Welcome
Welcome
 
Paul Taylor QC
Paul Taylor QC

Welcome to the May edition of our monthly Criminal Appeals Bulletin.

 

The Bulletin aims to highlight recent changes in case law and procedure in England and Wales, Northern Ireland, the Caribbean and Hong Kong and to provide practical guidance to those advising on appellate matters. Our monthly case summaries illustrate when an appellate court is likely to interfere with conviction or sentence, as well as looking at the courts’ approach to procedural matters. The featured article provides an in-depth commentary on a current appeal topic - in this edition, Kirsty Brimelow QC reflects upon her recent (positive) experience of the CCRC.

 

I look at the latest CACD cases based on grounds alleging improper cross-examination and errors in the summing up.

 

Farrhat Arshad reviews her case of Rana – a rare example of a successful appeal based on fresh evidence.

 

Richard Thomas looks at the latest Hong Kong appeals involving challenges to convictions based on lies directions, hostile witness and conspiracy to defraud.

 

I look at a decision from the Court of Appeal of Bermuda dealing with police destruction of evidence and abuse of process.

 

Richard Fisher QC  continues his series analysing appeals arising from financial crimes, and looks the question of the CACD has jurisdiction to hear an appeal by the prosecution against the terms of the default order made in confiscation proceedings pursuant to POCA 2002.

 

It is hoped that the Northern Ireland case summary will return next month.

 

Doughty Street has some of the most experienced appellate practitioners at the Bar, including the contributors to the leading works on appellate procedure - The Criminal Appeals Handbook, Taylor on Criminal Appeals, Blackstones Criminal Practice (appeals section).

 

Please feel free to e-mail us or to call our crime team on 020 7400 9088. We also offer our instructing solicitors a free Advice Line, where they can discuss initial ideas about possible appeals, at no cost to them or their client.  More information on our services can be found on our website.

 

We hope that the bulletin is of interest to you. 

 

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit


Welcome to the May edition of our monthly Criminal Appeals Bulletin.

 

The Bulletin aims to highlight recent changes in case law and procedure in England and Wales, Northern Ireland, the Caribbean and Hong Kong and to provide practical guidance to those advising on appellate matters. Our monthly case summaries illustrate when an appellate court is likely to interfere with conviction or sentence, as well as looking at the courts’ approach to procedural matters. The featured article provides an in-depth commentary on a current appeal topic - in this edition, Kirsty Brimelow QC reflects upon her recent (positive) experience of the CCRC.

 

 

I look at the latest CACD cases based on grounds alleging improper cross-examination and errors in the summing up.

 

Farrhat Arshad reviews her case of Rana – a rare example of a successful appeal based on fresh evidence.

 

Richard Thomas looks at the latest Hong Kong appeals involving challenges to convictions based on lies directions, hostile witness and conspiracy to defraud.

 

I look at a decision from the Court of Appeal of Bermuda dealing with police destruction of evidence and abuse of process.

 

Richard Fisher QC  continues his series analysing appeals arising from financial crimes, and looks the question of the CACD has jurisdiction to hear an appeal by the prosecution against the terms of the default order made in confiscation proceedings pursuant to POCA 2002.

 

It is hoped that the Northern Ireland case summary will return next month.

 

Doughty Street has some of the most experienced appellate practitioners at the Bar, including the contributors to the leading works on appellate procedure - The Criminal Appeals Handbook, Taylor on Criminal Appeals, Blackstones Criminal Practice (appeals section).

 

Please feel free to e-mail us or to call our crime team on 020 7400 9088. We also offer our instructing solicitors a free Advice Line, where they can discuss initial ideas about possible appeals, at no cost to them or their client.  More information on our services can be found on our website.

 

We hope that the bulletin is of interest to you. 

 

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit

Feature Articles
Financial Criminal Appeals
 
Richard Fisher QC
Richard Fisher QC

Richard Fisher QC  continues his series analysing appeals arising from financial crimes, and looks the question of the CACD has jurisdiction to hear an appeal by the prosecution against the terms of the default order made in confiscation proceedings pursuant to POCA 2002.


