Hurley, R v

On an application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968, the court must assess its credibility, its potential to found an appeal, admissibility, and the explanation for its absence at trial. The criminal process ordinarily permits one trial. A defendant who chose not to testify at trial will face a substantial difficulty in showing a reasonable explanation for later relying on his own account.

Post-conviction statements said to exculpate a co-offender require particular caution. Their reliability, consistency with the trial evidence, and capacity to affect the safety of the conviction must be closely scrutinised. Fresh material that is incredible or unable to undermine a properly directed jury’s verdict should not be received.

In 1989, Hurley was convicted at Southwark Crown Court of murder and firearms offences arising from an armed robbery in which his co-accused, McGhee, shot and killed an off-duty police officer. Hurley admitted acting as the getaway driver but denied knowing that firearms would be used. He did not give evidence at trial.

More than two decades later, after escaping custody and later returning to the United Kingdom, Hurley sought an extension of time, leave to appeal, and permission under section 23 of the Criminal Appeal Act 1968 to adduce fresh evidence. He relied on his own revised account and alleged statements by McGhee to other prisoners that Hurley had not known about the guns. The central question was whether that material should be received and could render the conviction unsafe.

1. The court refused the applications. It declined to receive the proposed fresh evidence and held that nothing before it undermined the safety of the murder conviction.

2. Under section 23 of the Criminal Appeal Act 1968, the court considered credibility, whether the evidence could afford a ground of appeal, admissibility, and the reason why it had not been adduced at trial. The court endorsed the principle restated in R v Simpson [2010] EWCA Crim 1528 that criminal proceedings ordinarily involve one trial. A defendant who made a tactical choice not to give evidence faces particular difficulty in establishing a reasonable explanation for relying on that account after conviction.

3. Hurley had not shown such an explanation. On his own account, he had negotiated for months with his co-defendants and obtained their agreement that he should not testify. He could have given evidence without naming others, or sought advice from his legal team about his difficulties. Fear of McGhee, even if present, did not satisfactorily explain his tactical silence.

4. Hurley’s proposed account was incredible. It had changed materially over time, including as to the weapons expected and when he learned of the shooting. It was inconsistent with the objective evidence of a planned armed robbery and his possession of the firearms and other incriminating material. The court therefore declined to receive his evidence.

5. The alleged hearsay statements by McGhee would not in any event afford a ground of appeal. Applying the caution expressed in R v Mackin [2007] EWCA Crim 1844, the court found serious reasons to doubt their reliability. McGhee was dead and could not be tested, the witnesses’ recollections were remote and unreliable, and the alleged statements conflicted with his trial account and the forensic evidence.

6. The trial judge had correctly directed that Hurley could be convicted of murder only if the jury were sure that he knew of the loaded guns and agreed to their use to kill or cause really serious bodily harm if necessary. There was a proper evidential basis for that conclusion. The applications were refused.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 1901, the court refused Hurley’s applications for an extension of time, leave to appeal, and admission of fresh evidence. The conviction remained undisturbed.
• Southwark Crown Court: On 17 May 1989, Hurley was convicted of murder and firearms offences following the armed robbery in which an off-duty police officer was killed.