Boxer, R v

Non-compliance with Achieving Best Evidence guidance does not itself require exclusion of a recorded interview. Under section 27(2) of the Youth Justice and Criminal Evidence Act 1999, the decisive question is whether a properly directed jury could be sure that the witness gave a credible and accurate account despite the breaches.

A trial judge may admit the recording where its overall content supports that conclusion. A jury need not be discharged merely because its questions suggest possible speculation about a defendant’s character, provided it is firmly directed to decide the case only on the evidence. Differing verdicts on separate counts are not illogical where the evidence on one count is materially stronger.

The appellant was tried at the Crown Court at Merthyr Tydil on two counts of sexual activity with a person with a mental disorder impeding choice, contrary to section 30(1) of the Sexual Offences Act 2003. The complainant had substantial learning difficulties and was unable to consent. The appellant was convicted on the first count and acquitted on the second.

He appealed against conviction. He contended that the complainant’s video-recorded Achieving Best Evidence interview should have been excluded because of departures from guidance; that jury notes showed impermissible speculation about his character and required discharge of the jury; and that the differing verdicts were illogical.

1. Appeal dismissed. The judge was entitled to admit the video-recorded interview under section 27(2) of the Youth Justice and Criminal Evidence Act 1999. The applicable test, drawn from R v K [2006] EWCA Crim 472 and R v Hanton [2005] EWCA Crim 2009, was whether a reasonable jury, properly directed, could be sure that the witness had given a credible and accurate account despite any breaches of the Achieving Best Evidence guidance.

2. The guidance required the interviewing officer to consider using an intermediary. It did not require one in every case. The subsequent use of an intermediary for trial questioning did not establish a prior breach. There had, however, been breaches through leading and tag questions and suggestive introductory language. The judge correctly evaluated those defects in the context of the interview as a whole.

3. The complainant gave a coherent central account in response to open questions, displayed comprehension and corrected the interviewer when necessary. The criticised pre-interview discussion and later leading questions did not make the interview unreliable. The court would interfere with the judge’s section 27 decision only if it had not been open to him; it was plainly open to him here.

4. The jury’s questions could have reflected an interest in the appellant’s character, but they did not require its discharge. The judge gave clear and repeated directions that the jury must not speculate and must decide only on the evidence. That was a sufficient response.

5. The verdicts were not illogical. The evidence in support of the first incident was clearer than that relating to the second, much of the questioning about the latter having been removed from the edited recording. The differing verdicts were capable of reflecting careful count-by-count consideration of the evidence.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2015] EWCA Crim 1684.
• Crown Court at Merthyr Tydil: The appellant was convicted by a jury on the first count and acquitted on the second count.