No: 201503880 C2 
Neutral Citation Number: [2016] EWCA Crim 2215
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 19th May 2016

B e f o r e:

LORD JUSTICE SIMON
MR JUSTICE LANGSTAFF
RECORDER OF WINCHESTER 
HIS HONOUR JUDGE CUTLER CBE 
(Sitting as a judge of the Court of Appeal Criminal Division) 

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R E G I N A 

v 

SIMONE ESTHA MINNOTT

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Computer‑Aided Transcript of the Stenograph notes of
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Mr G P King appeared on behalf of the Appellant
Mr R Cifonelli appeared on behalf of the Crown

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J U D G M E N T
1.	LORD JUSTICE SIMON:  This appeal raises a short point about a question raised by a jury following retirement.  It arises following the appellant's conviction on 26th June 2015, before His Honour Judge Ainley and a jury in the Crown Court at Croydon, on a charge of conspiracy to defraud.  There were two co‑accused, Victoria Beckford, who was convicted of conspiracy to defraud, and Andre Wisdom, who was acquitted on the same charge.  A number of other co‑conspirators pleaded guilty, these included Cherelle Quarshie.  The appellant appeals against conviction by leave of the single judge.  
2.	We give an outline of the facts taken from the summing‑up.  Under the regulations in place at the time of the conspiracy, it was possible to make applications for crisis loans to the Department of Work and Pensions.  These loans were payable if the person needed money quickly so as to avoid a situation which might damage their health or their safety.  One category of crisis loan was called a "rent in advance" loan.  This would be available, for example, where a tenant had to leave their accommodation, had arranged for an alternative address but needed an urgent loan to pay a deposit or an advance of rent to a new landlord.  Often these applications would be made over the telephone and if approved would be paid by Giro cheque from a job centre on production of identification.  
3.	The prosecution case was that the defendants had conspired to defraud the DWP using false applications for these "rent in advance" loans.  A conspirator would telephone the DWP claiming to be a person in crisis.  They would give particulars of the premises to which they said they were going and the name of the new landlord.  While they were on the phone another conspirator, posing as the landlord, would be contacted and would confirm the fraudulent details.  The system was not invariably successful: in fact it was thought to be successful in only one in three cases.  Evidence of the application was placed before the jury using a spreadsheet.  This showed almost 300 successful applications totalling a loss of approximately £260,000.
4.	The prosecution case was that the appellant had been involved in three such applications which had been made in the names of the appellant herself, Dale Alamir and Terence Pountney.  Two of the applications had been successful, the one in the appellant's name had not been.  On the two successful occasions (Alamir and Pountney) the telephone number of the appellant was given to the DWP as the contact number of a new landlord.  On the application by the appellant in her own name on 26th November 2010, her telephone was used by another conspirator purporting to be the appellant.  
5.	The prosecution relied on the fact that the appellant's telephone number was used, on voice recognition evidence from an expert who had compared the appellant's voice from her interview to that on the recording made of the landlady in the Alamir claim and on telephone traffic between the appellant and another conspirator, Quarshie, at material times.
6.	The jury were given a full transcript of her police interview as part of the prosecution case and also saw a video recording of her interview played as part of the prosecution case.  
7.	The defence case was that the appellant had not taken any part in making false claims to the DWP.  She denied that she had made any of the telephone calls or that it was her voice in the Alamir application.  She did not give evidence in her own defence.
8.	Turning to the detail of the prosecution case at trial and starting with the Alamir application, on 28th September 2010 an application for a "rent in advance" crisis loan was made in the name of Dale Alamir, said to be Quarshie.  The name given for the landlady was Marcia Burnett and the prosecution produced evidence that the contact telephone was the number registered to the appellant.  Interrogation of Quarshie's Blackberry device showed frequent contact with the appellant and specific messaging around 28th September.  On 27th September the appellant told her that she needed the "papers" and a comment "... please, I have to get a loan tomorrow".  A voice recognition expert, Ms McClelland, called by the prosecution, gave evidence that there was moderately strong support for the assertion that it was the appellant who was speaking on the telephone posing as the landlady.
9.	Turning to the Pountney application, on 5th November 2010 an application was made in the name of Terence Pountney, providing the appellant's number as the landlady.  Telephone traffic showed contact between the appellant and Quarshie, which included reference to "can you do that thing for me tomorrow" and "shopping's free tomorrow".  There was no voice recognition evidence in relation to this application.
