Neutral Citation Number: [2017] EWCA Crim 1487
Case No: 2016 04319 C4
IN THE COURT OF APPEAL CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT NORWICH
HH Judge Dennis QC
T2015 7152 and T2016 7017
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 9.10.2017
LORD JUSTICE SIMON
MR JUSTICE HOLGATE
and
SIR KENNETH PARKER
(sitting as a judge
of the Court of Appeal Criminal Division)
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Appellant
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The Crown
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Respondent
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Ms Juliet Donovan for the Appellant
Mr Duncan O’Donnell for the Respondent
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Judgment Approved
Lord Justice Simon:
1.
We make an order under ss. 45 and 45A of the Youth Justice and Criminal
Evidence Act 1999, that no report may be published which is likely to lead to
the child KH being identified.
2.
This is an appeal against conviction relating to the Jury’s
consideration of transcripts of ABE interviews. The appellant was convicted of
a number of sexual offences at Norwich Crown Court on 31 August 2016: count 1, rape
of a child under 13; count 2, sexual activity with a child; count 3, a further
count of sexual activity with a child; counts 4 and 5, taking indecent images
of a child; and count 6, making indecent images of a child.
3.
On 7 September 2016, he was sentenced to a substantial term of imprisonment
in respect of these offences, with various consequential and ancillary orders.
4.
The appellant lived with his partner, at an address in Mileham, Norfolk,
and was the step-father of her children, one of whom was the complainant, KH (born
in February 2000).
5.
On 24 April 2014 police went to the family home on a suspicion that
indecent images of children had been viewed on a computer there. A Toshiba
laptop computer and a Blackberry mobile phone were seized.
6.
A subsequent examination revealed that the laptop had been used on many
occasions to search for child pornography, and five indecent images of children
were found on the device (count 6). The images had been downloaded on 15
November 2013 at a time when the appellant’s partner was at work and her two
children were recorded as being at school.
7.
Shortly after the appellant was interviewed, the police conducted an
interview with KH.
8.
In this first interview (conducted in two stages on 28 April 2014), she said
that she was responsible for some of the indecent images and internet searches.
She said that she had done this as a reaction to previous sexual abuse by her biological
father, GB, at a time when she had been around eight. She said that he would
make her masturbate him while lying next to her, and would masturbate himself
in her presence. She said that the abuse ended when the appellant moved into
the family home; and that she had not told anyone about it until she had told her
mother and the appellant a few days previously. She also said that she had
taken inappropriate images of herself on her mobile phone which had then been
confiscated. She denied that anyone had put her up to this account.
9.
The Blackberry device was examined after the appellant and KH had been
interviewed for the first time, and images of KH were found, including
photographs of her dressed in only a bra, knickers, stockings, and a suspender
belt (count 4).
10.
On 14 May, KH’s mother handed to the police a written list of internet
search terms of a sexual nature, which she said she had found at the family
home.
11.
Subsequently, KH asked to be re-interviewed. In this second interview (on
6 June 2014), she told the police that on two occasions when she was aged about
8½ her biological father had penetrated her anally with his penis whilst she
was in bed at night. She said that she had only told the appellant and her
mother just a week before.
12.
Although they carried out further investigations in the light of this
new information, as a result of further items found at the family home the
focus of police attention remained on the appellant. These items found included
the stockings and integrated knickers and suspender belt which KH could be seen
wearing in the count 4 photograph, as well as a vibrator which was also found
in KH’s room. The knickers and suspender belt and the stockings were
forensically analysed and found to contain semen with DNA matching that of the
appellant. The evidence indicated the likelihood that the semen in the gusset
of the knickers and the vaginal material also found on them were deposited at
the same time, following sexual intercourse, although the possibility that they
were deposited at different times could not be excluded.
13.
KH’s mother also had handed to the police notes with a sexualised
content purportedly written by KH and addressed to the appellant. These
included requests for lessons in kissing and an invitation to lick her vagina.
