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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 >> Mullen, R v [2004] EWCA Crim 602 (19 March 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/602.html Cite as: [2004] EWCA Crim 602

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
(HHJ SOUTHWELL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 March 2004

Lord Justice Potter:

Introduction

1. On 13 February 2004 we dismissed this appeal, stating that we would give reasons later. Those reasons are now set out below.
2. On 7 February 2003 in the Croydon Crown Court before His Honour Judge Southwell and a jury, the appellant was convicted by a majority of 10 to 2 on each of four counts of indecent assault (Counts 1 to 4). On 28 March 2003 he was sentenced to concurrent terms of 2 years' imprisonment on Count 1, 3 years' imprisonment on Counts 2 and 3, and 4 years' imprisonment on Count 4. Pursuant to s.85 of the Powers of Criminal Courts (Sentencing) Act 2000, he was ordered to serve an extended sentence of 7 years comprising a custodial term of 4 years and an extension period of 3 years. He was disqualified from working with children.
3. The appeal relates to a discrete aspect of the trial concerning the replaying of the video evidence of the 10 year-old complainant and her brother (aged 12) following a request from the jury after their retirement. So far as the summing-up is concerned, it is acknowledged in the advice of counsel accompanying the grounds of the appeal to have been fair and well-balanced with all appropriate directions given. Indeed, it is acknowledged that the judge was 'extremely fair' to the defence throughout the trial, and that the appellant would have no ground for complaint but for what occurred following the retirement of the jury.
4. Nonetheless, it is necessary to go into a some detail concerning the factual background evidence given, in order to set the background against which the appellant is alleged to have been prejudiced by what occurred.

The Factual Background

5. The complainant C and her brother A were the only children of Mr and Mrs S. They lived in a house which had an annexe for the use of their maternal grandmother and were in the habit of visiting her at will. At the time of the alleged offences, C was 9 and A was 11.
6. The appellant had known C's family for about 23 years, having originally met the grandmother when she replied to his advertisement offering gardening services. When C's parents married, he carried out gardening tasks for them and, by the time the children were born, had become a friend of the family. He was in the habit of visiting the parents once or twice a week and used to do odd jobs in the house. He was not paid but would be given a meal for his household assistance. He became a familiar figure to the children as they grew up and formed a close relationship with the whole family. He would play with the children on the computer and had the run of the house, the children calling him "Uncle Jim". The mother enjoyed this arrangement as it left her free to engage in other matters in the house.
7. In April 2001 matrimonial difficulties arose between the parents and there were frequent arguments between them which resulted in their separation a year later in April 2002. C suspected that her parents were going to separate and both she and her brother were upset at this prospect. The separation occurred one week before C made allegations against the appellant.
8. The parents shelved their differences over Christmas 2001 and, during that time, C left her bedroom in the night and went to her parents' bedroom to sleep with them in their bed. After six nights the father moved out of the marital bed to sleep in C's bedroom, C continuing to sleep with her mother. On 14 April 2002, the father left the matrimonial home, having his first contact visit with the children on 21 April 2002. In the meantime, the appellant continued to visit and be in the house as usual.
9. The charges related to the period between 1 March 2001 and 21 April 2002 when it was alleged that on a number of occasions the appellant indecently assaulted C. Video recorded interview tapes were admitted under s.19 and s.27 of the Youth Justice and Criminal Evidence Act 1999 as the evidence in chief of both the complainant and her brother A.
10. The allegations were that the appellant:

i) on several occasions touched C's breasts under her clothing (Count 1);

ii) touched C's vagina with his fingers under her clothing (Count 2);

iii) touched C's anus with his fingers by putting his hands down her trousers and under her knickers (Count 3); and

iv) licked C's vagina, after taking down her clothing, whilst C was sitting on her bed. Furthermore, he took out his penis and asked the complainant to suck it (Count 4).

