Practice and Procedure


PUBLISHED September 26, 2003

The appellant's conviction for murder was quashed as important pathological evidence as to the time of the victim's death had not been before the jury at trial.Appeal on reference from the Criminal Cases Review Commission, against a conviction for murder. In 1991 the appellant ('W') was convicted of the murder of an 89 year old woman in 1986. The woman had died as a result of multiple face and neck injuries. Police only discovered the murderer's identity after they received information from one of W's ex-wives and her husband ('the Wilsons'), and another of W's ex-wives. The Wilsons stated that W called at their house on 31 August 1986 and told them he had committed the murder the previous night. The body was not discovered until 1 September 1986. At W's trial, the pathologist who examined the victim's body gave expert evidence for the Crown. He indicated that the time of death was not earlier than late afternoon on 31 August, which was inconsistent with the alleged confession of the murder being on the night of 30 August. Before the Court of Appeal, the pathologist qualified his evidence on the time of death and stated that death on the night of 30 August was extremely unlikely. W argued that if the jury had heard this qualified evidence, it would have had an impact on the jury over and above what was said at trial. The Crown contended that: (i) the issue as to the time of death had been properly left to the jury, who had dismissed it; and (ii) there was other evidence that pointed to W's guilt.HELD: (1) If the jury had heard the expert's qualified evidence they would have had additional cause to consider W's guilt. The judge's summing up would also have been significantly altered if he had heard this evidence. The judge would not have presented the particular point as neutral and not favouring the defence as he had done at trial. (2) It was impossible to say whether the outcome of the trial would have been the same. Applying the test in R v Pendleton (2002) 1 WLR 72, the resulting conviction could not be viewed as safe when this important professional judgment of the Crown's pathologist was never available to the jury. The conviction therefore had to be quashed.Appeal allowed.

[2003] EWCA Crim 2196