types of evidence presented, the nature of the jury directions, and the applicability of precedents cited by Drummond's counsel. Ultimately, the Court of Appeal dismissed the appeal, affirming the trial judge's conduct was appropriate and that the directions provided to the jury were fair and balanced.

Analysis

Precedents Cited

Drummond's counsel referenced two key cases in attempting to substantiate their appeal:

• Merthyr Tydfil Car Auctions Ltd v Colin & Sandra Thomas [2013] EWCA Civ 815: This case addressed the weight to be given to agreed-upon witness statements, particularly in nuisance disputes. The Court of Appeal in that instance held that the trial judge erred in discounting the evidence merely because it wasn't cross-examined.
• Commissioners for HMRC v Pacific Computer Ltd [2016] UKUT 350: Here, the Upper Tribunal found that the First-tier Tribunal wrongly diminished the weight of agreed testimony that wasn't cross-examined, emphasizing that in undisputed evidence scenarios, such accounts should be given full weight.

However, the Court of Appeal in Drummond v R found these precedents inapplicable. The appellate court clarified that the context of these cases—civil disputes involving nuisance—differed fundamentally from the criminal circumstances of Drummond's case. Unlike in the cited cases, Drummond's evidence was not accepted as indisputably agreed and was subject to the jury's independent assessment.

Legal Reasoning

The Court of Appeal focused on whether the trial judge erred in instructing the jury on how to treat the read-in eyewitness evidence. The key points in the court's reasoning included:

• Nature of Read-In Evidence: The court distinguished between read-in evidence under sections 9 and 10 of the Criminal Justice Act 1967. Section 10 involves statements that are conclusive facts, whereas Section 9 pertains to read-in witness statements that do not offer conclusive proof and can be scrutinized by the jury.
• Jury Directions: The trial judge provided comprehensive directions on evaluating circumstantial and eyewitness evidence. Emphasizing the totality of evidence, the judge advised the jury to approach differing witness testimonies with caution, taking into account potential discrepancies and the inherent challenges in eyewitness identification.
• Prosecution's Obligations: The judge clarified that the burden of disproving an alibi lies with the prosecution and that even if an alibi is disproven, it does not automatically result in a conviction.
• Handling of Summary Evidence: The court affirmed that the trial judge appropriately treated the read-in evidence as non-agreed fact, allowing the jury to assess its credibility without being unduly influenced by any specific direction.

By upholding the trial judge's summing-up, the appellate court underscored the importance of balanced jury directions and the proper evaluation of circumstantial evidence, especially in the absence of cross-examination.

Impact

This judgment reinforces the precedent that read-in witness evidence in criminal trials must be treated with the same scrutiny as live testimony. It affirmed that judges can provide balanced directions to juries on evaluating such evidence without overstepping, even when the evidence lacks cross-examination. Moreover, the decision clarifies the limitations of certain precedents in different legal contexts, particularly distinguishing between civil and criminal proceedings.

For future cases, this ruling emphasizes the judiciary's role in ensuring fair trial standards are maintained, especially regarding the evaluation of eyewitness testimonies and the proper handling of circumstantial evidence. It may also influence defense strategies, highlighting the challenges in contesting read-in evidence without the opportunity for cross-examination.

Complex Concepts Simplified

Read-In Witness Evidence

Read-in witness evidence refers to statements prepared in advance and read to the jury during a trial, without the witnesses themselves being present to provide live testimony or undergo cross-examination. This can occur under specific sections of the Criminal Justice Act 1967:

• Section 9: Pertains to read-in statements that are not conclusive and can be subject to the jury's assessment.
• Section 10: Involves statements that are considered conclusive facts, leaving little room for dispute.

Circumstantial Evidence

Circumstantial evidence is indirect evidence that suggests a fact by implication or inference but does not directly prove it. In criminal cases, circumstantial evidence can be powerful when multiple pieces converge to form a coherent narrative that supports a defendant's guilt.

Jury Directions

Jury directions are instructions given by the judge to the jury regarding the legal standards and procedures they must follow in deliberating and reaching a verdict. Proper directions ensure that jurors understand how to apply the law to the evidence presented.

Conclusion

The Court of Appeal's decision in Drummond v R [2020] EWCA Crim 267 serves as a crucial affirmation of the judicial process in handling read-in witness evidence within criminal trials. By rejecting the appellant's claims of judicial error, the court underscored the necessity of balanced and comprehensive jury directions, especially when dealing with circumstantial and read-in evidence. This judgment reinforces the principle that such evidence must be critically evaluated by the jury, considering the totality of circumstances and inherent limitations in eyewitness testimonies. Furthermore, it delineates the boundaries within which appellate courts may assess trial conduct, particularly distinguishing between distinct legal contexts and the applicability of precedents. Overall, this case contributes to the ongoing discourse on ensuring fairness and integrity in criminal adjudications, particularly in the effective assessment of evidence that is not subject to live examination.