The Evidence

11. C had received some sex education at school about periods, puberty, parts of her body, pregnancy and abortion. She had seen her brother's penis but not her father's, and had never seen a man or boy undoing his trousers. She watched television programmes such as "Buffy the Vampire Slayer", "Top of the Pops", "Stars in their Eyes", "The Simpsons" and soap operas. She also used the computer in the computer room and visited the history website for homework. However she was not allowed to visit the website on her own; her brother always had to be present. Her bedroom was situated upstairs, just off a small landing, with her brother's and mother's bedrooms close by, three steps up. There was no chair in her bedroom and it was necessary to sit on the bed. She slept with the bedroom door open, the landing being dark at night.
12. According to C's evidence as revealed by her video recorded interview, her cross-examination and re-examination, the circumstances of the offences were as follows.
13. The first approach of the appellant was around March 2001, when the appellant was building a pond in the garden. During the Christmas period 9 months later, C was asleep in bed in her bedroom when she awoke to hear the appellant whispering her name and saw that he was standing a couple of feet from her bed. He tried to persuade her to go downstairs. However, she pretended to be asleep and, after the appellant had called her name for about five minutes, he went downstairs. C then ran into her mother's room and told her that she could not sleep. At this time her father was in her mother's bed. She said she could not explain why she did not tell her parents of the appellant's actions at that stage.
14. C received a new CD player as a present. At first she thought it was for Christmas but subsequently stated it was after the building of the pond. One day she went upstairs to show something to the appellant. She sat on the bed and showed him how the CD player worked and the appellant moved closer to her to a position only inches away on the bed. This made her feel uncomfortable and she left the room and went downstairs. She said she liked playing on the computer and, subsequently, whenever she went upstairs on her own, the appellant, after ensuring that nobody was coming upstairs would follow her. Basically he followed her anywhere and would try to get her alone in the bedroom and get very close to her.
15. C was unhappy when her father left the house and hoped that her parents would have a reconciliation but had little belief that this would materialise. She knew that her father was leaving and hoped that this would stop the appellant taking further interest in her because he would feel sorry for her.
16. The first occasion on which the appellant touched her was about one week after the pond was built. On other occasions, in the study, her bedroom and her grandmother's sitting room, he would touch her body under her jumper in the vicinity of her right breast. He also touched her down her trousers, under her knickers, and moved his fingers around the upper parts of her bottom. She said this action resulted in her suffering from an infection of the bottom because the appellant's hands were usually dirty, but in cross-examination she accepted that her vaginal infection pre-dated the appellant's having touched her.
17. In the video, C also mentioned the shed at the end of the garden as another place where abuse had occurred. However, in cross-examination, she stated that she could not remember having a problem with the appellant in the shed. However, in re-examination, she said that the appellant once held the door of the shed shut and kissed her.
18. She said the appellant had touched her in the sitting room of her grandmother at a time when the latter was sitting in a chair in front of C and the appellant. He had made her sit on his lap and, in that position, he had put his hand down her trousers with her grandmother unable to see what was happening. She had felt she wanted to kick or elbow him but had not done so. He told her that his behaviour was a secret and added that she must not tell anybody as he could go to jail. She had visited her doctor when she had a stomach-ache. He had examined her down below and given her medicine, but she did not tell him about the appellant because she was still quite frightened and thinking about whether she would tell anyone.
19. She said that on a number of occasions the appellant undid the zip of his trousers and took out his penis in her presence. Sometimes he told her to touch it and sometimes to suck it. She did not know how many times this happened. She did not know any other girls who had been asked to suck a penis, nor any boy who had asked for it to be done. In cross-examination, she said that occasionally, when she was sitting on the bed in her bedroom, the appellant had licked the 'front bit' of her bottom. She said this was the first time she had told anyone about it because she felt embarrassed.
20. She first told her brother about these matters in April or May, at a time when the appellant was about to leave the house and her brother was going downstairs. She pulled her brother upstairs and into her mother's room, shut the door and told him what had happened. Afterwards, but on the same day, she had told her mother when her mother was in the bath. The same night her father came to the house and, in her presence, her mother told him what had happened. Her father appeared shocked and surprised. Eventually she also told her teacher.
