R v Darren Dawson

Failure to disclose a negative identification procedure, resulting in a false agreed fact being placed before the jury, is a material error. The question following such an error is whether the conviction is safe. That question does not require balancing the interests of the prosecution, other defendants or the complainant. The appellate court must assess safety for itself. A conviction may nevertheless be safe where the remaining evidence, taken cumulatively, is overwhelming and leaves no room for doubt.

Following a trial at the Crown Court at Great Grimsby, the appellant was convicted of robbery and sentenced to seven years’ imprisonment. During the jury’s retirement, it emerged that the prosecution had failed to disclose a negative identification procedure in which the victim had not identified the appellant. The jury had been given an agreed fact that no identification procedure had taken place. The trial judge refused to discharge the jury, and the jury returned a guilty verdict. The central issue on appeal was whether the conviction remained safe despite the late disclosure and the false agreed fact.

1. The prosecution’s failure to disclose the negative identification procedure was a material error. The result was that the case had been put before the jury on a false basis: [28].
2. The fact that the appellant’s former solicitors had known of the procedure was irrelevant. There was no suggestion of deliberate tactical suppression, and the information had not been passed to the lawyers conducting the trial. The judge was also wrong to treat the interests of the prosecution, the other defendants and the complainant, or the prospect of a retrial, as matters to be balanced when deciding whether to discharge the jury: [29]-[33].
3. The only question was whether, in light of the new information, the conviction was safe. The significance of the negative identification was primarily a matter for the jury to assess. The victim could make submissions about it if it had been disclosed, notwithstanding the circumstances of the attack and his injuries: [30]-[31].
4. The Court of Appeal assessed the safety of the conviction for itself. It put aside the identification evidence of DC Curry. The CCTV evidence showed three men in the vicinity of the appellant’s address shortly before and after the robbery, including a man dressed like the principal robber and in the company of the co-defendants. The appellant’s matching tattoo and the recovery of distinctive clothing materially reinforced that evidence. Taken together, the evidence left no room for doubt that the appellant was the man involved in the robbery. His failure to provide an alibi and his decision not to give evidence left the overwhelming inference effectively unchallenged: [34]-[35].
5. The appeal against conviction was dismissed: [37].

• Court of Appeal (Criminal Division): The Court considered an appeal against conviction following the refusal of the trial judge to discharge the jury. The appeal was dismissed: [2023] EWCA Crim 1408.
• Crown Court at Great Grimsby: The appellant was convicted of robbery on 1 December 2022 and sentenced to seven years’ imprisonment.