Greenwood, R v Andrew Philip

A defendant who denies murder need not identify or prove the person who committed it. However, the defendant is entitled to adduce relevant and potentially probative evidence that another person had a motive or might have committed the crime. Such evidence goes directly to whether the prosecution has proved the defendant’s guilt; it is not merely a peripheral or secondary defence.

The prosecution may place third-party evidence in its proper context through admissions or rebuttal evidence. A trial judge may exceptionally prevent a misleading presentation, but should not remove relevant alternative-suspect evidence from the jury’s consideration. Where a conviction rests wholly on confessions in a finely balanced case, wrongly excluding that evidence may render the conviction unsafe.

The appellant was convicted of manslaughter at a retrial before Holland J at Liverpool Crown Court and sentenced to eight years’ imprisonment. His first trial had ended when the jury could not agree.

The prosecution case depended entirely on the appellant’s repeated confessions to killing Janet Murgatroyd. The defence contended that the confessions were unreliable and sought to rely on evidence concerning John Parkinson, the victim’s former boyfriend, including his past violence towards her and his presence near the scene on the night of the killing.

At the retrial, the judge excluded all evidence concerning Parkinson on the basis that it was irrelevant and would invite speculation. The central issue on appeal was whether that exclusion deprived the appellant of relevant evidence bearing on the truth and reliability of his confessions and, consequently, the safety of the conviction.

1. Appeal allowed and conviction quashed. The court held that the exclusion of all evidence concerning Parkinson made it impossible to regard the conviction as safe.

2. Where the fact of a murder is not disputed and the defendant denies committing it, the defendant need not prove that another person was responsible. Nevertheless, the defendant may adduce evidence that another person had a motive to kill the victim, or other evidence pointing to the possibility that another person committed the offence. This is relevant to the central question whether the prosecution has proved that the defendant was the murderer.

3. Evidence of that kind is not a merely secondary or peripheral defence. The court treated the approach illustrated by Regina v Blastland [1986] 1 AC41 as confirming that material concerning another possible perpetrator may properly be weighed against the prosecution case.

4. The prosecution was not obliged to call Parkinson or Hayes. It could, however, make admissions from disclosed material and introduce further evidence to give those admissions a fair context. Ordinarily, the choice of admissions and rebuttal evidence should be left to the prosecution. A judge may exceptionally prevent a misleading presentation, but the circumstances for doing so will be rare.

5. Holland J had correctly identified relevance and potential probative value as the governing test. He nevertheless erred by excluding every aspect of the Parkinson evidence, including evidence of Parkinson’s former relationship with the victim, his past violence towards her, and his proximity to the scene. The jury, rather than the judge, should have assessed that evidence with any contextual material tendered by the prosecution.

6. The case rested solely on confessions and had been finely balanced at the first trial. The court could not safely substitute its own assessment for that of a properly directed jury after an important part of the defence case had been removed. The conviction was therefore quashed.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the manslaughter conviction: [2004] EWCA Crim 1388.
• Liverpool Crown Court: At the retrial before Holland J, the appellant was convicted of manslaughter by a majority of ten to one and sentenced to eight years’ imprisonment.
• Liverpool Crown Court: The first trial before Leveson J ended on 24 October 2002 when the jury could not reach a verdict.