Practice and Procedure


PUBLISHED April 9, 2003

Appeals in relation to charges of murder allowed where the decisions to uphold a conviction or set aside an acquittal were dependent on cell confessions and the jury had not been properly warned to regard the evidence with caution. The Privy Council laid down rules for adducing fresh evidence in proceedings before it.Appeal from the decision of the Eastern Caribbean Court of Appeal (British Virgin Islands) on 14 January 2002: (i) allowing the appeal by the Crown against the ruling by the trial judge that there was no case for the first defendant ('B') to answer on a charge of murder, setting aside his acquittal and ordering his retrial; and (ii) dismissing an appeal against conviction by the second defendant ('L') on a charge of murder of the same victim. The Crown relied heavily on the evidence of a known criminal ('P'), who testified to a cell confession by L and overhearing admissions of guilt in conversations between B and L. L's grounds of appeal before the Board were: (a) that the failure of the trial judge to give an express warning to the jury to regard P's evidence with caution had resulted in a miscarriage of justice; (b) the summing up about P's evidence was unbalanced and unfair; (c) the Court of Appeal's treatment of the arguments about P's evidence had been wrong and the court had been wrong to refuse to admit the fresh evidence that he had sought to adduce to reinforce his arguments about P's evidence; (d) the Court of Appeal had been wrong to hold that there was no need for a lies direction in respect of lies told by L; (e) prosecutorial misconduct; and (f) errors of the judge in his handling of the jury's deliberations and verdict. B adopted the above arguments and also argued that the Court of Appeal should not have reversed the judge's decision that the words P attributed to B during his argument with L could not amount to a confession of murder. The Crown contended that B's appeal should nevertheless be dismissed as he was in the position of an appellant who had escaped or absconded. After his original acquittal, B had been granted bail on a charge of conspiracy to pervert the course of justice. He had broken that bail.HELD: (1) The Board followed the guidance in Pringle v The Queen (2003) UKPC 9 relating to cell confessions, noting that the judge himself had both to draw the jury's attention to the indications that might justify the inference that the prisoner's evidence was tainted and to advise the jury to be cautious before accepting his evidence. (2) Nowhere in the judge's summing up did he draw the jury's attention to the various factors that would justify the inference that P's evidence was tainted by self interest and to their significance. Nor did he advise the jury to be cautious before accepting P's evidence. (3) The case for the Crown against L was wholly dependent on P's evidence and it was crucial for the steps mentioned in Pringle (supra) to be taken if he was to receive a fair trial. There were ample grounds for treating P's evidence as highly suspicious and likely to lead to a miscarriage of justice unless great care was taken and it was treated with extreme caution. The omission of the necessary steps from the summing up was in itself such a fundamental defect that L's appeal had to be allowed and his conviction quashed on the ground that it was unsafe. (4) In the light of the numerous lies in P's evidence and what was known about him, it would be wholly contrary to the interests of justice for L to have to face a new trial based, as it would have to be, wholly on P's evidence. (5) The trial judge was right to hold that it would not have been open to the jury to find B guilty of the murder on his evidence. (6) As B had broken bail on a collateral charge, it would be disproportionate for him to be denied the right to appeal against the Court of Appeal's decision to quash the acquittal on the murder charge and order a retrial on the ground that he was in breach of the court's order on another matter. (7) The lies told by L were relatively trivial but were given prominence by the prosecution so that a Lucas direction (per R v Ruth Lucas (1981) 3 WLR 120) was plainly needed, but not given. Its omission was a significant defect in the summing up. (8) The behaviour of the prosecuting counsel was wholly at variance with the way he should have behaved as a minister of justice (Randall v The Queen (2002) UKPC 19). Some parts of his speech were xenophobic, inflammatory and sought to make use of inadmissible and irrelevant material. (9) Under local law, the court had a discretionary power to receive fresh evidence, to be exercised when the court thought it necessary or expedient to do so in the interests of justice. The provisions were similar in effect to ss.23(1) and (3) Criminal Appeal Act 1968 as originally enacted. While it was always a relevant consideration that evidence that was sought to be adduced on appeal could have been called at trial, the appellate court might nonetheless conclude that it ought in the interests of justice, to receive and take account of such evidence. (10) There were at least two important pieces of evidence that should have been admitted before the Court of Appeal. (11) With one exception, new material that B sought to put before the Board should not be received, as it was delivered late and piecemeal, while some of it was contentious and some of little probative value. (12) The Board set out rules that would apply to the adducing of fresh evidence before the Board in future: (i) notice of any application to adduce fresh evidence should be given to the other party or parties and to the Board; (ii) an affidavit in support of such application should be sworn and served, giving the grounds of the application and the reasons for seeking to adduce fresh evidence before the Board; (iii) copies of the evidence in question should be exhibited to any such affidavit; and (iv) such application, affidavit and exhibits should be lodged with that party's case. Departure from this timetable would be permitted only exceptionally and only where necessary or expedient in the interests of justice.Appeals by B and L allowed. Orders made by the Court of Appeal in regard to the charge of murder should be set aside. Order of B's acquittal on that charge on the ground that there was no case for him to answer should be restored. L's conviction for murder should be quashed.

[2003] UKPC 27