Cushman & Anor, R v

An identification case should not be withdrawn from the jury merely because the evidence has real weaknesses. Where the trial judge has considered those weaknesses and the identifying witness’s evidence remains capable of being found credible and accurate, the case may properly proceed, particularly where there is some supporting evidence.

In sentencing for offences arising from a single incident, the court should apply totality. Concurrent rather than consecutive terms may be required where consecutive sentences would make the overall punishment longer than necessary.

The appellants were convicted at Maidstone Crown Court of false imprisonment arising from a sustained assault on Graham Horsham. Cushman was also convicted of causing grievous bodily harm with intent. Masters was convicted of inflicting grievous bodily harm and had separately pleaded guilty to burglary.

Cushman renewed his application for leave to appeal against conviction. Masters appealed against conviction, principally contending that the identification evidence was too weak to leave to the jury under [1981] 1 W.L.R. 1039. Both appellants challenged their consecutive sentences. The central issues were whether the convictions were unsafe and whether the consecutive terms offended totality.

1. Conviction appeals: Cushman’s renewed application for leave to appeal against conviction was refused, and Masters’ appeal against conviction was dismissed.

2. Cushman suffered no prejudice from evidence concerning his failure to be interviewed. There was plainly a case to answer, the jury were correctly directed about adverse inferences from his failure to testify, and they were specifically directed to disregard the failure to be interviewed.

3. The earlier viewing of the identification videotape in court should not have occurred and was unnecessary. It did not prejudice Masters. The witness had already identified Cushman and knew another participant, leaving Masters as the remaining person. His cross-examination also showed that the viewing had not improperly strengthened his confidence.

4. Applying the principles in [1981] 1 W.L.R. 1039, the judge was entitled to leave the identification evidence against Masters to the jury. The court recognised the risk of mistaken identification and the witness’s vulnerabilities. However, the judge had considered the weaknesses, gave careful directions, and was entitled to regard the evidence as capable of being both credible and accurate. The videotape caused the appellate court no misgivings, and there was limited supporting evidence placing Masters near the flat shortly after the offences.

5. Sentence appeals: Both appeals were allowed in part. The violence and false imprisonment formed one incident, so the respective sentences for those offences should have run concurrently. For Cushman, the court substituted seven and a half years’ imprisonment for the section 18 offence, concurrent with five years for false imprisonment, to follow the 105-day period under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. For Masters, the four-year and two-and-a-half-year detention terms were made concurrent. The burglary term remained consecutive, as did the 475-day section 116 period, leaving four years and nine months to be served after that period.

1. Court of Appeal (Criminal Division): In [2003] EWCA Crim 694, refused Cushman’s renewed application for leave to appeal against conviction, dismissed Masters’ conviction appeal, and varied both sentences.

2. Crown Court at Maidstone: Before HHJ McKinnon and a jury, convicted both appellants of false imprisonment; convicted Cushman of causing grievous bodily harm with intent and Masters of inflicting grievous bodily harm. Masters had also pleaded guilty to burglary.