Synnott & Ors, R v

Where fresh evidence is received on a conviction appeal, its admission does not determine the result. The appellate court must assess the evidence, decide the extent to which it should be accepted, and evaluate its importance with the material before the trial jury. It must then decide whether the conviction is unsafe under section 2(1) of the Criminal Appeal Act 1968.

Inconsistency between fresh evidence and part of the original evidence does not, without more, discredit all of the original evidence. The evidence must be assessed as a whole, including independent support for the disputed accounts. If the fresh evidence would strengthen rather than undermine the prosecution case, the conviction remains safe.

The appellants were convicted at Manchester Crown Court in 2003 of conspiracy to murder Paul Reilly. Their case depended materially on evidence from Graham Fullerty about admissions and confessions. They had public alibis at the time of the killing, but the Crown alleged that these had been arranged as part of the conspiracy.

Subsequent trials of four other alleged conspirators relied principally on evidence from Kassam Essa. His account differed from Fullerty’s on the acquisition and disposal of the firearm. The appellants contended that this fresh evidence undermined Fullerty’s credibility and rendered their convictions unsafe.

Andrew Synnott appealed with leave. Paul Arden’s appeal followed a Criminal Cases Review Commission reference under section 9(1) of the Criminal Appeal Act 1995. Michael Synnott sought a substantial extension of time and leave to appeal.

1. All three appeals were dismissed. The court granted Michael Synnott the necessary extension of time and leave to appeal. It received Kassam Essa’s evidence as fresh evidence because this was expedient in the interests of justice under section 23 of the Criminal Appeal Act 1968.

2. Receipt of fresh evidence did not predetermine the appeals. Following the approach identified in R v Hakala [2002] EWCA Crim 730, the court had to assess whether and to what extent the evidence should be accepted, evaluate it against the trial material, and decide whether the convictions were unsafe. This was the jury impact exercise associated with Pendleton [2002] 1 WLR 72.

3. The court approached both Essa and Fullerty with healthy scepticism. Essa had an interest in confessing and implicating others in the hope of benefiting on release. Fullerty had his own motives, including the prospect of a reward. Their evidence was nevertheless capable of belief and had to be assessed with the other evidence.

4. The accounts conflicted about who obtained and disposed of the firearm. That conflict did not fatally undermine all of Fullerty’s incriminating evidence. Both accounts supported the existence of a conspiracy involving a 9 mm firearm. Essa’s evidence of the meeting at which the murder was decided, the appellants’ alibis, telephone evidence, motive, and other supporting circumstances reinforced rather than displaced the case against them.

5. Considering all the evidence, including the more circumstantial case against Michael Synnott, the court was satisfied that each conviction remained safe for the purposes of section 2(1) of the Criminal Appeal Act 1968.

• Court of Appeal (Criminal Division): In [2011] EWCA Crim 578, the court granted Michael Synnott an extension of time and leave to appeal, received fresh evidence, and dismissed all three conviction appeals.
• Court of Appeal (Criminal Division): On 20 December 2004, the full court refused Paul Arden’s renewed application for leave to appeal against conviction. His present appeal proceeded following a reference under section 9(1) of the Criminal Appeal Act 1995.
• Crown Court at Manchester: In 2003, Poole J and a jury convicted the appellants of conspiracy to murder and imposed life sentences with minimum terms.