JAH v R: Clarifying the “Lurking-Doubt” Threshold and the De-Minimis Rule for Procedural Irregularities on Criminal Appeal

Introduction

In JAH, R v ([2025] EWCA Crim 1020) the Criminal Division of the Court of Appeal revisited the perennial question of when a conviction is “unsafe” for the purposes of section 2 of the Criminal Appeal Act 1968. Although the applicant raised eight separate grounds of appeal—including the suitability of a retrofitted Nightingale court, late service of the notice of criminal charge, prosecutorial language, and counsel’s strategic decisions—the Court refused leave, holding that none of the alleged errors, whether individually or cumulatively, gave rise to a “lurking doubt”.

This judgment matters because it consolidates two strands of authority: (1) the “lurking-doubt” test derived from R v Cooper and refined in R v Pendleton; and (2) the emerging “de minimis procedural irregularity” principle, which tolerates minor departures from ideal practice provided there is no real risk to the fairness of the proceedings.

Summary of the Judgment

• The applicant (anonymised as “JAH”) was convicted of four counts of sexual assault on his two children, offences committed 12 years earlier.
• He received a two-year custodial sentence suspended for two years, plus work and rehabilitation requirements.
• Eight disparate grounds of appeal were advanced; the single judge had refused leave, and the applicant renewed the application before the full court.
• The Court held that none of the alleged defects, whether viewed discretely or cumulatively, rendered the conviction unsafe.
• Accordingly, the renewed application for leave to appeal was refused.

Detailed Analysis

1. Precedents Cited or Implicitly Relied Upon

Although the Court did not cite each case expressly, its reasoning unmistakably tracks these authorities, especially the “lurking-doubt” line.

2. Court’s Legal Reasoning

The judgment proceeds by testing each asserted irregularity against two overarching questions:

1. Was there any concrete prejudice to the defence that compromised trial fairness?
2. Even if no specific prejudice is apparent, does the cumulative picture leave the appellate court with a “lurking doubt” about guilt?

The Court’s answers can be summarised issue by issue:

• Courtroom Suitability: The Nightingale court, although acoustically imperfect, had hosted multiple jury trials. No contemporaneous complaint of inaudibility was raised; therefore any deficiency was de minimis.
• Service of Notice of Criminal Charge: Delivered to a previous address but forwarded in time. The statutory objective—putting the defendant on notice—was satisfied; no prejudice arose.
• Hearsay Letter from New Partner (P): Properly excluded as inadmissible. The judge’s stern direction prevented contamination of jury deliberations.
• Handwriting Expert Report: Defence’s tactical choice not to rely on a report unfavourable to the applicant falls within the permissible ambit of counsel’s strategy (per Morris).
• Prosecutor’s “Psycho Switch” Remark: Construed as self-deprecatory, not a slur on the defendant; therefore innocuous.
• Alleged Missing Defence Evidence (Teacher’s Note): The teacher could not be traced despite reasonable efforts; the Court doubted admissibility and found no real prospect that the evidence would have changed the outcome.

Applying Cooper/Pendleton, the Court concluded it was not “reasonably arguable” that any of these points, individually or collectively, rendered the verdict unsafe.

3. Impact on Future Cases

The decision reinforces a pragmatic stance toward appellate review, especially in post-pandemic conditions where logistical compromises (e.g., Nightingale courts) are common. Three key effects are foreseeable:

1. Elevation of the De-Minimis Principle: Minor procedural mishaps—late postal service, ambient courtroom noise—will rarely suffice to upset a conviction unless specific prejudice is demonstrated.
2. Strengthened Deference to Trial Counsel Strategy: Courts will continue to resist second-guessing evidential decisions (e.g., whether to call a witness or adduce an expert report) absent manifest unreasonableness.
3. Clearer Parameters for “Lurking Doubt”: Applicants must now link alleged irregularities to tangible injustice; the mere aggregation of trivial complaints will not pass the threshold.

Complex Concepts Simplified

• Unsafe Conviction: A conviction the Court of Appeal believes is unreliable or unjust. If unsafe, it must be quashed.
• “Lurking Doubt” Test: Even where no legal error is found, the court can quash a conviction if, on the totality of the evidence, it feels uneasy about its correctness.
• De Minimis Irregularity: A legal misstep so minor it has no practical effect on fairness or outcome.
• Hearsay: An out-of-court statement tendered for the truth of its contents. Generally inadmissible unless an exception applies.
• Nightingale Court: A temporary court venue (often a civic building) used to reduce COVID-19 backlogs.

Conclusion

JAH v R does not create a radical new doctrine; rather, it consolidates existing principles into a coherent message: only irregularities that demonstrably imperil fairness or generate a genuine “lurking doubt” will justify appellate interference. For practitioners, the case underscores the importance of raising objections contemporaneously and of articulating concrete prejudice when challenging procedural imperfections. In the broader landscape, the ruling will likely discourage speculative appeal grounds predicated on minor technicalities, thereby promoting finality and public confidence in jury verdicts delivered under less-than-ideal but fundamentally fair conditions.