Carr, R. v

A prosecution may change its decision not to rely on an eyewitness, despite earlier tendering that witness to the defence, unless the change creates unfairness that justifies exclusion or amounts to an abuse of process. Disappointment caused by the reversal is insufficient. The court must identify practical prejudice to the preparation or presentation of the defence.

Under section 100(1) of the Criminal Justice Act 2003, a trial judge may refuse proposed third-party bad-character cross-examination where the material would not materially assist the jury’s assessment of the witness. Fresh evidence concerning a witness’s credibility does not make a conviction unsafe where the jury already had a proper basis to assess that credibility.

The appellant was convicted at Bradford Crown Court of wounding with intent after the complainant was struck on the forehead with a glass outside a public house. The prosecution relied principally on evidence from the complainant’s father, Wayne Lee Senior, and her brother, Wayne Lee Junior.

The Crown had initially said that it would not call Wayne Lee Senior because of information linking him with a later shooting incident, but reversed that decision at trial. The judge permitted him to give evidence and refused the defence application to cross-examine him about the shooting under section 100(1) of the Criminal Justice Act 2003. After trial, Wayne Lee Junior pleaded guilty to supplying cocaine, prompting a fresh-evidence challenge to the safety of the conviction.

The appellant also sought leave to appeal his four-year detention sentence. The central issues were fairness, third-party bad character, the effect of fresh credibility evidence, and whether the sentence was manifestly excessive.

1. Appeal against conviction dismissed. The Crown’s conduct was seriously open to criticism. Its late disclosure, reversal of position concerning Wayne Lee Senior, and failure satisfactorily to explain that reversal were reprehensible. Nevertheless, the conduct did not amount to an abuse of process. The change followed the Crown’s conclusion that there was insufficient evidence implicating the witness in the later shooting, rather than an attempt to secure an advantage unfairly at the appellant’s expense.
2. The trial judge was entitled to permit the Crown to call Wayne Lee Senior. The decisive question was whether that caused unfairness to the defence. The appellant identified no lost line of inquiry, unavailable witness, insufficient preparation time, or other practical prejudice. The witness’s statement had been available at an early stage, his account could be tested in cross-examination, and the jury could assess it alongside the remaining evidence.
3. The judge was also entitled to refuse cross-examination about the shooting under section 100(1) of the Criminal Justice Act 2003. Although reasons should have been given, the proposed questioning would have established only that a shooting occurred and that the witness denied responsibility. There was no identification or forensic evidence linking him to it, and he had not been charged. The jury already knew of the substantial animosity between the families and could assess whether the eyewitness accounts were malicious fabrications.
4. The later guilty plea of Wayne Lee Junior for supplying cocaine did not render the conviction unsafe. The jury knew of his previous cocaine conviction, his involvement in drugs generally, the family animosity, and the need to approach his credibility with caution. Having seen and heard the principal witnesses and the appellant, the jury were sure of the prosecution witnesses. The fresh evidence would not have materially affected that assessment.
5. Application for leave to appeal against sentence refused. Four years’ detention for glassing the complainant’s forehead close to her eye was heavy for a 17-year-old with no previous convictions, but not manifestly excessive given the seriousness and likely lasting disfigurement of the injury.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed and leave to appeal against sentence was refused in [2008] EWCA Crim 1283.
• Bradford Crown Court: On 8 June 2007, the appellant was convicted of wounding with intent and sentenced to four years’ detention in a young offender institution.