Embleton, R. v

In a non-disclosure appeal, the court must first decide whether the withheld material ought to have been disclosed. If it should, the court must then decide whether the conviction is unsafe in the light of the non-disclosure. The assessment requires the court to consider the effect of the material on the prosecution evidence and the strength of the remaining admissible case.

Where a contemporaneous undisclosed record significantly undermines a pivotal prosecution witness on a crucial issue, and the remaining evidence is weak or unreliable, the conviction is unsafe. The appropriate course is to allow the appeal and quash the conviction.

The appellant was convicted of murder at Teesside Crown Court in 2000. His first appeal against conviction was dismissed in 2003.

The Criminal Cases Review Commission referred the conviction after disclosure of a police contact note that had not been disclosed at trial. The note cast doubt on Mrs Clark’s evidence identifying the date on which the appellant had visited her with an injured hand. That evidence had been important to the prosecution case because it bore upon the appellant’s alibi.

The appellant also renewed other disclosure-related grounds. The central issue was whether the new material rendered the conviction unsafe.

1. Appeal allowed; conviction quashed. The court admitted the newly disclosed evidence under section 23 of the Criminal Appeal Act 1968. It was capable of belief, could afford a ground for allowing the appeal, would have been admissible at trial, and had not been adduced because it had not been disclosed.
2. In a non-disclosure case, the court first asks whether the material should have been disclosed. If so, it asks whether the conviction is unsafe in light of that non-disclosure. The Crown correctly conceded that the police record should have been disclosed.
3. The contemporaneous record materially undermined Mrs Clark’s trial evidence that the relevant visit occurred on 21 April 1999. Its references to an assault witnessed by Tracy and an intended hospital visit were consistent with the appellant’s later assault on 29 April, rather than with the attack on the deceased. The later attempt to suggest that the officer had misrecorded the information did not diminish the significance of the original note.
4. Mrs Clark’s evidence had been pivotal because it supported the prosecution case against an alibi. The court assessed the remaining evidence independently. Ham’s changing accounts gave strong reason to regard his evidence as unreliable. The fibre evidence provided only moderate support for direct contact with the deceased.
5. The new disclosure therefore threw a crucial part of the prosecution case into doubt, while the remaining evidence was dubious. The court was not satisfied that the conviction was safe. The renewed application for permission to appeal on the other disclosure grounds was dismissed. Any application for retrial and directions concerning bail were to be made in writing.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the murder conviction: [2016] EWCA Crim 1968.
• Court of Appeal: Dismissed the appellant’s first appeal against conviction on 3 April 2003.
• Teesside Crown Court: Convicted the appellant of murder on 10 November 2000 and imposed life imprisonment with a minimum term of 15 years.