Stock, R v

On a reference by the Criminal Cases Review Commission, the court must decide whether the conviction is safe, rather than whether the defendant is guilty. It may reconsider earlier appellate decisions, but, absent new evidence or argument, departure will ordinarily require exceptional circumstances and cogent grounds.

Historic defects in identification procedure, disclosure or summing-up do not automatically make a conviction unsafe. The court must assess their actual effect on the reliability of the evidence and the verdict. A possible prior viewing of a photograph did not undermine a later identification where the witness had not identified the defendant from the photograph and had a compelling in-person recognition.

The appellant was convicted of robbery at Leeds Assizes in 1970 and sentenced to ten years’ imprisonment. His original appeal was dismissed in 1971. Further appeals following references by the Home Secretary and the Criminal Cases Review Commission were dismissed in 1996 and 2004.

In this fourth appeal, following a further Commission reference under the Criminal Appeal Act 1995, he contended that the identification evidence had been contaminated by undisclosed photograph viewings, that the summing-up was defective, that the detectives’ evidence was tainted, and that later evidence by Benefield exonerated him. The central issue was whether the conviction was unsafe.

1. Appeal dismissed. The court was not persuaded that the robbery conviction was unsafe.

2. The court adopted the established approach to a Commission reference. Its overriding duty was to determine the safety of the conviction, not guilt. Although the reference procedure could permit reconsideration of earlier appellate conclusions, the court should be slow to depart from them without new material or a cogent argument that could previously have led to the appeal being allowed. This followed the statutory framework in the Criminal Appeal Act 1995.

3. The court accepted that the 2004 appeal had been difficult to justify insofar as it treated Wilson’s account of being shown five photographs as occurring when he helped prepare the identikit. If Detective Sergeant Mather had shown the photographs, this probably occurred later, and the event should have been recorded and disclosed. Even assuming that the appellant’s photograph was included, however, the issue could not securely be resolved from recollections made many years later.

4. More importantly, Wilson had not identified the appellant from a photograph. His later, dramatic face-to-face recognition was capable of being more reliable for that reason. The identikit had been accepted as very close to the appellant, and the court held that the alleged photographic contamination did not undermine the safety of the conviction.

5. The court rejected the contention that the three Tesco witnesses had not previously identified the appellant from photographs. Their accounts positively asserted that they had recognised the photograph of the man later seen in court. The court regarded the contrary reconstruction as implausible.

6. The summing-up would be inadequate by modern standards, particularly under R v Turnbull [1977] QB 224, but this did not itself make the historic conviction unsafe. Wilson had a direct and memorable opportunity to observe his attacker. The robust comments on the alibi were not unfair in a way that undermined the verdict. The court also discounted the unsupported evidence of Detective Sergeant Mather, but held that it was not critical because Wilson’s identification was the decisive evidence.

7. Benefield’s account showed knowledge of the robbery but did not reliably establish that the appellant was absent. In particular, the identikit did not match any participant identified by Benefield. Later information about Mather and Wilson did not undermine Wilson’s credibility or the safety of the verdict.

• Court of Appeal (Criminal Division): By [2008] EWCA Crim 1862, dismissed the appellant’s fourth appeal, following a further Commission reference under the Criminal Appeal Act 1995.

• Court of Appeal (Criminal Division): Dismissed the appeal following a Commission reference on 26 August 2004.

• Court of Appeal (Criminal Division): Dismissed the appeal following a Home Secretary reference under section 17(1)(a) of the Criminal Appeal Act 1968 on 15 July 1996.

• Court of Appeal (Criminal Division): Dismissed the original appeal against conviction and sentence on 19 February 1971.

• Leeds Assizes: Convicted the appellant of robbery on 17 July 1970 and imposed a ten-year sentence.