Jury Access to ABE Evidence-in-Chief in Retirement: Fundamental Irregularity Requiring Retrial and a Restrained Approach to Post‑Verdict Jury Inquiry
1. Introduction
In JEH, R. v [2025] EWCA Crim 1757, the Court of Appeal (Criminal Division) allowed an appeal against conviction for attempted rape and rape after discovering that, during deliberations, the jury had been given a “capture card” intended to contain CCTV footage but which erroneously also contained the complainant’s video-recorded interview (the complainant’s evidence-in-chief).
The case turned centrally on credibility and consent; accordingly, improper jury access to the complainant’s evidence-in-chief in the jury room raised acute fairness concerns. The Court imposed reporting restrictions under the Sexual Offences (Amendment) Act 1992 and postponed publication under section 4(2) of the Contempt of Court Act 1981 because a retrial was ordered.
2. Summary of the Judgment
- The Court held it was wholly inappropriate for the jury to be provided, for retirement, with the complainant’s video-recorded interview (evidence-in-chief).
- The Court rejected the Crown’s proposal to “cure” the problem by contacting the jury foreman to ask whether the jury actually accessed the interview.
- Treating that proposal as effectively invoking section 23A of the Criminal Appeal Act 1968 (investigation by the Criminal Cases Review Commission), the Court declined to direct an investigation.
- The Court concluded the error was a fundamental irregularity undermining the integrity of the process; the convictions were unsafe.
- The appeal was allowed; convictions quashed; a retrial was ordered.
- The Court provided prospective guidance: parties should be afforded an opportunity to check/audit the digital media to be provided to the jury in retirement to ensure no extraneous material is included.
3. Analysis
3.1 Precedents Cited
This was the key authority. Although Popescu addressed juries receiving transcripts of an ABE interview, the Court treated the underlying principle as technology-neutral: allowing the jury, in retirement, to revisit a witness’s evidence-in-chief risks giving that evidence an unfair procedural and evidential prominence, potentially “weighting” the trial against the defendant.
The Court relied particularly on Popescu’s structured guidance (paras 35–39), including:
- great care before providing transcripts at all;
- the need for judicial warnings about reliance and about taking account of demeanour (where relevant);
- withdrawal of such aids after evidence is complete;
- a general rule against juries retiring with such materials, save in exceptional circumstances (often where the defence positively wants it);
- if replay occurs, it should ordinarily be in court with parties present and with reminders about cross-examination.
In JEH, the jury’s potential access in the jury room to the complainant’s video interview fell squarely within the mischief identified in Popescu: undue emphasis on evidence-in-chief divorced from cross-examination and judicial control.
R v Rawlings and Broadbent [1995] 1 WLR 178
Quoted via Popescu, this case supplied an important safeguard: any replaying of video-recorded evidence after retirement should normally occur in open court, with judge, counsel, and defendant present, and accompanied by reminders of cross-examination and re-examination. The Court treated this as reflecting a core fairness principle: the jury should not privately re-consume a single strand of evidence in a way that distorts overall evaluation.
R v Adams [2007] All ER 25
The Court used Adams to frame the strictness surrounding inquiry into what occurred during jury deliberations. The judgment underscores the constitutional sensitivity of prying into the jury room and helps explain why section 23A must be approached with caution.
These authorities reinforced that “great care” is required before directing post-verdict investigations into jury irregularities. The Court drew from Baybasin a practical warning: such inquiries can produce “more heat than light” and may unfairly place jurors—who performed a civic duty—under scrutiny long after verdict.
Although Baybasin and Lewis involved different fact patterns (contentious allegations potentially requiring juror evidence), the Court considered their cautionary approach relevant to the exercise of discretion under section 23A.
3.2 Legal Reasoning
(a) The nature of the irregularity: uncontrolled re-access to evidence-in-chief
The Court reasoned that providing the complainant’s video interview to the jury in retirement was inherently improper, because it enabled the jury to revisit the prosecution’s central narrative without judicial supervision and without the structured reminder of cross-examination that fairness requires. In a case turning largely on credibility and consent, the risk of disproportionate weight being attached to evidence-in-chief was especially acute.
