McCloy

A conviction is unsafe where improperly obtained evidence implicating the accused was admitted, subsequently disclosed police misconduct would have undermined material prosecution evidence, and related convictions have been quashed, so that there is a real possibility that the jury would have returned a different verdict. The court must assess the cumulative effect of those matters upon the prosecution case as tried.

The appellant had been convicted of robbery at Birmingham Crown Court in 1982 and sentenced to 15 years’ imprisonment. His renewed applications for leave to appeal against conviction were refused, although his sentence was later reduced to 12 years.

The Criminal Cases Review Commission referred the conviction under section 9 of the Criminal Appeal Act 1995. Two co-accused had since had their convictions quashed. The reference also concerned a co-accused’s improperly obtained confession implicating the appellant and evidence of misconduct by West Midlands Serious Crime Squad officers.

The central issue was whether those matters created a real possibility that the jury would have reached a different verdict.

1. Appeal allowed. The conviction was unsafe and was quashed.
2. The appellant had been implicated by a co-accused’s confession which had been improperly obtained and ought not to have been admitted. That evidence was capable of affecting the jury’s assessment of the case against him.
3. Had the evidence of wrongdoing by West Midlands Serious Crime Squad officers been known at trial, it would have effectively impugned evidence given by other officers directly involved in the appellant’s case. It would have enabled sustained cross-examination directed to the cogency of the prosecution evidence.
4. The quashing of the convictions of the two co-accused was also material. Taken cumulatively, those matters bore upon each of the five strands of evidence relied upon by the Crown to connect the appellant with the robbery.
5. There was therefore a real possibility that the jury would have reached a different verdict. The conviction could not safely stand and had to be quashed.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court allowed the appeal against conviction and quashed the conviction as unsafe: [2007] EWCA Crim 1263.
• Crown Court at Birmingham: The appellant was convicted of robbery on 25 February 1982 and sentenced to 15 years’ imprisonment. His later appeal against sentence was allowed and the sentence was reduced to 12 years.
• Court of Appeal: In 1983, the single judge and then the full court refused leave to appeal against conviction and a representation order.