McGuffie & Anor, R v

Evidence that police officers fabricated or manipulated observations in a proximate and similar investigation may be more than an attack on credibility. Where it provides a sustainable basis for alleging similar fabrication in the current proceedings, it may be admissible as witness bad-character evidence if it has substantial probative value on an important issue. A conviction is unsafe if the appellate court cannot be confident that the jury would have convicted had that material been explored.

A party must identify the real issues in a criminal trial. If a disputed attribution is raised only after the prosecution’s closing speech, the judge may fairly direct the jury to the relevant evidence and permit them to draw ordinary factual inferences from it.

The applicants were unanimously convicted on retrial at Kingston-upon-Thames Crown Court of conspiring fraudulently to evade the prohibition on importing cocaine.

McGuffie contended that new material arising from R v Green and others undermined the reliability of police observation evidence at Gatwick Airport. He also challenged the destruction of unselected CCTV footage. Weekes contended that the summing-up wrongly treated a telephone number ending 6731 as being in Barbados and wrongly invited the jury to infer that he was using it.

The renewed applications raised whether the new observation material rendered McGuffie’s conviction unsafe, and whether the trial judge’s corrected directions on the telephone evidence rendered Weekes’s conviction unsafe.

1. The court granted McGuffie leave to appeal and quashed his conviction. It refused Weekes’s renewed application for leave to appeal against conviction.

2. In McGuffie’s case, the accuracy and integrity of the observation log were central. The material from R v Green and others could support a case that officers involved in the present observations had engaged in comparable failures or fabricated observations. Such evidence was not merely directed to credibility. Under section 100 of the Criminal Justice Act 2003, it could be witness bad-character evidence with substantial probative value on an issue of substantial importance.

3. Formal misconduct findings were unnecessary. Following R v Miller [2010] EWCA Crim 1153, the question was whether there was sound material, rather than speculation, to support the allegation. The similarities, temporal proximity and relevance to the integrity of the Gatwick observations met that threshold. Although the prosecution case was strong, the court could not be confident that the jury would inevitably have convicted had the material been explored. The separate complaint concerning destruction of the CCTV footage had no merit because the original material had been routinely erased after 30 or 31 days.

4. In Weekes’s case, the defence had failed to identify in time its challenge to the attribution and location of the 6731 telephone. The duties of active case management under the Criminal Procedure Rules and the defence-statement duty under section 6A of the Criminal Procedure and Investigations Act 1996 required that issue to be identified. Those duties did not infringe privilege against self-incrimination.

5. Once the judge corrected his initial statement that there was direct evidence that the 6731 telephone was in Barbados, his directions fairly left attribution and location to the jury. The jury could assess the pattern and timing of calls, including calls involving Rayit, the taxi driver and the 3600 number. There was no basis to permit a second defence speech or to prevent the jury from drawing ordinary factual inferences. The evidence entitled the jury to conclude that Weekes was using the number and was involved in the conspiracy.

• Court of Appeal (Criminal Division): On renewed applications, the court quashed McGuffie’s conviction and refused Weekes leave to appeal against conviction: [2015] EWCA Crim 307.
• Court of Appeal (Criminal Division): On 28 January 2013, the applicants’ appeals against sentence succeeded. Their final sentences were 12 years’ imprisonment for McGuffie and 10 years’ imprisonment for Weekes.
• Kingston-upon-Thames Crown Court: On 2 December 2011, following a retrial before HHJ Campbell and a jury, both applicants were unanimously convicted of conspiring fraudulently to evade the prohibition on importing cocaine.