A defence handwriting expert was instructed to determine whether the name of ‘[R's
first name]’ had been added to the top of the notes. The expert concluded that
there was moderate support for the proposition that the questioned name entries
were contemporaneous with the rest of the letter.
14.
On 25 June KH’s mother handed to the police six Secure Digital memory
cards one of which contained photographs of KH lying naked and semi-naked on a
bed at what appeared to be the Chatsworth Hotel, where KH and the appellant had
stayed together, as well as images at the family home (count 5).
15.
KH was re-interviewed. In this third interview (on 15 July 2014), she
retracted substantial parts of her earlier account including the allegations
she had made against her natural father. She indicated that she had been
attempting to protect the appellant. She said that she had been in a sexual
relationship with him since the age of eleven. In January 2013 when she was
aged just under thirteen, this had progressed to full sexual intercourse on a
regular basis and continued until just before the time of the first police
search (counts 1 to 3).
16.
A further (fourth) interview was conducted with KH (on 24 July). This
was in relation to the investigation into KH’s allegations against her
biological father. In the fourth interview, she withdrew the allegations of
anal sexual intercourse she had made against GB. She said that the appellant
had pushed this thought on her until she believed that it had happened. The appellant
had suggested things that she should tell the police regarding her biological father.
However, she maintained that the rest of her allegations against GB were true. The
recording of this interview was disclosed before KH gave evidence at trial as
unused material, since it was not part of the Prosecution case.
17.
A fifth interview was conducted with KH (on 31 October 2014) in which
she reiterated her allegations against the appellant.
18.
In his police interview, the appellant gave an account that was
broadly consistent with his evidence at trial, save that he did not mention at
this stage that he had masturbated into what he believed to be his partner’s
underwear. This being his explanation at trial for the finding of his semen on
KH’s underwear.
19.
The trial began on 18 August 2016.
20.
The Prosecution case on counts 1 to 5 was that the appellant had groomed
KH and then had a sexual relationship with her, during which he kissed and
performed oral sex on her (count 2) and had vaginal sexual intercourse, both
before (count 1) and after (count 3) her thirteenth birthday. The Prosecution
alleged that he took indecent photographs of her (counts 4 and 5). It was the Prosecution
case that she had initially provided false accounts in interview in order to
protect the appellant with whom she had believed she was in love.
21.
The Prosecution contended that the truth and accuracy of her later
accounts in interview were supported by (1) the DNA evidence of the appellant’s
semen on the knickers that KH was wearing in the count 4 photograph; (2) the
images of both her and other children found on his electronic devices; (3) the
indecent photographs that were taken of KH in the hotel room that they had
shared; (4) the contents of notes written to the appellant by KH; (5) a hole
found in the door of KH’s bedroom at the family home; and (6) her attendance at
the doctors for a pregnancy test in the company of the appellant. Point (5)
gave rise to a ground of appeal on which the Single Judge refused leave. The
case on count 6 was that the appellant was responsible for downloading the
indecent images.
22.
The Defence case on counts 1 to 5 was that the appellant had never
engaged in any sexual activity with KH, whose account could not be believed. Her
allegations were the product of adolescent sexual fantasising. Her mother had
the motive (both financial and in order to protect KH’s biological father for
financial reasons) to concoct the allegations with KH. There was evidence that
the appellant was impotent for at least part of the period covered by the
indictment, and the finding of his semen was explained by him masturbating into
what he assumed was his partner’s underwear. He did not take the indecent
photographs of KH which were most likely taken by her, using a timer facility.
His case in relation to count 6 was that he had no knowledge of the indecent
images and did not deliberately download them. All three family members had
access to the laptop and may have been responsible for the indecent images and
searches for indecent material. Medical records showed that he had suffered a
heart attack in March 2012 which had resulted in acute anxiety and panic
attacks. There were also records showing that in December 2012 he had visited a
hypnotherapist with his partner, during which he spoke of his loss of libido.
23.
The issue for the Jury in respect of counts 1 to 5 was whether they were
sure that KH had given a truthful and accurate account of the appellant engaging
in sexual activity with her, including vaginal intercourse, and of having taken
indecent photographs of her; and, on count 6, whether they could be sure that
the appellant had downloaded the images onto his laptop computer.
