R v Nealon

Fresh evidence may render a conviction unsafe if, viewed with the trial evidence, it might reasonably have led the jury to return a different verdict. Under section 23 of the Criminal Appeal Act 1968, the Court of Appeal may receive necessary and expedient fresh expert evidence in the interests of justice.

DNA from an unidentified male found in areas of recently acquired clothing compatible with the assault, coupled with weaknesses in identification evidence and the exclusion of sensible innocent sources, could create a real possibility that another man committed the offence. The evidence need not conclusively disprove the prosecution case before the conviction is unsafe.

The appellant was convicted at Hereford Crown Court in 1997 of attempted rape. His first appeal against conviction was dismissed by the Full Court in 1998.

Following a reference by the Criminal Cases Review Commission, the Court of Appeal considered fresh DNA evidence obtained from the complainant’s clothing. The evidence identified DNA from an unknown male on the blouse and brassiere, and did not support the proposition that the appellant had contributed to those deposits.

The central issue was whether the fresh DNA evidence, assessed alongside the identification evidence at trial, rendered the conviction unsafe.

1. Appeal allowed; conviction quashed. The court admitted the fresh expert DNA evidence under section 23 of the Criminal Appeal Act 1968. Its receipt was necessary and expedient in the interests of justice.

2. The question was whether the new evidence might reasonably have led the jury to reach a different verdict. Applying R v Pendleton [2001] UKHL 66, the court held that this was the proper inquiry into the safety of the conviction.

3. The DNA did not conclusively eliminate the appellant or wholly remove the prosecution case. Nonetheless, an unknown male’s DNA was found in key areas of clothing which the attacker could have touched or kissed during the assault. The clothing was recently bought, possibly from different shops and carried separately. The complainant’s boyfriend, relevant officers and scientists had been excluded as sources.

4. There were also substantial weaknesses in the identification evidence, including uncertainty by some witnesses and the absence of helpful evidence that the appellant had the prominent forehead lump described by witnesses. In those circumstances, a jury could reasonably have concluded that the unknown male, rather than the appellant, was the attacker.

5. The conviction was therefore unsafe because the new evidence could well have resulted in an acquittal. The court had allowed the appeal and quashed the conviction at the oral hearing.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court allowed the appeal and quashed the conviction: [2014] EWCA Crim 574.

• Full Court: The appellant’s first appeal against conviction was dismissed on 27 January 1998.

• Hereford Crown Court: The appellant was convicted of attempted rape on 22 January 1997 and was sentenced to life imprisonment on 12 March 1997.