By Richard Fisher QC 

 

 

R v Graham Alan Mills

 

[2018] EWCA Crim 944

 

This appeal raised the question whether the Court of Appeal (Criminal Division) has jurisdiction to hear an appeal by the prosecution against the terms of the default order made in confiscation proceedings pursuant to POCA 2002.

 

FACTS

 

In confiscation proceedings under POCA 2002 the Judge assessed Mr MILLS’ benefit figure as £8,922,378 and the available amount as £657,197.33. The default term was set at 18 months. The prosecution applied for leave to appeal against the terms of the default order submitting that the default terms should have been for a considerably longer period: of the order of 5 to 7 years.

 

APPEAL

 

The prosecution submitted that judge fell into error and that the Court of Appeal should correct it, referring to Regina v German Castillo [2012] 2 Cr App R (S) 36 and the principles behind the statutory default regime. The respondent submitted that the Court of Appeal did not have jurisdiction but if it did, the setting of a default term involved the exercise of discretion with which the Court should not interfere unless it was plainly outside the range of appropriate default terms.

 

Their Lordships decided that although closely linked, the confiscation order and the default order are two orders, one is distinct from the other. Jurisdiction for appeals was expressly provided for by s.31(1) of POCA 2002, the prosecution has a right to appeal against the making of a confiscation order (defined in s.6(5)(b) of POCA 2002 as “…an order requiring the defendant to pay the recoverable amount.”). The words of the section did not extend to the default order and therefore there was no jurisdiction for the Court of Appeal to consider it.

 

Their Lordships added that they regarded the outcome as unsatisfactory and expressed the view that the Judge was in error in his assessment of the default term in the respondent’s case, appearing to take into account the sentence of imprisonment imposed for the offences he had pleaded guilty to (7 years) when the amount of the confiscation order clearly fell within the bracket of between 5 years and 7 years.

 

Commentary:

 

The Court’s decision was plainly right but the dissatisfaction expressed by their Lordships may act as the catalyst either for an amendment to s.31 of POCA 2002 to provide for a prosecutor’s appeal against a default term that is too low (or unduly lenient), or add to the thinking (not mine) that there should be a separate criminal offence of failing to pay a confiscation order which would carry a sentence of imprisonment (and which presumably might be one the A-G could refer). The latter option was recommended by the Home Affairs Committee in its report on the Proceeds of Crime published on 15 July 2016.

 

 

 

If you would like to talk to Richard Fisher QC about this case please email here.

Hong Kong Case Summaries
 
Richard Thomas
Richard Thomas

Richard Thomas looks at the latest Hong Kong appeals involving challenges to convictions based on lies directions, hostile witness and conspiracy to defraud.

 


 

By Richard Thomas

 

Court of Final Appeal

 

There was no substantive criminal business in April.

 

Court of Appeal

 

Appeal against conviction – Lies direction – hostile witness

 

HKSAR v Khan Changaz

 

[2018] HKCA 197; CACC 117/2017 (12th April 2018)

 

The appellant was convicted of trafficking ICE and cocaine. It was a “random search case” in which the primary evidence was from two officers who stopped the appellant in his car. The car was searched and a bag containing the drugs was found. The appellant’s DNA was on the bag. His defence was that the car had been borrowed by his cousin and the drugs belong to his cousin. He had only touched the bag because of his poor eyesight. His cousin was called to give evidence for the defence but did not come up to proof. He was treated as a hostile witness. The prosecution’s position was that attempt to call the cousin to say the drugs were his was a fabrication. The Court held that it was appropriate in such circumstances to give a lies direction about the attempted fabrication and also gave some guidance as to how a judge should direct a jury in circumstances where a witness has been treated as hostile.

 

 

Appeal against conviction – conspiracy – fraud

 

HKSAR v Chen Keen and others

 

[2018] HKCA 21; CACC 172/2016 (16th April 2018)

 

This very lengthy judgment arises from the appeals against conviction of those convicted for conspiring to defraud the Hong Kong Stock Exchange in relation to the attempted NZ$500 million purchase of a large number of New Zealand dairy farms. There were multiple grounds of appeal in what was a largely fact sensitive appeal. The Court rejected all grounds of appeal. One argument of note was that the appellants sought to argue individual counts improperly averred more than one conspiracy. As part of that argument it was asserted there was a divergence between the approach taken by the appellate courts in Hong Kong and the United Kingdom to conspiracy to defraud. The Court rejected these arguments, holding there was no such tension and that it was indeed one conspiracy and the evidence had been overwhelming.