(b) Rejection of “speculation” that the jury did not view the interview
The Crown relied on several factors to suggest the jury likely did not watch the video (comments made at trial suggesting it was their only opportunity, a blank period on the capture card, and the absence of juror complaint). The Court held these points were speculative and could not cure or neutralise the structural unfairness created by the jury’s possession of the material.
Notably, the Court treated the difference between Popescu (transcripts) and this case (video) as immaterial: what mattered was the principle against unsupervised, potentially repeated exposure to evidence-in-chief during deliberations.
(c) Section 23A: why the Court declined an investigation
The Court analysed the Crown’s fallback as effectively invoking section 23A of the Criminal Appeal Act 1968, which permits the Court to direct the Criminal Cases Review Commission to investigate and report where necessary to resolve an issue.
The Court gave two core reasons for refusing:
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Not likely to resolve the issue satisfactorily: The relevant fairness question was not simply whether the video was watched, but whether its presence affected deliberations—something not readily captured by a neat binary answer. The interview might have been viewed accidentally; the influence might be subtle or disputed.
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Integrity and confidence in the process: Approaching the foreman risked creating pressure, misunderstanding, or perceived accusation. The appellant’s limited role in such an inquiry could undermine confidence where the stakes were the safety of convictions.
In consequence, the Court treated the irregularity as one that inevitably called into question the safety and validity of the verdicts.
(d) Prospective procedural responsibility: auditing the jury’s digital bundle
The Court expressly stated that while the court bears “initial responsibility” for capturing video media for jury use, the parties are not absolved. Counsel should have an opportunity to check the material before the jury retires to ensure no “extraneous or untoward” material has entered the compilation. The Court suggested practical, proportionate methods—an “audit” as part of equipment checking—without necessarily replaying everything in open court.
3.3 Impact
Practical impact on criminal trials using digital evidence
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Heightened operational discipline: Courts and advocates should expect tighter protocols for creating and verifying jury “capture cards” or digital bundles.
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Risk management around ABE evidence: Any possibility that jurors might privately revisit a complainant’s video evidence-in-chief is a high-risk fairness issue likely to generate appeals and retrials.
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Reduced appetite for post-verdict jury questioning: The judgment reinforces that attempts to “salvage” verdicts by probing what happened in the jury room will face strong headwinds, especially where the irregularity concerns structural fairness rather than a narrow factual dispute.
Doctrinal impact: fairness as process integrity, not outcome speculation
The decision is significant for insisting that certain errors are not appropriately addressed by guessing what the jury probably did. The Court’s approach treats the integrity of the deliberative environment as a central component of trial fairness—particularly where credibility is pivotal.
4. Complex Concepts Simplified
ABE interview / video-recorded evidence-in-chief
“ABE” (“Achieving Best Evidence”) interviews are video-recorded interviews often used as a witness’s evidence-in-chief. The jury watches the interview as the witness’s main account, and then the witness is cross-examined live. The fairness concern arises if the jury can later rewatch only the evidence-in-chief privately, potentially giving it more weight than the cross-examination.
“Capture card” / digital jury bundle
A digital storage device containing video exhibits the jury is permitted to review during deliberations (for example, CCTV). If it accidentally includes material the jury should not have (such as a complainant’s entire evidence-in-chief), it can undermine fairness.
Section 23A Criminal Appeal Act 1968
A mechanism allowing the Court of Appeal to ask the Criminal Cases Review Commission to investigate a matter relevant to an appeal that the Court cannot resolve without investigation. It is discretionary and used cautiously, especially where it would intrude into jury deliberations.
Section 4(2) Contempt of Court Act 1981 postponement order
An order delaying publication of reporting about proceedings where immediate reporting would create a substantial risk of prejudice to the administration of justice—here, because a retrial was ordered.
5. Conclusion
JEH, R. v [2025] EWCA Crim 1757 stands as a clear warning about the handling of digital trial materials: allowing jurors, in retirement, access to a complainant’s video-recorded evidence-in-chief is a serious irregularity that can render verdicts unsafe and require a retrial. The Court also reinforces a restrained approach to post-verdict inquiries into jury deliberations under section 23A, rejecting speculative “fixes” that risk undermining confidence in the system.
The practical message is equally direct: digital exhibit management must include a reliable, proportionate audit/checking process before the jury retires, with shared responsibility between the court and counsel to prevent extraneous material from reaching the jury room.