Huntley, R. v

A breach of the identification Code does not itself make a conviction unsafe. The decisive question is whether the identification evidence remained capable of safe assessment by the jury after a proper direction on the breach and its consequences.

A jury may consider an accused’s failure to mention an exculpatory account in interview under Criminal Justice and Public Order Act 1994, section 34, where the accused had an early opportunity to give it. Legal advice to remain silent does not prevent that assessment, although the jury must consider whether reliance on the advice was reasonable.

Evidence of a propensity for violence may be admitted through a proper statutory gateway where the other evidence is sufficiently strong. Exceptional personal mitigation may justify reducing an otherwise appropriate custodial sentence.

The appellants were convicted by a jury at Wood Green Crown Court of assault occasioning actual bodily harm and criminal damage following a sustained street attack on a minicab driver.

Huntley appealed his conviction. He challenged the absence of an identification procedure after a witness pointed him out to police, the direction on his no-comment interview under section 34, and the admission of prior convictions as evidence of a propensity for violence under section 101(1)(d) of the Criminal Justice Act 2003.

Both appellants also appealed sentences of three years’ imprisonment for actual bodily harm. The central questions were whether the conviction was unsafe despite the identification breach and other evidential challenges, and whether exceptional personal mitigation warranted sentence reductions.

1. The appeals against conviction were dismissed. Although an identification procedure should have been held, the judge correctly left the identification evidence to the jury. The witness’s evidence of continuous observation from the assault until he pointed out the appellants was capable of supporting conviction. The summing-up identified both the breach and the resulting weaknesses in the evidence.

2. A breach of the identification Code was not determinative of safety. Applying the principle described as trite law in R v Forbes [2001] 1 AC 473, a verdict does not automatically become unsafe where the judge properly directs on the breach and fairly leaves the identification issues to the jury. On the facts, the evidence retained sufficient cogency for the jury to assess.

3. The direction under section 34 of the Criminal Justice and Public Order Act 1994 was proper. Huntley had an early opportunity in a neutral interview to say that he was present but took no part. The jury could attach some significance to his failure to give that account, after considering both the solicitor’s advice and whether reliance on it was reasonable.

4. The prior-violence evidence was properly admitted under section 101(1)(d) of the Criminal Justice Act 2003. Such evidence should not be used to bolster a weak prosecution case. This was not weak: the continuous-observation evidence made admission through the propensity gateway legitimate.

5. The appeals against sentence were allowed to a limited extent. Three years’ imprisonment was an appropriate starting point for the sustained drunken violence. However, the Recorder had insufficiently reflected the exceptional personal mitigation of each appellant. The sentence for actual bodily harm was reduced from three years to two years for each appellant; Huntley’s sentence on the criminal-damage count remained unchanged. The court emphasised that the reduction created no general sentencing authority for comparable violence.

• Court of Appeal (Criminal Division): Dismissed the appeals against conviction. Allowed both appeals against sentence to the limited extent of reducing the sentences for actual bodily harm from three years to two years.

• Wood Green Crown Court: In October 2005, a jury convicted both appellants of assault occasioning actual bodily harm and criminal damage. The Recorder imposed three years’ imprisonment for actual bodily harm.