Sometimes things can go badly wrong in an appeal against conviction case but it's hard to imagine a more apparent example than this case. Where both Counsel were mistaken as to the Summing Up and this error had been encouraged by a significant omission in the transcript of the summing up.
The Applicant had previously succeeded in his appeal, and this was on the basis that the Judge had failed to sum up the applicants evidence to the jury. All original Trial Counsel were present at the appeal.
Clearly whilst appellants often advance that the Judge unfairly summed up their defence there is a world of difference between that unappealing argument and where a judge erroneously fails to sum up a defence case at all.
After the conviction was quashed and a re-trial ordered. it came to the attention of the Trial Judge and following discussions with counsel and a re-listening of the audio tape it was confirmed this was a mistake and the judge in fact spent twenty minutes dealing with the defence case.
Fortuitously the Court of Appeal retained a power to reopen an order pronounced before it was recorded as an order of the court in the record of the relevant court, that being the Crown Court. If it had been any later the route to correct was not straight forward.
The Court emphasised that it was a core duty of trial advocates, both for the prosecution and defence, to focus on the judicial summing-up at the time it was given. That was necessary for the proper discharge of the advocate's overriding duty to the court in the due administration of justice (to which the advocate's duty to act in the best interests of their client was subject). In particular, it was the advocate's duty to raise promptly with the judge what appeared to be a material error in the summing-up, whether it be of law or fact, at the time of the summing-up.
That was a duty that applied equally and irrespective of whom the advocate represented.