Judicial Discretion on Memory Directions in Criminal Trials: Nawaz v R [2025] EWCA Crim 637

Introduction

Nawaz v R ([2025] EWCA Crim 637) is an appeal against conviction in a case of non-recent rape tried in the defendant’s absence. Mr Nawaz, aged 55 at the time, was convicted at Bradford Crown Court on 1 December 2023 and sentenced to 12 years’ imprisonment. He failed to surrender to bail, remained at large, and challenged both his solicitors’ authority to renew his application for leave to appeal and the fairness of the jury directions on assessing the complainant’s evidence, particularly the question of human memory. The Court of Appeal considered two main issues: (1) whether the defendant’s solicitors had implied authority to renew his appeal after refusal by the single judge, and (2) whether English criminal law requires the specific “fallibility of memory” direction drawn from the Civil Procedure Rules (CPR 57AC) in non-recent sexual offence trials.

Summary of the Judgment

The Court of Appeal (Criminal Division) refused leave to appeal. First, it held that, on the evidence of correspondence and prior instructions, Mr Nawaz’s solicitors did have authority to renew the appeal despite his absence and failure to put them in funds. Secondly, it ruled that the trial judge’s jury directions—though not mirroring CPR Practice Direction 57AC—were fair and balanced. The court reaffirmed that civil-procedure memory guidelines, such as those in Gestmin v Credit Suisse and CPR 57AC, do not bind criminal courts. The existing standard directions on delay, consistency, and human memory sufficed to ensure the jury could assess the complainant’s credibility.

Analysis

Precedents Cited

• R v Okedare [2014] 1 WLR 4071
  Established the criteria for inferring a solicitor’s authority to pursue appeals after refusal by a single judge. The court emphasised the lawyer’s duty to advise on potential adverse consequences and held that, absent clear instructions, renewal applications might be treated as ineffective unless interests of justice require otherwise.
• Gestmin v Credit Suisse [2013] EWHC 3560 (Comm)
  A commercial case in which Leggatt J analysed the malleable nature of human memory and recommended a specific civil-procedure direction (CPR 57AC). The trial judge in Nawaz declined to import this guidance into criminal proceedings.
• Sexual Offences (Amendment) Act 1992, section 3
  Provides anonymity to complainants in sexual offence trials and was observed but not central to the dispute on jury directions.

Legal Reasoning

1. Authority to Renew Appeal. Applying Okedare, the court reviewed the solicitors’ email of 23 January 2025. The correspondence demonstrated that Mr Nawaz had been kept informed of refusal, counsel’s advice on positive grounds, and the risks of renewing. Express instructions to renew were given, even though funds were never provided. The court held that clear prior instructions and informed consent sufficed to infer authority, and absence of fresh funding did not revoke it.

2. Fairness of Jury Directions. The nub of the appeal was whether a criminal jury must be directed in the precise terms of CPR 57AC paragraph 1.3. The trial judge had already given exhaustive directions on delay, changing accounts, trauma-affected memory and consistency. The judge concluded—correctly in the appellate court’s view—that Gestmin’s civil-law context and CPR practice directions do not create binding requirements in criminal trials. Juries are presumed capable of understanding fallibility of memory without importing a civil-procedure template. The appeal court found the directions “exemplary” and sufficient to ensure a fair verdict.

Impact

The decision clarifies two important areas of criminal procedure:

• Renewal of Appeals by Absent Defendants. Solicitors can rely on prior instructions to renew leave applications, even if clients abscond or fail to fund further representation, provided interests of justice are served.
• Jury Directions on Human Memory. Criminal courts retain discretion to fashion jury directions on witness reliability. Civil-procedure practice directions on memory are persuasive but not mandatory in criminal cases. This preserves prosecutorial and defence flexibility in tailoring directions to the context, especially non-recent sexual offence trials.

Complex Concepts Simplified

• Leave to Appeal: A preliminary permission stage before a full criminal appeal can be heard. If refused by a single judge, a defendant may renew before the full court.
• Implied Authority: When lawyers proceed without fresh written instructions because earlier instructions and informed advice justify continuing representation.
• CPR Practice Direction 57AC: Civil-procedure guidance requiring a standard jury direction on the malleability of human memory. Not binding in criminal trials.
• Non-recent Sexual Offence: An allegation made long after the events, raising issues of delayed complaint, memory distortion, and trauma-related recollection.

Conclusion

Nawaz v R reaffirms two key principles: first, that solicitors may infer authority to pursue an appeal despite an absent and non-funding client if prior clear instructions exist; and second, that criminal courts are not obliged to adopt civil-procedure “memory” directions. The Court of Appeal upheld the trial judge’s carefully articulated directions as fair, marking a significant affirmation of judicial discretion in criminal jury guidance. This ruling will shape both appellate practice for absent appellants and the boundaries of juror direction on witness memory in future criminal trials.