Amin v R.

On an appeal based on fresh evidence, the central question is whether the evidence might reasonably have affected the jury’s decision to convict. Put another way, the evidence must be assessed to determine whether it raises a reasonable doubt about guilt. Where new evidence materially undermines an explanation by which apparently conflicting identification evidence could have been reconciled, a conviction may no longer be safe. The significance of the evidence cannot be discounted by treating it as affecting only one of two witnesses where the prosecution relied on their identifications as mutually supportive.

The appellant was convicted of robbery at the Crown Court at Peterborough. The prosecution case depended on identification by two witnesses, who said that he was one of the robbers. His earlier applications for leave to appeal were refused: [2011] EWCA Crim 2932.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the court received police photographs taken before the robbery under section 23 of the Criminal Appeal Act 1968. The photographs showed that the appellant had long been balding and had not had the full beard described by one identifying witness. The central issue was whether that fresh evidence made the conviction unsafe.

1. The appeal was allowed. Having admitted the earlier police photographs as fresh evidence, the court held that the verdict could not be regarded as safe.

2. The court applied the question stated in R v Pendleton [2001] UKHL 66 and Dial v State of Trinidad and Tobago [2005] 1 WLR 1660: whether the fresh evidence might reasonably have affected the jury’s decision to convict, or raised a reasonable doubt about guilt. The photographs were properly admitted under section 23 of the Criminal Appeal Act 1968. Their admission did not depend on a finding that the prosecution had failed in its disclosure duty.

3. The photographs substantially undermined the prosecution explanation that the appellant could have matched the witness’s description only because he had shaved shortly before his arrest. They showed that, well before the robbery, he was balding and had only the pencil-line beard apparent on his arrest photograph. The VIPER procedures did not provide a convincing answer because each witness might have selected the appellant from having seen him in the street after the robbery. The prosecution had relied on the two identifications as mutually supportive, so the impact on one witness’s evidence could not be isolated and dismissed.

4. The alleged breach of Code D was inconsequential. The remaining identification, disclosure and investigation points either had been available at trial, were speculative, or did not weaken the court’s conclusion on the photographs. In particular, the police and prosecution were not obliged to help the defence trace potential defence witnesses.

5. The prosecution’s application for a retrial was refused. The appellant had served three years’ imprisonment, and neither justice nor any other public interest required a further trial.

• Court of Appeal (Criminal Division): Following a Criminal Cases Review Commission reference, the court allowed the appeal against conviction and refused a retrial: [2015] EWCA Crim 174.

• Court of Appeal (Criminal Division): The appellant’s renewed application for leave to appeal was refused: [2011] EWCA Crim 2932.

• Crown Court at Peterborough: The appellant was convicted of robbery before a Recorder and jury on 9 February 2011. No citation for the Crown Court judgment is stated.