Defence Statements Deemed Authorised and Jury “Numbers Notes” Must Remain Confidential: Court of Appeal Guidance in R v Peppiatt [2025] EWCA Crim 110

Court: England and Wales Court of Appeal (Criminal Division)
Neutral Citation: [2025] EWCA Crim 110
Date: 30 January 2025
Judge: Bennathan J (giving the judgment of the Court)

Introduction

This commentary examines the Court of Appeal’s decision in R v Peppiatt, a murder conviction appeal arising from a fatal stabbing in Islington on 29 May 2021. The case engages several important trial management and evidential issues:

Whether a defence statement lodged on the Digital Case System (DCS) but said to be an unsigned “draft” can properly be used as evidence in cross‑examination and relied on in the summing‑up.
Whether a judge’s remark that an appellate court would correct any error of law diminishes the jury’s role.
Standards of balance and propriety in a judge’s summing‑up, including posing issues not expressly advanced by counsel and emphasising key witness testimony.
Use and treatment of expert pathological evidence and inferences from injury patterns.
Whether “numbers notes” from a deliberating jury (revealing ballot figures) must, may, or must not be shown to counsel, in light of the Juries Act 1974 and existing authorities.
Good practice for recording material exchanges between court and counsel (including by email) on the DCS and in open court.

Against the factual backdrop of a contested self‑defence case with a 28‑second CCTV blind spot, an important independent eyewitness, and the appellant’s post‑incident disposal of a knife and phone, the Court refused an extension of time and leave to appeal—finding no arguable basis for disturbing the jury’s verdict.

Summary of the Judgment

Extension of time and leave refused: Although the delay was modest (29 days) and would not have barred an otherwise meritorious appeal, the grounds had no substantive merit (paras 1–2, 54).
Defence statement admissibility and use: Section 6E(1) of the Criminal Procedure and Investigations Act 1996 (CPIA) deems a defence statement submitted by a solicitor to be authorised by the accused unless the contrary is proved. This was “a complete answer” to the complaint that the judge should have withheld the statement unless proved to be fully approved by the appellant (paras 29–31). The Court observed the directions given were, if anything, “overly generous” to the defence.
Judge’s remark about appellate correction of law: Not improper and incapable of undermining the safety of the conviction (para 34).
Summing‑up fairness: Applying Marchant [2018] EWCA Crim 2606, the judge may comment, pose issues for the jury, and need not downplay a strong case. The Court rejected complaints about emphasis on the eyewitness (Mr Jonston), a time‑frame observation (28 seconds), and the overall balance (paras 35–40).
Pathological evidence and inferences: Any misstatement was corrected; a judge need not rehearse every contour of counsel’s submissions (paras 41–43).
Jury “numbers notes” confidentiality: The established practice—supported by Gorman [1987] 85 Cr App R 121 and the Juries Act 1974 ss 20D–20E—is that jury voting figures within deliberations are confidential and need not be disclosed to counsel. The fact that the numerical majority is later publicly confirmed upon a majority verdict is an express statutory exception “in connection with the delivery of the verdict”; it does not undermine confidentiality during deliberations (paras 45–53).
Open justice and record‑keeping: The Court gave practice guidance: significant exchanges (including by email) should be uploaded to DCS, and normally material discussions should be summarised in open court to preserve transparency (para 33).

Factual Background

The appellant (aged 23 at conviction) was found guilty by a 10–2 majority of murdering Tony Eastlake, who had been in a relationship with the appellant’s mother (paras 1, 3–7). The relationship history and the mother’s tragic suicide formed the backdrop to a series of meetings culminating in a confrontation on 29 May 2021, partly captured on CCTV with a 28‑second interval during which the fatal stab wound must have been inflicted (paras 7–12).

The prosecution alleged the appellant armed himself with a concealed knife and delivered a single, fatal blow to the deceased’s back as he walked away (paras 9–12). Key evidence included:

CCTV chronology with the 28‑second blind spot (para 12(1)).
Independent eyewitness Mr Jonston, who saw the appellant approach from behind and “punch” the deceased’s back shortly before the deceased collapsed; he did not see a knife (para 12(2)).
Pathologist Dr Ben Swift: cause of death was a single stab wound; injuries were consistent with ground friction; no defensive injuries; the wound could be consistent with either party’s account; the appellant’s hand cut could be consistent with either taking or using a knife (para 12(4)).

