Weekly Digest: 23 March 2020

The Appellant, MS, is a Pakistani national who entered the UK in 2011 at the age of 16 on a visitor’s visa. During the four preceding years, while still in Pakistan, he had been subjected to forced labour and physical abuse by relatives. One of them, his step-grandmother, brought him to the UK by deceiving him into thinking this was for the purpose of his education. On arrival, he was forced to work for no pay, as arranged by his step-grandmother for her own financial gain. He then moved from job to job for the next 15 months, under the control and compulsion of adults, as both the First-tier Tribunal (“FTT”) and the Upper Tribunal (“UT”) later found.

In September 2012, the Appellant came to the attention of the police, who referred him to a local authority social services department. They in turn referred him to the National Referral Mechanism (“NRM”), due to concerns as to his vulnerability and the possibility that he had been trafficked. However, in February 2013, the NRM decided, without meeting or interviewing the Appellant, that there was no reason to believe he was a victim of trafficking. The NRM considered that he was never under the control or influence of traffickers while in the UK and changed jobs freely. The Appellant sought judicial review of this decision in April 2013.

In September 2012, the Appellant had also claimed asylum, but that application was rejected in August 2013. The Secretary of State therefore decided to remove the Appellant from the UK. The Appellant appealed this decision on asylum and human rights grounds to the FTT, who found as above that he had been under compulsion and control. The FTT nonetheless dismissed his appeal. The UT granted permission to appeal and re-made the decision in view of errors of law by the FTT, finding in favour of the Appellant. In addressing the NRM’s decision, the UT observed that that could only be challenged by judicial review proceedings, not through the immigration appeals system. However, the UT also held that if an NRM decision was perverse or otherwise contrary to some public law ground, the UT could make its own decision as to whether an individual was a victim of trafficking. Otherwise, the decision to remove him would be contrary to the European Convention on Action against Trafficking in Human Beings (“ECAT”) and the European Convention on Human Rights (“ECHR”).

The Respondent appealed to the Court of Appeal, which allowed the appeal for the reason that, in accordance with AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469; [2014] Imm AR 513, the UT could only go behind the NRM’s decision and re-determine the factual issues as to trafficking if the decision was perverse or irrational or one which was not open to the NRM. The UT had in effect treated the NRM decision as an immigration decision and had also been wrong to consider that the obligations under ECAT were also positive obligations under article 4 of the ECHR, which prohibits slavery, servitude and forced labour.

The Appellant was granted leave to appeal to the Supreme Court. He later wished to withdraw from the proceedings, as his immigration problems had been resolved. A preliminary issue therefore arose as to whether the Equality and Human Rights Commission (“EHRC”), which had applied to intervene in the proceedings, could take over the appeal.

The Supreme Court unanimously allowed the appeal.

As to the preliminary issue, following a hearing in October 2019, the EHRC was permitted to intervene and take over the appeal. An intervener is a party to an appeal (Rules of the Supreme Court, rule 3(1)) and an appeal can only be withdrawn with the consent of all parties or the permission of the Court (rule 34(1)). The appeal therefore remained on foot until the Court permitted otherwise. The Court was permitted to adopt any procedure consistent with the overriding objective, the Constitutional Reform Act 2005 and the Rules (rule 9(7)). The overriding objective was to secure that the Court was accessible, fair and efficient (rule 2(2)). Where an important question of law that may have been decided wrongly below was raised in an appeal, it was open to the Court to permit intervention and allow the intervener to take over the conduct of the appeal [9-10].

On the principal issue, the Secretary of State conceded that, when determining an appeal as to whether a removal decision would infringe rights under the ECHR, a tribunal must determine the relevant factual issues for itself on the evidence before it, albeit giving due weight to a decision-making authority’s prior determination. It therefore became common ground that a tribunal is not bound by a decision of the NRM nor must it seek a public law ground for finding such a decision flawed [11]. This is because a tribunal has statutory jurisdiction to hear appeals from immigration decisions. The Nationality, Immigration and Asylum Act 2002 and Immigration Rules indicated that those appeals are plainly intended to involve the hearing of evidence and determination of factual issues. The House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167 had made clear that this was a tribunal’s role [12-14].

