Fraser, R v

A conviction is unsafe where later-discovered information materially undermines the credibility of prosecution officers whose evidence was central to the case, so that the jury could not be said to have been bound to convict. The information may post-date the trial. The question is whether, if it had been available, it could properly have been used in the defence and would have mattered to the jury’s assessment of credibility.

Where the defence alleged police fabrication of drug evidence, credible material raising a suspicion of perjury by officers involved in the investigation could infect the reliability of the prosecution evidence and require the conviction to be set aside.

The appellant was convicted at Birmingham Crown Court of possessing cannabis and cannabis resin. The prosecution alleged that he had used another man’s house to store drugs. The defence denied knowledge of the drugs and alleged that the police had planted a wrap of cannabis resin in the police car.

Nearly ten years later, the Criminal Cases Review Commission referred the convictions after information emerged about investigations into the conduct of officers who had searched the house and arrested the appellant. Further concerns arose from missing or incomplete police notebook records. The Crown accepted that the appeal should be allowed.

The central issue was whether the new material made the convictions unsafe.

1. Appeal allowed. The court held that the convictions were unsafe.

2. The alleged police planting of drugs was central to the trial. The prosecution case depended materially on evidence from officers who said that they had found the drugs in the house and a related wrap of cannabis resin in the police car.

3. Information discovered after the trial gave rise to serious concerns about Detective Constable Brakewell’s conduct in other drug investigations. It also implicated Detective Constable Battsford, who had featured with Brakewell in allegations of police drug planting in another case. This was capable of raising a suspicion of perjury that affected the reliability of their evidence in the present case.

4. The fact that some material post-dated the trial did not prevent its use. If it had been available at trial, it would have been admissible and available to the defence as material bearing on the officers’ credibility, consistently with R v Twitchell [2000] 1 Cr App R 373.

5. The court did not make an adverse finding concerning the credibility of Constables Thompson or Heap. Nevertheless, in light of the new information about Brakewell and Battsford, the missing notebook of Thompson, and the omission in Heap’s notebook, it could not be said that a properly informed jury would have been bound to convict. The court agreed with the Commission’s reasoning and the Crown’s concession.

6. The representation order was extended to cover the limited additional work performed by the appellant’s solicitors.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court allowed the appeal and held the convictions unsafe: [2003] EWCA Crim 3180.
• Crown Court at Birmingham: The appellant was convicted on 8 November 1993 of possessing cannabis and cannabis resin, and was sentenced on 3 December 1993 to concurrent seven-year terms. A renewed application for leave to appeal against conviction was previously refused by the full court.