202403291 B4 - [2025] EWCA Crim 1135

Analysis – the appeal against conviction:

In Dunster, the court considered earlier case law and at [32] held that there is no longer an inflexible, absolute rule that no further evidence can be given to a jury after they have retired. A judge must instead consider what the interests of justice require. The court gave the following guidance:

“As the decision in Khan itself demonstrates, it is necessary ultimately to consider whether there was some prejudice which renders the verdicts of the jury unsafe. It follows from all this that a judge considering whether to permit the jury to be given some new information in any form after their retirement must consider the matter not on the basis of some absolute rule, but on what the interests of justice require. When balancing the interests of justice, it will be important to assess the importance of the new material and to give particular, probably decisive, weight to any real possibility that the absence of an opportunity to deal with it evidentially or in closing submissions has harmed the interests of the defendant to any extent. It will not be possible at that stage to reopen the evidence generally or to permit further speeches to be made. If admission of evidence at that stage might disadvantage the defendant because further evidence or submissions are in fairness required, then the choice will be between refusing the request for new information and carrying on, or discharging the jury so that the new material can properly be addressed in the course of a retrial. The situations where this problem may arise will be many and varied and there is no absolute rule to guide the trial judge. On appeal this court will be concerned only with the safety of the conviction, which includes deciding whether or not the trial was fair to the defendant. None of this means that the parties should have a chance to put in whatever new evidence they like after the jury has retired. The default position remains firmly that evidence should be placed before the jury during the parties' cases and not at any other stage. It is likely that new information will only be found to be in the interests of justice at that very late stage in the case on very rare occasions and where in particular:

It answers a question asked by the jury;

It is neutral or at least incontrovertible; and

It is clear that a defendant is not in any way disadvantaged by the stage at which it is admitted.”

Applying those principles to the circumstances of the present case, we were satisfied that the judge was entitled to take the course he did, and that there was nothing in the first ground of appeal which even arguably cast doubt on the safety of the convictions. The key considerations, in our view, were these:

With the benefit of hindsight, it is unfortunate that Dr Bunn was not asked, either during her evidence in chief or in re-examination, to state more fully the medical records and other material she had seen. However, Dr Bunn had listed the materials which she had available to her when preparing her opinion. There was no room for doubt as to what the material in that list was: she had identified it, and it had been uploaded to the DCS. Whilst it is true that Dr Bunn’s list did not specify the dates of the e-notes and electronic patient records, we regarded that as immaterial: the dates must have been immediately apparent on looking at the bundles concerned, and a reference to the materials without giving those dates would have invited an obvious follow-up question from the jury. It follows that what the judge said to the jury was materially correct and incontrovertible. The judge did not, for example, mistakenly suggest that Dr Bunn had received materials which were not included in her list.

As we understand it, it was not suggested that Dr Bunn’s list was anything other than an accurate record of what was available to her.

Nor was it suggested that Dr Bunn had overlooked or failed to refer to anything in the listed material which could have assisted the appellant.

Dr Bunn readily accepted that she had not seen everything relating to C’s earlier hospital admissions. Her evidence that the records held by the E hospital included some discharge letters and other documents relating to previous admissions was factually correct. True it is that her evidence did not identify precisely what those letters or other documents were; but she could have been asked for such details if there was any point the defence wished to make.

The defence were entitled to, and did, emphasise the limits of Dr Bunn’s knowledge of C’s earlier medical history. Miss Wass had been able to cross-examine Dr Bunn, if she wished, about anything in the earlier medical records which it was suggested could affect Dr Bunn’s opinion. Nothing which the judge said in answer to the jury’s question in any way undermined the defence point: on the contrary, the judge rightly reminded the jury of the evidence on which the defence particularly relied.

In those circumstances, we were satisfied that the appellant was not in any way disadvantaged by the answer which the judge gave to the jury’s question, and that the judge could not properly be criticised.

As to ground 2, Miss Wass realistically acknowledged that none of her individual points of criticism could assist her if viewed in isolation. The issue for us was whether the convictions are unsafe because the overall effect was to undermine the appellant’s case or to suggest to the jury that the judge was supportive of the prosecution and dismissive of the defence case. In considering that issue, we were willing to assume in the appellant’s favour (though without deciding) that all of the descriptions which Miss Wass gives of the judge’s tone and manner are accurate. But even making that assumption, we could not see any basis for saying that the convictions are even arguably unsafe. This was a trial of some length. No criticism was made of the content or tone of the summing up. There was no basis for saying that the judge was deliberately trying to undermine the defence case. As to whether he did so unintentionally, we recognised, of course, that Miss Wass has assisted us with examples rather than with a comprehensive list of every remark by the judge which might be criticised; but the examples chosen were no doubt those which are said to be most significant. They amounted to a selection of short passages, at different times during the trial, which in our view could not be said to have influenced the jury’s view of the evidence or otherwise to have prejudiced the fair trial of the appellant.

For those reasons, we were satisfied that there is no arguable ground of appeal against conviction.