Practice and Procedure

R v UNDERWOOD (2003)

PUBLISHED May 29, 2003

The non-disclosure of a witness's previous convictions for dishonesty offences would have affected the defence in that the witness would have been cross-examined more rigorously. However, that witness's evidence did not go to the heart of the case and would not have affected the verdict had the previous convictions been disclosed.Reference by the Criminal Cases Review Commission ('CCRC') under s.9 Criminal Appeal Act 1995. The defendant ('U') was convicted of murder in 1995. The deceased ('D') was found dead having suffered repeated blows to the head. He had last been seen on 21 July 1994. The prosecution case was that U killed D during the course of robbing him on the night of 23 or 24 July 1994. On that evening, U stated that he returned home to retrieve some cash savings from his flat. He then left to take a series of taxis to Birmingham to visit a friend ('L'). He admitted to the police that those actions did not account for the whole period and that there was a period of three hours during which he must have done something else, but that he could not recall what. Once in Birmingham, he had given large amounts of cash to friends, to buy drinks with, saying that he had won the money on the horses, something which U later admitted had been a lie. L gave evidence that when he was alone with U that evening and asked U about D's death, U said that he "did not mean to go that far", and that later he said to L that he was "facing 20 years for this". The police arrested U the next day. The cash given away by U, along with that found on him, totalled some ?2,500. U's main income were State benefits and he said he had been saving up cash to travel abroad. There were injuries to U's knuckles, consistent with having hit someone with his fist. At U's flat the police found a cord from D's dressing gown, heavily stained with D's blood, but no traces of blood were found on U's person or clothing. Leave to appeal was twice refused, the case against U being described by one judge as "overwhelming" in the light of the bloodstained cord and U's comments to L. The CCRC found that L had 54 previous convictions, 39 involving dishonesty, and had given a false name and date of birth to avoid those convictions being discovered. It was likely that he had concealed his identity from the police as there was an outstanding warrant against him. The CCRC concluded that L might have been motivated to fabricate important evidence against D so as to have a bargaining chip should the police find out his true identity. D argued that the conviction should be quashed on those grounds. U knew of L's previous convictions and had told his solicitors about them, and although U himself had 25 convictions for dishonesty offences so his character could have been put in evidence had he attacked L's credit, U argued that the defence would still have been conducted differently in that L would have been cross-examined more effectively. Relying on dicta of Bingham LCJ in R v Farrell (Unreported, CA 20/3/2000), U claimed that L's evidence was at the heart of the case, that all the other evidence was circumstantial and that the conviction was therefore unsafe. U also sought leave to call fresh evidence from a newly instructed pathologist in relation to the time of death and, using new DNA evidence, the fact that U's blood was not to be found at D's flat.HELD: (1) The further medical evidence did not change the position from the evidence before the jury. It did not advance the appeal. (2) The verdict was safe and the appeal failed. (3) The court agreed with the CCRC's conclusions that had L's previous convictions been known to the defence, the defence would have been conducted differently. However, the effect of the non-disclosure of a witness's previous convictions depended on the weight of other evidence against an accused and on the extent to which the credibility and honesty of the witness was at the heart of the case. It was not the case that if an important witness's convictions were not disclosed, the conviction must inevitably be quashed. The greater the weight of other evidence, the less significance a non-disclosure was likely to have and it remained a matter for the Court of Appeal to determine for itself the safety of a conviction albeit that in doing so it may test any area of difficulty by asking whether new evidence (L's previous convictions in this case) might reasonably have affected the jury's decision to convict. (4) The critical factor in this case was that L had not given evidence about the central facts in issue in the case. His evidence, though persuasive if believed, related only to a subsequent confession by U, and left untouched the central facts in issue. The prosecution had a completely compelling case, even if L's evidence had been discredited and even though it was circumstantial. It could therefore not be said that, without L's evidence, the jury would not have convicted U. The evidence about L's previous convictions could have made no difference to the verdict.Appeal dismissed.

[2003] EWCA Crim 1500