Tuesday, 21 February 2012

Achieving Best Evidence - Transcripts

Crown Court - Snaresbrook
In a criminal trial, certain witnesses may be allowed to have their evidence-in-chief presented in video recorded form.  When this is done, it may take the form of recordings of interviews prepared in accordance with "Achieving Best Evidence" (ABE) guidance.  There will also be a written transcript of such interviews.  Should the jury be shown such a transcript?

The recent case of R v Aamir Sardar [2012] EWCA Crim 134 has reminded criminal lawyers of principles relating to transcripts laid down by the Court of Appeal in R v Popescu [2010] EWCA Crim 1230 - which, itself, brought together decisions of earlier cases.

In Aamir Sardar's case, there was a failure by both prosecution and defence counsel and also the Recorder to follow the principles set out in Popescu as to (a) the circumstances in which transcripts of an ABE interview should be shown to the jury and (b) the warnings to be given to the jury if the transcript is shown.

The principles set out in Popescu may be summarised as:

1.  Great care should be taken before a jury is shown a transcript of an ABE interview at all, even while a video is being shown, and that they should only be shown a transcript if there is "very good reason for it", such as the difficulty of following the interview without it..

2.  The judge should warn the jury at the time the transcripts are given to the jury so that they are focussed on the recording of the interview rather than on the written word.

3.  Except in "very exceptional circumstances", the transcript should be withdrawn from the jury once the evidence-in-chief has been given.   The jury should only retain the transcripts during cross-examination if defence counsel requires those transcripts as an aid to cross-examination. There will be cases in which it is permissible to allow the jury to see a transcript if there are points defence counsel is seeking to make which cannot be followed.

4.  Transcripts should be recovered once the witness has finished giving evidence. 

5.  The jury should only be shown the transcripts again for a very good reason and the judge should rule as to whether there is such a reason.

6.  Only in exceptional circumstances should the jury retire with the transcripts. Usually that will only be if the defence takes the view that it is necessary for the jury to have the transcript and the judge is satisfied that there are "very good reasons" to justify that course.

In Sardar, the jury retired with the transcript of the ABE interview which had been treated as evidence-in-chief when neither counsel dissented.  The Court of Appeal said that there were serious errors both in letting the jury see the transcript, in letting them retain it, and in failing to direct them as to the dangers of giving disproportionate weight to the transcript as opposed to their impression and assessment of the witness herself.   The court took the view that the appellant was deprived of safeguards essential to the fairness of his trial and so the appeal was allowed.

The concern of the Court of Appeal is that the jury may give the transcript disproportionate weight as opposed to either the video recorded evidence or other evidence in the case.  However, subject to the trial judge's ruling in the particular case, the jury might be permitted to have the transcript.  In that event, the judge is expected to give appropriate direction to the jury.

The traditional English criminal trial depends very much on witnesses giving their evidence orally in open court and recorded evidence-in-chief is therefore an exception.  It is permitted by statute: Youth Justice and Criminal Evidence Act 1999 s.27.  The general view of lawyers is that the demeanour of the witness is important - not only what they say but how it is said.  If a jury were to give disproportionate weight to the transcript, the prosecution might gain a "procedural and evidential advantage" and the trial would be "unfairly weighted against the defendant."  In Randall v the Queen [2002] Cr App R 17, Lord Bingham said - "The practices and safeguards which have been developed in relation to the use of transcripts by the jury are all founded on one central principle, which is the right of the defendant in a criminal trial to have a fair trial, with no unfair procedural or evidential advantage being given to the prosecution. If this right to a fair trial has been infringed, then the verdict cannot be regarded as safe, however strong the case is against the accused."

The extent to which demeanour assists in assessing the credibility of a person's evidence is something which can be debated - see, for example the speech by the Australian Judge McLellan (Chief Justice of New South Wales) - "Who is telling the truth?  Psychology, Common Sense and the Law."  Whether our trial system places sufficient faith in the jury is yet another debate.  We want ordinary men and women to decide whether those accused of serious crime are guilty or not guilty and yet we have extensive rules controlling what they may or may not see.  The Popescu rules are cautious and perhaps that is right.  The case against Popescu was strong and the Court of Appeal had no trouble dismissing his appeal despite there being many breaches of the practice relating to transcripts set out in the decided cases at that time - see paras. 40 to 44 of the judgment.

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