R v Pendleton

The Court considered the role and test to be applied by the Court of Appeal when it receives fresh evidence under section 23 of the Criminal Appeal Act 1968. The House affirmed the approach in Stafford v Director of Public Prosecutions [1974] AC 878 that the Court of Appeal must form its own judgment whether, taking into account the fresh evidence, the conviction is "unsafe" under section 2(1) of the 1968 Act. The court is not confined to asking solely what a jury might have done, but in difficult cases it is usually wise to test its provisional view by asking whether the fresh evidence might reasonably have affected the jury's decision.

Applying those principles, the House held that fresh expert psychological evidence cast doubt on the reliability of the appellant's admissions and that the trial jury had never been asked to consider the appellant's true defence (that he was not present). On those facts the conviction could not be regarded as safe and was quashed.

Background and facts:

• On the night of 2–3 June 1971 Bernard Clark was murdered. The appellant was interviewed in 1971 and eliminated as a suspect. In March 1985, following later information, he was arrested and after extended interviews admitted being present at the scene though he denied inflicting violence. The appellant and a co-defendant were tried at Leeds Crown Court in 1986 and both were convicted of murder.
• The Criminal Cases Review Commission referred the conviction to the Court of Appeal on 4 February 1999 under section 9(1)(a) of the Criminal Appeal Act 1995, treated as an appeal under the Criminal Appeal Act 1968. The appellant sought to adduce fresh evidence under section 23 of the 1968 Act consisting principally of expert reports and oral evidence from Professor Gudjonsson and Dr Badcock on the reliability of the appellant's admissions, together with earlier contemporaneous documents bearing on whereabouts on the night in question.

Procedural posture:

• The Court of Appeal heard the fresh evidence (including oral testimony) but dismissed the appeal, concluding the conviction was safe. The appellant appealed to the House of Lords, raising both a point of principle about the correct test to be applied when fresh evidence is received and the application of the relevant test to the facts.

Issues framed:

• What legal test should govern the Court of Appeal's decision whether to allow an appeal where fresh evidence is received under section 23 of the Criminal Appeal Act 1968 — in particular whether the court is confined to asking whether a reasonable jury might have acquitted if the fresh evidence had been before them, or whether the Court of Appeal must form its own judgment as to the safety of the conviction (the Stafford principle)?
• On the facts of this case, applying the correct test, was the appellant's conviction safe?

Court's reasoning and conclusions:

• The House reviewed the legislative history and the wording of section 2(1) and section 23 of the 1968 Act and concluded that Stafford was correctly decided: the Court of Appeal must exercise its own judgment whether the conviction is unsafe. That statutory judgment cannot be displaced by importing a narrower jury-impact test as an absolute rule.
• At the same time the House recognised the centrality of the jury and the appellate court's limited access to the jury's deliberative process. Consequently, in difficult fresh-evidence cases it will usually be prudent for the Court of Appeal to test its provisional view by asking whether the fresh evidence might reasonably have affected the jury's decision. The two approaches are compatible: the ultimate statutory responsibility remains with the appellate court, but consideration of probable jury impact is a valuable and often necessary step.
• Applying these principles to the appellant's case, the House found that the fresh psychological evidence raised a real doubt about the reliability of the admissions and that the jury had never been asked to consider the appellant's true defence (that he was not present). Given the weakness of the prosecution case on participation and the new evidence, the conviction could not be regarded as safe and was quashed.

Relief sought: an allowance of the appeal and quashing of conviction on the basis of fresh evidence and the conviction being unsafe.

Appeal allowed. The House held that Stafford v DPP was correctly decided: the Court of Appeal must exercise its own judgment under section 2(1) of the Criminal Appeal Act 1968 when fresh evidence is received under section 23, but in hard cases should test that judgment by asking whether the fresh evidence might reasonably have affected the jury. Applying these principles, the expert evidence undermined confidence in the appellant's admissions and the jury had never considered his true defence; the conviction was therefore unsafe and was quashed.

Trial at Leeds Crown Court resulted in convictions on 3 July 1986. A renewed application for leave to appeal was refused on 8 June 1987. The Criminal Cases Review Commission referred the conviction to the Court of Appeal on 4 February 1999 under section 9(1)(a) of the Criminal Appeal Act 1995 (the reference to be treated as an appeal under the Criminal Appeal Act 1968). The Court of Appeal (Criminal Division) received fresh evidence and dismissed the appeal; the appellant then appealed to the House of Lords, which allowed the appeal and quashed the conviction.