Nethercott, R. v

Where significant failures in the handling of identification evidence and the police investigation are considered cumulatively, they may create a real doubt about the safety of a conviction. The safeguards in the applicable PACE Codes protect both suspects and investigators. Non-compliance can destabilise a prosecution that might otherwise appear proper.

Whether deficiencies render a conviction unsafe depends on their combined effect in the particular case. A trial judge’s careful directions to the jury do not necessarily cure failures which, taken together, materially undermine the reliability of the identification case.

The appellant was convicted at Bournemouth Crown Court of affray and possessing an article with a blade or point. The prosecution case depended on identification evidence concerning a man who had threatened customers in a public house with a knife.

There were admitted deficiencies in the investigation and identification procedures. These included failures to record initial descriptions, incomplete disclosure before an identification procedure, delay in holding procedures, the loss of CCTV material, and the failure to investigate another person identified by an officer as a possible suspect.

The trial judge declined to stop the case and gave careful directions about the deficiencies. The appellant appealed against conviction and sentence. The central issue was whether the cumulative effect of the failures left the conviction unsafe.

1. The appeal against conviction was allowed and the conviction was quashed. The court held that the cumulative effect of the admitted failures created a real doubt about the safety of the conviction.

2. Considered separately, none of the failures or shortcomings in the investigation was sufficient to cast doubt on the conviction. The court nevertheless had to assess their combined effect rather than isolate each defect.

3. The initial descriptions of several witnesses had not been recorded. The defence had not been told before the landlord’s identification procedure that he had viewed CCTV footage and heard an officer name possible suspects. There were substantial delays before two witnesses attended identification procedures, the CCTV recording was later found to be blank, and no enquiry was made into the other possible suspect named by the officer.

4. The driving-licence evidence and the appellant’s comment on arrest could no longer support the prosecution case. Against that background, the absence of any investigation into the alternative suspect materially strengthened the court’s concern about the identification evidence.

5. The court accepted that the trial judge had given a careful and fair summing-up, explaining the breaches and their possible significance. That did not remove the real doubt arising from the totality of the failings. The PACE Codes provide safeguards for defendants and investigating officers; failure to follow them can undermine an otherwise proper prosecution and safe conviction.

6. A defendant’s costs order was made from central funds, to be assessed.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the conviction.
• Crown Court at Bournemouth: Following a jury trial, convicted the appellant of affray and possessing an article with a blade or point, and imposed concurrent terms of 18 months’ detention in a young offender institution.