Jury Keeping a Copy of the ABE – Sothilingham [2018] EWCA Crim 2884

This case involved a re-trial in relation to murder and wounding with intent . It is unecessary dwell too much on the facts but there arose an issue whether the ABE of a deceased witness in which he accused the Defendant of another wounding with intent should be made available to the jury , in the context of material adduced by the defence which may have created a misleading/false impression .

The Judge allowed the Jury as part of his directions to retain the ABE with regard to the specific evidential matter .

The Court is dismissing the Appellants Appeal noted the following general proposition

Second, we endorse the observations in Popescu, based as they were on previous decisions that have stood the test of time. Thus, it is the duty of the trial judge to ensure that a defendant receives a fair trial and no unfair advantage is given to the prosecution. In most cases it will not be necessary for the jury to be given a transcript and a trial judge should only agree to such a course after careful consideration. If a transcript is given to the jury during the presentation of the evidence to help them understand it, it should usually be withdrawn from them before they retire. If the jury is given and/or allowed to retain a transcript, the judge should give the jury clear directions on how they should approach it.

We should add this in relation to those principles. It is right to acknowledge that the conduct of trials has moved on considerably since the decisions considered in Popescu. It is now common practice to give juries written directions, routes to verdict, and written summaries of agreed facts and omissions. Juries are trusted to abide by the judge’s directions and approach those summaries appropriately. Furthermore, if any juror is adept at note-taking, they may well take with them to the jury room a virtually verbatim written note of the evidence or, of course, a jury may invite a judge to repeat his or her summary of the evidence. However, the principles expressed in Popescu do still apply where a trial judge allows contentious evidence to be put before the jury in written form and although they do not relate directly to the appeal before us, they provide us with some general guidance.

The Court concluded that the unusual circumstances that arose allowed the Judge to make that decision although it would have bene preferable for the Judge to have given the Jury a warning on the danger of over reliance on the transcript .

It seems therefore that the general rule still applies and transcripts should not be left with the Jury in retirement , however there may be cases where such a course of action with safeguards is warranted .

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