24.
Before continuing further with the narrative, it is convenient to
summarise the way in which the ABE recordings were put before the jury: the
two-part first interview (on 28 April) was led by the Defence during the
cross-examination of KH; the second interview (on 6 June) was also led by the Defence
during the cross-examination of KH; the third interview (on 15 July) was led as
part of the Prosecution case, the fourth interview (on 24 July) was led by the
Defence during the cross-examination of KH; and the fifth and final interview
(on 31 October) was also led as part of the prosecution case. There were
transcripts of the 28 April, 6 June, 15 July and 31 October interviews; but
these were not made available to the Jury in the course of the evidence. There
was no transcript of the 13-minute interview on 24 July.
25.
The Judge began his summing-up on 30 August 2016 and no issue arises in
relation to this summing-up. Among the issues that he summarised were the
contents of the interviews of 28 April, 6 June, 15 July, 24 July and 31
October. The Jury began their deliberations on the afternoon of 30 August, were
released at the end of that day and retired again at 10.10 on 31 August.
26.
At 11.03, after the Jury had been in retirement for some 3 hours and 15
minutes, they sent a note requesting a copy of the transcripts of KH’s ABE
interviews of 24 July and 31 October 2014. It was agreed between the Judge and
Counsel that they were not permitted to have these.
27.
When the Jury were called back into court to be told this, it emerged that
one set of the interview transcripts of 28 April, 6 June and 15 July (although not
those of 24 July and 31 October) had been taken from the witness suite to the
jury room and left there.
28.
As we have already noted, at no point during the evidence had the Jury
had access to transcripts and no transcript had ever been made of the 24 July
interview.
29.
The Jury retired again, and the Judge directed the usher to bring back
the transcripts of KH’s interviews. As the Judge observed, ‘someone has been
careless.’
30.
Following this discovery, there was a discussion as to what should be
done. The Judge indicated that the Jury had ‘not received anything evidentially
which they shouldn’t have received’, by which we understand him to mean that the
transcripts did not contain unedited material. In these circumstances, he
suggested that the ‘tactful way through’ was to allow the jury ‘in the
exceptional circumstances’ to have the transcripts of 24 July and 31 October
interviews. Ms Donovan said she agreed. However, the Judge said he would only
adopt that course with her full agreement and the appellant’s approval. He
observed that it was in no one’s interest to have a new trial, which was the
alternative. He then rose while Ms Donovan took instructions and Prosecuting
Counsel (in the absence of Mr O’Donnell who was trial Counsel) researched the
position in Archbold.
31.
After half an hour, the Judge returned to Court. Ms Donovan pointed out
that, although the transcript of the 31 October interview could be provided to
the jury, the interview of 24 July had not been transcribed. The Judge
indicated that he would remind the jury of the summary of that interview that
he had already given in the course of the summing-up. Mr Donovan then suggested
that the interview could be transcribed. The Judge pointed out that this would
take time. Counsel for the Prosecution then drew the Judge’s attention to the
passage in Archbold at 8-92, under the heading ‘Transcript for
Jury’. Although we will come to the cases of Popescu [2010] EWCA Crim 1230 and Sardar [2012] EWCA Crim 134, there is a reference to Coshall
(The Times, 17 February 1995), which suggests that, where a Jury asks for a
transcript after retirement, their request should only be allowed with the
agreement of both parties, and subject to a reminder being given to the Jury as
to the other evidence and as to the proper status of the transcript.
32.
Ms Donovan’s submissions focussed on the absence of a transcript for the
24 July interview, and she asked for further time to consider the issue. The
Judge refused the request and said she had already had 30 minutes to consider the
issue. He indicated that the jury would be given the transcript of the 31
October interview, and adjourned for 5 minutes for Counsel to ensure that the
jury were getting the correct pages.
33.
