Lawless & Anor, R v

Fresh evidence on a criminal appeal must be assessed under section 23 of the Criminal Appeal Act 1968. The court must consider, in particular, its credibility, whether it may afford a ground for allowing the appeal, its admissibility at trial, and the explanation for its absence at trial. Indirect evidence of another person’s alleged confession remains inadmissible hearsay where that person was not a co-defendant at the trial and cannot be called directly.

A jury need not be discharged because of potentially prejudicial evidence where the trial judge can, and does, direct that it is evidence only against its maker.

At Hull Crown Court, Ian Lawless and Gary Lawson were convicted of the murder of Alfred Wilkins. Each received life imprisonment. Lawson was also convicted of conspiracy to cause grievous bodily harm and received a concurrent four-year sentence.

Lawless appealed on the basis that his role was no more than that of a look-out and sought to adduce fresh evidence of alleged post-trial admissions by Chantelle Day. Lawson challenged the refusal to discharge the jury after Day was acquitted on related counts, and the adequacy of directions concerning her diary entry.

The central issues were whether the proposed fresh evidence could be received and whether the diary evidence rendered Lawson’s convictions unsafe.

1. Both appeals against conviction were dismissed. Lord Justice Kennedy delivered the judgment of the court. The evidence, if accepted, entitled the jury to conclude that Lawless, as a look-out for an arson attack on an occupied dwelling, knew that serious injury, if not death, was intended. His challenge to the murder conviction therefore failed.

2. The proposed evidence of Day’s alleged admissions could not be received as fresh evidence under section 23 of the Criminal Appeal Act 1968. The court accepted that the statements might accurately report what Day had said and that Lawless had a reasonable explanation for not producing the material at trial. But, apart from the limited assertion that Lawless had not participated, the material gave no ground for allowing the appeal. The relevant assertion could be admissible only if Day herself gave it directly; in its available form it was hearsay.

3. The court applied the hearsay reasoning in R v Blastland [1986] AC 41 and distinguished Myers [1998] AC 124. Myers concerned a confession by a co-defendant at the same trial, where the evidence could not otherwise be elicited. Day was not a co-defendant in these proceedings. Her alleged involvement in the arson also did not, of itself, cast doubt on either appellant’s conviction. The alternative route under sections 24 to 26 of the Criminal Justice Act 1988 failed because the statements did not meet section 24(4).

4. The refusal to discharge Lawson’s jury was a proper exercise of discretion. Although the diary entry was potentially prejudicial, there was no evidence that Lawson had seen it. The jury was directed that it was evidence only for or against Day. The delayed direction was adequate, and there was evidence on which a properly directed jury could convict Lawson on both counts.

• Court of Appeal (Criminal Division): Dismissed both appeals against conviction in [2003] EWCA Crim 271.

• Crown Court at Hull: In February 2002, convicted both appellants of murder. In March 2002, each was sentenced to life imprisonment. Lawson was also convicted of conspiracy to cause grievous bodily harm and received a concurrent four-year sentence.