Brown, R. v

An irregular reference to material that was not in evidence does not of itself make a conviction unsafe. The appellate court must assess the strength and clarity of the judge’s corrective direction, whether the jury could reasonably be trusted to follow it, and the strength of the admissible evidence supporting the verdict.

A firm direction to disregard a simple and non-central matter may enable the trial to continue. Where the remaining evidence provides a strong case, the conviction may safely be upheld.

The appellant was tried in the Crown Court at Chelmsford for assault occasioning actual bodily harm. He denied participating in the assault and contended that his co-defendant, who had pleaded guilty, was responsible. The prosecution relied on evidence from the complainant, her young son, and two independent witnesses.

In summing up, the judge mistakenly referred to and read from a 999-call transcript that had not been admitted in evidence. After counsel identified the error, the judge directed the jury in emphatic terms to disregard it. The appellant appealed against conviction, contending that the warning was inadequate and that the resulting conviction was unsafe.

1. Appeal dismissed. The judge’s reference to a 999-call transcript not in evidence was an irregularity. It did not, however, automatically render the conviction unsafe.

2. The court considered first whether the jury could be trusted to comply with the corrective direction. The judge expressly identified his mistake, imposed an absolute prohibition on using the material, and told the jury to decide the case only on the evidence they had heard. In the circumstances, that was a sufficiently strong warning.

3. The jurors were not required to perform any unrealistic mental exercise. They were simply required to disregard one item which they had been told was not evidence. The material did not concern a central issue and was capable of being put aside.

4. The court then considered the admissible evidence. The complainant’s and her son’s accounts were broadly consistent. There was also strong independent evidence from the two witnesses who saw the incident. Any suggestion that those witnesses had colluded was not a serious issue on the evidence as a whole.

5. Balancing the strength of the prosecution case, the nature of the error, and the corrective direction, the court was satisfied that the conviction was safe. The conviction was upheld.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed in [2010] EWCA Crim 1337.

• Crown Court at Chelmsford: The appellant was unanimously convicted of assault occasioning actual bodily harm and sentenced to two years’ custody.