Ishaq & Ors, R v

Where credible fresh evidence was not heard at trial, the appellate court must assess conviction safety by asking whether a properly directed jury might reasonably have reached a different verdict. The court must respect the jury’s primary role in deciding guilt. It should not decide whether the evidence proves innocence or whether the existing evidence could still support conviction.

A conviction is unsafe where fresh evidence may support the defence account or undermine material prosecution evidence, so that a jury might reasonably acquit. Deficiencies in a summing-up do not justify allowing an appeal unless they affect the safety of the convictions.

Three appellants were convicted at Cardiff Crown Court on 3 August 2007 of two offences of causing grievous bodily harm with intent. The prosecution alleged that, after an earlier confrontation, they returned to the scene and carried out an armed revenge attack. The appellants denied any planned assault. They maintained that any force used was in self-defence.

On appeal against conviction, the court admitted fresh evidence from Arif Khan under section 23 of the Criminal Appeals Act 1968. His evidence was capable of supporting Ishaq’s account that he had called for the police, and of supporting Ali’s and Sultan’s accounts concerning the introduction and acquisition of weapons. The central issue was whether, had the jury heard that evidence, the convictions remained safe.

1. The appeals were allowed. The court quashed each conviction as unsafe and ordered a retrial.

2. The court admitted Arif Khan’s evidence pursuant to section 23 of the Criminal Appeals Act 1968. It found the evidence capable of belief and held that there was a reasonable explanation for its absence at trial. Apparent inconsistencies, including the omission from an earlier draft statement of evidence about a weapon, were matters a jury could properly assess.

3. Applying Pendleton [2001] UKHL 66 and the approach explained in Bain [2007] UKPC 33, the court held that the issue was not whether the existing evidence could support conviction. The issue was whether a properly informed and directed jury might reasonably have declined to convict if it had heard the fresh evidence.

4. For Ishaq, evidence from an independent witness that he was calling for the police could support his account that he had returned expecting the police rather than to direct a revenge attack. Taken with the other evidence, a jury might reasonably have acquitted him.

5. For Ali and Sultan, the fresh evidence could affect the jury’s assessment of the prosecution evidence that they emerged from the car armed. If accepted, it could support their accounts that weapons were acquired only after another person introduced one into the conflict, and could lead a jury to take a more favourable view of self-defence. Their convictions were therefore also unsafe.

6. The alleged shortcomings in the summing-up had some rough edges but did not affect conviction safety. The appeals succeeded solely because of the fresh evidence.

• Court of Appeal (Criminal Division): allowed the appeals against conviction, quashed the convictions and ordered a retrial: [2008] EWCA Crim 2565.
• Crown Court at Cardiff: convicted all three appellants on 3 August 2007 of two offences of causing grievous bodily harm with intent.