Mackin, R v

On an appeal based on fresh evidence, the court must decide for itself whether the conviction is unsafe after evaluating that evidence in the context of the case as a whole. Under Criminal Appeal Act 1968, the court must in particular consider whether the evidence is capable of belief and may afford a ground for allowing the appeal.

A post-trial confession by a co-defendant which exculpates a convicted associate requires particular caution. The evidence may be rejected where its source has previously lied on oath, its account is inherently unlikely, or it conflicts with credible evidence. The appeal will fail if the fresh evidence does not create a reasonable doubt about guilt.

The appellant had been convicted, following a retrial at Manchester Crown Court, of two counts of wounding with intent to do grievous bodily harm and three drug-supply conspiracies. The Criminal Cases Review Commission referred the wounding convictions after obtaining fresh evidence.

The principal new account came from the co-accused, who admitted taking part in the attack but alleged that a deceased third party, rather than the appellant, was the other attacker. Other witnesses gave evidence said to support that account, and the victim said he now believed that his identification of the appellant had been mistaken.

The central issue was whether the fresh evidence was credible and, assessed with the trial evidence as a whole, rendered the convictions unsafe.

1. Appeal dismissed. The court held that the fresh evidence was not credible and afforded the appellant no ground of appeal. The wounding convictions therefore remained safe.

2. Under section 23 of the Criminal Appeal Act 1968, the court could receive fresh evidence and had to consider, among other matters, whether it was capable of belief and might afford a ground for allowing the appeal. The ultimate question was for the appellate court itself: whether, in the light of all the evidence, the convictions were unsafe. The possible response of the trial jury was no more than an available aid in a difficult case, consistently with Dial v The State of Trinidad and Tobago [2005] 1 WLR 1660.

3. The court applied the particular caution required where a convicted co-defendant later confesses and seeks to exonerate an associate. Such evidence presents a substantial credibility hurdle: see R v Ditch (1969) 53 Cr.App.R 627 and R v Horner [2004] EWCA Crim. 560.

4. The co-defendant had admitted previous perjury and had delayed his full account until the alleged alternative attacker had died. His account was inherently improbable and conflicted with evidence accepted as truthful. The victim's purported retraction was not genuine, and the court found that the other supporting witnesses had also failed to tell the truth. Taken together with the trial evidence, including the appellant's drug dealings with the victim, the new material did not undermine the original identification or create reasonable doubt about the appellant's guilt.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court dismissed the appeal against the wounding convictions: [2007] EWCA Crim 1844.
• Court of Appeal (Criminal Division): On 31 May 2002, the court refused renewed applications for an extension of time, leave to appeal against conviction and a representation order.
• Manchester Crown Court: Following a retrial on 14 June 1999, the appellant was convicted of two counts of wounding with intent to do grievous bodily harm and three drug-supply conspiracies.