21. C's brother A also gave evidence by means of video recorded interview and video link. He remembered that it was difficult when their father left the house and he felt like the man of the house, protecting C and her mother. He said that the best thing about C was her lively character and the worst that she became easily frustrated if she failed to achieve something.
22. He said that from about October 2001, when the appellant was helping to build a pond, that something was going on between C and the appellant. The appellant would spend a lot of time with C and they would be alone for hours. He did not ask C about it because he did not want to appear a fool; nor did he say anything to his mother without first speaking to C.
23. He had seen the appellant give the complainant a big hug and try to kiss her on the cheek. He also saw him kissing her on a number of occasions, sometimes when watching television in his grandmother's flat. The appellant would enter the room, sit on a rocking chair, and the complainant would sit on his lap. His grandmother could see someone sitting on the rocking chair if she turned round but not if she was watching the television.
24. A said that the appellant would mainly kiss C on her face, but he would sometimes go down and on to her shoulder and hair. He never kissed her in front of their parents. Sometimes A saw the appellant kiss C in her bedroom. There was one occasion in A's room when C and the appellant sat on the bed and the appellant wrapped his arms round her, trying to kiss her on the cheek.
25. One day, which might have been a Saturday in April 2002, C spoke to A about the appellant. The appellant had come to the house to do some gardening whilst their mother was cooking the dinner and went upstairs with C to help her with a small piece of homework. This should not have taken long to complete, but the computer was causing her problems and she was required to finish the work by Monday. The appellant and C were upstairs for about 50 minutes, longer than A considered necessary for the task. When the appellant came down he asked A and C to take the neighbours dog for a walk but C said she did not want the dog to come because she wished to tell A something. As they walked she told him "Jim's been trying to kiss me and touch me in places I don't want him to". She asked A for advice, in particular whether she should tell her mother. He had said that she should and that "mum would phone dad" who would probably have to tell the appellant to stop coming round.
26. C's mother, who was a special needs support assistant, described the family association with the appellant and his apparently excellent relationship with the children. She said that, except once, when the appellant picked up the complainant in the garden with his hands over her breasts, she never felt that his behaviour was inappropriate. She was unaware of his going into C's bedroom.
27. C had suffered from the first signs of vaginal discharge in July 1999 and went to see the doctor on three occasions with the problem, the last being just prior to Easter 2002. The mother had told C about sex education, but never about breast touching, fingers touching the vagina or bottom, falatio or cunnilingus.
28. On the evening of 21 April 2002, when the mother was having a bath, C had knocked decisively on the door, entered the bathroom, sat on a stool and told her that she had to speak to her urgently now. C said "Uncle Jim's been trying to kiss me and I don't want it to go on anymore". The mother had asked C if the appellant had kissed her on the mouth and for how long this had been going on. C replied "While we were building the pool". C began to cry and the mother told her to go into their bedroom and wait for her. The mother found her sitting on the bed and asked her what she meant by "kissing you". C replied "He's been touching me." And when asked where said "Inside my knickers". A came into the room and the mother did not ask any further questions. However, she spoke to her husband on the telephone to tell him what happened. He did not believe her but said he would tell the appellant not to contact them. The following day the mother telephoned "Childline" for advice and then persuaded C to talk about the matter. C said that the appellant had been touching her inside her knickers and touching her chest inside her clothing.
29. C's father also gave evidence confirming receipt of the telephone call from his wife and that, at first he had not believed the allegation. However, he had met the appellant for a drink in a public house and told him not to visit the house again as C had accused him of molesting her. He described the appellant as absolutely shell-shocked and the father had told him that C could be attention-seeking because he (the father) had left home. However, he said that, when he had asked C if she was making up the allegations in order to get him and his wife together again, C had replied that she would not make up anything of that gravity.
30. He said that as the marital breakdown had progressed, there had not been much affection between him and his wife although, in happier times, they had been openly affectionate towards each other and the children felt part of a warm and open family. The children had been told of the possibility of their parents' separation in February 2002.
31. There was medical evidence from Dr White, C's general practitioner who had seen her in connection with her vaginal discharge and Dr Adeoya, a consultant paediatrician who stated that in her opinion the vulva vaginitis which caused the vaginal discharge was likely to have been the result of sexual abuse.
