Tucker v Crown Prosecution Service

A conviction may require quashing where the prosecution fails to disclose material that could significantly assist the defence in challenging a central prosecution witness or support the defendant’s account. The court must assess the practical significance of the undisclosed material for the jury’s evaluation, even if the defence could have pursued the point by other means.

Safeguards concerning police recognition of CCTV evidence do not apply where an officer was not asked to view the footage in order to give identification evidence and was only later called as a recognition witness. A clear jury warning may address the risk that the officer expected to see the defendant.

The appellant was convicted at Gloucester Crown Court of robbery and sentenced to seven years’ imprisonment. The principal evidence identifying him as a participant came from his co-accused, who had pleaded guilty to theft.

Before trial, the defence explored whether the appellant had supplied police information about the co-accused’s drug dealing, as this might have shown a motive for the co-accused to accuse him falsely. The defence received a categorical denial and did not pursue that line at trial.

On appeal, material emerged showing that the appellant had in fact supplied limited information and that police intelligence recorded a possible motive for the co-accused to set him up. A DNA result excluding the appellant as the source of blood on a shirt associated with the alleged second attacker had also not been disclosed. The central issue was whether those disclosure failures rendered the conviction unable to stand.

1. Appeal allowed. The court granted an extension of time, admitted the fresh evidence, quashed the robbery conviction and ordered the appellant’s release. A retrial was not ordered because he had served most of his sentence.

2. The challenge to Inspector McFarlane’s recognition evidence from CCTV did not justify an appeal. The safeguards discussed in R v Dean Smith and Others [2008] EWCA Crim 1342 concerned an officer asked to view footage for the purpose of giving identification evidence. That was not this case. The officer was initially asked only whether he recognised the appellant, and the jury received a clear warning that he had expected to see him. The jury could assess the footage for itself.

3. The non-disclosure was, however, a significant irregularity. Contrary to the information given to the defence, the appellant had supplied limited information about the co-accused’s drug dealing. The prosecution also withheld an intelligence record that could have supported a defence case that the co-accused had a motive to implicate the appellant falsely.

4. The court did not need to decide the credibility of the fresh witnesses. The undisclosed intelligence was material which the defence was entitled to consider and deploy. It was likely to have given powerful support to the suggested motive to lie. The separate failure to disclose the DNA result excluding the appellant as the blood source on a shirt was also significant and supported his case that he was not involved.

5. The defence had made procedural errors and possessed some evidence capable of supporting the proposed case. Those matters did not cure the prosecution’s failure to reveal disclosable material. The court could not measure precisely the effect on the jury, but the withheld evidence was likely to have had a significant impact on its assessment of the defence.

• Court of Appeal (Criminal Division): allowed the appeal, quashed the conviction and ordered the appellant’s release: [2008] EWCA Crim 3063.

• Gloucester Crown Court: convicted the appellant of robbery on 28 November 2005 and sentenced him to seven years’ imprisonment.