Iroegbu, R v

A conviction is not unsafe merely because trial counsel did not seek to exclude admissions said to have been obtained following non-compliance with police safeguards. The appellate court must be satisfied that an exclusion application should obviously have been made, should have succeeded, and that the resulting admission rendered the conviction unsafe.

A delayed right of access to legal advice under the Police and Criminal Evidence Act 1984 does not itself compel exclusion. The question is whether admission would adversely affect the fairness of the proceedings. A trial judge may raise an apparent admissibility issue, but has no duty to conduct the defence case. Later guidance on good-character directions also requires a case-specific assessment of safety.

The appellant was convicted at the Crown Court at Acton in 1987 of possessing over four kilograms of cannabis with intent to supply. His appeal against conviction and sentence was dismissed by the Court of Appeal in 1988.

Following a reference by the Criminal Cases Review Commission, the Court considered whether undisclosed information about CS, who had provided information to the police, undermined the safety of the conviction. It also considered complaints concerning access to a solicitor, unrecorded police interviews, the trial judge’s comment on credibility, and the good-character direction.

The central question was whether any of those matters rendered the conviction unsafe.

1. Appeal dismissed. Kennedy LJ, delivering the judgment of the court, held that none of the five grounds undermined the safety of the conviction.

2. The undisclosed material did not create a material irregularity. Although CS may have hoped for an advantage from acting as an informer, she was not a witness and the prosecution case did not depend significantly on her. The information did not materially assist the defence or weaken the evidence of the police observations, the alleged admissions, and the appellant’s trial evidence.

3. The court rejected the contention that trial counsel’s failure to seek exclusion of the admissions rendered the conviction unsafe. Counsel’s decision not to reveal the proposed cross-examination of police officers before the jury heard it was a sensible forensic choice. The court could not conclude, without evidence from the superintendent and a voir dire that was never held, that an application under sections 58 or 78 of the Police and Criminal Evidence Act 1984 should obviously have been made or granted.

4. A possible breach of the right to legal advice did not automatically exclude evidence. Section 78 required an assessment of whether admission would adversely affect the fairness of the proceedings. Any delayed-access issue could not affect statements made before the restriction began, or statements after the appellant was said to have declined legal advice. Section 76 could not assist because no representation that a confession was obtained by oppression or unreliability had been made at trial.

5. In an adversarial trial, a judge may raise an apparent issue of admissibility with counsel but is under no duty to do so, and must not dictate the presentation of the defence. The remaining alleged discrepancies, the earlier credibility comment, and the absence of a propensity limb in the good-character direction did not render the conviction unsafe on the facts.

• Court of Appeal (Criminal Division) Following a Criminal Cases Review Commission reference, dismissed the renewed appeal against conviction: [2003] EWCA Crim 2317.
• Court of Appeal (Criminal Division) In 1988, dismissed the appellant’s original appeal against conviction and sentence.
• Crown Court at Acton On 30 July 1987, convicted the appellant of possessing cannabis with intent to supply and sentenced him to three years’ imprisonment.