The proper consideration and weight to be given to an authority’s previous decision will depend on the nature of that decision and its relevance to the issue before the tribunal. In the present case, the FTT and the UT were better placed to decide whether the Appellant was a victim of trafficking than the authority. The more difficult question was the relevance of that factual determination to the appeals [15]. This depended upon the relationship between the obligations in ECAT and the obligations in article 4 of the ECHR [17].

Article 4 of ECAT defines trafficking such that a child, recruited and transported for the purpose of exploitation through forced labour or services, may be considered a victim of trafficking [18]. ECAT also imposes other obligations on states, to prevent trafficking and to identify and protect its victims [19]. In Siliadin v France (2006) 43 EHRR 6, the European Court of Human Rights held that states have positive obligations under article 4 of the ECHR to adopt and apply criminal law provisions against slavery, servitude, and forced labour. In Rantsev v Cyprus and Russia (2010) 51 EHRR 1, it held that trafficking within the meaning of article 4 of ECAT fell within the scope of article 4 of the ECHR. The state had a positive obligation to prevent, to investigate, to protect and to punish [23-26]. This was confirmed in Chowdury v Greece (Application No 2184/15) and in J v Austria (Application No 58216/13) [32-33]. The investigative duty arises whether or not there has been a complaint and must be capable of leading to the identification and punishment of the individuals responsible [25].

In the present case, the UT decided that the Appellant was a victim of trafficking. Once brought to the attention of police, the Appellant was removed from the risk of further exploitation, while the UT held that he would not be at risk of re-trafficking if returned to Pakistan. However, there had not yet been an effective investigation into the breach of article 4, as the police took no action after referring him to social services. Such an investigation is required and cannot take place if the Appellant is removed to Pakistan. The appeal is therefore allowed and the UT’s decision on this ground restored [34-36].

On 17 July 2008, in the Crown Court at Leeds before H.H. Judge Milford Q.C. and a jury, the appellant was convicted of placing an article with intent (a “hoax” bomb) (count 1) and engaging in the preparation of an act of terrorism (count 2). These are the convictions with which we are principally concerned in this case.

On 20 February 2013, at the Central Criminal Court, the appellant was acquitted of engaging in the preparation of an act of terrorism. The prosecution relied on the appellant’s previous conviction in 2008 as bad character evidence (viz. demonstrating propensity). The defence case in this regard was that the 2008 conviction was incorrect, and it was contended the appellant was not a terrorist and did not have the intention to commit an act of terrorism.

On 9 April 2014, the appellant submitted an application to the CCRC in respect of the 2008 conviction. This application led to the present appeal.

The appellant appealed against his conviction for the 2008 offences. This was on the sole basis that a post-trial diagnosis of Autistic Spectrum Disorder may affect the safety of his conviction. The accompanying application to rely on fresh evidence (Dr Blackwood) pursuant to section 23 of the Criminal Appeal Act 1968 has been referred to the court by the CCRC. Dr Blackwood summarised his conclusions as follows:

“The absence of an understanding of his impaired appreciation of the social world and his fixed interests, abnormal in intensity and focus, clearly impacted upon the conduct of his defence. This potentially calls the safety of the original convictions into question”

The appeal was dismissed.

The Court stated that the real issues in the case were, on count 1, given the appellant agreed he left the hoax bomb on the bus, whether he intended that others on the bus should believe it was a genuine bomb which was likely to explode causing damage or injury. On count 2, the jury needed to be sure that the appellant intended to commit terrorist acts and that with that intention acted in a way that was preparatory to committing terrorist acts.

The critical conclusion on the part of Dr Blackwood that the appellant may not have appreciated the impact of his actions on others had been revealed in the pre-trial reports in 2008. This area of evidence was available to be developed if the appellant’s legal team at trial had wished to pursue it. (para 41)

Dr Blackwood has indicated that the appellant may have had this material because he wanted to shock, albeit he observed the appellant does not appear to have developed any deeply held beliefs in this regard. None of this, however, was accepted by the appellant. Dr Blackwood also suggested that the appellant had a long-standing and intense interest in explosives. This did not fairly represent the appellant’s case at trial. An expert called to support this analysis would have given evidence that ran contrary to the appellant’s core defence on the issue, by undermining his own account given under oath. The appellant could not have called a witness to explain “narrowed interests” which he did not accept he held. Dr Blackwood may have be correct in his diagnosis but given the appellant’s consistently held defence to these two charges, it did not constitute evidence that he realistically could have introduced. (para 44) The Court added as regards count 2, that although Dr Blackwood was of the view that autism explains why the appellant might have become obsessed with a particular issue or activity, he accepted the diagnosis would not throw light on why he became interested in the first place. (para 45)

