Adams, R v Andrew

In an appeal based on allegedly incompetent representation, the question is whether identifiable errors or irregularities caused by that representation made the conviction unsafe. The appellate court must assess that question itself, including the cumulative effect of material which should have been deployed at trial.

Evidence available but unused may render a verdict unsafe where it materially affects the credibility of a principal witness or undermines a significant part of the prosecution case. The court may also determine whether contemporaneous documentary material, including a transcript of an anonymous call, would probably have been admissible under the applicable hearsay provisions.

The appellant had been convicted of murder at Newcastle-upon-Tyne Crown Court in 1993. His first appeal was dismissed in 1998. The Criminal Cases Review Commission referred the conviction under Criminal Appeal Act 1995, raising complaints about defence representation, disclosure, the summing-up and alleged jury bias.

The prosecution case depended substantially on Kevin Thompson, who said that the appellant had described the killing to him. The appeal centred on whether trial lawyers had failed to use available material bearing on Thompson’s credibility, the police stop said to corroborate his account, and an alternative escape route. A further issue was whether evidence from jurors showed an irregularity or bias.

1. Appeal allowed; conviction quashed. The court held that the verdict was unsafe. Incompetent representation is not, by itself, a ground for allowing an appeal. The appellant must show identifiable errors or irregularities which made the trial unfair or unsafe.

2. The court accepted that material available before trial had not been properly deployed in three important respects. First, unused police material could have reinforced the challenge to Kevin Thompson’s credibility and exposed unrecorded meetings with police. Secondly, material from the Holmes database could have enabled a meaningful challenge to the police-stop evidence relied on as corroboration. Thirdly, evidence concerning the Coalway Lane route could have supported a coherent alternative account of the killers’ escape and undermined Thompson’s alleged assistance.

3. None of those failures alone necessarily made the verdict unsafe. Taken cumulatively, however, they did. The case against the appellant was not overwhelming: there was no forensic evidence linking him to the murder, the corroborative evidence contained no direct admission, and his co-accused had been acquitted. The court did not find that proper preparation would inevitably have produced an acquittal, but it was satisfied that the conviction could not safely stand.

4. The transcript of an anonymous telephone call was material which could have been used at trial. Under Criminal Justice Act 1988, read with the definition of a document and copy in the Civil Evidence Act 1968, a tape recording was a document and its transcript could be proved as a copy if authenticated. The court considered that the hearsay requirements were likely to have been met and that the evidence would probably have been admitted.

5. The jury-bias ground failed. Although unnecessary to the result, the court held that the evidence did not rebut the strong presumption against bias. It also stated that interviewing jurors without prior leave of the court was highly undesirable, and that receiving juror evidence should be rare and exceptional.

• Court of Appeal (Criminal Division): On the Criminal Cases Review Commission reference, allowed the appeal and quashed the conviction: [2007] EWCA Crim 1.
• Court of Appeal (Criminal Division): On 16 January 1998, dismissed the appellant’s first appeal against conviction.
• Newcastle-upon-Tyne Crown Court: On 18 May 1993, convicted the appellant of murder by a unanimous jury verdict and imposed life imprisonment.