Neutral Citation Number: [2010] EWCA Crim 1230
Case No: 200804501 D3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 20 May 2010
 
B e f o r e:

LORD JUSTICE AIKENS 

MR JUSTICE ROYCE 
 
HIS HONOUR JUDGE WADSWORTH QC
(Sitting as a Judge of the CACD) 
__________________
R E G I N A 

v 

NICOLAE LUCIAN POPESCU 

__________________
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424 
(Official Shorthand Writers to the Court)
__________________
Miss A Mousley appeared on behalf of the Appellant
Mr S Wild appeared on behalf of the Crown 
__________________

J U D G M E N T 

1.	LORD JUSTICE AIKENS:  This is an appeal against conviction with the leave of the full court.  There is also a renewed application for leave to appeal against sentence, which we will deal with if that becomes relevant.  
2.	The appellant, who is now aged 27, is a Romanian national.  He was tried with three other young men, also Romanian, before HHJ King and a jury in the Crown Court at Snaresbrook in June and July 2009 on 18 counts of rape or aiding and abetting rape.  The appellant was convicted of five counts of rape and five counts of aiding and abetting rape.  Two co‑accused were convicted of two counts of rape and six counts of aiding and abetting rape.  The other co‑accused was convicted of one count of rape and seven counts of aiding and abetting rape.  
3.	The appellant was sentenced on 5 September 2009 to 11 years' imprisonment on each count on which he was convicted, all sentences to run concurrently the one with the other.  He was given credit for 305 days spent on remand.  He was also recommended for deportation.
4.	The facts giving rise to the case are as follows.  The complainant, a young Romanian woman whom we shall refer to as AR, met the appellant in London on a bus.  They started to go out together.  On Friday 2 November 2007, after the pair had known one another for about three weeks, the complainant went to the appellant's home in East London.  The appellant, his three co‑accused and several others were there and there was a party atmosphere.  The accused all drank alcohol, but the complainant did not.  After most had left the party, the appellant made advances to the complainant and some kissing and petting took place.  The appellant wanted the complainant to have sex with him, but she was reluctant.  He asked her why.  She said that there were several reasons; the first was because she wanted to know him better.  He pressed her on this issue, and then said that she was worried about HIV.  This incensed the appellant, who regarded the statement as an accusation that he himself had HIV.  He swore at the complainant, threw a beer can at her and the atmosphere changed.  
5.	A gang mentality appears to have developed and the young men present said that the complainant would have to permit the appellant to have sex with her before she would be allowed to leave.  All of them took part in pulling off her clothes, and the appellant tore off the complainant's knickers.  The accused together said things like, "Don't make it difficult for us or we will become real violent".  The appellant partially penetrated her.  This first part of the incident was photographed by one co‑accused on his phone camera.  
6.	There followed several vaginal and oral rapes on the complainant by all of the accused.  Eventually the accused all went to bed and the complainant managed to gather her things and she left.  She phoned the police on 999 as soon as she had left the flat.  
7.	The appellant was interviewed on 3 and 4 November 2007.  On the second day he made what was tantamount to a confession.  He conceded that AR was unlikely to have consented to the sexual intercourse with him or the other accused.  
8.	At the trial the prosecution relied principally on the evidence of the complainant.  She had been interviewed twice by PC Peter Humphreys at the Interview Suite of Plaistow Police Station on 3 and 4 November 2007.  AR gave her interviews in English.  The transcripts of the two interviews run to 62 and 76 pages respectively.  It is clear from the transcripts that AR's English is of a reasonable standard, although it is also clear from the transcripts that she searched now and again for words and phrases.  We have not seen the video, but we are told by some counsel that AR had an accent which was quite strong.  There are undoubtedly some errors of transcription from the recording to the transcripts, which were corrected at some stage in the proceedings.  
9.	AR gave her evidence in chief in the form of these interviews via a video.  They are known as "Achieving Best Evidence" or ABE interviews.  They are admissible under section 27 of the Youth Justice, Police and Criminal Evidence Act 1999, provided that an application has been made for "special measures" pursuant to that Act and Part 29 of the Criminal Procedure Rules.  There is no doubt in this case that AR would fall within the ambit of section 17(4) of the 1999 Act and so be eligible for "special measures" directions.  The application for "special measures" was made by the Crown on 7 January 2008.  There was, we understand, no objection to AR's evidence in chief being given via the video of the ABE interviews.  
10.	The interview videos were played to the jury on 26 June 2008, that is three days after the trial had started.  At some stage during the evidence of AR the jury were given copies of the transcripts of her two ABE interviews.  All counsel involved in the trial have been asked by this court to state, in writing, their recollection of the reason why and when the jury were given the transcripts.  There is no consensus on precisely when the jury were given the transcripts.  It may be that they were given them so that they could better follow the evidence in chief of AR, because she spoke in English with a pronounced Romanian accent.  It may be that the transcripts were only given to the jury when counsel for the appellant started his cross‑examination in order that he could more easily direct his cross‑examination.
11.	After the interviews had been played, counsel for the prosecution asked on 30 June 2008 for leave to put further questions in chief to the witness.  Leave was granted.  
