Barron, R. v

A criminal trial is not rendered fundamentally unfair merely because a series of admissible and probative rulings creates a complex body of evidence. The court must assess the alleged disadvantages cumulatively, including lost exhibits, unavailable witnesses and investigative shortcomings. A stay is unwarranted where the material evidence remains capable of fair testing and the alleged prejudice is speculative or can be addressed by the trial process.

Evidence of bad character may properly be admitted under Criminal Justice Act 2003 where it is relevant to a propensity and its admission does not adversely affect fairness. A summing up need not recite every item of evidence, provided that it is careful, balanced and does not create a material risk of an unsafe conviction.

The appellant was convicted at Leeds Crown Court before Holroyde J of murdering his former wife in January 1994 and was sentenced to life imprisonment. His earlier conviction had been quashed after fresh scientific evidence about blood aerosols became available, and a retrial was ordered.

At the retrial the Crown relied on circumstantial evidence, including blood staining, the appellant’s movements and evidence of obsessive jealousy and threats towards former partners and their new relationships. The appellant alleged that another man may have committed the murder.

On appeal, he challenged the admission of bad-character and other evidence, the refusal to stay the retrial as an abuse of process, and aspects of the summing up. The central issue was whether the cumulative effect of those matters made the trial unfair or the conviction unsafe.

1. Appeal dismissed. The court held that the appellant had received a fair trial and that there was no ground for treating the conviction as unsafe.

2. The trial judge was entitled to admit evidence of the appellant’s conduct towards former partners and their new partners. The evidence was capable of showing a propensity to react with obsessive jealousy, surveillance and threats of violence when a former partner formed a new relationship. Its admission under section 101(1)(d) of the Criminal Justice Act 2003 did not adversely affect fairness. Evidence concerning the deceased was also admissible as important explanatory material under sections 101(1)(c) and 102.

3. The judge correctly refused to exclude the late-confirmed evidence of the appellant’s damaging remark under section 78 of the Police and Criminal Evidence Act 1984. Its reliability was for the jury, which could assess the circumstances in which it emerged through cross-examination.

4. The cumulative abuse-of-process argument failed. The defence experts at the first trial had examined the subsequently lost jacket and knife, and the contemporaneous forensic notes and photographs preserved the material basis for expert opinion. Any potential benefit from later DNA or fibre testing was speculative. The unavailable witness, the admitted evidence and the asserted shortcomings in the investigation of the alternative suspect did not prevent a fair trial.

5. The summing up was careful, thorough and fair. The judge was not required to rehearse every item of evidence. The alleged omissions and inaccuracies were either immaterial or did not affect the safety of the verdict. The scientific evidence concerning possible resuscitation aerosols did not adequately explain the distribution of blood spots on the appellant’s clothing and shoes.

• Court of Appeal (Criminal Division): dismissed the appeal against the retrial conviction: [2010] EWCA Crim 2950.
• Crown Court at Leeds: following a retrial before Holroyde J in December 2009, the appellant was convicted of murder and sentenced to life imprisonment.
• Court of Appeal (Criminal Division): in March 2009, quashed the appellant’s earlier 1995 conviction after fresh scientific evidence concerning blood aerosols and ordered a retrial.
• Sheffield Crown Court: convicted the appellant of murder in October 1995.