Willis, R v

Later disclosure that police involved in an investigation are seriously discredited does not itself make a conviction unsafe. The appellate court must assess the particular conviction in the light of all the new material. A conviction may be unsafe where disclosure would have enabled a realistic and materially different challenge to the investigation or to a central identification, particularly where that evidence had existing weaknesses and purported support depended on affected officers. The inquiry is whether, viewed in that light, the conviction remains safe; it is not a determination of factual guilt.

The appellant was convicted at the Central Criminal Court of armed robbery, murder and robbery arising from the killing of a jewellery-shop employee during a robbery. The prosecution case against him depended principally on the shopkeeper’s identification, made five months after the offence. The identification had weaknesses and there was limited supporting evidence.

Leave to appeal was refused in 1996. The Criminal Cases Review Commission later referred the case under the Criminal Appeal Act 1995, following disclosures that several Rigg Approach Flying Squad officers involved in the investigation had been seriously discredited. The central issue was whether the new material rendered the convictions unsafe, including because it would have changed the defence’s ability to challenge possible police contamination of the identification evidence.

1. Appeal allowed. The court quashed all the appellant’s convictions because they were unsafe. No retrial was sought.
2. The later discrediting of officers from the Rigg Approach Flying Squad did not automatically invalidate every conviction in which they had been involved. Following the approach stated in Crook [2003] EWCA Crim 1272, the safety of each conviction had to be assessed on its own facts.
3. The defence had suspected at trial that the identification witness might have been shown, or otherwise exposed to, a photograph of the appellant before the identification parade. A direct allegation of police impropriety, unsupported by disclosure, would have risked admission of the appellant’s previous convictions and was therefore not pursued before the jury. The new material would have made a robust challenge to the investigating officers realistically available. The prosecution accepted that officers called to deny such an allegation would have included a Category A officer who could no longer be advanced as a witness of truth.
4. The identification was the foundation of the case against the appellant. It was materially weaker than the evidence against his co-accused: the witness had previously identified an innocent volunteer, the later identification followed a substantial delay, and the CCTV images of the third robber were poor. The evidence said to support the identification was also of limited weight, and the Daily Mirror evidence might have required proof from another Category A officer.
5. Applying the safety approach in Pendleton [2001] UKHL 66, the court concluded that the undisclosed material could have materially affected the jury’s assessment of the identification. The appellant was not opportunistically relying on the later investigation, and the court made no criticism of the identification witness. Whether the appellant was the third robber remained forensically unresolved.

• Court of Appeal (Criminal Division) On a reference by the Criminal Cases Review Commission, the court allowed the appeal and quashed the convictions as unsafe.
• Earlier appeal proceedings A single judge refused leave to appeal on 20 March 1996. The Full Court refused renewed applications on 18 October 1996.
• Central Criminal Court The appellant and two co-accused were convicted on 17 November 1995 of offences including murder and robbery.