R v JEH

LORD JUSTICE DOVE: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

Additionally, for the reasons which we will shortly be explaining, we have reached the conclusion that this matter has to be the subject of a retrial and therefore this judgment is also subject to an order made pursuant to section 4(2) of the Contempt of Court Act 1981 postponing publication of any report of these proceedings until the conclusion of the retrial in order to avoid a substantial risk of prejudice to the administration of justice in those proceedings.

On 2 December 2025 in the Crown Court at Winchester the appellant was convicted of a count of attempted rape, contrary to section 1(1) of the Criminal Attempts Act 1981 and a count of rape, contrary to section 1(1) of the Sexual Offences Act 2003.

On 9 December 2025 following the disclosure of further matters which will be set out shortly, the trial judge issued a certificate that the case was fit for appeal in accordance with section 1(2) of the Criminal Appeal Act 1968. It is consequential upon the granting of that certificate that the matter comes before us as an appeal against conviction. Sentence in this case has been postponed pending the outcome of these proceedings.

The circumstances of the facts relating to the charges on the indictment are of limited importance in relation to the issues which we have to determine. However the essence of the prosecution case was that on 27 June 2025 the appellant encountered the complainant in this case at a nightclub in Portsmouth. The complainant had attended the nightclub with her friend, arriving at around 23:45. The appellant interacted with the complainant and this was illustrated on CCTV footage which was available in the trial.

In the early hours of 28 June 2025 the complainant and the appellant left the nightclub and they were accompanied by the complainant's friend and a friend of the appellant. The four of them travelled to the appellant's student accommodation.

The central focus of the prosecution case was the evidence of the complainant. Her evidence-in-chief was given by way of a video recorded statement which was played to the jury following which she was cross-examined.

In her evidence the complainant said that she had been drinking and she recalled going to the student accommodation. She said that once there the appellant began to touch her inappropriately and attempted to take off her dress. She said that she wanted to leave with her friend but the appellant dragged her into his room and once in there he pushed her onto the bed. He covered her mouth to stop her from screaming and again tried to take off her clothes.

The complainant escaped to the bathroom but the appellant pursued her into the bathroom and attempted to rape her in the shower. This was the conduct charged as count 1. During the struggle in the bathroom the complainant knocked her head and blacked out and the next thing she remembered was being on the appellant's bed where he raped her. This was the conduct involved in count 2. When the appellant had finished raping her, he permitted the complainant to leave.

On the evening of 28 June 2025 the complainant reported the matter to the police. In addition to the evidence of the complainant, the prosecution also relied on evidence adduced from her friend about the night out and the events at the student accommodation. In addition to the CCTV evidence from the nightclub and the student accommodation, there was also forensic evidence in the form of the results of a medical examination of the complainant on 29 June 2025 when a mixed DNA profile was obtained from semen obtained by swabs from her body. The DNA profiles of both the complainant and the appellant were represented in this mixed profile.

On 29 June 2025 the appellant was arrested and interviewed but he answered no comment to all questions from the police.

The appellant gave evidence at trial and explained that he had met the complainant in the nightclub and that they had got on well. She had agreed to come back to his accommodation and after they had been kissing in the communal area of the accommodation he suggested that they go to his room. He denied dragging the complainant and said that she came willingly. Once in his room the appellant said that they had showered together before having consensual sexual intercourse on his bed.

At the close of the evidence, the judge provided unimpeachable legal directions to the jury on the approach they had to take to various issues arising in the case and the questions which they needed to answer in order to return lawful verdicts. Notwithstanding the important details of those instructions it will be apparent from our brief synopsis of the evidence in this case that the central issues of what happened in the appellant's student accommodation and whether the sexual intercourse which occurred was consensual critically depended on the jury reaching conclusions as to whether or not they could be sure that the complainant's account was one which was reliable in respect of the central features. The success or failure of the prosecution case depended critically upon the jury's view of the complainant's evidence in the context of all of the evidence which they received, including that of the appellant.

When the jury came to retire to consider their verdicts they were provided with a data stick, also known as a "capture card", on which all of the material that they had viewed during the trial from the CCTV footage played was provided to them.

After the jury had returned their unanimous guilty verdicts on counts 1 and 2, it was discovered that the capture card provided to the jury had erroneously also contained a copy of the complainant's video recorded interview. It is not altogether clear how this came about but it appears likely that there was an error on the part of the person operating the digital media system and that the recording device which creates the capture card was not stopped after the CCTV had been played and before the commencement of the playing of the complainant's video recorded interview.

