R v Jannick Jensen

A conviction will not be rendered unsafe by late disclosure where further inspection time was adequate and there was no evidential basis for a wider disclosure exercise. Decisions about whether to discharge a juror after contact with another juror are evaluative and may properly stand where there is no reason to think the second juror was influenced.

Fresh grounds alleging deficient representation must identify matters capable of showing that the conduct of the trial made the conviction unsafe. Tactical choices, immaterial matters, and complaints with no realistic prospect of affecting the verdict do not meet that standard.

The applicant was convicted at Woolwich Crown Court of two counts of assault by penetration and one count of rape. The central issue at trial was consent.

He renewed his application for leave to appeal against conviction after a single judge had refused permission. His original grounds concerned disclosure, access to the complainant’s phone download, and the judge’s refusal to discharge a second juror after contact between jurors. As a litigant in person, he also sought to advance further complaints about his representation and aspects of the evidence and prosecution closing speech.

The court considered whether any alleged irregularity or omission rendered the convictions unsafe, and whether the proposed further grounds were reasonably arguable.

1. All applications were refused. The original grounds did not show that the convictions were unsafe. A more extensive disclosure exercise was not required: the parties had not previously been in contact, there was no evidence that the complainant had told anyone that sexual contact was consensual, and the trial judge gave adequate time for the late material to be examined at court.
2. The decision not to discharge the second juror was within the trial judge’s evaluative judgment. There was no basis to conclude that the second juror had attended to, or remembered, anything said by the discharged juror. The judge followed the applicable Criminal Practice Rules and Direction when addressing the jury issue.
3. The proposed new ground disclosed no arguable failure by trial counsel capable of making the convictions unsafe. The evidence of the complainant’s and her friend’s loss of memory and illness was part of the relevant factual matrix. Counsel’s decision not to pursue whether the complainant was menstruating was sound. The Haven Clinic note that the complainant had met a man and gone home with him was not proof of consent and could rationally have been avoided for tactical reasons.
4. The complaints about the prosecution’s closing speech had no, or only very limited, evidential value when assessed against the complainant’s account and supporting evidence. Any objection would have been refused.
5. Permission to add further grounds, an extension of time, and transcripts were refused. The further grounds were not reasonably arguable, had no realistic prospect of success, and the transcripts were unnecessary.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused; permission to add further grounds, an extension of time, and transcript requests also refused ([2023] EWCA Crim 1706).
• Crown Court at Woolwich: following trial, the applicant was convicted on 25 May 2022 of two counts of assault by penetration and one count of rape. He was sentenced on 27 May 2022 to six years and ten months’ imprisonment for rape, with concurrent five-year terms for assault by penetration.