 

 

If you would like to talk to Richard Thomas about these cases please email here

 

Caribbean Case Summary
 
Paul Taylor QC
Paul Taylor QC

Paul Taylor QC looks at a decision from the Court of Appeal of Bermuda dealing with police destruction of evidence and abuse of process.


By Paul Taylor QC

 

Court of Appeal of Bermuda

 

Failure by police to retain video – effect on fairness of trial – abuse of process

 

The Queen v Leon Burchall

 

BCA : No 14 of 2017 [5 March 2018]

 

The prosecution appealed against the decision of the Chief Justice who allowed an appeal by LB against his convictions for: (i) driving a motor vehicle while impaired; (ii) failing to comply with a demand made by a Police Officer to supply a sample of breath for analysis, (iii) assaulting a Police Officer in the execution of their duty.

 

The basis of the Chief Justice’s finding was the police’s destruction of a video recording of what occurred at the police station and their consequent inability to disclose it to the defence.

 

The questions for the BCA were whether the trial should have been stayed for abuse of process, and whether the Chief Justice was right to hold that it should have been, and accordingly direct the acquittal of LB on all three charges.

 

The prosecution evidence was that PC Evelyn had seen LB driving erratically on the wrong side of the road. LB stopped in a driveway and got out, stumbling and held the wall for support. The magistrate accepted the evidence of erratic driving, that LB’s eyes were glazed, he was unsteady on his feet, and his breath smelt of alcohol. He was taken to the police station where he became agitated and aggressive, and was said to have assaulted a police officer.

 

LB pleaded not guilty 3 days after his arrest.

 

The police had a video recording of events at the police station, but in accordance with ordinary practice, routinely destroyed it after three months. It had been destroyed by the time LB’s lawyer asked for disclosure of it. LB argued that he could not have a fair trial.

 

The BCA referred to  R v Feltham Magistrate’s Court, ex Parte Ebrahim [2001] EWHC Admin 130 regarding the non-disclosure of video evidence, and the Bermuda statutory disclosure obligations under sections 4 and 6 of the Disclosure and Criminal Reform Act 2015.

 

The Court found that in this case there was a duty on the police to preserve the video evidence. Such events were recorded “for the very purpose of providing independent evidence of what had occurred in the event of a dispute.”

 

The Court accepted that there was “prejudice to a fair trial” in relation to counts 2 and 3, but not in relation to count 1. There was extensive evidence of LB’s behaviour when driving and initially stopped and the Court thought that “anything that might have been shown on the video would have been unlikely in the extreme to have had any bearing with regard to count 1.”

 

Accordingly, Count 1 was upheld.

 

Commentary:

 

Where evidence has been destroyed, one of the central questions for a court is whether that disadvantage to the defendant could be accommodated to ensure a fair trial. Each case is fact specific. For an example of where the appeal court decided that the trial procedures were sufficient, see Clay v South Cambridgeshire Justices [2014] EWHC 321 (Admin). There the Court found that the magistrates had not erred in finding that there had been no abuse of process in a road traffic case where police had allowed a car to be destroyed before a defendant had had a chance to examine it because of the issues in dispute and the other available evidence.

 

 

 

If you would like to talk to Paul Taylor QC about any of the issues in this article please email here

Criminal Cases Review Commission And The Case Of Wang Yam
 
Kirsty Brimelow QC
Kirsty Brimelow QC

Kirsty Brimelow QC reflects upon her recent (positive) experience of the CCRC.


By Kirsty Brimelow QC 

 

“The Criminal Cases Review Commission has become one of the critical safeguards for our human, and thus fallible, criminal justice system, stepping in where things might have gone wrong.”  

Sir Brian Leveson CCRC Annual Lecture April 2018

 

In this article I consider my experience of working with the CCRC on Wang Yam, an appeal against a murder conviction.

