Cooper, Re Application for for leave to appeal

A summing up must be assessed as a whole and in context. An isolated misstatement about eyewitness descriptions will not render a conviction unsafe where the judge has clearly directed the jury on the defence case, accurately summarised the evidence supporting it, and left that case for the jury’s evaluation.

The applicant was convicted at Swansea Crown Court of four murders, rape, indecent assault and attempted robberies. The prosecution relied on forensic and other evidence, including evidence linking him to earlier offences known as the “Huntsman” offences.

His renewed application for leave to appeal alleged that the trial judge misdirected the jury by saying that a witness description inconsistent with the applicant’s appearance should be put out of mind. The applicant contended that descriptions given by witnesses supported his case that he was not the perpetrator.

The central issue was whether the direction, read in the context of the entire summing up, rendered the convictions unsafe.

1. The renewed application for leave to appeal was refused. The judge’s isolated statement that an inconsistent description should be put out of mind was a slip of the tongue when read in its proper context.

2. The statement occurred while the judge was warning the jury of the care required before descriptions could be used as evidence supporting the prosecution case. It did not qualify the separate and unequivocal direction that the defence relied on inconsistent descriptions to show that the applicant could not have been the offender.

3. The summing up repeatedly identified the defence contention, including in relation to the Sardis robbery, the use of the Dixon cash card and the Mount offences. The judge gave the jury the relevant detailed descriptions so that they could evaluate whether they fitted the applicant.

4. The judge also warned that an artist’s impression could not identify the applicant merely because it shared some features with his appearance. Taken as a whole, the summing up left no doubt that the jury could use the descriptions to assess, and if appropriate accept, the defence case. There was therefore no arguable ground for challenging the safety of the convictions.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused: [2012] EWCA Crim 2240.

• Court of Appeal (Criminal Division): in an earlier ruling, the applicant was permitted to seek to prove before the jury that he was not guilty of the earlier Huntsman offences despite the convictions: [2010] EWCA Crim 2971.

• Swansea Crown Court: the applicant was convicted on 26 May 2011 of four murders, rape, indecent assault and attempted robberies.