Friend, R v

Fresh and credible expert evidence may render a conviction unsafe where it shows that an accused person's unrecognised cognitive condition materially affected trial participation and the propriety of adverse inferences. Where such evidence would have prevented an adverse-inference direction under section 35 of the Criminal Justice and Public Order Act 1994, and would also have required materially different directions about silence and lies in interview, the conviction cannot stand. The evidence may be admitted where the conditions in section 23 of the Criminal Appeal Act 1968 are satisfied, including a reasonable explanation for its absence at trial.

The appellant, who had been convicted of murder at the Central Criminal Court when a child, appealed following a reference by the Criminal Cases Review Commission. An earlier appeal against conviction had been dismissed: [1997] 2 All.ER 1010.

The reference was based principally on fresh expert evidence. It diagnosed attention deficit hyperactivity disorder at the time of trial and addressed the appellant's ability to participate effectively, to give evidence and to respond during police interview. The central issue was whether that evidence made the conviction unsafe, particularly because the jury had been permitted to draw adverse inferences from silence and failure to give evidence and had received a direction concerning lies in interview.

1. Appeal allowed. The court admitted the fresh evidence under section 23 of the Criminal Appeal Act 1968. It was credible, potentially capable of supporting the appeal, admissible at trial, and unavailable then for a reasonable reason. The nature and extent of the appellant's condition had not been fully appreciated because the understanding of ADHD had materially advanced.
2. The new evidence established that, at trial, the appellant had unrecognised, undiagnosed and untreated ADHD, with serious deficits in attention and impulse control, compounded by verbal deficits and anxiety. It showed that the earlier assessment had not fully captured the severity and implications of those difficulties.
3. Had that evidence been available, the trial judge would not have permitted an adverse inference from the appellant's failure to give evidence under section 35 of the Criminal Justice and Public Order Act 1994. The court also considered it probable that no adverse inference could properly have been drawn from his initial silence in interview. The Crown accepted that it would not have sought an adverse-inference direction based on the failure to testify.
4. The new evidence also required substantially different directions about silence and the lies told in interview. The appellant's attention, comprehension and impulse-control difficulties could have affected his answers and could have been misunderstood by the jury. The original directions therefore could not safely be treated as adequate in light of the fresh evidence.
5. The conviction was unsafe and was quashed. A retrial would not be in the public interest, given the period already spent in custody, the appellant's condition and the unavailability of many witnesses. A defendant's costs order was made, with costs to be taxed.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court allowed the renewed appeal and quashed the murder conviction.
• Court of Appeal (Criminal Division): The earlier appeal against conviction was dismissed: [1997] 2 All.ER 1010.
• Central Criminal Court: The appellant was convicted of murder and sentenced to detention during Her Majesty's pleasure.