Foran v R

A conviction is unsafe where fresh material gives serious cause to doubt the reliability of police evidence that was critical to the verdict, particularly when assessed with an admitted material disclosure failure. The appellate court asks whether the material, had it been available, might reasonably have affected the jury’s decision; it does not determine guilt or innocence.

Evidence from a co-accused’s interview is not evidence against another defendant unless it is adopted in admissible evidence. Even apparently powerful corroborative circumstances must be assessed with the credibility of the witnesses and the fairness of the trial process before a conviction can be treated as safe.

The appellant had been convicted at Birmingham Crown Court in 1985 of robbery and conspiracy to rob. Two earlier attempts to challenge the convictions had failed. The Criminal Cases Review Commission referred the convictions again after fresh material emerged concerning Detective Inspector Matthews, a member of the West Midlands Police Serious Crime Squad, and Detective Constable Preston, who had both given evidence of an alleged confession.

The reference also concerned the earlier non-disclosure of a forensic report showing that implements found in the appellant’s car could not have been used to gain entry to the robbed premises. The central issue was whether the cumulative effect of the fresh credibility material, the disclosure irregularity and the remaining evidence left either conviction safe.

1. Appeal allowed. The convictions for robbery and conspiracy to rob were unsafe and were quashed.

2. The court adopted the approach in O’Toole & Murphy [2006] EWCA Crim 2123. The objective when assessing material capable of impeaching a police witness was to give the jury a fair and balanced picture of reliability. Relevant proven misconduct, disciplinary findings and circumstances in another case which logically showed that an officer’s evidence had been disbelieved could properly found cross-examination. The categories were not rigid and the overriding requirement was trial fairness.

3. Fresh material concerning DI Matthews, including cases involving fabricated or allegedly fabricated confessions and his disciplinary history, could properly have been used to challenge his credibility. It could not fairly be dismissed as mere muck-raking. DC Preston was not an independent untainted source of support: his role in the unjustified non-disclosure of the forensic report and the alteration of his notebook record raised serious credibility concerns.

4. The robbery conviction depended critically on the police account of the appellant’s interview. The court could not know what effect a properly informed challenge to both officers would have had on the jury. Applying the safety approach stated in Pendleton [2001] UKHL 56, the fresh material might reasonably have induced doubt. The conviction was therefore unsafe; the court was not deciding whether the appellant was innocent.

5. For the conspiracy count, Addison’s interview account was not evidence against the appellant. Only Addison’s later sworn adoption of that account had probative force. The appellant’s attendance at the predicted rendezvous with potentially suitable tools was capable of corroborating that account. However, Addison had limited credibility, the police evidence could have been substantially undermined, and the disclosure irregularity remained material. The combined evidence did not justify a conclusion that the conviction was safe.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court allowed the third appeal and quashed both convictions: [2013] EWCA Crim 437.
• Court of Appeal (Criminal Division): In 1995, following a Home Secretary reference under Criminal Appeal Act 1968, the court dismissed a second appeal despite a material disclosure irregularity, applying the then proviso to section 2.
• Court of Appeal (Criminal Division): In 1986, the court refused a renewed application for leave to appeal against conviction and to adduce fresh evidence.
• Birmingham Crown Court: In 1985, the appellant was convicted of robbery and conspiracy to rob.