Dizaei v R.

Under section 23 of the Criminal Appeal Act 1968, the Court of Appeal must decide for itself whether fresh evidence renders a conviction unsafe. It does not retry the defendant or substitute itself for the jury. The likely effect of the evidence on the jury is only a check on the court’s own safety assessment and is not determinative.

Evidence will ordinarily not be received where a defendant deliberately chose not to pursue it at trial. It may nevertheless be fresh where the court cannot be satisfied that such a choice was made. A conviction must be quashed where material evidence seriously discredits a principal witness and the appellate court cannot safely conclude, from the limited record before it, that the verdict remains soundly based.

The appellant, a senior serving police officer, was convicted at Southwark Crown Court in February 2010 of misconduct in a public office and acts intended to pervert the course of justice. The prosecution alleged that, during a personal dispute, he arrested the principal Crown witness without justification.

After conviction, material emerged which substantially discredited that witness’s general credibility. It concerned false details maintained about his origins and age, and evidence suggesting serial benefit fraud. The court had to decide whether the material was properly fresh evidence and, if so, whether the conviction remained safe despite CCTV, a recorded 999 call, contemporaneous documents and other evidence independent of the witness.

Appeal allowed. The court quashed both convictions and ordered a retrial.

1. The court received the new material under section 23 of the Criminal Appeal Act 1968. Evidence which a defendant deliberately chose not to deploy, or deliberately chose not to investigate, will ordinarily afford no ground of appeal. Here, however, the court could not be satisfied that the appellant knew the crucial fact that the witness’s father had died, or that he made a deliberate forensic decision not to investigate the resulting benefit evidence. The material was therefore fresh.

2. The court adopted the approach in Pendleton [2001] UKHL 66, Dial [2005] UKPC 4, and Burridge [2010] EWCA Crim 2847. The statutory question was for the Court of Appeal itself: whether the conviction was safe. The possible impact of the evidence on a jury could assist as a check, but did not decide the issue. The court could not conduct a retrial, because it had not heard the whole case or the witnesses.

3. The fresh material did not directly prove what occurred at the arrest. It did, however, seriously affect the general reliability of a principal Crown witness. There was substantial evidence independent of that witness, including CCTV, the 999 recording and the appellant’s contemporaneous account. Yet the trial court had not assessed that evidence alongside the new credibility material or any consequential evidence that might become admissible.

4. The changed case was too different for the appellate court, acting on paper, to be satisfied that the verdict was soundly based. The convictions were accordingly unsafe. A retrial was in the interests of justice, to take place at Southwark Crown Court or another venue arranged by the presiding judges; the appellant was to be arraigned within two months unless the court otherwise directed.

• Court of Appeal (Criminal Division) — Allowed the appeal, quashed the convictions and ordered a retrial: [2011] EWCA Crim 1174.
• Southwark Crown Court — A jury convicted the appellant in February 2010 of misconduct in a public office and acts intended to pervert the course of justice. No lower-court citation was stated.