NCL v R: Balanced Summing-Up and Safeguarded s.34 CJPOA Directions as Pre-conditions to Fairness

Citation: [2025] EWCA Crim 1352

Court: England and Wales Court of Appeal (Criminal Division)

Judgment date: 28 October 2025

Neutral citation identifier for commentary: NCL v R Commentary (2025)

Reporting Restrictions and Anonymity Notice

This judgment engages statutory reporting restrictions. The complainant enjoys lifetime anonymity under the Sexual Offences (Amendment) Act 1992. To avoid jigsaw identification, the appellant must be anonymised and is referred to as “NCL.” Publication of any report of these proceedings is postponed under s.4(2) of the Contempt of Court Act 1981 until the conclusion of the re-trial. Any publication must comply strictly with these orders.

Introduction

This appeal concerns a short, fact-sensitive sexual offence trial that turned almost entirely on the jury’s credibility assessment of two competing accounts: that of a five-year-old complainant and that of her grandfather (the appellant). The case raises foundational questions about the integrity of judicial summing up and the safeguards required when a judge or the prosecution invites the jury to treat differences between the defendant’s police interview and oral testimony as probative.

The appellant was convicted at retrial in the Crown Court at Gloucester of sexual assault of a child under 13 contrary to s.7(1) Sexual Offences Act 2003 and sentenced to 18 months’ immediate imprisonment together with a Sexual Harm Prevention Order. The sole ground of appeal alleged that the summing up, taken as a whole, was so imbalanced and legally flawed that the conviction was unsafe.

The Court of Appeal (Stacey J) allowed the appeal, quashing the conviction and directing a retrial. The decision sharpens two interconnected principles: first, the judge’s duty to provide a balanced summary of the evidence that includes the defence case even in short, focused trials; and second, the need to consider and, where appropriate, give a properly safeguarded direction under s.34 Criminal Justice and Public Order Act 1994 (CJPOA 1994) when the prosecution relies on omissions or “new” points in the defendant’s trial evidence as compared to their police interview.

Summary of the Judgment

The Court found that the judge’s summing up failed to summarise the defence account at all, despite providing a detailed rehearsal of the complainant’s and parents’ evidence. Simply inviting the jury to read the interview transcript did not discharge the judge’s duty to summarise the evidence relevant to the issues.
The judge drew attention, more than once, to “additional answers” in the defendant’s oral testimony that were not in his police interview, and invited the jury to consider whether this showed the defendant “covering his tracks.” No s.34 CJPOA 1994 direction—setting out strict limits and safeguards on drawing adverse inferences from such omissions—was considered or given, contrary to Crown Court Compendium guidance.
Although some phrases in the summing up (e.g., describing the child’s answers as “clear and steady”) were not in themselves objectionable when appropriately caveated, and a poetic remark about human nature was “ill-advised,” the cumulative effect of the imbalanced summary coupled with the absence of proper s.34 safeguards created a real doubt about the safety of the conviction.
The conviction was quashed under s.2(1)(a) Criminal Appeal Act 1968 as unsafe, and a retrial was ordered.

Background and Key Facts

The allegation concerned a brief episode in a domestic sitting room on 28 November 2021. The complainant (5) sat on her grandfather’s lap; she alleged he unzipped her onesie, put his hand inside her shorts, and touched her vagina over underwear, asking “Do you like that?” She denied the event was connected with hair-brushing and rejected other exculpatory features put to her.

The defence was categorical denial. The appellant’s core narrative (given in interview and in evidence) was that he was brushing the child’s hair, noticed a snagged zip on the onesie, briefly undid and re-zipped it, tickled her ribs/tummy innocently, and played a boisterous game with the child moving between him and her father. He said he queried whether she “liked it” only in the context of whether the hair-brushing technique was acceptable.

Other witnesses included the father (present in the room but did not observe the alleged assault; he described a rocking game and noticed the onesie fully unzipped later) and the mother (who received the child’s disclosure after returning home). Character evidence for the appellant was adduced. The first jury had been unable to agree; the second jury convicted after approximately six hours’ deliberation.

Key Legal Principle Clarified

Even in short trials turning on credibility, a judge must succinctly and fairly summarise the defence case; it is not enough to point the jury to the interview transcript in the bundle. Where the prosecution or judge invites reliance on differences between a defendant’s interview and trial account, the judge should consider a s.34 CJPOA 1994 adverse inference direction and, if appropriate, give it with the recognised safeguards, identifying the alleged omissions and the limits on any inference.

