Underwood, R v

Where a prosecution witness’s undisclosed convictions are later revealed, the Court of Appeal must decide whether the conviction is unsafe. The assessment turns on the strength of the evidence independent of that witness and the importance of the witness’s credibility. Non-disclosure does not automatically require a conviction to be quashed, even where the witness gave evidence of a subsequent confession. A conviction remains safe where the remaining circumstantial evidence is compelling and the new material could not reasonably have altered the jury’s verdict.

The appellant had been convicted of murder at Exeter Crown Court and sentenced to life imprisonment. His applications for leave to appeal had previously been refused.

Following a reference by the Criminal Cases Review Commission, the appellant relied principally on the later discovery that Michael Lewis, who gave evidence of admissions made after the killing, had concealed numerous previous convictions for dishonesty. He also sought to rely on further DNA and pathological evidence concerning the time and circumstances of death.

The central issue was whether the fresh material rendered the conviction unsafe.

1. The appeal was dismissed. The court held that the murder conviction was safe.
2. The further DNA evidence was neutral. The fresh pathological evidence did not materially alter the evidence available at trial. It could not narrow the time of death beyond a period of 24 to 48 hours before the post-mortem examination, and the additional observations about the appellant’s knuckles and the dressing-gown cord were immaterial makeweight points.
3. The non-disclosure of Lewis’s convictions would have altered the conduct of the defence. It would probably have enabled more effective cross-examination and permitted the appellant to maintain his decision not to give evidence. Nevertheless, the effect of non-disclosure depends on the weight of the remaining evidence and on whether the witness’s credibility lies at the heart of the case. The court applied the approach in Farrell 20th March 2000 Unreported and the safety-of-conviction inquiry stated in R v Pendleton [2002] 1 WLR 72.
4. The earlier authorities were distinguishable because their undisclosed witnesses gave evidence about central facts. Lewis’s evidence concerned a later alleged confession and did not prove the central circumstantial facts. The jury would have convicted without his evidence.
5. The independent evidence was completely compelling. It included the appellant’s unexplained departure and expensive overnight journey, the blood-soaked dressing-gown cord found in his flat, his sudden possession of substantial cash, lies about its source and his clothing, and the absence of any plausible innocent explanation for those matters. The undisclosed convictions could therefore have made no difference to the verdict.

• Court of Appeal (Criminal Division): On a reference under section 9 of the Criminal Appeal Act 1995, dismissed the appeal and held the conviction safe.
• Court of Appeal (Criminal Division): On 19 November 1996, refused the appellant’s renewed application for leave to appeal against conviction.
• Crown Court at Exeter: On 16 March 1995, convicted the appellant of murder and imposed life imprisonment.