Discretion in Replaying Complainant Evidence and Summing Up: Principles from R v White [2025]

Introduction

The Court of Appeal (Criminal Division) considered the appeal of Joshua White against his conviction and four-year—imprisonment sentence for sexual assault of a child under 13. White was convicted after a Crown Court trial based largely on the Achieving Best Evidence (ABE) interview of the complainant, “C”, who was 12 at the time of the alleged offence, and on contemporaneous complaints to her mother and a friend. White challenged the trial judge’s directions and summing up on two grounds: first, that the judge’s treatment of an earlier incident (10 July 2021) was inaccurate and misleading; and second, that the judge’s response to a jury request to replay C’s ABE evidence created an unfair imbalance. Leave to appeal on the first ground was renewed; leave was granted on the second.

Summary of the Judgment

The Court of Appeal dismissed both grounds and upheld the conviction. It concluded that:

The judge was under no obligation to direct the jury specifically on the reliability of C’s amended account of the 10 July incident, and his summary of evidence was fair and accurate.
On the requested replay of C’s ABE evidence concerning 15 July, the judge had a broad discretion to satisfy the jury’s request. Reading the transcript fully—and briefly recalling relevant cross-examination—was a permissible and balanced approach conforming to longstanding practice and to the principles in R v Rawlings and Broadbent [1995].
No additional warning on burden and standard of proof was required, and no specific caution against overweighting the repeated evidence was necessary in the circumstances.

Analysis

Precedents Cited

The Court relied principally on R v Rawlings and Broadbent [1995] 2 Cr App R 222, which addressed whether and how a jury may view or replay recorded victim testimony. Lord Taylor CJ’s judgment established that:

It is within the judge’s discretion to grant or refuse requests to replay evidence.
If a replay is allowed, the judge should warn the jury against giving disproportionate weight to replayed evidence and should remind them of cross-examination.
The usual practice remains for judges to read relevant portions of their notes or transcripts.

The Court acknowledged that Rawlings concerned a different statutory regime and a video exhibit rather than an ABE interview transcript, but held that its reasoning continued to offer valuable guidance.

Legal Reasoning

The Court’s reasoning divided into two main strands:

Ground 1 – Earlier Incident (10 July 2021):
- The defence argued that the judge had failed to highlight that C’s ABE account added a serious allegation not mentioned earlier. The appellant claimed this discrepancy undermined reliability.
- The Court held that it was neither a legal direction nor a duty for the judge to single out that inconsistency. The defence had ample opportunity to address reliability in cross-examination. His summary of evidence, and the subsequent check with counsel for omissions, ensured fairness.
Ground 2 – Replay Request (15 July 2021):
- The jury asked to rehear C’s interview on 15 July. The trial judge read verbatim the relevant transcript pages and the key section-28 cross-examination.
- The Court found the judge had a discretion to decide the form of reminder. Full transcription reading struck a fair balance because:
  - It was no more than the jury had asked.
  - It provided complete accuracy.
  - It avoided potential distortion from partial recall.
- There was no requirement to repeat the burden and standard of proof direction; one clear direction in the legal directions bundle sufficed.
- The Rawlings caution against undue emphasis was not mandatory here: the case presented a single factual issue, the jury request focused on content rather than delivery, and defence denial had already been fully presented.

Impact

This decision clarifies the trial judge’s discretionary scope when a jury requests to rehear recorded or transcribed evidence of a complainant in sensitive cases:

Judges may choose between reading transcripts, replaying recordings, or summarising from notes, depending on what fairly answers the jury’s question.
Full and accurate presentation of evidence, including cross-examination, can satisfy the Rawlings principles without mandatory verbal cautions in every instance.
No automatic requirement to revisit the standard of proof when evidence is replayed or read back, provided the jury retain access to clear written directions.

Future appeals will likely refer to R v White for guidance on balancing jury assistance against risks of disproportionate emphasis on repeated evidence.

Complex Concepts Simplified

ABE Interview: A structured forensic interview of a child complainant to obtain best evidence, recorded for trial purposes.
Section 28 (Youth Justice and Criminal Evidence Act 1999): Limits cross-examination of certain witnesses, particularly vulnerable witnesses, on prior inconsistencies.
Summing Up: The judge’s review of evidence and legal directions before the jury retires to deliberate.
Burden and Standard of Proof: The prosecution must prove guilt beyond reasonable doubt; the defendant bears no burden of proof.
Rawlings Principles: Guidelines on how to handle jury requests to re-hear recorded evidence, ensuring fairness and balanced weight.

Conclusion

R v White [2025] EWCA Crim 426 reaffirms that trial judges possess broad but principled discretion when responding to jury requests to revisit evidence, even in sensitive sexual offence cases involving child complainants. While judges must guard against unfair imbalance—by ensuring cross-examination is not overlooked and by relying on clear written directions—they need not mechanically repeat burden and standard of proof warnings or provide additional cautionary remarks in every case. This judgment offers a clear framework for trial courts to assist juries effectively and fairly, without endangering the safety of convictions where the recorded evidence is critical.