PM v R.

A defendant must have an adequate and proper opportunity to challenge evidence relied on for conviction. Curtailed cross-examination does not automatically make a trial unfair. The court must examine whether the defence can test the witness’s credibility through evidence from independent sources.

Where a witness cannot continue, the judge must address the prejudicial emotional effect of the collapse and warn the jury against acting on evidence which has not been properly tested. If the defence has been denied a fair opportunity to challenge crucial evidence, the evidence should be excluded or the jury discharged. A defective direction will nevertheless justify allowing a conviction appeal only if the verdict is unsafe when the trial is assessed as a whole.

The appellant appealed twelve convictions for sexual offences and related offending alleged to have occurred between 1978 and 2005. One complainant, L, gave her evidence-in-chief but suffered a panic attack shortly after cross-examination began and could not continue.

The trial judge refused to discharge the jury. He later failed to give the careful warnings which he had anticipated would be necessary about the curtailed cross-examination and the witness’s collapse. The defence contended that the lack of cross-examination, the directions, and the treatment of its evidence rendered the convictions unsafe.

The central issue was whether the appellant had nevertheless received a fair opportunity to challenge L’s evidence, and whether the jury’s verdicts were unsafe.

1. Appeal against conviction dismissed. The trial judge erred in drawing an analogy with a statement read under Criminal Justice Act 2003, and in failing to give appropriate warnings. The error did not make the trial unfair or the verdicts unsafe in the particular circumstances.
2. A defendant must have an adequate and proper opportunity to challenge and contest evidence supporting an allegation and conviction. That requirement reflects Article 6. The loss of cross-examination is not invariably fatal. The decisive question is whether the defence retained a fair opportunity to challenge the witness’s evidence.
3. The judge deciding whether to discharge a jury must first decide whether a fair trial remains possible. Considerations such as delay and the strain on witnesses cannot override fairness. An appellate court should not interfere with that evaluative decision unless it was outside the range of reasonable conclusions.
4. Where a witness visibly collapses after emotive live evidence, the judge must reduce the potential prejudice. The jury should be told not to speculate about the collapse or use it adversely to the defendant. They should be warned to exercise caution before acting on evidence which the defence has been unable properly to test. If the judge concludes that the defence has been deprived of a fair opportunity to challenge crucial evidence, the evidence should be ignored or the jury discharged. A case in which cross-examination was almost complete may justify a different course.
5. Here, the defence challenges to L’s credibility derived from evidence independent of L, including inconsistencies, delay, and conduct after the alleged abuse. The absence of cross-examination deprived the jury of L’s response to those matters, but did not deprive the defence of the factual foundation for its challenge. Indeed, L could not offer explanations which might have reduced their force.
6. Viewed as a whole, the evidence concerning complaints from complainants in separate families entitled the jury to reject the suggested orchestration of false allegations. The convictions were safe. The application for permission to appeal against sentence was also refused because the indeterminate sentences and minimum terms were not arguably manifestly excessive.

• Court of Appeal (Criminal Division) — In [2008] EWCA Crim 2787, the appeal against conviction was dismissed and permission to appeal against sentence was refused.
• Blackfriars Crown Court — The appellant was convicted of sexual offences and related offending. He received life imprisonment for certain rapes, imprisonment for public protection for a further rape, and concurrent fixed terms for other offences.