Ahmed v R.

A conviction is not rendered unsafe merely because an expert witness has later been found unreliable in other proceedings. The appellate court must assess the precise nature and importance of that expert’s evidence in the individual trial. Where independent expert evidence and other unchallenged evidence show that the disputed evidence did not materially affect the verdict, the conviction remains safe.

The court also explained that, when fresh evidence is relied on, the decisive question is whether it causes the appellate court itself to doubt the safety of the conviction. The possible effect of the material on the jury is a useful check, but not the determinative test.

The appellant was convicted of murdering his daughter’s boyfriend, whose body was found after he had been asphyxiated. The prosecution alleged a planned killing at the appellant’s factory. The appellant’s late written basis of plea admitted binding and gagging the deceased, but asserted that death resulted accidentally when he rolled into polythene overnight.

The Criminal Cases Review Commission referred the conviction after disciplinary findings concerning Dr Michael Heath, the pathologist who had conducted the post-mortem and given evidence at trial. Two other pathologists had also testified. The issue was whether the later concerns about Dr Heath’s reliability rendered the murder conviction unsafe.

1. Appeal dismissed. The court held that the conviction was safe. The later disciplinary findings about Dr Heath required a careful review of his evidence, but did not themselves undermine every conviction in which he had appeared.
2. The pathological evidence did not lie at the heart of the issue. There was no dispute that the deceased died by asphyxia. On the crucial question of whether the appellant’s account was pathologically possible, both Dr Shorrock for the Crown and Dr Borek for the defence disagreed with Dr Heath. They said that the pathological findings did not themselves disprove accidental asphyxiation.
3. Dr Heath’s disputed views about bruising, ligatures and the suggested movement into polythene did not materially establish that the appellant’s account was false. The decisive evidence was instead the unsupported and late character of that account, together with unchallenged telephone evidence showing that the appellant returned to the factory at 21:31 despite claiming that he had left at 20:00 and did not return until the following morning.
4. Obiter, the court confirmed the approach to fresh evidence stated in Pendleton [2001] UKHL 66 and Dial [2005] UKPC 4. The statutory safety question is for the Court of Appeal itself. The likely impact of fresh material on the jury is a check on that assessment, not a substitute for it.

• Court of Appeal (Criminal Division): Appeal from a murder conviction at the Central Criminal Court before His Honour Judge Stewart QC. The appeal was dismissed and the conviction was held safe.
• Criminal Cases Review Commission: Referred the conviction because of later disciplinary findings concerning Dr Heath’s forensic pathology evidence.