McCotter-Henry, R. v

Late service of evidence does not justify exclusion under Police and Criminal Evidence Act section 78 where the defence had adequate prior notice of the substance and role of the evidence, and the evidence formed a probative and integral part of the prosecution case. The court must assess practical fairness. Prejudice inherent in properly admissible and relevant evidence does not, without more, render the proceedings unfair.

The applicant was convicted at Bristol Crown Court of aggravated burglary, wounding with intent and possessing a firearm with intent. The prosecution alleged that he participated in a violent burglary shortly after a robbery in which a car was taken at gunpoint.

On the first day of trial, the prosecution served the robbery victim’s statement. The applicant sought its exclusion under Police and Criminal Evidence Act section 78, contending that the late service prevented a fair trial. The trial judge refused the application. After the single judge refused leave to appeal conviction, the applicant renewed his application and also sought a representation order.

The central issue was whether admission of the late-served statement made the conviction unsafe.

1. The court dismissed the renewed application for leave to appeal conviction. It agreed with the single judge that the conviction was patently safe.

2. The trial judge was entitled to refuse exclusion under Police and Criminal Evidence Act section 78. Although the witness statement itself was served late, the defence had already received the 999-call transcript, CCTV material and other material showing that the robbery formed part of the prosecution case. The defence therefore had adequate notice of the evidence’s substance and significance.

3. The robbery evidence was relevant and probative. It linked the applicant to the means of transport used in the aggravated burglary. Its temporal and geographical proximity, the evidence of a handgun, the partial motorcycle registration, the abandoned vehicles and the DNA evidence formed an interlinked evidential sequence capable of identifying the applicant as a participant.

4. Any prejudice did not exceed that inherent in the proper admission of legitimate prosecution evidence. The jury had been directed that it had to be sure of the relevant facts. There was consequently no arguable basis for concluding that admission of the statement had deprived the applicant of a fair trial or rendered the convictions unsafe.

• Court of Appeal (Criminal Division): The court dismissed the renewed application for leave to appeal conviction and agreed with the single judge that the convictions were safe.
• Crown Court at Bristol: On 28 March 2017, the applicant was convicted of aggravated burglary, wounding with intent and possessing a firearm with intent.
• Court of Appeal (Criminal Division): In July 2017, following an Attorney-General’s Reference, the applicant’s sentence was increased. No citation is stated in the judgment.