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