Carty, R v

A factual witness is not excluded from a criminal trial merely because the witness was present before giving evidence, although exclusion remains good practice. Section 78 of PACE does not provide a basis to exclude evidence called by a co-accused. A conviction is not rendered unsafe by such an irregularity where the witness heard only uncontentious evidence, did not hear the evidence capable of affecting the witness’s account, and gave freestanding evidence. The absence of prompt notice to another defendant’s counsel will not justify interference where cross-examination could not realistically expose any relevant tailoring of evidence.

The applicant was convicted at Reading Crown Court of two conspiracies to supply Class A drugs, cocaine and MDMA. Drugs and cash were found in vehicles associated with him and with a co-accused.

A co-accused, Runham, gave evidence that he had borrowed the applicant’s car and had seen the drugs when he entered it. Runham then called Fiona Cook, a relative by marriage, whose evidence supported his explanation for having the car and the short period for which he used it.

Unknown to the other parties, Cook had sat in the public gallery during the Crown’s opening and the first police evidence. The applicant sought permission to appeal on the ground that this may have enabled Cook to tailor her evidence, rendering his convictions unsafe.

1. The Court refused the referred application for permission to appeal against conviction. The convictions were not unsafe.

2. The Court accepted that there was no rule of law requiring the exclusion of a factual defence witness who had been present during part of the trial. It remained good practice for a witness intended to be called to stay out of court before giving evidence. R v Briggs (1930) 22 Cr App R 68 supported that conclusion. The suggested discretionary protection under section 78 of PACE did not apply to a witness called by a co-accused.

3. Even if a discretion to exclude Cook’s evidence had existed, there was no conceivable basis for exercising it. She had heard only the Crown’s opening and uncontentious police evidence about the stopping and seizure of the car. That evidence was later included in agreed admissions.

4. Cook’s evidence was freestanding. It was unrelated to the evidence of other witnesses, save for Runham’s evidence, the details of which she had not heard. Had counsel been told of her earlier presence, cross-examination would not realistically have produced any effective challenge. There was therefore no reason to conclude that the convictions were, or might have been, rendered unsafe.

• Court of Appeal (Criminal Division): Refused the referred application for permission to appeal against conviction: [2011] EWCA Crim 2087.
• Crown Court at Reading: On 29 November 2010, convicted the applicant of two offences of conspiracy to supply Class A controlled drugs.