Wickens, R v

Where fresh expert evidence, unavailable to the jury, materially undermines a central factual premise of the prosecution case, the appellate court must assess the safety of the conviction. If it cannot say whether the jury would have reached the same verdict after hearing that evidence, the conviction is unsafe and must be quashed. An alleged failure of disclosure does not assist an appellant where the undisclosed police record was an officer’s inference rather than expert evidence, the critical expert information had been disclosed and led at trial, and the internal material could not properly have been used.

The appellant had been convicted at Maidstone Crown Court in 1991 of murdering an elderly woman and sentenced to life imprisonment. The prosecution case depended entirely on alleged confessions to two former wives.

After an earlier application for leave to appeal was abandoned, the Criminal Cases Review Commission referred the conviction to the Court of Appeal under section 9 of the Criminal Appeal Act 1995. The reference concerned evidence bearing on the time of death. The alleged confession placed the killing late on Saturday night, whereas the defence contended that the medical and surrounding evidence pointed to Sunday afternoon.

The central issues were whether police records disclosed a material non-disclosure and whether later pathological evidence rendered the conviction unsafe.

1. Appeal allowed. The court quashed the murder conviction. The prosecution did not seek a retrial.
2. There had been no material non-disclosure. The police message of 4 September 1986 recorded the pathologist’s broad view, but its apparently precise time limits were the police officer’s inference rather than the pathologist’s opinion. The critical medical information had been communicated to the defence and was led by the Crown at trial. A later internal police request merely recorded an officer’s assessment, was not evidence, and could not properly have been used at trial.
3. The later evidence nevertheless materially altered the significance of the time-of-death issue. Professor Vanezis, the Crown’s pathologist, stated that death 39 to 40 hours before his examination was extremely unlikely, though not impossible. The other pathologists regarded it as unlikely. The deceased’s age, frailty and the heat from the fire tended against such a prolonged period of rigor mortis.
4. This evidence gave substantial additional force to the defence case that the killing did not occur at the time asserted in the alleged confession. It also affected the weight of the evidence about the deceased’s clothing. The trial judge had presented the pathological evidence as neutral, but could not properly have done so had the jury heard the Crown pathologist’s later opinion.
5. Applying the safety test emphasised in Pendleton, [2002] 1 WLR 72, the court could not determine whether the jury would have convicted after hearing that evidence. The resulting conviction was therefore unsafe.

• Court of Appeal (Criminal Division) — On a reference by the Criminal Cases Review Commission, allowed the appeal and quashed the conviction: [2003] EWCA Crim 2196.
• Criminal Cases Review Commission — Referred the conviction to the Court of Appeal under section 9 of the Criminal Appeal Act 1995.
• Court of Appeal (Criminal Division) — In 1999 declined to treat the appellant’s earlier notice abandoning his renewed application for leave to appeal as a nullity, but indicated that he could apply to the Commission.
• Crown Court at Maidstone — On 14 February 1991, convicted the appellant of murder and imposed life imprisonment.