Davis v R.

On a valid referral, the Court of Appeal must determine for itself whether the conviction is safe. The issue is whether the verdict is securely based, not whether the appellant can positively establish innocence.

The court does not re-try the case or apply a simple jury-impact test. It assesses the trial evidence in the light of admissible fresh material. Where that material fundamentally undermines important identification evidence, and the remaining evidence cannot reliably be re-evaluated after a long delay, the conviction is unsafe and must be quashed.

In 1975, George Davis was convicted at the Central Criminal Court of participating in an armed wages robbery. The prosecution case depended substantially on eyewitness identification evidence.

The Criminal Cases Review Commission referred the conviction to the Court of Appeal under the Criminal Appeal Act 1995. The principal issue was whether fresh material concerning the identifications by Constables Grove and Appleton, together with later material concerning other witnesses and the appellant's alibi, rendered the conviction unsafe.

1. Appeal allowed. The conviction was quashed. There could be no retrial after the passage of more than 35 years.
2. Under section 9(2) of the Criminal Appeal Act 1995, the reference brought the case before the court as a timely appeal. Earlier refusals to refer, and the reasons for them, could not qualify the court's duty to decide whether the conviction was safe.
3. The statutory question under section 2(1) of the Criminal Appeal Act 1968 was whether the verdict was securely based. It was not a question whether the appellant was guilty, innocent, or positively exonerated. His later criminality could not justify maintaining an unsafe conviction.
4. The fresh material fundamentally undermined Grove's identification. Before the identification parades, he had made two earlier identifications treated by senior officers as mistaken, and the jury had not been told of them or of relevant inaccurate accounts. Appleton's identification was also appreciably weakened by the absence of support for his claimed later recollection of a fifth robber wearing a flying helmet.
5. The court rejected the further material concerning PC Moore and the alibi as creating no separate safety concern. The material affecting Mrs Bone was limited, but it illustrated the risk of genuine yet mistaken certainty. Although other eyewitness identifications remained, the court could not, after such a long interval, determine their weight or the part played by the now unreliable identifications. The court did not re-try the case; it assessed the original evidence in the new light. Applying the approach supported by Burridge [2010] EWCA Crim 2847, the question was not simply whether fresh material might have affected a jury.
6. The combined effect of the fresh material made it impossible to be satisfied that the conviction was safe.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed the conviction: [2011] EWCA Crim 1258.
• Central Criminal Court — a jury convicted the appellant on 18 March 1975 of participating in the armed robbery.