Cummiskey, R v

When post-trial material undermines evidence used at trial, the appellate court must decide whether the conviction is unsafe. In a difficult case, it should test its provisional view by asking whether the material, if available at trial, might reasonably have affected the jury’s decision to convict. If it might, the conviction is unsafe.

The court must not assume that a jury relied solely on evidence which remains admissible where the record leaves open the possibility that discredited interview evidence contributed to its verdict. This approach follows Pendleton [2001] UKHL 66.

The appellant was convicted at Birmingham Crown Court in 1985 of robbery and possession of firearms with intent, arising from the armed robbery of a Post Office security van. The prosecution case included his proximity to the getaway vehicle, remarks allegedly made in police interviews, and scientific evidence said to link him with the vehicle.

After serious misconduct within the West Midlands Serious Crime Squad came to light, the conviction of his co-defendant, Meads, was quashed. The Criminal Cases Review Commission referred the appellant’s case under section 9 of the Criminal Appeal Act 1995. The Crown accepted that it could no longer rely on the interview evidence. The central issue was whether the remaining evidence nevertheless made the conviction safe.

1. Appeal allowed. Lord Justice Kay, giving the judgment of the court, held that the conviction was unsafe and quashed it.

2. The newly available material concerning misconduct by members of the West Midlands Serious Crime Squad could have been used to cross-examine the officers who conducted the appellant’s interviews. The Crown properly accepted that it could no longer rely on the incriminating remarks allegedly made in those interviews. The court made no finding that any police officer had acted improperly in this particular case.

3. The scientific evidence was contested at trial. There were discrepancies concerning exhibit handling and the timing of the recovery and examination of the shotgun. The court could not determine whether the jury had treated the scientific evidence as conclusive on its own, or had relied on it together with the interview evidence. It could therefore not safely conclude that removal of the interview evidence would have made no difference.

4. Applying the approach in Pendleton [2001] UKHL 66, the court asked whether the fresh material might reasonably have affected the jury’s decision. It might have done, so the conviction had to be regarded as unsafe.

5. No retrial was ordered. The events were long past and the appellant had completed his sentence. The court made a defendant’s costs order.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the court allowed the appeal and quashed the conviction: [2003] EWCA Crim 3933.
• Court of Appeal (single judge): An earlier application for leave to appeal against conviction was refused. It was not renewed.
• Birmingham Crown Court: On 24 July 1985, following a retrial, the appellant was convicted of robbery and possession of firearms with intent and sentenced to 15 years’ imprisonment, with a concurrent seven-year sentence.