Lord Bingham of Cornhill Lord Mackay of Clashfern Lord Steyn Lord Hope of Craighead Lord Hobhouse of Wood-borough
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION)
ON 13 DECEMBER 2001
 UKHL 66
LORD BINGHAM OF CORNHILL
1. This appeal concerns the role of the Court of Appeal (Criminal Division) when fresh evidence is received on an appeal against conviction. The legal question raised (although not the legal question certified) is whether in Stafford v Director of Public Prosecutions  AC 878 this House correctly defined the test to be applied in deciding whether or not to allow an appeal in such a case.
The outline facts
2. On the night of 2-3 June 1971 Mr Bernard Clark, a middle-aged newspaper seller, was murdered in Bradford. The appellant was interviewed by the police during the inquiry which immediately followed the murder, and made a statement dated 19 June 1971, but was eliminated as a suspect. Nearly 14 years later, as a result of information given to the police by Gordon Sharpe, the appellant was arrested on 23 March 1985. He was interviewed over a number of hours, in the absence of a solicitor, on that and the two ensuing days. After initial denials and assertions of inability to remember what had happened on the night in question, the appellant admitted being in the company of John Thorpe and in the vicinity of the crime when the deceased had been murdered, although he adamantly denied that he had himself inflicted any violence on the deceased. That violence had been inflicted by Thorpe. The appellant and Thorpe were jointly charged with murder of the deceased and were tried at Leeds Crown Court before French J and a jury.
3. At trial the appellant was represented by solicitors and two counsel. His instructions consistently were that he had not been in the vicinity at the time of the murder. When arrested he had been so upset and distressed that he could not stop shaking. He had been put under pressure and had been prepared to say anything to "get the police off my back". When he had come to make a statement he had tried to recite what the police had said, although it was a complete pack of lies. He had come to regret making the statement because it was so inaccurate. The appellant was unable to call evidence (other than his own) to substantiate his assertion that he had not been present at the time when the murder was committed, and that assertion was directly contradicted by the admissions he had repeatedly made in interview. The view was taken that, if he were to give evidence that his admissions of presence at the scene had been false, the jury would be unlikely to believe him. So (with, as the House understands, his consent) he was not called to give evidence and it was hoped that the jury would accept the truth of what he had said to the police in interview: that he had been present when the crime had been committed but had not himself been party to any violence. There was some evidence indirectly supporting this case. But the appellant's co-defendant Thorpe did give evidence, to the effect that it had been the appellant and not he who had murdered the deceased. The trial judge directed the jury that Thorpe's oral evidence was not evidence against the appellant, but on 3 July 1986 the jury convicted both defendants of murder. On 8 June 1987 the appellant's renewed application for leave to appeal was refused by the full Court of Appeal.
4. On 4 February 1999 the Criminal Cases Review Commission referred the appellant's conviction to the Court of Appeal in exercise of its powers under section 9(1)(a) of the Criminal Appeal Act 1995. By section 9(2) the reference was to be treated for all purposes as an appeal against his conviction by the appellant under section 1 of the Criminal Appeal Act 1968. The appellant then made application to the Court of Appeal to receive evidence not adduced at the trial. This evidence consisted, first, of reports by Professor Gudjonsson and Dr Badcock and related to the reliability of the admissions made to the police by the appellant in interview. It consisted, secondly, of documents dating back to 1971, in particular the appellant's statement of 19 June 1971, bearing on his movements on the evening of 2-3 June, but not available at the time of the trial. The reception of this evidence was not opposed. Professor Gudjonsson and Dr Badcock both gave evidence before the court and were examined and cross-examined. The court read and considered the appellant's statement of 19 June 1971. But having considered this evidence the court had no doubt but that the appellant's conviction was safe and so dismissed his appeal. The House is now asked to decide whether the Court of Appeal formulated the right test and, if it did, whether the court erred in applying it.
