O'Toole, R v

A conviction may be unsafe where later-discovered police misconduct, if available at trial, might reasonably have affected the jury’s decision. The governing question is whether the fresh material could properly have been used to test the reliability of the police witnesses and whether it could reasonably have induced a jury doubt.

There is no inflexible rule governing such material. The court must secure a fair trial by assessing the circumstances case by case. Later misconduct may be relevant, although the lapse of time is a factor. Corroboration by apparently blameless officers does not necessarily remove the risk where the prosecution case critically depended on officers whose conduct bore directly on the invention or fabrication of evidence.

The appellants were convicted of robbery at Birmingham Crown Court in 1978. The prosecution relied substantially on alleged admissions, an unfinished confession statement, evidence concerning a shotgun, and forensic material. The investigating officers included members of the West Midlands Serious Crime Squad.

The Criminal Cases Review Commission referred the convictions under section 9 of the Criminal Appeal Act 1995. It relied on subsequently disclosed evidence of serious misconduct by the Squad and, in particular, evidence bearing on the reliability of officers involved in the appellants’ interviews and the recovery of the shotgun.

The central issue was whether, had that material been available at trial for cross-examination, it might reasonably have affected the jury’s verdicts.

1. Appeals allowed. The convictions were unsafe. The court was not deciding guilt or innocence, but whether the later material might reasonably have affected the jury’s decisions to convict.

2. The approach in Edwards (1991) 93 Cr App R 48 permits a fair and balanced examination of an officer’s reliability. Relevant material may include a relevant criminal conviction, a proved disciplinary charge, or a different acquittal whose only logical explanation is that the officer was disbelieved. The overriding duty is to ensure a fair trial; the categories are not rigid.

3. Misconduct occurring after the events or trial may render a conviction unsafe. The temporal gap remains relevant, but its weight depends on the facts. Misconduct by one officer can infect an investigation even where other officers are beyond criticism.

4. Here, the material concerning the individual officers could properly have been used in cross-examination. The prosecution case, though formidable, critically depended on police evidence, notably from officers whose later conduct had been gravely tainted. The court could not know what effect effective cross-examination would have had, but could not say that it could not reasonably have induced jury doubt.

5. The absence of a contemporaneous conviction appeal, the uncertainty about the precise conduct of the trial, the time elapsed, and the presence of apparently reliable supporting officers did not cure that risk. The convictions were therefore quashed.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the court allowed the appeals against the 1978 convictions as unsafe.
• Birmingham Crown Court: In May 1978, the appellants were convicted of robbery by a 10–1 jury majority.
• Court of Appeal (Criminal Division): In May 1979, Murphy’s renewed application for leave to appeal against his robbery sentence was dismissed, with a loss of time order. The judgment gives no earlier conviction appeal by O’Toole.