Practice and Procedure


PUBLISHED August 1, 2003

The appellants' convictions in 1970 for murder were unsafe in light of the cumulative effect of criticisms against the conviction relating to the credibility of the prosecution's main witness and the failure to disclose certain evidence to the defence.Appeals against convictions for the murder of a sub-postmaster, on a referral by the Criminal Cases Review Commission. The murder took place at Luton on 10 September 1969 after a bungled robbery. Three men were seen running from the scene of the crime. They drove away in a van before changing cars at Luton train station and separating. The principal prosecution witness ('Mathews') told police that he had travelled to Luton with the appellants. He said he had then left to pick up parcels but was later collected by the men at the station. There allegedly followed a discussion during which the second appellant ('McMahon') discussed the victim having been killed. Mathews identified the appellants and a third man ('Murphy'), whose conviction for the murder was overturned on appeal in 1973. There were three pieces of evidence capable of corroborating Mathews' story in relation to the first appellant ('Cooper') and four relating to McMahon. The appellants gave evidence at trial that they did not go to Luton, were not involved in the murder and that Mathews was lying. They both relied on alibis. On 19 March 1970 they were convicted. Several unsuccessful appeals against conviction followed. At the present appeal, it was contended that over the years it had become increasingly apparent that there were serious grounds for concern about the way in which the police investigated the matter and put the prosecution case together, about the failure of the prosecution to disclose certain matters to the defence and about the impact of subsequent events on the safety of the convictions. In particular, there were five issues that were not considered at the trial: (i) the evidence of Good, the owner of the weapon used for the crime, who was obviously well-informed of the incident but did not at first name the appellants as being involved; (ii) Murphy's successful appeal in 1973; (iii) the evidence of two eyewitnesses who identified an older man, potentially Mathews, driving the van from the scene; (iv) previous inconsistent statements made by Mathews' wife, who had claimed that Cooper visited their house on the night of the murder; and (v) the 1997 conviction of Drury, the police officer in charge of investigating the offence, on corruption charges unrelated to the Luton murder. Two of these issues had been considered at previous appeals but the appellants submitted that they should be reconsidered as the approach adopted by the court on previous occasions was wrong.HELD: (1) Much information was not available at trial that would now be made available to the defence and that would have been of considerable assistance to the defence, such as parts of Good's statements to the police. His evidence at trial was presented by the prosecution in a deliberately misleading way. (2) Certain evidence in relation to Murphy, if accepted as reliable, called into question the credibility of Mathews not only in relation to Murphy but also in relation to those he said were with him, namely the appellants. The Court of Appeal in considering the present case in 1976 conducted the exercise which R v Pendleton (2002) 1 WLR 72 said was impermissible, namely deciding the guilt or innocence of the defendant. If Mathews' credibility was seriously undermined then none of the convictions could be regarded as safe. (3) The trial jury had no opportunity to evaluate the evidence of two eyewitnesses that, if accepted, indicated that Mathews, or at least a man who was older than those he said were with him, was present at the scene of the murder, again calling Mathews' credibility into question. (4) The inadequate disclosure of previous inconsistent statements by Mathews' wife meant that those inconsistencies were never fully exposed or held up for cross-examination. Such disclosure would be required under modern practice and was required at the time. (5) The subsequent conviction of Drury added to the sense of unease with the safety of the convictions when considering the relationship between that officer and Mathews, and the officer's recommendation in relation to payments of reward money to Mathews and Good. (6) Those matters in totality rendered the convictions unsafe.Appeals allowed.

[2003] EWCA Crim 2257