R v Vivian Barrington Wills

A conviction is not unsafe merely because a disclosure request was refused where the material available at trial sufficiently enabled the defence case to be advanced and no further admissible benefit is shown. Fresh evidence of a later threat warning cannot affect a self-defence claim if it was unknown to the defendant at the time of the alleged offence.

A conventional self-defence direction is adequate where it directs the jury to assess the defendant’s genuine belief and the reasonableness of the force used. A separate direction on a pre-emptive strike or retreat is unnecessary unless the facts require it. An ill-advised judicial postscript on counsel’s use of “beyond reasonable doubt” will not render a conviction unsafe without a real risk that the jury disregarded the defence case.

The appellant was convicted in the Crown Court at Truro of possessing a firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968. He relied on self-defence. He said that, because of past events involving a drug importation in Spain and threats which he believed followed, he mistook an enforcement agent for a threat to himself and his family.

He appealed against conviction, alleging an erroneous refusal of a disclosure application, inadequate directions on self-defence and retreat, and an unfair judicial comment after defence counsel referred to “beyond reasonable doubt”. During the appeal, he sought to adduce a later Osman warning under section 23 of the Criminal Appeal Act 1968 and to add a further ground. The central question was whether any of those matters rendered the conviction unsafe.

1. Appeal dismissed. The court was sure that none of the grounds, separately or cumulatively, raised doubt about the safety of the conviction.

2. The late and diffuse section 8 CIPA application was largely a fishing expedition. The request focused on communications concerning risk assessments and protection was more relevant and, with that qualification, the court would have allowed it. However, the prosecution had disclosed the appellant’s reports and concerns, and the agreed facts sufficiently placed the relevant history before the jury. No further material capable of assisting the defence was identified. The refusal therefore did not adversely affect the fairness of the trial or render the conviction unsafe.

3. The court considered the later Osman warning de bene esse under section 23 of the Criminal Appeal Act 1968. Although it could not have been obtained at trial and would have been admissible if genuine, it concerned information first received after sentencing. It was not known to the appellant when he confronted the enforcement agent. It consequently could not support his asserted belief at that time and afforded no ground for allowing the appeal. Admission of the fresh evidence was refused.

4. The self-defence direction correctly required the jury to consider the appellant’s genuine belief, including a mistaken belief, and whether he used no more than reasonable force in the circumstances as he believed them to be. A more specific reference to his asserted mistake as to the enforcement agent’s identity might have improved the direction, but its absence was not legal error. The evidence did not require a separate direction on a pre-emptive strike or retreat. The jury could properly treat his decision to leave the house despite advice to remain inside as relevant to whether his asserted belief was genuine.

5. The judge’s postscript correcting counsel’s reference to “beyond reasonable doubt” was better dealt with after the jury had retired and by a later reminder of the correct direction. It did not, however, create a reasonable risk that the jury would disregard the defence submissions. This was not a Bryant case ([2005] EWCA Crim 2079). Leave to advance the additional ground was refused because it merely recast an argument already made.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2024] EWCA Crim 1351.
• Crown Court at Truro: convicted the appellant on 22 June 2023 of possessing a firearm with intent to cause fear of violence and sentenced him on 22 August 2023.