R v Jonathan Michael Moorby

Alleged police misconduct does not, by itself, make a conviction unsafe. The court must assess whether fresh material undermines the conviction in the light of all the evidence before the jury. A witness whose evidence may have been affected need not be treated as determinative where other, untainted and compelling evidence supports the conviction and the jury received appropriate directions. Later offending cannot affect a sentence already imposed, although the sentencing court may take account of aggravating features properly before it. The applications concerning conviction and sentence were refused.

The applicant was convicted in his absence on 15 December 2014 of possessing Class A and Class B controlled drugs with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. He received concurrent sentences of 15 years and four years. After a delay of 2,353 days, he sought an extension of time and permission to appeal, relying on WhatsApp messages and an IOPC report concerning alleged police misconduct and possible contamination of a prosecution witness. He also renewed his application for leave to appeal against sentence and sought an adjournment pending disciplinary proceedings. The central issues were whether the fresh material rendered the convictions unsafe and whether the sentence was manifestly excessive.

The court extended time for the conviction application but refused the applications for fresh evidence and permission to appeal against conviction. The renewed application for leave to appeal against sentence was also refused.

1. The application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968 was reasonable because the material indicated potential taint. The court nevertheless assumed the worst case for the officer and accepted that his interview conduct had been entirely unprofessional. Alleged misconduct, lack of integrity or dishonesty was not determinative. The safety of the convictions depended on an analysis of all the evidence before the jury.
2. The principal witness was not central to the case in the sense of being the sole basis for conviction. Her evidence was supported by the evidence of her young daughter, who consistently identified the applicant and whose evidence had not been shown to be contaminated by the officer. That evidence contained two strands of identification and was cogent and compelling. The judge had given appropriate directions on identification evidence and the dangers of relying on a single sighting. In the absence of misdirection, the convictions were safe even if the officer’s misconduct were established. The fresh evidence was therefore refused.
3. Later offending in Thailand could not affect the sentence imposed for the earlier offences. However, the sentencing judge was entitled to elevate the categorisation and treat the applicant as having a leading role, having regard to his previous convictions, offending while on licence, the purity and quantity of the drugs, his closeness to the source and the vulnerability of the woman whose home was used. The sentence was not manifestly excessive.
4. The request to await disciplinary proceedings was refused. The proposed inquiry concerning R v Allcock and Others had no objective bearing on the application and supplied no relevant evidence of wrongdoing.

1. Court of Appeal (Criminal Division) — In [2023] EWCA Crim 942, time was extended for the conviction application, but fresh evidence was not admitted and permission to appeal against conviction was refused. The renewed application for leave to appeal against sentence was also refused.
2. Single judge — Permission to appeal against sentence was refused in 2015.
3. Trial court — The applicant was convicted and sentenced on 15 December 2014. The judgment does not identify the trial court by name.