32. We note at this stage that it was the approach of counsel for the defence in cross-examination to seek to show that the complaint was likely to have been a piece of attention-seeking by a girl upset at the prospect, and subsequently the fact, of a break-up between the parents. Also, that she was suggestible and that she had been vulnerable to suggestion for 4 weeks between the first complaint and the police interview and that, having initiated the complaint, she had no alternative but to maintain it. The defence also relied heavily upon the fact that the mother was pre-disposed to make excuses for C and had seized upon the opportunity to blame C's emotional response to her father's departure upon an alternative cause. The mother had said in evidence that she would believe any child who made a sexual allegation without question "because children did not make up such things".
33. So far as the defence case was concerned, the appellant gave evidence at length. He was a motorcycle mechanic and recovery driver who did gardening to earn extra money. He had a number of previous convictions, but none since 1991 and had never been accused of indecent assault. He was 38 years of age, and had relationship with 9 or 10 women since the age of 19 but said he had "given up" on women. He said he was not a loner. He would normally visit the household on Sundays and sometimes after work on Wednesdays. He felt affection for both A and C and would help C with her homework and mess around on the computer with her. He did not think of them as nephew and niece, but he did not regard the complainant as a sexual object.
34. He said he was once asked by the father to stay for the night, have a drink and watch the Grand Prix on television. He had slept in a sleeping bag on the sofa in the front room wearing his underwear and a tee shirt. He would have used the downstairs toilet and had no reason to go upstairs after the children went to bed. He said he did not go upstairs. He could not recall if this was the occasion when the pond was built.
35. He said he spent a lot of time with A in his room and might have gone into C's room if she had wanted to show him something. He also visited the grandmother's sitting room where normally A would be on the sofa, the grandmother in the chair nearest the television and C in the rocking chair towards the other end of the sofa at the back of the room. Whenever he came in C would stand up and let him sit down in the rocking chair and then sit on his lap. He said there were tools in the garden shed and he would sometimes go there. It was possible he had gone into the shed with C.
36. He said he had never taken any clothing off apart from his shirt in the presence of C. He could remember picking the complainant up under the arms and swinging her round and it was possible he had his hands in the area of her breasts, but not with any deliberation or wrong intent. He had never put his hands down C's trousers in the house or garden or indecently assaulted her in any way. He denied kissing C and did not remember kissing her cheek or hair. He did not remember her showing him her CD player although he might have been in her bedroom. There was no reason for him not to go there. He did not remember sitting close to her on the bed. He denied that the complainant had seen him in his pants and he did not tell her to suck his penis.
37. He said he was aware that people who assaulted children went to jail but he had never said anything to that effect to C who was lying in her evidence. He had never done anything to upset her and could think of no reason why she should lie about him. He also stated that if her brother said that he had touched C then her brother was also a liar. He was stunned when the allegation was first made to him by her father and unable to say anything.
38. The defence also called Dr Meekie, an eminent consultant paediatrician, who stated that Dr Adeoya was wrong to link the vulva vaginitis suffered by C to sexual abuse, the evidence being far too slender to make such a connection. It was only in cases where children suffered injury by digital penetration that vulva vaginitis could be associated with sexual abuse. The complaint was very common in children who had not suffered abuse and that the behavioural changes of the complainant were much more likely to have resulted from the trauma of her parents' separation and other problems in her life.
39. The defence submissions were to the effect that C had made up the complaints. She may well have been bright and intelligent but was an attention-seeker because there had been much focus on her vaginal area by a misguided mother. Furthermore, she must have been upset by her father's departure. She had had a difficult and troubled year at school. She might have been jealous of her elder brother and the idea that the complaint might have originated from watching television. Dr Adeoya was wrong to link her vulva vaginitis to sexual abuse. Her mother was a woman preoccupied with homeopathy, dyslexia and skin complaints, who had focused unnecessarily and disproportionately on the problems in C's vaginal area since well before the abuse was said to have started.
40. As already indicated, the judge gave a full and fair summing-up, inviting the jury to consider carefully whether the defence suggestions might explain the complaint of C against the appellant. He also emphasised the evidence of Dr Meekie and directed the jury that unless they were sure the complainant's vulva vaginitis was the result of sexual abuse, it should be wholly ignored.

