Tomlinson, R v

Severance of counts does not itself make relevant evidence inadmissible. An appeal based on non-disclosure and a proposed severance must show that the assumed exclusion of evidence would actually have followed. Where evidence of the conduct charged in a severed count would still have been admissible on the remaining counts, the premise of prejudice fails. The same may be true in the reverse direction where the accused advances a defence, such as duress, which makes evidence on the other counts relevant.

Accordingly, undisclosed information which could not have been used to the appellant’s advantage does not establish that a conviction is unsafe.

The appellant was convicted at Manchester Crown Court of possessing cocaine with intent to supply, possessing firearms and reckless driving. He was acquitted by direction on a further firearms count. His original appeal was dismissed in 1995, although the court criticised the police handling of vital exhibits.

The Criminal Cases Review Commission later referred the case after discovering that, at the time of the arrest, police intelligence suggested that the appellant was armed and liable to use a handgun. The information had not been disclosed to the defence or prosecuting counsel. The sole ground argued was that the information might have led to severance of the reckless-driving count and thereby affected the jury’s consideration of the other counts.

Decision

1. The appeal was dismissed. The court held that the Commission’s concern depended upon an incorrect premise: severance of the reckless-driving count would not have prevented the evidence of the arrest and reckless driving from being admitted on the other counts.
2. The evidence remained relevant even if the counts had been tried separately. Further, because the appellant relied on duress in relation to reckless driving, evidence of the discovery of the drugs and firearms would have been admissible at a separate trial of that count.
3. Consequently, the undisclosed police information did not establish that severance would have altered the evidence available to the jury. Counsel accepted that the information could not itself have been deployed to the appellant’s advantage. The appellant had therefore suffered no injustice, and the conviction was not shown to be unsafe.
4. The court noted separate fresh material suggesting that the carrier bag bearing the appellant’s fingerprints may have come from another address. That matter had neither formed the basis of the Commission’s reference nor been advanced as a ground of appeal. The court was prepared temporarily to entertain an application for a further ground or a direction under Criminal Appeal Act 1968, section 23A, but no such application was made. The appeal therefore stood dismissed.

• Court of Appeal (Criminal Division) — following a reference by the Criminal Cases Review Commission, dismissed the appeal: [2003] EWCA Crim 758.
• Court of Appeal (Criminal Division) — dismissed the appellant’s original appeal in 1995, while expressing concern about police handling of vital exhibits.
• Manchester Crown Court — convicted the appellant of possession of cocaine with intent to supply, firearms offences and reckless driving; directed an acquittal on a further firearms count.