FRESH EVIDENCE

A well-known celebrity had his conviction for a historic offence of indecent assault quashed where fresh evidence undermined the credibility of one of the key prosecution witnesses. However, the court upheld the offender’s convictions for another 11 counts of indecent assault.

[2017] EWCA Crim 1849

A conviction for murder was not rendered unsafe by fresh evidence from three witnesses. The jury had been satisfied that the defendant was solely and exclusively responsible for the activities involving identity theft and fraud against the deceased, and that the connection between those activities and the victim’s death established him as the only possible perpetrator of the murder. The evidence of the new witnesses could not have disrupted that conclusion and there was no possibility of a different outcome if the fresh evidence had been heard by any jury.

[2017] EWCA Crim 1414

The court refused an application under the Criminal Justice Act 2003 s.76 to quash an individual’s acquittal for murder in light of new DNA evidence. Although the evidence was strong, the individual was detained in a high security psychiatric hospital and only had weeks left to live due to terminal cancer, such that a retrial would not be in the interests of justice.

[2017] EWCA Crim 1333

A judge’s intervention and direction to the jury during defence counsel’s closing speech did not affect the safety of a defendant’s conviction. She ought to have put to counsel what she intended to say before she said it, and if she intended to criticise him in front of the jury, she ought to have raised that with him first. Overall, however, the summing-up was thorough and fair.

[2017] EWCA Crim 1174

The prosecution’s failure to disclose a local authority report following a fatal collision on a pedestrian crossing did not render unsafe a conviction for causing death by careless driving when unfit through drink, because the report could have had no real impact on the issue for the jury which was whether the appellant was unfit through drink.

[2017] EWCA Crim 1331

Where four men had attacked another man by punching him and stamping on him, convictions against two of them for causing grievous bodily harm with intent under the Offences Against the Person Act 1861 s.18 were quashed and substituted with convictions for causing grievous bodily harm under s.20, as medical evidence not adduced until after trial strongly suggested that a blow from one of the others had caused the victim’s brain injury. The further evidence was demonstrably credible, it had been positively agreed and was highly relevant.

[2017] EWCA Crim 1325

The court quashed a sentence of custody for life imposed in 2002 on a young offender for attempted murder. In the light of fresh psychiatric evidence, which confirmed that the offender had been suffering from a psychopathic disorder at the time of the offence, hospital and restriction orders were appropriate.

[2017] EWCA Crim 937

The Privy Council dismissed a husband’s appeal against his conviction for the murder of his estranged wife. Evidence of the husband’s past violence towards her showed that he bore her ill-will and had the motive and inclination to attack her. The evidence did not go to his general credibility and was therefore admissible evidence in accordance with Makin v Attorney General of New South Wales [1894] A.C. 57.

[2017] UKPC 14

Evidence produced after a conviction indicating that the defendant had mental limitations, which meant he had not been afforded any measures for vulnerable defendants before or during his trial, did not make the trial unfair. Although a joint enterprise direction was not compliant with the later case of R v Jogee (2016) UKSC 8, a Jogee-compliant direction would have made no difference as the defendant’s intention could not have been clearer.

Although there had been a lengthy unexplained delay in bringing criminal proceedings against an individual for an alleged crime of forgery in 2001, the public interest in honouring the UK’s extradition obligations outweighed his right to family life in the UK, and extradition would not be unjust or oppressive despite the passage of time.

The court made recommendations as to the proper approach to be taken by single judges faced with an application for permission to appeal against conviction based on fresh evidence.

[2017] EWCA Crim 466

A conviction for assault by penetration of a child was not rendered unsafe by fresh evidence in the form of an interview during which the complainant admitted that she had lied about the allegations which she had made against her mother’s partner. The fresh evidence was inherently unpersuasive and was inconsistent with the complainant’s oral evidence at the appeal, when she maintained that she had been sexually abused but had been put under enormous pressure to change her account by her mother.

[2017] EWCA Crim 84

In an extradition case involving a requested person who had children, the judge, whether at first instance or on appeal, had to pay particular attention to the interests of the children. In appropriate cases, that could only be properly achieved by the production of fresh evidence about and/or from the children.

[2017] EWHC 331 (Admin)

A district judge’s decision to order an alleged offender’s extradition to Hungary was upheld. The European arrest warrant complied with the Extradition Act 2003 s.2; the appellant had suffered no unfair prejudice in consequence of the extradition proceedings and, as a consequence of the judge’s finding that the appellant was a fugitive, her extradition was proportionate.

[2017] EWHC 229 (Admin)

The public interest in extradition was outweighed by other factors in the case of a 55-year-old man who was in poor health and who was required to return to Poland to serve a custodial term for non-payment of a £600 compensation order. It was possible that the man had been unaware of the requirement to pay compensation, and it would be disproportionate to extradite him given that the sum was small, he could not have paid it at the relevant time, and was only able to pay it now because of his employment in the UK.

[2017] EWHC 168 (Admin)

The court considered the approach to the defence of duress in respect of victims of human trafficking for the purposes of exploitation who had committed crimes prior to enactment of the Modern Slavery Act 2015.

