R v Ricky Malcolm Sharman

Section 78 of the Police and Criminal Evidence Act 1984 is directed to evidence which the prosecution proposes to give. Once admissible evidence has been adduced before the jury, it is generally too late to use that section to exclude it retrospectively. Later information may instead require a jury direction, further contextual evidence, or, if necessary, discharge of the jury. A court may reverse a terminating ruling where it was wrong in law or involved an error of law or principle, and where it was not reasonable for the judge to have made it. Speculation that other unexamined material might assist the defence does not, without identifiable prejudice, justify exclusion of otherwise admissible evidence.

The prosecution appealed under section 58 of the Criminal Justice Act 2003 against a terminating ruling made during the respondent’s trial on three attempted child-sex-offence counts. The prosecution case relied principally on messages exchanged with adult operators using fabricated child personas. The trial judge excluded the screenshots under section 78 of the Police and Criminal Evidence Act 1984, citing the absence of independent investigation of the operators’ devices, the unexamined phone of the respondent, and uncertainty about the completeness and context of the online exchanges. He directed the jury to return not-guilty verdicts, but the jury was discharged before doing so. The central issues were whether section 78 permitted retrospective exclusion after the evidence had been adduced and whether the ruling was legally erroneous or unreasonable.

Appeal allowed. The Court reversed the ruling and ordered that a fresh trial might take place in the Crown Court, preferably before a different judge.

1. Under sections 66 and 67 of the Criminal Justice Act 2003, the Court could reverse the ruling if it was wrong in law, involved an error of law or principle, or was not reasonable for the judge to have made.
2. The judge had proceeded unequivocally under section 78 of the Police and Criminal Evidence Act 1984. The wording of that provision makes it doubtful that it can be used to exclude evidence already given. The Court did not decide the precise boundaries of section 78. Where later evidence or information would have supported an earlier exclusion application, the possible responses include directing the jury, calling further evidence to place the challenged evidence in context, or discharging the jury if necessary.
3. On the facts, admissibility had not been challenged before the screenshots were placed before the jury. There had been no application to adjourn to obtain a full download of the respondent’s phone. It was therefore clearly too late to invoke section 78, whether on the defence’s application or on the judge’s own motion. The alternative common-law argument preserved by section 82(3) was not available because the judge had neither relied on that power nor heard submissions about it.
4. The judge had accepted, for the purposes of his reasoning, that the messages with the two supposed children were complete. The possibility of other online conversations was speculative and did not identify prejudice to the defence. Exclusion on that basis was not reasonable.

• Court of Appeal (Criminal Division): The prosecution appeal under section 58 of the Criminal Justice Act 2003 was allowed: [2023] EWCA Crim 607. The terminating ruling was reversed and a fresh trial was authorised.
• Crown Court: During the trial, the judge excluded the prosecution screenshots under section 78 and directed the jury to return not-guilty verdicts. The jury was discharged before returning verdicts.