R v BHB

Discharging a criminal jury is exceptional. It requires an evident necessity or high degree of need, and remains a discretionary power to be used sparingly. If a trial can proceed fairly after some counts are withdrawn, it should continue.

On a submission of no case to answer, the prosecution evidence is taken at its highest and the question is whether a properly directed jury could properly convict. Inconsistencies in a child witness’s recollection of dates or locations ordinarily affect credibility rather than automatically eliminating a case. Evidence about withdrawn counts may be used only for clearly defined credibility or descriptive purposes. Late disclosure is an error, but safety depends on its actual impact in the case as a whole.

The appellant was tried before a jury at the Crown Court at Luton on seven sexual-offence counts. Three counts were withdrawn after inconsistencies emerged between the complainant’s account of dates and locations. The appellant was convicted by majority verdict on the four remaining counts.

The appeal raised seven grounds concerning discharge of the jury, the submissions of no case to answer, exclusion of opportunity evidence, directions concerning the withdrawn counts, alleged jury speculation, and late disclosure of pre-assessment interview notes. The central issues were whether the trial could fairly continue with the existing jury, whether the remaining evidence was sufficient, and whether the disclosure failure rendered the convictions unsafe.

Appeal dismissed. The court held that the convictions were safe and that the trial had not been materially unfair.

1. Discharge of the jury. A jury should be discharged only where an evident necessity or high degree of need has arisen. The power is discretionary and must be used sparingly. The authorities, including R v Charlesworth (1861) 1 B&S 460 and Winsor v R (1866) LR 1 QB 390, supported that approach. The trial judge was entitled to withdraw the unsustainable counts and continue with the remaining counts, which could be tried fairly.
2. No case to answer. The correct question was whether a properly directed jury, taking the prosecution evidence at its highest, could properly convict. The inconsistency about dates and locations affected the complainant’s credibility but did not make the evidence incapable of supporting the remaining counts. Her evidence, together with the other prosecution evidence, was sufficient for the case to proceed.
3. Excluded evidence and jury directions. Evidence about whether the appellant had an opportunity to offend in London was irrelevant to the remaining counts, all of which concerned Hertfordshire, and was properly excluded. It would have created a distracting side issue. The jury could nevertheless use the evidence relating to the withdrawn counts for credibility and for the limited descriptive purpose of assessing whether similar acts occurred in the remaining counts. The directions, read with the summing-up, clearly prevented the jury from treating the withdrawn counts as matters for conviction. The absence of the word speculation did not render the directions inadequate.
4. Disclosure. The pre-assessment interview notes were disclosable under section 3(1)(a) of the Criminal Procedure and Investigations Act 1996, and their late disclosure was an error. Following the approach in R v Gohil [2018] EWCA Crim 140 and distinguishing the materially different circumstances in R v Akle and another [2021] EWCA Crim 1879, the court assessed the practical impact of the failure in the case as a whole. The defence knew of the inconsistent accounts, the issue was put before the jury, and the complainant could have been recalled for further cross-examination. The appellant was not materially disadvantaged and the convictions were not unsafe.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed. The court upheld the trial judge’s decisions on jury discharge, no case to answer, evidence, jury directions and disclosure.
• Crown Court at Luton: The appellant was convicted by majority verdict on four counts after three counts were withdrawn from the jury. The judgment gives no citation for the Crown Court decision.