5. The certified question, not very pertinently expressed, is in these terms:
The history and legislative background
6. Before 1907 issues of law arising in criminal trials could be resolved by writ of error and the reservation of legal questions under the Crown Cases Act 1848 and section 47 of the Supreme Court of Judicature Act 1873, but there was no readily available means of challenging a criminal conviction otherwise than on purely legal grounds. For very many years there was public pressure to establish a court of appeal with more general jurisdiction in criminal cases. Among other grounds for opposing such a court it was argued that to allow an appeal against conviction would undermine the role of the jury: see Radzinowicz and Hood, A History of English Criminal Law, 1986, vol 5 at p 765. This argument recognised what was, and remains, a central feature of trial on indictment in England and Wales, the extraordinary role of the trial jury. To it are entrusted, following a judicial direction on the law, the decision of the all-important issues of fact and the determination whether or not the defendant is proved to be guilty of the crime charged or some lesser alternative crime. In a civil trial by judge alone the judge will hear the evidence, consider the law and deliver a reasoned judgment summarising the legal principles governing the case and the facts to which they must be applied, and giving his decision. If the decision is challenged, an appellate court may ordinarily review both the legal ruling and the factual findings and the application of one to the other. But a criminal jury gives no reasons. Its answer is guilty or not guilty. While it is usually safe to assume, in the absence of very good reason for holding otherwise, that the jury will have heeded the judge's direction on the law, the process of reasoning by which its decision is reached is never disclosed and can only be a matter of inference. The role of an appellate court reviewing a conviction by a jury can never be the same as that of a court reviewing the reasoned decision of a judge.
7. The Criminal Appeal Act 1907 did not intend to undermine the traditional role of the trial jury but did intend to arm the new Court of Criminal Appeal with powers sufficient to rectify miscarriages of justice, of which there had been notorious recent examples. Section 1(7) of the Act provided that the court:
A right of appeal was granted, with leave or with the certificate of the trial judge, on any ground of fact or mixed fact and law (section 3(b)). The core provision of the Act was expressed in section 4(1):
The subsection plainly called for an exercise of judgment by the court: "if they think", "they are of opinion". This core provision was buttressed by a range of other powers, again calling for the court to exercise its judgment: power to affirm or substitute a sentence "if it appears . . ." (section 5(1)); power to substitute conviction of a lesser offence if "it appears . . ." (section 5(2)); power to substitute such conclusion on the effect of a special verdict "as appears . . ." (section 5(3)); power to quash the sentence passed on a defendant if "it appears" that he was insane when the act was done (section 5(4)). A further and important range of powers was conferred on the court by section 9:
This section clearly expresses Parliament's overriding intention that the interests of justice should be served and also its expectation that the court would have to grapple with potentially difficult factual issues; the appointment of assessors would be inexplicable if the court were not itself to appraise the effect of evidence which had been or was to be given.
8. Although the 1907 Act has been repeatedly amended, the scheme of the Act has not been fundamentally altered. The most notable change has been the granting by the Criminal Appeal Act 1964 and the extension by the Criminal Justice Act 1988 of a power, on the allowing of an appeal against conviction, to order a retrial. The core provision contained in section 4 of the 1907 Act is now expressed more shortly and simply in section 2 of the 1968 Act as amended:
The powers contained in section 5 of the 1907 Act have been re-enacted with some change of language but little, in principle, of effect. In section 23 of the 1968 Act, as amended, section 9 of the 1907 Act has been both simplified and elaborated:
9. Under section 23, as under section 9, the court's discretion to exercise the powers there conferred is governed by its judgment of what is necessary or expedient in the interests of justice. Section 23(1) is directed to the bringing of evidence, whether real, documentary or oral, before the court. To that end it may order the production of a document or other object or the attendance or examination of a witness, whether on request or of its own motion, and may receive evidence not adduced at the trial.
10. There was no real issue between the parties to this appeal concerning the construction of section 23(1) and (2). The term "receive" is used to describe the formal act of admitting the evidence referred to before the Court of Appeal. Deciding whether or not to receive the evidence is the first task the court must usually undertake when application is made that it should do so under section 23(1)(c). In considering whether or not it should receive such evidence, usually called "fresh evidence", the court must have regard in particular to the matters listed in (2)(a)(d). These are matters to which, as practice had developed over the years, the courts had come to pay attention: see R v Parks  1 WLR 1484 at 1486-1487. They are matters of obvious significance. When considering an application to receive the fresh evidence of a witness, the court will have before it a written statement of the evidence which the witness will give: see form 6, prescribed by rule 3 of the Criminal Appeal Rules 1968 (SI 1968 No 1262). If the statement does not appear to the court on reading it to be even capable of belief, there will be little purpose in proceeding further. The statement may be obvious nonsense. Similarly, if it does not appear to the court when it reads the statement that it might, even if fully accepted, afford any ground for allowing the appeal (that is, for thinking that the conviction may be unsafe) there will again be little point in proceeding further. It is obviously relevant to consider whether the fresh evidence would be admissible at the trial, although the Court of Appeal has held that section 23(1)(a) is not limited to admissible evidence (R v D and J  1 CrAppR 455). The Court of Appeal will always pay close attention to the explanation advanced for failing to adduce the evidence at the trial, since it is the clear duty of a criminal defendant to advance any defence and call any evidence on which he wishes to rely at the trial. It is not permissible to keep any available defence or any available evidence in reserve for deployment in the Court of Appeal. Thus the practice of the court is to require a full explanation of the reasons for not adducing the evidence at the trial (R v Trevor  CrimLR 652). It is however clear that while the court must, when considering whether to receive fresh evidence, have regard in particular to the matters listed in section 23(2)(a)-(d), and while in practice it is most unlikely to receive the evidence if the requirements of (a), (b) and (c) are not met, the court has an overriding discretion to receive fresh evidence if it thinks it necessary or expedient in the interests of justice to do so.
