Thomas v R

A conviction is not unsafe merely because disclosure failures or an ill-prepared line of cross-examination arise during trial. The trial judge must take fair and proportionate steps to prevent prejudice, including stopping improper questioning, requiring disclosure, allowing time for instructions, and directing the jury to consider only relevant evidence. Where those measures fairly cure the procedural difficulty, and the verdicts accord with the evidence, the convictions remain safe.

The appellant was convicted in the Crown Court at St Albans of possessing an imitation firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1969, and two offences of possessing Class A drugs with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. He was acquitted of attempted robbery and of possessing an imitation firearm while committing an offence.

He appealed against conviction. The appeal challenged the trial judge’s refusal to discharge the jury after prosecution questioning about access to a telephone and after undisclosed bank material was deployed in cross-examination. The central issue was whether those events rendered the convictions unsafe.

1. The appeal was dismissed. The court held that the convictions were safe.

2. The prosecution should have clarified before trial whether it intended to question the appellant about providing an access code for the Samsung telephone. It should also not have responded to the appellant’s late production of bank-account screenshots by cross-examining from bank material that had not first been disclosed to the defence.

3. Those errors did not, however, cause undue or unfair prejudice. The judge stopped further questioning about the Samsung telephone. She prevented further financial cross-examination until disclosure had been made, ordered disclosure of the bank statements, and allowed the defence time to take instructions before questioning resumed.

4. The trial judge was entitled to resolve the disclosure difficulties during the trial. Her directions properly confined the jury to the evidence relevant to its verdicts. The material issues were the complainant’s credibility concerning the imitation firearm, and whether the prosecution had proved possession of the drugs and an intention to supply.

5. Although the prosecution’s preparation and conduct of the disputed issues were unsatisfactory, the judge’s measures were fair and proportionate. The verdicts accorded with the evidence, so there was no doubt as to the safety of the convictions.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed; the convictions from the Crown Court at St Albans were upheld.
• Crown Court at St Albans: The appellant was convicted on 17 April 2018 and sentenced on 11 May 2018.