Privy Council: Appeal dismissed amidst serious disclosure failings
- 31 Jan 2023
Today, 31 January 2023, we have received judgment in respect of our client, Malik Cox, on appeal from the Turks and Caicos Islands. The Privy Council dismissed our client’s appeal against conviction for murder.
In 2018, Andreika Stubbs was shot in a carpark in Turks and Caicos. She later died in hospital. Our client Malik Cox was charged and convicted of her murder. In 2020 Mr Cox’s appeal against his conviction was dismissed by the Court of Appeal and in 2021 The Privy Council granted permission to appeal.
In December 2022, we appeared in The Privy Council, appealing Mr Cox’s convictions on two grounds. Both grounds sought to argue that the principal witnesses in the case were not credible or reliable. In respect of one of the witnesses, our client argued that this was the case due to an immunity agreement struck between a key witness and the Director of Public Prosecutions.
Whilst The Privy Council did not allow the appeal, they made important comments in respect to the prosecutions gathering of evidence and disclosure failings.
Prosecution’s gathering of evidence
The Privy Council found that the immunity agreement between the principal witness and the Director of Public Prosecutions impacted on the reliability of the prosecution’s evidence and could potentially have undermined its weight and credibility. The immunity agreement contained leading questions and the prosecution provided an incentive for the witness to implicate Malik Cox. Whilst The Board did not dispute or find fault with the trial judge’s decision to rely on this evidence, The Board however, discourages evidence procured in this way in future cases.
Not only was the immunity agreement deficient, but the Prosecution did not disclose it until the first day of trial.
The Board’s comments on disclosure failings are significant. In their judgment, The Board makes clear that the Prosecution had put the defence at a disadvantage. There had been a failure to explain how the immunity agreement had come into existence and there was a lack of a documentation and record to explain the process by which the agreement had been reached.
The Death Penalty Project instructed Siobhan Grey KC of Libertas Chambers and Lara Maroof of Maroof Law on the appeal.
Quote from judgment
The prosecution’s approach to its obligation to disclose the [immunity agreement] and the circumstances surrounding its making was unacceptably lax and is not excused by a possible misunderstanding of the law on disclosure. The defence was placed at a disadvantage in not being allowed to see the [immunity agreement] until the morning of the trial.