Although Dr Blackwood referred to the possibility that an intermediary could have been appointed to assist the appellant, there is no suggestion that the trial process was flawed or unfair because this step was not taken. Indeed, Dr Blackwood observed “there do not appear to have been any oddities in the coherence of his evidence or weaknesses emerging either because of his mentalising deficits or his over literal style which takes insufficient account of context. The account which he gave in his evidence in chief and on cross-examination does not substantially differ from the account which he continues to give.” Dr Blackwood accepted that it is likely he would have been found fit to plead. (para 50)

Dr Blackwood expressed the view that the appellant may not have been convicted of either offence, and particularly count 2, had the court and the jury been aware of the impact of his autism on the way he behaved. The Court disagreed with that observation. There was directly relevant material available at the time of the trial as to the lack of understanding on the part of the appellant as to the consequences of his actions which his counsel understandably chose not to use (viz. his insensitivity to prevailing social norms and conventions). Additionally, the suggested “mobilisation of expert psychiatric and psychological opinion” concerning the nature and impact of his autistic deficits would have been unusable because it would have involved introducing evidence that did not align with – indeed, to a significant extent directly contradicted – the appellant’s defence at trial. (para 51)

The respondent faced two charges: count 1, causing death by dangerous driving and count 2, causing serious injury by dangerous driving. She was jointly charged with a man (L) who pleaded guilty to these charges as well as a further count of causing serious injury by dangerous driving (count 3). The circumstances giving rise to the charges arose from a collision on the M1 in November 2017. The prosecution case was that in the early hours of the morning a truck driven by L struck the rear of a car driven by the respondent, at a time when the car was stationary on the hard shoulder, some 500 m from an exit slip road. A passenger (C) in the respondent’s car died as a result of the collision and another (M) was seriously injured.

L and the respondent were jointly charged with causing death by dangerous driving (count 1) and causing serious injury to M by dangerous driving (count 2). L, alone, was charged with causing serious injury to A by dangerous driving (count 3). The prosecution case was that both L and the respondent were responsible for the collision. Although the respondent’s car was not moving at the time, (1) as a matter of law the respondent was ‘driving’, (2) that driving was dangerous, and (3) it was a contributory factor in the collision.

The Judge’s ruling was either wrong in law or involved an error of principle. In these circumstances, and as provided by s.61(4)(b) of the Act, the Court ordered a fresh trial of the respondent on count 1.

Although the appeal was put in a number of ways they can be conveniently be stated in the form of two questions: first, whether the Judge’s interpretation of Girdler resulted in an approach to the issue of causation that was too confined; and if so, whether there was a case for the Jury to consider on the facts?

In Girdler, the court was concerned with a collision on a major road in different circumstances. After a full review of authorities on what the court described as a ‘new and intervening act or event’, the Court said this at [43]:

… We suggest that a jury could be told, in circumstances like the present where the immediate cause of death is a second collision, that if they were sure that the defendant drove dangerously and were sure that his dangerous driving was more than a slight or trifling link to the death(s) then:

the defendant will have caused the death(s) only if you are sure that it could sensibly have been anticipated that a fatal collision might occur in the circumstances in which the second collision did occur.

The judge should identify the relevant circumstances and remind the jury of the prosecution and defence cases. If it is thought necessary, it could be made clear to the jury that they are not concerned with what the defendant foresaw.

The issue on this appeal was how to apply the words ‘in the circumstances’ in the phrase, ‘it could sensibly have been anticipated that a fatal collision might occur in the circumstances’ in which the collision occurred. The Court held that the law does not require that the particular circumstances in which a collision occurs should be foreseeable.

