R v The Crown

A jury should not normally retire with transcripts of an ABE interview. Their use requires prior judicial consideration, a very good reason and clear directions that the written record must not be given undue weight. The trial judge retains ultimate responsibility for the material available in retirement.

Pragmatic acquiescence after transcripts have been supplied inadvertently does not amount to prior defence agreement. A warning given only after the jury has considered transcripts for several hours may be inadequate. Where the resulting risk of disproportionate weight cannot be neutralised, and the evidence does not otherwise make the convictions plainly safe, the trial is unfair and the convictions are unsafe.

The appellant was convicted at Norwich Crown Court of sexual offences against his stepdaughter, KH, and offences concerning indecent images. KH gave several ABE interviews containing differing accounts. Recordings of those interviews were played at trial without transcripts being supplied to the jury.

After retiring, the jury requested transcripts. It then emerged that transcripts of three interviews had inadvertently been left in the jury room. The judge allowed the jury to retain those transcripts and gave it a further transcript, while summarising a fourth interview for which no transcript existed. The appellant appealed against conviction, contending that the jury's access to the transcripts made the trial unfair.

1. Appeal allowed. The convictions were unsafe. A retrial was ordered as soon as conveniently possible.
2. The court reaffirmed that transcripts of ABE interviews require particular care. They should ordinarily be removed from the jury after the recording has been played and should not normally accompany the jury in retirement. The risk is that the written record will receive disproportionate weight and give the prosecution an unfair evidential and procedural advantage.
3. Exceptional circumstances may justify a jury retiring with such transcripts, particularly where the defence positively seeks that course and there are very good reasons for it. The jury must then receive a clear and emphatic warning that the transcript has no greater status than other evidence and that it must consider the witness's recorded demeanour.
4. The defence had not agreed in advance to the jury receiving transcripts in retirement. Its response after the error was a pragmatic reaction to an already difficult situation. It did not supply the safeguard of informed prior agreement.
5. The judge's later warning was inadequate. It was insufficiently emphatic and was necessarily delivered after the jury had already had three transcripts for many hours. The court could not regard the prosecution case as so overwhelming that the breach of safeguards could be disregarded. The error rendered the trial unfair and undermined the safety of the convictions.
6. The court also stated that the trial judge bears ultimate responsibility for deciding what exhibits and material a jury may have in retirement. That responsibility cannot be left to court staff. An anonymity order was made under Youth Justice and Criminal Evidence Act 1999.

• Court of Appeal (Criminal Division) Allowed the appeal against conviction and ordered a retrial: [2017] EWCA Crim 1487.
• Crown Court at Norwich Convicted the appellant on 31 August 2016 of sexual offences and offences concerning indecent images, and sentenced him on 7 September 2016.