Martindale, R v

Fresh evidence will render a conviction unsafe where it might reasonably have affected the trial jury’s decision. Material showing that a central prosecution witness lied on oath about being a police informant and receiving police money could fundamentally alter the jury’s assessment of credibility.

Information bearing on a prosecution witness’s credibility should be subjected to proper disclosure scrutiny. Where non-disclosure deprives the defence of the opportunity to expose such lies, it is a material irregularity. If the witness’s evidence is essential to proving an alleged agreement, limited independent evidence of drug dealing will not cure the resulting unsafety.

The appellant was convicted at Winchester Crown Court of conspiracy to supply heroin and sentenced to seven years’ imprisonment. Her earlier application for leave to appeal against conviction was effectively abandoned.

The Criminal Cases Review Commission referred the matter to the Court of Appeal under Criminal Appeal Act 1995. The reference arose because the principal prosecution witness, Payne, had falsely denied at trial that he was a registered police informant and that he had received police money. That information had not been disclosed to the defence or passed to prosecuting counsel.

The central issue was whether the fresh evidence and non-disclosure made the conviction unsafe, given the importance of Payne’s credibility to proof of the alleged conspiracy.

1. Appeal allowed; conviction quashed. The court held that the conviction was unsafe. The Crown accepted that there had been irregularities and that the jury might have acquitted if the true position had emerged.

2. The documentary evidence was admitted under section 23 of the Criminal Appeal Act 1968. It established that Payne was a registered police informant before trial and had received an expenses payment. His sworn denials of both matters were therefore false.

3. The court distinguished lies told out of court from lies told on oath to the jury. Disclosure would have enabled the defence to show that Payne had lied in the witness box. Such lies, added to his admitted earlier lies, might have caused the jury to attach little weight to his evidence.

4. The non-disclosure was a material irregularity. The police policy had prevented the Crown Prosecution Service, prosecuting counsel and the judge from considering the material. Applying the usual principles in Keane [1994] 99 Cr App R 1, the judge would probably have ordered disclosure following a public-interest-immunity application. The material was relevant to credibility, as recognised in Rasheed Times Law Reports 20th May 1994.

5. Following the fresh-evidence approach in Pendleton 2002 1 WLR 72, the proper question was whether the evidence, if given at trial, might reasonably have affected the jury’s decision. It might. Payne’s evidence was central to proof of an agreement with the appellant, while the remaining police evidence had limited probative value on that conspiracy allegation. No retrial was sought.

• Court of Appeal (Criminal Division): Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the court allowed the appeal and quashed the conviction.

• Winchester Crown Court: On 22 November 1996, the appellant was convicted of conspiracy to supply heroin and later sentenced to seven years’ imprisonment. An application for leave to appeal against conviction was subsequently effectively abandoned.