Docherty -Puncheon, R. v

For section 119 of the Criminal Justice Act 2003, an earlier account is not a previous inconsistent statement merely because it omits a fact later mentioned. The omission must be equivalent to a positive assertion of the opposite fact. Otherwise, the earlier account bears on the witness’s credibility, not the truth of the omitted matter.

A jury direction should not suggest that earlier and later accounts carry equal evidential weight. Where the jury are sure of the later testimony, any inconsistency in the earlier account is immaterial. In sentencing for historic murder, the court may reflect the offender’s total criminality, including subsequent grave offending, provided the resulting aggregate minimum term remains proportionate.

The applicant was convicted of the murder of Robert Workman at the Crown Court at Luton on 5 November 2012. He received life imprisonment with a 32-year minimum term.

He renewed, after refusal by a single judge, his applications for leave to appeal conviction and sentence. The conviction ground concerned the judge’s directions about earlier accounts given by four prosecution witnesses, particularly the cell-confession witnesses. It was contended that omissions from those accounts were previous inconsistent statements admissible for their truth under section 119 of the Criminal Justice Act 2003.

The sentencing challenge alleged that the minimum term was excessive because he had already served almost eight years for another murder, previously litigated as R v Nudds [2008] EWCA Crim 148.

1. The appeal against conviction was dismissed. An omission from an earlier written account is not, without more, a previous inconsistent statement within section 119(1) of the Criminal Justice Act 2003. It has that status only where the omission is equivalent to a positive assertion of the contrary fact. An earlier failure to mention an incidental detail therefore does not provide evidence that the opposite was true. It remains material to the witness’s credibility.

2. The court applied the reasoning in R v Billingham [2009] EWCA Crim 19. A direction that an earlier statement is as much evidence as oral testimony may confuse a jury by implying equal weight. Where the jury accept the later testimony, they necessarily reject an inconsistent earlier account. The witnesses had been extensively challenged on their earlier accounts, including the alleged confessions. The judge’s treatment of the evidence was therefore beyond proper challenge. Even if an additional sentence about the evidential effect of the accounts could have been given, it could not render the conviction unsafe.

3. The renewed application for leave to appeal sentence was refused. In fixing a minimum term for historic offending, the judge could take account of the offender’s total criminality. The elapsed period served for the earlier murder could fairly reflect the additional gravity of the multiple offending; it did not require a discount from the term imposed for this murder.

4. Independently, murder involving a firearm had a 30-year starting point under Schedule 21 to the Criminal Justice Act 2003. The victim’s vulnerability and the attempt to conceal the first murder by committing a further murder were aggravating features, and there was no identified mitigation. A 32-year minimum term, commencing on the present conviction, was neither wrong in principle nor manifestly excessive.

1. Court of Appeal (Criminal Division): The court dismissed the appeal against conviction and refused the renewed application for leave to appeal sentence: [2013] EWCA Crim 2027.

2. Court of Appeal (single judge): The applicant’s applications for leave to appeal conviction and sentence were refused, leading to this renewal.

3. Crown Court at Luton: On 5 November 2012, Saunders J and a jury convicted the applicant of murder. He was sentenced to life imprisonment with a 32-year minimum term under section 269(2) of the Criminal Justice Act 2003.