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Session 2001- 02
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Judgments - Regina v. Pendleton (On Appeal From The Court of Appeal (Criminal Division)


Lord Bingham of Cornhill Lord Mackay of Clashfern Lord Steyn Lord Hope of Craighead Lord Hobhouse of Wood-borough









[2001] UKHL 66


My Lords,

    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 [1974] 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:

    "Where, on an appeal against conviction, the Court of Appeal receives fresh evidence under section 23 of the Criminal Appeal Act 1968, in determining the safety of the conviction, is the court confined to answering the question, might a reasonable jury have acquitted the appellant had they heard the fresh evidence?"

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:

    "shall, for the purposes of and subject to the provisions of this Act, have full power to determine, in accordance with this Act, any questions necessary to be determined for the purpose of doing justice in the case before 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 Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

    Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred."

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:

    "For the purposes of this Act, the Court of Criminal Appeal may, if they think it necessary or expedient in the interest of justice, -

      (a) order the production of any document, exhibit, or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case; and

      (b) if they think fit order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in manner provided by rules of court before any judge of the court or before any officer of the court or justice of the peace or other person appointed by the court for the purpose, and allow the admission of any depositions so taken as evidence before the court; and

      (c) if they think fit receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness, and, if the appellant makes an application for the purpose, of the husband or wife of the appellant, in cases where the evidence of the husband or wife could not have been given at the trial except on such application; and

      (d) where any question arising on the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the court conveniently be conducted before the court, order the reference of the question in manner provided by rules of court for inquiry and report to a special commissioner appointed by the court, and act upon the report of any such commissioner so far as they think fit to adopt it; and

      (e) appoint any person with special expert knowledge to act as assessor to the court in any case where it appears to the court that such special knowledge is required for the proper determination of the case;

    and exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the court of appeal on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the court: Provided that in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial."

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:

    "(1)  Subject to the provisions of this Act, the Court of Appeal -

      (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

      (b) shall dismiss such an appeal in any other case."

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:

    "(1)  For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice -

      (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case;

      (b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the court, whether or not he was called in those proceedings; and

      (c) receive any evidence which was not adduced in the proceedings from which the appeal lies.

    "(2)  The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -

      (a) whether the evidence appears to the Court to be capable of belief;

      (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

      (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

      (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

    "(3)  Subsection (1)(c) above applies to any evidence of a witness (including the appellant) who is competent but not compellable.

    "(4)  For the purposes of an appeal under this Part of this Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice, order the examination of any witness whose attendance might be required under subsection (1)(b) above to be conducted, in manner provided by rules of court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court."

    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 [1961] 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 [1996] 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 [1998] 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 [1961] 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 [2001] UKPC 38 in paragraph 18 of its advice:

    "The starting point must always be that in a trial on indictment the jury is the body to which the all-important decisions on the guilt of the accused are entrusted. This does not mean that every deviation from procedural regularity and legal correctness vitiates a jury's verdict of guilty. That would impose an unattainable standard of perfection and frustrate to an unacceptable extent the effective administration of criminal justice. But it does mean that an appellate court, which is not the trial tribunal, should be very cautious in drawing inferences or making findings about how the jury would have resolved issues which, for whatever reason, were never before it."

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 [1961] 1 WLR 1484 at 1488 when, the court having received fresh evidence, he said:

    "If the evidence to which I have referred had been given at the trial it is impossible to say that the jury might not have had a reasonable doubt in the matter."

A similar test was applied in, for example, R v Isaac [1964] Crim LR 721; R v Flower [1966] 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:

    "The court's task in this appeal is to resolve the question as to whether the conviction of this appellant is safe in the light of the fresh evidence. We test that question by asking whether the jury, if they had knowledge of the fresh evidence, would necessarily have come to the conclusion that they did. For reasons which we will set out we have concluded that it is not possible for us to say that the jury would necessarily have arrived at the same conclusion if they had knowledge of the fresh evidence . . . We have, nonetheless, concluded that the conviction is unsafe because we cannot be sure that the jury would have reached the conclusion that they were sure of guilt if they had the fresh evidence which we have heard. Furthermore the case as presented to us by both sides is very different to that presented at trial."

In reliance on Stirland v Director of Public Prosecutions [1944] 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 [1974] 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 [1998] 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:

    "I do not suggest that in determining whether a verdict is unsafe or unsatisfactory, it is a wrong approach for the court to pose the question - 'Might this new evidence have led to the jury returning a verdict of not guilty?' If the court thinks that it would or might, the court will no doubt conclude that the verdict was unsafe or unsatisfactory. Mr Hawser in the course of his argument drew attention to the many cases in which, since 1908, and since the amendment made in 1966, the court has quashed a conviction saying that in the light of the fresh evidence the jury might have come to a different conclusion, but I do not think that it is established as a rule of law that, in every fresh evidence case, the court must decide what they think the jury might or would have done if they had heard that evidence. That it is a convenient approach and a reasonable one to make, I do not deny. When a court has said that, it means and can only mean that they think that the fresh evidence might have led to a different result to the case, and that in consequence the verdict was unsafe or unsatisfactory.

    Mr Hawser strongly urged that the court should recognise that reasonable men can come to different conclusions on the contested issues of fact and that, although the court came to the conclusion that the fresh evidence raised no reasonable doubt as to the guilt of the accused, they should nonetheless quash the conviction if they thought that a jury might reasonably take a different view.

    I do not agree. It would, in my opinion, be wrong for the court to say: 'In our view this evidence does not give rise to any reasonable doubt about the guilt of the accused. We do not ourselves consider that an unsafe or unsatisfactory verdict was returned but as the jury who heard the case might conceivably have taken a different view from ours, we quash the conviction' for Parliament has, in terms, said that the court should only quash a conviction if, there being no error of law or material irregularity at the trial, 'they think' the verdict was unsafe or unsatisfactory. They have to decide and Parliament has not required them or given them power to quash a verdict if they think that a jury might conceivably reach a different conclusion from that to which they have come. If the court has no reasonable doubt about the verdict, it follows that the court does not think that the jury could have one; and, conversely, if the court says that a jury might in the light of the new evidence have a reasonable doubt, that means that the court has a reasonable doubt.

    It is well settled that the Court of Appeal should only apply the proviso to section 2(1) if it is of the opinion that, if the jury had been properly directed, it would inevitably have come to the same conclusion. While, of course, the proviso cannot be applied where the court thinks the verdict unsafe or unsatisfactory, Mr Hawser argued that in a 'fresh evidence' case the court should follow the same principle as that applicable to the proviso and only hold that a conviction was safe and satisfactory if they thought that a jury which heard the fresh evidence would inevitably have come to the conclusion that the accused was guilty. I cannot accept this argument. When the application of the proviso is under consideration, something has gone wrong in the conduct of the trial. In a 'fresh evidence' case nothing has gone wrong in the conduct of the trial and I see no warrant for importing the principles applicable to the proviso into the determination of whether a verdict is or is not safe and satisfactory. The words of section 2(1)(a) are clear and unambiguous and they are the words which have to be applied."

After considering the fresh evidence in that case at length he observed (at p 906):

    "While, as I have said, the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question."

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).