Hall, R v

Evidence available but unused at trial may be received on an appeal under section 23(1) of the Criminal Appeal Act 1968 where that is necessary or expedient in the interests of justice. The ultimate question remains whether, considered with the trial evidence and the defence actually advanced, the conviction is unsafe.

The non-use of evidence suggesting that a co-defendant carried the weapon did not undermine the conviction where reliance on it would have conflicted with the appellant’s trial case, created mutually damaging defences, and was likely to harm rather than assist him.

The appellant was convicted at Guildford Crown Court of affray and two assaults occasioning actual bodily harm. He was acquitted of a further assault count. His application for leave to appeal was refused by the Single Judge and was not renewed.

The Criminal Cases Review Commission referred his conviction on count 4, concerning serious injury to Gary Reed’s eye. The reference relied on unused material and an unchallenged prior statement which indicated that the co-defendant, rather than the appellant, may have carried and used part of a pool cue. The central issue was whether the absence of that material made the count 4 conviction unsafe.

1. Appeal dismissed. The court held that the conviction on count 4 was safe.

2. Under section 23(1) of the Criminal Appeal Act 1968, the court may receive evidence which could have been produced at trial if receiving it is necessary or expedient in the interests of justice. The relevant question was whether the unused material, taken with the trial evidence, undermined the safety of the conviction.

3. The appellant’s trial case had been that no person used a cue against Reed. The suggested evidence that Ayrton carried and used the cue against Reed could not sensibly have been advanced with that defence. It would have created conflicting defences between the appellant and Ayrton, to the Crown’s advantage.

4. Although the defence should have given serious consideration to calling Simon Wood, his evidence on the weapon would inevitably have entered the defence case and exposed the appellant to damaging cross-examination. Nicholas Hall’s statement would have been still more damaging. The material was therefore rightly left unused, whether or not it had been fully analysed at the time.

5. There was no reason to doubt that the appellant had been properly and competently represented. The omitted evidence did not call the safety of the conviction into question.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, dismissed the appeal against the conviction on count 4: [2003] EWCA Crim 3945.
• Crown Court at Guildford: On 24 June 1998, convicted the appellant of affray and two assaults occasioning actual bodily harm, including count 4. He was acquitted on count 2.
• Single Judge: Refused leave to appeal against conviction and sentence. The application was not renewed.