R v Rawlings ; R v Broadbent
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 14 October 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J1014-24 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 93/5044/Z3 94/0250/Y3 |
| Date | 14 October 1994 |
[1994] EWCA Crim J1014-24
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Curtis and Mr Justice Gage
No. 93/5044/Z3 94/0250/Y3
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR ALASTAIR MALCOLM appeared on behalf of THE APPELLANT RAWLINGS
MR JOHN HILLIS appeared on behalf of THE APPELLANT BROADBENT
MISS JANICE BRENNAN and MR MICHAEL UPSON appeared on behalf of THE CROWN
Friday 14 October 1994
THE LORD CHIEF JUSTICEMr Justice Curtis is unable to be here today because he is on circuit, but he agrees with this judgment.
These two appellants were each convicted of sexual offences. In each case the evidence-in-chief of the complainant was given by playing to the jury the video recording of an interview with that complainant pursuant to section 32A of the Criminal Justice Act 1988 as amended.
The appellant Rawlings appeals against conviction by certificate of the trial judge which is in the following terms:
"Whether, when a complainant's evidence in chief has been given by means of a video tape pursuant to section 32A (2) of the Criminal Justice Act 1988, it is permissible for the jury to view the video recording again after they have retired to consider their verdict and, if so, upon what terms and conditions."
The Appellant Broadbent appeals with leave of the single judge. He raises the same point as was certified in Rawlings' case. Accordingly, although we heard each appeal argued separately, we now give our judgments in both together.
The point common to the two appeals is a novel one. It arises from the new mode of adducing a child's evidence-in-chief authorised by section 32(A) of the 1988 Act which was inserted by Section 54 of the Criminal Justice Act 1991.
The section provides as follows so far as is relevant:
"32A (1): This section applies in relation to the following proceedings, namely —
(a)trials on indictment for any offence to which section 32(2) above applies.
(which includes the sexual offences charged
in the present two cases).
(2)In any such proceedings a video recording of an interview which —(a) is conducted between an adult and a child who is not the accused or one of the accused "the child witness"; and
(b)relates to any matter in issue in the proceedings, may, with leave of the court, be given in evidence insofar as it is not excluded by the court under sub-section (3) below.
(3)Where a video recording is tendered in evidence under this section, the court shall (subject to the exercise of any power of the court to exclude evidence which is otherwise admissible) give leave under sub-section (2) above unless —
………………..
(c)The court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice, the recording ought not to be admitted;
………..
(5)Where a video recording is admitted under this section —
(a)The child witness shall be called by the party who tendered it in evidence;
(b) that witness shall not be examined in-chief on any matter which, in the opinion of the court, has been dealt with in his recorded testimony.
(6)Where a video recording is given in evidence under this section any statement made by the child witness which is disclosed by the recording shall be treated as if given by that witness in direct oral testimony.
………………..
and in estimating the weight, if any, to be attached to such a statement, regard shall be had to all the circumstances from which any inference can reasonably be drawn (as to its accuracy or otherwise)."
In any criminal trial, once the jury have retired to consider their verdicts, it is of course well established that no further evidence can be provided to them. If they wish to see an exhibit in the case, they are usually allowed to do so. Even an exhibit is not however automatically available or wholly available to the jury on request. For example, where a voluntary statement by the accused has had to be edited, so that the jury copies are incomplete, a request by the jury to see the original exhibit may be denied by the judge and properly so. He has a discretion under section 78 and under section 82(3) of the Police and Criminal Evidence Act 1984, to exclude evidence if its admission would lead to unfairness. He has, moreover, an overall duty to secure a fair trial.
When a jury wishes to be reminded of a witness's oral evidence, the conventional practice has been for the judge to read out to them the relevant part of his note of the witness's testimony, sometimes even the whole of it. The practice developed when there was no other record of the evidence apart from notes taken by judge and counsel. Even since shorthand writers became able to take a verbatim note of all questions and answers and produce a typed transcript, the practice has remained the same. The judge assists the jury from his notes. This is partly, no doubt, because the shorthand note will not usually have been transcribed when a jury in retirement requires help. But even if it has (e.g. by a daily transcript) or if a witness adopts a written statement as part of his or her evidence, it has been thought undesirable to give the jury in permanent form one part of the total evidence lest they give it disproportionate weight or attention. So, juries have had to make do with such help as is afforded by the judge's note (sometimes checked against or topped up by reference to counsel's notes). If all the jury require is to be reminded of some factual assertion by a witness or to resolve a dispute of recollection amongst themselves, this method usually suffices. But, it cannot, of course, recapture the manner and demeanour of the witness or the inflection of his or her speech. Until recently, there was no means of doing so.
