Horden, R. v

A defendant should not be visibly restrained before a jury unless there is sufficient reason, ordinarily a real risk of violence or escape. Even where a relevant risk exists, the court should first consider practical alternatives to visible restraint. A prison escort record escape marker does not, without reliable supporting information, justify handcuffs in court. The trial judge must scrutinise any application and require an adequate factual basis.

Wrongful visible restraint does not inevitably make a conviction unsafe. The appellate court must assess its likely effect in the context of the whole trial, including admissible bad-character evidence, an effective jury direction, and the strength of the prosecution case.

The appellant was convicted of possessing heroin with intent to supply. Intent was the sole issue at trial.

At the request of prison escort contractors, the trial judge ordered that the appellant remain handcuffed throughout the two-day jury trial, including while giving evidence. The stated basis was an escape risk recorded on a Prisoner Escort Record. Counsel renewed the objection after a secure dock and police guarding arrangements became available, but the judge maintained the order.

On appeal, further information showed that the escape marker rested on old intelligence that the appellant might have the means to organise an escape, rather than on any escape or threat to escape. The central issues were whether the restraint order was justified and, if it was not, whether the conviction was unsafe.

1. Appeal dismissed. The judge was wrong to order visible handcuffs throughout the jury trial. A defendant should not be visibly restrained without sufficient reason, normally a real risk of violence or escape. Even where a risk is identified, alternatives must be investigated before visible restraint is used. That approach protects the jury from drawing prejudicial conclusions from a restraint which may suggest that the defendant is dangerous.

2. The principles were supported by R v Vratsides [1988] Crim LR 251 and R v Mullen [2000] All ER(D) 618. A Prisoner Escort Record marker was not itself sufficient. The contractors should have obtained proper supporting information before applying, and the judge should have required it if it was not supplied. The information later obtained showed neither a prior escape nor a threat to escape. Had it been available at trial, the application should have been refused.

3. Nonetheless, the conviction was safe. The jury had properly heard compelling bad-character evidence that the appellant was a repeat dealer in Class A drugs. The judge also gave a clear and emphatic direction that the handcuffs were irrelevant and must not count against him. The prosecution evidence on intent was overwhelming: the appellant admitted possessing and dividing heroin into 24 wraps, while his account that the packaging was for self-administration was open to rejection.

4. The court stressed that a suitable jury direction would not necessarily cure unjustified visible restraint where the defendant’s character had not been placed before the jury.

• Court of Appeal (Criminal Division) — in the present appeal, [2009] EWCA Crim 388, held that the handcuff order was unjustified but dismissed the appeal because the conviction was safe.
• Trial court — not otherwise identified in the judgment. The appellant was convicted after a jury trial of possessing heroin with intent to supply; the trial judge ordered visible handcuffs throughout the proceedings.