The defence case was that the deceased produced the knife, was the aggressor, and was fatally injured during a struggle on the ground in lawful self‑defence (paras 13, 20–23). The appellant accepted post‑incident possession and disposal of the knife and his phone (paras 23, 10).

Issues on Appeal

Whether the judge erred in permitting reliance on a draft/unsigned defence statement and whether the summing‑up placed undue weight on it (paras 27(1), 28–33).
Whether the judge’s comment that any legal error would be corrected on appeal undermined the jury’s role (para 27(2), 34).
Whether the summing‑up was imbalanced and introduced new, unheralded points, prejudicing the appellant (para 27(3), 35–40).
Whether the pathological evidence and the defence’s position on it, and on the defence statement, were mis-summarised (para 27(4), 41–43).
Whether failure to provide counsel with all jury notes—specifically a “numbers note”—was erroneous (para 27(5), 44–53).

Analysis

Precedents Cited and Their Influence

Gorman [1987] 85 Cr App R 121 (Lord Lane CJ): The foundational authority on handling communications from a deliberating jury. It establishes that:
- Communications should generally be disclosed in open court and dealt with with counsel’s assistance.
- Exceptionally, if a note improperly discloses “voting figures,” the judge should avoid revealing those details while still addressing the communication appropriately (para 48).
In Peppiatt, Gorman underpins the Court’s affirmation that “numbers notes” remain confidential and need not be disclosed to counsel during deliberations (paras 46–52).
Marchant [2018] EWCA Crim 2606 (Leggatt LJ): Summing‑up standards:
- The judge must explain the law and review essential features of the evidence.
- The judge may comment on evidence and is not obliged to “balance” by downplaying a strong case.
- The judge must not trespass on the jury’s fact‑finding role and must remain objective and impartial (para 36).
In Peppiatt, Marchant guides the Court’s conclusion that the judge’s emphasis on the eyewitness and the 28‑second time‑frame question was within proper bounds (paras 37–40).

Legal Reasoning

1) Defence Statements and Section 6E CPIA 1996

Section 6E(1) CPIA provides that where a solicitor purports to give a defence statement on behalf of the accused, it is deemed authorised “unless the contrary is proved” (para 29). The Court held this statutory deeming provision is “a complete answer” to the submission that the judge should have ensured the statement was fully approved or signed by the appellant before it could be used (para 30).

Key points:

The defence statement had been lodged on DCS some 20 months pre‑trial; the same legal team acted throughout (para 28).
The judge gave careful legal directions underscoring the defence’s explanations (drafting errors; lack of signature; asserted instruction not to file) and cautioning the jury not to give disproportionate weight to inconsistencies (para 28).
The Court indicated these directions were “overly generous” to the defence given s 6E (para 30).

Practical takeaway: once a defence statement is filed by solicitors, it can properly be used in cross‑examination and in the summing‑up; absent proof to the contrary, it is treated as the defendant’s authorised statement. If the defence says it was a draft, unsigned, or contrary to instructions, that is a matter for the jury’s assessment, guided by appropriate directions, not a bar to admissibility or use.

2) Judicial Comment that “a Higher Court Would Correct” Any Legal Error

The Court rejected the suggestion that this assurance trivialised the jury’s role or lowered the bar for conviction (para 34). The comment was accurate, unobjectionable, and if anything allowed the jury to focus on their fact‑finding, applying the law as directed. It was not improper and did not render the conviction unsafe.

3) Balance and Propriety in the Summing‑Up (Marchant Applied)

Two contested aspects were:

The 28‑second window: The judge told the jury they “may want to ask yourselves” whether the defence’s account of a struggle could have occurred within that “relatively limited amount of time” (para 37). While the prosecution had not advanced the point in those terms, the Court held it was a legitimate jury question. Although better practice may be to canvas such points with counsel before closing speeches, this observation was neither improper nor, in context, unfair (para 38).
Eyewitness emphasis: The judge highlighted Mr Jonston’s importance and said that if the jury were sure of his account—of the appellant approaching from behind and striking the deceased in the back—they might conclude the appellant was not acting in self‑defence (para 39). The Court endorsed this as a correct, neutral articulation: acceptance of that evidence would indeed be fatal to self‑defence. The judge fairly reminded the jury of challenges to the witness (drug use, vision, delay) and linked his account to undisputed features like the wound location (para 40). Under Marchant, the judge was not obliged to downplay a strong piece of evidence.