The Replaying of the Video Evidence

41. 5 minutes into their deliberations, the jury sent out a note in the following terms:

"We would like to see the video evidence again to help with our verdict."

42. The judge so informed counsel. Miss Hart, counsel for the defence, made no objection. Similarly, Miss Carpenter for the Crown raised no query. Miss Hart immediately asked the judge if, when the jury had watched the video, he would consider, if there were any particular points that she could mention to illustrate a point she had previously made to the jury in relation to the video evidence. The judge said that he did not think it right to allow another speech or any further comment on the evidence, with which Miss Carpenter agreed. In the course of her remarks she stated:

"The jury can of course be allowed to see the video again if they have asked to see it and the judge agreed."

43. Counsel and the judge then simply proceeded on that basis. Miss Hart asked the judge to consider ascertaining whether the jury wished to see the entire video and Miss Carpenter suggested that it be clarified whether the jury wished to see just the video evidence of C or "all video evidence" (i.e. that of her brother also). The judge agreed.
44. The jury were then called back in and made clear, in response to a question from the judge, that they wished to see all the video evidence. The judge informed them that they were entitled to, but that it would have to be shown in open court and not in the jury room.
45. The replaying of the video evidence of the complainant started at 3.25pm. However, it was interrupted at 3.40pm (when it was almost half way through) upon the judge having consulted Archbold (2003) at paragraph 4-423, the contents of which dealt with the procedure to be followed in relation to the replaying of video evidence. That passage correctly summarised the position as follows:

"A video recording constituting a child complainant's evidence in chief may, at the discretion of the trial judge, be replayed to the jury after they have retired to consider their verdict if the jury wish to be reminded of how, rather than what, words were said. 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. If the video is replayed, (a) the recording should be replayed in the court with the judge, counsel and defendant present, (b) the judge should warn the jury that because they are hearing the complainant's evidence in chief a second time, 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, and (c) to assist in maintaining a fair balance the judge should, after the tape has been replayed, remind the jury of the cross-examination and re-examination of the complainant, whether the jury ask him to do so or not: R v Rawlings; R v Broadbent [1995] 2 Crim App R 222, C.A. See also R. v M. (J.)"

46. Having referred to the paragraph, the judge opined to counsel that, in the light of that passage, he would deal with the matter before the jury saw and heard any more of the video evidence. Counsel indicated their agreement.
47. The judge then addressed the jury as follows:

"If there is any particular passage you would like me to remind you of, I can do that. If you are disposed to look at the evidence and hear the video because you want to see not only what was said, but how it was said, that is understandable. I do not know what your particular interest is, is it that?"

48. The transcript indicates that the foreman of the jury gave an inaudible answer at that stage. However it is clear from later exchanges between the judge and counsel that it was an indication of assent. The judge continued:

"I am going to allow you to see the video again, but I am going to say now what I think would have been appropriate to say earlier on, so will you take it that applies to everything you have just seen. It is this. It is right that I should warn you that because you are hearing the evidence of [C] in chief again – that is what it amounts to, because she gave her evidence on the video interview – you are hearing it for a second time after all the other evidence in full, which is not the usual run of things as you can well understand.

I ought to warn you, and should have done before we started this, that because you are hearing it for a second time after all the evidence … you should be careful to guard against the risk of giving what she says in chief disproportionate weight. Do you understand what I mean, in fairness to Mr Mullen simply for that reason?

When you listen to it, and after you have listened to it and retire, you should bear in mind and be careful to bear in mind the other evidence in the case as well. That is only fair. It is sensible when you come to think about it, what I have just said, otherwise it can produce an imbalance which can work an unfairness. I am also going to have to afterwards, again to be fair, tomorrow remind you of the cross-examination of [C] by Miss Hart … so that you have a full balance of the picture of what she said. Again the reasons for that are perfectly obvious. They are to ensure there is not an imbalance and that you are sure to guard against the risk of disproportionately paying attention to what she said in chief. Do you follow what I am saying? I think it would have been better if I had said that at the very outset, but no harm is done by putting it to you now."

49. The video of C's interview was then continued to completion, lasting a further 16 minutes, following which the video evidence of her brother was replayed, that evidence also lasting almost 16 minutes. The time being by then 4.20pm, the judge told the jury to return to their homes without any discussion of the matter before they came back on the next day, when they would be reminded of what C and her brother had said when they were cross-examined by Miss Hart.
50. The following morning, before the return of the jury, Miss Hart drew the judge's attention to para 4-337 in Archbold in which reference is made to R. v M.(J.) with the observation:

"It was held that, generally speaking, a video of a complainant's evidence should only be played for a second time as a result of a request from the jury, as to which see post paragraph 4-423. The replaying of such film in other circumstances should be discouraged because it is a departure from the normal way in which evidence at a criminal trial is heard and, generally speaking, any departure should only be made if there are exceptional reasons."