However, a video recording, constituting a complainant's evidence in chief under section 32A, does capture and retain not only the precise words used but also the demeanour and vocal inflection of the witness. The question raised by this appeal is whether, if the jury while considering their verdict wish to view the video again, they should be allowed to do so.
In favour of allowing an "action replay", it is submitted that, on request, the jury should be given the most accurate and complete reminder of the witness's evidence which is available. When the evidence in chief is by video recording, it can be repeated to the jury exactly. They should not have to make do with the judge's selective paraphrase in his own voice. This is especially so if the jury wish to be reminded of the manner as well as the content of the complainant's replies or even of the interviewer's questions.
For the appellants, it was argued that to replay the video after conclusion of evidence, speeches and summing up, would give undue prominence to the complainant's evidence in chief. There would be no video of cross-examination to redress the balance. The reason for refusing to let a jury have transcripts of a witness's testimony has been and still is that one part of the total corpus of evidence should not be given disproportionate weight and importance.
Although in these two cases the defence objected to a replay of the video, there could clearly be cases in which the complainant made a poor impression in chief and the defence might welcome a replay of the video if the jury requested it. Pressed on this point, counsel for the appellant Rawlings maintained that, even with the concurrence of the defence, a video of evidence in chief should not be replayed to a jury in retirement. It was argued for both appellants that the purpose of section 32A was to minimise the stress and trauma to a child giving evidence in public. The procedure should not be used to permit doubling the impact of evidence in chief. Counsel fastened on the words of the section, "the recording shall be treated as if given by that witness in direct oral testimony". The customary way of treating direct oral testimony is for the judge to remind the jury of it from his note should they require a reminder.
Since the point is novel, there is no direct authority, but we were referred to cases concerning requests by a jury in retirement to have tape recordings of interviews with a defendant played to them. In Emmerson, 92 Cr App R 284, the defendant had been interviewed by the police three times. In his second interview, which was tape recorded, a police officer raised his voice and swore at the defendant. In the third interview, the defendant made admissions. After the summing up, defence counsel asked for the jury to be allowed to have the tape of the second interview with them when they retired. The trial judge refused, saying that the jury could not have the tape (although it had been played in court) but could only have had a transcript of it if there had been one, which there was not. Although this court dismissed the appeal, Lloyd LJ giving the judgment said:
"The tape is the evidence. When it is produced by the police officer…..it becomes an exhibit. We see no reason why the jury should not take it with them when they retire like any other exhibit in the case…..
In most cases, nothing turns on the tone of voice in which an interview is conducted. In such cases it will usually be sufficient for the jury to have a transcript, much of which can and should be summarised. …… But here, the tone of voice was all important. Subject to the point that the tape needed editing, we would hold that the judge erred in not letting the jury have the original tape".
In Riaz and Burke, 94 Cr App R 339, this court held that, subject to any necessary editing, a jury...
To continue reading
Request your trial
-
R v Saunders (Dennis)
... ... 23 This trial took place before the Court of Appeal had delivered its judgment in R v Rawlings & Broadbrent (as yet unreported) on 14th October 1994. The judgment of the Court in that case was delivered by Lord Taylor Of Gosforth The Lord Chief ... ...
-
R v Hagan
...same conclusion was reached in Riaz and Burke (1992) 94 Cr App R 339, Lord Lane CJ presiding. Mr Perry referred however to Rawlings (1995) 2 Cr App R 222 which concerned a video recording constituting the evidence in chief of a complainant alleging sexual offences and its replay after retir......
- R v Welstead
-
R v M(J)
...given in relation to the matter along the lines of those which have since been suggested by this court in R v Rawlings and Broadbent [1995] 1 WLR 178. 17 It is convenient to start from that point in considering these grounds of appeal. The case Rawlings was one in which the jury had themsel......