Jury Retaining Transcripts of ABE – Sothilingham [2018] EWCA Crim 2884

This was a case where Counsel argued that  the convictions were unsafe because the judge allowed the jury to retain a copy of the transcript of a complainants ABE interview in relation to a specific incident. He argued that there was neither a very good reason nor were there exceptional circumstances to justify the jury being allowed to retain the transcript. He submitted that it gave rise to the very danger on which this court has focused in the past, namely that the jury may have given disproportionate weight to the transcript particularly where he was unable to cross-examine the witness.

Held:

“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is given to the jury during the presentation of the evidence to help them understand it, it should usually be withdrawn from them before they retire.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.

It would have been preferable had the judge added a short direction warning the jury not to place undue weight on a transcript. However, we note that although the judge, as is common practice, circulated his proposed directions to the advocates, no-one suggested that he should include such a direction.”



Categories: Caselaw, Criminal Appeals

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