By Robert Verkaik, Legal Affairs Correspondent

Regina v Pendleton Before Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Steyn, Lord Hope of Craighead and Lord Hobhouse of Woodborough
Speeches December 13, 2001

Whether a conviction was unsafe was a matter for the judgment of the Court of Appeal and no particular thought process was required, although in a case where fresh evidence was admitted on the appeal the court might test its provisional view by asking whether the fresh evidence might have affected the jury's decision to convict.

The House of Lords allowed an appeal by Donald Pendleton from the Court of Appeal, Criminal Division, (Lord Justice Pill, Mr Justice Sachs and Mrs Justice Steel) who on June 22, 2000, on a reference by the Criminal Cases Review Commission under section 9(1)(a) of the Criminal Appeal Act 1995 had dismissed his appeal against his conviction at Leeds Crown Court (Mr Justice French and a jury) in 1986 for murder.

Section 2 of the Criminal Appeal Act 1968, as substituted by section 2(1) of the 1995 Act, provides:

“(1) ... the Court of Appeal - (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case." Mr Michael Mansfield, QC and Mr Henry Blaxland, neither of whom appeared at the trial, for the appellant; Mr David Waters, QC, Mr Jeremy Benson, QC and Mr David Perry for the Crown.

LORD BINGHAM said that on the night of June 2-3, 1971 Mr Barnard Clark had been murdered in Bradford. The appellant had been interviewed by the police and made a statement, but had been eliminated as a suspect.

Nearly 14 years later, in March 1985, as a result of information given to the police, he had been arrested. He had been interviewed over three days and eventually admitted, after initial denials, to having been in the vicinity of the crime, though denying that he had himself inflicted any violence.

His instructions to his legal advisers had been that he had not been in the vicinity of the crime and had made the admissions because he had been upset and distressed and under pressure.

His advisers had taken the view that the jury would be unlikely to believe him. So, with, their Lordships understood, his consent, he had not been called to give evidence and it had been hoped that the jury would accept what he had said to the police at interview: that he had been present but not party to any violence. He had been convicted, and the Court of Appeal had refused him leave to appeal.

In February 1999 the Criminal Cases Review Commission had referred his conviction to the Court of Appeal. By section 9(2) of the 1995 Act the reference was treated as an appeal against conviction under section 1 of the 1968 Act.

On the appeal, fresh evidence had been admitted including the appellant's 1971 statement to the police, bearing on his movements at the time of the crime, and reports and oral evidence by a forensic psychologist and a forensic psychiatrist relating to the reliability of his admissions to the police in 1985.

Their Lordships were asked to decide whether the Court of Appeal, in deciding that the appellant's conviction was safe, had formulated the right test or erred in applying it.

In reliance on Stirland v Director of Public Prosecutions ((1944) AC 315, 321) Mr Mansfield had contended that the Court of Appeal should allow an appeal unless it was inevitable that the jury would have been convicted even if the fresh evidence had been adduced at trial.

Mr Waters based his response on Stafford v Director of Public Prosecutions ((1974) AC 878, 906) where Viscount Dilhorne had said:

“While ... the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question." It was undesirable that exercise of the important judgment entrusted to the Court of Appeal by section 2(1) of the 1968 Act should be constrained by words not to be found in the Act and that adherence to a particular thought process should be required by judicial decision.

His Lordship was not persuaded that the House in Stafford had laid down any incorrect principle, so long as the Court of Appeal bore very clearly in mind that the question for its consideration was whether the conviction was safe and not whether the accused was guilty.

But the test advocated by counsel for the appellant in Stafford and by Mr Mansfield had the dual virtue that it reminded the Court of Appeal first, that it was not and never should become the primary decision-maker, and second, that it had an imperfect and incomplete understanding of the full processes that had led the jury to convict.

It would, accordingly, usually be wise for it, in a case of any difficulty, to test its own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the jury to convict. If it might, the conviction must be thought to be unsafe.

In some of the authorities, the decision to allow an appeal was closely associated with the decision to order a retrial. That was understandable but wrong.

If the court thought a conviction unsafe, its clear statutory duty was to allow the appeal whether or not there could be a retrial.

Since the principle laid down in Stafford was, in their Lordships' opinion, correct, the attack on the Court of Appeal's self-direction in the present case failed.

There was no doubt that the appellant's advisers at trial had been seeking to achieve the best possible outcome for him, although it should be clearly understood that counsel's duty was to give effect to his instructions and not to present an alternative case inconsistent with them.

The inescapable fact, however, was that the jury had never had the opportunity to consider whether the appellant's admissions to the police were reliable and true.

In the light of uncertainties as to what might have happened if they had and if the fresh psychological evidence had been available to them, it was impossible to be sure that the conviction was safe.

Lord Mackay, Lord Steyn and Lord Hope agreed and Lord Hobhouse delivered a concurring opinion.

Solicitors: Taylor Nichol, who did not act at the trial; Crown Prosecution Service, Casework Directorate.