12.	Counsel for the appellant, not Miss Mousley who appears today, then cross‑examined AR.  He used the transcripts to provide references for his questions.  The cross‑examination lasted until lunchtime on 1 July, and numerous passages in the transcripts of the ABE interviews were drawn to the attention of AR in the course of the cross‑examination.  Thereafter counsel for the other accused also cross‑examined AR, some doing so by reference to the transcripts.  In the middle of this exercise the evidence of Dr Penny Robshaw, a registrar specialising in obstetrics and gynaecology who had examined AR, gave her evidence.  After the evidence of AR had finished, other witnesses were called by the prosecution and then the accused gave their evidence.  The evidence finished on 11 July 2008.  
13.	None of the counsel in the trial can recall the judge making any order for the transcripts of the AB evidence to be retrieved from the jury once AR had finished her evidence, or at any time thereafter during the evidence.  The judge sought some help from counsel on the law after the evidence had been completed.  Therefore speeches only began on 14 July 2008.  It appears that there was no discussion at that stage about the ABE interview transcripts.  During his speech, counsel for the appellant drew the attention of the jury to many passages in the transcripts of the ABE interviews.  Other counsel for the co‑accused also did so, and used various passages of the transcripts as the basis for submissions that they made to the jury.  
14.	The judge began his summing‑up on 15 July 2008.  We are quite satisfied that the members of the jury had the ABE interview transcripts in their possession at the time of counsel's speeches and throughout the judge's summing‑up.  The judge refers to the ABE interview transcripts on at least ten occasions in the early part of his summing‑up, where he is dealing with each of the 18 counts and reminding the jury of what (on the prosecution's case and AR's evidence) was comprised in each count.  Then at page 58E of the transcript, before the judge turns to his summary of the evidence of AR, the judge specifically states this: 
"As I recollect it ‑ again with counsel's agreement ‑ you have retained the ABE interview ... and I have referred to them with page references in the course of my summing up so far."
15.	Then the judge went on to make this statement to the jury: 
"Please, members of the jury ‑‑ and I implore you to do this as I have every confidence that you will ‑‑ do not regard that transcript in isolation to other evidence.  You must consider that transcript of      [AR's] evidence in the context of not only her evidence as a whole, but the whole of the evidence in the trial.  That would be the right, fair and proper way to go about it.  That transcript of her video interview is but part of the evidence in the case and that is the way in which you should see it, that it is part, but only part, of the evidence in the case." 
16.	The judge then reviewed the evidence of AR, but without making any references to the transcripts of the ABE interviews at all.  There are substantial references to both the content of her interviews and the extensive cross‑examination to which AR had been subjected by counsel for the accused.  
17.	The judge completed his summing‑up on 17 July 2008.  The jury then retired.  They returned their verdicts on the 18 counts on the afternoon of Friday 18 July 2008.  All the verdicts were unanimous.
18.	There is some doubt, even now, as to whether all the jury did actually retire with the ABE interviews.  We are satisfied for the purposes of this appeal that they did.  
19.	The single ground of appeal is that the verdicts against this appellant are unsafe because the judge permitted the jury to keep their copies of the ABE interviews throughout the trial and then to retire with them.  There was, apparently, no discussion at any stage about the propriety of this course.  However, at least it can be said that all counsel must have been aware of the fact that the jury had kept their copies until the end of the summing‑up and had been allowed to retire with the transcripts.  
20.	As part of the submission of Miss Mousley, it is also said that the judge failed to give any proper direction to the jury as to why they were being permitted to retire with the transcripts.  It is accepted that the judge made some remarks, but it is submitted that that was not nearly strong or pointed enough.  Further, the judge is criticised for failing properly to direct the jury as to the use to which they could properly put the transcripts.
21.	The submission of Miss Mousley on behalf of the appellant is that all these failings constitute such a material procedural irregularity in respect of part of the trial that was so important, that the trial for the appellant was unfair and that accordingly the verdicts against him cannot be regarded as safe.  In that regard, Miss Mousley refers us to the decision of the Privy Council in Randall v the Queen [2002] 2 Cr App R 17 at paragraph 28 per Lord Bingham of Cornhill.
22.	As we have already noted, section 27(1) of the YJPCEA 1999 grants the court the power to admit a video recording of an interview as evidence in chief of a witness in respect of whom a "special measures" direction has been given.  But neither that section nor the Criminal Evidence Rules deal with the issue of whether the jury can or should be given a transcript of the interview video, or, if it can, in what circumstances and when and why the jury can keep such a transcript after the evidence has been given.  
23.	However, in R v Welstead [1996] 1 Cr App R 59, this court dealt with the question of whether it was right for a judge to permit a jury to have a transcript of an ABE interview during the period when the interview was being played as evidence in chief.  Evans LJ, giving the judgment of the court, reviewed a number of cases, in particular R v Rawlings and Broadbent [1995] 1 WLR 178, where the issue was whether a jury could view a video again after retiring.  Evans LJ also referred to R v Coshall, The Times, 17 February 1995, which is also a decision of this court.  That case dealt with the very issue that has arisen in this case.
