## Facts

- Late at night on Earls Court Road in London, Miss McFarlane saw three young men surround her female friend; the men appeared drunk.
- McFarlane approached to help and testified that one man pushed her into a doorway and punched her in the mouth, breaking three front teeth, then struck her again and ran off.
- The fact of a serious assault was not disputed; the case turned on the assailant’s identity.
- Cooper admitted he was among the three men but denied striking McFarlane, asserting that another man present, Peter Burke, delivered the blows; Burke was said to resemble Cooper.
- A defense witness (Fay), also present at the incident, testified that Burke struck McFarlane but had previously told police that Cooper was the assailant, harming his credibility at trial.
- About six weeks after the incident, McFarlane attended an identification parade and identified Cooper immediately and without apparent hesitation.

## Issues

1. Whether the conviction should be set aside as “unsafe or unsatisfactory” when the trial was procedurally proper but the appellate court, considering all the circumstances, retained a residual doubt about guilt.
2. Whether and how an appellate court may quash a conviction based on a “lurking doubt” about the safety of the verdict, particularly in a difficult identification case.

## Decision

- The Court of Appeal (Criminal Division) allowed the appeal and quashed the conviction.
- The court held that, under the statutory “unsafe or unsatisfactory” standard, it must ultimately decide whether it is content to let the verdict stand or whether there remains a “lurking doubt” that an injustice occurred.
- Despite strong identification evidence, the resemblance between Cooper and Burke and the conflicting (and credibility-damaged) testimony left the court with a residual doubt about whether Cooper was the assailant.
- Because that doubt could not be eliminated on the overall evidential picture, the conviction was treated as unsafe.

## Legal Principles

- An appellate court may set aside a conviction as unsafe even where there is no identified legal misdirection, procedural irregularity, or fresh evidence.
- In applying the “unsafe or unsatisfactory” test, the court must ask whether, on all the circumstances, it is satisfied that the conviction should stand; if a serious residual (“lurking”) doubt remains, the conviction should be quashed.
- The assessment is holistic and may reflect the court’s overall evaluation of the case, including risks of mistaken identification and the effect of conflicting accounts on the reliability of the verdict.

## Conclusion

The Court of Appeal quashed Cooper’s conviction because, after reviewing the whole case, it could not be confident that the jury’s verdict was safe; the decision is associated with the “lurking doubt” approach permitting appellate intervention to prevent potential wrongful convictions, especially in contested identity cases.


R. v. Cooper, [1969] 1 Q.B. 267 (Eng. C.A. Crim. Div. 1969)