Pinfold & Anor v R

Under section 23 of the Criminal Appeal Act 1968, the Court of Appeal has a broad discretion to receive fresh evidence. The statutory considerations must be addressed, but a persuasive explanation for earlier non-production may suffice. The appellate question remains whether the conviction is safe. In a difficult case, the court should ask whether the new evidence might reasonably have affected the trial jury’s decision.

Expert evidence bearing on a witness’s reliability may be admissible where it identifies an abnormality capable of making the evidence unreliable. A personal examination is relevant to weight, not invariably admissibility. Where a conviction depended on testimony shown to be wholly unreliable, corroboration could not save it because there was no credible evidence to corroborate.

The appellants were convicted in 1980 of murders said to have been committed between 1974 and 1978. The prosecution case depended on the evidence of John Bruce Childs, an accomplice who had pleaded guilty to six murders. The jury convicted only on counts for which it considered there was corroboration of Childs’s evidence.

An earlier appeal against conviction was dismissed. The Criminal Cases Review Commission later referred the convictions under section 9 of the Criminal Appeal Act 1995. The appellants relied principally on fresh psychiatric evidence concerning Childs’s severe personality disorder, his later inconsistent retractions and confessions, and allegations of non-disclosure.

The central issue was whether the fresh evidence made the convictions unsafe, notwithstanding the trial judge’s clear warnings and the corroborative evidence available at trial.

1. Appeals allowed; convictions quashed. The Lord Chief Justice, delivering the court’s single judgment, held that the convictions were unsafe. The court could not determine the truth about the murders, but that was not the appellate question.

2. Section 23 of the Criminal Appeal Act 1968 gave a general discretion to admit fresh evidence where necessary or expedient in the interests of justice. The matters in section 23(2) were important but not cumulative preconditions. Evidence apparently incapable of belief or inadmissible would ordinarily be pointless to receive. By contrast, persuasive evidence might be received despite earlier non-production.

3. Following R v Pendleton [2002] 1 WLR 72, the court had to decide safety rather than guilt. It should preserve the jury’s primary role by asking, in a difficult case, whether the fresh evidence might reasonably have affected the jury’s decision to convict.

4. The modern approach permitted expert evidence of an abnormality relevant to the reliability of a witness’s evidence. It did not depend on placing the abnormality in a recognised diagnostic category. An expert’s failure to examine the witness did not automatically render the opinion inadmissible; it bore on its weight. The jury nevertheless remained responsible for deciding whether to believe the witness.

5. The court admitted Dr Somekh’s evidence. It found the evidence credible and capable of influencing the jury. Childs’s later inconsistent statements were admissible to prove that they had been made and further damaged his credibility. The court refused proposed fire-officer evidence because it could have been called at trial without good reason for the omission.

6. Viewed with the trial evidence, the fresh material established that Childs’s testimony was wholly unreliable. The convictions depended on it. The existence of material capable in law of corroborating Childs could not assist once there was no evidence capable of belief to corroborate.

• Court of Appeal (Criminal Division) — on a reference by the Criminal Cases Review Commission, the court allowed the appeals and quashed the convictions: [2003] EWCA Crim 3643.
• Court of Appeal (Criminal Division) — the appellants’ earlier appeals against conviction were dismissed on 11 November 1981. The judgment refers to (1981) 76 Cr App R 271 and to a previous unsuccessful appeal at (1983) 76 Cr App R 278.
• Trial court not stated — the appellants were convicted by a jury in 1980 before May J.