What had to be sensibly anticipated was that another vehicle might leave the carriageway and collide with the respondent’s parked car. It would not be necessary for the jury to be sure that the particular circumstances of the collision or ‘the exact form’ of the subsequent act was reasonably foreseeable. (para 35)

It follows that, in the Court’s view, the Judge adopted too confined an interpretation of the Girdler formulation, and as a consequence he erred in his conclusion that there was no case to answer. If a driver leaves a car, on the hard shoulder of a motorway for 15 minutes at 4.30 am on a November morning, without displaying any lights, a jury could properly conclude that some form of collision could occur, and that, if it were occupied, death or serious injury could be caused.

Accordingly, in the words of s.67 of the Criminal Justice Act 2003, the Judge’s ruling was either wrong in law or involved an error of principle. In these circumstances, and as provided by s.61(4)(b) of the Act, the Court ordered a fresh trial of the respondent on count 1.

The defendants appealed against a decision dismissing their counterclaims of dishonest conspiracy against the claimants.

The first claimant bank brought a claim for £16.5 million against the first and second defendant husband and wife under personal guarantees and a personal loan. They, together with their company, the third defendant, counterclaimed for damages in respect of an alleged conspiracy unlawfully to raid and seize the assets of two of their main businesses in Russia, which owned land at port terminals. The counterclaim was made against the bank and its chairman, the second claimant, for unlawfully causing the defendants harm under art. 1064 of the Russian Civil Code by selling the assets pledged to the bank to connected parties for less than their proper market value. There was a 46-day trial and the judge gave judgment 22 months later. He held that the bank’s debt claims succeeded and dismissed the defendants’ counterclaims. However, he declined to make negative declarations sought by the claimants as to the absence of any dishonesty or deceit on their part, and the defendants’ alleged bad faith in raising their counterclaims. He said that he was troubled by aspects of the evidence and dismissed the counterclaims “having regard to the strength of the evidence that was necessary to discharge the burden of proof”.

The defendants submitted that the judge had misdirected himself as to the standard of proof, setting too high a bar for dishonesty to be established; and that the judge adopted a piecemeal approach which prevented him from standing back to see how his misgivings built up to an irresistible inference of the fraud alleged. The claimants submitted that the judge had misapplied Patel v Mirza [2016] UKSC 42, [2017] A.C. 467, [2016] 7 WLUK 518 and should have dismissed the counterclaim on grounds of illegality, since the first defendant admitted paying bribes to obtain licences for the acquisition and development of his port businesses.

The appeal was allowed.

There was a single standard of proof in civil proceedings: the balance of probabilities. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. In commercial cases, there would be a wide spectrum of probabilities as to the occurrence of reprehensible conduct. In the instant case the judge held that both parties had behaved dishonestly and lied to the court. The judge had failed to apply the correct standard of proof. There were indications throughout his findings of fact on the counterclaim that he was applying too high a standard. He had been wrong to say that the defendants’ “burden of proof … could only be discharged by showing the facts to be incapable of innocent explanation”. Reading the judgment, fairly and as a whole, the judge had applied too high a standard of proof throughout his treatment of the counterclaim (see paras 44-56 of judgment).

The judge had failed to stand back and consider the effects and implications of the facts he had found taken in the round. Although some of his findings were safe, his overall determination of the counterclaim was unreliable. It was affected by inconsistencies, and a failure to consider how the facts that he had found at one stage affected the likelihood of the defendants’ allegations at a later stage (paras 59-73).

The unwritten rule applicable to both the Business and Property Courts and the Court of Appeal was that judgments should be delivered within three months of the hearing. However, the delay of 22 months in the instant case was not enough on its own to require a retrial (paras 77-84).

In respect of the illegality issue, the judge had not erred in law in applying Patel v Mirza, Patel v Mirza considered. It would do nothing to prevent or discourage bribery to deny the defendants’ claim for damages for a subsequent dishonest conspiracy. The two events were not as closely connected as the claimants contended. There was a strong public policy in allowing the defendants to vindicate their rights, if they were shown to be entitled to do so, in respect of the claimants’ dishonest conspiracy to remove their property. The denial of the defendants’ counterclaim would not be a proportionate response to the illegality, bearing in mind that punishment for bribery was generally a matter for the criminal courts (para.91).

The matter should be remitted to a new judge to determine the issue of whether or not the claimants were liable under art. 1064 for the alleged dishonest conspiracy. There should be no need for further evidence of Russian law. The question of whether the defendants actually sustained harm would need to be determined again (para.103).

