Hulme, R. v

Under Criminal Justice Act 2003, section 122(2), a written witness statement admitted as evidence should not accompany a jury unless there is a sufficient case-specific reason for treating that course as appropriate. The ordinary risk is that jurors will give the document disproportionate weight over oral evidence, which they must recall rather than reread.

If a document is exceptionally provided, the judge must give clear directions explaining that risk and the need to assess the written and oral accounts fairly. Nevertheless, a procedural error does not render a conviction unsafe where the remaining evidence is so strong that there is no realistic possibility of a different verdict.

The appellant appealed, with leave of the single judge, against his conviction at Chester Crown Court for causing grievous bodily harm with intent. His case at trial was that he had acted in self-defence after the complainant attacked him.

A neighbour, Miss Durao, gave oral evidence that was less definite than her earlier written statement. After she was treated as hostile, the statement was admitted under Criminal Justice Act 2003, section 119. The trial judge allowed the jury to take the statement when retiring, under section 122.

The appeal raised whether that decision and the directions concerning the statement made the conviction unsafe. It also challenged the judge’s treatment of asserted differences between the evidence of two eyewitnesses.

1. Appeal dismissed. The trial judge erred by allowing Miss Durao’s written statement to accompany the jury. The reason given—that the document was needed to make sense of the case and evaluate her evidence—was insufficient. The jury could have been reminded in the summing-up of the statement, the circumstances in which it was made, and the relevant differences from her oral evidence.

2. Section 122(2) of the Criminal Justice Act 2003 begins with a general prohibition. The risk in allowing a written statement to accompany the jury is that it will receive disproportionate weight because it can be reread while oral evidence depends on recollection. There was no special feature of this statement that justified departing from the general position. The same risk, though less acute, meant that the jury should not have been invited to read it in the jury box before retiring.

3. If the document had properly been supplied to the jury, robust directions were required. The judge’s general warning about hostile-witness evidence was appropriate but inadequate. She should have explained why the jury had the document and warned them not to attach undue weight to it merely because they had it before them.

4. The judge’s isolated factual error when summarising Mr Chapman’s cross-examination was not materially misleading. Nor was she required to conduct a detailed comparison between his account and Miss Durao’s. It was sufficient to identify the salient features of each account and leave ordinary differences of recollection and observation to the jury.

5. Despite the errors concerning the written statement, the conviction was safe. There was strong independent circumstantial and direct evidence of an assault, and no realistic possibility that the jury would have reached a different verdict had the statement been handled correctly. Once self-defence was rejected, the evidence supported conviction under section 18 and did not realistically permit an alternative conviction under section 20.

• Court of Appeal (Criminal Division): appeal against conviction dismissed: [2006] EWCA Crim 2899.
• Crown Court at Chester: the appellant was convicted on 16 March 2006 of causing grievous bodily harm with intent and sentenced to 61 months’ imprisonment.