Factual and Procedural Background
The Appellant was convicted in the Crown Court at The City of attempted rape and rape arising from events at student accommodation after the Appellant and the complainant met at a nightclub. The prosecution relied principally on the complainant’s evidence, supported by CCTV, forensic evidence, and evidence from her friend. The Appellant gave evidence that the sexual activity was consensual. [1][2][3][4][5][6][7]
After the jury returned unanimous guilty verdicts, it was discovered that the digital media provided for the jury’s deliberations contained the complainant’s video-recorded interview, as well as the CCTV footage. The trial judge certified the case as fit for appeal, and sentence was postponed. [8][9][10]
The Court of Appeal imposed reporting restrictions protecting the complainant’s identity and postponed publication of reports until the conclusion of the retrial. [11][12]
Legal Issues Presented
- Whether the inclusion of the complainant’s video-recorded interview on the media supplied to the jury constituted a serious procedural irregularity affecting the safety of the convictions. [10][13][14]
- Whether the Court should investigate, through the Criminal Cases Review Commission or the jury foreman, whether the jury viewed or relied upon the recording. [15][16][17]
- Whether the convictions should be quashed and a retrial ordered. [18][19]
Arguments of the Parties
Respondent’s Arguments
- The Respondent submitted that the problem could be cured by asking the jury foreman whether the jury had accessed and watched the complainant’s interview. If it had not been viewed, the Respondent argued, there would have been no unfairness; if it had been viewed, a retrial would be required. [15]
- The Respondent relied on statements made in the opening and by the judge, the blank period on the media, and the absence of any jury complaint, arguing that the Court could infer that the recording had not been viewed. [20][21]
- The Respondent sought an investigation under section 23A of the Criminal Appeal Act 1968. [16][17]
Appellant’s Position
The opinion does not contain a detailed account of the Appellant’s submissions on the appeal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Popescu [2010] EWCA Crim 1230 |
Juries should have only very limited access to transcripts or recordings of a witness’s evidence-in-chief, particularly during deliberations, and safeguards are required to preserve fairness. |
The Court held that providing the complainant’s video-recorded interview to the jury for deliberations was wholly inappropriate and constituted a serious irregularity. [22][23][24][25][13][14] |
| R v Rawlings and Broadbent [1995] 1 WLR 178 |
Replaying video-recorded evidence after the jury has retired should occur only in court with the judge, counsel, and defendant present, accompanied by appropriate reminders concerning cross-examination and re-examination. |
The principle supported the conclusion that the jury should not have unrestricted access to the complainant’s recorded evidence during retirement. [22] |
| R v Adams [2007] All ER 25 |
There must be strict control over inquiries into what occurred during jury deliberations. |
The Court treated the proposed inquiry into the jury’s conduct as requiring particular caution. [16] |
| R v Baybasin [2013] EWCA Crim 2357 |
Great care is required before directing an investigation into alleged jury irregularities, especially where jurors may need to give evidence. |
The Court declined the proposed investigation, noting its uncertainty and the risk of generating more heat than light or placing improper pressure on jurors. [17][26][27][28][18] |
| R v Lewis [2013] EWCA Crim 2596 |
Investigations into jury irregularities require careful control. |
The case was cited as part of the authority supporting caution before ordering an inquiry. [17] |
Court's Reasoning and Analysis
The Court found that the jury should not have received the complainant’s video-recorded interview for use during deliberations. The error was accepted by all parties, and the governing authorities established strict safeguards for any jury access to evidence-in-chief. [10][13]
The Court rejected the Respondent’s proposed inferences from the opening, the judge’s comments, the blank period on the media, and the absence of a jury complaint. Those matters amounted to speculation and did not constitute a formal direction capable of curing the irregularity. [29][30]
The Court also rejected the distinction between the recording in this case and the transcripts considered in R v Popescu. The relevant principle concerned the risks of allowing the jury access to material of this kind during deliberations, rather than the particular format of the material. [14]
Although section 23A gave the Court discretion to direct an investigation, the proposed inquiry was unlikely to resolve the issue satisfactorily. It would need to determine not merely whether the recording was viewed, but whether it influenced the jury’s discussions; the recording might have been viewed accidentally, and the foreman’s answer might not be capable of a reliable binary response. [16][31][27]
The Court further considered that questioning the foreman could create pressure or encourage an inaccurate answer, while the Appellant would lack confidence in a process on which the safety of the convictions would depend. The integrity of the trial could therefore not be satisfactorily preserved by the proposed investigation. [28][32][18]
The Court recognised the serious consequences of a retrial, including the impact on the complainant, but concluded that the integrity of the trial process required that outcome because no other appropriate solution was available. [18]
The Court also stated that responsibility for checking retirement media does not rest solely with the court. Counsel should be given an opportunity to check that the jury receives only the correct material, using practical measures that verify both the equipment and the contents. [33][34][35]
Holding and Implications
The appeal was allowed, the convictions on both counts were quashed, and a retrial was directed. [19][36]
The direct consequence was that the Appellant’s convictions did not stand and the matter would be tried again. Publication of reports was postponed until the conclusion of the retrial, and restrictions protecting the complainant’s identity remained applicable. [11][12][36]
The Court also provided procedural guidance that counsel should check digital material supplied to juries during retirement. No broader consequence beyond the retrial and this practical guidance was identified in the opinion. [34][35]