 

The Criminal Cases Review Commission (CCRC) celebrated its 20 -year anniversary in 2017. It is set against a background of miscarriages of justice in the 1980s and emerged from the Runciman Commission which was appointed in the barely settled dust of the quashed convictions of the Birmingham Six. The Home Secretary's Criminal Cases Unit (CCU) was dismantled and the CCRC, an independent body free of executive attachments, was constructed. It was envisaged that the CCRC would not be smoothed or cowed into constitutional deference to the Court of Appeal (CACD) and would investigate and refer more cases.

 

A fundamental criticism of the CCU was that it referred too few cases. If CCRC’s success is measured against the number of cases it has referred to the Court of Appeal, it is failing. 96% of cases are not referred. However, the CCRC’s success rate, once referrals are made, keeps a steady 70%.

 

Powers

 

An application may be made to the CCRC for it to refer a case back to the Court of Appeal pursuant to section 9 of the Criminal Appeal Act 1995, where there is a “real possibility that the conviction … would not be upheld” if this application was referred to the Court of Appeal (section 13(1)(a) Criminal Appeal Act 1995) and the real possibility arises “because of an argument … not raised in the proceedings which led to [the conviction] or on any appeal” (section 13(1)(b) Criminal Appeal Act 1995) and the applicant has already appealed unsuccessfully (section 13(1)(c) Criminal Appeal Act 1995.[1]

 

When applying the “real possibility” test the CCRC seeks to predict what the CACD’s response would be if the case were to be referred. To quote the CCRC’s former chairman, Professor Zelick:

 

What is absolutely essential, it seems to me, is that, whatever statutory test Parliament--that is to say you--imposed, it has to be one that articulates with the test that the Court of Appeal itself has to apply. If you break that link and you establish an asymmetry between the two tests, you would be creating an absurd situation. It would create tension between the Court of Appeal and the Commission, it would raise expectations, it would cause confusion, and it is difficult to see what possible public interest could be served by referring cases on a basis that had no relationship to the test employed by the Court itself.”

 

Extension to the powers of the CCRC

 

The Criminal Cases Review Commission (Information) Act 2016, which came into force on 12 July 2016 extended the CCRC’s powers. Under s.17 of the Criminal Appeal Act 1995, the CCRC had the power to seek and obtain documents from “public bodies”. However, whilst including police and local authorities, it was narrowly interpreting and excluded trial lawyers. Section 18A amended the Criminal Appeal Act 1995 by allowing the obtaining of information from those who are not within public bodies. If there is a refusal, or resistance, the CCRC has the power to apply to the Crown Court for an order that a person gives access to a document or other material in that person’s control. The CCRC must satisfy the court that the document may assist the CCRC in the exercise of its functions. The Order may direct that the person against whom it is made must not destroy, damage or alter the material. In a new legal world of heavily redacted material, it would have been useful for this section to have explicitly set out the court’s power to direct the lifting of redactions, where the underlying material might assist the CCRC in the conduct of its functions.

 

 

Wang Yam

 

Wang Yam was convicted of the murder of Allan Chappelow, an 86-year old man and biographer of George Bernard Shaw, after two trials. In trial one, the jury was unable to reach verdicts in relation to counts of murder, burglary and theft and it was discharged on 1st April 2008. At his retrial, on the 16th of January 2009, Mr. Yam was convicted of murder, burglary and theft by a majority of 9 to 1. The convictions were upheld on appeal. This is the first and only murder case where a substantial part of the evidence was heard in camera, pursuant to Crown Court Order, section 11 of the Contempt of Court Act 1981, made on 15th January 2008 and varied on 27th February 2014 (Wang Yam [2010] EWCA Crim 2072; R (in the application of Wang Yam) vs CCC and another [2015] UKSC 76).

 

At the beginning of June 2006, the HSBC bank reported to the police suspicious activity around Mr. Chappelow’s bank account. The police attended Mr. Chappelow’s home in Downshire Hill in West Hampstead, North London and forced entry. They explored with the use of a torch but did not discover Mr. Chappelow. On 12th June 2006, police attended with a sniffer dog who signalled the body. Alan Chappelow’s was buried under half a ton of Yale University page proofs in a room at the back of the house. He had been battered to death and possibly tortured. He had been dead for weeks with larvae of bluebottle flies providing the evidence as to time of death.

