M, v R.

Where a jury is permitted to replay a complainant’s video-recorded interview after retiring, the judge should preserve balance and perspective. The safeguards identified in earlier authority are ordinarily desirable, including a warning against giving repeated evidence disproportionate weight and a reminder of cross-examination. They are not an inflexible code. The absence of an express warning does not itself make a conviction unsafe where the judge otherwise gives the jury a balanced account of the evidence, has properly directed it on distress, and the trial has been conducted fairly.

The appellant was convicted at Liverpool Crown Court of nine offences of sexual activity with a child. He received an extended sentence which was corrected, before this appeal, to reflect the statutory maximum.

By leave of the single judge, he appealed against conviction on one ground. After the jury had retired, it requested a replay of the part of one complainant’s recorded police interview dealing with the initial allegations. The judge permitted the replay and then summarised the complainant’s cross-examination, stating that this was to provide a balanced picture. He did not expressly warn the jury against giving the replayed evidence disproportionate weight.

The issue was whether that omission, particularly given the complainant’s visible distress during the recording, rendered the convictions unsafe.

The appeal against conviction was dismissed. The court held that the convictions were safe. It also quashed the £120 statutory surcharge order.

1. The safeguards identified in R v Rawlings & Broadbent [1995] 2 Cr App R 222 ordinarily govern a replay of a complainant’s video-recorded interview after the jury has retired. The replay should occur in court with the judge, counsel and defendant present. The jury should ordinarily be warned against giving the repeated evidence disproportionate weight, and should be reminded of the complainant’s cross-examination.
2. Those safeguards are directed to ensuring balance and perspective. They do not impose an inflexible practice under which every departure makes a conviction unsafe. The court adopted the approach illustrated by R v Horley [1999] Crim LR 488 and R v Campbell [2014] EWCA Crim 870.
3. Here, although the judge did not give the express disproportionate-weight warning, he immediately gave a full summary of the complainant’s cross-examination to balance the replayed account. His stated purpose was to ensure a balanced picture. The original summing-up had also properly directed the jury on how to assess the complainant’s distress during interview.
4. The court assessed the procedure in its whole context. The trial and summing-up were accepted to have been fair, full and balanced, including as to the defence case. Neither advocate sought a further direction when the replay occurred. The omission of the explicit warning therefore did not undermine the safety of the verdicts.
5. The statutory surcharge was unlawful having regard to the dates of the offences, and that part of the sentence was quashed.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction, holding the convictions safe, and quashed the statutory surcharge order.
• Crown Court at Liverpool The appellant was convicted of nine offences of sexual activity with a child contrary to Sexual Offences Act 2003, section 25(1). An extended sentence was later corrected under section 115 of the Powers of Criminal Courts (Sentencing) Act 2000 to a total of 14 years.