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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> White, R. v [2025] EWCA Crim 426 (26 March 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/426.html Cite as: [2025] EWCA Crim 426

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT SWINDON
(MR RECORDER BEBB) [U20230292]

		Royal Courts of Justice The Strand London WC2A 2LL
		26 March 2025

LORD JUSTICE WARBY:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. No matter relating to the complainant in the case shall during her lifetime be included in any publication if it is likely to lead members of the public to identify her as the complainant. She is entitled to lifetime anonymity. To preserve her anonymity, we shall refer to her as "C" and omit some details when setting out the facts.

The Appeal

2. On 29 February 2024, following a trial in the Crown Court at Swindon, Joshua White was convicted by a jury of one count of sexual assault of a child under 13. He was later sentenced by the trial judge to four years' imprisonment. He now appeals against conviction on one ground, for which the single judge gave leave. He also renews a ground of appeal against conviction for which leave was refused.
3. Both grounds focus on the way in which the judge summed up and directed the jury about the evidence. The two grounds raise the issue of whether the summing up was inaccurate, incomplete or unbalanced to such an extent or in such a way as to render the appellant's conviction unsafe.

The Facts

4. C is now 15 years of age. The prosecution case was that the offence occurred at around 7.30 pm on 15 July 2021, when C was 12. The appellant was at C's home. He was alone with her in her mother's bedroom. The mother was out. Two siblings were in the house, but in a different room. The appellant sat on the bed next to C and they played a computer game. She felt sleepy and put her head on the appellant's chest and closed her eyes. After a few minutes, the appellant manoeuvred her to a position on her back and proceeded to put both his hands inside her knickers, and moved them around upon her vagina. His fingers did not go inside her. She pretended to be asleep. The touching lasted for three to five minutes.
5. To prove these allegations the prosecution relied on the contents of a video recorded Achieving Best Evidence (ABE) interview given by C on 28 July 2021, and evidence from C's 12 year old friend, "D", and C's mother, of complaints made by C about the appellant on the evening of 15 July 2021, in which C said that the appellant had touched her "inappropriately".
6. The defence was that the alleged incident of 15 July 2021 did not happen. The appellant said that he had been close to C and her family. He was about to move away. C, affected by the imminent loss of her father figure, had invented the alleged incident of 15 July. C was cross-examined before trial pursuant to section 28 of the Youth Justice and Criminal Evidence Act 1999. The recording was played before the jury. In cross-examination C accepted that the appellant had a good relationship with C's family and with his own two daughters who were of a similar age. C also acknowledged that the appellant was shortly going to be moving away to live with one of his daughters. The appellant gave evidence in which he denied all the allegations.
7. The prosecution also adduced evidence about events alleged to have happened on 10 July 2021, including messages sent by C to D on Instagram and Snapchat on 11 July. The conduct alleged to have occurred on his earlier occasion was the touching of C's thigh while the two of them were watching a movie with one of C's siblings, and then moving into C's bed. The messages sent by C to D stated that she was "scared" and that she feared the appellant might be a "pedo". The prosecution case was that this was relevant as part of the factual background or context to the alleged offending; it was (in the statutory language) "to do with" the alleged facts of the offence. The defence did not take issue with that analysis. The defence case was that the alleged incident of 10 July 2021 did not happen either; C's evidence on this score was again an invention; or, alternatively, it involved C misconstruing what had happened.
8. The issue left to the jury by the trial judge was whether they were sure that on 15 July 2021 the appellant had put his hand down C's pyjama shorts and knickers, as she had described.

The Grounds of Appeal

9. The two grounds of appeal we have mentioned are both concerned with the way in which the judge summed up the evidence of C.
10. Ground 1 is that the judge's legal directions and his summing up were inaccurate and misleading as regards the alleged events of 10 July 2021.
11. In her ABE interview, after giving her account of what had happened on 15 July, C was asked if Josh had ever touched her before. She responded that he had touched her upper thigh before. She then described the incident of 10 July that we have outlined. C was then asked if the appellant had ever done anything else that had made her feel uncomfortable. She answered that on the same night he touched her thigh, about five or ten minutes later, he had tried to get into bed with her, saying, "I'm gonna come and sleep in the bed with you".
12. That account was given by C in the ABE interview some two weeks after the alleged offending. However, C had made no mention of the alleged attempt to get into her bed on 11 July when she messaged her friend D about what had happened the night before and about being scared that the appellant might be a paedo. And on 15 July, when C reported to her mother what the appellant had done on 10 July, she spoke about him touching her thigh, but she made no mention of his trying to get into bed with her. The evidence of C's mother was that the first time she heard that allegation was at the trial in 2024.
13. In his legal directions the judge said this about the events of 10 July 2021:

"As to the previous incident, [C] gave evidence that she had concerns about the behaviour of [the appellant] when she was on the sofa watching TV about a week previously, when she says he had touched her thigh and tried to hold her hand. This had caused her to leave the sofa, go to her room and message her friend [D]. On her own account [C] decided not to take her concerns further. You have heard evidence from [C] that she told her mother about this after the events of 15 July 2021 had occurred. This was confirmed in mother's evidence."

