Thomas, R v

A conviction is unsafe where later information materially undermines the reliability of the principal prosecution witnesses and the remaining untainted evidence cannot sustain the verdict with confidence. The Crown should not invite the court to uphold such a conviction.

When a previous conviction is quashed, a later sentence that depended on that conviction must be reconsidered on the corrected criminal record. Time wrongly served for the quashed conviction is part of the offender’s background, but it cannot be credited day for day against a proper sentence for separate offending.

The Criminal Cases Review Commission referred the appellant’s 1994 convictions for robbery and possessing a firearm with intent to the court. The prosecution case had depended heavily on evidence from police officers involved in the arrest.

Subsequent misconduct proceedings concerned key officers. One had been convicted of acts tending to pervert the course of justice, another had been required to resign, and a further officer had been suspended. The Crown accepted that the conviction could no longer safely stand.

The appellant also sought leave to appeal a 2001 life sentence for possessing a firearm with intent to endanger life. The life sentence had been imposed under Powers of Criminal Courts (Sentencing) Act 2000, section 109, with a specified period declared under Crime (Sentences) Act 1997, section 28. The central sentencing issue was the consequence of quashing the 1994 conviction.

1. The appeal against conviction was allowed. The court held that the prosecution could no longer invite it to regard the 1994 convictions as safe. The evidence of Detective Sergeant Miller and Detective Constable Howell had been central to proving the appellant’s participation. Later events seriously undermined their reliability. Detective Constable Smith had also supplied part of the alleged corroboration, while the civilian witness had not seen enough to sustain the conviction alone.
2. Leave to appeal sentence was granted and the life sentence was replaced by a determinate sentence of nine years’ imprisonment. The quashing of the 1994 conviction meant that the sentencing judge in 2001 had not been required to impose a life sentence under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. The judge’s indication that a determinate sentence would have been ten years was the appropriate starting point.
3. The court gave no significant weight to disparity with the co-defendant’s 12-year sentence. It did, however, give weight to the fact that the appellant’s corrected record was materially less serious than the record available to the sentencing judge. It also took limited account of the background fact that the appellant had served imprisonment for a conviction that should not have stood.
4. Time served for the quashed 1994 conviction could not be used as a year-for-year or day-for-day credit against sentence for the distinct 2000 offending. Such a credit would be wrong and illogical. The court reduced the determinate sentence from the indicated ten years to nine years.
5. A defendant’s costs order was made following the successful conviction appeal and the partially successful sentencing appeal.

• Court of Appeal (Criminal Division): In [2003] EWCA Crim 1555, the court allowed the appeal against the 1994 convictions, granted leave to appeal sentence, and substituted nine years’ imprisonment for the 2001 life sentence.
• Central Criminal Court: On 18 June 2001, the appellant was convicted by a majority of possessing a firearm with intent to endanger life. He received life imprisonment under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, with a specified period of four and a half years under section 28 of the Crime (Sentences) Act 1997.
• Court of Appeal (Criminal Division): On 20 December 1994, the Full Court refused renewed leave to appeal against the 1994 convictions.
• Central Criminal Court: On 22 July 1994, the appellant was convicted of robbery and possessing a firearm with intent, and was sentenced to a total of five years’ imprisonment.