Regina v Smith & Ors

Factual and Procedural Background

On 4 April 2018, at Winchester Crown Court, following a trial before Judge Langstaff and a jury, three appellants were convicted of attempted murder, and their co-defendant was convicted of encouraging or assisting an offence contrary to section 45 of the Serious Crime Act 2007. The appellants received sentences ranging from 30 to 31 years' imprisonment, while the co-defendant was sentenced to 4 years' imprisonment. The appellants appealed against their convictions, and the co-defendant sought leave to appeal contingent on the appellants' success.

The victim was a man staying at a flat in Hampshire. Early on 13 February 2017, after leaving the flat to supply drugs to the co-defendant, the victim was shot in the face by an assailant with a sawed-off shotgun. The prosecution alleged that the appellants, operating a rival drug network, carried out the attack in retaliation for a robbery earlier that evening at a house used as their base.

Evidence included witness testimony about the robbery, the appellants’ movements supported by CCTV footage, and communications involving the co-defendant, who was alleged to have lured the victim out of the flat. The defence relied on identification evidence from the victim and another witness, who each identified different individuals, not the appellants, as the attackers.

The prosecution also introduced evidence to undermine the identifications and mobile phone records to connect the appellants and the co-defendant. The appellants challenged the handling of identification evidence, the admission of certain hearsay-related evidence, and the judge’s rejection of a no case to answer submission.

Legal Issues Presented

1. Whether the trial was unfair due to the prosecution’s handling of the identification evidence given by prosecution witnesses who identified individuals other than the appellants as the attackers.
2. Whether the judge erred in admitting evidence of a conversation between a third party and a witness regarding the relocation of a rival drug network, given concerns about hearsay and lack of direct evidence that the appellants received this information.
3. Whether the judge was correct to reject the submission of no case to answer at the close of the prosecution's case.

Arguments of the Parties

Appellants' Arguments

• The prosecution failed to challenge or probe the identification evidence of their own witnesses, thereby depriving the defence and the jury of the opportunity to test the reliability of that evidence.
• The prosecution should have conducted further interviews or sought explanations from witnesses about inconsistencies in their identification evidence, as guided by Ministry of Justice best evidence principles.
• The judge erred in allowing evidence that contradicted the witnesses’ identifications without declaring the witnesses hostile, thereby compounding unfairness.
• The admission of evidence from a witness about statements made by a third party was prejudicial because the third party was not called to testify, preventing the defence from testing the accuracy of that evidence.
• The no case to answer submission should have been upheld due to insufficient evidence to justify a conviction.

Prosecution's Arguments

• The prosecution was entitled to call witnesses whose evidence was partially reliable and to adduce other evidence to contradict parts of that evidence without treating the witnesses as hostile, in accordance with established legal principles.
• The prosecution did not dispute the honesty or confidence of the witnesses in their identifications but argued there were objective reasons why the identifications were mistaken.
• The evidence of the third party’s statements was not hearsay as it was relied upon only to prove that the statements were made, not their truth, and the witness who testified about the statements was subject to cross-examination.
• There was ample evidence to justify leaving the case to the jury, thus rejecting the no case to answer submission was appropriate.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Greenough v Eccles (1859) 5 CB (NS) 786	Clarification that prosecution may contradict its own witness without treating them as hostile, subject to judge’s discretion.	The court relied on this authority to confirm that the prosecution may adduce evidence contradicting part of a witness's testimony without declaring the witness hostile.
R v Cairns [2002] EWCA Crim 2838; [2003] 1 WLR 796	The prosecution can call a witness and rely on only part of their evidence, while contradicting other parts without treating the witness as hostile.	The court applied this principle to uphold the prosecution’s approach of calling witnesses whose evidence was partially relied upon and contradicting other parts.
Turnbull [1977] QB 224	Guidelines on the dangers of mistaken identification and how courts should direct juries on identification evidence.	The court referred to these guidelines to emphasize the need for caution in assessing identification evidence, which was properly directed to the jury.

Court's Reasoning and Analysis

The court examined the prosecution’s discretion to call witnesses whose evidence is only partially reliable, confirming that this is lawful and consistent with the duty to present all relevant evidence. It rejected the appellants’ contention that the prosecution was required to probe the identification evidence of their own witnesses more thoroughly, noting that the prosecution did not dispute the honesty or confidence of those witnesses but rather argued that objective reasons existed for mistaken identification.

The court found no unfairness in the prosecution’s approach, as the defence had the opportunity to cross-examine the witnesses and make tactical decisions accordingly. It also concluded that the judge’s directions to the jury on the risks of identification evidence were appropriate and necessary to ensure a fair assessment.

Regarding the evidence of a third party’s statements introduced through a witness, the court held that it was not hearsay because it was used to prove the fact that the statements were made, not their truth. The defence had the opportunity to challenge the witness who gave this evidence, and the absence of the third party as a witness did not cause unfairness.

Finally, the court determined that the prosecution had presented sufficient evidence to justify leaving the case to the jury, thereby appropriately rejecting the no case to answer submission.

Holding and Implications

The court DISMISSED the appeals of the three appellants and refused the co-defendant's application for leave to appeal. The convictions were deemed safe.

The direct effect of this decision is that the appellants’ convictions for attempted murder and the co-defendant’s conviction for encouraging or assisting an offence remain upheld. The court did not establish new legal precedent but reaffirmed existing principles regarding the prosecution’s discretion in calling witnesses and handling identification evidence, as well as the treatment of certain hearsay evidence.