Regina v Pendleton

When fresh evidence is received on an appeal against conviction, the Court of Appeal must decide for itself whether the conviction is unsafe. Its task concerns the safety of the conviction, not the accused’s guilt.

The possible effect of the evidence on a reasonable jury is not a separate rule of law. In a difficult case, however, the court should usually test its provisional view by asking whether the evidence, if given at trial, might reasonably have affected the jury’s decision to convict. If it might, the conviction is unsafe. This approach respects both the appellate court’s statutory responsibility and the jury’s primary role as fact-finder.

The appellant was convicted of murder after his defence proceeded on the basis that admissions placing him at the scene were true, although his instructions were that he had not been present. His renewed application for leave to appeal was refused in 1987.

The Criminal Cases Review Commission referred the conviction to the Court of Appeal under section 9 of the Criminal Appeal Act 1995. The Court of Appeal received fresh psychological evidence questioning the reliability of the admissions, together with documents from 1971, but held the conviction safe and dismissed the appeal.

The House considered whether [1974] AC 878 correctly stated the Court of Appeal’s function when fresh evidence is received, and whether the conviction remained safe when the jury had never considered the appellant’s true case or the new psychological evidence.

1. The appeal was allowed unanimously and the conviction quashed. Lord Bingham delivered the leading speech. Lord Mackay and Lord Steyn agreed with it, and Lord Hope agreed with its analysis and conclusion. Lord Hobhouse agreed in the result, although his principal reason for finding the conviction unsafe differed.

2. Per Lord Bingham, the governing question under section 2(1) of the Criminal Appeal Act 1968 is whether the Court of Appeal thinks the conviction unsafe. The principle in Stafford v Director of Public Prosecutions [1974] AC 878 was correct. The court must exercise its own judgment and must focus on safety rather than determining guilt.

3. The jury remains the primary decision-maker on guilt. The appellate court has only an imperfect understanding of the jury’s reasoning and must avoid intruding upon its proper territory. Although no mandatory jury-impact formula governs every case, a court dealing with a difficult fresh-evidence appeal should usually test its provisional view by asking whether the evidence, if given at trial, might reasonably have affected the jury’s decision to convict. If it might, the conviction is unsafe.

4. The decision whether to receive fresh evidence and the decision whether to allow the appeal are distinct. Section 23 gives the court an overriding discretion to receive evidence where necessary or expedient in the interests of justice. Once evidence is received, its credibility and effect must be assessed when deciding safety.

5. Per Lord Bingham, supported by Lord Mackay, Lord Steyn and Lord Hope, the jury had never considered a central issue: whether the appellant’s admissions placing him at the scene were reliable and true. The fresh psychological evidence could have altered the conduct of the defence, the investigation of his mental condition during interview and the examination of information supplied by the police. Given those uncertainties and the limited strength of the prosecution evidence, the conviction could not safely stand. The Court of Appeal had gone beyond review and had come perilously close to deciding guilt.

6. Lord Hobhouse agreed that the conviction was unsafe because, on the trial judge’s directions, there was no evidence upon which the jury should have relied to find participation in the murder. He did not consider the psychological evidence itself sufficient to undermine the conviction and warned, obiter, against admitting psychological evidence about credibility except in exceptional circumstances.

7. A retrial may be considered only after an appeal has been allowed and the conviction quashed as unsafe. Its availability cannot influence the prior assessment of safety.

1. House of Lords: The appeal was allowed unanimously and the murder conviction was quashed: [2001] UKHL 66.
2. Court of Appeal (Criminal Division): Following a reference by the Criminal Cases Review Commission, the court received fresh psychological and documentary evidence but dismissed the appeal because it had no doubt that the conviction was safe.
3. Criminal Cases Review Commission: In 1999 the Commission referred the conviction to the Court of Appeal under section 9 of the Criminal Appeal Act 1995.
4. Court of Appeal (Criminal Division): In 1987 the appellant’s renewed application for leave to appeal was refused.
5. Leeds Crown Court: In 1986 the appellant and his co-defendant were convicted of murder by a jury.