Failure of Disclosure in R v Darren Dawson Appeal Highlights Importance of Proper Identification Procedures and Disclosure in Criminal Trials

Citation: [2023] EWCA Crim 1408
Judgment on


The case of R v Darren Dawson (EWCA Crim 1408) presents an appeal against conviction in which the defendant, Darren Dawson, challenged the safety of his robbery conviction on the basis of a non-disclosed negative identification procedure. The appeal raises significant points of law regarding disclosure, identification evidence and procedure, and the implications of not giving evidence at trial.

Key Facts

Darren Dawson was convicted of robbery following a trial at the Crown Court at Great Grimsby. During the trial, the jury was presented with an agreed fact that no identification procedure had been conducted. However, post-conviction and during deliberations, it emerged that a negative identification procedure had taken place – this contradicted the agreed fact. Despite the appellant’s application to discharge the jury upon this revelation, the trial judge refused and proceeded with sentencing. The appellant, through counsel Mr J Dunning, subsequently appealed against his conviction.

Disclosure and Agreed Facts

A critical element of the case hinges on the prosecution’s failure to disclose the negative identification procedure. Agreed facts play a crucial role in shaping what the jury is told, and any deviation from the truth may affect the fairness of a trial. A failure of disclosure, particularly concerning an agreed fact, can undermine the integrity of the process unless the resulting conviction remains undeniably safe despite the non-disclosure.

Identification Evidence

The reliability of identification evidence and the procedures surrounding it are paramount, given the potential for mistaken identity. Where a defendant argues mistaken identity, the existence of an identification procedure (and its outcome) become critical. If an identification procedure results in a non-identification, this information must be disclosed as it may significantly affect the defense’s case and the jury’s evaluation of the evidence.

The Right to Silence and Adverse Inferences

The appellant’s decision not to give evidence was highlighted by the judge as part of the “overwhelming” case against him. According to the Criminal Justice and Public Order Act 1994, adverse inferences can be drawn from a defendant’s silence. The Judge’s reliance on this aspect emphasizes the legal principle where failing to testify, without a valid reason, could be detrimental to a defendant’s case, suggesting something to hide.


The Court of Appeal, presided by Lord Justice Males, Mr Justice Saini, and Mrs Justice Steyn DBE, considered the appellant’s conviction in light of the judge’s ruling at trial and the new evidence presented. Despite the misstep in disclosure regarding the negative identification procedure, the court concluded that the evidence against the appellant was “overwhelming.” Factors contributing to this conclusion included CCTV footage, recovery of distinctive clothing, and a corresponding tattoo on the appellant’s neck. Accordingly, the appeal against conviction was dismissed, highlighting the notion that even with procedural errors, a conviction can stand if the evidence against a defendant is compelling enough to dissipate reasonable doubt.


The court’s decision in R v Darren Dawson underscores the importance of proper disclosure and the potential consequences when processes are mismanaged. However, it also illustrates the appellate court’s discretion to uphold a conviction if it believes the evidence establishes guilt beyond a reasonable doubt, despite procedural shortcomings. The case reinforces foundational legal principles relating to disclosure obligations, the weight of identification evidence, and the implications of an accused’s silence. Legal professionals must be mindful of these principles when preparing and presenting a defense, especially in cases where identification and the defendant’s choice not to testify may be pivotal.

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