Practice and Procedure


PUBLISHED May 27, 2003

A conviction for murder referred by the Criminal Cases Review Commission was safe as the evidence of a new expert witness did not add anything of significance to the evidence of the expert witness at trial.Appeal against conviction on a reference from the Criminal Cases Review Commission ('CCRC'). The appellant ('M') was convicted of the murder of his wife ('V'). On 16 January 1993, V had been found crushed to death under M's car, which was embedded in the front of their bungalow. The prosecution's case had been that M had deliberately and in a drunken rage driven his car into the driveway over the prone body of V, killing her. The defence case had been that M had not known that V was in the driveway and had driven over her accidentally. The critical issue at trial had been whether, when M drove towards and over V, he had known that she was in the car's path. The CCRC's reference was to enable the court to decide whether to receive the evidence of a new expert witness ('L'), a forensic scientist specialising in accident investigation, with a view to considering whether there was a real possibility that M had driven over V accidentally and, therefore, whether the conviction was unsafe on that account. L's evidence sought to contradict the evidence of the prosecution's expert witness, a police officer, at the trial that the account of the incident by M and two further eye witnesses was not consistent with the positioning of the gate M had driven through, the damage to the car and gate and the position of the car on the driveway after the incident. This evidence had been contradicted by M's expert witness ('B') at the trial. L's evidence consisted of computer generated reconstructions, a technology that had not been available at the time of trial. M contended that the prosecution and judge at trial had placed great emphasis on the importance of the police officer's evidence, in particular that of his reconstructions, as a means of demonstrating that M's account of accidentally causing V's death had been a lie.HELD: (1) The sole issue was whether L's evidence, if received by the court, would afford any ground for allowing the appeal. (2) While the prosecution at trial had relied heavily on the police officer's reconstruction, it had not relied solely on it and the judge had adequately warned the jury about its questionable value. (3) L's evidence added nothing of significance to that of B at trial. (4) The issue of an unsafe conviction was one for the court in the light of the evidence before the jury and the proposed fresh evidence, see R v Trevor (1998) Crim LR 652. The issue was not whether the court considered, in the light of the proposed fresh evidence, that a jury might conceivably have reached a different decision if it had heard it. The court in a case of any difficulty should usually "test their own provisional view by asking whether the evidence, if given at trial, might reasonably have affected the decision of the jury to convict" ("the jury impact test"). See R v Pendleton (2002) 1 CAR 34 and R v Hanratty (2002) 2 CAR 30. (5) L's proposed fresh evidence, if it was to be received under s.23 Criminal Appeal Act 1967, would have no impact upon the safety of the conviction. Accordingly it was not received.Appeal dismissed.

[2003] EWCA Crim 1373