51. The judge referred to the fact that the jury had made it clear to him that what they wanted to do was watch the way in which the witnesses had given their evidence, which could not simply be done by reading the interview transcript. Miss Hart agreed, but observed that a mere repetition of the evidence given under cross-examination to balance the re-showing of the video could not remind the jury of the way in which that additional evidence was given. In response to a query from the judge, Miss Hart said that she was not inviting the judge to discharge the jury, she was merely seeking to have a proper balance of fairness maintained.
52. After further discussion with prosecuting counsel, the judge said this:

"I cannot go back on what I said to them yesterday about the cross-examination and re-examination. I propose to take them through it in the same way. It is the only safe way of doing it. Miss Hart is anxious to point out that it is important that they should remember that they have not seen a video of the cross-examination. I can remind them of that. I think it is appropriate perhaps to say something along the lines that they have not seen the video of the cross-examination because there is not one, therefore they do not have the opportunity of being reminded in a film of how that unfolded, but it is important to remember, in order to maintain a proper balance on the evidence, to reflect on how they gave their answers and the manner in which Miss Hart put the questions and to tell them that I did take down a summary of their answers, not of the questions, and it is right that they should pay careful regard to the way that their evidence unfolded … I think it helps to meet the proper concerns that Miss Hart is expressing. Do you agree with me?"

53. Miss Carpenter indicated that she did agree and the judge asked Miss Hart if there was anything she would wish to add. Miss Hart said there was not and she expressed gratitude for the attention the judge was paying to the issue. The judge then recalled the jury and, before reminding them at length of the cross-examination and re-examination, addressed them along the lines he had already indicated to counsel. He added:

"You said yesterday, when I asked about it, that you wanted the benefit of seeing how they have given their evidence. That was the important part of your request, to see the video again. That is why I make these remarks. You cannot see how they gave their evidence in cross-examination because it is not available, but please remember how they did that in fairness to this trial and in fairness to the defendant when I remind you of what they actually said in cross-examination."

54. At the end of his reminder and before sending the jury out, the judge again shortly reminded the jury to keep a proper balance and asked both counsel whether there was anything else they would wish him to add. Each said there was not.

The Grounds of Appeal

55. The grounds of appeal advanced under 11 separate heads may conveniently be condensed as follows.
56. First, it is complained that, in deciding to allow the jury again to view C's and her brother's interview videos, the judge failed to consider refusing that request. By himself overlooking and/or failing to invite submissions from counsel as to whether and, if so, to what extent to exercise his discretionary power to permit the videos to be replayed, he (a) failed to identify whether there were "unusual or exceptional circumstances" to justify such a course and/or (b) failed to ascertain whether the jury simply wanted to be reminded of the evidence, in which case the request should have been refused and any necessary reminder given by the judge from the transcripts or his notes, or whether the jury wished to be reminded of the manner in which such evidence was given. In the latter event, Mr Rook accepts that the judge's exercise of discretion to permit a re-showing of C's evidence would not be open to challenge. Finally, the judge (c) failed in any event to treat the video evidence of C and her brother separately. In this last respect, Mr Rook submits that different considerations applied to the evidence of the brother and that it should not in any event have been replayed.
57. Second, it is complained that the judge, having decided to permit the replaying of the videos, failed to give the jury the necessary directions in relation to their reconsideration of the evidence before the video was replayed. Mr Rook submits that the giving of such directions halfway through the video evidence of C was a flawed exercise, not simply because it was too late in the day to guide their consideration of the evidence already viewed, but because the indication from the jury at that stage that they wished to see not only what had been said but how it was said was given in response to a leading question from the judge.
58. Third, it is complained, (though Mr Rook has not vigorously argued the point) that members of the public unconnected with the trial should not have been permitted to remain in court during the replaying of the video because of the pressure which their apparent hostility created on the jury was likely to influence their decision.
59. Fourth, and in the alternative, it is said that the judge should have directed, but failed to direct, the jury to guard against their consideration of the evidence being affected by emotion.
60. Fifth, it is complained that the judge failed to direct the jury as to how they should approach the evidence of the complainant's mother (this ground was not pursued by Mr Rook in oral argument).
61. Sixth, it is complained that the judge should have directed the jury that the medical evidence of Dr Adeoye, taken at its highest, went no further than that, in the doctor's opinion, the complainant's condition was consistent with sexual abuse.
62. It is suggested that, in the course of this appeal, the court may wish to adjudicate upon the following questions:

i) Should the court allow the jury to see a video-tape of a recorded interview with a prosecution witness, not the complainant, once the jury have retired? In particular, should the court allow the jury to see the video-tape of an interview with a witness whose evidence goes no further than 'recent complaint' and 'opportunity'?

