Byrne & Ors v R. (Rev 1)

An expert may be competent through practical experience and general expertise even without formal qualifications. The expert must remain within the field of expertise and comply with the overriding duty to give objective assistance to the court.

Where fresh evidence is admitted on a criminal appeal, the appellate court must evaluate it against all the trial evidence and decide for itself whether the conviction is unsafe. Later misconduct by an expert does not, without persuasive evidence that the expert testimony at trial was materially wrong, necessarily make a conviction unsafe.

For co-defendant bad-character evidence, the statutory gateway requires substantial, rather than merely relevant, probative value on an important issue between the defendants.

These conjoined appeals arose from four Crown Court trials concerning fraudulent sales of carbon credits, and in one case diamonds, to private investors. The appellants were convicted of conspiracies to defraud, money-laundering offences or fraudulent trading.

All appellants contended that their convictions were unsafe because Andrew Ager, the prosecution expert on carbon-credit markets, was later found unsuitable to act as an expert in unrelated proceedings. Michael Moore also challenged the refusal of a submission of no case to answer. Creaven challenged the exclusion of evidence concerning Rowe’s director-disqualification undertaking and renewed his application for leave to appeal against sentence.

The central question was whether the later material concerning Ager, and the other alleged trial errors, created any reasonable doubt as to the safety of the convictions.

1. All appeals against conviction were dismissed. The court held that Ager’s later serious failures as an expert were rightly regarded with grave concern. His lack of formal qualifications did not by itself make him incompetent to give expert evidence. His practical experience gave him sufficient general expertise to assist the court, subject to the limits of that expertise.

2. The correct issue on the fresh-evidence appeals was whether the convictions were unsafe. Applying the approach in Dial v Trinidad and Tobago [2005] UKPC 4 and R v Hakala [2002] EWCA Crim 730, the court assessed the new material in the context of all the evidence. No appellant sought to adduce persuasive expert evidence showing that Ager’s trial evidence on the investment viability of carbon credits was materially wrong. The evidence had been substantially unchallenged at trial and the frauds were supported by abundant independent evidence. The later revelations therefore raised no reasonable doubt about guilt.

3. The alleged conflict between Ager and the wholesale trader, Michael King, did not justify withdrawing Michael Moore’s case from the jury. King was not an expert, and resolving apparent tensions between witnesses was a conventional jury task.

4. Creaven’s proposed use of Rowe’s disqualification undertaking did not satisfy the co-defendant gateway in Criminal Justice Act 2003, section 101(1)(e). The undertaking did not establish that Rowe possessed the relevant knowledge while involved in the earlier company. It had no substantial probative value on the important issues between the co-defendants. The trial judge applied the correct test, and the evidence against Creaven independently made his convictions safe.

5. Creaven’s renewed sentence application was refused. Consecutive sentences for the two successive serious frauds were appropriate, and the judge had reduced the individual sentences to reflect totality. The total of 13 years’ imprisonment was not manifestly excessive.

• Court of Appeal (Criminal Division): By a single judgment to which all members contributed, the court dismissed the appeals against conviction and refused Creaven’s renewed application for leave to appeal against sentence: [2021] EWCA Crim 107.
• Crown Courts: Byrne was convicted at Southwark of conspiracies to defraud. Creaven and Rowe were convicted at Blackfriars of conspiracies to defraud and money laundering. Raja was convicted at Southwark in his absence of conspiracies to defraud and money-laundering offences. Paul Moore, Michael Moore and Driscoll were convicted at Maidstone of fraudulent trading.