Heron v R.

Where an appeal relies on fresh evidence, the overriding question is whether its reception is necessary or expedient in the interests of justice. The statutory considerations include credibility, admissibility, whether the evidence may support allowing the appeal, and any explanation for its absence at trial.

In a difficult case, the appellate court should test its provisional assessment by asking whether the evidence, if given at trial, might reasonably have affected the jury’s decision to convict. If it would not, the conviction remains safe. Recasting the complaint as trial unfairness adds nothing where the omitted material would not have affected the outcome.

Heron v R. was an appeal against convictions for murder and two offences under section 18. The appellant had been convicted at the Crown Court at Liverpool before Leveson J and a jury.

His appeal challenged the refusal of a submission of no case, aspects of the summing up, and the safety of the verdict. It also relied on material concerning Gerard Cole, said to point to Cole rather than the appellant as the getaway driver. Some of that material had not been disclosed, while other material had been available but not pursued.

The central issue was whether the material should be received as fresh evidence and, if so, whether it might reasonably have affected the jury’s verdict.

1. Appeal dismissed. The trial judge was entitled to leave the case to the jury. The combined evidence of the appellant’s association with the co-defendants, the mobile-phone evidence, and the words heard by Penniston, “Which way now, Pete?”, was capable of supporting conviction.

2. No special identification-style warning was required for Penniston’s evidence. He did not identify a voice; the jury had to decide whether he heard the words and then assess their weight in the evidential context. The prosecution had also left open the possibility that there were more than three occupants of the getaway car. The summing up therefore gave no basis for complaint on that issue.

3. For the additional grounds, the court treated all the Cole material as fresh evidence. Under section 23(1)(c) of the Criminal Appeal Act 1968, the overriding consideration was the interests of justice. The evidence was capable of belief and admissible, but the critical question was whether it might afford a ground for allowing the appeal.

4. Applying R v Pendleton [2002] 1WLR72, the court asked whether the material, if available at trial, might reasonably have affected the jury’s decision. It would not. Introducing Cole was unlikely to assist the appellant and could have damaged his position. It did not undermine the three strands of the case, especially the evidence placing “Pete” in the getaway car.

5. The court declined to receive the fresh evidence. The verdict was safe with or without it. The alternative contention that the appellant had not had a fair trial added nothing, because the material would not have affected the outcome.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against conviction: [2005] EWCA Crim 3245.
• Crown Court at Liverpool: before Leveson J and a jury, convicted the appellant of murder and two section 18 offences on 27 October 2003.