Cooper & Anor, R v

Under section 2 of the Criminal Appeal Act 1968, the Court of Appeal must itself assess whether a conviction is safe. It must not determine guilt as the primary decision-maker. In a difficult fresh-evidence case, it will usually be wise to ask whether the evidence might reasonably have affected the trial jury's decision.

Fresh evidence capable of undermining a critical prosecution witness may affect convictions of other defendants implicated by that witness. Material non-disclosure of earlier inconsistent witness statements may also have significant trial impact. A conviction may be unsafe through the cumulative effect of several concerns, even if none is individually decisive.

Cooper and McMahon were convicted of murder at the Central Criminal Court in 1970. Earlier appeals and references had failed, although Murphy, who had been convicted with them, succeeded on appeal in 1973 following fresh evidence.

In 2001 the Criminal Cases Review Commission referred the appellants' cases to the Court of Appeal. The appellants relied on undisclosed information concerning the gun owner, undisclosed earlier statements by Mathews's wife, the effect of evidence admitted in Murphy's appeal, evidence concerning Mathews's possible presence at the scene, and the later corruption conviction of the senior investigating officer.

The central issue was whether those matters, considered cumulatively under section 2 of the Criminal Appeal Act 1968, rendered the convictions unsafe.

The appeals against conviction were allowed.

1. Section 2 of the Criminal Appeal Act 1968 required the court to decide for itself whether the convictions were safe. Applying Pendleton [2002] 1 WLR 72, the court should not decide guilt as the primary decision-maker. In a difficult fresh-evidence appeal, it should test its assessment by asking whether the new material might reasonably have affected the trial jury's decision.

2. The credible evidence which had led to Murphy's successful appeal could reasonably have affected the jury's assessment of Mathews's truthfulness against Cooper and McMahon. Mathews's credibility remained critical despite other evidence capable of corroboration. The court respectfully disagreed with the 1975 assessment and held that the later handling of this issue had come close to making the appellate court the primary decision-maker.

3. Information about Good, which should have been disclosed, would have enabled the defence to suggest that he was involved in, or well informed about, the killing and to challenge his account of the gun's disposal. The prosecution had presented his evidence in a deliberately misleading way. The earlier inconsistent statements of Mrs Mathews should also have been disclosed. Their use in cross-examination could have significantly affected the trial, particularly concerning evidence said to corroborate Mathews against Cooper.

4. McNair's evidence, to some extent supported by Seal, was not decisive but could not be ignored when assessing the other concerns. Drury's later corruption conviction did not itself establish misconduct in this investigation or give subsequent misconduct a retroactive effect. It nevertheless added to the unease about the investigation and the relationships surrounding the principal witness and rewards.

5. No individual matter, or combination of specified matters, had to be treated as decisive. Their totality persuaded the court that the convictions were no longer safe.

1. Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference made in 2001, the court allowed the appeals against conviction in [2003] EWCA Crim 2257.

2. Court of Appeal: In 1978, the court declined to receive further fresh evidence tendered for McMahon following a reference under section 17(1)(b) of the Criminal Appeal Act 1968.

3. Court of Appeal: In 1976, the court dismissed Cooper's and McMahon's appeals following a second Secretary of State reference.

4. Court of Appeal: In 1975, the court dismissed Cooper's and McMahon's appeals following the first Secretary of State reference.

5. Court of Appeal: In 1973, Murphy's appeal was allowed on fresh evidence; the court expressly gave no view on Cooper's and McMahon's convictions.

6. Court of Appeal: In 1971, applications for leave to appeal by all three convicted defendants were dismissed.

7. Central Criminal Court: In 1970, Cooper, McMahon and Murphy were convicted of murder.