When he returned to Court, the Judge asked whether there was anything Ms
Donovan wished him to add to the summary he had given in his summing-up of the
24 July interview. Ms Donovan said that she did not think it went into enough
detail and, when asked what further detail there should be, told the Judge that
she would need to watch the 13-minute video again. She also requested that the
Jury be permitted to watch the video again.
34.
Following what may be fairly described as a testy response to counsel’s
request, the Judge said that he would allow the jury to have the 31 October
transcript and they would be reminded of the contents of 24 July interview. He
allowed Ms Donovan time over the adjournment to look at the 24 July video again,
and gave an initial ruling.
35.
In this ruling, the Judge summarised how the issue had emerged and
indicated that, although it was not the usual practice, no harm had been done
by the Jury having the transcripts. Equally no harm would be done if they had
the transcript of the 31 October interview so that they had all
available transcripts. They would therefore have a complete reminder of all
that was said in those interviews rather than just a summary. There could be no
unfairness to the defendant if the trial continued with the jury having the
transcripts, and, since no transcript had been made of 24 July interview, with
them being reminded of his earlier summary of the interview. The Judge noted
that the Jury had not asked to consider KH’s demeanour in relation to the 24
July interview, and that Defence Counsel had had a change of heart and now
sought to have the 24 July video played again to the Jury. This was
a change from her initial position when she had said that she thought that the Judge’s
summary of the interview would be adequate. It was not appropriate to treat the
video of 24 July differently to the others by re-playing it. To do so might
encourage a request to re-play the many hours of all the other videos which was
not a course that should be adopted without very good reason. This was a
possible effect of Counsel’s submission. The Jury would be appropriately
directed as to the transcripts and the video, although there was no need to
repeat the summary of the cross-examination that had already been given in the
summing-up. The Jury would be provided with the 31 October transcript and
Counsel would be given time to review whether there were any matters that
needed to be added to the summing-up in relation to the 24 July interview.
36.
The Jury returned to court at 12.52 and the Judge gave further
directions in relation to the transcripts. He told them that it was important
for them to concentrate on the witness as she was speaking, and that this was
why they had not had the transcripts while they were watching the interviews.
He added that KH’s evidence was no different to any other witness whose
evidence was not transcribed. He told them that they had received the
transcripts inadvertently and that in the ‘exceptional circumstances’ they
should have the transcript of the 31 October interview. There was no transcript
of the 24 July interview, but he would remind them of the contents of that
interview and if there was anything about KH’s demeanour in that interview that
they wished to see then the video could be re-played for them. Finally, he
added in relation to the transcripts, ‘You mustn’t give them any greater status
than any other evidence. Please, can I underline that.’ He reminded them that
it was only part of the evidence and had no special status, and that they should
particularly keep in mind the summary of the cross-examination he had given
them the day before.
37.
The Jury retired shortly before 1.00, and the Judge then added to his ruling.
He said that no objection had been taken to, or additions requested of, his
summing-up. Exceptional circumstances had arisen in the case. In reality, the
only alternative would have been to discharge the Jury. That would have been
wholly undesirable in a case involving a 16-year old witness who had given
evidence over three days. A re-trial would not come on for hearing for many
months, adding to the strain on her and the appellant who was in custody. Nor
was it the first trial in this matter, the first had been aborted following a
change of representation. To expect a young complainant to prepare herself for
a third time was to be avoided at all costs unless unfairness was likely to be
occasioned. None had been identified and there had been ‘complete agreement on
behalf of the Defence to allowing the trial to continue even when the jury had
those (three) transcripts and complete agreement to the Jury having the other
two …’ The only difficulty arose belatedly in relation to the 24 July interview.
No mention had been made of a transcript in Counsel’s lengthy cross-examination
of KH, nor was any mention made of the interview in her closing speech. He
concluded that there could be no unfairness in a summary of the missing
transcript being given with any additions sensibly required by the Defence.
38.
Having viewed the 24 July video interview over the midday adjournment,
Ms Donovan asked for one addition to the Judge’s summary of that interview. The
Judge expressed his displeasure at the manner in which Counsel had summarised
the material. As he had not listened to the interview to see whether or not it
was correct, the Judge declined to include it in his summary without Counsel
first setting out the passage in writing.
