Law Report: Video tape may be replayed to jury: Regina v Rawlings; Regina v Broadbent - Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Curtis and Mr Justice Gage), 14 October 1994

A video recording, constituting a child complainant's evidence in chief under section 32A of the Criminal Justice Act 1988, may, at the trial judge's discretion, be replayed to the jury after it has retired to consider its verdict if the jury wishes to be reminded of how, rather than what, words were said. If a video is to be replayed, the replay should be in court, the jury should be warned against giving it disproportionate weight and reminded of the cross-examination and re-examination of the complainant.

The Court of Appeal dismissed an appeal by Royston George Rawlings against convictions in Winchester Crown Court for buggery and indecent assault and allowed an appeal by Timothy Charles Broadbent against conviction in Sheffield Crown Court for indecent assault.

Rawlings was charged with buggery and indecent assault against a child.

Broadbent pleaded guilty to gross indecency with a child and was also charged with indecent assault. A video of each child's interview with the police was used as his evidence in chief.

The appellants appealed against conviction on the ground that a video of evidence in chief should not be replayed to a jury in retirement.

Alastair Malcolm (Registrar of Criminal Appeals) for Rawlings; Janice Brennan (CPS) for the Crown; John Hillis (Registrar of Criminal Appeals) for Broadbent; James Baird (CPS) for the Crown.

LORD TAYLOR CJ said when a jury wished to be reminded of a witness's oral evidence, the conventional practice had been for the judge to read out the relevant part of his note. Even if the evidence had been transcribed or a witness adopted a written statement, it had been thought undesirable to give the jury in permanent form one part of the total evidence lest it be given disproportionate weight or attention.

A video recording captured the demeanour and vocal inflection of the witness. The video tape could properly be made an exhibit. But whether it was made an exhibit or not could not be conclusive as to whether the jury could have it replayed.

It was a matter for the judge's discretion as to whether to grant a jury's request for the video to be replayed. 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 wished to be reminded of what was said, it was be sufficient to remind them from his own note. If, however, the jury indicated that how the words were spoken was important, the judge might, at his discretion, allow the video to be replayed. It would be prudent for the judge to ask whether the jury wished to be reminded of something said or of how the words were said.

If the judge did allow the video to be replayed, he should comply with three requirements: The replay should be in court with judge, counsel and defendant present.

The judge should warn the jury, because it was hearing the evidence in chief of the complainant a second time after all the other evidence, to guard against giving it disproportionate weight and to bear in mind the other evidence.

He should remind the jury of the cross-examination and re-examination from his notes.

In Rawlings' case, the judge's discretion could not be faulted. The appeal against conviction was dismissed. In Broadbent's case, the judge went too far and decided that simply because the video was an exhibit the jury could have it.

Ying Hui Tan, Barrister