Poole & Anor v R

In a referred second criminal appeal, the court will normally revisit a ground previously determined only where there is new argument or evidence, or exceptional circumstances. The governing question remains whether the conviction is safe, not whether the accused is guilty.

The court must not substitute its own assessment for the jury’s evaluation of an important witness. It should ask whether undisclosed material or an irregularity might reasonably have affected the jury’s verdict. A conviction may be unsafe where the defence was denied material capable of undermining an important eyewitness, or where inadmissible hearsay from an absent witness was left before the jury on issues central to the defences.

The appellants were convicted of murder at Bristol Crown Court in 1990. Their first appeals were dismissed in 1996. The House of Lords later dismissed an appeal concerning the non-disclosure of two witness statements by Juke: R v Mills & Poole [1998] AC 382.

After a libel verdict concerning the conduct of a senior investigating officer, the Criminal Cases Review Commission referred the convictions again. The appeal concerned, in particular, police non-disclosure bearing on White, an important eyewitness, and the admission through an interview transcript of hearsay allegations attributed to Juke, who did not testify. The central issue was whether those matters rendered the convictions unsafe.

1. Both appeals were allowed. The convictions were unsafe.

2. Under sections 13 and 14(5) of the Criminal Appeal Act 1995, a reference does not confine the grounds that may be advanced. However, where the court is asked to revisit its own earlier decision on the same material, it should normally do so only on new argument or evidence, or in exceptional circumstances. That restraint does not limit the court’s unfettered discretion concerning grounds rejected by the Commission.

3. The court applied the approach in R v Pendleton [2001] UKHL 66. The question was the safety of the convictions, rather than guilt. In a difficult case, the court may test its assessment by considering whether the new matter or trial irregularity might reasonably have affected the jury. It must not usurp the jury’s function in assessing credibility and reliability.

4. There was no new material establishing systemic police dishonesty or casting a fresh evidential doubt on Stadden’s reliability. But the first Court of Appeal had wrongly substituted its own view for the jury’s view of White’s evidence. White was an important eyewitness whose evidence, if accepted, could have reinforced Stadden’s evidence. The undisclosed material concerning Neale could have enabled the defence to challenge White’s account, and might reasonably have affected the jury’s verdict.

5. The interview transcript also placed before the jury a damning hearsay account attributed to Juke, the only other person present during the assault. It supported Stadden, contradicted Mills’s self-defence, and implicated Poole. Its presentation was partly inaccurate, omitted material from Juke’s first statement, and was left with the jury without an effective direction. That inadmissible hearsay was unfairly prejudicial on issues central to both defences. Together with the non-disclosure affecting White, it rendered both convictions unsafe.

• Court of Appeal (Criminal Division): Allowed both appeals and held the convictions unsafe in [2003] EWCA Crim 1753.
• House of Lords: Dismissed the appeal concerning non-disclosure of Juke’s witness statements in R v Mills & Poole [1998] AC 382.
• Court of Appeal (Criminal Division): In 1996, granted leave to appeal but dismissed the first appeals against conviction.
• Crown Court at Bristol: Convicted both appellants of murder on 26 January 1990.