REGINA v ISHTIAQ AHMED [2002] EWCA Crim 2781

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
[2002] EWCA Crim 2781Case No Case No: 20005061X2Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
REGINAISHTIAQ AHMED
Before
Lord Justice MantellMr Justice JackMr Justice SimonMr M Topolski QC and Mr M Huseyin (instructed by Rowberry Morris) for the AppellantMr B Houlder QC and Mr J Price (instructed by CPS) for the CrownHearing dates : 30th October – 1st November 2002Date 6 December 2002

Lord Justice Mantell:

Introduction

[1]On 17 October 1989 a young man named David Pickering was strangled to death. Following a trial of 28 days, on 31 January 1991 Ishtiaq Ahmed was unanimously convicted of Richard Pickering's murder after the jury had been in retirement for just over 4 hours. Ishtiaq Ahmed appealed against conviction. Following further investigations his appeal was dismissed on 24 February 1995. The case now comes before the Court for a second time having been referred by the Criminal Cases Review Commission.[2]The reference is made under section 9 of the Criminal Appeal Act 1995. By section 9(2) the reference is to be treated as an appeal under section 1 of the Criminal Appeal Act 1968; that is, as any other appeal coming before the court. By section 2(1) of the 1968 Act as amended, the Court of Appeal 'shall allow an appeal against conviction if they think that the conviction is unsafe.' The Court of Appeal has jurisdiction to hear further evidence under section 23 of the 1968 Act as amended. The operation of these provisions was considered by the House of Lords in R v Pendleton [2001] UKHL 66 , [2002] 1 CR APP R 34 , to which we shall return.[3]The sole ground of appeal now relied upon is that which prompted the reference, namely that since the first appeal hearing an important prosecution witness, Renuka Pun, has told the appellant's sister that she gave false evidence at trial. The evidence at the trial[4]The appellant is one of three brothers who owned a video shop and ten houses in the Reading area. The houses had been converted so that the rooms could be used as bed-sitters. Among the properties were 11 and 13 Waylen Street, Reading. This case primarily concerns No. 11, although two of the tenants in No. 13 also gave evidence at trial. It was the prosecution case that the appellant acted as a rent enforcer, and was ruthless in that role. The defence case was that the appellant was a patient and considerate landlord who treated his tenants well, on occasions lending them money or extending credit.[5]In the summer of 1989 five young men from the North East came to the Reading area to seek employment. They were friends; and it was the prosecution's case that they all got on well together. Their names were Clive Scott, Mark Randle, Stephen Muir, Martin Hogg and the deceased, David Pickering. They obtained accommodation at 11 Waylen Street; and all of them, apart from Martin Hogg, found work locally. At the end of August or early September 1989 Martin Hogg went back to the North East having run out of funds. He returned to Reading at the end of September to take up an offer of work at the place where Mark Randle was employed. At about the same time Stephen Muir changed his employment and began to work the night shift at Tesco's in Wokingham. He had formed a relationship with another resident of 11 Waylen Street, Renuka Pun, known as Renny Pun, who lived in the basement of the house (room 1) with her 21-month old son. It appears that Renuka Pun had lived in other properties owned by the three Ahmed brothers and acted for them as a sort of housekeeper.[6]In October 1989 Gary Saunders and Eleanor Coleman (room 2) and Gerrard Marlow (room 3) were accommodated on the ground floor of 11 Waylen Street. On the first floor were Clive Scott and Mark Randle (room 4) and Alan Nobes (room 5). On the top floor were David Pickering and Stephen Muir in the front room (room 6) and Kevin Gray in the back room (room 7).[7]On his return to the Reading area Martin Hogg took to using room 6, sleeping there at night when Stephen Muir was working at Tesco's. Martin Hogg's use of room 6 was without the knowledge or consent of the appellant or his brothers. David Pickering and Stephen Muir paid a weekly rent of £65. Martin Hogg paid nothing.[8]It was common ground at the trial that during the evening and night of 16th-17th October 1989 the appellant made four visits to 11 Waylen Street. The important issue was whether he had gone there a further time and, if so, what had occurred during that fifth visit.[9]The first visit was made at about 6.30 in the early evening of 16th October. The appellant arrived to collect rent from David Pickering and Stephen Muir. David Pickering paid him £70. The appellant said he would come back later with £5 change. On this visit the Appellant saw Martin Hogg in room 6 making himself a toasted sandwich. The Appellant asked him what he was doing and Martin Hogg replied that he was living in accommodation elsewhere and since there were no cooking facilities he was just making some tea in his friend's room . The appellant left the premises without saying anything about the presence of Martin Hogg. It was the appellant's evidence, however, that he did not believe him, and was annoyed at having been lied to. He drove to 33 Argyle Street, the house of his girlfriend, Angela Motherway.[10]The second visit occurred at about 8.00 p.m. The appellant came to Mrs Pun's room and asked her why she had not told him about Martin Hogg sleeping upstairs. His brother, Mushtaq was also there. The prosecution's evidence was that the appellant was angry and told Renuka Pun that she would have to leave and find other accommodation. He also removed her television set because she was behind on her electricity payments. As he left, the appellant told Stephen Muir, who was in the kitchen, to see that Martin Hogg was out of the house by 10 o'clock. The unchallenged evidence of Eleanor Coleman, was that he added, "Don't tell me I didn't warn you".[11]Stephen Muir, Graham Marlow and Daniel Cotton (a friend of Graham Marlow's) all described Renuka Pun as being upset and tearful following this second visit from the appellant.