24.	In Welstead, this court held that the judge was entitled to allow the jury to have copies of the transcript during the evidence in chief: see page 69.  However, the court said that certain circumstances had to be met before that could be done.  Those conditions were set out in Evans LJ judgment at page 69 as follows: 
"First, that the transcripts would in fact be likely to assist [the jury] in following the evidence of the witness in question.  Secondly, that [the judge] made it clear to them that the transcripts were made available to [the jury] only for that limited purpose, and that they should concentrate primarily on the oral evidence.  The transcripts were not the child's evidence in the case.  Thirdly, that [the judge] gave them such directions, both at the time and in the summing‑up, as would be likely to be effective safeguards against the risk of disproportionate weight being given to the transcripts, which arises when the jury are allowed to take them into their retiring room and which applies to a limited extent to these circumstances also." 
25.	Those conditions reflect the concern that this court has had about permitting a jury to have transcripts of a witness' evidence in chief.  The concern is that the prosecution might thereby obtain a procedural and evidential advantage, which would mean that the trial was unfairly weighted against the defendant.  
26.	This concern exercised Lord Lane CJ over the replay of video recordings in the case of R v Rawlings and Broadbent.  The Lord Chief Justice in that case emphasised the need to guard against unfairness deriving from the replay of video recordings after the jury had retired, because it was only the evidence in chief of the witness concerned that was portrayed in the video recording.  Lord Lane said that the replay after retirement should only be permitted in court with the judge, counsel and the defendant present.  Further, he said that the judge should direct the jury to guard against the risk of giving the evidence in chief shown on the video disproportionate weight, and should bear well in mind the other evidence in the case.  Lastly, Lord Lane CJ said that if the video was replayed, the judge should remind the jury of the cross‑examination and re‑examination of the witness from his notes.
27.	In R v Coshall, the trial judge had ruled that the jury could have a transcript of the video recording during the complainant's evidence and the jury retained the transcript throughout the remainder of the trial, including their retirement.  It appears that the evidence in chief on the video constituted virtually the whole of the prosecution case.  
28.	Unfortunately, we do not have the transcript of the judgment given in the case of Coshall, which was delivered by Pill LJ.  A sizeable extract of the judgment in Coshall was quoted in Welstead, and we think we should quote from the case of Welstead (page 67) where the relevant parts of Coshall are set out:  
"The court [in Coshall] held that the need to maintain a fair balance 'exists equally upon the supply to the jury of the transcript of the video tape' as when a video tape is to be replayed to the jury.  Unless the defence consented, 'it appears to us to follow from the decision in Rawlings and Broadbent that it will not generally be appropriate for the jury to be supplied with a transcript.  We do not intend in this judgment to attempt to predict all possible situations and appropriate reactions to them.' There was a serious risk in that case of disproportionate weight being attached to one part of the evidence, namely, the complainant's evidence in chief, if the jury had the transcript with them when they retired." 
29.	In its summary of the principles in Welstead, the court said at point 4, on page 68 of the report: 
"If a transcript of the video‑recorded interview is available, the jury should not normally be permitted to take it with them when they retire, unless the defence consents: Coshall.  This is because there is no effective safeguard in such circumstances against the jury giving that part of the child's evidence disproportionate weight." 
30.	In the subsequent case of R v Morris [1998] Crim LR 416, the jury was permitted to retire with the transcript of the video evidence with the defence's consent.  On appeal, the conviction was quashed because the judge had given no warning as to prevent the disproportionate weight being given to the transcript.  It was held in that case that: 
"even in cases where there had been consent by the defence, or, as in the present case, the transcript had been introduced in the first instance at the suggestion of the defence, it was incumbent on the judge to give warnings to the jury which would prevent their giving disproportionate weight to the transcript; that consideration should always be given to what should happen once the evidence had come to an end and it was rarely that the jury should be permitted to retire with the transcript of the evidence and then only if they had received an appropriate warning; and that, the judge having summed up the evidence of the complainant much more fully than that of the defence without having given the jury the appropriate warnings, the convictions were unsafe."
31.	So far as counsel have been able to discover, there are no more modern cases dealing with this issue since the "special measures" regime has been in force.  
32.	It is submitted on behalf of the appellant that, in this case, the evidence of the complainant was central to the case.  We agree.  It is also submitted that her credibility was central to the case.  We agree.  It is therefore submitted that the jury should not have been allowed to retire with the transcripts of her ABE interviews, which amounted to he her evidence in chief, even if there was no objection from defence counsel at the time.  Alternatively it is submitted that at least the jury should have been given a clear explanation from the judge as to why they were to keep the transcripts upon retirement, and the jury should have been given clear warnings by the judge against giving the transcripts disproportionate weight.  
