Hussain v R.

Fresh expert evidence admitted under section 23(2) of the Criminal Appeal Act 1968 does not render convictions unsafe where it concerns an issue that was not necessary to the jury’s verdict and the remaining evidence provides a firm basis for conviction. A participant in a joint venture to burn a house may be convicted without proof that he personally introduced the accelerant, if the jury could properly be sure that he joined the venture and appreciated that a co-venturer might burn the house.

The appellant was convicted at Leeds Crown Court of conspiracy to commit arson with intent to endanger life and eight counts of manslaughter arising from a deliberate petrol-bomb attack on an occupied house. He maintained that he had joined only a plan to burn vehicles and had neither agreed to attack the house nor poured petrol through its letterbox.

At trial, expert evidence addressed petrol additives found in debris from the hallway. On appeal, the appellant relied on fresh scientific evidence to contend that the original evidence of petrol contamination was flawed and that the jury would consequently have disbelieved his account of his limited intent.

The central issue was whether the fresh evidence rendered the convictions unsafe.

Decision

1. The court admitted the fresh scientific evidence under section 23(2) of the Criminal Appeal Act 1968, but dismissed the appeal. The convictions remained safe.

2. The trial judge had not left the case on the footing that the appellant could be convicted only if the jury found that he had poured petrol from his container through the front door. The jury had been directed that a defendant who was present merely to burn a car was not responsible if the burning of the house was fundamentally different from what he realised might occur. Conversely, conviction was open if the jury was sure that he personally joined, or was party to, a venture to burn the house and realised that another participant might do so.

3. The court considered that the jury were plainly entitled to conclude that the four men who left the cars together, carrying petrol bombs, a crowbar and a petrol container, were engaged in a joint venture to attack both the cars and the house. On that basis, proof of the identity of the person who poured petrol through the letterbox was immaterial.

4. The fresh evidence reduced the strength of the original scientific case concerning MTBE in the hallway, particularly because of possible contamination. However, reliable evidence of MTBE in the hallway remained. The issue raised by TAME had also been live at trial and had been fairly left to the jury as evidence they could, but need not, resolve.

5. There was in any event a formidable body of evidence, independent of the disputed scientific issue, supporting the conclusion that the appellant participated in the joint enterprise. The new evidence therefore did not undermine the safety of the convictions.

• Court of Appeal (Criminal Division) — admitted fresh evidence under section 23(2) of the Criminal Appeal Act 1968 but dismissed the appeal: [2009] EWCA Crim 2556.

• Leeds Crown Court — following trial, the appellant was convicted of conspiracy to commit arson with intent to endanger life and eight counts of manslaughter. He received concurrent sentences, the longest being 18 years’ imprisonment.