Practice and Procedure


PUBLISHED November 10, 2003

Where a witness statement, significantly different from evidence given, was not disclosed until after the verdicts the conviction could not be regarded as safe as the jury could have reached a different conclusion if the witness had been cross examined on the discrepancy.Appeal, with leave of the single judge, against convictions for false imprisonment and theft imposed at Snaresbrook Crown Court on 23 March 2003. On 16 April 2003 the defendant ('D') was sentenced to a total of two years' imprisonment. The victim ('V') had a relationship with D but had ended it. It was the Crown's case that D had gone to V's flat in a jealous frenzy and imprisoned her then took her wallett. V gave evidence that she had let D in and he slapped her and pushed her around, she had tried to call police but he took her mobile and pulled the land line from the socket. He accused her of seeing someone else, he bolted the door and wouldn't let her leave. After he left she realised he had taken her wallet. She called police who arrested D when they arrived and recovered her wallet. V agreed everything had been recovered. In evidence D said he had gone to see V but had not been hostile, he had gone to her bedroom and seen she was packing and was taken aback as he thought they were going to spend the night together. The atmosphere degenerated and they had an argument. He threw the wallet out of the window as he thought it had her railcard in and he thought V saw him throw it. When he left he felt bad and returned to find the wallet where the police arrested him. He had no intention to keep the wallet for himself. Following the jury's verdicts the Recorder asked whether the Crown had a victim impact statement. A statement was produced, however, it was not a victim impact statement but a further witness statement dealing with the primary facts. In the statement V had stated that the contents of the wallet had been recovered but D had also emptied the contents of her purse and taken ?30 to £40 which had not been returned. The Crown accepted that fairness required earlier disclosure but the witness statement had been put into the wrong file. D appealed conviction as unsafe given: (i) the witness statement was not disclosed and there was a significant difference between the statement and the evidence given; and (ii) the judge should have given the jury a specific direction on intention to permanently deprive.HELD: (1) Whether in terms of Art.6 of the European Convention on Human Rights or by safety of the conviction as a matter of domestic law the witness statement should have been disclosed. Had V been cross examined on it the jury could have arrived at a different conclusion. The case crucially depended on the credibility of V. The only discrepancy was as to the alleged taking of the money from the purse, however, it was an important difference. The omission to mention in evidence was critical, if the money was taken why did V not mention it in evidence and if not taken why was it mentioned in the statement. The court could not be confident that there would not have been a different outcome if D had been armed with the statement and had cross examined V on it. (2) The appeal would not have been allowed on the second ground alone as the directions given were impeccable.Appeal allowed.