Criminal procedure - Criminal appeals - Fresh evidence - Identification

R v George Davis: CA (Crim Div): (Lord Justices Hughes (Vice-President), Henriques, Macur): 24 May 2011

The appellant (D) appealed against his conviction for robbery via a reference by the Criminal Cases Review Commission under the Criminal section 9. D had been tried in 1975 with three others, but was the only one convicted.

The conviction was based substantially on identification evidence, including that of two police officers (X and Y) who were at the scene of the robbery, and of others who witnessed the getaway including a witness (B).

The CCRC referred the matter on the basis of fresh material concerning the identifications by X and Y, some of which was available but not disclosed at the trial, and some of which came into existence afterwards.

D maintained that there was also material casting doubt on the identification made by B.

Held: The new material affecting the identifications by X and Y was of considerable significance.

Those identifications could not safely be relied upon.

It was plain that if the material relating to X in particular had been available to put into the overall assessment of the case it might have had the effect of casting doubt on the integrity of the handling by the police of the identification evidence generally.

The question of safety of the conviction was for the instant court.

It was not answered simply by asking whether the fresh information might have affected the jury’s deliberations.

It was impossible for the court, after over 30 years, to weigh the evidence to resolve the issue of whether the conviction was soundly based.

While the evidence was mixed, it had to be assessed by a single court of trial to evaluate its overall effect.

The court could not retry D.

It was not in a position to substitute itself for the jury; rather it examined the evidence presented to the jury and any light cast upon it by the fresh material.

The fresh material relating to the identifications made by X and Y, together with limited new evidence affecting the identification by B, so far undermined the case that it was impossible to be satisfied that D’s conviction was safe.

The court did not know whether or not D was guilty, but his conviction could not be said to be safe.

There could be no question of retrial after such a long period of time (see paragraphs 53-56 of judgment).

Appeal allowed.

DRB Whitehouse QC, H Oliver (instructed by Shaw Graham Kersh) for the appellant; R Whittam QC (instructed by CPS) for the Crown.