MccArtney & Ors, R. v

The safety of a conviction is not undermined by late disclosure unless timely disclosure might materially have affected the jury’s assessment of the relevant witness. The Crown should obtain prison records early where a pivotal witness has a known prison history.

A section 34 direction must preserve the burden of proof and identify the statutory conditions for an adverse inference. Defects are assessed in their context and do not automatically make a conviction unsafe.

Different verdicts are unsafe only where they are logically irreconcilable with facts necessarily found in returning acquittals. A no-comment interview does not, without a positive assertion putting identity in issue, trigger the identification-parade requirement in Code D.

Unjustified appellate delay may warrant a proportionate reduction in sentence.

Following a seven-week trial at Manchester Crown Court, the appellants were convicted of conspiracy to rob in connection with a series of armed robberies and attempted robberies. The Crown case depended principally on the evidence of an accomplice, Raymond Lally, supported to varying degrees by eyewitness, telephone and surveillance evidence.

McCartney, Hamlett, Beddow and Hulme challenged their convictions on grounds including disclosure, jury discharge, adverse inferences from silence, allegedly inconsistent verdicts and identification. Hulme, Hamlett and McCartney also challenged sentence. Beddow was granted an extension of time and leave to appeal sentence because of delay in the appeal.

The central questions were whether any asserted procedural defect rendered the convictions unsafe and whether the sentences were manifestly excessive or required reduction for appellate delay.

1. The conviction appeals were dismissed. The court held that late or non-disclosure of material concerning Lally did not render the convictions unsafe. Although the Crown should have obtained his prison records at an early stage, no identified document was likely, if disclosed in time, materially to affect the jury’s assessment of his credibility. The decisions not to recall Lally or pursue particular cross-examination were legitimate forensic decisions.

2. The trial judge properly refused to discharge the jury after anonymous calls to a juror. All concerned accepted that the calls were unrelated to the trial, the jurors confirmed that they could continue, and no realistic prejudice arose. The later refusal to discharge the jury after disclosure was also within the judge’s discretion.

3. The directions under section 34 of the Criminal Justice and Public Order Act 1994 were imperfect. A complete direction must preserve the prosecution burden, identify the conditions for an inference, require consideration of fairness and any explanation for silence, and explain that silence may reflect the absence of an answer capable of withstanding examination. In context, however, the directions did not render Hamlett’s or Beddow’s convictions unsafe. The judge had withdrawn any adverse inference against Hamlett and strongly advised against one in Beddow’s case.

4. Acquittals of other defendants did not logically conflict with these convictions. An acquittal establishes only that the jury was not sure of guilt. It does not necessarily show that it rejected the accomplice’s evidence generally. There was a rational evidential basis for distinguishing the acquitted defendants.

5. Code D was not breached. Hamlett’s no-comment interview, without consent to or request for a parade and without a positive assertion putting identity in dispute, did not reasonably indicate that identification was contested.

6. The sentence appeals succeeded only to a limited extent. The individual sentences were not manifestly excessive, applying the starting point for armed bank and security-van robberies in Turner and others 61 Cr.App.R. 67. However, delay in determining the appeals was not attributable to the appellants. Each sentence was reduced by 12 months as redress for breach of article 6(1) of the European Convention on Human Rights.

• Court of Appeal (Criminal Division): By [2003] EWCA Crim 1372, dismissed all appeals against conviction. The court dismissed the substantive challenges to sentence but reduced each appellant’s sentence by 12 months for delay in the appeal proceedings.

• Manchester Crown Court: Following a trial lasting more than seven weeks, Hamlett, Beddow, McCartney and Hulme were convicted of conspiracy to rob and sentenced on 20 April 2000.