Court of Appeal Upholds Fairness of Trial Judge's Summing-up in Allen Brutnell v R Decisio

Citation: [2023] EWCA Crim 1331
Judgment on


The case of Allen Brutnell v R ([2023] EWCA Crim 1331) provides an insightful commentary on the conduct and fairness of a criminal trial, specifically focusing on the balance and sufficiency of the summing-up by the trial judge. The case highlights the absolute right to a fair trial for a defendant, illustrating the nuanced line between a judge’s commentary, direction to the jury, and the potential impact of either on the appellant’s conviction.

Key Facts

Allen Brutnell, a carpenter by profession, was convicted for a series of indecent and sexual assaults against three complainants while working at Cheeky Chimps, a day care nursery. The offences occurred between 2003 and 2009 when the appellant was between 16 to 21 years old. The complainants were under the age of 14 at the time of the alleged incidents. The appeal focused on the fairness and balance of the judge’s summing-up, questioning if it constituted a commentary that improperly encroached on the jury’s domain of factual determination.

In evaluating the fairness and safety of the conviction, the court referenced several legal principles critical to the appeal process:

  1. Right to Fair Trial: Established through cases such as Mears v The Queen and Randall v The Queen, a defendant’s right to a fair trial is absolute, regardless of the evidence against them. Departures from good procedural practice were examined, understanding that gross, persistent, or irreparable departures may lead to a conviction being deemed unsafe.

  2. Summing-up Procedure: The judge’s duty to tailor the summing-up to the case at hand was emphasized, ensuring that legal directions and evidence summaries remain within the framework of balance and impartiality, as per Part 25.14 of the Criminal Procedure Rules.

  3. Permissible Judicial Commentary: A judge may comment on the facts but must avoid creating a fundamentally unbalanced summing-up. This principle, highlighted in the case of Mears v The Queen, was significant in analyzing the appellant’s allegations of an unfair summing-up.

The court carefully examined the specific complaints raised by the appellant, including the judge’s use of “surreptitious” to describe the alleged offenses, the treatment of collusion and innocent contamination, and the summarization of evidence and mounting of the defense.


After a meticulous review, the Court of Appeal upheld the trial judge’s summing-up as fair, finding that it did not encroach on the province of the jury or descend into the arena of fact-finding, thereby maintaining the necessary balance and impartiality. The concerns raised by the appellant such as collusion, contamination, and the use of the word “surreptitious” were found to be addressed adequately within the context of summarizing the prosecution case and not indicative of bias. Importantly, the court referenced that the absence of contemporaneous objections by trial counsel was indicative that the purported omissions did not appear significant at the time of trial.


In conclusion, the appeal in Allen Brutnell v R was dismissed, reaffirming the conviction as safe and the trial as fair. The decision underscores the judiciary’s role in ensuring that the defendant’s right to a fair trial is protected, while also delineating the extent to which a judge may comment and direct without overstepping into the jury’s role of determining the facts. This case serves as a contemporary restatement of the principles governing the fairness of criminal proceedings, flagging important considerations for legal professionals in evaluating the propriety of a trial judge’s summing-up.

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