14. Later in the summing up, the judge referred to what had allegedly happened on 10 July as something that set off "warning bells". He reminded the jury again of C's evidence about the touching of her thigh, but he made no mention of C's allegation that the appellant had tried to get into her bed.
15. The appellant makes two complaints. First, it is submitted that the reliability of C's evidence was undermined by the fact that her ABE interview included a significant allegation against the appellant which C had not made before, despite clear opportunities to do so. This is said to have been an important point that should have been highlighted by the judge, but was not even mentioned by him. The importance of doing this is said to be all the greater, given the limitations on the ability of the defence to explore this point in cross-examination pursuant to section 28. Secondly, it is argued that the judge misdirected the jury about what C had told her mother about the 10^th July incident. C did tell her mother of the thigh touching, but she said nothing about the alleged attempt to get into her bed.
16. The single judge was not persuaded to grant leave to argue this ground of appeal, but it has been renewed before us today.
17. The second ground of appeal, for which the single judge did give leave, relates to the events of 15 July. This is a complaint about the way in which the judge responded to a jury question about the evidence. After deliberating for about three hours, the jury sent a note to the judge saying that they would "like to hear the part of C's interview that related specifically to the events of 15 July, including when C's mum arrived home". The judge identified the relevant passage as being pages 2 to 28 of C's edited ABE transcript and indicated his intention to respond to the jury's question by reading them that part of the transcript. Defence counsel expressed concern that this could be unfair and submitted that in order to achieve fair balance, the jury should also be reminded of the appellant's account given in evidence. It was suggested that the limited cross-examination under section 28 would not provide sufficient balance. There was said to be a risk that the jury would be unduly influenced by the impact of re-hearing C's narrative to the police. The judge responded:

"… the jury have asked me to do it, and I don't think I can say no."

In the event, he read out in its entirety the 28-page section of the transcript which we have mentioned, and some four pages of the transcript of the section 28 cross-examination.

18. The appellant complains that this was an unnecessary and inappropriate course of action which resulted in a significant and unfair imbalance in the summing up and undermines the safety of the conviction. It is also said that in circumstances where the jury had, in effect, heard C's evidence twice over, the judge should have reminded them of the burden and standard of proof.

Assessment

19. We have reflected on these points.
20. We accept that a jury could attach significance to the fact that in her ABE interview, C expanded the account of events she had previously given by adding a further and potentially serious allegation against the appellant. There was a discrepancy in her accounts. It was therefore open to the defence to highlight this point in cross-examination and/or to submit to the jury that it cast real doubt on the reliability of C's evidence. The mode of cross-examination did not in our judgment inhibit the defence. The judge was not bound, in our judgment, to give any legal direction about these matters. Nobody seems to have suggested that he should, and he did not. Although the passage of which complaint is made was contained in the legal directions, it was not in fact a direction of law. It was no more than a summary of one aspect of the evidence.
21. This was a split summing up with legal directions first, then final speeches, followed by a summing up of the evidence. In the second part of his summing up, the judge summarised the evidence very briefly. He did not directly quote any part of what the witnesses had said. He did not mention this aspect of the ABE interview. But he had already directed the jury that although he would be reminding them of some of the evidence, the facts were for them to decide. He opened his summary of the evidence by emphasising in conventional terms that it would be "very much a summary", and that if he missed something out, the jury should not read anything into it. The point in question had very recently been made in counsel's closing speech. At the end of his summary of the evidence, the judge asked defence counsel the conventional question of whether he had left anything out. The answer given was "No". Viewed in that light, we consider that the judge's summary of the evidence was unexceptionable. It was fair and accurate and not misleading either actively or by omission.
22. We therefore refuse the renewed application for leave to appeal on the first ground.
23. Turning to the second ground, we have found some assistance in the decision of this court in R v Rawlings and Broadbent [1995] 2 Cr App R 222. The issue in that case was whether, when a complainant's evidence in chief had been given by means of a video recording being put into evidence as an exhibit, it was permissible for the jury to view the recording again when in retirement. The judgment of the court was given by Lord Taylor CJ. The following passages are of some relevance to the present case:

"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. …"

Lord Taylor went on:

"In our judgment it is a matter for the judge's discretion as to whether the jury's request for the video to be replayed should be granted or refused. He must have in mind the need to guard against unfairness deriving from the replay of only the evidence in chief of the complainant. Usually, if the jury simply wish to be reminded of what the witness said, it would be sufficient and most expeditious to remind them from his own note. If, however, the circumstances suggest or the jury indicate that how the words were spoken is of importance to them, the judge may in his discretion allow the video or the relevant part of it to be replayed. It would be prudent where the reason for the request is not stated or obvious for the judge to ask whether the jury wish to be reminded of something said which he may be able to give them from his note or whether they wish to be reminded of how the words were said."

