Dickens v R.

On an appeal relying on fresh evidence, the Court of Appeal must assess that evidence in the context of the whole case and decide for itself whether the conviction is unsafe. The possible effect on the trial jury is only a helpful cross-check in a difficult case.

A disclosure failure does not itself make a conviction unsafe. The court must decide whether it caused material unfairness. Independently obtained identifications of associated defendants may be mutually supportive where they create an unexplained odd coincidence, provided the jury is properly cautioned about the risk of honest mistake.

The appellant was convicted of murder at Birmingham Crown Court in December 2012 and received life imprisonment with a minimum term of 30 years. The prosecution case was that he drove the getaway car while David Harrison entered the victim’s home and shot him.

With leave and an extension of time, the appellant appealed against conviction and was permitted to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. He advanced six grounds concerning non-disclosure, post-trial intelligence and Harrison’s evidence, the video-identification procedure, the trial judge’s treatment of the two identifications as mutually supportive, an alleged police-car comment, and cumulative unfairness.

The central issue was whether any of those matters, separately or cumulatively, rendered the conviction unsafe.

1. The appeal against conviction was dismissed. Although the Crown should have disclosed pre-trial material concerning Jamie Anslow’s possible involvement and the analysis suggesting that the appellant was unlikely to have used another telephone, the failures caused no material unfairness. The proposed alternative-driver case contradicted the appellant’s own alibi, which named Jamie Anslow as a potential alibi witness. The underlying telephone records were available to the defence and could have been analysed and used.

2. The court rejected Harrison’s fresh account that the appellant was uninvolved. Harrison had lied at trial, refused to provide verifiable detail and was contradicted by other evidence. Applying the approach summarised in Burridge v The Queen [2010] EWCA Crim 2847, the court itself assessed the fresh material against the whole case. It raised no reasonable doubt about guilt. The case was not factually difficult, so no jury-impact cross-check was needed.

3. There was no breach of Annex A to Code D of the Police and Criminal Evidence Act 1984. The witness had viewed the full image sequence repeatedly, made a definite identification, and the procedure had ended before she asked to see image number 4 again. It was open to the identification officer to refuse to reopen a completed and compliant procedure. The intermittent remote link at trial also caused no demonstrated prejudice capable of rendering the conviction unsafe.

4. The trial judge correctly left the two identifications as potentially mutually supportive. Under Regina v Turnbull and another 1977 QB 224, an unexplained odd coincidence may support identification evidence without being technical corroboration. The independent identification of two associated men, each asserting that they were together away from the crime scene, was capable of supporting both identifications. Following the analogy in R v Thomas Henry Weeder 1980 71 Cr App R 228, the jury did not first have to be sure of one identification before considering its support for the other. The judge’s repeated warnings as to the possibility of honest mistake and his direction to resolve factual issues before using supporting evidence were sufficient.

5. The decision by trial counsel not to seek exclusion of the appellant’s alleged police-car remark was deliberate and sustainable tactical judgment. The cumulative ground therefore fell away.

• Court of Appeal (Criminal Division) — dismissed the appellant’s appeal against conviction.
• Birmingham Crown Court — on 21 December 2012, convicted the appellant of murder and imposed life imprisonment with a minimum term of 30 years.