In summing up, the trial judge should have summarised more of the evidence given in cross-examination which supported the appellants' criticisms. However this defect did not undermine the fundamental fairness of the trial.Appeal against convictions for robbery by six appellants who were convicted on 6 February 2002. The allegations related to a robbery involving all six appellants at the victim's home during which the victim ('V') was beaten. Two cars, a mobile phone and cash were said to have been taken from V and his wife during the robbery. None of the appellants gave evidence at their trial. The common ground of appeal to all appellants alleged that the judge's summing up was unfair and unbalanced in its presentation of the evidence and factual issues to an extent that it rendered each appellant's trial unfair. They submitted that the judge failed to refer to or summarise, except in minor respects, any of the cross-examination and thus failed to put their defence or remind the jury of weaknesses in the prosecution's evidence. Three of the appellants raised an issue as to whether there was proper disclosure by the prosecution. In addition the appellant Ojinnaka ('O') challenged the judge's ruling at trial not to leave the defence of claim of right to the jury. O submitted that there was sufficient evidence of this defence before the jury and it was open to them to conclude that O genuinely believed that V owed money and that the appellants had the right to deprive V and his wife of the property subject to the robbery count. The appellant Golding sought to adduce fresh evidence from V's brother that he had been fighting with V on the day in question and not the appellants.HELD: (1) The fresh evidence would not be admitted. Apart from its innate incredibility in the context of the evidence given at trial, there was uncontradicted evidence that V's brother left the scene uninjured with no trace of blood on him. The appellants had been found to have V's blood on their clothing. (2) A claim of right could be a defence to robbery. O's submission that this defence should have been left to the jury was unsustainable and the judge was clearly right to reject it. The count related to cars and a mobile phone and alleged a robbery of both V and his wife. There was no evidence that anyone believed that they were entitled in law to deprive V, and least of all his wife, of any of those things. (3) Special counsel would not be appointed to represent the interests of the appellants during the consideration of the issue of disclosure. The appointment of a special counsel during the trial process should be confined to special cases such as Edwards and Lewis v United Kingdom (2003) LTL 23/7/2003 (see R v C : R v H (2003) EWCA Crim 2847). Nothing for which public interest immunity was claimed by the prosecution would have assisted the defence. There was no ground for mistrusting the prosecution in their task of full and proper disclosure. (4) The criticism raised by the appellant Richards that the judge selected only parts of his police interview, which favoured the prosecution, was quite unfair. (5) When the judge came to deal with defence points in his summing up he simply listed in a shorthand way points relied on by the defence, as he said he would. No legitimate criticism could be made of the judge that he did not remind the jury of the defence points. The jury was well aware that the defence case was that all the main prosecution witnesses were lying. (6) However there was substance in the appellants' criticism of the judge's decision not to summarise at least the key aspects of the cross-examination of the key witnesses which provided the foundation of the appellants' points. There was an obligation on the judge to refer to points made in cross-examination which could be said to weaken the case against the accused. Even where a defendant did not give evidence there was a duty to summarise the evidence in a balanced way. The judge should have done more than he did. The defence was entitled to have more of the evidence given in cross-examination summarised in so far as it gave rise to the defence's criticisms. (7) There was therefore a defect in the summing up. The question was whether that defect was such as to lead to the conclusion that the trial was unfair and the conviction unsafe. The evidence in the instant case was overwhelming. A more balanced summary of the cross-examination would not have led the jury to reach any different conclusion. The convictions were safe and the criticism did not undermine the fundamental fairness of the trial.Appeals dismissed.
 EWCA Crim 3183