R v Michael McCafferty

A conviction is not rendered unsafe merely because inadmissible material was inadvertently heard by the jury. The decisive question is whether the trial judge’s prompt and clear direction enabled the jury to disregard it and try the case solely on admissible evidence.

Mixed verdicts do not of themselves show logical inconsistency. A jury must assess each count separately and may rationally be sure of some allegations but not others. Cross-admissibility directions are proper only where the jury is directed that apparent similarities have force only if the complaints are genuinely independent and any realistic possibility of mutual influence has been excluded.

The applicant was convicted at Derby Crown Court of six sexual offences alleged to have been committed between 1992 and 2005 against three complainants, who were children at the relevant times. He was acquitted of a number of other counts.

After a single judge refused permission, the applicant renewed his application for leave to appeal against conviction. He contended that inadmissible hearsay material was accidentally played to the jury, that the mixed verdicts were logically inconsistent, that the cross-admissibility direction was erroneous, and that the combined effect of those matters rendered the convictions unsafe.

1. The renewed application for leave to appeal against conviction was refused. None of the proposed grounds made the convictions arguably unsafe.

2. The inadvertent inclusion in C3’s recorded interview of other people’s adverse comments about the applicant did not require the jury’s discharge or render the trial unfair. The trial judge immediately identified the material, repeatedly directed the jury that it was not evidence, and required them to disregard it entirely. Both parties accepted the proposed remedial direction at trial. The applicant also received a conventional good-character direction. In the circumstances, the court was satisfied that the direction adequately cured the error.

3. The verdicts were not logically inconsistent. The jury had been properly directed that it had to be sure of guilt on each count and had to consider every count separately. There were identifiable evidential differences between the allegations, including evidence bearing on the complainants’ accounts and the timing of particular events. The convictions and acquittals were therefore consistent with careful application of the criminal standard of proof.

4. The cross-admissibility direction was safe. The judge made clear that similarities between complaints could support the prosecution only if the complaints were truly independent. The jury was specifically directed to exclude any realistic possibility that one complainant had consciously or subconsciously influenced another. That safeguard addressed the fact that two complainants were sisters and knew of each other’s allegations.

5. There was sufficient evidence on the counts of conviction for the jury to convict if sure of it. The evidence had been properly tested, the applicant had been properly represented, and there was no legal or procedural error capable of rendering any conviction unsafe, whether considered separately or cumulatively.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused after the single judge had refused permission.

• Crown Court at Derby: applicant convicted on 30 May 2022 of six sexual offences. Sentence was varied on 11 August 2022.