Replaying ABE Interviews to Assess Demeanour: Fairness, Not Exceptional Circumstances, Governs

1. Introduction

This judgment clarifies the approach to a jury’s request to replay a complainant’s recorded Achieving Best Evidence interview during deliberations, particularly where the jury wishes to reconsider how the complainant gave her account rather than simply what she said.

The Court of Appeal confirmed that replaying such evidence is a matter of judicial discretion, subject to established safeguards and the overriding requirement of fairness. There is no additional requirement to identify exceptional circumstances. Nor does the inability to replay the complainant’s demeanour during cross-examination automatically make a replay unfair.

The decision arose from a renewed application for leave to appeal against a rape conviction. It principally applies and clarifies existing authority rather than introducing a new evidential power. Its importance lies in explaining how that power operates when the alleged imbalance concerns the presentation of evidence, not merely its content.

2. Background and the Proposed Appeal

The trial

The applicant and complainant had previously been in an intimate relationship. Following a social event, sexual intercourse took place in a hotel room. The complainant alleged that the applicant had used violence and forced intercourse upon her. The applicant’s defence was that sexual activity had been consensual.

The applicant was convicted of one count of rape and acquitted of a second count concerning a separate episode the following morning. He received a sentence of four and a half years’ imprisonment. The present proceedings concerned his conviction, not his sentence.

For conviction, the prosecution had to establish that the complainant did not consent and that the applicant did not reasonably believe that she consented. The parties’ previous relationship formed part of the factual background but did not resolve those questions.

The jury’s request

During deliberations, the jury asked to review evidence. Through clarification in open court, the trial judge established that they wanted to watch the relevant part of the complainant’s recorded interview to assess her demeanour when describing the incident underlying the first count, rather than merely to refresh their memory of her words.

The judge permitted two limited extracts to be replayed. He considered the circumstances exceptional because, as he characterised the position, the applicant had no recollection of the relevant incident. Before the replay, he warned the jury against giving the repeated evidence disproportionate weight and reminded them of the essence of the defence. Afterwards, he provided his notes of the complainant’s cross-examination and the applicant’s evidence about the incident.

The alleged unfairness

The proposed ground of appeal was that replaying the recorded interview privileged the complainant’s presentation of her initial account without reproducing her demeanour when that account was challenged.

Defence counsel identified two passages of cross-examination in particular: the complainant’s response to evidence about the length of time she had spent in the room, and her response to questioning about removing her clothing. Counsel submitted that her reactions to those questions mattered and could not adequately be conveyed by the judge’s subsequent summary.

The complaint therefore concerned an asserted imbalance between the renewed visual impact of the complainant’s recorded account and the absence of an equivalent visual reminder of cross-examination.

3. Summary of the Decision

The Court of Appeal refused the renewed application for leave to appeal, holding that the proposed ground was not arguable.

• A judge may permit an ABE interview to be replayed so that a jury can reconsider either its content or the manner in which the witness gave the account.
• The discretion is governed by established safeguards and an assessment of trial fairness, not an exceptional-circumstances threshold.
• The trial judge had appropriately limited the replay and placed it within the wider evidential context.
• The inability to reproduce demeanour during cross-examination did not make this trial unfair.
• The judge’s earlier directions about demeanour were a permissible, case-specific application of the agreed legal directions.

The conviction and sentence consequently remained undisturbed. Procedurally, this was a refusal of permission to appeal, not the dismissal of a substantive appeal following the grant of leave.

4. Precedents Cited and Their Influence

R v VJW [2022] EWCA Crim 164

This was the immediate authority governing the jury’s request. At paragraph 29 of that decision, as explained by the present court, the trial judge’s discretion extends to allowing a replay both to reconsider what a witness said and to reconsider how the witness said it.

That distinction was decisive. The jury’s interest in demeanour did not place its request outside the recognised scope of the replay discretion. Equally, a direction warning against excessive reliance on demeanour did not create a prohibition on viewing the recording again.

The authority does not confer an automatic entitlement to a replay. It establishes that such a request is legally permissible and must be evaluated through the judge’s discretion, with proper attention to fairness.

R v Rawlings and Broadbent [1995] 1 WLR 178

The court applied the three safeguards identified by Lord Taylor CJ in this earlier authority:

1. Replay in court: the recording should be replayed with the judge, counsel and defendant present.
2. A warning against disproportionate weight: the jury should be told not to give the repeated evidence excessive importance merely because it is heard again, later than the other evidence. They must keep the whole evidential picture in mind.
3. A reminder of the subsequent questioning: after the replay, the judge should remind the jury from the notes of evidence of the witness’s cross-examination and re-examination, whether or not the jury has requested that reminder.

These safeguards address a practical danger: repetition and recency may make one part of a witness’s evidence disproportionately prominent. The answer is not necessarily to prohibit repetition, but to ensure that the replay remains connected to the challenges, qualifications and competing evidence presented at trial.

The Court of Appeal held that the trial judge’s procedure faithfully reflected these authorities. Neither precedent imposed a requirement of exceptional circumstances.

5. Analysis of the Court’s Reasoning

A. The governing test is fairness, not exceptionality

The clearest clarification appears at paragraphs 23 and 26: a judge does not need to find exceptional circumstances before permitting a replay.

