Arthur, R. v

A trial judge has a discretionary evaluative decision whether late prosecution disclosure requires the jury to be discharged. The decisive question is whether the disclosure has caused irremediable prejudice to the defence, such that a fair trial cannot be restored by the ordinary trial process.

Where the error can be corrected before the jury, the defence can continue to test the evidence on the proper basis, and clear directions can prevent unfairness being attributed to the defendant, the judge may properly refuse to discharge the jury. An appellate court will not interfere merely because it might have taken a different course.

The appellant was tried in the Crown Court at Wood Green for two alleged rapes of his wife. During her cross-examination, the prosecution disclosed previously archived police reports which should have been served before trial.

The material confirmed that the complainant had telephoned the police shortly before the alleged incident involving an iron and had mentioned the iron to police the following day. Defence counsel had already questioned her on the incorrect basis that there was no record of either matter. The judge refused an application to discharge the jury, directed that the disclosure error was entirely the prosecution's fault, and allowed cross-examination to continue.

The appellant was acquitted on one count and convicted on the count concerning the iron. He appealed against conviction on the ground that the late disclosure made the conviction unsafe.

1. Appeal dismissed. The trial judge was entitled to refuse to discharge the jury. The question was whether the late disclosure had so compromised fairness that discharge was necessary in the interests of justice.

2. The prosecution's failure to disclose the archived reports before trial was a serious error and was through no fault of the defence. Defence counsel had consequently begun cross-examination on an incorrect basis.

3. Nevertheless, the prejudice was not irremediable. The further reports were disclosed while the complainant's cross-examination was incomplete. They permitted the defence to pursue the material point that, although she had mentioned the iron to police, she had not then alleged rape.

4. Had the reports been disclosed in time, the defence would in any event have relied on that point, and the fact that she had mentioned the iron would inevitably have emerged. The judge could therefore conclude that continuation of the trial, coupled with a clear explanation to the jury that the disclosure failure was solely the prosecution's responsibility, would cure the unfairness.

5. The judge had a proper feel for the conduct of the trial and exercised his evaluation and discretion lawfully. It could not be said that discharge was the only proper course. The conviction was therefore safe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction.
• Crown Court at Wood Green: on 12 January 2017, convicted the appellant of one count of rape and acquitted him of a second count. He was sentenced to nine years' imprisonment and made subject to a restraining order.