By Farrhat Arshad
Wasted costs order made against counsel due to discharge of jury following Defence closing speech; judge failing to hear submissions from counsel before discharging the jury; appropriateness of adverse comments re section 28 YJCE Act 1999 restrictions in Defence closing speech
Le Brocq -v- Liverpool Crown Court
 EWCA Crim 1398
The appellant barrister appealed against a wasted costs order made by a Crown Court judge pursuant to section 19A of the Prosecution of Offences Act 1985, following the discharge of the jury in a sexual offence case.
The judge had made the decision to discharge the jury after hearing Defence counsel’s closing speech. In the judge’s view, the speech offended in two main ways: (i) by referring to the complainant as being in a sexual relationship counsel flouted the judge’s earlier ruling prohibiting any questions about that relationship being sexual, and (ii) it lambasted the procedure restricting the questioning of vulnerable and child witnesses, set out in section 28 Youth Justice and Criminal Evidence Act 1999, describing the restrictions as amounting to “a virtual emasculation of the Defence case”. The judge found this conduct to fall within section 19A (3) (a) as, “improper, unreasonable or negligent act or omission.”
The CACD allowed the appeal. The Court held that the judge erred in finding that the evidence as to the complainant being in a sexual relationship was not before the jury. The evidence was before the jury as the point had arisen in re-examination as the complainant’s explanation for admitted lies. Whilst the judge had considered editing out those parts of the complainant’s evidence he had been persuaded by Prosecution counsel that the evidence should remain unedited as it was the complainant’s explanation for telling lies about that particular matter. This evidence was therefore relevant evidence. That being the case, the Defence were not then prohibited from mentioning the fact of the sexual relationship in the closing speech. The Defence asserted that the relevance was that the relationship was an explanation for the 14 year old complainant’s knowledge of sexual matters. Whilst the Court decried the particular way the point was put by counsel and what that potentially implied to the jury (one of the twin myths that section 41 was designed to avoid) it held that counsel had been entitled to mention the fact of the sexual relationship and its potential relevance. Counsel’s conduct could not therefore be said to fall within section 19A as an improper, unreasonable or negligent act or omission.
As for the second of the judge’s complaints, the Court held that counsel’s attack on the section 28 safeguards should not have been made. The judge was the guarantor of what was fair and once a decision had been made as to the appropriate parameters of fair questioning following a Ground Rules Hearing it was not open to counsel to suggest to a jury that the process was unfair. It was not unreasonable for counsel to make the point that the Ground Rules procedure imposes some limitations on cross-examination which might otherwise have been proper, in the restrained way suggested in R v. Mahomud (Shuayb)  EWCA Crim 667 (at paragraph 26) but in the present case counsel had gone beyond that. However, the judge did not primarily base his decision to discharge the jury on this part of the closing speech, finding it “unreasonable and/or borderline improper”. The Court had no doubt that these inappropriate comments were capable of being ameliorated by a short, tailored direction.
In relation to the discharging of the jury, the Court was troubled by the judge’s failure to seek submissions from counsel, stating at paragraph 66: “We can think of no circumstances in which the judge should dispense with the need for canvassing the submissions of the parties before discharging the jury on account of something which has happened during the trial.” In the event there was no need to discharge the jury and as such the wasted costs order should not have been made.
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