Cadman v R.

Once a jury has retired, it must not receive further material as evidence. The receipt of extraneous material is an irregularity, but the decisive question is whether the conviction remains safe.

A conviction is unsafe where jurors may have used such material to make an evidential finding that could reasonably affect their verdict, particularly where it bears on unchallenged evidence central to the defence. A defendant is not deprived of that protection because trial counsel mistakenly believed that supplying the material would assist the defence.

The appellant was convicted in the Birmingham Crown Court of conspiracy to defraud arising from false claims under the Individual Learning Account scheme. The prosecution alleged that companies managed or controlled by him received fraudulently obtained funds and that he signed the cheques by which they were removed.

The appellant admitted signing most of the cheques but maintained that he had signed them in blank and had not written their payees or amounts. No handwriting evidence alleged that he had completed their bodies.

After retiring, the jury requested samples of cheques written by the appellant. With the agreement of counsel, they received about 24 copy cheques which had not been admitted in evidence. The central issue was whether that extraneous material could have led the jury to reject the appellant’s crucial account and rendered the conviction unsafe.

1. Appeal allowed. The conviction was quashed and a new trial ordered.

2. The court applied the principles restated in R v Karakaya [2005] EWCA Crim 346. Following retirement, jurors may be assisted on evidence already received, but they must not receive further evidence. A breach is an irregularity whose consequence depends on whether the conviction can still be regarded as safe.

3. The further cheques were extraneous material because they had never been admitted in evidence. The jury had asked for cheques written by the appellant and confirmed that they wished to compare the handwriting on those cheques with the samples already in their bundles. Since the appellant’s signatures were undisputed and illegible, the comparison necessarily concerned the handwriting in the bodies of the cheques.

4. The jury were likely to assume that the supplied cheques had been written, rather than merely signed, by the appellant. They could therefore have inferred, by comparing handwriting, that he had completed the bodies of the exhibited cheques and had lied when denying it. That was an impermissible evidential use of material outside the trial evidence.

5. The issue went to the heart of the defence. The appellant’s denial that he had completed the relevant cheques was unchallenged and was central to his contention that he lacked knowledge of, and participation in, the conspiracy. The court accepted that an adverse conclusion on that issue might reasonably have affected the verdict. Applying R v Pendleton [2002] 1 WLR 72, the conviction was unsafe. The fact that trial counsel had thought the material might assist the appellant did not alter that conclusion.

• Court of Appeal (Criminal Division): Allowed the appeal in [2008] EWCA Crim 1418, quashed the conviction and ordered a new trial.
• Crown Court at Birmingham: The appellant was convicted by an 11:1 majority verdict of conspiracy to defraud on 25 February 2005.