However it came about, it is accepted on all sides that the jury ought not to have been provided with the complainant's video recorded interview for the purposes of their retirement. In the case of R v Popescu [2010] EWCA Crim 1230 this court considered the propriety of permitting a jury to have transcript of a video recording which were standing as a witness's evidence-in-chief. At paragraph 25 of the judgment, Aikens LJ records the concern that permitting a jury to have transcripts of a witness's evidence-in-chief, in particular in retirement, would give rise to the concern that the prosecution might obtain a procedural and evidential advantage leading to the trial being unfairly weighted against the defendant. In particular, at paragraph 26, Aikens LJ records the concerns expressed by Lord Lane CJ in R v Rawlings and Broadbent [1995] 1 WLR 178 that replaying of video-recorded evidence after the jury have retired should only be permitted in court with the judge counsel and the defendant present and it should always be accompanied by the judge reminding the jury of the cross-examination and re-examination of the witness's evidence. The court then went on at paragraphs 35 to 39 to provide some observations in relation to the issues that arise pertaining to video evidence and the use of transcripts of an ABE interview as follows:

It follows to us that in the light of this authority it is clear that it was wholly inappropriate for the jury to be provided with the complainant's video recorded interview amongst the video media that they were provided with for the purpose of their deliberations. It seems to us that this proposition is and must be entirely uncontroversial.

In their Respondent's Notice, the respondent has reiterated the point that they raised with the judge in respect of whether or not to certificate the case as fit for appeal should be granted. The Respondent’s contention is that the problem which has arisen can be cured by the court contacting the jury foreman and asking whether in fact the jury accessed the video recording of the complainant's interview and watched it as part of their deliberations. If they did not then there can have been no unfairness to the appellant and the appeal can be dismissed. On the other hand if they did review that material then plainly there would have been unfairness which would require a retrial.

During the course of his oral submissions this morning, Mr Mason has developed further points from the Respondent's Notice in a little greater detail. He has submitted that both in his opening to the jury and also in the judge's observations when the jury had this material played to them, they were provided with what he described as an implied direction in the form of the judge and him explaining that this will be the only opportunity that they would have to see the video recorded interview of the complainant. He also draws attention to the fact that there was a relatively lengthy blank period on the capture card between the CCTV footage (which was properly for their review) and the video recorded ABE interview. He draws attention to the fact that no jurors reported the irregularity of the ABE interview being on the capture card notwithstanding what he and the judge had said, and draws these threads together to form the submission that the court can be confident that in fact the jury did not review the video recorded interview.

We have considered these submissions but in truth they amount to nothing more or less than speculation. In reality there were no formal directions about this material because nobody knew that the video recorded interview was going to be incorporated on the capture card and therefore there was no need for any formal direction. What was said by Mr Mason in opening his case and the judge prior to receiving this evidence did not amount to any satisfactory direction which could resolve the clear and important irregularity which has occurred in this case. The submissions in relation to the blank period on the capture card and the absence of any note from the jury on the topic of the contents of the capture card engage in speculation about what may or may not have happened in the jury room which it would be inappropriate to embark on.

Fundamentally, all of these submissions arise in the face of the clear injunction from the case of Popescu as to the very limited nature of the opportunity for any jury to have access to material of this kind in the jury room. We reject Mr Mason's suggested distinctions between this case and that of Popescu based on the fact that Popescu was concerned with transcripts and this was a video recording. That in our judgment is an immaterial difference. What is clearly important are the principles which were set out in paragraph 26 and the paragraphs which we have quoted, which clearly identify that a serious irregularity occurred in the present case.

In truth and on analysis, the effect of Mr Mason's submission as to the fallback enquiry of the foreman is to invite the court to exercise its power under section 23A of the Criminal Appeal Act 1968. This provision closely reflects the observations made by this court in R v Adams [2007] All ER 25 as to the strict control over any inquiry into what has transpired whilst a jury has been considering its verdicts. Section 23A of the 1968 Act provides as follows:

A number of points should be noted at this stage. First, it is clear from the language of section 23A that this court has a discretion as to whether or not to direct an investigation by the Commission. Secondly, albeit for different reasons, this court indicated in R v Baybasin [2013] EWCA Crim 2357, following R v Lewis [2013] EWCA Crim 2596 that great care must be exercised before directing an inquiry of this kind. Those were cases of jury irregularities alleged after the delivery of verdicts in which the contents of the alleged irregularities were contentious and required jurors to give evidence and so different in kind and substance from the case which we are considering.