10.	So far as the appellant's application was concerned, on 24th November a telephone contact enquiring about a "rent in advance" loan was received from the appellant's number.  Voice recognition evidence from Ms McClelland suggested that there was moderately strong support that the caller was the appellant.  Two days later, on 26th November, the unsuccessful application was made in the appellant's name.  The caller used the appellant's telephone number and had her personal details, but the evidence suggested that it was not the appellant making the telephone call.  It followed that there was no voice identification evidence in relation to this third application.
11.	In interview, some of the recording of the voice posing as the landlady in the Alamir application on 28th September 2010 was played to the appellant.  She said that she did not recognise the voice and she denied complicity in the offence.
12.	The prosecution called evidence against the co‑accused Beckford and Wisdom, but it is unnecessary to go into this in the light of the issue that arises on this appeal.  In contrast to the appellant, both Beckford and Wisdom gave evidence in their defence.
13.	After speeches, the judge summed up the case and gave various directions of law, including how the jury should approach the fact that the appellant had not given evidence.  No complaint is made about this.  
14.	At page 24 D‑E of the summing‑up the judge said this:
"... [on] 7th June, Minnott was arrested and also interviewed.  You have been taken at length through her interview.  Also, I have touched on what I take it are the relevant aspects of that.  But, again, a complete denial of any complicity in this crime."
15.	In the course of their deliberations following retirement the jury sent a note: "Can we see the video of Simone Minnott's interview again, please?".  The discussion about the jury note started with counsel for all parties agreeing that the jury should see the video recording and the judge saying that if they were all agreed he had no difficulty with the jury seeing the recording in their retiring room.  Subsequently, the prosecution, Mr Cifonelli, raised an objection to this course, his objection being that the jury might try to compare the voice heard in one of the phone calls with the voice heard in the video interview.  He said that experts said that this was something that should not be done.  There was reference to a passage in Archbold dealing with voice recognition evidence: paragraph 14‑74 in the 2016 edition.
16.	In our view, there was not much in this prosecution point.  Experts are called to assist jurors, not to dictate their approach; the standard direction on expert evidence makes this clear.
17.	Mr King, for the appellant, submitted to the judge that the jury might be assisted in relation to the Dale Alamir phone call because the case turned on the proper identification of that voice.  
18.	In any event, the judge thought it sensible to have the jury back.  He read out the jury question to them and asked (page 31D):
"JUDGE AINLEY: ... What point was it that was particularly troubling you about it ‑‑ or that you particularly wanted?"
The answer to the first question might have been problematic, but the foreman replied to the effect that they wanted to hear her intonation.  The judge then gave this direction:
"The general rule is the way you heard her evidence was not quite the same as you might hear evidence from other witnesses.  Of course, the witness goes into the box and tells you, you gain an impression of what you have heard.  
Unfortunately, if your memory is a bit faulty on the impression that the witness gave you, you cannot have the witness back to look at them.  So the rule has really, in my judgment, to apply to this as well.  You saw the witness give her evidence.  You must form your own view about that ... So I am afraid the answer is no."
19.	On this appeal Mr King submitted that the judge's refusal to allow the jury to look at the appellant's video interview amounted to a material irregularity. The recording in the Alamir application was the main plank of the prosecution case against his client, and he submitted that the jury's verdict may not have been the same if they had been allowed to watch the interview and the conviction was therefore unsafe.  
20.	He referred this Court to two cases to which he had not referred the judge. The first is the case of Riaz & Burke [1992] 94 Cr App R 339.  The case concerned an interview and whether the recording should have been played to the jury.  The court said this at page 341:
"We turn now to consider the question whether the judge in either case was correct?  In other words, once the jury have been enclosed, is it correct for the judge, in any circumstances, to allow the jury to hear the playing over of the taped interviews which have taken place between the defendant and the police?  The tape recording of interviews has proved to be one of the most important factors in reducing the number of arguments between prosecution and defence about the admissibility, and more particularly the reliability, of statements made by defendants.  It has been a most remarkable transformation in the last few years, thanks to the general use of tape recordings of interviews.  
