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