Sirrs & Anor, R v

A conviction is unsafe where a material omission in disclosure, a necessary warning about suspect evidence, or a failure fairly to put the defence leaves the appellate court unable to be sure of the verdict. Late disclosure does not itself have that consequence where the defence could make full use of the material and further material could not realistically affect the result.

A judge retains a contextual discretion over witness warnings. A Special Measures Direction may be varied in the interests of justice, including on the court’s own motion. A jury must decide recklessness as to endangering life where that issue remains open on the evidence.

At Hull Crown Court, Christopher Sirrs and Benjamin Povey were convicted of offences arising from violent incidents involving asylum seekers, subsequent intimidation of witnesses, and attempts to pervert the course of justice. Sirrs received a total sentence of 14 years and six months’ imprisonment. Povey received 19 years’ imprisonment.

Both appealed against conviction on numerous count-specific and general grounds. The appeals raised issues concerning prosecution disclosure, warnings about witnesses, the adequacy of the summing-up, joint enterprise, special measures for young witnesses, and recklessness in an aggravated arson count.

1. The appeals were allowed in part. Sirrs’s convictions for making an explosive substance on count 1 and perverting the course of justice on count 8 were quashed. Povey’s conviction for arson reckless as to whether life was endangered on count 10 was quashed. The court reserved the question whether to substitute a conviction for simple arson on count 10. The remaining convictions were upheld or leave to appeal was refused.

2. The late disclosure of report R1 was a serious prosecution error. It did not, however, make all affected verdicts unsafe. The defence elected not to recall Jackson, cross-examined the officer fully about the proposed arrangement, and later-disclosed material added nothing material. Applying R v Hadley and Others [2006] EWCA Crim 2554, the controlling question remained whether the failure could have affected the safety of the verdict.

3. The judge should have warned the jury to approach Jackson’s unsupported evidence with caution. His attempt to obtain favourable treatment, the apparent arrangement over his own charge, and his lack of candour about it gave him a possible motive to embellish. Since Jackson was the only evidence implicating Sirrs on count 1, the court could not be sure that the conviction was safe. The position differed for Hemsworth and Newlove, for whom no comparable evidential basis justified a special warning under R v Makanjuola 1995 2 CAR 469.

4. A trial judge must fairly present the defence, even if it appears weak. The complete omission of Sirrs’s case that his contacts with Newlove concerned car parts made his count 8 conviction unsafe.

5. Under the Youth Justice and Criminal Evidence Act 1999, a Special Measures Direction is binding but not inflexible. A party seeking a variation must ordinarily show a material change of circumstances. The judge may nevertheless vary it of the court’s own motion where justice requires. Permitting the young witnesses to give live evidence by video link was proper case management.

6. The judge wrongly removed from the jury the question whether Povey was reckless as to life being endangered by the car-port fire. Although arson was overwhelmingly established and the risk was obvious, it remained for the jury to decide whether the requisite realisation of risk was proved. That misdirection required the count 10 conviction to be quashed.

• Court of Appeal (Criminal Division) — On the appeals from convictions and sentences imposed at Hull Crown Court, the court allowed the appeals in part and quashed Sirrs’s convictions on counts 1 and 8 and Povey’s conviction on count 10: [2006] EWCA Crim 3185.
• Hull Crown Court — On 4 June 2004, Sirrs and Povey were convicted on multiple counts and received total sentences of 14 years and six months’ imprisonment and 19 years’ imprisonment respectively.