Causley, R v

A conviction is unsafe where fresh material, unavailable to the defence, could reasonably have affected the jury’s assessment of a central prison-informer confession. The prosecution should make reasonable inquiries into whether a proposed prison informer has previously given evidence of alleged confessions by fellow prisoners.

On ordering a retrial after quashing a conviction, the court must balance the defendant’s interests against the public interest in determination of a serious charge. A retrial is not unfair merely because the prosecution abandons one limb of its original case and relies on other evidence that was already before the jury. Delay, health, prior custody and police misconduct must be assessed for their actual effect on trial fairness.

The appellant was convicted of murdering his wife in 1996 and sentenced to life imprisonment. An earlier appeal against conviction was dismissed in 1998. Following a reference by the Criminal Cases Review Commission, the court considered fresh material concerning three prison witnesses who had alleged that the appellant had confessed.

The material concerning Andrew Murphy, whose evidence had been a principal plank of the prosecution case, showed that he had previously given similar prison-confession evidence in an Irish murder trial. It could have been used both to compare striking similarities and to challenge answers he gave in cross-examination. The Crown accepted that the conviction was unsafe, but sought a retrial relying on the circumstantial evidence and the appellant’s conduct rather than the alleged prison confessions.

The central issue was whether a retrial would be fair and in the interests of justice.

1. Appeal allowed. Lord Justice Kay, giving the single judgment of the court, held that the conviction was unsafe and quashed it. Murphy’s alleged confession evidence had been a central feature of the prosecution case. Fresh material about his earlier, similar evidence in an Irish murder trial was capable of affecting the jury’s assessment of his reliability. It could also have exposed as untrue his denial that he had given relevant evidence on another occasion. The court rejected as too simplistic the view that the material mattered only if it proved his earlier evidence false.

2. The court applied the need for particular caution with prison-informer evidence recognised in Benedetto v The Queen and Labrador v The Queen [2003] UKPC 27. Such evidence may be affected by an informer’s perceived self-interest and lacks the usual safeguards surrounding a police interview. The absence of the fresh material therefore created a real possibility that the jury’s verdict had been influenced by evidence that the defence could have challenged more fully.

3. The court added, as guidance, that where the prosecution proposes to rely on a cell confession it should regularly inquire whether the informer has previously given confession evidence, and should pursue any reasonably available material bearing on that issue. Paragraph 3.4 of the code of practice under the Criminal Procedure and Investigations Act 1996 supported that approach.

4. Retrial ordered. The proposed retrial would not give the Crown an unfair second chance. The Crown would abandon the three alleged confession witnesses but rely on the first two, circumstantial limbs of the case, which had been placed before the original jury and could independently have supported a conviction.

5. The court balanced the appellant’s age, health, time in custody, delay and the misleading evidence given by some police officers against the public interest in resolving a grave murder allegation. None of those matters showed that a fair trial was impossible or that a retrial would be oppressive. A fresh indictment was directed, with re-arraignment at Winchester Crown Court within two months. The appellant remained in custody pending retrial.

• Court of Appeal (Criminal Division): Allowed the appeal following a Criminal Cases Review Commission reference, quashed the conviction and ordered a retrial.
• Court of Appeal (Criminal Division): Dismissed the appellant’s earlier appeal against conviction on 22 October 1998.
• Crown Court: On 18 December 1996, Mantell J and a jury convicted the appellant of murder and imposed life imprisonment.