 

The evidence against Mr. Yam was circumstantial. In outline, from 22nd May 2006, he was captured on CCTV in the HSBC bank attempting to cash 4 cheques which belonged to Mr. Chappelow. There was evidence that he used Mr. Chappelow’s bank card and Mr. Chappelow’s sim card was used in Mr. Yam’s telephones. Mr. Yam gave evidence that he took the property from individuals - “gangsters” - and that he did so to “get alongside them”. The motivation was evidence in camera and cannot be speculated upon.

 

 The prosecution case was that Mr. Chappelow had been leaving his house when he had discovered Mr. Yam stealing his mail and that there had been confrontation whereby Mr. Chappelow had “hightailed” into the back room in the house, been pursued by Mr. Yam and brutally murdered. This theory did not fit with the evidence which included that Mr. Chappelow walked with a stick and was increasingly frail, glasses were found near his body (he did not wear them going out), he was not wearing the distinctive long mac he always wore when he went outside, and his feet were partly under the furniture. There was no forensic evidence to link Mr. Yam to the property or Mr. Yam’s property to Mr. Chappelow. The forensic evidence was that there was “blood everywhere”. There were 8 cigarette stubs in the room next to the body with unknown DNA and unidentified footmarks on the paper and the body. Importantly, Mr. Yam presented as a man who would talk himself out of a situation and had no previous convictions or history of violence.

 

During appeals of the Contempt of Court Order, which, we submitted, in two High Court hearings (application back to trial Judge Ouseley and then a judicial review) and in the Supreme Court, was impeding Mr. Yam’s right to petition the ECtHR contrary to Article 34 of the ECHR, the reporting by Duncan Campbell of The Guardian resulting in contact being made by another resident of Downshire Hill, Jonathan Bean.

 

Mr. Bean informed us that he had contacted the police, about 9 months (mid February 20017) after Mr. Chappelow’s murder, when he had disturbed a mail thief in his porch. The man brandished a knife at him. Mr. Bean shut the door quickly. The man threatened him, shouting through the door that he would kill his wife and baby if he reported the matter to the police.  He was a dark skinned man with a London accent. When Mr. Bean was sure that the man had gone, he went out into the porch. His mail had been stolen. He and his wife contacted financial institutions to prevent any fraud. Whilst reporting the crime, Mr. Bean expressed fear and concern to the police that the burglary might be linked to Mr. Chappelow’s murder. He was frightened that the murderer was about to strike again.

 

 The police reassured Mr. Bean that there was no link as the person who had committed the murder was in prison. At that time, Mr. Yam was awaiting his trial, having pleaded not guilty. One of the officers who took the report had attended Mr. Chappelow’s home address the previous year. The crime report noted that Mr. Bean had been told there was no link to Mr. Chappelow’s murder. But the crime report was not added to the unused material schedules, nor was it disclosed to the prosecution lawyers in Mr. Yam’s case and so was not disclosed to his defence lawyers. Shortly after this incident Mr. Bean and his family moved to New York. It was upon their return when Mr. Bean read about Wang Yam’s fight against his conviction that Mr. Bean contacted The Guardian.

 

My instructing solicitors took two statements from Mr. Bean and an application was made to the to the CCRC. One general criticism I have seen of the CCRC is that it does not include the applicant’s lawyers in its investigations. My experience was the opposite. However, it might be unusual for the same lawyers to be representing the applicant some 10 years later. The work was substantial and, of course, completely unfunded for the lawyers.

 

I worked alongside the CCRC case review manager, Phil Pledger. My first contact with him was greeted by an extremely grateful email that I was the only one who had replied to him after months of his trying to contact others involved in the case, including the prosecution.  It is a concern with these cases that lawyers in the prosecution move on and there does not appear to be a corporate prosecution memory. I struggled in a similar way with the civil actions.

