Popescu, R. v

Where a jury is given a transcript of an Achieving Best Evidence interview, the overriding question is whether the defendant received a fair trial without an unfair procedural or evidential advantage to the prosecution. Transcripts should be supplied only for a good reason, after discussion with counsel, and normally withdrawn once the witness's evidence ends. A jury should rarely retire with them. If it does, the judge should give a specific ruling and clear directions on their limited use, and fully summarise the witness's cross-examination and re-examination.

A departure from that practice does not by itself render a conviction unsafe. The court must assess the trial as a whole, including why the transcript was retained, how it was used, the directions given, and whether the prosecution obtained an unfair advantage.

The appellant was convicted at the Crown Court at Snaresbrook of five counts of rape and five counts of aiding and abetting rape. He received concurrent sentences of 11 years' imprisonment and was recommended for deportation.

The complainant's evidence in chief was played to the jury as video-recorded Achieving Best Evidence interviews. The jury received transcripts of those interviews, retained them throughout the trial, and retired with them. The appellant appealed against conviction, contending that this procedural course, and the judge's directions concerning it, made the verdicts unsafe. He also renewed an application for leave to appeal against sentence.

The central issue was whether the retention of the transcripts gave the prosecution an unfair procedural or evidential advantage and deprived the appellant of a fair trial.

1. Appeal against conviction dismissed. The governing question was whether the use of the transcripts infringed the appellant's right to a fair trial so that the verdicts were unsafe. Under Youth Justice, Police and Criminal Evidence Act 1999, section 27 permits a video-recorded interview to be admitted as evidence in chief, but neither that provision nor the procedural rules resolved whether a jury should retain a transcript.
2. The court gave general guidance. A transcript of an Achieving Best Evidence interview should be provided only after discussion with counsel and for a very good reason, such as difficulty following the evidence or poor audio quality. The jury should be directed to concentrate on the video evidence and normally should lose the transcript after the evidence in chief, and certainly after the witness has completed giving evidence.
3. Retirement with a transcript should be exceptional. It requires prior discussion with counsel and a judicial ruling. The judge should explain why the transcript is available, confine its use to assisting understanding of the evidence in chief, ensure a full summary of cross-examination and re-examination, and warn against over-reliance on the evidence in chief. This guidance reflected R v Welstead [1996] 1 Cr App R 59, R v Coshall The Times, 17 February 1995, and R v Morris [1998] Crim LR 416.
4. On the particular facts, the defence had wanted and used the transcripts extensively in cross-examination and closing speeches. The judge gave a careful warning not to consider the transcript in isolation and fully reviewed the complainant's cross-examination, re-examination and the defendants' responses. The prosecution therefore gained no unfair advantage. The appellant had a fair trial and, applying Randall v the Queen [2002] 2 Cr App R 17, the verdicts were safe.
5. Renewed application for leave to appeal against sentence dismissed. The repeated and degrading rapes, and the appellant's leading role in exposing the complainant to his co-accused, justified the concurrent 11-year sentences.

• Court of Appeal (Criminal Division). In [2010] EWCA Crim 1230, dismissed the appeal against conviction and dismissed the renewed application for leave to appeal against sentence.
• Crown Court at Snaresbrook. Convicted the appellant of five counts of rape and five counts of aiding and abetting rape, and imposed concurrent sentences of 11 years' imprisonment.