Pengelly, R. v

Where an accused relies on an alibi, the jury must be directed that rejecting it does not itself establish guilt. The alibi and the prosecution’s proof that the accused was the offender are separate issues, although each may bear on the other. The omission will render a conviction unsafe where the identification evidence is especially weak and the direction was therefore of particular importance.

The appellant was convicted by a majority at Cardiff Crown Court of sexual assault. The prosecution relied on the complainant’s identification of him.

The defence asserted mistaken identity and alibi. The appellant gave detailed evidence of his movements, supported by shop receipts and CCTV material. There was also evidence pointing to another man who had been present near the community centre.

On appeal, the sole ground concerned the judge’s treatment of the alibi in the summing-up. The issue was whether the absence of the normal alibi direction made the conviction unsafe.

1. Appeal allowed; conviction quashed. The court held that the conviction was unsafe.
2. The trial judge referred to the appellant’s alibi but omitted the normal and required direction. The jury should have been told that rejection of the alibi did not mean that the appellant was guilty, and that alibi and proof of identity were separate questions, though capable of bearing upon one another.
3. The court accepted that an omitted alibi direction may occasionally be overlooked. That was not possible here. The identification evidence was remarkably weak, particularly because the complainant had made several mistaken subsequent identifications, including one from a photograph of another man.
4. That weakness made a clear alibi direction especially important. Its omission deprived the jury of necessary guidance on how to assess the defence case alongside the prosecution’s burden to prove that the appellant was the assailant.
5. The court also stated that, given the mistaken identifications, the case should not have passed the half-time stage. It did not rest its formal disposition on that observation. The Crown did not seek a retrial.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the conviction.
• Cardiff Crown Court: On 28 September 2011, convicted the appellant by a majority of sexual assault and imposed a community order, notification requirements under Part 2 of the Sexual Offences Act 2003, and a restraining order.