Nugent & Anor, R v

When fresh material is relied upon to challenge a conviction, the appellate court should ask whether the material, if available at trial, might reasonably have affected the jury’s decision to convict. Photographic enhancement evidence which identifies observable characteristics and leaves the ultimate comparison to the jury may be legitimate. It differs from unsupported facial-mapping opinion which purports to assess the strength of identification support.

Mere presence at a crime is insufficient for secondary liability. Liability by encouragement requires actual and intended encouragement, and an organiser is liable only for conduct within the scope of what was organised or encouraged. Different verdicts against co-defendants do not, without a credible basis for jury error, make a conviction unsafe.

Savva and Nugent were convicted at the Central Criminal Court of murder and wounding with intent arising from coordinated attacks outside the Litten Tree public house. Savva appealed against conviction. Nugent renewed his application for leave to appeal after refusal by the single judge.

Savva relied principally on later criticism of the prosecution imagery analyst, whose clothing-comparison evidence had assisted the Crown in placing Savva near the second attack. Nugent challenged the refusal to withdraw his case from the jury, the adequacy of the jury directions on participation and encouragement, and the alleged inconsistency of his conviction with Oti’s acquittal.

1. Savva’s appeal was dismissed. The later material concerning the imagery analyst did not render the conviction unsafe. The analyst’s evidence was not facial mapping. It concerned visible similarities in clothing, which were readily assessable by the jury. The analyst used legitimate photographic enhancement and did not express an opinion on the strength of the identification evidence.

   The jury had been directed that expert evidence was opinion which they could accept or reject, and that they should make their own assessment of the images and clothing. Applying the working test in R v Pendleton [2002] 1 WLR 72, the court held that fuller knowledge of the analyst’s flawed history would not reasonably have affected the jury’s decision.

2. Nugent was granted leave to appeal, but his appeal was dismissed. There was a proper case to leave to the jury. The evidence was capable of supporting an inference that Nugent had organised, encouraged and participated in the attacks. It included the earlier confrontation, threats, telephone use, the arrival and contact of others, his emergence shortly before the violence, and evidence identifying a person in his distinctive shirt among the attackers.

3. The judge’s directions correctly distinguished passive presence from participation. A person who actually and intentionally encourages an attack may be guilty. A person who organises or encourages an attack from further away may also be guilty, but only where the conduct carried out falls within the scope of what that person organised or encouraged. The written directions, read with the full summing-up, fairly related the law and evidence to each defendant. Although one formulation concerning manslaughter could have been clearer, it did not displace the prosecution’s burden of proof.

4. The verdicts against Nugent and Oti were not logically inconsistent. The cases against them, the identification issues, and the evidence bearing on them differed. Oti’s acquittal therefore provided no cogent basis for treating Nugent’s conviction as unsafe.

• Court of Appeal (Criminal Division) — Savva’s appeal against conviction was dismissed. Nugent was granted leave to appeal, but his appeal against conviction was dismissed: [2003] EWCA Crim 3434.
• Central Criminal Court — on 2 May 2001, before HHJ Stevens QC and a jury, Savva and Nugent were convicted of murder and wounding with intent. Each received life imprisonment for murder and six years’ detention in a young offenders’ institution for wounding with intent.