The Supreme Court has allowed Brian Rattigan’s appeal against his 2009 conviction for the murder of Declan Gavin, finding a real possibility that comments by the trial judge influenced the jury’s view of the defence case.
In a judgment delivered on 12 December 2017, Ms Justice Iseult O’Malley said the judge’s final remarks were capable of making some or all jurors believe they had little choice but to convict. She concluded that the comments went further than was desirable and that the appeal should be allowed.
The appeal concerned the conviction following a trial that began in November 2009. Mr Rattigan challenged both the admission of two witness statements under section 16 of the Criminal Justice Act 2006 and the judge’s summing-up to the jury.
The Supreme Court rejected his arguments about section 16. The provision allowed the prosecution to use statements made by two witnesses in 2001 after they gave oral evidence at trial that did not repeat the statements’ accounts of the attack. The Court held that the provision was an evidential change applicable to trials held after it came into force, even where the statements predated the Act. It also rejected the argument that the trial judge should have refused to apply it as compensation for prosecutorial delay. The Court noted that delay could be relevant to fairness in a particular case, but found no basis here for withholding the procedure on that ground.
The Court’s criticism focused on the judge’s final passage to the jury. The judge described a series of circumstances as making Mr Rattigan “unlucky” if he was not the attacker, then told jurors they had to be satisfied that treating the combination as coincidence would be an affront or insult to their intelligence.
Justice O’Malley said the defence had argued that particular evidence was unproven or carried insufficient weight; it had not advanced coincidence as an alternative explanation. In her view, the judge’s remarks amounted to advocacy for the prosecution and subjected an argument attributed to the defence to sustained sarcasm. They came after what defence counsel had described as a model charge, without a reminder that jurors could disregard the judge’s views.
The Court held that a judge may comment on evidence to help a jury, but must respect the jury’s role as finder of fact and avoid appearing to steer its verdict. The judgment’s concluding order was to allow the appeal. It does not state in the supplied text what further order, if any, was made about a retrial.