Pluck v R

Fresh evidence which removes an apparently incriminating feature of the prosecution case does not, without more, make a conviction unsafe. The Court of Appeal must review the whole case and, while respecting the jury’s role, consider whether the fresh evidence might reasonably have affected the verdict.

The discretion to admit fresh evidence under section 23 of the Criminal Appeal Act 1968 is fact-specific and governed by the interests of justice. Expert evidence which was available at trial need not be admitted where it was reasonably and skilfully deployed by other means and its formal admission would add nothing material.

The appellant was convicted at Sheffield Crown Court in 1996 of murdering two sisters during a burglary at their home. This was his second appeal against conviction and followed a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995.

Fresh DNA evidence showed that a cigarette end found inside the victims’ home bore DNA matching the co-accused, but not the appellant. At trial, the prosecution had relied on the cigarette ends as evidence capable of linking the appellant to the ransacking of the property. The appellant also sought to adduce fresh psychiatric evidence concerning McCann, a prosecution witness who said that the appellant had made admissions to him in prison.

The central issue was whether the fresh DNA evidence, and the proposed psychiatric evidence, rendered the murder convictions unsafe.

1. Appeal dismissed. The court held that the fresh psychiatric evidence concerning McCann should not be received. The discretion under section 23 of the Criminal Appeal Act 1968 is broad and fact-specific, but the interests of justice did not favour admission. Trial counsel had skilfully used the available psychiatric material to challenge McCann as manipulative, dishonest and self-interested. Calling psychiatric evidence would not have added anything material and could have undermined that forensic approach.

2. Under section 2(1) of the Criminal Appeal Act 1968, the question was whether the convictions were unsafe. Applying the guidance in Pendleton [2001] UKHL 66, [2002] 1 WLR 72, the court had to respect the jury’s primary role while testing whether the new evidence might reasonably have affected the verdict. The prosecution’s former reliance on the cigarette ends justified an anxious and thorough review, but did not itself require the convictions to be set aside.

3. The only safe approach was to treat the two cigarette ends found inside the house as having no evidential value against the appellant. Nevertheless, no reasonable jury could have failed to conclude from the remaining evidence that he was present during the murders. His alibi accounts were inconsistent and false. There was strong evidence of a joint burglary, theft after the killings, a bonfire at his home containing incriminating property, and concerted false explanations for the co-accused’s hand injury.

4. That evidence also permitted no reasonable doubt that the appellant was a party to the murders, whether by personal violence or by assistance or encouragement in pursuit of the burglary. The absence of evidence from him capable of explaining those incriminating features was significant. The convictions therefore remained safe despite the fresh DNA evidence.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the court dismissed the appellant’s second appeal and upheld his convictions.
• Sheffield Crown Court: The appellant was convicted on 30 May 1996 of two murders.