Jurors should decide a case only on evidence that has been properly admitted at trial and the judge's legal directions. If material reaches the jury room by mistake, the question is whether an error occurred; the appeal court will have to decide whether the error renders the conviction unsafe.
In JEH v R [2025] EWCA Crim 1757, a digital card intended to contain CCTV also held the complainant's full video recorded interview. The Court of Appeal treated this as a fundamental irregularity, quashed the convictions and ordered a retrial.
What went wrong in JEH?
The complainant in a sexual-offence trial gave evidence-in-chief through a video-recorded police interview and was then cross-examined. When the jury retired, it received a data stick and capture card so that it could view CCTV. The recording equipment had apparently not been stopped at the correct point, with the result that the capture card also contained the complainant's complete interview.
Everyone agreed that the interview should not have gone into the jury room. The jury had already seen it in court, but unrestricted access during deliberations created a different problem: it allowed one part of one witness's evidence to be replayed privately and repeatedly, without the balance supplied by cross-examination, legal submissions or a judicial direction.
Why can repeated access be unfair?
While juries are commonly given exhibits when they discuss their decision, a witness's recorded evidence-in-chief is different. In R v Popescu [2010] EWCA Crim 1230, the Court of Appeal warned that leaving a transcript or recording of one witness's evidence with the jury can give that evidence disproportionate weight and create an imbalance between the prosecution and defence.
If jurors properly ask to see or hear recorded testimony again, the normal course is for the judge to remind the jury what was said both in the video recording and when the witness was cross-examined. This ensures that neither side’s account is unfairly emphasised.
Does every mistake make a conviction unsafe?
No. In fact, it is very difficult to overturn a conviction. Under section 2 of the Criminal Appeal Act 1968, the Court of Appeal only allows an appeal against conviction where it considers the conviction unsafe.
An irrelevant duplicate document that is discovered and removed before deliberations will be harmless. A highly prejudicial allegation, an inadmissible interview or a recording that gives one witness special prominence may be much more serious. The strength of the rest of the evidence matters, but it does not automatically cure a defect that has distorted the fairness of the trial process.
Why not just ask the jury if they watched the recording?
In JEH, the prosecution suggested using the Court of Appeal's fact-finding power under section 23A of the 1968 Act so that the foreperson could be asked whether the jury had viewed the interview. The court declined.
A simple yes-or-no answer would not reliably show whether the file had been opened accidentally, how much had been viewed, whether several jurors watched it or what part it played in discussion. An enquiry after the event also risked entering the protected territory of jury deliberations and producing an incomplete or misleading answer. The court would not speculate that the recording probably went unseen.
Why were the convictions quashed?
The complainant's credibility and reliability were central to the case. The jury had uncontrolled access to her evidence-in-chief but not to the cross-examination that tested it. No one knew whether or how the recording had affected deliberations, and the risk could not be reconstructed satisfactorily after the verdicts. The Court of Appeal regarded that combination as a fundamental irregularity that called the safety of the convictions into question.
Quashing a conviction is not the same as an acquittal. Where a fair second trial remains possible and appropriate, the Court of Appeal may order a retrial. That was the course taken in JEH.
How Chetwode can help
Chetwode Criminal Defence Solicitors can advise on irregularities arising during a Crown Court trial and on potential appeals after conviction. We can identify what material reached the jury, obtain the necessary records and assess whether the error could have affected the verdict. This article provides general information and is not a substitute for advice on the facts of an individual case.