Stock, R. v

On an application to certify questions for further appeal, the controlling issue remains whether the conviction is safe. A court does not depart from that test merely because it considers earlier appeals or references. In an identification case, a failure to give the direction indicated in Turnbull does not automatically make a conviction unsafe. The court must assess the safety of the verdict in the light of all the material before it.

The appellant sought certification of two questions said to arise from the Court of Appeal’s earlier decision on his fourth appeal, following a third reference.

The first question challenged the court’s approach to the safety of the conviction in a case which had previously been considered on appeal. The second concerned an identification case in which the trial had preceded the guidance in Turnbull.

The central issue was whether either proposed question arose from the court’s decision and warranted certification as a point of general public importance.

1. The application was refused. The court held that its earlier judgment had applied the correct and ultimate question: whether the verdict was safe. Its consideration of the earlier appeals and references had not added an impermissible qualification to that test.

2. The first proposed question therefore did not arise from the decision. The court rejected the suggestion that its references to earlier authority, including the earlier decision in the same proceedings, had altered the statutory appellate inquiry into safety.

3. As to identification evidence, the court explained that the model direction indicated in Turnbull will generally need to be followed if an identification conviction is to be safe. However, failure to follow a direction is not an immutable rule requiring the verdict to be treated as unsafe.

4. The court must decide safety by reference to all the material before it. On the material in this case, the court was confident that the absence of a Turnbull direction would not, even under the contemporary approach, have made the verdict unsafe. The second proposed question consequently did not arise in the case and was not certified.

• Court of Appeal (Criminal Division) — following its decision on the appellant’s fourth appeal and third reference, the court refused to certify either proposed question for further appeal.