Judicial Authority to Address Inaccurate Agreed Facts in Summing-Up – Arachchige v R ([2025] EWCA Crim 363)

Introduction

Arachchige v R is a 2025 decision of the England and Wales Court of Appeal (Criminal Division) which examines two procedural applications by the appellant, Jagath Arachchige, convicted in 2018 of two counts of kidnapping, one count of sexual assault and one count of committing an offence with intent to commit a sexual offence. The appellant sought (i) an extension of the statutory time limits for his applications (910 days for conviction, 594 days for sentence) and (ii) permission to appeal against conviction and sentence. The underlying facts involve separate incidents on consecutive nights in December 2017, when two heavily intoxicated women (referred to as C1 and C2) entered the appellant’s car believing he was a taxi driver. Each complainant alleged that the appellant fraudulently induced her into his vehicle and sexually assaulted her at isolated locations.

The central legal issue on conviction was whether the trial judge’s comments about two disputed photographs—taken by the appellant on his mobile phone—amounted to material misdirection of the jury, rendering the convictions unsafe. On sentencing, the appellant argued that a 12-year determinate term (with a four-year extension for the lead kidnapping count) was manifestly excessive given the lack of violence and the “fraud-only” nature of the kidnappings.

Summary of the Judgment

The Court of Appeal refused both the extension applications and the substantive appeals:

The delay in bringing the appeal was not excused, but the merits were so weak that it was unnecessary to decide whether the delay was justified; refusing the extensions caused no prejudice.
On conviction, the judge’s references in his summing-up to the timing of two photographs—though based on an “agreed fact” that was objectively incorrect—did not amount to illegitimate judicial comment or material misdirection. The issue was tangential in the context of strong, independent evidence from two complainants. The convictions were therefore safe.
On sentence, the 12-year term was neither manifestly excessive nor wrong in principle. The offences were planned, aggravated by prior warning, and involved prolonged abuse of vulnerable victims; the judge’s overall approach was logical and fully reasoned.

Analysis

Precedents Cited and Legal Framework

Although the judgment does not refer to specific named authorities, it relies on well-established principles of English criminal appellate law:

Criminal Appeal Act 1968: Governs time limits for notices of appeal and provides for late appeals “in the interests of justice” (sections 11 and 17).
Unsafe Conviction Test: A conviction will only be quashed if misdirection or irregularity rendered it unsafe (R v Chrastina [2004] UKHL 38; R v Adams [2008] EWCA Crim 1311).
Judicial Comment and Summing-Up: Judges may review facts and invite inferences, but must caution juries to accept only those views they agree with (R v Lucas [1981] QB 720; R v Keating [2005] EWCA Crim 2310).
Sentencing Principles: Offences must be assessed for culpability and harm, adhering to Sentencing Council guidelines and maximum statutory penalties.

Legal Reasoning

1. Extension of Time: The Court applied the “interests of justice” test. Although counsel’s illness and prison transfers explained some delay, the proposed grounds of appeal were so unarguable that no prejudice arose from refusing extra time.

2. Alleged Misdirection on Photographs:

The trial judge repeatedly reminded the jury that if he appeared to express opinions they should only follow them if they agreed.
He pointed out that the agreed timing (9:54 am on 16 December) was inconsistent with photographic evidence—two different positions and backgrounds—and asked the jury to draw their own inference.
Though not ideal practice, the judge was entitled to address an objectively incorrect agreed fact and direct the jury on how to treat it, without prejudicing the appellant’s right to a fair trial.
The misstatement was tangential: the jurors heard extensive other evidence (cell-site data, contemporaneous messages, recordings, prior warning incident, and witness testimony) supporting the kidnapping and sexual assault charges.

3. Sentencing Reasoning:

The judge treated count 1 (kidnapping with intent to commit a sexual offence) as the lead offence, reflecting the aggregated harm across both incidents.
He identified significant aggravating features: planned deception of vulnerable victims, prolonged detention, prior police warning, sexual violation and photographic exploitation, lack of remorse, and the devastating psychological impact on the complainants.
The custodial term of 12 years (maximum life available) with an extended licence of 4 years was within range and not manifestly excessive.

Impact

This decision clarifies that:

Trial judges retain a margin of discretion to address and correct analytically an inaccurate agreed fact, provided they properly caution the jury.
Such intervention, even if not pre-cleared with counsel outside the jury’s presence, will not render a conviction unsafe unless the misdirection is material and prejudicial in context.
Appellate courts will refuse extensions of time if proposed grounds of appeal are unarguable in law or fact, emphasizing efficiency and finality.
Sentences involving deception and sexual exploitation of intoxicated persons continue to attract heavy custodial terms, especially where planning, recurrence and lack of remorse are present.

Complex Concepts Simplified

Extension of Time: An application to the Criminal Appeal Office for extra days beyond the statutory limit to lodge an appeal; granted only “in the interests of justice.”

Agreed Facts: Factual statements accepted by both prosecution and defence, forming part of the trial record. If incorrect, judges may properly invite juries to question their reliability.

Misdirection: A judge’s incorrect or unfair statement that materially influences the jury’s verdict. To succeed on appeal, the defendant must show the misdirection made the conviction unsafe.

Manifestly Excessive Sentence: A sentence so disproportionate to the offence and offender that it falls outside the range of reasonable responses by a sentencing court. Not shown here.

Conclusion

Arachchige v R confirms that appellate courts will uphold convictions and sentences when (i) any judicial comments on erroneous agreed facts are tangential and adequately qualified, and (ii) sentencing reflects the gravity and planning of sexual kidnappings of vulnerable victims. The Court emphasised judicial candour to the jury and the high threshold for proving unsafe convictions or manifestly excessive sentences. This ruling will guide trial judges on the scope of their summing-up remarks and reassure appellate advocates that only substantial misdirections or disproportional sentences will succeed on appeal.