Ensuring Judicial Impartiality in Summing-Up: The Hewson Case [2023] EWCA Crim 1657

Introduction

The case of Hewson, R. v ([2023] EWCA Crim 1657) was adjudicated by the England and Wales Court of Appeal (Criminal Division) on November 3, 2023. The appellant, Mr. Hewson, was convicted on multiple counts related to sexual offenses under the Sexual Offences Act 2003, specifically three counts of sexual assault contrary to section 3 and one count of assault by penetration contrary to section 2. Following his conviction in the Crown Court at Norwich, Mr. Hewson appealed on the grounds that the trial judge's summing-up was unfairly biased towards the prosecution, asserting that the judge made adverse comments regarding the defense's evidence and failed to adequately remind the jury of critical defense evidence.

Summary of the Judgment

Upon review, the Court of Appeal found merit in Mr. Hewson's appeal, determining that the trial judge's summing-up was indeed unfairly unbalanced in favor of the prosecution. The judge's comments were predominantly adverse to the defense, and there was a notable failure to highlight key elements of the defense's case. This imbalance was deemed to compromise the fairness of the trial, leading to the quashing of all convictions except for count 7, which Mr. Hewson had previously pleaded guilty to.

Analysis

Precedents Cited

The judgment extensively referenced prior cases to underscore the principles governing judicial summing-up and the imperative of impartiality. Key among these were:

BKY v R [2023] EWCA Crim 1095: This case elaborated on the limits of judicial intervention during summing-up, emphasizing that a judge must not adopt an advocacy role or appear to favor either party.
R v Hulusi (1974) 58 CAR 378: Established the longstanding principle that judges should refrain from influencing the jury's perception of evidence through biased commentary.
R v Inns [2018] EWCA Crim 1081: Reinforced that judges must maintain impartiality regardless of the defense's presentation.
R v Haddon [2020] EWCA Crim 887: Highlighted the necessity for a fair balance in summing-up, cautioning against revealing personal judicial opinions.
R v Merchant [2018] EWCA Crim 2606: Asserted that while judges may comment on evidence, such commentary must be objective and not skewed towards either prosecution or defense.
R v Awil [2020] EWCA Crim 1802: Emphasized that summing-up should be balanced and fair, maintaining the integrity of the jury's role in evaluating evidence.

Legal Reasoning

The Court of Appeal meticulously analyzed the summing-up provided by the Recorder during the trial. Central to their reasoning was the adherence to Part 25.14 of the Criminal Procedure Rules, which mandates judges to offer clear legal directions and a balanced summary of evidence. The court found that the Recorder in this case breached these principles by:

Making numerous comments that favored the prosecution's narrative over the defense's.
Using language such as "you may think" and "it is a matter for you," which, despite attempts at neutrality, conveyed the Recorder's own biases.
Failing to highlight critical defense evidence, thereby limiting the jury's ability to fully consider the defense's case.
Repeatedly emphasizing points adverse to the defense without adequate balancing remarks.

The court concluded that these actions created an unfair summing-up, undermining the defendant's right to a fair trial and casting doubt on the safety of the convictions.

Impact

This judgment underscores the paramount importance of judicial impartiality during summing-up. It serves as a critical reminder to judges to:

Maintain an objective stance, avoiding any appearance of advocacy for either side.
Ensure that summaries of evidence are balanced, fairly representing both prosecution and defense cases.
Avoid language that could be construed as personal opinions influencing the jury's deliberations.

The decision also reinforces the judiciary's role in safeguarding the integrity of the trial process, ensuring that convictions are based solely on unbiased assessments of evidence.

Complex Concepts Simplified

Summing-Up: The concluding remarks made by a judge to a jury at the end of a trial, summarizing the evidence and legal points to aid the jury in their deliberations.
ABE Interview: Adult Basic Educational Interview, a process where victims (or complainants) provide their initial account of events to the police.
Assault by Penetration (s.2): A type of sexual offense under the Sexual Offences Act 2003, involving the penetration of a person’s body part without consent.
Cross Admissible: Evidence presented in one part of a case is allowed to be used in support of another part.
Judicial Impartiality: The principle that judges must remain unbiased and neutral, ensuring a fair trial without favoring any party.

Conclusion

The Hewson, R. v ([2023] EWCA Crim 1657) case serves as a pivotal reminder of the critical role judges play in maintaining impartiality during summing-up. The Court of Appeal's decision to quash the convictions underscores the judiciary's commitment to ensuring that trials are conducted fairly, free from undue bias. By highlighting the repercussions of an unbalanced summing-up, this judgment reinforces the standards expected of judges, safeguarding the rights of defendants and upholding the integrity of the legal system. Moving forward, this case will likely inform and shape judicial practices, emphasizing the need for balanced and impartial guidance to juries in criminal proceedings.