11. I have described the decision whether or not to receive fresh evidence as the court's first task when application is made under section 23(1)(c). But in practice, and often with the consent of the Crown, the court will hear de bene esse the evidence of the witness whose evidence it is sought to adduce, without preliminary argument whether the requirements of section 23(1) and (2) have been met or not, as was done (for example) in R v Parks: see  1 WLR 1484 at 1488. There is no objection to this practice. But if the court receives the evidence, or hears it de bene esse, it must then undertake its second task, of deciding whether or not to allow the appeal. What is the legal principle which should govern the court's approach to this task? That is the narrow but important issue which divides the parties to this appeal.
The parties' submissions
12. Mr Mansfield QC, for the appellant, took for his starting point that recognised by the Privy Council in Franco v The Queen  UKPC 38 in paragraph 18 of its advice:
The Court of Appeal is a court of review, not a court of trial. It may not usurp the role of the jury as the body charged by law to resolve issues of fact and determine guilt. Where the Court of Appeal receives fresh evidence under section 23 of the 1968 Act it must assess the quality of the evidence and allow the appeal if it judges that the fresh evidence combined with the original evidence might have caused the jury, or a reasonable jury properly directed, to acquit. The test is what impact the evidence, if called at the trial, might have had on the jury. It is not permissible for appellate judges, who have not heard any of the rest of the evidence, to make their own decision on the significance or credibility of the fresh evidence. Reliance was placed on Lord Devlin's famous address "Sapping and Undermining", The Judge (1979), pp 148-176.
13. The correct approach, Mr Mansfield submitted, was that indicated by Lord Parker CJ in R v Parks  1 WLR 1484 at 1488 when, the court having received fresh evidence, he said:
A similar test was applied in, for example, R v Isaac  Crim LR 721; R v Flower  1 QB 146 at 150; R v Dwyer (unreported, 16 November 1970, Court of Appeal Criminal Division); R v Barker (unreported, 12 January 1971, Court of Appeal Criminal Division). Mr Mansfield submitted that in rejecting Lord Parker's jury-impact test as the necessary and appropriate test, the House in Stafford had erred in principle. That decision had been applied in a number of cases, notably R v Callaghan (1989) 88 CrAppR 40 at 46-47. But in a number of cases in which appeals have been allowed, it was said, the older approach had been followed. In R v McIlkenny (1991) 93 CrAppR 287 at 311 the limitations of the role of the Court of Appeal were explicitly recognised. Mr Mansfield relied in particular on the test formulated in R v McNamee (unreported, 17 December 1998, Court of Appeal Criminal Division), at p 5:
In reliance on Stirland v Director of Public Prosecutions  AC 315 at 321, Mr Mansfield contended that the Court of Appeal should allow an appeal unless it was inevitable that the jury would have convicted even if the fresh evidence had been adduced at trial.
14. Mr Waters QC, for the Crown, based his response on Stafford v Director of Public Prosecutions  AC 878, a modern and unanimous decision of the House which he submitted was correct in principle. Section 2 of the 1968 Act imposes on the Court of Appeal, in cases which involve fresh evidence as in cases which do not, a duty of judgment. If the court think the conviction is unsafe they must allow, otherwise they must dismiss, the appeal. It is their judgment which matters: "if they think . . .". They may find it useful when forming that judgment to consider what impact the evidence, if called before the jury, might have had, but that is not a necessary step nor is it the only or final question the court must ask. R v Clegg  NIJB 68 did not, as contended in the Court of Appeal, impose a different test.
15. The House was reminded of important passages in the speeches delivered in Stafford. In the course of his leading speech Viscount Dilhorne said, at pp 893-894:
After considering the fresh evidence in that case at length he observed (at p 906):
Lord Pearson agreed with Viscount Dilhorne (p 890). Lord Diplock agreed with Viscount Dilhorne and also with Lord Cross of Chelsea and Lord Kilbrandon, each of whom delivered substantial speeches agreeing with Viscount Dilhorne's conclusion and with his essential reasoning (pp 906-911, 911-914).
