Cundell, R. v

Where one prisoner gives evidence against another, the trial judge must be alert to evidence-based indications of an improper motive. If such indications exist, the judge should identify them for the jury and advise caution before the evidence is accepted. There is no automatic requirement for a warning in every case.

Whether an omitted warning makes a conviction unsafe depends on the case as a whole. A conviction remains safe where cogent independent evidence supports the witness and the omission could not realistically affect the verdict.

The appellant was convicted at Norwich Crown Court, after a seven-day trial before Judge Jacobs, of soliciting the murder of his former wife and of two counts of inciting fellow prisoners to commit perjury.

He appealed against conviction. He contended that the judge should have warned the jury to treat prosecution evidence from fellow prisoners with caution because of possible improper motives. He also relied on fresh evidence about one witness and challenged a propensity direction based on his earlier conviction for soliciting his former wife’s murder.

1. Appeal dismissed. The convictions were safe.

2. The Court accepted that, in this case, the judge should have given a general warning about the possible taint arising from improper motives of prisoner witnesses. A judge must be alert to that possibility. Where the evidence or surrounding circumstances indicate an improper motive, the jury should be directed to those indications and advised to be cautious before accepting the evidence. The Court did not decide that a general warning is invariably required in every case of this kind. The approach in R v Pringle [2003] UKPC 9 and Benedetto and Labrador v The Queen [2003] 1 WLR 64 governed that issue.

3. An omission of a general or specific warning renders a conviction unsafe only if it could affect the verdict on the facts of the case. Clelland’s account was supported by cogent independent evidence, including his detailed note containing the former wife’s car registration number. The appellant’s recorded discussion of methods of killing his former wife, and his admissions concerning discussions with Clelland, provided further substantial support. The omission therefore could not affect the safety of the conviction for solicitation.

4. The recorded conversation involving McCready effectively proved the offences of attempting to pervert the course of justice. There was no suggestion that the recording itself was tainted.

5. Under Criminal Appeal Act 1968, s 23, the Court received the proposed fresh evidence de bene esse. Even assuming the truth of McCready’s allegations concerning the police officer, the limited evidence he gave relevant to the solicitation count could not affect the conviction’s safety.

6. The earlier conviction for soliciting the murder of the same former wife was exceptionally relevant to an important issue between prosecution and defence. The judge was entitled to direct the jury that it could bear on propensity, while making clear that bad character alone could not justify conviction.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction.

• Norwich Crown Court: on 28 September 2006, following a seven-day trial before Judge Jacobs, convicted the appellant of soliciting murder and two offences of attempting to pervert the course of justice.