Appeals against convictions for murder were allowed as the non-disclosure of prosecution evidence influenced the jury's assessment of the reliability of the evidence of a key eye-witness, and the use of a hearsay statement of a witness who had not given evidence at the trial was unfairly prejudicial to the defence.Appeals by the defendants ('P' and 'M' respectively, collectively 'D') against their convictions for murder. The prosecution case was that, in the course of a fight, D attacked the deceased ('W'), P with a knife and M with a crowbar, causing him severe injuries from which he died the following day. M's defence was that he had hit W with the crowbar in self-defence and P's defence was that he had not used any weapon and not taken any part in the assault. An earlier appeal had been dismissed by the House of Lords. There followed a Channel 4 television documentary which investigated the conduct of the second most senior officer in the investigation ('G'), alleging that he perverted the course of justice. G lost a libel claim against Channel 4 when the jury accepted the defence of justification. The Criminal Cases Review Commission subsequently referred the matter to this court. Only two witnesses ('X' and 'Y') gave direct evidence of the assault on W, which occurred in P's bedsit. X claimed that she had gone to P's room, where W and M then began fighting, M striking W with the crowbar. She claimed that P intervened and kicked W twice while M hit him several more times with the crowbar and then P stabbed W several times. A fourth person ('J') was present. He dragged W out onto the pavement after the fighting. X had given a similar but inconsistent account to the television programme "Crime Line", in which she claimed that M, not P, had used the knife, and in her first police interview she made no mention of P being involved in the assault at all. At the trial she claimed that the version in which she claimed P had used the knife was the truth. Y claimed to have been looking through P's window from outside for a short time during the fight, having earlier visited the house, and to have seen P in silhouette making stabbing motions and to have heard W shouting "No, Tony, no". In his police interview Y gave an account that was false in a material particular. It transpired that another person ('N') had been with Y at the material time, casting doubt on whether Y could have been at P's house when he claimed to have been. However, the police did not follow up those inconsistencies and they failed to inform the CPS that Y's evidence was unreliable. J's statements to police largely followed M's account of events, but J was not called as a witness, although his statements were admitted in evidence with the agreement of both the prosecution and defence. G was found to have warned J not to attend the committal proceedings, threatening to arrest him if he did. However, the Court of Appeal, before which J did give evidence, and the House of Lords both concluded that the non-disclosure of J's evidence was not a material irregularity and did not render the convictions unsafe as the jury would not have relied on it in order to convict. W was in possession of a knife at the material time. On this appeal, D argued that their convictions were unsafe on the grounds that: (i) G's conduct in relation to J revealed a level of impropriety that infected the whole police investigation, casting doubt on all the prosecution evidence, and that the libel trial exposed further details about the misconduct that were unavailable at the time of the first Court of Appeal hearing; (ii) the first Court of Appeal had been wrong to hold that even if J had been called as a witness the jury would not have relied on his evidence and that it would not have raised doubts in the minds of the jury as to D's guilt in view of the dubious credibility of X's evidence; and (iii) the admission of J's hearsay statements was unfairly prejudicial to D.HELD: (1) As for the first ground of appeal, this court was not satisfied that there was any new argument or evidence not previously before, or properly developed before, the first Court of Appeal. Nothing new had emerged since the earlier decision that could render the convictions unsafe. Nor were there any exceptional circumstances that would justify revisiting that court's decision. The first Court of Appeal had heard J and G and although it found that G had attempted to pervert the course of justice, it had concluded that G's conduct was not such as to render the trial an abuse of process or the convictions unsafe. The most important witness for the prosecution was X in any case, and the first Court of Appeal was entitled to form the view that the jury had clearly accepted her account despite its inconsistencies and would not have preferred the evidence of J had he been called. (2) The first Court of Appeal's view that, even without N's evidence, the jury would have found Y's evidence unreliable in any event offended the principle in R v Pendleton (2002) 1 CAR 34 of substituting the court's for the jury's view of the evidence. There was no knowing what the jury might have thought of the credibility or reliability of Y's evidence had N's evidence been admitted. The failure to disclose N's evidence was a material irregularity and the effect of the first Court of Appeal's non-compliance with the Pendleton principle, in intruding on the jury's role in assessing the reliability of Y, rendered its decision, and therefore the convictions, unsafe. Y was an important witness, being the only other prosecution eye-witness apart from X. His evidence, if accepted by the jury, might have been seen as clearing up any doubts they might have had over X's evidence, and it could not be said that the jury would, or must, have convicted on X's evidence alone. (3) The placing before the jury of the hearsay account of J's statements was unfairly prejudicial to D's defence. The significance of what J might have said in evidence was a matter of interest to the jury, as their note to the trial judge indicated. J's account was one denied by both P and M and the presence in the jury's transcripts of copies of J's statements could have left a disproportionate impression in their minds during their deliberations. Accordingly, the convictions were unsafe.Appeals allowed.

[2003] EWCA Crim 1753

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