16. In hearing any appeal against conviction the Court of Appeal will ordinarily have a considerable body of material before it: grounds of appeal; transcripts of the judge's summing up to the jury and any relevant passages in the evidence and of any material rulings given before or in the course of the trial; plans, photographs and so on. And although the court does not have the jury's reasons, it does have the jury's verdict. From this, some inferences may always be drawn. If the issue is consent, the jury must, to convict, have been sure that the victim did not consent. If the issue is pure identification, the jury must, to convict, have been sure that the evidence identifying the defendant was accurate and reliable. If a proper judicial direction has been given, it will ordinarily be safe for the Court of Appeal to infer that the factual ingredients essential to prove guilt have been established against the defendant to the satisfaction of the jury. But the Court of Appeal can rarely know, save perhaps from questions asked by the jury after retirement, at what points the jury have felt difficulty. The jury's process of reasoning will not be revealed and, if a number of witnesses give evidence bearing on a single question, the Court of Appeal will never know which of those witnesses the jury accepted and which, if any, they doubted or rejected.
17. My Lords, Mr Mansfield is right to emphasise the central role of the jury in a trial on indictment. This is an important and greatly-prized feature of our constitution. Trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second. The Court of Appeal is entrusted with a power of review to guard against the possibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury's deliberations and must not intrude into territory which properly belongs to the jury.
18. Where the Court of Appeal has heard oral evidence under section 23(1)(c) (whether pursuant to its own decision, or by agreement, or de bene esse), the evidence will almost always have appeared, on paper, to be capable of belief and to afford a possible ground for allowing the appeal. By the time the court comes to decide whether the appeal should be allowed or dismissed, it will have heard the evidence, including cross-examination, and any submissions made on its effect. It may then conclude, without doubt, that the evidence cannot be accepted or cannot afford a ground for allowing the appeal. Such was the case, for example, in R v Jones (Steven)  1 CrAppR 86, where the court, having decided to receive and having heard opinion evidence from an expert, found conclusive objections to the acceptability of that opinion (see p 94). The court may, on the other hand, judge the fresh evidence to be clearly conclusive in favour of allowing the appeal. Such might be the case, for example, if a witness who could not be in any way impeached testified, on oath and after all appropriate warnings, that he alone had committed the crime for which the appellant had been convicted. The more difficult cases are of course those which fall between these extreme ends of the spectrum.
19. It is undesirable that exercise of the important judgment entrusted to the Court of Appeal by section 2(1) of the 1968 Act should be constrained by words not to be found in the statute and that adherence to a particular thought process should be required by judicial decision. Thus the House in Stafford were right to reject the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their minds and not the effect that that evidence would have had on the mind of the jury ( AC 878 at 880). It would, as the House pointed out, be anomalous for the court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. I am not persuaded that the House laid down any incorrect principle in Stafford, so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty. But the test advocated by counsel in Stafford and by Mr Mansfield in this appeal does have a dual virtue to which the speeches I have quoted perhaps gave somewhat inadequate recognition. First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.
20. In some of the authorities, the decision to allow an appeal is closely associated with the decision to order a retrial. This is understandable but wrong. If the court thinks a conviction unsafe, its clear statutory duty is to allow the appeal, whether or not there can be a retrial. A conviction cannot be thought unsafe if a retrial can be ordered but safe if it cannot. It is only when an appeal has been or is to be allowed because a conviction is thought to be unsafe that any question of a retrial can properly arise.
21. In the present case, as adherence to precedent required, the Court of Appeal formulated a test based on Stafford and other cases in which Stafford had been cited and applied. No criticism of its formulation is made if Stafford itself was correct. Since the principle laid down in Stafford was, in the opinion of the House, correct, the attack made on the Court of Appeal's self-direction in the present case must fail. The foregoing paragraphs, it is hoped, make clear the approach which the Court of Appeal should follow. It would not be helpful to attempt to answer the certified question.
