Shears-Kargbo, R v

A trial judge’s decisions on severance and on discharging a juror are discretionary. An appellate court will not intervene where the judge reasonably assessed the connection between allegations, addressed prejudice by proper directions, and fairly weighed the consequences of a retrial.

A prosecutor’s reference to matters first raised at trial will not render a conviction unsafe where the trial judge gives a correct direction on the limited use of interview silence. Consecutive sentences for serious offences against different complainants may be appropriate where the sentencing judge applies totality and ensures that the overall term is just and proportionate.

R v Osman Shears-Kargbo concerned renewed applications for leave to appeal against conviction and sentence following convictions at the Crown Court at Woolwich for three rapes.

The applicant challenged the refusal to sever counts concerning two complainants, the decision to discharge one juror rather than the whole jury, and the handling of a prosecutorial submission concerning his interview silence. He also contended that the extended and consecutive sentences were manifestly excessive and offended totality.

The Court of Appeal considered whether any conviction ground was arguable and whether the overall sentence was wrong in principle or manifestly excessive.

1. The court refused the renewed applications for leave to appeal against both conviction and sentence.

2. The trial judge reasonably refused severance. The complaints were linked because the defence case on one count relied on the applicant’s sister having knowledge of the other complaint. Any prejudice from a joint trial was addressed by directions on cross-admissibility. The severance ground was therefore unarguable.

3. The judge was entitled to discharge the individual juror who had recognised the applicant, rather than discharge the whole jury. The juror had not discussed the case with other jurors. The judge could also take account of the fact that one complainant had already given evidence and would otherwise have to repeat that experience before a new jury.

4. The prosecuting speech did not undermine the safety of the convictions. Although the applicant’s account had appeared in a defence statement, he had given evidence at trial about matters not mentioned in interview. The judge was entitled to leave the side issue until the summing-up and correctly direct the jury on the limits of any use of that failure.

5. The sentences were neither wrong in principle nor manifestly excessive. The judge correctly applied the relevant sentencing guidelines and sentenced within their ranges. The offences concerned a child and a vulnerable adult, and consecutive sentences for offences against different complainants were appropriate. The judge expressly applied totality and reduced the individual sentences to ensure a just and proportionate overall term. The extended sentence under Criminal Justice Act 2003 was not challenged.

• Court of Appeal (Criminal Division): renewed applications for leave to appeal against conviction and sentence refused: [2018] EWCA Crim 462.
• Crown Court at Woolwich: the applicant was convicted on 23 February 2017 of three offences of rape under Sexual Offences Act 2003 and sentenced on 24 February 2017.