McCallan, R. v

An undisclosed conviction of a prosecution witness does not itself make a conviction unsafe. The appellate court must assess whether the conviction was materially relevant to credibility or an issue at trial, whether disclosure could realistically have altered the defence strategy, and the strength of the remaining evidence.

A witness’s guilty plea to a violent offence did not provide a proper basis to attack credibility merely by suggesting a propensity for violence where self-defence was not in issue. The omission therefore did not undermine a verdict supported by other evidence.

The appellant was convicted at Newcastle-upon-Tyne Crown Court of possessing a firearm with intent to cause fear of violence. He had also pleaded guilty to possessing a prohibited firearm and expanding ammunition.

After trial, it emerged that the complainant had a recent conviction for assault occasioning actual bodily harm which had not been disclosed to the defence. The trial judge certified that the appellant’s conviction might be unsafe. The appeal concerned whether the nondisclosure could have affected the trial or the safety of the verdict.

Appeal dismissed. The nondisclosure did not render the conviction unsafe.

1. The proper issue was the likely effect of disclosure on the trial and verdict. It was not enough that the complainant was an important prosecution witness or that the jury’s reasoning was unknown.

2. The undisclosed conviction was for assault occasioning actual bodily harm, to which the complainant had pleaded guilty. It was not a conviction for dishonesty and did not, without more, provide material capable of sustaining a challenge to his credit.

3. Self-defence was not in issue. Accordingly, any suggestion that the complainant had a propensity for violence was irrelevant. The defence could not realistically have adopted a materially different strategy had the conviction been disclosed. The appellant was highly unlikely to have given evidence, since that would have exposed his own record of potentially violent offending.

4. The complainant’s account was capable of support from the appellant’s failure to give evidence after the appropriate direction, evidence that the complainant appeared shaken shortly after the incident, and the recovery of a loaded and cocked starting pistol. In those circumstances, the omitted conviction could not have affected the verdict.

5. The court’s approach was consistent with Underwood [2003] EWCA Crim. 1500: nondisclosure of an important witness’s convictions does not inevitably require a conviction to be quashed.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2004] EWCA Crim 463.
• Newcastle-upon-Tyne Crown Court: following a two-day trial, convicted the appellant of possessing a firearm with intent to cause fear of violence and sentenced him to four years’ imprisonment on that count.