Precedents Cited and Their Influence

R v Lawrence [1982] AC 510 (per Lord Hailsham) – Emphasised that the summing up should contain a correct but concise summary of the evidence. Here, the Court drew on Lawrence to underscore that a balanced evidential summary is an integral part of a fair summing up. The judge’s omission to recap the defence case fell below that standard.
Brower [1995] Crim LR 746 and R v IWAT (No. 1) [2000] 2 Cr App R 189 – Reaffirm the need, in most cases, to remind the jury of the evidence even if heard recently. IWAT is particularly important: merely pointing the jury to the defendant’s interview transcript is inadequate. This case directly influenced the Court’s view that the trial judge’s reference to the interview in the bundle did not “go all the way” to discharging the duty to summarise the defence evidence.
R v Farr (CA, 8 Dec 1998, unreported; cited in IWAT) and McGreevy 57 Cr App R 424 – While brevity in summing up is often a virtue, it must not sacrifice fairness. The Court imported this balance: succinctness does not excuse the absence of any defence recap where the case turns on competing accounts.
Wilson [1991] Crim LR 838 – Cases where there is no need to summarise evidence are “rare indeed.” The Court relied on this to reject the notion that the recent hearing of the defence evidence or the narrowness of the issue obviated the need to remind the jury of the defence case.
R v Reynolds [2019] EWCA Crim 2145 – Failure to object to a summing up at trial is relevant to the validity of a later complaint but is not determinative; the ultimate question remains safety of the conviction. The Court acknowledged counsel’s silence while nonetheless focusing on the core safety question.

Legal Reasoning

1) Duty to Summarise the Defence Case

The Court anchored its reasoning in both authority and the Criminal Procedure Rules. CPR 25.14(3)(a)(ii) (2025 edition) requires the court to summarise the evidence “to such extent as is necessary” for the issues the jury must decide. Authorities (Lawrence, Brower, IWAT, Wilson) collectively establish that, in practice, this almost always requires a balanced reminder of both sides’ cases. Here, the judge gave a detailed, largely verbatim synopsis of the complainant’s evidence (partly because the ABE was hard to hear) and the parents’ accounts, but provided no summary of the appellant’s detailed exculpatory narrative. Directing the jury to “read the interview” did not cure that omission. In a case hinging on credibility, the absence of any defence recap created imbalance.

2) Differences Between Interview and Trial Evidence: The Need for Safeguarded s.34 Directions

The judge signposted “additional answers” given by the defendant in oral evidence that were not present in his interview and invited the jury to consider whether this represented “covering his tracks” or human memory lapses. The Crown had highlighted those differences in closing. Once a jury is being invited to treat such omissions as probative against the defendant, the judge should consider a direction under s.34 CJPOA 1994—specifically designed to regulate adverse inferences where a defendant fails to mention, when questioned under caution, facts later relied upon at trial.

Critically, the Court emphasised the Crown Court Compendium’s safeguards: before speeches and in summing up, the judge should identify the exact facts said to be omitted, any explanation for the omission, and make clear that any adverse inference is conditional and limited. The jury must be instructed that they may draw such an inference only if the prosecution case at the time of interview plainly called for an answer; there is no sensible explanation for the omission; and it is fair and proper to do so. None of these safeguards were provided. Moreover, the judge did not settle with counsel whether there were true, material differences or what precisely they were. Repeating the “additional answers” point later in the summing up compounded the problem.

3) Other Comments and Directions

“Clear and steady” comment: The Court found no error in describing the complainant’s answers as “clear and steady” where this was explicitly made a matter for the jury’s assessment and the judge repeatedly reminded the jury that fact-finding was theirs alone.
“Human frailty”/poem remark: The Court described the judge’s observation that people are “neither wholly good nor wholly bad, even for fleeting moments” as ill-advised. On its own it did not render the verdict unsafe, but in context it added to the perception of imbalance (particularly given the defendant’s good character evidence).
Burden of proof language: The appellant criticised a passage inviting the jury to consider whether anything “can cast doubt” on the complainant’s account. While that phrase risks confusing the burden and standard of proof, the Court did not treat it as determinative. The principal vitiating factors remained (i) the failure to summarise the defence case and (ii) the failure to give a safeguarded s.34 direction in the face of repeated reliance on purported omissions.

4) Safety of the Conviction

Applying s.2(1)(a) Criminal Appeal Act 1968, the Court concluded the conviction was unsafe. This was a short, finely balanced case; the first jury hung. The manner of the summing up—omitting the defence summary while highlighting “additional answers” without the required legal framework—risked unfairly bolstering the complainant’s account and undermining the defence. The conviction was quashed and a retrial ordered.