The appellant's conviction
22. Professor Gudjonsson, a distinguished forensic psychologist, examined the appellant in prison in October 1998 and studied a large quantity of documentation supplied by the Criminal Cases Review Commission. He wrote a report dated 18 January 1999. For purposes of this report he conducted tests to establish the appellant's intelligence, suggestibility, acquiescence, compliance, personality and socialisation. The appellant's intelligence was found to be at the upper end of the low average range. He was found to be highly susceptible to giving in to leading questions and interrogative pressure. He had a very marked tendency to answer questions in the affirmative irrespective of the content of the question and to contradict himself. His profile was that of an unstable, neurotic extrovert. His personality was similar to that of persons found to be "personality-disordered". Professor Gudjonsson reviewed in detail the answers given by the appellant in interview. His conclusion was expressed in these terms:
When called to give oral evidence, the professor adhered to his opinion. He did not assert that the appellant's admissions to the police had been false, acknowledging that he could not know whether they were false or not. But he considered that the circumstances of the questioning, for a man having the psychological character of the appellant, threw doubt on the reliability of what he had admitted.
23. Dr Badcock, a consultant forensic psychiatrist, had previously examined the appellant in April 1986 and reviewed his findings in the light of Professor Gudjonsson's report. His conclusion was expressed in these terms:
In his oral evidence he also adhered to the views he had expressed in his report.
24. The Court of Appeal in its judgment summarised all this evidence very fairly and fully. It also reviewed at some length the contemporaneously recorded, but not tape-recorded, summaries of the appellant's interviews with the police. It did not accept that the appellant had been put under unfair pressure and observed:
The Court of Appeal then considered the evidence of two witnesses, Sharpe and Gallimore. The first implicated the appellant indirectly in the commission of the crime, the second implicated him as being present but not as the author of the violence. Having considered the fresh evidence to support an alibi the Court of Appeal expressed its final conclusion as follows:
Mr Mansfield criticised the quoted passages of the Court of Appeal judgment as showing that the court was doing just what it should not have done, taking upon itself the task of assessing the fresh psychological evidence and so trespassing on the exclusive domain of the jury. The Court of Appeal was in effect undertaking the retrial of a case which had never been before the jury. Mr Waters countered that the Court of Appeal had undertaken the task which the statute imposes upon it, had done so clearly and conscientiously, and had reached a conclusion which should not be disturbed.
25. In reviewing this case the House is at once confronted by the problem that the appellant's true defence - that he had not been present when the crime was committed and had lied to the police when telling them that he had been - was never put to the jury at all. Mr Mansfield has at no stage made any criticism of trial counsel in this regard, and the Court of Appeal considered that no criticism could sensibly be made. It would not be right for the House on a necessarily incomplete knowledge of the facts and without reference to trial counsel to cast any aspersion on the handling of the defence. We do not doubt that the appellant's advisors were seeking to achieve the best possible outcome for him, although it should be clearly understood that counsel's duty is to give effect to his instructions and not to present an affirmative case inconsistent with them. But the inescapable fact is that the trial jury never had the opportunity to consider an issue very close to the heart of the case: were the appellant's admissions reliable and true? The jury were invited to acquit on the basis that the appellant, in admitting presence and denying participation in the violence, had spoken the truth. His instructions were that he had lied, since he had not been present at all.
26. This is not a unique situation. It occurred in R v Evans (unreported, 3 December 1997, Court of Appeal Criminal Division), when a trial had been conducted on the basis that the appellant had either witnessed a murder or committed it and later evidence (also throwing doubt on the reliability of his confessions) raised a doubt whether he had been present at all, a question never investigated at the trial. It also arose in R v Bowler (unreported, 24 July 1997, Court of Appeal Criminal Division), when fresh evidence after the trial raised a possible hypothesis that a death had been the result of accident, a hypothesis never raised or investigated at the trial. In allowing the appeal in that case the court said:
Given the primacy of the jury, it must always be a ground for concern if the jury have never considered a potentially important aspect of the case.
27. No one can now be sure what would have happened had the evidence of Professor Gudjonsson been available at the time of the trial. But the defence might in at least three respects have been conducted differently. First, the appellant might have been called to give evidence on his own behalf. The prospect of the jury believing that the appellant's disavowal of his admissions might be true would plainly have been enhanced had he been able to rely, although necessarily to a limited extent, on the evidence of a leading professional expert in this field. Giving evidence on his own behalf might of course have proved, in trial counsel's words, "the certain road to disaster". But the appellant would at least have had the satisfaction of giving his own account and his true case would have been before the jury. The outcome must be a matter of speculation. Secondly, there would have been much more searching investigation of the appellant's mental state during the interviews, which can only have been marginally relevant so long as the appellant's admissions were being accepted as true. This was not a case of oppression or abusive conduct by the police. But the appellant's behaviour was, it might be thought, somewhat extreme, even in a predicament which would upset the most phlegmatic. About halfway through the interview process, after the appellant had said "Charge me, charge me, I did it, I don't care, you don't believe me", the police recorded:
Thirdly, it seems likely that there would have been much more detailed enquiry into what passed between the police and the appellant which was not recorded. If it were shown that the appellant volunteered information which was true and which he could not have known had he not been present, this would plainly have given strong support to the Crown case. If, on the other hand, as he claimed, the appellant was merely repeating much that the police had told him, that would have been consistent with his disavowal. It would, for example, have been very relevant to explore what passed between the police and the appellant when he was taken to view the scene of the murder at 14.00 on 24 March 1985, following the episode recorded above. As it was, this aspect cannot have called for rigorous investigation.
