Moore, R. v (Rev 1)

Fresh expert reconstruction evidence should not be admitted where it depends on factual foundations too imprecise and unreliable to permit a genuine reconstruction. Such evidence has no probative value and may mislead a jury.

Under Criminal Appeal Act 1968, section 23(2), the court must assess whether fresh evidence is capable of belief and may provide a basis to allow the appeal, alongside admissibility and the explanation for non-deployment at trial. Evidence found incapable of belief cannot undermine an otherwise safe conviction. A late application also requires a proper basis; a post-trial indication that grounds may later emerge does not relax the applicable time limits.

Following a trial at the Central Criminal Court, Jason Moore was convicted of the murder of Robert Darby and sentenced to life imprisonment with an 18-year minimum term. His co-accused, Martin Power, was acquitted.

More than three years later, Moore sought an extension of time, permission to appeal against conviction, and admission of fresh evidence under section 23 of the Criminal Appeal Act 1968. He contended that a 3D reconstruction undermined the principal eyewitness, Abdul Ahmed, and that further witnesses showed that Power alone had committed the murder.

The central issue was whether the proposed evidence was admissible and capable of rendering the conviction unsafe.

1. The applications were refused. The court refused an extension of time, permission to appeal, and admission of the proposed fresh evidence. The conviction therefore remained undisturbed.

2. The 3D reconstruction evidence had no probative value. Expert reconstruction may assist in an appropriate case, but only where sufficiently reliable and precise factual foundations permit a genuine reconstruction. Here, the exercise depended upon treating an unclear and inaccurate plan as pinpoint accurate, despite major uncertainties about the witnesses’ locations, the vehicles’ positions, the timing of events and the participants’ postures. The resulting scenarios could not establish what the eyewitness could or could not have seen. Their admission at trial would have risked misleading the jury.

3. The reconstruction did not undermine the eyewitness evidence. The inconsistencies in Abdul Ahmed’s account had been fully explored at trial. Its central account remained consistent and was independently supported in material respects by Sally Palmer and the pathological evidence. It had therefore been open to the jury to accept it.

4. Applying section 23(2) of the Criminal Appeal Act 1968, the critical question concerning the further evidence was whether it appeared capable of belief. Assessed against the trial evidence, the fresh accounts seeking to implicate Power were not credible. Telephone records contradicted a material part of Emma Ross’s account. Other evidence was delayed, inconsistent, unreliable, or obtained in circumstances indicating a concerted attempt to reopen the case. The anonymous witness’s statement could not be tested after the witness declined to attend despite protective arrangements.

5. The court accordingly declined to receive the evidence. Neither ground was arguable, and there was no proper basis for extending time. A letter from the applicant’s former lawyers indicating that grounds might emerge in future did not reduce the requirement to bring an appeal within the applicable time limits.

• Court of Appeal (Criminal Division): In [2017] EWCA Crim 1304, refused the applications for an extension of time, permission to appeal against conviction, and admission of fresh evidence.

• Central Criminal Court: On 18 December 2013, convicted Moore of murder. On 23 December 2013, sentenced him to life imprisonment with an 18-year minimum term.