Davies, R v

A conviction is unsafe where an irregularity in earlier proceedings gives the prosecution an unfair opportunity to undermine a key defence witness on a central issue. The court must assess the practical effect of that unfairness on the jury’s ability to reach a safe verdict.

Where identification evidence has significant weaknesses, an independent eyewitness capable of casting real doubt on it may be decisive. If the witness’s credibility was unfairly impaired by an avoidable procedural irregularity, and the jury might otherwise have accepted that evidence, the defendant has not had a fair trial and the conviction must be quashed.

The appellant was convicted at the Crown Court at Cardiff of the manslaughter of Gareth Davies and sentenced to three years’ imprisonment. The prosecution case depended principally on two eyewitness identifications that the appellant had delivered the fatal punch.

Before the trial, the Crown Prosecution Service had wrongly decided not to prosecute. An inquest then took place. Andrew Kempson, an independent witness whose original statement supported the defence account, was not allowed to refresh his memory before giving evidence at the inquest. His evidence there was inconsistent with his earlier statement and was later used by the prosecution to attack his credibility at trial.

The appeal concerned whether the resulting unfairness, considered with the weaknesses in the identification evidence, rendered the conviction unsafe.

1. Appeal allowed and conviction quashed. The court held that the conviction was unsafe because the appellant had not received a fair trial.

2. The decision not to prosecute in 2007 was seriously wrong. Had the appellant been charged when he should have been, the inquest would not have occurred. The inquest was therefore conducted in circumstances that created a significant irregularity.

3. Mr Kempson was an honest and independent eyewitness. His contemporaneous statement was likely to be more reliable than evidence given months or years later. The failure to permit him to refresh his memory before giving evidence at the inquest led to an inconsistency with that statement. It also gave the prosecution material with which to challenge his credibility at the later trial.

4. That disadvantage was material. Mr Kempson’s evidence was capable of casting real doubt on the identification evidence of the two taxi drivers, which itself had significant flaws. The trial judge had correctly directed the jury that, if Mr Kempson might be right that the deceased fell otherwise than from a punch by the appellant, they could not be sure of guilt.

5. Without the inquest evidence, the jury might well have concluded that Mr Kempson might be right. The improper advantage thereby given to the prosecution made the trial unfair. The court allowed the appeal and quashed the conviction. It directed an exchange of written submissions should the Crown seek a retrial.

• Court of Appeal (Criminal Division): By [2011] EWCA Crim 871, the court allowed the appeal against conviction and quashed the manslaughter conviction.
• Crown Court at Cardiff: Following a jury trial before HHJ Nicholas Cooke QC, the appellant was convicted of manslaughter on 12 April 2010 and sentenced on 6 May 2010 to three years’ imprisonment less time spent on remand.