Young, R v

A conviction is unsafe where fresh evidence and serious defects in the investigation, viewed cumulatively, create substantial anxiety about the reliability of essential prosecution evidence. The appellate court must assess the ultimate safety of the conviction, even where the defects might not independently have supported an abuse-of-process argument.

Fresh photographic evidence may support an appeal where it materially undermines identification evidence and there is a reasonable explanation for its absence at trial, including that the relevant vantage point was unavailable to the defence.

The appellant was convicted at a 1986 retrial in Leeds Crown Court of two counts of criminal damage and possessing petrol bombs with intent to destroy or damage property. His first appeal against conviction was dismissed in 1991.

Following a reference by the Criminal Cases Review Commission, the appeal concerned alleged police fabrication of admissions and planted evidence, the refusal of access to a solicitor, the basis for a search warrant, and fresh photographs said to undermine the sole identifying witness's claimed view of the appellant. The central issue was whether the convictions remained safe when those matters were considered together.

1. Appeal allowed. The court quashed all three convictions as unsafe. Although the Crown did not resist that result, the court independently concluded that it was the correct disposition.

2. The court treated the ultimate question as the safety of the convictions. It did not regard the alleged defects as necessarily establishing a successful abuse-of-process argument at the time of trial. Their cumulative effect, however, gave serious cause for anxiety about convictions which depended critically on alleged admissions and identification evidence.

3. The alleged contemporaneous complaint that officers were fabricating interview notes was serious. Its failure to be investigated deprived later courts of evidence which could have resolved whether the notes were genuine or fabricated. The refusal of access to a solicitor was also unjustifiable. A solicitor's presence could have verified any admissions or protected the appellant against impropriety.

4. The court considered that there was force in the criticism of the search warrant. The warrant was sought under section 26(1) of the Theft Act 1968 to find stolen windscreen wipers, although it was difficult to justify a belief that they would be at the appellant's premises.

5. Under section 23 of the Criminal Appeal Act 1968, the fresh photograph could afford a ground for allowing the appeal. It strongly indicated that the identifying witness's asserted line of sight to the street lamp was obstructed. There was a reasonable explanation for its non-production at trial because the defence had not had access to the bedroom vantage point from which it was taken.

6. Self-defence was technically capable of applying to the possession count, but the absence of a direction on it did not itself make the conviction unsafe. The appellant's case had been that the petrol bombs were planted, and the asserted intended use was to throw them at another person's car.

7. The court indicated that the appellant should receive repayment of his legal-aid contribution and the costs of his first appeal through a defendant's costs order.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court allowed the appeal and quashed the convictions as unsafe: [2005] EWCA Crim 1121.
• Court of Appeal: The appellant's earlier appeal against conviction was dismissed in 1991. No citation is stated in the judgment.
• Leeds Crown Court: At a 1986 retrial, the appellant was convicted of two counts of criminal damage and possessing articles with intent to destroy or damage property.