Percival & Anor, R v

A trial judge may direct a jury to seek evidence capable of supporting an accomplice or seriously discredited witness, but corroboration is not a legal requirement. The adequacy of the warning depends on the evidence and the way the case has been put. The judge must fairly identify the risks in accepting the witness and the evidence capable of supporting the account, while leaving reliability and weight to the jury.

Errors in a summing-up, including an overstatement of unreliable hearsay evidence, do not make convictions unsafe where the jury was correctly directed on the central credibility issue and the case as a whole supports the verdicts. In sentencing for murder with related grave offences, the minimum term may reflect the total criminality.

Percival was convicted at Chelmsford Crown Court of murdering Dean Boshell, three attempted murders, and conspiracies to pervert the course of justice. Walsh was convicted of conspiracy to pervert the course of justice for providing a false alibi. The prosecution case depended substantially on Damon Alvin, a former co-accused who had admitted his own involvement in criminality and gave evidence that Percival had killed Boshell.

The appeals challenged the adequacy and balance of the judge’s warning about Alvin’s evidence. They also relied on later-discovered false claims in a hearsay witness’s account of hearing gunfire, and on a misstatement of another witness’s evidence about a threatening call. Percival further appealed his 26-year minimum term for murder.

1. The appeals were dismissed. The judge’s summing-up gave the jury a clear and repeated warning to approach Alvin’s evidence with great care. It identified his dishonesty, criminality, self-interest, capacity for deceit, and possible incentive to minimise his own role and exaggerate that of others.

2. There was no legal requirement for corroboration. The judge was entitled to invite the jury to consider whether evidence supported Alvin’s account, provided that the jury retained responsibility for assessing its reliability and weight. The judge sufficiently identified potentially independent material, including telephone evidence, evidence concerning the proposed robbery, and evidence relevant to the separate Tretton shooting. The guidance in R v MB (4 November 1999, unreported) did not require a different result because this was a complex case with evidence capable of supporting parts of Alvin’s account.

3. The court accepted that the later revelation about Osborne’s false account of Royal Marines service meant that his hearsay statement might not have been admitted. The judge had also misstated the final effect of Spendiff-Smith’s evidence about a threatening call. Those errors did not render the convictions unsafe. The central issue remained Alvin’s credibility, which had been fully and fairly explored. There was substantial evidence bearing on that issue, including the false alibis, cell-site evidence, the circumstances of the Tretton shooting, and the rejection of the defence evidence of alleged prison confessions.

4. Walsh’s appeal failed for the same reasons. Percival’s minimum term was also justified. Although the murder involved anger rather than planned calculation, it was aggravated by close-range execution and ammonia. The three pre-planned attempted murders materially aggravated the overall criminality. Under the Criminal Justice Act 2003, read subject to the sentencing practice applicable when the murder was committed, the life sentence properly bore the totality of the offences.

• Court of Appeal (Criminal Division): Conviction appeals by Percival and Walsh, and Percival’s sentence appeal, dismissed: [2010] EWCA Crim 1326.

• Chelmsford Crown Court: Before HHJ Ball QC, Percival was convicted of murder and other serious offences and sentenced to life imprisonment with a 26-year minimum term. Walsh was convicted of conspiracy to pervert the course of justice.