[2017] EWCA Crim 36

The court determined issues concerning the constitution of the court when ruling on disclosure under the Criminal Appeal Act 1968 s.23(1)(a) where the Crown contested disclosure on the basis of public interest immunity and where the documents had never been the subject of any ruling by the trial judge.

[2017] EWCA Crim 37

A conviction for murder was safe, as a purported confession to the murder, made by a person who had been mentally ill at the time and had since retracted it, was unreliable and incapable of belief.

[2017] EWCA Crim 31

An offender was extradited to Poland to serve two outstanding sentences imposed over 12 years earlier despite evidence that his son had behavioural problems and that his partner might suffer mental illness as a result of caring for him alone. The public interest in the UK complying with its international extradition obligations and not being regarded as a haven for those fleeing foreign jurisdictions, the fact that the offender was a fugitive with substantial sentences still to be served, and that his son would continue to be cared for by his mother outweighed the factors militating against extradition.

[2016] EWHC 3755 (Admin)

A sentence of life imprisonment for causing grievous bodily harm with intent was quashed and replaced with a hospital order under the Mental Health Act 1983 s.37 and s.41. Fresh expert evidence indicated that the offender was suffering from a personality disorder and mental illness at the time of the offence and a hospital order was appropriate having regard to the interests of the offender and the protection of the public.

[2016] EWCA Crim 2258

The court upheld an offender’s conviction for the murder of a fellow sex worker. The evidence against her, although circumstantial, was overwhelmingly strong, and the judge had not erred in admitting hearsay statements or evidence of bad character.

[2016] EWCA Crim 1712

The court declined to permit fresh evidence in an appeal against a conviction for wounding with intent. The evidence was hearsay evidence and did not pass the test for admission in the Criminal Appeal Act 1968 s.23(2).

[2016] EWCA Crim 1664

A conviction for murder, where the offender had committed the offence in a state of drug-induced psychosis whilst in an at-risk state for schizophrenia, was not quashed as the jury directions had been clear in relation to intent and diminished responsibility.

[2016] EWCA Crim 1940

Convictions for conspiracy to defraud and to convert or transfer criminal property were overturned where the trial judge had failed to state clearly to the jury what they were required to focus on and had not set out with sufficient clarity the nature of the case against the appellant.

[2016] EWCA Crim 1632

The convictions of two defendants for murder were unsafe and were quashed, as they relied largely on the credibility of a prosecution witness subsequently shown to be unreliable, and involved a failure by the prosecution to disclose evidence supporting defence attacks on that reliability.

[2016] EWCA Crim 1392

A sentence of imprisonment for public protection was quashed and replaced with a hospital order where the offender had been diagnosed with a mental disorder following her conviction.

[2016] EWCA Crim 1186

The court considered the admissibility of fresh evidence under the Criminal Appeal Act 1968 s.23 in appeals against sentences. It was in the interests of justice to admit evidence of the deficiencies in an expert’s report about the dangerousness of a dog that was ordered to be destroyed. If there was to be a trial of a key fact in determining whether there were exceptional circumstances to depart from the mandatory five-year sentence for firearms offences, it should be treated as a Newton hearing.

[2016] EWCA Crim 801

A conviction for aggravated burglary was quashed and replaced with an alternative conviction for theft where fresh evidence had come to light since trial and a co-defendant’s conviction had since been replaced with the alternative offence.

[2016] EWCA Crim 1220

A sentence of life imprisonment imposed on a mentally disordered offender following his conviction for manslaughter on the grounds of diminished responsibility was quashed, and replaced by a hospital order and a restriction order. New psychiatric evidence revealed the course of a deteriorating mental condition which required continuing hospital treatment, and it was imperative that the offender would be subject to appropriate medical supervision on release.

[2016] EWCA Crim 670

Fresh evidence that an individual had been tried and acquitted in Iran of people smuggling would be admitted at his appeal against an order for extradition in respect of people smuggling offences in Germany. The issue of double jeopardy had not been raised at the extradition hearing because of misplaced assurances from counsel for the requesting state, and the evidence related to the same offences.

An appeal against a rape conviction was allowed in light of fresh evidence concerning the complainant’s sexual relationships with third parties. Their accounts of her sexual behaviour were arguably sufficiently similar to that alleged by the appellant as to come within the terms of the Youth Justice and Criminal Evidence Act 1999 s.41(3)(c)(i). The situation was an example of a rare case where it was appropriate to allow forensic examination of a complainant’s sexual history with third parties.

[2016] EWCA Crim 452

The decision in R. (on the application of Adams) v Secretary of State for Justice [2011] UKSC 18, [2012] 1 A.C. 48 had not altered the definition of what constituted a “new or newly discovered fact” in the Criminal Justice Act 1988 s.133. There was a distinction between a new or newly discovered fact and a legal ruling on facts known all along. The Department of Justice had therefore been entitled to refuse an application for compensation where a conviction had been reversed on the basis of a change in the law.