39.
The Judge then reminded the jury of the summary he had already given as
to the 24 July interview.
40.
Before turning to the grounds of appeal it is convenient to consider how
it was that Jury received some, but not all of the transcripts when they
retired.
41.
CPD VI Trial 26L specifically addresses the procedure for dealing with a
Jury’s access to exhibits and evidence in retirement (with emphasis added):
1. At the end of the summing-up it is also important that
the Judge informs the Jury that any exhibits they wish to have will be made
available to them.
2. Judges should invite submissions from the advocates as to
what material the Jury should retire with and what material before them should
be removed, such as the transcript of an ABE interview (which should
normally be removed from the jury as soon as the recording has been played).
3. Judges will also need to inform the jury of the
opportunity to view certain audio, DVD or CCTV evidence that has been played (excluding,
for example ABE interviews).
42.
Two points may be noted in relation to the Practice Direction. First,
the highlighted passages remind the reader that, even where the Jury are
permitted to have a transcript of an ABE interview during the evidence, they
should not be permitted to have access to the transcript in retirement.
Secondly, as one might expect, it is ultimately for the Judge to ensure what
exhibits or other material the Jury should have access to when they retire to
consider verdicts. In most cases in the Crown Court this will present no
problem; but in some cases it will be necessary for the Judge to take the lead,
most conveniently, we suggest in discussion with the advocates on each side. On
any view, the ultimate responsibility for dealing with exhibits and material
cannot be left to ushers or other court staff who, however capable they may be,
cannot be expected to be responsible for what exhibits and materials the jury
receives in retirement.
43.
The present case presented a problem that was different to other
reported cases. There had been no decision to make the transcripts available to
the Jury either during the playing of the interviews or in retirement. It is
clear that a mistake was made. Someone who did not realise the implications of
what they were doing gathered up material which should never have been
considered by the Jury and left it in their retiring room. Why the transcript
of the 31 October interview was omitted from this material is unclear and does
not matter.
44.
Those involved in the trial were left in a difficult position. It was
rightly recognised that the Jury should not have received the material. The
Judge was left with limited choices: (1) to discharge the Jury, (2) to retrieve
the transcripts which the Jury had been given, and (3) to give the Jury the
additional transcripts they had requested and summarise the video recording of
which no transcript had been made.
45.
The Judge made clear that the difficulties faced by KH (and to a lesser
extent, the appellant) by a retrial militated strongly against (1). His initial
view was that the transcripts should be retrieved, see (2), but he eventually
decided that the better course was to make available all the transcripts that had
been prepared, see (3).
46.
On this appeal, Ms Donovan submits: first that the Judge should have
discharged the jury when it became known that transcripts of some of KH’s ABE
interviews had been inadvertently placed before them; and that the Jury’s
access to the interviews in retirement deprived the appellant of a safeguard
essential to the fairness of the trial; and that consequently the appeal
against conviction should be allowed, see Sardar (above) at [28].
Thereafter, the Judge further erred in allowing the Jury to have the transcript
of the interview of 31 October 2014 whilst refusing the defence request that at
least that the Jury be permitted to watch the video of the ABE interview of 24
July 2014. She advances a secondary argument, which was not at the forefront of
the grounds of appeal, that there were, in any event, material deficiencies in
the Judge’s summary of the 24 July interview in his further direction.
47.
In our view, it is unnecessary to review in detail the cases prior to Popescu
(see above). The judgment of the Court of Appeal in that case sets
out the reasons for the limitations on the access to transcripts by juries, by
reference to 6 principles.
48.
Without seeking to summarise the careful analysis of law and practice in
that case, certain points which are relevant to this appeal emerge from Popescu.
