R v ASN

An inaccurate prosecution document does not of itself require a jury to be discharged. The trial judge must decide whether the mistaken reliance upon it has caused unfair prejudice such that the defendant can no longer receive a fair trial. That assessment is fact-sensitive. Prompt correction, clear directions, the limited effect of the error on the defence case, and the defendant’s continuing ability to advance that case may avoid prejudice. On appeal, the question is whether the events cast doubt on the safety of the conviction.

The appellant was convicted at Swansea Crown Court of 22 historical sexual offences against three children. His defence was that the allegations were false and had been instigated by their mother for financial advantage following the parties’ separation.

A police schedule incorrectly recorded that text messages in which the mother accused the appellant of child abuse had been sent before the first disclosures. Defence counsel cross-examined her on that basis. The error was promptly identified and corrected: the messages had been sent on the day of the first disclosures. The judge refused an application to discharge the jury and gave directions addressing the error.

The appellant appealed, by leave of the single judge, contending that the refusal had caused an irremediable material irregularity and rendered the convictions unsafe. The judgment maintained anonymity in accordance with the Sexual Offences (Amendment) Act 1992.

1. Appeal dismissed. The judge correctly refused to discharge the jury. The governing question was whether defence counsel’s reliance on the inaccurate prosecution document had caused unfair prejudice such that the appellant could no longer receive a fair trial.

2. That question depended on all the circumstances. The error was an unintentional police mistake, not deliberate misleading. It was discovered almost immediately, verified before the jury heard further evidence, and corrected when the jury returned.

3. The judge gave clear and sympathetic directions. He explained that counsel had acted properly, directed the jury not to hold the cross-examination against either counsel or the appellant, and later repeated the direction in the summing-up. The jury could be expected to follow those directions.

4. The erroneous cross-examination did not alter the appellant’s overall defence. It was an additional point supporting his existing case that the mother had instigated false allegations. Her response did not add to or depart from her consistent denial of that allegation, and the appellant could give evidence without difficulty or embarrassment caused by the error.

5. The correction prevented the jury from proceeding on a false understanding of a discrete matter. It did not create unfairness which the directions could not cure. The complainants’ evidence was compelling and provided a clear basis for conviction. The events therefore cast no doubt on the safety of the convictions.

• Court of Appeal (Criminal Division) — by judgment dated 10 November 2022, [2022] EWCA Crim 1816, dismissed the appeal against conviction.
• Crown Court at Swansea — HHJ Walters and a jury convicted the appellant of all 22 counts after refusing the defence application to discharge the jury.