[2016] NICA 19

The appellant, who had been convicted of murder, would not be permitted to adduce fresh testimony from a witness who had given evidence at his trial which was favourable to the prosecution. The fresh evidence, which appeared to undermine the prosecution case, was not capable of belief.

[2016] EWCA Crim 380

A sentence of imprisonment rather than a hospital order had been appropriate for an offender notwithstanding psychiatric reports made after sentencing that indicated that he had paranoid schizophrenia. Even if evidence were to establish that the offender had been mentally unwell at offence and sentence, it would not follow that a hospital order should inevitably have been made.

[2015] EWCA Crim 2479

The court quashed an indeterminate sentence of imprisonment and replaced it with a hospital order and a restriction order pursuant to the Mental Health Act 1983 s.37 and s.41. Fresh medical evidence showed that the offender was suffering from a longstanding schizophrenic illness that had not been identified at the time of sentencing.

[2015] EWCA Crim 2249

The Crown did not oppose an appeal against conviction for wounding with intent and attempting to cause grievous bodily harm where the victim’s identification of the appellant had been crucial and new evidence suggested that the victim had offered to retract his statement in exchange for money, significantly undermining his evidence.

[2015] EWCA Crim 2110

In determining whether a 17-year-old girl had been trafficked, the competent authority had wrongly attached significant weight to a police inspector’s conclusion that there was insufficient evidence of trafficking for a realistic prospect of convicting the alleged perpetrators.

[2015] EWHC 2705 (Admin)

Failures in pre-trial investigation procedure did not affect the safety of the conviction of soldiers found guilty of kidnapping, sexual assault, theft and assault occasioning actual bodily harm. The points raised had been put in such broad terms that it was impossible to gauge whether they contained any argument of merit, and they failed to reveal any persuasive reasons for concluding that the convictions were unsafe.

[2015] EWCA Crim 1566

The fact that an intermediary had provided physical and emotional support to a vulnerable and distressed complainant during a rape trial did not result in a serious risk of unfairness to the defendant. Both counsel and the judge had warned the jury to approach the complainant’s evidence untrammelled by sympathy.

[2015] EWCA Crim 1582

The court quashed an indeterminate sentence and replaced it with a hospital order and a restriction order pursuant to the Mental Health Act 1983 s.37 and s.41. If the option of a hospital order had been available at the time of sentence it would have been considered the more appropriate sentence, had the degree of the offender’s mental disorder been identified at that stage.

[2015] EWCA Crim 1249

A judge had given sufficient reasons for his decision to make a confiscation order in the sum of £746,458, and there was no risk of serious injustice in him having relied on the fact that the offender had only provided very little written evidence of his income. It was contrary to the interests of justice to allow the offender to adduce further evidence in support of his appeal against the confiscation order as he had given no reasonable explanation for failing to adduce it earlier and it was, in any event, doubtful whether it would assist his case.

Convictions for murder were not unsafe where a co-accused had given evidence after his conviction that he had been the one to stab the victim. His inconsistent accounts were troubling, and to the extent that his evidence was capable of belief, it added very little to what had been before the jury at trial: the Crown’s case had been that there had been a murderous joint enterprise and it had not had to prove who had stabbed the victim.

[2015] EWCA Crim 1494

Fresh evidence relied on by the appellant did not undermine the safety of his conviction for murder and wounding with intent.

[2015] EWCA Crim 1186

The admission of evidence from two witnesses who claimed to have been intimidated into changing their evidence against an offender did not make the offender’s convictions for wounding, violent disorder and possessing a firearm unsafe.

Leave to appeal against a conviction for wounding with intent contrary to the Offences Against the Person Act 1861 s.18 was refused where a psychiatrist’s report in relation to the complainant did not go to the issue of the offender’s response when she claimed she had stabbed the complainant, her partner, in self-defence.

[2015] EWCA Crim 1481

Developments in medical knowledge that reduced the diagnostic significance of physical signs of abuse in children did not render a conviction prior to the change in approach unsafe.

In a murder trial, a judge’s decision to admit hearsay evidence of statements made to three witnesses by a co-defendant was not beyond the limits of discretion open to him. The co-defendant was available at trial to be cross-examined, and inconsistencies in the witnesses’ hearsay accounts were for the jury to assess.

[2015] EWCA Crim 2542

It was not oppressive to extradite an individual where the delay in issuing a European arrest warrant against him was due to a combination of the requesting state’s non-culpable administrative incompetence and the individual’s failure to be proactive when he was aware of the proceedings.

[2015] EWHC 1484 (Admin)

Although the prosecution’s failure to disclose to a defendant certain evidence which would have bolstered his case in his rape trial was deplorable, the evidence was not so significant as to have affected the safety of the rape convictions.

[2015] EWCA Crim 905

Fresh evidence which cast doubt on the credibility of a complainant’s evidence had sufficient impact on the safety of a conviction for rape for it to be quashed. However, the evidence did not have the same impact on the complainant’s credibility in respect of allegations of sexual assault, which were upheld.

[2015] EWCA Crim 741