First, the Court emphasised the care that must be taken before a jury is given
transcripts of an ABE interview at all. Transcripts should only be made
available to the jury after there has been discussion of the issue between
Judge and Counsel in the absence of the jury; and it should only be done if
there is a very good reason for it, for example, the evidence would be
difficult to follow on the screen or the audio quality is very poor. The reason
for this approach is the danger that the Jury may give the written word undue
weight, see Welstead [1996] 1 Cr App R 59 page 68, Morris [1998]
Crim LR 416, referred to in Popescu at [30]. Otherwise the Prosecution may
obtain a procedural and evidential advantage, which weighs unfairly against the
defendant Popescu at [25]. Secondly, if the transcripts are given to the
Jury, the Judge must warn the jury at that point not to give the transcripts
undue weight, to take care to examine the video as it is shown, not least
because of the importance of the demeanour of the witness in giving evidence.
Thirdly (principle 6), the Jury should not, save in exceptional circumstances,
be permitted to retire with the transcripts. Those exceptional circumstances
will usually only be present if the Defence positively wants the Jury to have
the transcript and the Judge is satisfied that there are very good reasons for
this. In such circumstances the Jury should be given an appropriate warning
about giving them undue weight.
49.
In Popescu the Court was satisfied that the Jury had the transcripts
largely because the defence wanted to have them and was aware that they would
use them as part of their deliberations. In these circumstances, there was no
evidential or procedural unfairness, see Popescu [40]-[43]. In contrast,
in Sardar (see above), although the Recorder had allowed the Jury to
retire with the transcripts and the Defence consented to this, the Court of
Appeal held that there was no good reason for this, that there had been no
warning about the use to be made of the transcripts and the fact that the Defence
consented was no justification for it,[17]-[19].
50.
Neither of these cases deals directly with the position where the
approach to the playing of the ABE interviews without transcripts during the
evidence was entirely appropriate; but where an error was made by leaving
transcripts in the Jury retiring room. The nearest case is Coshall which
was addressed by the Court in Popescu.
27. In R v Coshall, the trial judge
had ruled that the jury could have a transcript of the video recording during
the complainant's evidence and the jury retained the transcript throughout the
remainder of the trial, including their retirement. It appears that the
evidence in chief on the video constituted virtually the whole of the prosecution
case.
28. Unfortunately, we do not have the
transcript of the judgment given in the case of Coshall, which was
delivered by Pill LJ. A sizeable extract of the judgment in Coshall was
quoted in Welstead, and we think we should quote from the case of Welstead
(page 67) where the relevant parts of Coshall are set out:
The court [in Coshall] held
that the need to maintain a fair balance 'exists equally upon the supply to the
jury of the transcript of the video tape' as when a video tape is to be
replayed to the jury. Unless the defence consented, ‘it appears to us to follow
from the decision in Rawlings and Broadbent that it will not
generally be appropriate for the jury to be supplied with a transcript. We do
not intend in this judgment to attempt to predict all possible situations and
appropriate reactions to them.’ There was a serious risk in that case of
disproportionate weight being attached to one part of the evidence, namely, the
complainant's evidence in chief, if the jury had the transcript with them when
they retired.
29. In its summary of the principles in Welstead,
the court said at point 4, on page 68 of the report:
If a transcript of the
video-recorded interview is available, the jury should not normally be permitted
to take it with them when they retire, unless the defence consents: Coshall.
This is because there is no effective safeguard in such circumstances against
the jury giving that part of the child's evidence disproportionate weight.
30. In the subsequent case of R v Morris
[1998] Crim LR 416, the jury was permitted to retire with the transcript of the
video evidence with the defence's consent. On appeal, the conviction was
quashed because the judge had given no warning as to prevent the disproportionate
weight being given to the transcript. It was held in that case that:
Even in cases where there had been
consent by the defence, or, as in the present case, the transcript had been
introduced in the first instance at the suggestion of the defence, it was incumbent
on the judge to give warnings to the jury which would prevent their giving
disproportionate weight to the transcript; that consideration should always be
given to what should happen once the evidence had come to an end and it was rarely
that the jury should be permitted to retire with the transcript of the evidence
and then only if they had received an appropriate warning; and that, the judge
having summed up the evidence of the complainant much more fully than that of
the defence without having given the jury the appropriate warnings, the
convictions were unsafe.
