Hallam, R. v

Where a conviction depends upon recognition evidence obtained in difficult conditions, the court must scrutinise whether the identifications were reliable, independent and supported by other evidence. A purportedly false alibi can support identification only if the evidence justifies confidence that it was a deliberate fabrication rather than the product of faulty recollection. If fresh evidence removes that confidence, the apparent support for the identification falls away. The cumulative effect of prompted, inconsistent and mutually dependent identifications, coupled with the loss of their supposed independent support, may render convictions unsafe.

The appellant was convicted at the Central Criminal Court of murder, conspiracy to commit grievous bodily harm and violent disorder arising from a fatal gang attack in October 2004. The prosecution case against him depended principally on purported recognition by two witnesses and on the contention that he had fabricated an alibi.

His first appeal was dismissed in 2007. The Criminal Cases Review Commission later referred the case under section 9 of the Criminal Appeal Act 1995. Fresh material included undisclosed messages concerning rumours of a person called Sam, and information recovered from the appellant’s mobile telephone. The latter raised the possibility that the appellant and his alibi witness had confused dates, rather than that the appellant had deliberately invented an alibi.

The central issue was whether, in light of the fresh evidence and the weaknesses in the recognition evidence, the convictions remained safe.

1. Appeal allowed. The convictions were unsafe and were quashed. There was no application for a retrial.

2. The court accepted that, on the material available at trial, there was evidence capable of consideration by the jury. The identification witnesses knew the appellant and purported to place him at the incident. Questions of credibility and reliability ordinarily remain for the jury. The fresh evidence, however, fundamentally altered the basis on which the case had been assessed.

3. The recognition evidence was intrinsically weak. Neither witness initially identified the appellant, although each knew him. Miss Henville’s identification was prompted by her friend, while Mr Khelfa’s was prompted by Miss Henville. Their accounts were inconsistent, contradicted by other evidence and supplied little independent support for one another. The purported observation was no more than a fleeting glimpse in difficult circumstances. Applying the caution reflected in R v Turnbull [1977] QB 224, proper independent support was essential.

4. The supposed support lay principally in the alleged false alibi. The mobile-phone evidence did not establish where the appellant was at the material time. It did, however, create a real possibility that the appellant and Harrington had mistaken the date on which they were together. The court could therefore no longer be confident that the failed alibi was a deliberate attempt to deceive. Its value as support for identification consequently fell away.

5. The newly disclosed Rees messages also raised a possibility of greater discussion or collusion among witnesses than the defence had known. In addition, the jury may not have appreciated that it could rely on Bissett’s potentially exculpatory evidence. The cumulative effect of those matters undermined the safety of all three convictions. It was unnecessary to determine the remaining disclosure and investigation complaints, or to make a positive declaration that the appellant had not been present.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court allowed the appeal and quashed the convictions as unsafe: [2012] EWCA Crim 1158.

• Court of Appeal (Criminal Division): Leave to appeal against conviction was granted in October 2006. The appeal was dismissed on 22 March 2007. No citation is stated in the judgment.

• Central Criminal Court: On 26 October 2005, the appellant was convicted of murder, conspiracy to commit grievous bodily harm and violent disorder.