Darren Osment v R

Expert evidence on confession reliability is properly excluded where it merely duplicates evidence already before the court or trespasses on the jury’s assessment of reliability. A covert operation does not make a confession inadmissible merely because it involves deception or the defendant has vulnerabilities. The relevant questions are oppression, likely unreliability and the fairness effect of improper police conduct.

For non-defendant bad character evidence under Criminal Justice Act 2003, substantial probative value is assessed in the context of all the evidence, including similarities, dissimilarities, timing and whether the same person is implicated. Evidence showing only a general possibility that another person offended is insufficient. A disclosure failure concerning inadmissible evidence does not make a conviction unsafe. The appeal was dismissed.

The appellant was convicted at the Crown Court at Bristol of murdering Claire Holland, whose body had not been found. The prosecution relied principally on multiple alleged confessions, together with evidence that Holland expected to meet the appellant and that he had used violence towards women with whom he was in relationships. He was sentenced to life imprisonment with a minimum term of 20 years.

A single judge granted leave on a disclosure ground but refused leave on grounds 1–6. The appellant renewed grounds 1–4, concerning expert evidence and the admissibility of undercover confession evidence, and did not renew grounds 5 and 6. Ground 7 concerned the failure to disclose Charles Franklin’s later rape conviction and whether that evidence was admissible under Criminal Justice Act 2003 and capable of affecting the safety of the conviction.

Outcome. The court refused the renewed applications for leave on grounds 1–4 and dismissed the appeal on ground 7.

1. Expert evidence. The judge was entitled to exclude Professor Gudjonsson’s evidence. His eminence and authorship of the suggestibility test did not overcome the fact that he had not examined the appellant, conducted tests, or reviewed the undercover recordings. His proposed evidence either duplicated material from the experts already instructed or trespassed on the jury’s task of assessing reliability. The same reasoning applied to the proposed evidence of Professors McManus and Oxburgh. Pora v New Zealand [2015] UKPC 9 supported that approach. The court agreed with the single judge and the trial judge.
2. Undercover confessions. Under the Police and Criminal Evidence Act 1984, the relevant questions were whether the confessions had been obtained by oppression, whether anything said or done was likely in the circumstances to render them unreliable, and whether admission would adversely affect the fairness of the proceedings. Deception which merely provided an opportunity to confess was distinct from positive trickery or interviewing-style questioning. The court accepted the analysis associated with R v Lawson and Jefferson and Christou. The findings that the operation was lawful, largely passive, and did not involve oppression, improper interrogation or conduct likely to cause unreliability were open to the judge. The appellant’s earlier unpressured confessions also made it less likely that the later admissions resulted from inappropriate police conduct.
3. Disclosure and Franklin evidence. The prosecution accepted that the conviction should have been disclosed. A failure to disclose evidence of substantial probative value may make a conviction unsafe, but not every disclosure failure has that consequence. Under section 100 of the Criminal Justice Act 2003, the probative value of non-defendant bad character evidence had to be assessed against all the evidence and the central issue in the case. Franklin’s conviction showed, at most, a general risk of predatory offending against a drunk woman alone at night. It did not substantially support the conclusion that he, rather than the appellant, killed Holland. Under section 23(2)(b) and (c) of the Criminal Appeal Act 1968, the court therefore declined to receive the evidence because it was inadmissible and could not afford a ground for allowing the appeal.

• Court of Appeal (Criminal Division). The single judge granted leave on ground 7 and refused leave on grounds 1–6. The full court refused the renewed applications on grounds 1–4 and dismissed the appeal on ground 7.
• Crown Court at Bristol. Before Mrs Justice Cutts, the appellant was convicted on 11 December 2023 by a majority of 10 to 2 and sentenced on 20 December 2023 to life imprisonment with a minimum term of 20 years, less 503 days spent on remand.