The appellant appealed against a decision that he was in contempt of court.

The appellant and the respondent, his former wife, were in dispute concerning the beneficial ownership of a valuable property. The property was owned by a company of which the appellant was sole director and the respondent was sole shareholder. A freezing order was made restraining the parties from disposing or dealing with the company’s income or assets, except to enable the company to meet its tax or other liabilities. It was alleged that the appellant had used company funds to pay his living expenses and legal costs after the freezing order was made. The respondent applied for his committal for contempt.

The appellant was unrepresented at the hearing but indicated that he wished to waive his right to legal representation and legal aid. He had filed an unsigned statement and was invited to take the stand to swear to the truth of its contents. He was then cross-examined, and asserted that the payments had been in respect of the company’s liability to pay him a salary and repay loans he had made to it. The judge found that he had been in knowing breach of the freezing order and that contempt was established.

The appellant submitted that he had not been informed of his right to silence and had not known that he did not need to give oral evidence. He alleged that the hearing was therefore procedurally unfair.

The appeal was allowed.

CPR PD 81 and FPR PD 37A did not explicitly refer to the right of silence. It would better if they did, although the Civil Procedure Rules Committee was in the process of consultation upon proposed rule changes to do so. Proceedings for contempt of court were unlike ordinary civil or family proceedings in that they might lead to the imposition of a punishment. For that reason, special safeguards existed for the benefit of the respondent/defendant. At the same time, the overall objective was fairness, and in seeking to achieve that the court had to take into account the interests of all parties and the public interest in maintaining the court’s authority. That approach was reflected in FPR PD 37A r.13.2 and CPR PD 81 para.16.2 which permitted, but did not require, the court to waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice had been caused. Accordingly, while it was of great importance that the procedural rules were complied with, the process would not be invalidated on purely technical grounds that had nothing to do with the justice of the case (see paras 11, 15 of judgment).

Regarding the procedural requirements in contempt of court applications, the starting point when striking the balance was the duty on a court hearing committal proceedings to ensure that the accused was made aware that they were not obliged to give evidence and also warned that adverse inferences might arise from exercising the right to silence. Those messages contained a tension, but what mattered was that the choice of how to proceed belonged to the litigant and not to the other party or to the court. It was of particular importance when the litigant was unrepresented. Had the judge been referred to the checklist in L (A Child), Re [2016] EWCA Civ 173, [2017] 1 F.L.R. 1135, [2016] 3 WLUK 628, it was possible that the appeal might not have arisen. The revised procedure rules that were currently subject to consultation should be a further source of assistance for litigants, lawyers and judges in ensuring the procedural integrity of committal proceedings (paras 16, 22).

The procedural breach that had occurred was not a purely technical one. The right to silence was a core element in criminal proceedings and proceedings of a criminal character. The freezing order allowed for proper payments to be made from the company accounts, so the mere making of payments had not established the alleged breaches. The respondent had to prove that the appellant made the payments knowing that they were not proper liabilities of the company. There was no doubt that the judge’s conclusions on that matter owed much to her assessment of the appellant’s oral evidence.

The appellant had provided a document setting out his case which could have been received as a witness statement. He did not need to give oral evidence for it to have been treated as evidence: he could simply have been asked whether he wished to sign it. The court would then have had written evidence from both parties. At that point, the appellant would have had the choice of giving evidence or not. Had he chosen to give evidence, he could have had no complaint about the consequences. Had he chosen not to give evidence, the court would have dealt with the matter on the evidence before it. It could not be said with certainty that no injustice had occurred. Had the appellant been informed that he was not obliged to give evidence, he might not have done so, and the judge’s findings might not have been the same (paras 18-20).

The court was required to consider whether to anonymise the appellant and her family in an extradition judgment.

In January 2020, in an extempore judgment, the court allowed the appellant’s appeal against her extradition to Ireland and ordered her discharge. It was also held that the appellant and her family members should be anonymised. The judge subsequently requested representations from the parties on whether, following the decision in Short v Falkland Islands [2020] EWHC 439 (Admin), [2020] 2 WLUK 335, the appellant should be anonymised in the published judgment that was to follow.