33.	It is said that the jury should have been warned also not to use the transcripts for any other purpose than to remind them of the evidence in chief of the complainant.  It is said that if there was a possibility that the transcripts were to be retained by the jury upon retirement, then that should be discussed with counsel before speeches and the summing‑up, and the judge should have taken care to ensure that the cross‑examination or examination of the complainant or any other relevant witnesses was summed up fully to the jury.  
34.	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: see Randall v the Queen [2002] Cr App R 17 at page 28 per Lord Bingham of Cornhill.  The question in this case is whether that right was infringed so as to render the verdicts against the appellant unsafe.
35.	We venture to suggest some general comments before coming to the particular facts of this case.  First, the general rule must be that great care must be taken before a jury is given transcripts of an ABE interview at all, even whilst the video is being shown.  It should only be given to the jury after there has been discussion of the issue between the judge and counsel in the absence of the jury, and it should only be done if there is a very good reason for it, eg the evidence would be difficult to follow on the screen or the audio quality is very poor.
36.	Secondly, if the transcripts are given to the jury, we suggest, first, that the judge must warn the jury then and there to take care to examine the video as it is shown, not least because of the importance of the demeanour of the witness in giving evidence.  Thirdly, the transcript should, save perhaps in very exceptional circumstances, be withdrawn from the jury once the ABE video evidence in chief has been given.  Again, if the jury is to retain the transcripts during the cross‑examination, this possibility must be given positive thought before it is done, and should, if possible, be discussed in the jury's absence before the start of the evidence in chief, if practicable.  If the jury are to retain the transcripts, the reasons why the jury are being permitted to do so should be explained to them.  
37.	Fourthly, if the transcripts are retained during cross‑examination, then they should be recovered once the witness had finished his or her evidence.  The general rule must be that the jury should not thereafter have the transcripts again.  
38.	Fifthly however, it must be for a very good reason.  It must be discussed with counsel in the jury's absence and the judge should give a ruling on it.  Sixthly, the jury should not, except perhaps in exceptional circumstances, be permitted to retire with the transcripts.  Those exceptional circumstances will usually only be present if the defence positively wants the jury to have the transcript and the judge is satisfied that there are very good reasons why the jury should retire with the transcripts.  
39.	If the jury is to do so, it must again be the subject of discussions with counsel and a specific ruling from the judge.  The judge must explain to the jury, in the course of his summing‑up, why they are being allowed the transcripts and the limited use to which they must put them, viz. to aid them to understand the evidence in chief of the relevant witness and, if it be the case, that the defence wants the jury to retain the transcripts.  If this course is adopted, then it is incumbent upon the judge to ensure that the cross‑examination and re‑examination of the witness is fully summed up to the jury, and the jury must be specifically reminded that they must take all that evidence into consideration in their deliberations, and must not be over‑reliant upon the evidence in chief.
40.	We suspect that the procedural course of events in this case are most unusual.  We hope so.  Having examined all of the material put before us, we are satisfied that the appellant's counsel wished to use the transcript for the purpose of making points that were thought to be advantageous to the appellant, both in cross‑examination of AR and in his closing speech.  It is also clear that other counsel took the same view.  It is clear that counsel for the appellant used references in the transcripts to make his points, both in cross‑examination and in his closing speech, and that those points would have been difficult if not impossible for the jury to follow if they did not have the transcripts before them, either at the relevant point in cross‑examination or in the closing speech of counsel, or indeed when they retired.  
41.	Therefore, we are satisfied that, in practice, the jury had the transcripts principally because the appellant and his co‑accused wanted the jury to have them.  That is why no one made any complaint about the jury having the transcripts at any stage.  The judge used the transcripts in the course of his summing up only to identify precisely the points in the evidence in chief of AR in relation to each of the 18 counts that the jury had to deal with on retirement.  AR's evidence was effectively the prosecution case.  The judge undertook this exercise without objection from any defendant's counsel.  The judge did give the jury a careful warning about not looking at that transcript in isolation from other evidence.  
42.	We are also satisfied that the judge was also careful to give a full and proper summary of the cross‑examination and re‑examination of AR.  He also summarised the evidence of all the accused's responses to AR's evidence.  
43.	The judge did not expressly consider the issue of whether it was right for the jury to retire with the transcripts, although everyone must have known that was going to happen, and it did happen and no one objected.  Despite that fact, and despite the lack of a particular ruling on that issue by the judge, when we consider the particular facts of this case overall, we are satisfied that the prosecution did not have any unfair procedural or evidential advantage in this case.  We are therefore satisfied that the appellant did have a fair trial.  
44.	We have also to make the obvious remark that the case against this appellant was very strong.  Accordingly, we conclude that the verdicts are safe.  This appeal against conviction must be dismissed.   