51.
It is clear that if the Defence have consented to the jury having access
to a transcript, that is material, although it is not determinative of the
ultimate question: whether the conviction is safe. In Sardar, the Defence
consented to the Jury retiring with the transcript (see [19]) but this was held
not to be a justification. At [28] the Court concluded that:
… there will be cases, and this is one, where the breach of
the practices designed to ensure a fair trial will be so serious that the trial
is rendered unfair.
52.
In our view the following questions arise: (1) what was the defence
approach to the problem that arose; (2) did that amount to an agreement that
the jury should have the transcripts available during retirement; (3) what
warnings did the Judge give and were they sufficient; and (4) how does what
occurred impact on the safety of the convictions?
53.
As to the first question, Ms Donovan’s initial reaction was that she
agreed that the Jury should have the additional transcripts that they had
requested (see [30] above). Quite rightly, the Judge said he would only do that
with her full agreement and the appellant’s approval. Thereafter Ms Donovan’s
position on behalf of her client changed. She appears to have recognised the
practical sense of giving the Jury the transcript of 31 October, but she was (and
remained) concerned on behalf of her client that the Jury would not get a
transcript of the 24 July interview which she had introduced in the course of
KH’s cross-examination.
54.
As to the second question, in the light of our conclusion on the first
question, we are unable to accept that the Defence agreed to the Jury having
the transcripts in retirement. Like the Prosecution and the Judge, the Defence
had been placed in a difficult position at short notice. It did not consent, in
advance, to the Jury receiving transcripts in retirement; at most it acquiesced
in what amounted to a pragmatic response to the Jury enquiry. While we do not
exclude the possibility of an agreement in such circumstances, the cases
indicate that where the Court is referring to agreement by the Defence, it is
referring to an agreement before or at the time a decision is made to permit
the Jury to retire with transcripts and not after they have been made available
by mistake.
55.
As to the third question, it is clear that in circumstances where the
jury is permitted to retire with transcripts, they must be warned clearly and
emphatically that they should not give disproportionate weight to the
transcripts. In our view the Judge’s warning, which we have summarised in [36]
above, was insufficient and, necessarily, was given at the wrong time. The
warning was insufficiently emphatic in its terms, but more significantly it was
given after the jury had been in retirement with three of the transcripts for
many hours, during which they would have given them such weight as they thought
fit. In these circumstances, it is unnecessary and undesirable to consider what
might have been the effect of adopting (2) (see above), with the transcripts
being taken back from the Jury, with a very strong warning against relying on
them. We should add that we do not think that the Judge can properly be
criticised for refusing to adjourn for the preparation of a transcript of the
24 July interview.
56.
As to the fourth question, we bear in mind Mr O’Donnell’s submission
that the transcripts contained more pages supportive of the Defence case than
pages supporting the Prosecution case: the interview of 28 April, 6 June and 24
July had all been led by the Defence as showing that KH had made the
allegations against GB rather than the appellant. That is so, but it does not
address the weight that the jury may have given to the transcript of 15 July
which was central to the Prosecution case. We accept Mr O’Donnell’s submission
that these were ‘exceptional circumstances’, but while we would hope that the
circumstances are exceptional, the description throws little light on the
correct disposal of this appeal. Nor are we in a position to conclude that the
case against the appellant was so overwhelming in the light of the evidence
that the breach of the practices designed to ensure a fair trial can be
disregarded so that we can conclude that the convictions were safe.
57.
We invited submissions at the conclusion of the argument as to whether,
if the appeal were allowed, the Prosecution would apply for a retrial and Mr O’Donnell
indicated that it would. In our view, there should be a retrial in this case
and it should take place as soon as is conveniently possible. Although the
prospect of a retrial, in particular for a young witness, is troubling, we are clear
that what occurred rendered the trial unfair, and undermined the safety of the
convictions.
58.
For the reasons set out above, we have concluded that the appeal against
the appellant’s convictions must be allowed.
