MM v R. (Rev 1)

A criminal appellate court may correct a capricious jury-discharge decision that affects trial fairness. A discharge may nevertheless be proper where the interests of justice require time to consider a potentially complete insanity defence which the accused may be declining against his own interests.

Apparent bias is assessed objectively, by asking whether a fair-minded and informed observer would see a real possibility of bias. Under Youth Justice and Criminal Evidence Act 1999, previous sexual conduct must be genuinely probative of consent; a formal admission may adequately protect a fair trial. The court left open whether mental illness can be a circumstance relevant to reasonable belief under the Sexual Offences Act 2003, where the point could not affect the result.

The appellant appealed convictions at Wood Green Crown Court for three rapes and sexual assault by penetration. His defence at the retrial was that the complainant had consented to all sexual activity.

At the first trial, the judge discharged the jury after psychiatric evidence disclosed a possible insanity defence which the appellant did not wish to advance. The judge declined to recuse himself from the retrial. The appellant also challenged the judge’s interventions and summing up, the refusal of proposed questioning about prior sexual conduct, and the judge’s preliminary view on reasonable belief in consent.

The central issues were whether the retrial was an abuse of process or affected by apparent bias, whether the trial was fair, and whether the excluded evidence or psychiatric material could have affected the safety of the convictions.

1. Appeal dismissed. The convictions were safe. The judge’s discharge of the first jury did not make the retrial unfair or abusive.

2. The Court of Appeal could intervene to correct a capricious exercise of the discretion to discharge a jury where it affected trial fairness. Here, however, the judge acted in the interests of justice. The emergence of a possible defence of not guilty by reason of insanity required proper reflection and could not fairly be resolved during the trial at short notice. The appellant might have been declining a complete defence against his own interests.

3. The judge was correctly entitled to refuse recusal. Applying the objective apparent-bias test, a fair-minded and informed observer would not find a real possibility of bias. The judge’s rulings, observations and decision to discharge the jury did not show that he was committed to a prosecution-favourable outcome.

4. The judge’s questions during the retrial permissibly sought to resolve evidential ambiguity and gave the appellant an opportunity to explain matters on which the jury might otherwise speculate. The summing up fairly left the competing accounts to the jury. A direction against rape stereotypes was proper, although the unsupported reference to a proportion of allegations involving parties known to one another exceeded legitimate comment. Read as a whole, it did not deprive the summing up of balance.

5. Under section 41 of the Youth Justice and Criminal Evidence Act 1999, the proposed prior sexual incidents lacked the required similarity and temporal connection. Their environmental circumstances were materially different from the alleged offences and they were not probative of consent. Applying R v A (No2) [2002] 1 AC 45, the formal admission of the parties’ prior full sexual relationship adequately protected the appellant’s Article 6 right to a fair trial.

6. The prosecution had to prove lack of consent and absence of a reasonable belief in consent under section 1 of the Sexual Offences Act 2003. The court did not decide whether mental illness could be a relevant circumstance under section 1(2). The appellant chose not to adduce the psychiatric evidence, and that evidence would have supported a finding that he knew the complainant was refusing intercourse. Even a permissive interpretation could not have assisted him.

7. The Article 6 and Article 14 submission failed. The appellant was not prevented from calling medical evidence, and Article 6 concerns procedural fairness rather than the substantive fairness of criminal law.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2011] EWCA Crim 1291.
• Wood Green Crown Court — the first jury was discharged; at the retrial the appellant was convicted of three rapes and sexual assault by penetration, and was sentenced to six years’ detention in a young offender institution.