The trial judge had voluntarily undertaken that exercise, relying on the applicant’s lack of recollection. The appellate court regarded it as unnecessary. What mattered was that the judge had considered the request, confined the replay to what was needed and taken steps to preserve a balanced assessment of the evidence.

This distinction prevents an additional threshold from displacing the actual question. A case need not be unusual before a replay can be allowed. Conversely, an unusual feature does not remove the obligation to consider whether the proposed replay would be fair.

B. Concern about demeanour does not prohibit reconsidering it

The defence relied partly on the judge’s earlier warning about demeanour. That direction had cautioned the jury against emotional reactions and invited them to consider alternative explanations for apparent distress, including the breakdown of the relationship.

The Court of Appeal approved the judge’s decision to relate the agreed directions to the evidence. It did not regard his elaboration as an improper departure from them.

The reasoning distinguishes between considering a witness’s presentation and treating it as decisive. Jurors may take account of demeanour, but must not substitute sympathy, indignation or assumptions about emotional behaviour for a fair evaluation of the evidence. Permitting a replay was not inherently inconsistent with that warning.

C. Fairness does not always require identical forms of replay

The defence’s strongest point was that a written or oral reminder cannot reproduce pauses, hesitation, surprise or other features of a witness’s reaction under questioning. The court did not deny that difference.

Instead, it held that the difference was not sufficient to establish arguable unfairness in this case. The jury had received a proper reminder of the relevant challenges, and the cross-examination had occurred relatively recently.

The decision therefore rejects an automatic rule that recorded evidence-in-chief may be replayed only where cross-examination can be reproduced in an equivalent audiovisual form. The safeguards require effective evidential context, not invariably identical presentation.

D. The safeguards were substantive, not merely formal

The trial judge did more than repeat a standard warning. He clarified the jury’s purpose, identified the relevant incident, selected limited extracts, reminded the jury of the defence and restored the context of cross-examination and the applicant’s evidence after the replay.

These steps mattered collectively. They reduced the risk that the complainant’s account would become detached from the challenge made to it or acquire unwarranted prominence through repetition.

The court’s reasoning accordingly supports an active approach to managing jury requests. The judge must understand what the jury wishes to reconsider and assess how to meet that request without distorting the overall evidential balance.

E. The court preserved the possibility of unfairness in another case

Importantly, the judgment did not hold that reminders of cross-examination will always cure any imbalance. At paragraph 27, the court expressly recognised that an inability to replicate demeanour during cross-examination could, in some circumstances, produce unfairness.

The conclusion was narrower: this was not even arguably such a case. The authorities establish a discretion, not a universal answer. The importance of the missing visual context must therefore remain open to case-specific assessment.

F. Counsel’s conduct was not treated as determinative

The judgment recorded defence counsel’s reluctance to engage in detailed discussion of which extracts should be replayed. It also noted the absence of a complaint about the original summing-up. Nevertheless, the court assessed the substance of the alleged unfairness rather than treating those matters as disposing of the application.

The practical lesson is that objections are most useful when they identify precisely why particular extracts, omissions or reminders would create an imbalance and what measures could address it.

6. Impact and Limits

The judgment provides useful guidance for trials involving recorded witness evidence:

• For trial judges: clarify the purpose and scope of a jury’s request, apply the established safeguards and assess fairness without imposing an exceptional-circumstances requirement.
• For advocates: engage with the selection of extracts and identify the surrounding evidence needed to preserve balance. An objection based on unavailable demeanour should explain its particular significance.
• For appellate challenges: the mere difference between replayed recorded evidence and a judicial reminder of cross-examination is insufficient. The challenge must demonstrate arguable unfairness in the circumstances.

The ruling does not establish that demeanour is a reliable indicator of truth, require judges to grant every replay request, or decide the broader admissibility rules for recorded interviews. Nor does it alter the substantive law of consent or reasonable belief in consent.

Its contribution is procedural: it confirms a flexible but safeguarded method of assisting a deliberating jury without allowing repeated evidence to displace the rest of the trial.

7. Complex Concepts Simplified

Achieving Best Evidence interview

A recorded interview conducted under the ABE framework. Here, the complainant’s recording had been used as her evidence-in-chief: her initial account before cross-examination.

Demeanour

The manner in which someone gives evidence, including tone, expression and apparent emotion. Such behaviour can have different explanations and should not be treated as a shortcut to deciding truthfulness.

Judicial discretion

A judge’s power to choose between legally available courses of action by applying relevant principles to the particular case. It is not an unrestricted personal choice.

Disproportionate weight

Giving evidence more importance than it deserves—for example, because it has just been replayed while competing evidence is less fresh in the memory.

Renewed application for leave to appeal

A further request to the court for permission to appeal after a single judge has refused permission. Refusal means the proposed appeal does not proceed.

8. Conclusion

The central principle is that a jury may be permitted to replay an ABE interview to reconsider demeanour without exceptional circumstances being established. The controlling considerations are judicial discretion, the established safeguards and the fairness of the trial as a whole.

Here, limited extracts, an appropriate warning and reminders of the competing evidence adequately preserved that fairness. The renewed application was therefore refused. The judgment nevertheless leaves room to refuse a replay where the inability to reproduce material aspects of cross-examination would create a genuine imbalance.