28. In the light of these uncertainties and this fresh psychological evidence it is impossible to be sure that this conviction is safe, and that is so whether the members of the House ask whether they themselves have reason to doubt the safety of the conviction or whether they ask whether the jury might have reached a different conclusion. The case against the appellant was not a strong one. Save in emotional outbursts which were rightly discounted, the appellant never admitted committing any violence. The jury were instructed not to rely on the oral evidence of Thorpe against him. Sharpe and Gallimore were criminals about whose evidence the jury could well have had reservations. And the jury never had the opportunity to consider what, on the appellant's instructions, had actually happened. Had the jury been trying a different case on substantially different evidence the outcome must be in doubt. In holding otherwise the Court of Appeal strayed beyond its true function of review and made findings which were not open to it in all the circumstances. Indeed, it came perilously close to considering whether the appellant, in its judgment, was guilty.
29. It is unnecessary to consider the appellant's missing statement of 19 June 1971 in any detail. It reads as the somewhat artless statement of a disorganised and shiftless 25 year-old. It is consistent with his instructions that he had not been present when the crime was committed. But even if available to counsel at the trial it could scarcely have supported a convincing alibi. It is in itself of negligible significance.
30. For reasons already given the appellant's appeal should be allowed and his conviction quashed.
LORD MACKAY OF CLASHFERN
31. I am in agreement with the opinion of Lord Bingham of Cornhill. For the reasons he has given I would also allow the appeal.
32. I am in agreement with the opinion of Lord Bingham of Cornhill. For the reasons he has given I would also allow the appeal.
LORD HOPE OF CRAIGHEAD
33. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. I agree entirely with his analysis of the legislative background to this case and with his description of the approach which the Court of Appeal should follow where, in an appeal against conviction, it receives fresh evidence. I also agree with him, for the reasons which he has given, that it is impossible to be sure that this conviction is safe. I would allow the appeal and quash the conviction.
LORD HOBHOUSE OF WOODBOROUGH
34. This appeal has been certified as raising a point of general public importance because the appellant has wished to argue that what your Lordships' House said in Stafford v DPP should no longer be regarded as the law. I agree with your Lordships that this argument should be rejected. This means that the terms in which the Court of Appeal directed themselves in law were correct. However a further point has then arisen whether your Lordships agree with the assessment which the Court of Appeal made of the peculiar facts of this case and which led them to dismiss the appellant's appeal. I venture to doubt whether it was right for your Lordships to enter into that territory when all that is being suggested is that a different assessment to that made by the Court of Appeal is to be preferred. The structure of our criminal justice appellate system is that the assessment of the safety of the conviction, as opposed to the principles to be applied in doing so, is a matter for the Court of Appeal Criminal Division, a court specially constituted to carry out that task.
The Point of Principle:
35. On this aspect I wholly agree with what has been said by my noble and learned friend Lord Bingham of Cornhill. The criminal jurisdiction of the Court of Appeal is statutory, that is to say that its jurisdiction derives exclusively from statute and is defined by statute. Two fundamental considerations of policy underlie this: that no one should be convicted of an indictable crime save on his own plea or on the verdict of a jury; that the verdict of the jury should be final. This latter principle, originally absolute, was qualified by the creation of the Court of Criminal Appeal (and by its immediate predecessor) but from the outset the jurisdiction of the Court of Criminal Appeal was strictly limited. The Criminal Appeal Act 1968, the Act in force when Stafford was decided, still defined the jurisdiction in relatively elaborate terms. The amendment of that Act by the Criminal Appeal Act 1995 has simplified the definition and focussed it on a single criterion. S2(1) now reads:
Therefore the sole criterion which the Court of Appeal is entitled to apply is that of what it thinks is the safety of the conviction. It has to make the assessment. That is made clear by the use of the words "if they think". The change in the language of the statute has reinforced the reasoning in Stafford and shows that appeals are not to be allowed unless the Court of Appeal has itself made the requisite assessment and has itself concluded that the conviction is unsafe. Lord Bingham LCJ put the point clearly in R v Steven Jones  1 Cr App R 86 at 94 (cited also in the judgment of the Court of Appeal in the present case):
36. The argument of the appellant was that this infringed the principle that a defendant should only be convicted on the verdict of the jury and any assessment by the Court of Appeal, after some possibility of a different verdict or some risk of unsafety had been shown, was contrary to this principle. Leaving on one side that this argument seeks to contradict the statute, the argument is radically unsound. The defendant has been convicted by a jury; no infringement of principle is involved. Indeed, it can be commented that it is the appellant's argument which is unprincipled since it is he who is seeking to escape from the verdict of a jury merely upon the possibility (which will exist in almost every case) that the jury might have returned a different verdict. Unless and until the Court of Appeal has been persuaded that the verdict of the jury is unsafe, the verdict must stand. Nothing less will suffice to displace it. A mere risk that it is unsafe does not suffice: the appellant has to discharge a burden of persuasion and persuade the Court of Appeal that the conviction is unsafe. It is ironic that the appellant has, under the banner 'the supremacy of the jury', sought to undermine that supremacy and the finality of the jury's verdict.