(Submissions in relation to sentence follow)
45.	LORD JUSTICE AIKENS:  The application for leave to appeal against sentence has been referred to the full court by the registrar.  
46.	The applicant was sentenced after a trial to 11 years' imprisonment as a determinate sentence.  The judge, in passing sentence after the trial, said that the applicant must bear the greatest responsibility in the case.  The judge said that he had introduced AR into the company of his co‑accused, and that the applicant had, in the judge's words "given her over to them and then invited them to do what they would with her, and they did". 
47.	The judge continued his sentencing remarks by saying: 
"You brutalised that young woman, and for that reason and the reasons I have already explained you must take the lion's share of responsibility."  
On the basis of that, the 11‑year sentence was passed.  
48.	On behalf of the applicant, Miss Mousley submits that, when one looks at the guidelines in the Sentencing Guidelines Council's table on the sentences to be given for rape offences, this offence falls within the second category in the table at page 25 of the SGC's report.  She submits that the sentencing range falls within six to eleven years' custody.  
49.	We cannot accept that submission.  This was a case in which there was a repeated rape by this applicant of the same victim.  Admittedly it was all on one occasion, but it was done in circumstances which were degrading in the worst possible way for this unfortunate young woman.  Moreover, it was this appellant who, in the judge's words, "gave over" this unfortunate victim to his co‑accused and then invited them to do what they would with her, and they did.
50.	In those circumstances, we can see absolutely nothing wrong with the sentence that the judge passed.  The application is therefore dismissed. 
51.	MR WILD:  My Lord, may I just mention, your Lordship asked me to try and get Coshall ‑‑ 
52.	LORD JUSTICE AIKENS:  I did, but we had no success.  
53.	MR WILD:  I was successful, and the office, I had hoped, would send it through to you.
54.	LORD JUSTICE AIKENS:  All we got was the same Times report, but no transcript. 
55.	MR WILD:  We got the real thing, but Welstead summarises it spot‑on.  
56.	LORD JUSTICE AIKENS:  Indeed, it does.  Thank you very much.