24. Later, Lord Taylor said this:

"If the judge does allow the video to be replayed, he should comply with the following three requirements:

(a) The replay should be in court with judge, counsel and defendant present.

(b) The judge should warn the jury that because they are hearing the evidence in chief of the complainant repeated a second time well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.

(c) To assist in maintaining a fair balance, he should after the replay of the video, remind the jury of the cross-examination and re-examination of the complainant from his notes whether the jury asked him to do so or not."

25. This is not a case in which the jury viewed the ABE recording twice. The decision in Rawlings was concerned with the admission of a recording under the Criminal Justice Act 1988, rather than under the currently applicable statutory provisions. We bear in mind also that the decision dates back some 30 years. It seems to us, nonetheless, that the reasoning is of some assistance in the present case and we have considered this ground of appeal in the light of the broad principles identified by the court in Rawlings.
26. The purpose of answering a jury question of this kind is to help the jury with some aspect of the case that is evidently troubling them. Here the jury was entitled to a reminder of the aspect of C's evidence about which they had raised a question. The judge would have been wrong to decline their request altogether. But he had to make a judgment about how to address it.
27. Read literally, the jury note was a request to hear the recording again. That would have amounted to the jury hearing exactly the same evidence twice over. Broadbent indicates that that may be permissible. But equally, the decision indicates that a judge is not obliged to take that course, even if it is asked for. The judge in this case was clearly entitled, as a matter of discretion, not to do so. Indeed, we think he was clearly right. It is rare for this course of action to be taken nowadays. In this case, an earlier note from the jury had asked to see the transcript of C's interview. That was refused; but the question indicated that the focus was on what the witness had said, rather than how it had been said. The judge had indicated in response that if the jury were particularly interested in a specific part of the evidence, he would read that. It is in that context that the jury asked the question we have quoted.
28. The request was to hear a substantial part of C's evidence. We are inclined to think that the better response, at least in the first instance, would have been to provide the jury with a somewhat fuller summary of this part of the evidence. Having done that, the jury might have been asked whether that was sufficient for their purposes or whether there was any specific aspect of C's evidence about the events of 15 July which they wanted to hear word for word.
29. However, the question is not whether the course of action adopted is the one that we would have taken. Nor is it a question of whether the option taken was or was not ideal. The issue is whether the reminder was given in a way that was unfair or unbalanced, so as to undermine the safety of the conviction.
30. If, as we have observed, the judge would probably have been entitled to replay the relevant video recording, if that had been the question, we do not think he can be criticised for taking the similar but lesser course of reading out the transcript. The propriety of doing that in this particular case seems to us to be supported by the fact that whilst this was a substantial portion of the evidence as a whole, the judge had summarised it only very briefly before sending out the jury to consider their verdict.
31. The effect of what was done was to give the jury an entirely accurate and complete account of this part of C's evidence in chief. The jury were also given a full and accurate account of the relevant cross-examination. The judge's approach was therefore consistent with the principles identified in Rawlings. It struck a fair balance between the two sides and presented the jury with the whole of C's evidence about the events of 15 July.
32. We do not consider that there was a need to go further and to provide the jury with a summary of the appellant's own evidence on the point. The general rule is that the judge should only answer the question which the jury has asked. Rawlings takes the matter a little further, but does not support the view that the defence evidence must be summarised as well. In this case, in the course of reading out the section 28 cross-examination, the judge expressly identified the passage in that cross-examination in which, as he put it, "the defence put their case".
33. We have considered the next question, which is whether some further direction was required. The appellant's case is that there should have been a reminder of the burden and standard of proof. However, it is normally sufficient for the judge to give a single legal direction on that issue, as was done here. That was set out in the legal directions document which the jury had with them in retirement. We can identify nothing in the circumstances of this case that takes it outside the norm so as to require a reminder of that direction.
34. We have additionally considered whether the judge should have given the jury a warning of the kind referred to in Rawlings. We do not think that was necessary. The guidance in Rawlings is not directly applicable to this case, which is not one where the video recording was played a second time. In any event, this was a simple case with a single factual issue for decision, namely: what happened on 15 July. The jury question shows that they were quite properly focusing their attention on that issue. In our judgment, in all the circumstances the jury did not need to be cautioned against attaching disproportionate importance to that part of the evidence. They were well aware that the defence case was one of denial. The defence case had been put in the course of cross-examination.
35. In these circumstances we are satisfied that the conviction is safe and that this appeal must be dismissed.