Davies v R.

In an appeal founded on alleged incompetence of trial counsel, a conviction is not unsafe merely because a different tactical choice might have been made. The appellant must show that the alleged incompetence produced identifiable errors or irregularities that made the trial unfair or the conviction unsafe. A decision made in good faith, after weighing competing arguments and discussing it with the defendant, may be a reasonable tactical choice. In assessing safety, the court considers whether directions removed any prejudice and the strength of the remaining evidence. A jury may be directed to disregard identification material lacking a proper evidential basis while considering other admissible circumstantial evidence separately.

The appellant was convicted of robbery and sentenced to 12 years and nine months’ imprisonment. The prosecution relied principally on forensic evidence connecting him with gloves found in a car, together with fibre, mobile telephone and circumstantial evidence.

His defence was that he was not involved and that he had been with Sam Davis and Wesley Lovering. At trial, members of the robbed family gave evidence suggesting that Sam Davis might have been one of the robbers. The appellant contended that this evidence prejudiced his alibi and that trial counsel should have sought the discharge of the jury.

On his appeal against conviction, the court admitted fresh evidence about counsel’s advice and the appellant’s ability to participate. The central issues were whether counsel’s tactical decisions were incompetent and whether the evidence and directions concerning Sam Davis rendered the conviction unsafe.

1. Appeal dismissed. The court granted leave to receive fresh evidence under section 23 of the Criminal Appeal Act 1968, but preferred trial counsel’s evidence about the advice given and the appellant’s instructions. It found that the appellant agreed that the jury should not be discharged and understood the essence of the decision being discussed.
2. Applying Day [2003] EWCA Crim 1060, the court held that an allegation of counsel incompetence requires more than criticism of counsel’s performance. The appellant must establish identifiable errors or irregularities caused by the alleged incompetence which made the trial unfair or the conviction unsafe.
3. The decision not to seek discharge was a tactical decision made in good faith after consideration of competing advantages and disadvantages. Counsel could reasonably conclude that judicial directions would largely cure the prejudice from the evidence concerning Sam Davis. Evidence that Davis and Lovering had been interviewed but not charged could also assist the defence by explaining their existence and their absence as alibi witnesses.
4. Neither witness supplied a proper evidential basis for identifying Sam Davis. The judge nevertheless clearly directed the jury to disregard the purported identification. The separate reference to circumstantial evidence about Davis’s possible involvement did not undermine that direction.
5. The court was not satisfied that the trial was unfair or the conviction unsafe. There was strong forensic and circumstantial evidence against the appellant, including the glove evidence, and the appellant had no plausible explanation for it. His failure in interview to mention his alibi was also material. The conviction therefore stood.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2018] EWCA Crim 327.
• Crown Court: The appellant was convicted of robbery by a majority of 10 to 2 before HHJ Curran QC and was sentenced to 12 years and nine months’ imprisonment.