Keane, R. v

A prior conviction admitted under section 74(3) of the Police and Criminal Evidence Act 1984 establishes that the accused committed the earlier offence unless the contrary is proved. The resulting persuasive burden does not automatically breach Article 6. Its proportionality depends on the statutory context, including the prior criminal-standard conviction and the opportunity to rebut the presumption.

Section 78 should not ordinarily be used to mount a collateral challenge to the safety of a conviction which Parliament has made admissible. Fresh evidence should be refused where it cannot cast doubt on the safety of the conviction.

The appellant was convicted at Manchester Crown Court of causing grievous bodily harm with intent after an assault in a public house. Following the victim’s later death from post-traumatic epilepsy, the appellant was tried for murder and convicted.

In the murder trial, the judge admitted the earlier section 18 conviction under section 74(3) of the Police and Criminal Evidence Act 1984. The appellant appealed against the murder conviction and sought leave, substantially out of time, to challenge the earlier conviction. He relied on fresh medical evidence, alleged defects in the first summing-up, and an asserted incompatibility between the reverse burden in section 74(3) and Article 6.

The central issues were the safety of both convictions and whether the earlier conviction should have been excluded or the statutory burden read down.

The appeal against the murder conviction was dismissed. The application for leave to appeal against the earlier section 18 conviction, made over three years out of time, was refused.

1. Fresh evidence and delay. Under section 23 of the Criminal Appeal Act 1968, the court could receive fresh evidence only where that was necessary or expedient in the interests of justice. The medical evidence did not cast doubt on the safety of the earlier conviction. It did not matter whether the fatal brain injury resulted from the punches and fall or the subsequent stamp, because the evidence showed a single attack undertaken with intent to cause really serious injury. There was also no injustice in refusing to reopen the first trial after a considered decision not to appeal it.
2. Section 74(3). The Recorder correctly admitted the earlier conviction. Section 74(3) of the Police and Criminal Evidence Act 1984 created a rebuttable presumption that the appellant committed the earlier offence. Unlike a persuasive burden imposed before a jury has decided guilt, this burden operated after a conviction by a competent court following proof to the criminal standard. Applying the proportionality principles in R v Sheldrake [2004] UKHL 43, the provision was reasonable and proportionate and did not infringe Article 6 of the European Convention on Human Rights. There was no basis to read it down.
3. Section 78. Section 78 could not properly be used to exclude statutorily admissible evidence merely because the appellant now alleged that the earlier conviction was unsafe. Any challenge to that conviction belonged before the Court of Appeal. The court approved the statutory rationale and safeguards explained in R v C (JW) [2010] EWCA Crim 2971 and R v Clift; R v Harrison [2012] EWCA Crim 2750.
4. Safety. Independently of those conclusions, the CCTV footage and the appellant’s own account established that the punches, push and stamp formed one continuous assault. Both juries were entitled to find an intent to cause really serious injury and to reject self-defence. The murder conviction was therefore safe even if any other alleged error had been established.

• Court of Appeal (Criminal Division) — By judgment [2016] EWCA Crim 2018, dismissed the appeal against the murder conviction and refused the out-of-time application for leave to appeal against the earlier section 18 conviction.
• Manchester Crown Court (trial 2) — Convicted the appellant of murder on 16 September 2015 and sentenced him to life imprisonment the following day.
• Manchester Crown Court (trial 1) — Convicted the appellant of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Persons Act 1861 on 16 February 2012 and imposed six years’ imprisonment.