Davis v R

A fact relied on in a defence under Criminal Justice and Public Order Act 1994 section 34 includes an alleged fact in issue, an exculpatory explanation, or a positive case put to prosecution witnesses on the defendant’s instructions. Evidence concerning another criminal group may be admitted where it provides the immediate context for relevant dealings with the accused. The safety of a summing-up must be assessed as a whole. A full direction on the risks of identification evidence, together with an accurate summary and counsel’s submissions, may prevent an omission from rendering a conviction unsafe. Judicial impatience or rudeness does not itself establish an unfair trial, particularly where it occurs outside the jury’s presence and does not impede the defence.

The appellant was convicted at Snaresbrook Crown Court of conspiracy to supply cocaine and of two counts concerning criminal property. The prosecution relied principally on surveillance, telephone-billing evidence, meetings with co-accused, cash, boric acid and other items found on searches.

He appealed against conviction on grounds concerning the admission of evidence about an earlier drugs investigation, a defence case statement, adverse inferences from silence, identification, good character and alleged judicial misconduct. Leave had been granted on four grounds. The appellant renewed applications for leave on the remaining two grounds. The central question was whether any of the alleged errors made the convictions unsafe.

1. Appeal dismissed. The court also refused the renewed applications for leave to appeal on the grounds refused by the single judge.
2. The indictment sufficiently alleged a conspiracy between the appellant, named co-accused and others. The prosecution could prove two dealings with members of a separate group without alleging that both groups formed one conspiracy. The limited evidence of that group’s movements and communications was properly admitted because it supplied the immediate context and character of the April meetings.
3. On adverse inferences, the court applied R v Webber [2004] UKHL 1. The appellant’s innocent account of his activities, and the matters put forward in support of it, were facts relied upon in his defence for section 34 purposes. He could reasonably have been expected to mention them when interviewed. The standard direction on his no-comment interview was therefore proper. The omission of special warnings under sections 36 and 37 of the Criminal Justice and Public Order Act 1994 could only assist the defence.
4. The identification summing-up was not defective. It would have been preferable expressly to identify part of counsel’s argument, but the judge accurately summarised the observations, gave a full Turnbull direction and left the competing submissions to the jury. The conviction was not thereby unsafe. The good-character direction was also adequate.
5. The judge had at times been rude to counsel, but the exchanges occurred outside the jury’s presence and did not prevent the experienced advocate from advancing the defence. The circumstances fell far short of those in R v Lashley [2005] EWCA Crim 2016 and R v Cordingly [2007] EWCA Crim 2174. They neither amounted to judicial misconduct nor denied a fair trial.

The court additionally gave obiter case-management guidance. Judges should seek counsel’s assistance on jury directions, use practical summaries where admissible evidence permits, and ordinarily ensure that a logger is present when a substantial matter is dealt with in chambers.

• Court of Appeal (Criminal Division): In Davis v R [2010] EWCA Crim 708, the court dismissed the appeal against conviction and refused renewed leave to appeal on two grounds.
• Snaresbrook Crown Court: Before HHJ Khayat QC, the appellant was convicted of conspiracy to supply cocaine and two counts concerning criminal property, and was sentenced to 11 years’ imprisonment less time spent on remand.