Neutral Citation Number: [2010] EWCA Crim 1337
Case No: 200905569/C2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 19th May 2010
 
B e f o r e:

LORD JUSTICE THOMAS 

MR JUSTICE OPENSHAW 
 
MR JUSTICE MACDUFF 
__________________
R E G I N A 

v 

KENNY BROWN
 
__________________
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: 020 7831 8838
(Official Shorthand Writers to the Court)
__________________
Mr M Turner appeared on behalf of the Applicant
Mr R Stevens appeared on behalf of the Crown 
__________________
J U D G M E N T 

1.	LORD JUSTICE THOMAS:  On 6th July 2008 there was an altercation in a street in Harlow between the appellant, his co‑defendant, Natalie Thompson, and Lyndsey Miller.  Lyndsey Miller was hit, receiving bruises and marks to her skin which are visible on the photographs which have been supplied to us.
2.	Natalie Thompson and the appellant were charged with assault occasioning actual bodily harm.  Natalie Thompson pleaded guilty.  The appellant said that the attack was the responsibility of Natalie Thompson and pleaded not guilty.  He was therefore tried before His Honour Judge Ball QC in the Crown Court at Chelmsford in September 2009.  He was unanimously convicted after a retirement of about an hour and sentenced to 2 years custody.  He appeals against conviction by leave of the single judge.  
3.	The short issue relates to whether, in the light of the plain irregularity that occurred during the trial, the conviction can be considered safe.
4.	The Crown's case was that the appellant and Natalie Thompson attacked Lyndsey Miller when she was sitting in a car with her son, then aged 8.  She gave evidence to that effect, saying that the appellant had hit her with a stick.  She rejected the account put to her that it was Natalie Thompson who had been the principal person concerned.  She said two women came to look after her son; they subsequently gave evidence.  
5.	Her son, although he was young, gave evidence to much the same effect.  He also phoned the police.  The jury had a transcript of his 999 call.  
6.	The two women who gave evidence were sisters, one was Melanie Edwards.  She was driving along the road, saw a parked car at a strange angle and saw a boy who was upset.  She then saw a man and woman attacking a woman on the ground.  She saw a man throwing away a stick.  She asked her sister to call the police.
7.	Her sister, Wendy Carter, also gave evidence about the attack and in the course of her evidence said the appellant had a stick.
8.	The appellant and Natalie Thompson both gave evidence to the effect that Lyndsey Miller was drunk, had caused the incident and that he had not been guilty of the offence charged.  
9.	It was a relatively straightforward case, turning on credibility where there was strong independent evidence to support the case against the appellant.
10.	Unfortunately, when the judge summed‑up the case, and when he came to summarise the evidence of Wendy Carter he reminded the jury of the suggestion made by the defence that she might, with her sister, have colluded in making up the evidence as she was a friend of Lyndsey Miller, the complainant.  He then read to them a 999 call transcript and asked them whether this supported the evidence of Wendy Carter that she did not know the complainant, Lyndsey Miller.
11.	At the end of the summing‑up the judge asked counsel, before he was to give the last formal directions, whether there was anything that they wished to raise with them. Very responsibly counsel asked to address him in the absence of the jury.  In the absence of the jury they pointed out that the judge had made a mistake. The 999 call transcript between Wendy Carter and the police had not been put in evidence or referred to.  The only 999 transcript was that between the 8 year old boy and the police.  It was an unfortunate error that the judge made.  He then asked counsel what he should do about it and, if we may say so, they gave him, in short, a great deal of assistance.  He decided that what he should do was not to discharge the jury, as asked for by counsel for the appellant but he should give them a warning.  He then called the jury back into court and said:  
"A couple of final matters, members of the jury; first of all, I have got to address a mistake I have made. A little while ago, when summing‑up the evidence in relation to Mrs Carter, I referred to a 999 call transcript which had never been put in evidence, I am told.  
It is absolutely essential that when considering your verdict in this case, you only do so on the evidence you have heard and you must not, absolutely not, allow my inadvertent reference to that 999 call and reading a part of the transcript, you must not use that in any way in your deliberations.  
That is an absolute prohibition because you have not heard it in evidence and it has not been tested.  Put it to one side.  There is plenty of other material to work with.  Please disregard that; that is an error, but it is an error which, in my judgment, is not so grievous that it means we go back and start all over again.  
It is essential that defence must have confidence in knowing that when judging the case against him, you put that matter out of your minds. Do so."   
Then he went onto give the usual final directions to the jury.
12.	If we may say so, the argument has been put in this court by the appellant's counsel, Mr Turner, with attractiveness, clarity and a considerable economy of words that is highly commendable.  He has rightly identified the two short points that arise:  Was the judge's warning strong enough?  In all the circumstances in the case, is this a case where we can be satisfied, bearing in mind all the evidence, that this is a safe conviction?
13.	It is without doubt clear that the judge made an error which amounted to an irregularity, but that is not sufficient.  We must address the two questions.
14.	The first question we therefore have to address is:  was the judge’s warning strong enough so the jury could be trusted to do what the judge told them, namely put it out of their minds?  The second question we then have to consider:  well, if we can be sure that they did that, or if we can be reasonably confident they did that, was there evidence in the case that was strong enough that supported the conviction so that it could be considered safe? 
15.	It is, from time to time, in the way in which jury trials work, the case that errors are made.  It is often within the judge's discretion to decide:  well that was an error, we can trust the jury to get the right verdict, despite the error.  Or:  we better start all over again.
16.	In our judgment, the judge took the right decision in this case, having heard the evidence, that this was a case where the jury could carry on and they could put it out of their minds if told to do so.  It has been suggested that a jury could not perform the mental gymnastics necessary.  We do not think that the phrase "mental gymnastics" is one that is properly applicable.  What the jury were asked to do, as they are always asked to do, was to decide the case on the proper evidence before them.  If they are told there is one piece of evidence they cannot rely on, in our judgment, the jury can be trusted to follow that direction.  It is not difficult, in the circumstances of this case, to put such a simple matter out of their minds.  It did not go, in our judgment, to a central issue.  It really only went to a conversation that in some respects, as has been helpfully pointed out to us, could be seen to be double edged.
17.	The second question is:  what about all the other evidence in the case?  It seems to us that there was a very strong case against this appellant.  The accounts given by the complainant and her 8 year old son were broadly consistent and there can, on a full analysis of the evidence, be little doubt that the two witnesses were people who were unknown to Lindsey Miller.  There is obviously a question as to whether they might have had a chat or colluded about their evidence, but looking at it overall, we cannot see that that is a serious issue in this case.
18.	Therefore, weighing up, on the one hand, the strength of the case, and secondly, the error that the judge made, and thirdly, the direction that the judge gave, we are satisfied that this is a safe conviction.  We would therefore uphold the conviction and dismiss the appeal.  In doing so, again, we would like to commend both counsel for the appellant, who has argued the case extremely well and counsel for the Crown who has put the matter with great economy.  We are grateful to you both.