R v Mility

A conviction is not rendered unsafe by a formal defect in a summing-up where the undisputed issue was correctly identified and the defect could not have affected the verdict. Where incompetence of trial counsel is alleged, the appellant must show not only incompetence but identifiable trial errors or irregularities which made the process unfair or unsafe. Tactical decisions about whether to seek a retrial, call an alibi witness, or request a direction must be assessed in their trial context. An omitted direction will not make a conviction unsafe where the jury received clear and sufficient guidance on the issue that mattered.

The appellant was convicted at Nottingham Crown Court of three robberies, attempted robbery and possession of offensive weapons. The prosecution case depended on identification evidence from the victims and other witnesses.

After half-time rulings removed further robbery counts and the allegation against the appellant's co-accused, trial counsel withdrew an application to discharge the jury. On appeal, the appellant challenged the judge's direction that all matters other than identity had been proved. He also alleged ineffective representation and complained of omitted directions concerning the co-accused's evidence and his probation officer.

The central issue was whether any of those matters rendered the convictions unsafe.

1. Appeal dismissed. The convictions were safe.

2. The trial judge should not have told the jury that everything except identity had been proved without first leaving the elements of the offences to them. The respective functions of judge and jury would have been better respected by a brief direction on those elements. However, no party disputed that the robberies and attempted robbery had occurred. Identity was the real and correctly identified issue. The error could not have affected the verdict.

3. Applying R v Day [2003] EWCA Crim 1060, an allegation of counsel's incompetence required the appellant to establish identifiable errors or irregularities caused by that incompetence which rendered the trial unfair or unsafe. That burden was not discharged. Counsel had cogent tactical reasons for not pursuing a fresh trial: the co-accused would have been a disastrous alibi witness, while the additional failed identifications assisted the challenge to the reliability of identification evidence. A different advocate might have made another choice, but that did not establish incompetence capable of rendering the verdicts unsafe.

4. The absence of a specific probation direction did not undermine safety. It was highly unlikely that the jury would infer from probation that the appellant committed the serious knife robberies, and the summing-up repeatedly directed attention to identification. The judge also clearly told the jury that the charge concerning the co-accused and her mother had been withdrawn and that they did not have to consider that evidence. The directions were sufficient in the circumstances.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2014] EWCA Crim 945.
• Crown Court at Nottingham: convicted the appellant of three robberies, attempted robbery and three possession counts, and imposed concurrent sentences totalling six years' imprisonment.