Hampton & Anor v The Crown

Evidence identifying a motor vehicle or registration mark does not automatically require the special warning applicable to disputed eyewitness identification. The judge should ordinarily direct the jury on the opportunity for observation and any features affecting reliability. A tailored warning remains discretionary where the facts justify it.

Under Criminal Appeal Act 1968, section 23, the Court of Appeal must decide whether receiving fresh evidence is necessary or expedient in the interests of justice. The statutory considerations are not rigid preconditions. A deliberate and informed tactical decision not to call an available witness will ordinarily mean that fresh evidence from that witness should not be received on appeal. A disclosure failure does not make a conviction unsafe unless the undisclosed material could have affected the verdict.

Gary Phillip Hampton and Michael Anthony Brown appealed convictions for the murder of Colin McGinty at Liverpool Crown Court before Morland J and a jury.

The prosecution relied principally on evidence that a dark Volkswagen Golf seen at the killing bore the distinctive letters CVM, and on evidence concerning the later movements of Brown’s car. The appellants denied involvement. Hampton relied on an alibi which was said to be supported by Jill Woodcock, but she was not called at trial.

The appeals raised the adequacy of the direction on the vehicle registration evidence, whether fresh alibi evidence should be received under section 23 of the Criminal Appeal Act 1968, and the effect of undisclosed cell-site material relating to a telephone call at 03.29.

1. The appeals were dismissed. The convictions were safe.

2. A Turnbull-type special warning was not required for evidence identifying a vehicle or its registration mark. The recognised risks of visual identification of an accused did not establish a separate category requiring that warning for vehicle-detail evidence. The trial judge nevertheless had to assist the jury by identifying the circumstances of observation and matters capable of reducing reliability. The summing-up did so: it addressed Graham’s alcohol consumption, his uncertainty and the importance of his accuracy about the letters CVM. It made clear that an error about those letters would destroy the prosecution case.

3. On the fresh-evidence application, section 23 of the Criminal Appeal Act 1968 required the court to ask whether reception was necessary or expedient in the interests of justice, having regard to the four specified considerations. They were not inflexible prerequisites. Woodcock’s proposed evidence was capable of belief, admissible, and potentially capable of affecting the verdict. However, Hampton and his advisers had made a clear, informed tactical decision not to call her. They knew the available evidence, including the inconsistencies in her accounts and the risks of cross-examination, and could have sought further time if they wished to reconsider. There was therefore no reasonable explanation for the omission and no exceptional reason to receive her evidence on appeal.

4. The cell-site material should have been disclosed. Material held by the prosecution which weakens its case or strengthens the defence should ordinarily be disclosed. But the undisclosed material was marginal and double-edged. It conflicted with Brown’s evidence that he was asleep at the material time and did not reliably establish his precise location. No jury could reasonably have reached a different verdict had it been deployed.

5. The Court also rejected the complaints concerning the sufficiency of the case against Hampton and publicity before trial. The immediate empanelling of a second jury, following a strong direction to ignore external publicity and decide only on courtroom evidence, removed any real risk of prejudice.

• Court of Appeal (Criminal Division): Appeals against conviction dismissed; the convictions were held safe.
• Liverpool Crown Court: On 18 October 2001, before Morland J and a jury, both appellants were convicted of murder.