37. A further point arises from the appellant's argument. In a 'fresh evidence' case, there has been no irregularity or error of law at the criminal trial. The verdict of guilty has been returned by a properly directed jury after a properly conducted and fair trial. The mere production on a later appeal of additional evidence which would have been admitted at the trial had it then been adduced demonstrates no unsafety of the verdict. It merely raises for the consideration of the Court of Appeal the question whether the Court of Appeal thinks that, taking into account the new evidence, the verdict has become unsafe. Whether or not to admit in the Court of Appeal new evidence not adduced at the trial has throughout been the subject of separate provision in the statutes, now the amended and simplified s.23 of the Criminal Appeal Act 1968. Additional policy considerations of not destroying the ordinary finality and integrity of the criminal trial apply. These have been commented upon by the Court of Appeal on many occasions and call for no further repetition by me in this speech. But subject to those considerations, the Court of Appeal will have to look at the new evidence tendered and, if it thinks fit, listen to the witnesses giving it orally and being cross-examined, as happened in the Court of Appeal in the present case, in order to decide whether or not it thinks that the conviction is unsafe. The admission of the evidence in the Court of Appeal in no way prejudges or forecloses this question: s.23(2) refers to evidence which appears to the court to be "capable" of belief and which "may" afford a ground for allowing an appeal.
38. It does not help and is in principle wrong to seek to explain or put a gloss on the words of s.2 of the Act. 'Unsafe' is an ordinary word of the English language. It connotes a risk of error or mistake or irregularity which exceeds a certain margin so as to justify the description 'unsafe'. It involves a risk assessment. Where the conviction results from a plea of guilty entered by the defendant, the circumstances in which the plea was entered are relevant. Where the conviction is after a trial, it is the trial and the verdict which are relevant. But, in my judgment it is not right to attempt to look into the minds of the members of the jury. Their deliberations are secret and their precise and detailed reasoning is not known. For an appellate court to speculate, whether hypothetically or actually, is not appropriate. It is for the Court of Appeal to answer the direct and simply stated question: Do we think that the conviction was unsafe?
39. I must also, again in agreement with my noble and learned friend Lord Bingham, emphasise a further point. No question of ordering a re-trial under s.7 of the Act arises unless the Court of Appeal has allowed the appeal and quashed the conviction appealed against as unsafe. There is no discretionary power to order retrials when the conviction has not already been held to be unsafe. It is not permissible to reason that it would be sensible to have a retrial therefore we will allow the appeal. The two questions must be kept distinct.
The Conviction in the Present Case:
40. I will take this aspect as shortly as possible. Your Lordships are of the opinion that this conviction is unsafe. I agree. My difficulty is that I consider that it was unsafe in any event because the verdict was inconsistent with the directions of the trial judge as to how they should approach the evidence adduced at the trial. I remain unpersuaded that the new evidence now relied upon by the appellant would itself have disclosed any unsafety of the conviction. I consider that on that question the reasoning of the Court of Appeal was sound, that their assessment was painstaking and realistic and that it would not be proper to interfere with their conclusion on that point.