4) Pathology and Injury Inferences

The defence argued the judge misstated that their argument about the wound dynamics rested “solely” on pathology, which was unhelpful because the pathologist expressly allowed for both prosecution and defence scenarios. The Court noted the judge corrected the error, and that judges are not required to recite counsel’s case verbatim nor to adopt particular rhetorical emphasis (paras 41–43). Similar reasoning disposed of the complaint about how the hand injury evidence was summarised.

5) Jury “Numbers Notes”: Confidentiality Reaffirmed

The Court undertook a structured analysis of the long‑established practice and its statutory foundation:

Common law practice (Gorman): Judges should generally state the nature and content of a jury note in open court and seek counsel’s assistance, but if the note reveals voting figures it should be dealt with without disclosing those figures (para 48).
Statutory framework (Juries Act 1974):
- Section 20D makes it an offence intentionally to disclose information about votes cast in the course of deliberations (para 49).
- Section 20E creates targeted exceptions: disclosure to enable the jury to arrive at their verdict or in connection with delivery of the verdict, and limited disclosure by the judge for the purpose of dealing with the case (paras 50–52).
- Section 21(5) preserves pre‑existing rules save where the Act otherwise provides, supporting continuity with Gorman (para 51).

The appellant’s argument that confidentiality is “illogical” because the ultimate majority must be stated after a majority guilty verdict was rejected. The public confirmation of majority at the point of verdict falls within the explicit statutory exception “in connection with the delivery of that verdict” (s 20E), whereas disclosure of interim voting figures during deliberations would contravene the confidentiality protected by s 20D (paras 52(2)–(7)). The Article 6 “public hearing” and “public pronouncement” points did not assist; they do not extend to making deliberations public (para 53).

6) Open Justice and the Digital Case System (DCS)

The Court observed that significant exchanges by email “should, in some form, eventually be uploaded” to DCS, and material discussions should ordinarily be summarised in open court. This ensures an intelligible appellate record and transparency consistent with open justice (para 33). This is important practice guidance for modern trials where logistical convenience (emails) can mask decision‑making if not properly recorded.

Impact

Defence statements: Practitioners should treat defence statements as authoritative litigation documents. Filing an “unsigned” or “draft” statement does not immunise it from forensic use. If inaccuracies exist, they must be proactively corrected; otherwise s 6E CPIA deems authority to the solicitor‑filed statement. Expect cross‑examination and judicial comment grounded in the document.
Judicial summing‑up latitude (Marchant reaffirmed): Trial judges may pose pertinent case‑theory questions—even if not articulated by counsel—provided they do not usurp the jury’s role and remain even‑handed. Strategic surprises can be mitigated by judges flagging such points with counsel pre‑summation where feasible; however, failure to do so will not, without more, render a conviction unsafe.
Expert evidence and inferences: Where an expert expressly leaves multiple causal scenarios open, juries may draw inferences from the totality (wound location, timing, injuries to parties), and judges are not obliged to iterate every defence submission word for word.
Jury secrecy re‑anchored in statute: Peppiatt fortifies the interface between Gorman and the Juries Act 1974 ss 20D–20E. “Numbers notes” remain confidential, and judges need not disclose vote tallies to counsel during deliberations. The limited, statutorily authorised disclosure on delivery of a majority verdict remains the lawful and principled exception.
Record‑keeping and transparency: The Court’s practical guidance on uploading significant email exchanges and summarising them in open court is likely to be cited to ensure reliable appellate records and public transparency.
Appeal strategy: Article 6 is not a lever to prise open jury deliberations. Appellants must show how any alleged procedural irregularity renders a conviction unsafe; generalized fairness and open justice assertions will not suffice.