ii) Should members of the public, unconnected with the trial, be permitted to remain in court if an interview tape relied upon to prove sexual allegations by a young complainant is being played or replayed?

iii) Should evidence given by video-link be recorded in video format at the time it is given so that, in the event that an interview tape is re-played, then the evidence of the witness in cross-examination and re-examination can similarly be replayed?

63. So far as the first ground of appeal is concerned, it is regrettable that the judge, as well as counsel for both the Crown and the defence, did not appear to have in mind the state of the authorities and the passages in Archbold set out above. Paragraph 4-357 and R. v M.(J) emphasise that the replaying of video evidence is a departure from the normal method of conducting a criminal trial and that this should only take place where there are exceptional reasons. That is, of course, because the replaying of such evidence disturbs the traditional balance of a trial and may be seen as giving the prosecution a second bite at the evidential cherry. However, the authorities equally show that that general observation does not derogate from the propriety of such a course being followed when a jury has requested to review the evidence of a complainant for the purpose of seeing how the complainant gave his or her evidence, as opposed simply to being reminded of the content of that evidence, the judge being well able to remedy the latter position without resort to a re-run of the video film, always provided that he gives an appropriate 'balancing' direction to the jury.
64. It is also clear that, because of the apparently shared assumption of the judge and counsel in this case that the jury, having requested to see the video, were entitled to do so without more ado, the judge failed to ascertain the purpose for the jury's request and failed to exercise his discretion in the light of their answer. However, that does not seem to us to be a fatal defect. The authorities recognise that, if the purpose of the jury is to review the manner in which the complainant's evidence was given, then, despite its being a departure from the general position, the potential for prejudice as a result is something which may fairly be guarded against by an appropriate 'balancing' direction. Thus, it is recognised that the potential for advantage to the prosecution is not in itself a matter which necessarily renders the trial unfair or an ensuing verdict of guilty unsafe. In this connection, we would observe that the procedure may not necessarily favour the prosecution. It may well be that the purpose of the jury in seeking to re-view the evidence is to confirm or resolve a point raised by one or more of their number which is favourable to the defendant.
65. In this case, it appears that the jury were indeed concerned to re-view the manner as well as the content of C's evidence and, had the judge so ascertained at the outset, Mr Rook has not suggested any reason why the judge should not have exercised his discretion to permit the video tape of C's evidence to be replayed. Thus we do not find substance in heads (a) and (b) of the first ground of complaint.
66. As to head (c) we take the same view in respect of the evidence of C's brother. S.32A(1) of the Criminal Justice Act 1988, as amended by s.54 of the Criminal Justice Act 1991, first introduced the mode of adducing a child's evidence-in-chief by means of a video recording, and was the provision considered in the leading case of R v Rawlings; R v Broadbent. It related to the evidence of child witnesses generally and was not limited to that of a child complainant. The wider provisions of s.19 and s.27 of the Youth Justice and Criminal Evidence Act 1999 similarly make no such distinction. We do not consider that the rationale of the procedure, or the extent of the judge's discretion, which permits the replaying of video recorded evidence at the request of the jury, is or should be limited to the evidence of the complainant. Certainly, in the case of the recorded evidence of a child witness called in support of a child complainant, depending upon its content, similar concerns as to reliability, suggestibility or motivation may arise in the jury's mind in respect of such evidence as in respect of the evidence of the complainant. Provided that the judge satisfies himself as to the validity of the reason for the jury's request and gives the same type of balancing direction as in the case of a complainant, we consider that the judge's discretion similarly extends to the evidence of a supporting child witness.
67. It is possible that, if the judge and counsel had had in mind the relevant law upon the question, so that the judge had interrogated the jury as to the reasons for the request, a different picture would have emerged and a different decision been taken in respect of the evidence of C's brother. However, there is no positive reason so to suppose and, so far as the outcome of the appeal is concerned, we do not regard that possibility as decisive. Thus we find no substance in head (c) of the first ground of complaint.
