Flying Pickets’ Convictions Quashed
Half a century has passed since the passing of the (short-lived and later-repealed) Industrial Relations Act 1971, an Act which made many far reaching and controversial changes concerning the conduct of trade unions and the right to collective bargaining.
It was a time when employment relations were in turmoil. The first national building workers’ strike took place over the summer of 1972 amidst a campaign to achieve an increase in the minimum wage and to abolish “the lump” – the system of casual cash-paid daily labour that lacked accompanying employment rights.
The strikers used flying pickets to “bus” unionised workers to particular building sites in order to seek support from those working on the lump.
In September 1972 the unions concerned bussed some of their members from North Wales and Chester to picket building sites in Shrewsbury.
As a result, it was subsequently alleged that serious public order offences took place which led to three trials at Shrewsbury Crown Court in 1973 and 1974. Fourteen appellants (six of whom have since died) had their cases considered by the Court of Appeal on a reference by the Criminal Cases Review Commission (CCRC) following their convictions or pleas of guilty: Warren & Ors v R [2021] EWCA Crim 413 Fulford LJ VP, Andrew Baker, Goose JJ.
Those considered to be the more serious offenders received sentences of imprisonment of up to three years; others received lesser or suspended sentences.
Today the Vice President announced the Court’s decision to quash the convictions of all appellants in all three trials because, by today’s standards, they were unsafe.
There was no sensible prospect of a retrial after nearly fifty years, and no public imperative to order one in any event.
The Court faced a situation in which an unknown number of first written accounts by eye witnesses had been destroyed in a case which turned essentially on the accuracy and credibility of their testimony.
Descriptions by the witnesses would, in many instances, have changed and developed as they were shown photographs and as the police gained greater understanding of what those responsible for the investigation sought to prove.
Those changes and developments could have been critical for the assessment by the jury of whether they were sure that the individual appellants were guilty of the charges they faced.
The jury either needed to have that evidence rehearsed in front of them to the extent necessary, if the statements were still in existence, or they needed to be given clear and precise directions as to how to approach the destruction of the statements if that had occurred.
Neither of those things happened and, in consequence, the verdicts in all trials were unsafe.
The common law had developed significantly in this area over the last half century, particularly as regards the obligation on the prosecution to retain a record of any variations in statements of relevant witnesses and disclose them if that material might reasonably be considered capable of undermining the prosecution’s case or assisting the case for the accused. (See the Code under Criminal Procedure and Investigations Act (CPIA) pars 4 and 5).
It was to be stressed that under para 5 CPIA Code, the duty was to retain the final versions of witness statements and draft versions where the content differed, along with, among other things, any material casting doubt on the reliability of a witness.
As in Bentley[1] in arriving at this conclusion on the first ground of appeal, the Court had applied “legal rules and procedural criteria which were not […] applied at the time.”
By the standards of today, what occurred was unfair to the extent that the verdicts could not be upheld.
[1] R v Bentley [2001] 1 Cr App R 21