Bain, R v

A jury may treat a defendant’s lies as supporting the prosecution case only where the lies are proved or admitted, relate to a material issue, and are not capable of an innocent explanation. A direction need not reproduce a later standard formula if the summing-up, read as a whole, makes those essential safeguards clear.

When assessing an historic conviction, the appellate court must decide whether it is unsafe. An accurate and balanced review of conflicting evidence, including an invitation to assess an unreliable witness, does not make a conviction unsafe.

In 1971 Alfred Bain was convicted of the murder of Mary McCormack at the Central Criminal Court. His earlier application for leave to appeal was refused by the Court of Appeal in 1972.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the appeal was pursued by Bain’s daughter after his death. The reference concerned the adequacy of the trial judge’s directions on alleged lies. Further grounds alleged unfairness in the summing-up on evidence about a plastic strip used in the killing.

Decision

1. The appeal was dismissed. The conviction was not unsafe.
2. The court considered the modern guidance in R v Lucas (1981) 73 Crim App R 159, under which a lie may support the prosecution case only if it is deliberate, material, attributable to guilt and fear of the truth, and independently proved or admitted. The essential safeguards are that the jury must be sure of the lie and sure that it has no innocent explanation.
3. The trial pre-dated Lucas, but the direction was adequate when read as a whole. The judge had endorsed defence counsel’s submission that people may lie for many reasons. He had also made clear that the alleged lies about Bain’s movements mattered only if the Crown evidence was accepted and Bain’s account disbelieved. The jury would therefore have understood both that the relevant lies had to be proved and that they could support guilt only if no innocent explanation existed.
4. The court agreed that the approach was consistent with Broadhurst v R [1963] A.C. 441. The later, more focused guidance did not require the conviction to be quashed where the necessary substance had been conveyed.
5. The complaints about the plastic-strip evidence also failed. The judge had accurately summarised the competing evidence about when Bain moved into the flat and where the strip had been kept. It was proper to invite the jury to assess the reliability of a witness whose memory and drug use had been challenged by the defence. No unfairness arose from those directions.

• Court of Appeal (Criminal Division) — dismissed the appeal following a reference by the Criminal Cases Review Commission: [2004] EWCA Crim 525.
• Court of Appeal (Criminal Division) — refused Bain leave to appeal against the murder conviction on 2 June 1972.
• Central Criminal Court — convicted Bain of murder on 17 February 1971 and sentenced him to life imprisonment.