Warren & Ors v R.

On an appeal against historic convictions, statutory law is applied as it stood at trial, but the common law and standards of procedural fairness are applied as understood at the appeal. The destruction and non-disclosure of original eyewitness statements can render convictions unsafe where it prevents effective testing of identification and credibility evidence, and no contemporaneous investigation or jury direction addressed the resulting prejudice. Missing material does not automatically make a trial unfair. The court must assess the nature and extent of the prejudice in the particular case. A risk that jurors saw politically charged publicity does not itself make a verdict unsafe without a realistic basis for concluding that it affected their fair assessment of the evidence.

The appellants were convicted or pleaded guilty in three trials at Shrewsbury Crown Court in 1973 and 1974 following incidents during the 1972 building workers’ strike. The convictions concerned public-order offences, including unlawful assembly, affray, conspiracy to intimidate, and threatening behaviour.

Following references by the Criminal Cases Review Commission, the appellants challenged the safety of all convictions. Their principal ground was that an unknown number of original handwritten eyewitness statements had been destroyed and the fact of their destruction had not been disclosed. A second ground relied on the broadcast of the political documentary Red under the Bed while the first trial was continuing. The central questions were whether the undisclosed destruction made the verdicts unsafe and whether the broadcast created a material risk of jury prejudice.

1. The appeals were allowed. The convictions of all appellants arising from the three trials were unsafe and were quashed. There was no sensible prospect, and no public interest, in a retrial after the passage of nearly 50 years.

2. The court applied the approach stated in R v Bentley [2001] 1 Cr. App. R. 21. The statutory provisions applicable at the time of the trials remained relevant, but the court assessed fairness by reference to the common law and procedural standards at the time of the appeal.

3. The court accepted the general approach in PR [2019] EWCA Crim 1225: lost material does not automatically make a trial unfair, and the decisive question is the actual prejudice to the defence. Here, however, the destruction was undisclosed. The prosecution case depended substantially on eyewitness testimony and photographic identification. Earlier accounts could have revealed omissions, inconsistencies, or changes after witnesses saw photographs and investigators better understood the case to be proved.

4. The Crown could not properly invite an inference that the contents of the destroyed statements had been preserved in later versions. Surviving examples showed that significant allegations could be added or altered. Had the destruction been revealed, it could have been investigated in cross-examination and addressed by directions to the jury. Neither safeguard was available. The resulting inability to test central eyewitness evidence rendered the verdicts unsafe. The court noted the modern importance of retaining and disclosing materially differing witness accounts under the Criminal Procedure and Investigations Act 1996 Code, alongside the significance of prior inconsistent statements under the Criminal Procedure Act 1865.

5. The second ground failed. Although a contemporary court would seek to prevent or manage a broadcast such as Red under the Bed, the issue was whether it probably affected the jury’s fair assessment of the evidence. The programme was plainly polemical and the trials concerned whether each accused was properly identified as a participant in criminal conduct. There was no sound basis for concluding that any juror who saw it was prejudiced against an appellant. No abuse-of-process challenge based on executive conduct was advanced.

• Court of Appeal (Criminal Division): Following Criminal Cases Review Commission references, the court allowed the appeals in [2021] EWCA Crim 413, quashed all convictions, and ruled out retrials.

• Criminal Cases Review Commission: The Commission referred the cases in March and May 2020 after reconsidering applications following a conceded judicial-review claim.

• Court of Appeal (Criminal Division), 1974: In the earlier appeal from Trial 1, the court dismissed the conviction appeals on conspiracy to intimidate and unlawful assembly, but allowed the affray appeals and quashed those affray convictions.

• Shrewsbury Crown Court: Three trials in 1973 and 1974 resulted in the convictions and guilty pleas challenged in these proceedings.