Davies, R. v

Where the prosecution case depends on an inference of continuous participation in a joint offence, before-and-after sightings may be insufficient to leave the case to a jury if identification and description evidence materially undermines that inference.

Fresh evidence from a convicted co-accused requires particular caution because of the risk of collusion. However, it may be received under section 23 of the Criminal Appeal Act 1968 where, having considered the statutory factors, it is capable of belief and, together with weaknesses in the trial evidence, makes the court unsure of the safety of the conviction.

The appellant and a co-accused pleaded guilty to taking and driving a Ford Orion and to driving while disqualified. They were then convicted at Wolverhampton Crown Court of robbing the keys of a Subaru during a car-jacking. The appellant received eight years’ imprisonment for robbery.

The prosecution relied principally on sightings of the appellant in the Orion shortly before the robbery and in the Subaru about 35 minutes afterwards. The victim had not identified him and the descriptions of the robbers did not adequately match his conspicuous appearance.

The appeal challenged the rejection of a submission of no case to answer. The court also received fresh evidence from the co-accused asserting that the appellant was not present or involved in the robbery. The central issue was whether the conviction was safe.

1. Appeal allowed. The court was left unsure of the safety of the appellant’s robbery conviction.

2. The prosecution’s before-and-after sightings were circumstantial evidence capable of suggesting that the appellant had participated in the robbery. But the victim had failed to identify him, had selected an unconnected person at an identification parade, and the witness descriptions did not properly match the appellant’s distinctive size and appearance. Taken alone, that negative identification and description evidence meant that the circumstantial continuity case was insufficient to leave to the jury. The submission of no case to answer should have succeeded.

3. The court approached the co-accused’s fresh exculpatory account with the usual caution applicable to evidence offered by a convicted accomplice in support of a co-accused. There was an obvious risk of collusion between close friends and criminal associates. Nevertheless, after considering all four factors under section 23 of the Criminal Appeal Act 1968, the court received the evidence.

4. The court did not find that the co-accused’s account was true. It held only that the account was capable of belief and might be true. It accorded with the appellant’s eventual trial account and with the uncertainties in the prosecution evidence. That evidence reinforced the conclusion that there had been no case fit for the jury and independently rendered the conviction unsafe.

• Court of Appeal (Criminal Division): Allowed the appellant’s appeal against conviction.

• Crown Court at Wolverhampton: Convicted the appellant of robbery following a trial before Judge Hodson and a jury, and imposed eight years’ imprisonment for that offence.