Sothilingham, R. v

Where a jury is given a transcript of contentious ABE interview evidence, the trial judge must protect the defendant’s right to a fair trial. A transcript should be supplied only after careful consideration and, if used to assist understanding of the recording, should usually be withdrawn before retirement. Clear directions are required if the jury is permitted to retain it.

Those safeguards remain applicable despite modern practices of providing written directions and summaries. Their breach does not automatically make a conviction unsafe. The appellate court must assess the actual effect on the fairness of the trial, including the directions as a whole, the evidential significance of the written material, and any need to ensure fairness between defendants advancing conflicting cases.

The appellant was convicted at a retrial in the Central Criminal Court of murder and wounding with intent arising from gang violence in November 2015. He received life imprisonment with a minimum term of 29 years. He and his co-accused each blamed the other for the killing.

At the retrial, the co-accused obtained admission of hearsay evidence that the deceased had alleged that the appellant attacked him in a separate incident in September 2015. The jury watched the deceased’s ABE interview and retained a written summary of it during deliberations. The appellant accepted the interview’s admissibility but contended that retention of the transcript, without a specific warning, made his convictions unsafe.

1. Appeal dismissed. The convictions were safe. The hearsay account of the September incident was admissible at the co-accused’s instigation. It was relevant to the relationship between the deceased and the appellant and to the competing cases advanced by the two defendants.

2. The court applied the guidance in R v Popescu [2010] EWCA Crim 1230. A trial judge must ensure a fair trial and prevent unfair evidential advantage. In most cases, a jury will not need a transcript of an ABE interview. If a transcript is supplied to assist the recording, it should usually be withdrawn before retirement. If it is retained, the jury should receive clear directions about its proper and limited use.

3. Modern use of written directions, routes to verdict and agreed summaries does not displace those safeguards where contentious evidence is provided in written form. The guidance nevertheless does not impose an automatic rule that retention of a transcript renders a conviction unsafe.

4. This was an unusual cut-throat trial, in which the judge had to ensure fairness to both defendants. It was open to the judge to permit the jury to retain written material so that the appellant’s own interview and the deceased’s account were treated fairly. A further warning against undue weight would have been preferable, but the judge’s hearsay directions and summing-up were fair.

5. The retained transcript added no material significance beyond the central allegation already heard by the jury. Its retention therefore did not undermine the fairness of the trial or the safety of the convictions.

• Court of Appeal (Criminal Division): appeal against conviction dismissed in [2018] EWCA Crim 2884.
• Central Criminal Court: following a 2017 retrial, the appellant was convicted of murder and wounding with intent and sentenced to life imprisonment with a 29-year minimum term.
• Central Criminal Court: at the 2016 trial, the appellant was convicted of violent disorder; the jury did not agree on murder and wounding with intent.