The tape itself, it seems to this Court, is the primary exhibit, although as a matter of convenience and also speed, the prosecution usually arrange, with the consent of the defence, for a condensed or abbreviated transcript of the contents of the tape to be provided for the use of the court and the jury.  Of course either side, or the jury themselves, may ask for the tape itself to be played during the currency of the trial.  If the request is a reasonable one, the judge no doubt will almost always accede to it.  Difficulties may arise when the tape contains objectionable or inadmissible evidence.  Sometimes it does in the shape of suggestions or admissions that the defendant for example has had previous criminal convictions.  But steps can be taken, more often than not, to overcome such difficulties.  
Occasions may arise when the mere verbal content of the tape may be misleading or inadequate, e.g. the tone of voice may be material.  In one case, within the experience of one member of this court, what appeared on the face of it to be a confession, was said to have been spoken sarcastically.  It was only if the tape itself was played that the question of whether it was sarcastic or not could be substantiated.  
Those are the usual occasions for a request for the tape to be played.  There are occasions, although they may be rare, as these two cases indicate, when the jury wish to hear the actual tape being played back, although neither side has asked that it should be done."
21.	It is clear from that passage that if the request is a reasonable one, the judge is likely to accede to the request;  that one of the circumstances in which a request may be made is where the tone of voice may be material;  and that such cases are, however, likely to be rare.
22.	Mr King also referred to a later case of Rawlings [1995] 1 WLR 178, in which the judgment of the court was given by Lord Taylor CJ:
"... it is a matter for the judge's discretion as to whether the jury's request for a video to be replayed should be granted or refused.  He must have in mind the need to guard against the unfairness deriving from the replay of only the evidence in chief of the complainant.  Usually if the jury simply wish to be reminded of what was said, it would be sufficient and most expeditious to remind them from his own note.  If, however, the circumstances suggest or the jury indicate how the words were spoken is of importance to them, the judge may in his discretion allow the video or the relevant part of it to be replayed.  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 judge does allow the video to be replayed, he should comply with the following requirements. (a) The replay should be in court with judge, counsel and defendant present. (b) The judge should warn the jury that because they are hearing the evidence in chief of the complainant repeated a second time well 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. (c) To assist and maintain a fair balance, he should after the replay of the video, remind the jury of the cross‑examination and re‑examination of the complainant from his notes, whether the jury asked him to do so or not."
23.	We would note the case of Rawlings refers to a particular issue, which is the re‑playing of the evidence of a complainant as part of the prosecution case, and this case is somewhat different.
24.	In his response, Mr Cifonelli submitted that the judge's refusal to allow the jury to watch the video did not amount to a material irregularity.
25.	We have considered these submissions.  In our view, in general where the jury ask to see a video of an interview in order to see how the evidence was given, we would expect that the video recording would be replayed to them.  So much is clear from the cases to which we have referred.  We see no good reason of principle why the approach should be different to that of the recorded evidence of a complainant: see Rawlings.  The judge's analogy with a live witness is, in our view, inexact, not least because the jury will have a written record of the police interview when they retire.  Interviews are to that extent different to other evidence called by the prosecution.  
26.	What is clear, in our judgment, is that the judge has a broad trial management power to deal with this type of jury request and will be in a good position to decide how a jury will best be assisted in dealing with the particular issue.  It is likely to be an uncommon case, as was said in Riaz, where a jury has the written record of an interview, that it will be appropriate for them to have a video recorded interview played, unless there is something in the video recording which might well make a material difference.  However, the judge was not referred to the case of Riaz, and in these circumstances we view the exercise of his discretion as flawed.  
27.	Nevertheless, the decision not to re‑play the tape, even if it amounted to an irregularity, as we think it did, was not a material irregularity.  We accept that the voice identification in the Alamir recording was an important foundation of the prosecution case, though plainly not the only one.  It may be that all or some or one member of the jury wanted to remind themselves about the appellant's voice in the video recording, but if, without hearing and seeing the video again, the jury had doubts about the appellant's guilt, they had been directed to acquit her.  
28.	In these circumstances we are clear that the conviction was safe and the appeal is accordingly dismissed.