Page 447 - Magistrates Conference 2019

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"either she is telling the truth about these things and you are sure about it, or you are not". He also made clear to them
"you decide who you believe and who you do not. You decide in respect of any particular witness to what extent the
witness may be honest, but mistaken ... this case could be summed up in four words. Who do you believe?"

192. Mr Whittam accepted that it would have been preferable if the words "gut instinct" had not been used.
However, when looked at as a whole it is submitted that the summing-up was balanced and fair. Moreover the overall
safety of the convictions was reinforced by the fact of the mixed verdicts. This illustrates that the jury considered which
evidence they accepted and when they did not and how carefully they approached their task.

c) Analysis and Conclusions

193. We agree that it would have been better if the judge had not used the words 'gut instinct'. But we also agree that
the summing up has to be looked as a whole. We consider that, when that exercise is undertaken, no sensible criticism
can be made of it. It properly identified the critical issue as being whether or not the complainant was credible.
Furthermore, the mixed verdicts make only too clear the fact that the jury took this issue very seriously.

194. In addition, we do not consider that it is necessary for a judge in every sex case to warn the jury about their
emotions. In many cases, it will be quite apparent to everyone that the background to the case is emotionally charged,
and that it is for the jury to act dispassionately, on the basis of the evidence. We consider that the judge's directions in
this case made that abundantly clear. This was a cool and unemotional summing-up, and would have sent an
unequivocal message to the jury that they had to consider their verdicts in the same way.

195. Accordingly, for the reasons set out above, we dismiss Lonsdale's appeal against conviction.