 

Work with Phil included email correspondence and telephone conferences. He updated me on his investigations and I poured through my 160 Advices, Notes, Legal Arguments, draft admissions, email correspondence, disclosure applications, draft closing speeches, half time submissions, cross-examination preparation, examination-in-chief preparation, experts analysis, evidence of all the neighbours from Downshire Hill and started to formulate the arguments as to why Mr. Bean’s evidence would have made an impact upon the jury which would likely have resulted in a Not Guilty verdict. Mr. Yam had waived legal privilege and so I forwarded documents to assist.  From my defending in the trials, I did not consider that he might have affected the verdict or that there was a possibility of this evidence affecting the verdict, rather, he would have made the difference to that majority conviction.

 

The case went before three CCRC Commissioners in 2016 and they decided to refer it back to the Court of Appeal. As the publicity continued around the civil actions I was heading up to the Supreme Court, a further witness contacted the press – this time the Camden New Journal – to provide information about Mr. Chappelow which contradicted the prosecution case that he was a recluse.

 

The Court of Appeal upheld the convictions. Where that went wrong is not the subject of this article. Wang Yam continues to write to me as he counts the days of his 20-year tariff, doubtlessly taking cold comfort from being one of  the 4% to succeed with a CCRC referral.

 

 

Kirsty Brimelow QC was junior counsel in trials one and two with Geoffrey Robertson QC and Geoffrey Cox QC respectively.  After her appointment as QC in 2011, she acted as leading counsel for Wang Yam (leading Nik Grubeck and joining with David Pannick QC in the Supreme Court) until 2017.  Currently, she is pursuing the successful application to the ECtHR. A book has been written about the case “Blood on The Page” by Thomas Harding. She remains grateful to the work of Case Review Manager Phil Pledger.

 

   

If you would like to talk to Kirsty Brimelow QC about any of the issues in this article please email here



[1] The CCRC is expressly authorised to overlook two of the limitations to its own authority in exceptional cases. So, in such exceptional cases, it can make a reference even where the case has not previously been subject to appeal or are relying on arguments which have previously been considered and rejected at earlier appeals.

New Case Law
Appeals against conviction - England and Wales

Case commentaries by Paul Taylor QC and Farrhat Arshad


By Paul Taylor QC

Murder – attempted murder – conviction and sentence – improper cross examination - Summing up - Fresh evidence

 

R v Jama Ahmed

 

[2018] EWCA Crim 739

 

Case commentary by Paul Taylor QC

 

The application for leave to appeal against conviction / sentence was referred by the single judge. The offences arose from a revenge attack between rivals of a Somali group. The Crown's case was that the motive for the index shooting was the killing of a gang member and, in JA’s case, since his younger brother had been assaulted by the victim a few months before the murder. The grounds (all rejected) related to: the admission of intelligence material; Multiple hearsay; Improper cross-examination of JA; summing up; fresh evidence.

 

The improper cross-examination ground: The Crown without application cross-examined JA about other offences of which he had been accused but not convicted. The judge declined to discharge the jury, and later directed it that the questions did not suggest JA had committed any offence of which he was not convicted. The CACD stated that “The appropriate way to behave was not in play. Not only did leading counsel for the Applicant endure the discourtesy of not being alerted but the material in question was evidence of bad character and, statutorily, required an application.” “However… the jury was directed appropriately and clearly. … the evidence was plainly admissible and the subject of an unimpugnable direction in clear terms.”

 

The summing up ground: The summing up is criticised on three fronts: for an insufficiently robust warning of the dangers of hearsay, for an absence of directions on specific hearsay problems; an over-robust direction on the inference available from the Applicant's silence in interview. The CACD stated:

 

Adverse inference: It is unfortunate that at one stage the judge used "might" – "… you might decide not to draw any adverse inference…" - when the clause should have read "you must not draw any adverse inference". This error however sits within an accurate direction as to what the jury had to be satisfied about before reaching a conclusion adverse to the Applicant.

 

The fresh evidence ground: The proposed fresh evidence did not go to an issue at trial. “…this was not a case in which an alibi defence would have answered the case for the Crown.”

Commentary:

 

This case is a useful illustration of two of the ways in which the CACD approaches the potential impact of any defects in legal directions:

  1. Firstly, it will consider the complaint in the context of the summing up as a whole. Here it was stated: “A summing up… is profitably read as an entire document. Selected extracts on their face deficient may be remedied by reference to other parts of the whole.”
  2. Secondly, it will ask itself whether, despite the defect, there was any real danger in the jury failing to understand what was the correct legal approach to the issue. In this case, the CACD stated in relation to the hearsay direction that despite a failure to repeat an earlier direction, “the jury could not have failed to understand how it should approach hearsay in the light of the entirety of the help the judge offered.”

