Ahmed Qasem v Regina

Save for administrative matters unconnected with the trial, communications from a jury must ordinarily be disclosed in open court. Counsel should normally be permitted to see a jury note if they ask to do so. The principle applies to relevant jury comments as well as questions, and to notes received before retirement as well as afterwards.

Failure to disclose material notes may render convictions unsafe where it deprives counsel of a fair opportunity to assess the issues troubling the jury, pursue evidence, adapt cross-examination, make submissions, or reconsider the conduct of the case.

The applicants were convicted at Snaresbrook Crown Court of rape following allegations that they had taken advantage of a complainant who was heavily intoxicated. Each maintained that the sexual activity was consensual.

They appealed against conviction on the ground that the trial judge had not disclosed a number of jury notes, including notes containing comments on the evidence. They also renewed an application concerning the exclusion of proposed evidence under section 41 of the Youth Justice and Criminal Evidence Act 1999.

The central issue was whether the undisclosed jury communications constituted material irregularities that rendered the convictions unsafe.

1. The appeals against conviction were allowed. The handling of the jury notes involved material irregularities which rendered the convictions unsafe.

2. The court followed the principles in R v Andriamampandry (2003) 147 S.J. 871 and Gorman [1987] 85 CrApp R 121. A judge may deal without reference to counsel with an administrative communication unconnected with the trial. In almost every other case, the nature and content of the communication should be stated in open court. If counsel ask to see the note, they should normally be allowed to do so.

3. The rule extends to jury comments relating to the trial. A comment may affect how counsel question witnesses, address the jury, make submissions, or otherwise conduct the case. Relevant communications should not ordinarily remain private between judge and jury. Transparency is required so that justice is done and seen to be done.

4. A number of notes had not been disclosed, read out, or communicated to counsel. They concerned material matters, including the effect of intoxication, missing CCTV, the complainant’s movements, and the significance of a possible third participant. Counsel were consequently deprived of the opportunity to address those matters in an informed and fair way. The irregularities were therefore material, not trivial.

5. It was unnecessary to determine the renewed section 41 application. The court nevertheless observed that the proposed questions concerned the complainant’s sexual behaviour and had to satisfy section 41. The behaviour relied upon was of a different kind, arose in a different context, and was separated in time from the alleged offending. The trial judge had been entitled to exclude it.

• Court of Appeal (Criminal Division): Allowed the applicants’ appeals against conviction and held that material irregularities in the non-disclosure of jury notes rendered the convictions unsafe: [2019] EWCA Crim 2245.

• Snaresbrook Crown Court: Qasem was convicted of two counts of rape and Oppong of one count of rape. Qasem received concurrent sentences of 13 and 15 years’ imprisonment; Oppong received 13 years’ imprisonment.