The defendants appealed convictions for conspiracy to import cannabis resin. The prosecution had been refused consent to present certain evidence, but the judge went on later to refer to material from the excluded evidence in his summing up.
Held: The appeals succeeded. The inadvertent reference to the evidence was of such importance to the central issues as to be incapable of correction even by strong judicial direction.
Auld LJ set out the principles to be applied after the improper admission of potentially prejudicial evidence: ‘Whether or not to discharge the jury is a matter for evaluation by the trial judge on the particular facts and circumstances of the case, and this court will not lightly interfere with his decision. It follows that every case depends on its own facts and circumstances, including: 1) the important issue or issues in the case; 2) the nature and impact of improperly admitted material on that issue or issues, having regard, inter alia to the respective strengths of the prosecution and defence cases; 3) the manner and circumstances of its admission and whether and to what extent it is potentially unfairly prejudicial to a defendant; 4) the extent to and manner in which it is remediable by judicial direction or otherwise, so as to permit the trial to proceed. We repeat, all these matters and their combined effect are very much an evaluative exercise for the trial judge in all the circumstances of the case. The starting point is not that the jury should be discharged whenever something of this nature is put in evidence through inadvertence. Equally, there is no sliding scale so as to increase the persuasive onus on a defendant seeking a discharge of a jury on this account according to the weight or length of the case or the stage it has reached when the point arises for determination. The test is always the same, whether to continue with the trial would or could, by reason of the admission of the unfairly prejudicial material, result in an unsafe conviction.’
Judges:
Lord Justice Auld Mr Justice Hedley The Honourable Mr Justice Owen
Citations:
Times 06-Nov-2006, [2005] EWCA Crim 84, [2007] 1 Cr App R 2
Jurisdiction:
England and Wales
Cited by:
Cited – Mitcham v The Queen PC 16-Mar-2009
(Saint Christopher and Nevis) The applicant appealed against his sentence of death following his conviction for murder. He had been granted a stay of execution pending the appeal to the board and had since been given leave to appeal against . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 06 May 2022; Ref: scu.221743