41. This was an unusual case. There was a long interval of time between the time of the alleged offence and the time the appellant was arrested, interviewed, charged and brought to trial. The appellant was tried on an indictment which charged both him and one Thorpe with the murder of Bernard Clark. In the proof of evidence which was taken by his solicitors, the appellant did not complain about the conduct of the police and did not dispute their evidence as to what he had said to them in interview and elsewhere, but did state that he had not been at the scene of the crime and that what he had said in interview about having been there was made up and untrue. There was a witness (Gallimore) whose evidence was expected to have the effect of putting him at the scene but exonerating him of any actual involvement. Another witness (Sharpe) was expected to say that the appellant was both present and involved. Thorpe was to be expected to run the defence that the murderer was the appellant (just as the appellant had said in interview that the murderer was Thorpe). This presented the defence counsel with a problem of what advice to give the appellant. The upshot was that he was advised to put the prosecution to proof of their case against him. He would not go into the witness box. He would not raise an issue as to the credibility of what he had said in interview but rather build upon it to persuade the jury that the prosecution evidence did not prove that he was a party to the murder. Both Sharpe and Thorpe were witnesses who could be convincingly discredited. The appellant's leading trial counsel has stated that the appellant accepted the advice and counsel was sure that he understood it.
42. No criticism has been made of counsel's advice either in the Court of Appeal or in your Lordships' House. In my view this was clearly right. To advise the appellant to go into the witness box and deny the truth of what he had said in interview would probably have been disastrous. He was obviously an emotional and immature person of very limited intelligence, as the record of the interviews amply demonstrated, but he would have been a very vulnerable witness indeed who could have been effectively cross-examined by both his co-defendant and the Crown and it would inevitably have been put to him forcibly that he was a murderer.
43. Counsels' conduct of the trial on behalf of the appellant was remarkably successful. When the Judge summed up to the jury he told them, according to the solicitor's note of the summing up, not to use the evidence of either Sharpe or Thorpe against him. The result was that, whilst there was uncontradicted evidence that the appellant was present, there was no evidence upon which the judge considered that the jury should rely that he had joined in the attack on the victim or had been a party to the murder. The jury nevertheless returned verdicts of guilty against both defendants. Taking the summing up and the verdicts together, I consider that the conviction of the appellant was unsafe and should be quashed.
44. The thrust of the argument advanced before your Lordships on behalf of the appellant was that if the defence at the trial had had the evidence of Professor Gudjonsson and Dr Badcock, the defence would have been differently conducted, the defence would have made a positive case that the appellant was not present and the appellant would have gone into the witness box to say so and submit himself to cross-examination. The Psychologists would have gone into the witness box to explain the susceptibility of a weak-minded man to suggestion and express the view that this was what they believe had occurred. Like the Court of Appeal whose judgment I would be happy to adopt on this aspect, I consider that this course would have been no less disastrous than that already advised against. The weak-mindedness of the appellant was already apparent from the interview records as was the extreme care which the police took not to do anything which could be criticised as oppressing the appellant or putting words into his mouth. A highly debatable issue would have been opened up which would have done all the damage which counsel were successfully avoiding by avoiding a positive defence and putting the Crown to the proof of their case. In brief the introduction of a psychological issue would have weakened the appellant's case not strengthened it; it would have increased the risk of conviction not reduced it. Its absence does not support a conclusion that the conviction was unsafe.
45. Finally, I would sound two notes of warning. The first is that the courts should be cautious about admitting evidence from psychologists, however eminent, as to the credibility of witnesses. The assessment of the truth of verbal evidence is save in a very small number of exceptional circumstances a matter for the jury. The suggestibility of some persons is well within the experience of the ordinary members of juries. To admit evidence from psychologists on such questions is not only contrary to the established rules of evidence, but is also contrary to the principle of trial by jury and risks substituting trial by expert. The present case illustrates this danger with expert witnesses of unimpeachable reputation and probity being led into expressing their own belief as to whether they would rely on certain evidence, they having formed and taken into account disputable views about other purely factual aspects of the case as well - eg, the way in which the interviews were conducted.
46. The second note of warning concerns the use of subsequent psychological investigations of a defendant to attack his conviction. Sometimes this may be justified but it is always a risky exercise. Firstly, there may be a lapse of time and change of circumstance not only since the conviction but, more relevantly, since the commission of the relevant crime, which call into question the value of the later psychological investigation. Secondly, the psychologist has to rely to a significant extent upon his examination of the relevant person and his assessment of what that person tells him. What the psychologist is told is liable to be self serving. It cannot be treated as reliable in so far as it consists of unproved contentious facts. An exculpatory account requires proof not merely transmission through the report of a psychologist. Of its nature, psychological evidence is liable to come into a different category to other types of expert evidence, such as DNA analysis, and to require a more critical approach to its use as new evidence for establishing the unsafety of an otherwise safe conviction.
47. This said I agree to the response to the certified question and that the appeal should be allowed for the reasons which I have given.