Garland, R v

On an appeal under section 2 of the Criminal Appeal Act 1968, the ultimate question is whether the conviction is unsafe. The appellate court must make that assessment itself. In a difficult case, it may test its provisional conclusion by asking whether withheld or fresh material might reasonably have affected the jury’s decision, but that is not a determinative test.

Non-disclosure does not itself make a trial unfair or a conviction unsafe. The court must assess the material’s reliability, admissibility, probative value and realistic capacity to affect the result. Speculative and unreliable multiple hearsay did not create doubt about a conviction supported by substantial independent evidence.

Garland was convicted at St Albans Crown Court in 2007 of burglary, aggravated burglary and causing grievous bodily harm with intent. His case was referred to the Court of Appeal by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995.

The Crown accepted that intelligence from two confidential sources, suggesting possible involvement by others, should have been disclosed at trial. Garland contended that the material could have supported an alternative-suspect case, affected the admission of his bad-character evidence, and enabled further investigation. The central issue was whether the non-disclosure rendered his convictions unsafe.

1. The appeal was dismissed. Although the Crown should have disclosed the intelligence, the court had no doubt that the convictions were safe.

2. Under section 2(1) of the Criminal Appeal Act 1968, the appellate court itself must decide whether the conviction is unsafe. R v Pendleton [2001] UKHL 66, R v Burridge [2010] EWCA Crim 2847 and Mushtaq Ahmed v The Queen [2010] EWCA Crim 2899 establish that the possible effect of material on the trial jury is a useful check in a difficult case, not a substitute for the court’s own assessment. The same approach applies to withheld material and fresh evidence because neither was before the jury.

3. The court reconciled that statutory inquiry with McInnes v HM Advocate [2010] UKSC 7. A failure to disclose does not automatically make the trial unfair. Its significance and consequences must be assessed. In England and Wales, the ultimate question remains whether the undisclosed material causes the court to doubt the safety of the verdict.

4. The intelligence from the second source concerned theft of exterior lights from the public house, not the burglary, and was irrelevant. The first source’s information was confused, inconsistent, third-hand and speculative. It had little or no probative value and would not have been admissible under section 114(1)(d) of the Criminal Justice Act 2003.

5. The material would not have prevented admission of Garland’s similar previous offending under section 101 of that Act. A positive case that another man was the accomplice would have made comparative propensity evidence more material; admission was also independently available because of the attack on Ruffolo’s credibility. The remaining evidence, including Ruffolo’s early reference to “Jason”, telephone contacts and the similar-offending evidence, provided substantial support for the verdict.

• Court of Appeal (Criminal Division): dismissed Garland’s appeal against conviction following a Criminal Cases Review Commission reference in R v Garland [2016] EWCA Crim 1743.
• Court of Appeal (Criminal Division): in October 2008, the Full Court refused Garland’s renewed application for leave to appeal against conviction.
• St Albans Crown Court: in December 2007, Garland was convicted of burglary, aggravated burglary and two counts of causing grievous bodily harm with intent. In January 2008, he received imprisonment for public protection under section 225 of the Criminal Justice Act 2003.