Thomasson & Anor, R. v (Rev 1)

Evidence is not ordinarily excluded under Police and Criminal Evidence Act 1984, section 78 merely because an identifying witness is open to a strong credibility challenge. Save exceptionally, cross-examination and appropriate directions enable the jury to determine credibility. The position differs where substantive unreliability, unfairly obtained evidence, unjust prejudice or impropriety affects the fairness of the proceedings.

Under Part 11 of the Criminal Justice Act 2003, an E-Fit is hearsay. It is a visual representation of a person’s assertion, not equivalent to a mechanically captured photograph or video image. Opinions comparing an E-Fit with people known to the witness may therefore be excluded where the successive layers of human perception create a serious risk of error.

Carne Thomasson appealed against his convictions for conspiracy to cause grievous bodily harm with intent and conspiracy to pervert the course of public justice. He also renewed his application for permission to appeal sentence. Aldaire Warmington renewed his application for permission to appeal sentence.

At Manchester Crown Court, Popplewell J convicted both men following a gang-related shooting in which Jayne Hickey and her seven-year-old son were injured. The prosecution alleged that Thomasson helped arrange the shooting and the later destruction of the attackers’ vehicle. The conviction appeal concerned the admission of Hickey’s identification evidence, proposed police opinions about an E-Fit, and a late application to reopen the defence case. The sentencing challenges concerned dangerousness, respective roles, guideline uplift and disparity.

1. The appeal against conviction was dismissed. The judge correctly declined to exclude Jayne Hickey’s identification evidence under section 78 of the Police and Criminal Evidence Act 1984. Her credibility, the inconsistencies in her descriptions, the suggested prompting, and the deleted iPad browsing history were all matters capable of being tested before the jury. There was no suggested impropriety in obtaining the evidence, and the appellant was able to challenge it effectively. A credibility challenge of this kind will only exceptionally make a trial unfair.

2. The judge’s directions properly addressed the weaknesses in the identification evidence, including the inability to verify Hickey’s account of viewing the newspaper article. The trial judge’s later sentencing view about the identification did not affect the admissibility decision, which concerned the jury’s proper role at trial.

3. The court rejected the challenge concerning the E-Fit. Following Part 11 of the Criminal Justice Act 2003, an E-Fit is hearsay because it represents fact or opinion in pictorial form. Earlier reasoning which had treated photofits as analogous to camera images had been superseded by legislation. An E-Fit differs from a photograph or video recording because it is shaped by the perceptions of the eyewitness and the artist.

4. Proposed police opinions that the E-Fit resembled other people would have added further layers of perception and opinion. The resulting risk of undetected human error and jury misunderstanding meant that admitting the evidence would not have been in the interests of justice.

5. The judge was entitled to refuse the late application to reopen the defence case concerning Leevon Birchall. The defence had long possessed material linking Birchall to relevant events. Reopening after the Crown’s closing speech would have caused unfairness and undermined the orderly conduct of the trial.

6. The renewed applications for permission to appeal sentence were refused. The judge was entitled to find both offenders dangerous and to impose extended sentences. The exceptionally serious, planned gang shooting, the use of a firearm, the victims’ injuries, the child victim, and the offenders’ senior roles justified sentences above the ordinary guideline range. The respective starting points and treatment of totality disclosed no error. No loss of time order was made.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed. Renewed applications for permission to appeal sentence refused.

• Crown Court at Manchester: Popplewell J convicted Thomasson and Warmington on 21 March 2019. On 12 April 2019, Thomasson received an extended sentence of 28 years and Warmington an extended sentence of 25 years.