Practice and Procedure


PUBLISHED December 10, 2003

Fresh evidence only affected the safety of a conviction if it might reasonably have affected the jury's decision to convict. The acquittal of one defendant did not, in the absence of any cogent error or misunderstanding, make the conviction of a co-accused unsafe.Appeal by defendant ('S') with leave of a single judge and a renewed application to appeal by the defendant ('N') against convictions of murder and wounding with intent. CCTV cameras had captured parts of the incident out of which the offences arose. After the trial it came to the attention of those representing S that the quality of the evidence given by an expert ('H'), in relation to facial mapping in earlier and unrelated cases had been criticised by the court. S submitted that: (i) since the trial H had been discredited and his expertise on the subject of image analysis had been brought into question; (ii) the judge had been wrong in not allowing the defence submission of no case to answer at the end of the prosecution case; and (iii) the judge was wrong in not allowing the jury to view clothing seized by the police from another defendant. N submitted that: (a) the case should have been withdrawn from the jury; (b) the judge's directions to the jury were insufficiently connected to the facts so as to make them clear and fair so far as N was concerned and (c) the jury's verdicts as between N and an acquitted co-accused were logically inconsistent thus N's conviction was unsafe.HELD: (1) The substance of H's evidence in the present case did not involve facial mapping. (2) Evidence of the photographic enhancement which H had been asked to perform was legitimate within the terms of R v Gray (unreported) 27 March 2003. (3) The judge had properly directed the jury. A stronger attack on the credibility of H would have been mounted had the fuller facts been available at the time. However, when fresh evidence or new material was available it was appropriate for the court to ask whether that evidence might reasonably have affected the jury's decision to convict. R v Donald Pendleton (2002) 1 WLR 72. In the present case, there was no lurking doubt as to the safety of S's conviction. (4) The evidence at the end of the prosecution case demonstrated that N had a motive to organise and participate in the incident. (5) The judge had properly directed the jury concerning the necessary ingredients for a conviction of N, as a participant for murder. (6) The judge's directions were linked to the facts of the case. (7) The verdicts could not be regarded as logically inconsistent given the different issues of identification involved. The acquittal of a co-accused was no reason, in the absence of any cogent or credible reason for supposing error or misunderstanding on the part of the jury, to upset the verdict against N.Appeals dismissed.

[2003] EWCA Crim 3434