Clarke, R. v

The prosecution may call a witness whose evidence it accepts only in part, and may invite the jury to prefer one of conflicting accounts. It may not, however, explicitly impugn its own witness’s credit or suggest that the witness has deliberately lied without leave to treat that witness as hostile under section 3 of the Criminal Procedure Act 1865.

When deciding whether a conviction is unsafe, the appellate court must assess the case as a whole. A conviction is unsafe where the court cannot be sure that the verdict would have been reached without an improper attack on important prosecution evidence, particularly when other trial errors add weight to that concern.

The appellant accepted killing Anthony Collins but denied murder, contending that he lacked an intention to cause grievous bodily harm and was guilty only of manslaughter. At his retrial in Nottingham Crown Court before HHJ Milmo QC, the jury convicted him of murder by a majority of 10:2.

A central issue was whether the appellant kicked the deceased’s head once or more than once. Two prosecution witnesses supported the single-kick account, but prosecution counsel suggested that they were withholding evidence and later deliberately lying, without seeking leave to treat them as hostile. The appeal also challenged the treatment of a transcript read to the jury and an unsupported submission about remorse. The central question was whether the cumulative errors rendered the conviction unsafe.

1. Appeal allowed. The murder conviction was unsafe.
2. The prosecution could properly call witnesses whose evidence it accepted only in part. It could also invite the jury to prefer the evidence of other witnesses and the pathologist on the number of kicks. That did not itself amount to an attack on the credit of its own witnesses.
3. However, the prosecution could not suggest, without leave to treat Hill and Jackson as hostile, that they were deliberately withholding evidence or lying about the number of kicks. The restriction was supported by section 3 of the Criminal Procedure Act 1865 and the principles reviewed in Cairns [2002] EWCA Crim 2838. The opening speech improperly suggested that the witnesses had seen more than they were saying. The closing speech went further and expressly impugned their honesty.
4. The omission of a renewed caution in the summing up about Sally Cox’s transcript was an error, but it was not fatal because suitable directions had been given when the transcript was read. The unsupported suggestion that the appellant had shown no remorse was also improper. Neither subsidiary ground alone justified quashing the conviction, but both added weight to the principal complaint.
5. Applying section 2(1) of the Criminal Appeal Act 1968 and the approach in Cooper [1969] 1 QB 267, the court assessed the case in the round. It could not be sure that the appellant would have been convicted of murder had the prosecution not undermined the important single-kick evidence of Hill and Jackson. The court therefore allowed the appeal and invited submissions on the appropriate order.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and held that the murder conviction was unsafe: [2011] EWCA Crim 407.
• Nottingham Crown Court: At the retrial before HHJ Milmo QC, the appellant was convicted of murder by a majority of 10:2.
• Nottingham Crown Court: At the first trial before HHJ Wide QC, the jury could not agree and a retrial was ordered.