However, the facts of Baybasin are perhaps a salutary lesson in how investigations of this kind can generate more heat than light, and the observation in paragraph 63 of that judgment that jurors "doing their public duty should not in such circumstances be put through an examination of their conduct some considerable time after the performance of their civic duties" is of some relevance to the exercise of our discretion.

Having considered the circumstances of this case, we have reached the conclusion that, first, the ordering of the investigation sought by the respondent would not be "likely to result in the court being able to resolve" the question raised; and secondly, in any event, we should decline to exercise our discretion to order the investigation. Our reasons are as follows. We agree with the trial judge that the course suggested to us by the respondent is fraught with difficulty. Ordering the Commission to question the foreman of the jury about the availability of the recording of the complainant's video-recorded interview is not in our view a satisfactory means of resolving the issues which arise in this appeal. First, the formulation of the question to establish what, if any, role the availability of the complainant's video-recorded interview may have played in the jury's deliberations is not as straightforward as the respondent suggests. To address the issues of fairness, the investigation would need to establish not only whether the footage was viewed but also whether it played a part in the jury's discussions. It may have been viewed accidentally. Even if a satisfactory formulation of the question could be arrived at, it is easy to contemplate that the question suggested by the respondent may not be capable of the simple binary answer which they suggest would be forthcoming.

Secondly, as the judge observed, confronting the jury foreman with this issue may give rise to a feeling that the jury had done something wrong and may prompt an inaccurate or a misleading answer. Whilst there has not been an extensive passage of time since the deliberations, there may be understandable concerns about depending upon the answers of the foreman in circumstances where the role of the appellant at this stage is limited. It is clear that the appellant whose convictions would hinge upon the outcome of the answer to this question would understandably lack confidence in this being an entirely satisfactory means of determining his appeal.

In short, in these circumstances the integrity of the trial process cannot be satisfactorily preserved in respect of such a central issue by the process contemplated by the respondent. As the trial judge observed, this is a fundamental irregularity which inevitably calls into question the safety and validity of the verdicts which the jury returned. These are also powerful reasons why the court's discretion to order an investigation in this case should not be exercised.

In considering our discretion and the issues which arise under section 23A, we have obviously taken account of the very unfortunate and inevitable outcome of this conclusion that the matter will have to be retried, but no other appropriate solution is available. We recognise and have taken account of the impact of a retrial on those who have to participate in it, in particular the complainant who will have to face going through giving evidence again. These factors have weighed heavily upon us but the integrity of the trial process in a serious case of this kind is obviously of critical importance.

We therefore allow the appeal against conviction, quash the convictions on counts 1 and 2 and direct that there will be a retrial. The arrangements in relation to that we can address at the conclusion of this judgment.

However, before leaving this appeal, it is appropriate to remark on how the situation came about in the first place. It appears that trial counsel issued instructions in relation to which elements of the video material was to be played to the jury and which had to be captured and that the judge and counsel made it clear, as has already been observed, that the jury would not have the ability to review the complainant's video-recorded interview whilst in retirement. These observations are insufficient to obviate procedural irregularity in this case. In our view whilst the court obviously bears the initial responsibility for capturing the video media that has been played to the jury during the course of the trial, and which they are entitled to have in retirement, that does not absolve the parties in the case from the responsibility of ensuring prior to the jury's retirement that the material which they are going to be provided with to play in retirement is accurate. This, we consider, requires that counsel should be given the opportunity to check the material which is going to be provided to the jury in retirement to ensure that there is nothing extraneous or untoward that has found its way into the compilation of material for the jury to use.

Whilst the Respondent's Notice suggests that the only means of doing so is by playing back footage in open court, it is to be hoped that there would be other more simple and practical measures that could be brought to bear to enable this to take place without obstructing the other duties that the court has to undertake. There is no reason why as part and parcel of checking the video equipment and media that are going to be provided to the jury when they retire that such an audit could, for instance, be undertaken by counsel of the material which the jury will have in retirement so as to ensure both that the equipment works effectively and the jury have the correct material for them to view. Given the difficulties which have been experienced in this case, taking this relatively simple precaution appears to us to be only sensible and proportionate.