68. As to the second ground of complaint, we have already indicated our view that it is unfortunate that the balancing direction to the jury was not given at the outset. However, we do not regard it as a substantial matter of complaint, given the procedure followed by the judge as soon as he realised his mistake. His very full direction given at that stage (less than half way through the re-played evidence of C) was impeccable, as Mr Rook has recognised. We do not think that any prejudice can have resulted simply from the lateness of that direction. It is certainly the case that defence counsel expressly declined the judge's offer to consider discharging the jury and, having been afforded every opportunity to suggest any further form of direction required, indicated her satisfaction with that which the judge gave.
69. As to the third and fourth complaints, the assertion that during the re-playing of the tapes, there was apparent hostility among members of the public in court depends upon the perception of the defence solicitor at the trial who has supplied a statement to that effect. We do not doubt the genuineness of her perception. However, it has not been confirmed by prosecuting counsel (who was absent from court for much of the time during which the tapes were replayed), nor by Mr Rook who was not present. The judge would no doubt have been watching the video rather than the body of the court and, unless alerted to the problem, would have been unaware of it. We consider that in such a case, if defence counsel learns, or is concerned, that the jury is being submitted to, or may be influenced by, any conduct of a member or members of the public, he or she should draw it to the attention of the judge. This will enable the judge to take any necessary steps to oblige any offending member(s) of the public to leave court. It will also enable him to give an appropriate direction to the jury before their retirement to the effect that they should not be influenced by emotion, or swayed by any feelings of pressure, or by any perceptions other than their own arising from their own fair and balanced assessment of the evidence before them. We have no doubt that, had the judge been so requested, he would have given such a direction. It was not done in this case and we do not think that any ground of appeal is demonstrated in this respect.
70. We have already indicated that the fifth ground of complaint was not pursued by Mr Rook. So far as the sixth complaint is concerned, we are satisfied that the judge gave a full and fair direction in relation to the medical evidence.
71. We turn briefly to the questions raised in the grounds of appeal. As to question (i), as already stated, we consider that the judge has a discretion to allow the jury to see a video tape recorded interview with a child witness who is not the complainant. Whether or not this should be done will depend upon the nature and content of that witness's evidence, the considerations being similar to those in respect of the recorded evidence of a child complainant. If the evidence of the witness concerned goes no further than evidence as to 'recent complaint' and 'opportunity' (and the evidence of C's brother was not so restricted in this case), we find it difficult to anticipate circumstances in which it would not be sufficient for the judge to remind the jury of the content of the evidence without replaying it. However, we do not think it appropriate to give comprehensively prescriptive guidelines in that respect.
72. As to question (ii), we consider that the playing or re-playing of an interview tape relied upon as the evidence-in-chief of a vulnerable witness is as much a part of the proceedings as the evidence of other witnesses. It would be inappropriate to propound any rule for the exclusion of members of the public during the giving of such evidence.
73. As to question (iii), we do not consider that it would be appropriate for us to propound any general rule requiring the recording of the cross-examination and re-examination of vulnerable witnesses beyond that statutorily provided for. In this respect s.28 of the Youth Justice and Criminal Evidence Act 1999 enables a 'special measures' direction to be given which provides for the cross-examination and any re-examination of a child witness to be pre-recorded in the circumstances referred to in that section and for such evidence to be admitted in recorded form before the jury. However, it does not extend to a power to order the video recording of the cross-examination or re-examination of a child witness conducted 'live' over a video link, to be recorded against the possibility that the jury may request a re-viewing of the pre-recorded examination-in-chief following their retirement, i.e. the situation which arose in this case.
74. Since we are satisfied that the decision of the judge to permit the jury to re-view the video evidence was one which fell within the ambit of his discretion, since we are satisfied that any defect in the appropriate procedure was acquiesced in by counsel, and since we are satisfied that the appellant suffered no prejudice as a result, we do not doubt the safety of the appellant's conviction and this appeal will be dismissed.