 

Fresh evidence – expert - arson

 

R v Rana (Jodie)

 

[2018] EWCA Crim 725

 

Case commentary by Farrhat Arshad

 

This was an out of time application for leave to appeal against conviction, on the basis of fresh evidence.

 

In 2015 the appellant had been convicted of arson, being reckless as to whether life was endangered and doing an act tending to pervert the course of justice..  The Prosecution alleged that after a night out R had returned to the family home, where her parents and cat slept, poured accelerant on the stairs and set them alight.  There were no eye-witnesses. The case was based on circumstantial evidence.  Her motivation, alleged the Crown, was to blame her ex-partner by accusing him of the crime. 

 

Much of the evidence concerned R’s mobile telephone which showed that she had been near her home address at the relevant time and also showed that she had made telephone calls at particular times. Of particular importance was evidence showing that her mobile telephone had connected to the home wireless router at 0215, five minutes before the smoke alarm was triggered and her mother telephoned the fire brigade.  The Prosecution obtained an expert report which stated that the data was consistent with the handset being within a 20-25 metre radius from the home address when it connected at 0215.  This was based on the Virgin router literature and no independent tests had been carried out by the expert.  Also included in the expert report was a map showing two concentric circles around the router.  One at 20 metres was marked "inner margin" and the other at 25 metres "outer margin". R denied that she had been within 20-25 metres of the house at this time and maintained that she was some 80 metres away at the time. Her then legal team spoke to their own expert and he confirmed the Prosecution’s expert’s assessment, again without carrying out any of his own tests and based on general assumptions.  R’s own case (confirmed in her evidence) was that the phone regularly connected much further away.  Nonetheless, there was an agreed fact put before the jury:

 

"Map 3.4 shows the area where the handset could have been located to connect with the router in the bedroom.  The highlighted segment [within 20 metres] shows the area most likely for the handset to have been located but it could have been located anywhere within a radius of 25 metres from the router's location but not outside that radius."

 

Following her conviction fresh solicitors and fresh counsel were instructed.  An expert was instructed to carry out tests with a mobile telephone and the same model of router to ascertain what the range actually was.  That expert found that his tests produced a "reasonably solid service" up to 72 metres from the router and several areas up to 160m away where the test handset logged onto the network and exchanged data. His tests also showed that the distance from the router was not the determining factor as to whether there was a connection.  There was no connection in many places close by and a good connection at considerable distances. 

 

It was submitted on behalf of the appellant that the evidence of the appellant's close proximity to the house at 02.15.04 was at the heart of the Prosecution case and was relied upon not only to place her in the house when the fire was started but also as a significant attack upon her credibility. As a result the conviction was unsafe.  The Prosecution accepted that the expert evidence was an important component of the Prosecution case in what was a circumstantial but strong case but submitted that the conviction was safe having regard to the other evidence. 

 

The Court (Lord Burnett LCJ, Carr J and Phillips J) disagreed and quashed the conviction as unsafe, stating, “we have concluded that the fresh evidence, undermining as it does an important part of the Prosecution case both on timing and also the potency of the appellant's lies, renders the conviction unsafe.”  No retrial was ordered.

 

Commentary

 

When considering the impact of the fresh evidence on the safety of the conviction the Court made no reference to the jury impact test set out in Pendleton.  However, reference had been made to Pendleton in the written skeleton argument and orally it was argued that the effect of the cross-examination based on the flawed expert evidence must have been devastating to the appellant’s credibility in the eyes of the jury.  The Court had before them the transcript of the cross-examination so that the force of the attack upon the appellant’s credibility on this point could be seen.  It was argued that such an attack could now be seen to be unfair and unsupported by expert evidence in fact.  It may well be that the Court very much had the Pendleton jury impact test in mind though it was not referred to in the judgment.

  

 

If you have questions about any of these cases please do get in touch  with Paul Taylor QC or Farrhat Arshad