Complex Concepts Simplified

Defence statement (CPIA): A document the defence must serve in Crown Court proceedings outlining the “general nature” of the defence, issues taken with the prosecution, and facts relied upon. Under s 6E CPIA, if a solicitor serves it, it is presumed to be authorised by the defendant unless proven otherwise.
“Numbers note”: A note sent by a deliberating jury indicating how many jurors currently favour a particular verdict. Such figures are confidential under s 20D Juries Act 1974 and should not be disclosed, save for limited exceptions in s 20E (e.g., public confirmation of a majority verdict’s numbers at the point of verdict).
Majority direction: After a suitable period, if the jury cannot agree unanimously, the judge may invite a lawful majority verdict (e.g., 10–2). If guilty, the court must ask the numerical basis (unanimous or majority, and if majority, which majority).
Unsafe conviction: The test on appeal in criminal cases; the Court of Appeal will quash a conviction if it considers it unsafe. Not every error will make a conviction unsafe; there must be a material irregularity or misdirection with impact on the verdict.
Summing‑up: The judge’s review of the law and evidence for the jury before they retire. The judge must be accurate on law and fair on evidence, may comment, but must not direct conclusions on disputed facts.
DCS (Digital Case System): The electronic platform for Crown Court case materials. The Court emphasised that significant communications (including emails) should be uploaded and discussions summarised in open court for transparency.
Self‑defence (as put to the jury): Whether the defendant honestly believed force was necessary and, if so, whether the force used was reasonable in the circumstances as he believed them to be (para 26). If the prosecution proves the force was not necessary or not reasonable, self‑defence fails.

Observations on the Facts and Evaluation

CCTV and timing: The agreed 28‑second window when the stabbing must have occurred was pivotal. The judge’s invitation to consider whether the defence’s described struggle could fit that window was a proper, fact‑focused prompt.
Eyewitness centrality: Mr Jonston’s account—appellant approaching from behind and striking the deceased’s back—if accepted, critically undermined self‑defence. The judge rightly underscored both the power and the frailties of this evidence, leaving evaluation squarely to the jury.
Pathology’s neutrality: Dr Swift’s evidence did not favour either side; it was compatible with both scenarios. In such circumstances, jury focus appropriately shifts to the totality of circumstantial and direct evidence (e.g., wound location, continuity of movement, injuries, post‑incident conduct).
Post‑incident conduct: Disposal of the knife and phone was consistent with consciousness of guilt but not conclusive. The jury were entitled to weigh it with care alongside the defence claim of panic.
Character evidence: Positive character (four referees) was before the jury but could not displace compelling evidence on the actus and mens rea, or on the lawfulness of the force used.

Practice Points for Advocates and Judges

Defence statements: Treat as final unless and until amended. If inaccurate, urgently file a corrected statement and be prepared to explain discrepancies.
Pre‑summing‑up discussions: Judges considering raising novel or unheralded factual issues should, where practicable, canvass them with counsel in the jury’s absence to enable responsive submissions and addresses.
DCS transparency: Upload significant email exchanges to DCS and summarise them in open court to safeguard the record and public confidence.
Jury notes: Continue established practice under Gorman and the Juries Act 1974: do not disclose interim voting figures; address the substance of any jury question without revealing confidential deliberation content.
Directions on defence statements: Where a defendant alleges lack of authority or drafting error, a balanced direction as given here—reminding jurors both of s 6E’s effect and of the defence explanation—will be robust on appeal.

Conclusion

Peppiatt is an important reaffirmation and clarification of trial practice at the junction of statutory scheme and common law guidance. The Court confirmed that:

Defence statements filed by solicitors are deemed authorised under s 6E CPIA and can be deployed in cross‑examination and judicial directions, subject to appropriate jury guidance on any asserted inaccuracies.
Judges may make brief remarks that the appellate court corrects errors of law without imperilling the fairness of the trial.
Within the Marchant framework, a judge may pose pertinent questions and emphasise powerful evidence; “balance” does not require attenuation of a strong prosecution case.
“Numbers notes” remain confidential—anchored in the Juries Act 1974—and need not be disclosed to counsel during deliberations, notwithstanding the separate statutory requirement to confirm majority figures upon a majority verdict.
Open justice and appellate review are best served by ensuring significant out‑of‑court communications (e.g., by email) are captured on DCS and summarised in open court.

Ultimately, the appellant’s complaints did not approach the threshold of rendering the conviction unsafe. The Court’s structured reasoning consolidates existing law, issues practical guidance for future cases, and underscores that appellate scrutiny will respect robust, fair judicial case management firmly grounded in statute and authority.