Holden, R v

A third party’s later confession will not justify admitting fresh evidence or disturbing a conviction unless it is capable of belief. Where the proposed confession is hearsay and is shown by the surrounding evidence to be demonstrably unreliable, the Court of Appeal may refuse to admit it in the interests of justice under the statutory fresh-evidence jurisdiction.

Reliability may be assessed cumulatively. Relevant matters include whether the account is plausible and detailed, whether it accords with reliable independent evidence, whether alleged earlier admissions occurred, and whether psychiatric illness and subsequent retraction show that the asserted memory was delusional. If the proposed evidence is incapable of belief, the trial evidence remains unaffected and the conviction is safe.

Kerry Holden had been convicted at Nottingham Crown Court of the murder of Luke Moran and sentenced to life imprisonment with an 18-year minimum term. Her earlier applications for leave to appeal had failed.

The Criminal Cases Review Commission referred the case after Stuart Murray, who had lived near the scene, purported to confess in 2015. He made the confession while suffering from a psychotic illness, later retracted it after treatment, and denied any current memory of the killing. The appellant sought to adduce the confession as fresh hearsay evidence.

The central issue was whether Murray’s purported confession was capable of belief and, if so, whether it rendered the conviction unsafe.

1. Appeal dismissed. The court declined to permit Murray’s purported confession to be adduced under section 23 of the Criminal Appeal Act 1968. It was demonstrably unreliable and incapable of belief. The conviction was therefore safe.

2. The proposed evidence was hearsay. Murray was not within the statutory categories in section 116 of the Criminal Justice Act 2003, so the application depended on section 114(1)(d), which required consideration of the interests of justice. The court noted that the criteria in section 23(2) of the 1968 Act differ, but are likewise governed ultimately by what is necessary or expedient in the interests of justice.

3. The court accepted that Murray’s account of an attempted robbery before he returned home was capable of belief. That did not make his separate account of stabbing Moran reliable. The stabbing account was vague, lacked a credible explanation for Murray’s conduct, and depended on an implausible sequence of events within a few minutes while his mother changed for their hospital visit.

4. Reliable evidence from Murray’s mother contradicted the account: when she returned downstairs he appeared as before, was not out of breath or distressed apart from his ear, and was waiting to go to hospital. Reliable evidence from Bryden also established that Murray had never told him about stabbing Moran. That both undermined the alleged earlier admission and supported the conclusion that Murray’s later fears of persecution formed part of a delusional belief.

5. The psychiatric evidence confirmed that conclusion. Murray was suffering from paranoid schizophrenia, complicated by drug misuse, when he confessed and was then unfit to plead. His confession receded and was retracted after treatment. The court preferred Dr Joseph’s evidence and rejected the suggestion that the account’s asserted plausibility could preserve its reliability.

6. As the confession could not be admitted, the evidence and cases presented at trial were unaffected. There was no basis to interfere with the jury’s verdict.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court refused to admit the proposed fresh hearsay evidence under section 23 of the Criminal Appeal Act 1968 and dismissed the appeal: [2017] EWCA Crim 31.

• Earlier appeal proceedings: An application for leave to appeal against conviction was refused first by a single judge and then by the Full Court on 25 June 2013.

• Nottingham Crown Court: The appellant was convicted of murder on 8 March 2012 and sentenced to life imprisonment with an 18-year minimum term.