Impact and Practical Implications

For Trial Judges

Even in short trials or where evidence has been heard very recently, provide a concise but balanced summary of both the prosecution and defence cases; do not rely on the jury’s recollection or point them to transcripts as a substitute.
Where the prosecution relies on omissions or newly emergent defence details at trial (relative to interview), consider whether s.34 CJPOA 1994 is engaged. If it is, identify the alleged omissions with precision, consider any defence explanation, and give the full suite of safeguards. Confer with counsel before summing up.
Avoid rhetorical flourishes that risk undermining standard directions (e.g., good character) or that can be read as diluting the burden and standard of proof.

For Advocates

Flag summing-up imbalances in real time; invite the judge to summarise the defence case where omitted or to correct any passages that risk reversing the burden or suggesting adverse inferences without the legal framework.
When highlighting differences between interview and trial evidence, be prepared to address whether s.34 CJPOA 1994 is engaged and, if so, the precise omissions, any explanations, and the restricted consequences of any inference.
Ensure good character directions are not undercut by subsequent commentary.

For Appellate Practice

Reynolds remains good law: the absence of contemporaneous objection is relevant but not fatal. The core enquiry is whether, viewing the summing up as a whole, the conviction is unsafe.
NCL v R will likely be cited where a judge failed to summarise the defence case or where adverse-inference-type reasoning was deployed without s.34 safeguards.

Complex Concepts Simplified

Summing up: The judge’s final address to the jury, which must accurately state the law and fairly summarise the evidence relevant to the issues. It guides but does not decide the facts.
ABE interview: “Achieving Best Evidence” video-recorded interview of a complainant/witness, commonly used for children, designed to capture evidence in a sensitive and reliable way.
s.28 cross-examination: Pre-recorded cross-examination of a vulnerable witness, taken before trial, played to the jury at trial.
Adverse inference (s.34 CJPOA 1994): The jury may, subject to strict safeguards, draw an adverse inference where a defendant failed, when questioned under caution, to mention a fact later relied upon in defence at trial. The judge must identify the omission, consider any explanation, and direct the jury on the limits and fairness of drawing any inference.
Good character direction: Where a defendant has no relevant previous convictions and has positive character evidence, the jury may be directed that this can support credibility and reduce the likelihood of offending, while making clear this is not a defence.
Unsafe conviction: Under s.2(1)(a) Criminal Appeal Act 1968, the Court of Appeal must quash a conviction if it believes it is unsafe, considering the trial as a whole.
Jigsaw identification: Piecing together different details from public reporting that, in combination, could identify a protected person (such as a complainant in a sexual offence case). Courts may anonymise additional parties to prevent this.
s.4(2) Contempt of Court Act 1981 order: A postponement of publication to avoid substantial risk of prejudice to the administration of justice, commonly used when a retrial is ordered.

Why This Case Matters

NCL v R is not a departure from established doctrine but a careful re-affirmation, applied to a compact, highly sensitive trial. It clarifies that:

“Short” and “narrow” cases are not exceptions to the judge’s duty to produce a balanced evidential summary. In such cases, any imbalance can have outsized impact.
If the prosecution invites the jury to use the defendant’s trial elaborations, omissions, or changes against them, the judge must either confine comment carefully or give a correctly framed s.34 direction identifying the omitted facts and limiting any inference to what is fair and proper.
Well-intentioned judicial remarks—especially rhetorical or philosophical flourishes—may be counterproductive if they can be read to blunt standard directions or to suggest a propensity-based approach in a credibility contest.

Conclusion

The Court of Appeal’s decision in NCL v R reinforces foundational trial fairness principles in summing up. The judge’s failure to summarise the defence evidence and the repetition of “additional answers” without a safeguarded s.34 CJPOA 1994 direction created an impermissible imbalance. In a case hinging on credibility, those missteps rendered the conviction unsafe.

For judges and advocates, the message is twofold: balance is indispensable, and safeguards around adverse inferences are not optional. For future cases, NCL v R will serve as a practical template for structuring summing up in short, sensitive trials and for handling alleged omissions between interview and trial evidence. The judgment thus contributes meaningfully to the jurisprudence on summing-up fairness and the disciplined use of s.34 CJPOA 1994.

Key Citations and Provisions

Criminal Appeal Act 1968, s.2(1)(a)
Criminal Justice and Public Order Act 1994, s.34(1)-(2)
Criminal Procedure Rules 2025, r.25.14(3)(a)(ii)
Sexual Offences (Amendment) Act 1992 (anonymity)
Contempt of Court Act 1981, s.4(2) (postponement)
R v Lawrence [1982] AC 510
Brower [1995] Crim LR 746
R v IWAT (No. 1) [2000] 2 Cr App R 189
R v McGreevy 57 Cr App R 424
R v Farr (CA, 8 Dec 1998, unreported; cited in IWAT)
Wilson [1991] Crim LR 838
R v Reynolds [2019] EWCA Crim 2145