Dicks, R. v

Where inadmissible and prejudicial material is inadvertently disclosed to a jury, the decisive question is whether the disclosure creates a real possibility that the jury will be wrongly prejudiced, so that a conviction may be unsafe. The decision whether to discharge the jury is an evaluative matter for the trial judge on the facts of the case, and an appellate court will not lightly interfere. A judge may appropriately assist the jury by commenting on the evidence, provided the jury is clearly reminded that its own assessment of the evidence is decisive.

The appellant was convicted at Swansea Crown Court of inflicting grievous bodily harm after the complainant suffered a broken nose during an argument. The prosecution alleged that he deliberately headbutted her; the defence alleged an accidental clash of heads.

During her evidence, the complainant twice said that she had complained that the appellant had assaulted her again. The Recorder refused an application to discharge the jury. The appellant appealed, contending that the word implied unadmitted bad character and that aspects of the Recorder’s summing-up improperly entered into the arena.

1. Appeal dismissed. The conviction was not unsafe.

2. The word again did not establish prior violence by the appellant. It did not show whether the complainant had previously made such an allegation, or whether any previous allegation would have been accurate. The evidence contained no further background about the relationship. It was therefore materially different from an inadvertent reference to previous convictions, which can be inherently prejudicial.

3. Following the approach identified in Lawson [2007] 1 Cr.App.R 20, the question was whether the inadvertent disclosure could result in an unsafe conviction. The relevant formulation, derived from Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, asks whether a fair-minded and informed observer would see a real possibility that wrongly admitted material had prejudiced the jury. The Recorder’s refusal to discharge the jury was a legitimate exercise of his discretion on that test.

4. The Recorder was entitled to give the jury such assistance on the evidence as he considered appropriate. His conventional directions made clear that his opinions were to be disregarded unless the jury agreed, that it was for the jury to assess the evidence, and that it should take account of matters omitted or insufficiently emphasised. The challenged comments, whether considered alone or with the reference to again, did not give rise even to a remote basis for finding the conviction unsafe.

1. Court of Appeal (Criminal Division): By [2013] EWCA Crim 429, dismissed the appeal against conviction.
2. Crown Court at Swansea: On 5 September 2012, convicted the appellant of inflicting grievous bodily harm and sentenced him to two years’ imprisonment.