Marsh, R v

Where evidence is admitted by agreement under the Criminal Justice Act 2003, the appellate question is whether its admission or the judge’s directions rendered the conviction unsafe. Evidence of unusual sexual conduct may be relevant to an alleged influence over another participant, and evidence of a proposed false alibi may be relevant to planning. A direction need not spell out every common-sense inference where the jury has been adequately warned not to decide the case on moral disapproval or prejudice.

A warning about a co-accused’s evidence is sufficient unless it is manifestly inadequate. Fresh evidence should not be received under section 23 of the Criminal Appeal Act 1968 unless it is necessary or expedient in the interests of justice and could arguably support allowing the appeal.

Stephen Marsh was convicted at Swansea Crown Court, before Roderick Evans J and a jury, of procuring the murder of his wife by Rebecca Harris. He appealed against conviction on grounds concerning the admission and direction on evidence of cutting during sexual activity and a proposed false alibi; warnings about Harris’s evidence; a Lucas direction; and proposed fresh evidence about alcohol, mobile-phone texts and a psychiatric report on Harris.

The central issue was whether any alleged evidential, procedural or directional error, separately or cumulatively, rendered the murder conviction unsafe.

1. Appeal dismissed. None of the grounds, individually or collectively, made the conviction unsafe.

2. Assuming the cutting and false-alibi evidence was bad-character evidence, it was admissible by tacit agreement under section 101(1)(a) of the Criminal Justice Act 2003. It was relevant respectively to whether the appellant exercised controlling influence over Harris and to whether the killing and alibi had been planned. The conviction could therefore be unsafe only if the jury directions left the jury unable to use that evidence properly.

3. The directions were adequate. The judge told the jury that it was not a court of morals, that they must decide the case on the evidence relating to murder, and that they must not be affected by feelings about the appellant’s conduct or lifestyle. In context, the relevance of both categories of evidence was clear. Applying R v Campbell [2007] 1 WLR 2798, an omission amounting only to further common-sense assistance did not warrant allowing the appeal.

4. The warning on Harris’s evidence was not manifestly inadequate. The judge required particular care, identified her admitted lies and the possible incentive to minimise her own responsibility, and the jury knew of her refusal to waive privilege. There was no evidential basis for a further warning that undisclosed material existed.

5. The Lucas direction was proper because the appellant’s lies about cutting concerned a relevant issue and the judge warned that lies alone did not prove guilt.

6. The proposed fresh evidence concerning alcohol, the mobile telephone and the psychiatric report was neither necessary nor expedient in the interests of justice under section 23 of the Criminal Appeal Act 1968. It could not undermine the compelling telephone and text-message evidence of joint involvement in the murder.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2009] EWCA Crim 2696.

• Crown Court at Swansea: Roderick Evans J and a jury convicted the appellant of murder on 2 April 2007. He was sentenced on 18 May 2007 to life imprisonment with a minimum term of 18 years, less time on remand.