R v Leon Smith

On an appeal based on fresh evidence, the Court of Appeal must decide whether the conviction is unsafe under section 2(1) of the Criminal Appeal Act 1968. It must assess the fresh evidence in the context of the trial evidence, rather than in isolation or by asking whether a retrial might produce an acquittal. The court must respect the jury’s primary fact-finding role, but it remains responsible for deciding whether the conviction is safe. An acquittal of a co-defendant does not, without more, make another defendant’s conviction unsafe where the evidence and submissions differed. Fresh evidence that contradicts the appellant’s central explanation may strengthen, rather than undermine, the safety of the conviction.

The appellant was convicted at the Central Criminal Court of conspiracy to possess a firearm with intent to endanger life and conspiracy to possess ammunition, arising from events at Barrington Court. He was also convicted on two unrelated counts, which were not challenged on this appeal.

A co-defendant, Khalifa Benjamin, was later acquitted after giving evidence that the meeting concerned drugs and not a firearm. The appellant sought to rely on that evidence as fresh evidence under section 23 of the Criminal Appeal Act 1968. The central issue was whether that evidence rendered the appellant’s convictions unsafe under section 2(1) of the Act.

1. Appeal dismissed. The fresh evidence did not render the convictions on Counts 13 and 14 unsafe. The proposed appeal against sentence therefore did not arise.
2. Section 23 of the Criminal Appeal Act 1968 provides the mechanism by which the Court may receive and hear fresh evidence. The substantive question remains the statutory test in section 2(1): whether the conviction is unsafe. The task is the same whether the evidence is received or heard de bene esse.
3. Applying R v Pendleton [2001] UKHL 66, the Court must assess the fresh evidence in context. It must not decide whether the witness’s evidence is merely capable of belief, whether a retrial might result in acquittal, or whether the appellant is guilty. In a difficult case it may ask whether the evidence, if given at trial, might reasonably have affected the jury’s decision. The Court must remain mindful that it is not the primary decision-maker and is not privy to the jury’s deliberations.
4. A retrial becomes relevant only after an appeal has been allowed because the conviction is unsafe. The possibility or impossibility of a retrial cannot determine whether the conviction is safe.
5. The acquittal of Mr Benjamin did not itself make the appellant’s convictions unsafe. His trial involved materially different evidence and submissions, so the acquittal established only that his jury were not sure of his guilt on the case before them.
6. Mr Benjamin’s evidence that there had been no firearm discussion or transfer did not address the central problem in the appellant’s case. The appellant’s necessary explanation for attending Barrington Court was that he expected to view a stolen car or car parts. Mr Benjamin’s later evidence expressly contradicted that explanation, including by treating relevant parts of his first defence statement as lies. In that context, the fresh evidence supported rather than undermined the jury’s conclusion that the appellant’s explanation was untrue.
7. The Court therefore concluded that, even if Mr Benjamin’s evidence had been given at the appellant’s trial, it could not reasonably have affected the jury’s decision to convict and could only have provided further confirmation of it.

• Central Criminal Court: The appellant was convicted on Counts 1, 10, 13 and 14 after trial between 1 November 2021 and 12 January 2022.
• Court of Appeal (Criminal Division): Limited leave was granted to rely on fresh evidence following the later acquittal of Khalifa Benjamin. The appeal against conviction on Counts 13 and 14 was dismissed under the Criminal Appeal Act 1968; the proposed sentence appeal did not arise.