Kenyon v R.

Under section 23 of the Criminal Appeal Act 1968, the decisive question is whether receiving fresh evidence is necessary or expedient in the interests of justice. The inquiry is highly fact-specific. Evidence deliberately withheld at trial must be sufficiently strong to justify displacing the public interest in a single trial at which both sides present their whole cases.

Fresh expert evidence on a risk of false confession should not be admitted where, viewed as a whole, it would be unlikely to assist the defence or render the conviction unsafe. A possible procedural challenge to confession evidence must also be assessed by reference to the reliability of the particular admission and the overall fairness of the proceedings.

The appellant was convicted at Leeds Crown Court before Grigson J and a jury in July 2003 of killing her 89-year-old grandmother. The prosecution case depended on admissions that the appellant had smothered her grandmother. The appellant maintained that the admissions were false.

Following a reference by the Criminal Cases Review Commission, she sought to adduce new psychiatric and psychological evidence concerning personality disorder, suggestibility, compliance and the risk of false confessions. She also submitted that the evidence could have supported exclusion of confessions under sections 76 or 78 of the Police and Criminal Evidence Act 1984.

The central issue was whether the proposed evidence should be received in the interests of justice and, if so, whether it could undermine the safety of the conviction.

1. The court declined to receive the proposed fresh evidence and dismissed the appeal. The statutory question under section 23 of the Criminal Appeal Act 1968 was whether receipt was necessary or expedient in the interests of justice. That question was highly fact-specific: Erskine [2009] EWCA Crim 1425.

2. The new evidence gave a fuller diagnosis of emotionally unstable personality disorder and indicated a greater statistical risk of false confession. It did not establish that the appellant was likely to have made false admissions. The experts accepted that the same personality traits were consistent with aggression, violence and lying to avoid responsibility.

3. The appellant’s conduct in police interviews was powerful evidence of resistance rather than compliance. She firmly denied the allegations, including a suggested mercy-killing account, before advancing an exculpatory account that she later accepted was false. The proposed expert inquiry would also have exposed substantial material tending to show untruthful denials and conduct adverse to her defence.

4. The court considered that an argument might have been mounted under section 76 of the Police and Criminal Evidence Act 1984 concerning the confession to Carol if prolonged accusations had rendered it unreliable. It rejected any arguable basis for excluding the appellant’s volunteered admission that she had confessed to her mother. Even if there had been an inadvertent breach of Code C relevant to section 78, fairness required the jury to be able to assess the appellant’s resistance or compliance during the police interviews.

5. The evidence had been deliberately withheld at trial for sound tactical reasons and would still be more damaging than helpful. A shifted balance caused by improved expression of the same evidential strand was insufficient. The evidence was not likely to afford grounds for quashing the conviction.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court refused to admit fresh expert evidence and dismissed the appeal against conviction: [2010] EWCA Crim 914.
• Leeds Crown Court: The appellant was convicted by a jury before Grigson J in July 2003.