Baines, R. v

A conviction is not unsafe merely because inadmissible material was mentioned before a co-accused pleaded guilty, provided that the jury are clearly directed to decide only on the evidence adduced at trial. The adequacy of directions is assessed as a whole and in their procedural context. A judge need not repeat or elaborate a warning when doing so would needlessly draw attention to excluded material, particularly where counsel sought no further direction.

If the jury ask whether material is evidence, an unambiguous answer that it was not adduced and must not be considered can put the matter beyond doubt. An appellate court will not ordinarily revisit a tactical decision not to seek discharge of a jury where it resulted from the defence's own assessment and not Crown misconduct or unfairness.

The appellant was convicted of murder at Mold Crown Court after a joint trial with David Woods. Woods pleaded guilty to murder during the fourth day of the trial. Before that plea, the prosecution opening had referred to covertly recorded prison conversations in which Woods had implicated the appellant. The related transcripts and Woods's defence case statement were then removed from the jury bundle.

The trial continued before the same jury because the defence made a tactical decision not to seek its discharge. In his closing speech, defence counsel mistakenly referred to the prison conversations. The judge corrected that error in an agreed direction. When the jury asked whether the conversations were available in evidence, the judge answered that they were not and that the jury must decide the case only on the evidence heard in court.

The appeal challenged the adequacy of those directions and the safety of the conviction.

1. Appeal dismissed. The conviction for murder was safe. The jury were not misdirected and there was no basis to suppose that they relied on Woods's prison conversations as evidence against the appellant.

2. The recorded conversations were never adduced in evidence. Their earlier mention in the prosecution opening did not alter that position, since counsel's speeches were not evidence. After Woods pleaded guilty, the associated material was removed from the jury bundle. The judge adequately explained that the removed material related to Woods and not to the appellant. Although another judge might have said more, no further direction was required or sought at that stage.

3. The summing-up properly directed the jury to decide only on the evidence before them. It also made clear that there was no direct evidence that the appellant committed the offence and that the prosecution case was circumstantial. The judge was right not to rehearse the content of inadmissible conversations, as that could have drawn unnecessary attention to material which was not evidence.

4. When defence counsel mistakenly referred to the conversations in closing, the judge corrected the error in agreed terms. The subsequent jury question showed a need for confirmation, not a continuing misapprehension. The judge's unequivocal answer that the conversations were not in evidence and that the jury must proceed on the evidence heard in court put the matter beyond doubt.

5. The court also rejected the suggestion that the defence's decision not to seek discharge of the jury could found an appeal. The decision was tactical and based on the defence's own assessment. The Crown had not misled the defence, and material not in evidence could not legitimately influence the decision whether to seek discharge.

• Court of Appeal (Criminal Division): dismissed the appeal and upheld the murder conviction.

• Crown Court at Mold: convicted the appellant of murder on 26 April 2018 and imposed life imprisonment with a minimum term of 26 years, less time spent on remand.