Steele & Ors, R v

Under section 2 of the Criminal Appeal Act 1968, the appellate question is whether a conviction is unsafe, not whether the accused is guilty. In a difficult fresh-evidence case, the court will normally ask whether the evidence, had it been given at trial, might reasonably have affected the jury’s decision.

A witness’s undisclosed pre-trial media agreement and financial interest do not, without more, render a conviction unsafe or the trial unfair. Their actual effect on the reliability of the verdict must be assessed. Post-trial expert reconstructions which add nothing material are not fresh evidence. A later development in directions on silence does not itself make an earlier conviction unsafe where no substantial injustice resulted.

The appellants had been convicted at the Central Criminal Court of conspiracy to import cannabis. Steele and Whomes were also convicted of the murders of three men at Rettenden. The prosecution case depended substantially on the evidence of Darren Nicholls, who described the drug importations and the murders.

After an earlier refusal of leave to appeal, the Criminal Cases Review Commission referred the convictions. The reference relied principally on previously undisclosed dealings between Nicholls and the media, from which he expected financial benefit. It also raised alleged fresh mobile telephone cell-site evidence. Whomes, supported by Steele, further challenged the direction on adverse inferences from their silence in police interviews.

The central issue was whether any ground, separately or cumulatively, made the convictions unsafe.

1. All three appeals were dismissed. Applying section 2 of the Criminal Appeal Act 1968, the court held that the issue was the safety of the convictions, rather than the appellants’ guilt. Following Pendleton [2001] UKHL 66, in a difficult fresh-evidence case the court should test its assessment by asking whether the evidence might reasonably have affected the trial jury’s decision.

2. Nicholls’s undisclosed media contacts and prospective financial gain were capable of providing further material for cross-examination and were to be deprecated. They did not, however, undermine the convictions. Nicholls had given the essential account before the relevant media dealings. His evidence was detailed, consistent and extensively tested at trial. The defence already had substantial material exposing his criminality, dishonesty and personal interest. Other evidence, including telephone evidence and evidence disproving Steele’s alibi, supported the prosecution case.

3. The court found no evidential basis for the alleged collusion by the principal police officers in the media arrangements. A failure to disclose did not automatically make the trial unfair. Even assuming that another officer knew of potential financial arrangements, bad faith was not established. The court’s reassessment of safety was also capable of curing any alleged defect, consistently with Edwards v United Kingdom (1992) 15 EHRR 417. There was no operative unfairness affecting safety.

4. The further mobile telephone material was not fresh evidence. The defence expert maintained the opinion already expressed at trial. Later reconstruction tests could not reliably recreate the variable conditions in 1995 and would in any event have made no difference. The court therefore declined formally to admit the evidence under section 23 of the Criminal Appeal Act 1968.

5. The directions on silence would be expressed differently under the later approach to section 34 of the Criminal Justice and Public Order Act 1994. That later development did not itself render the convictions unsafe. The prosecution case plainly called for an answer, and the appellants provided no evidential basis beyond bare legal advice for their complete silence. No substantial injustice resulted.

• Court of Appeal (Criminal Division): The court dismissed the renewed appeals against conviction: [2006] EWCA Crim 195.
• Criminal Cases Review Commission: On 21 December 2004, it referred the convictions on the basis of new material concerning Nicholls’s media dealings and alleged fresh telephone evidence.
• Court of Appeal (Criminal Division): On 29 March 1999, it refused leave to appeal against the convictions.
• Central Criminal Court: Following a trial ending on 20 January 1998, the appellants were convicted of conspiracy to import cannabis; Steele and Whomes were also convicted of three murders.