Carter, R. v

On an appeal founded on fresh evidence, the question is whether the evidence might reasonably have affected the jury’s decision to convict and thereby rendered the conviction unsafe. The court must assess the fresh evidence in the context of the whole case. A change in expert understanding of the mechanism or timing of injury will not make a conviction unsafe where it does not undermine the essential force of the other evidence, including reliable admissions and evidence inconsistent with an alternative account.

The appellant had been convicted at Liverpool Crown Court in 1998 of the murder of a young child in his care. He appealed by leave on the basis of fresh medical evidence concerning the timing and mechanism of the fatal head injuries, including the significance of shaking and the possibility of a lucid interval.

The statutory conditions concerning freshness, credibility and the reason for non-use at trial were conceded. The central issue was whether the new evidence might reasonably have affected the jury’s verdict under the test in Pendleton [2001] UKHL 66.

1. Appeal dismissed. The conviction remained safe.

2. The parties accepted that the preliminary requirements for admitting fresh evidence under section 23 of the Criminal Appeal Act 1968 were met. Applying the test in Pendleton [2001] UKHL 66, the issue was whether the fresh medical evidence might reasonably have affected the jury’s decision to convict.

3. The court accepted that aspects of the trial pathologist’s evidence could no longer be maintained. In particular, the evidence did not establish that shaking had caused death or that the fatal injuries necessarily occurred after 6 pm. The pathology could establish only that the fatal blunt trauma occurred within hours of death.

4. Those changes did not materially assist the appellant. The agreed and fresh evidence established that death resulted from severe blunt trauma to the head. The injuries around the ears were more likely to have resulted from blows and would have caused immense pain. Although rare cases showed that a child could remain conscious after a fatal injury, the clinical evidence was that this child would have displayed acute pain and distress if the injury had been inflicted before she returned to the appellant’s care. The evidence did not show such distress.

5. The jury had also heard evidence capable of excluding the alternative suggestion that the injury had been inflicted before 6 pm. The appellant’s repeated confessions, made after his false account was exposed, were compelling. His later retraction and explanation were unsupported, and his subsequent letters accepted responsibility for the fatal injuries.

6. The new evidence altered details of causation but did not undermine the essential force of the confession and surrounding evidence. A jury properly directed with that evidence would not reasonably have returned a different verdict.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2009] EWCA Crim 1700.
• Liverpool Crown Court: On 1 December 1998, the appellant was convicted of murder and sentenced to life imprisonment with a recommended minimum term of 10 years.