Smith, R. v

Expert psychological evidence casting serious doubt on the reliability of a confession may render a conviction unsafe where it is capable of belief and would have been admissible at trial. The evidence should show a significant abnormal deviation capable of affecting reliability and be supported by an independent pre-existing history, rather than solely the subject’s account. Where such new evidence leaves the conviction unsafe, it must be quashed. A retrial need not be ordered where the sentence has been served and no public interest requires one.

The appellant had been convicted at the Central Criminal Court in 1993 of attempted rape and burglary with intent to commit rape, and received consecutive sentences totalling eight years’ imprisonment. There was no forensic evidence linking him to either offence and neither victim identified the attacker. The prosecution case depended on his confessions.

Earlier applications for leave to appeal conviction and sentence had been refused. Following a referral by the Criminal Cases Review Commission, he brought a second appeal against conviction on different grounds. Two psychologists, instructed respectively for the appellant and the Crown, concluded after testing and reviewing the interviews that there were serious doubts about the reliability of the confessions.

The central issue was whether the convictions remained safe in light of that new evidence.

1. The appeal was allowed. The court received the new psychological evidence in the interests of justice. It was capable of belief, afforded a ground for allowing the appeal, and would have been admissible at trial.

2. The court applied the guidance in R v O’Brien, Hall and Sherwood. Expert evidence concerning unreliable admissions requires both a significant abnormal deviation capable of affecting the reliability of the confession and a pre-existing history, not based solely on the subject’s own account, which points to or explains the abnormality.

3. Both psychologists found abnormally high confabulation scores. Their evidence was that the appellant was abnormally suggestible and compliant on testing. Uncontested evidence also satisfied the requirement for an independent pre-existing history.

4. In those circumstances, the court held that the confessions were subject to serious doubt and that the convictions could not be regarded as safe. The convictions were quashed. As the appellant had served his sentence, the court found no public interest in ordering a retrial.

• Court of Appeal (Criminal Division): On a second appeal following a Criminal Cases Review Commission referral, the court allowed the appeal and quashed the 1993 convictions.

• Central Criminal Court: The appellant was convicted on 5 November 1993 of attempted rape and burglary with intent to commit rape, and sentenced to consecutive terms totalling eight years’ imprisonment.

• Earlier appeal proceedings: Applications for leave to appeal conviction and sentence were refused.