The appellant submitted that the position of her daughter was of central significance, as she suffered from merosin-negative congenital muscular dystrophy, a condition which had a devastating impact on her everyday life. She said that the main judgment addressed the daughter’s circumstances in detail, including those of an intimate nature which, if disclosed to the general public, would be likely to cause the daughter embarrassment and distress.

The respondent submitted that the appellant’s name should be given in the heading of the judgment, because the exceptional circumstances identified in R. (on the application of Press Association) v Cambridge Crown Court [2012] EWCA Crim 2434, [2013] 1 W.L.R. 1979, [2012] 11 WLUK 628 were not present, namely whether publication would imperil a party’s life or safety or that of his family, or lead to a significant threat to the administration of justice.

Short 2 had held that the exceptional circumstances required before reporting restriction should be imposed preventing the identification of a person accused of crimes also applied in extradition proceedings, Short 2 applied, Press Association considered. The appellant was not seeking an order prohibiting her identification, but publication of the judgment in a form that withheld her name from the public. Although any order prohibiting disclosure would involve such anonymisation, the converse was not necessarily the case, Press Association considered.

The practice of anonymisation in cases involving children had been implicitly recognised by the Supreme Court in R. (on the application of HH) v Westminster City Magistrates’ Court [2012] UKSC 25, [2013] 1 A.C. 338, [2012] 6 WLUK 423. There was no legitimate public interest in reporting the instant case in such a way as to lead to the harm to the family which would likely be caused by the appellant’s identification. With regard to the respondent’s argument, the instant case was solely concerned with whether to withhold the appellant’s identity, as opposed to an order prohibiting publication, and so it was not necessary for the Press Association exceptions to be present, Press Association considered.

Nevertheless, Short 2 highlighted the importance of open justice in the area of extradition. A very good case would have to be made for a person who had been convicted of a criminal offence abroad, and whose return was sought by the country of conviction, to avoid being named in an England extradition judgment, Short 2 applied. The mere existence of children was unlikely to be sufficient to justify anonymisation of such an appellant. In the instant case, however, it was appropriate to withhold the appellant’s name in the judgment (see paras 3, 8-10, 13-14 of judgment).

On 12 July 2018 the Claimant was convicted of assaulting Jamie Taylor by beating him on 28 November 2017 for which, on 5 February 2019, he was sentenced to a community order. In this claim for judicial review, he sought to have the conviction set aside, on the ground of that the procedure was unfair in that, he submitted, he was convicted for an offence for which he was not charged and/or an offence the particulars of which he was not made aware.

On 29 March 2019, Carr J refused a stay in relation to performance of the obligations of the sentence; and, on 25 June 2019, Pepperall J refused his application for permission to proceed with the claim on the papers. The Claimant renewed that application in the present proceedings.

The Court refused the application.

As the thrust of his substantive claim, the Claimant alleged that he was convicted of an offence with which he was not charged: he was charged with “common assault”, but convicted of “assault by beating”.

The Court was satisfied by the evidence from the magistrates’ court (notably the court record) that the charge against the Claimant was amended, in his presence, on 13 February 2018 to state that it was an “assault by beating”. The Claimant said that he was particularly anxious at that time, and it may well be that he simply fails to remember that minor amendment having been made. That amendment made the case against him clear: the basis of it was a battery strictly so-called.

However, even if the charge had not been amended thus and it had remained as a charge of just “common assault”, that general description would have incorporated the more specific “battery” or “assault by beating”. The Court had not seen the evidence; but there is nothing to suppose that, as is usual, the initial charge of assault involved an allegation, supported by the evidence, that the Claimant had used unlawful force on the complainant. The conviction of “assault by beating” would therefore have been open to the magistrates, in any event; and the Claimant did not suffer any possible prejudice or unfairness. He says that he did not know the particulars of the offence against him, but it could be safely assumed from the charge that he was being charged with actually using unlawful force. In any event, there was no evidence that the preparation of his defence would have materially altered if he had known that the allegation against him had been confirmed as actual violence or merely the threat of imminent violence; for example, because there was some point of law or issue of fact that he would have investigated or pursued that he did not in fact investigate or pursue, or he would have attended or been represented at his trial.

The Court considered that the ground of challenge upon which the Claimant relies was unarguable. Further, although he does not now rely upon them, his other complaints about procedural errors did not arguably make the trial unfair, or the verdict unsafe.