[12]The third visit took place after midnight and before about 1 a.m. in the morning of 17th October. It was Martin Hogg's evidence that the appellant came up to room 6 and found himself and David Pickering there. Martin Hogg had earlier gone out and wandered around the town before returning to the house. The appellant was angry and threatening and told Martin Hogg to leave. Martin Hogg told the jury that the appellant's manner was gruff and that he was holding a baseball bat. He asked the appellant whether he was expecting trouble and the appellant said something like, "You can't be too careful". Martin Hogg gave evidence that, after getting dressed, he left room 6, went downstairs and out of the front door, closely followed by the appellant. He did not return to No. 11 and spent part of the night sleeping in an abandoned car. Clive Scott gave evidence that he was woken by a knock at his door (room 4) and was told by David Pickering that "Shakky" (the appellant) had caught Martin Hogg in his room and told him to get out straightaway and had also told him, that is, David Pickering to leave. He described David Pickering as agitated, nervous, frightened and upset. Mark Randle confirmed the evidence of Clive Scott about David Pickering coming to their room. According to his account David Pickering had said that the appellant had thrown Martin Hogg out and had told him and Stephen Muir to leave as well.[13]Tina Riley and Jason Boreham, who lived at 13 Waylen Street, also gave evidence of events at around this time. Tina Riley said that the appellant came into the room which she was sharing with Jason Boreham carrying a baseball bat under his arm. She asked him why, and the appellant replied that he was having some trouble with the people next door. She asked him whether he would like Jason to help him; but the appellant refused the offer and asked them if they would watch out for a large gentleman going into next door. Jason Boreham told the court: "He appeared to me to be frustrated and said he was having trouble next door".[14]Alan Nobes also described seeing the appellant as being angry and carrying a baseball bat. He said that the appellant later knocked on his door and asked him why "that bastard" was staying upstairs. He was slapping the bat against his hand and smelt of whisky. The evidence of Alan Nobes was accepted by the defence. Although Alan Nobes described this incident as occurring at about 1.45 a.m. it is likely that this incident took place on the third visit. Stephen Muir gave evidence that he had been telephoned by Renuka Pun who had asked him to come back to the house. She said that the appellant had thrown Martin Hogg out and that she could tell that David Pickering was frightened. Stephen Muir suggested it would be best if David Pickering stayed in her room and that they should barricade themselves in until he came home from work.[15]The fourth visit occurred at some time between 1.30 and 2.45 early on the morning of 17th October. The appellant returned to see if Martin Hogg was in room 6. He still had the baseball bat. Kevin Gray was woken by a constant tapping on the door of room 6. He heard a man's voice saying:
"Let me in. Open the door. Will you open the door?" with the tapping getting louder and then "if you don't open the door I will kick it in"
. Kevin Gray described the tone of voice as irritable and as if the person had been drinking. The appellant admitted that he had gone to room 6, and that he had been annoyed. He said he kicked the door once but had not damaged it. He said that he then went to Renuka Pun's room and complained about Martin Hogg being there without him having been told. He saw David Pickering in her room, got the keys for room 6 from David Pickering and went back up to the room where he checked that Martin Hogg was not there and then, returned and gave the keys back to David Pickering.[16]Tina Riley and Jason Boreham also gave evidence relevant to this fourth visit. Tina Riley recalled seeing the appellant standing outside No. 13 at about 2 a.m. Again she asked him whether he would like Jason to help and again he asked whether they would look out for the large gentleman going in next door and get in touch with him at home if they saw such a person. She asked what he meant by home and the appellant said:
"above the video shop"
. She saw him go to his car and put the baseball bat on the passenger seat and drive away. Jason Boreham gave a similar account but added that the appellant had said that he would be back in an hour.[17]It is convenient at this stage to note two points. First, although the appellant disagreed with some of the detail of the evidence given by the prosecution witnesses about his four visits, he accepted the broad outline of what had occurred. Secondly, none of the above evidence depended on Renuka Pun. The evidence of Renuka Pun was, however, supportive of and consistent with the other prosecution evidence about the four visits.[18]Before turning to the disputed fifth visit, it is necessary to pick up three matters all of which did depend upon the evidence of Renuka Pun. First, she described the appellant as prodding David Pickering with the baseball bat when he came to pick up the keys for room 6 during the fourth visit. A bruise consistent with a prod was found at post mortem. Secondly, when the appellant left after his fourth visit, Renuka Pun said that she went up to room 6 and found the door locked. She opened it with the keys went in and found the room undisturbed. Thirdly, she gave evidence that David Pickering left her room some time after the fourth visit and returned to room 6.[19]We now come to evidence which was central to the prosecution case. Renuka Pun spoke of the appellant visiting the house for a fifth time. This part of her evidence was very much disputed. It was the appellant's evidence that he had not made any further visits to the house. Renuka Pun's evidence was that when David Pickering decided to return to his room she arranged to join him for a cup of tea. She started up the stairs and had reached the first floor when she met the appellant coming downstairs. The appellant said:
"I did warn him and I'm warning you. You know what's what. Keep your mouth shut"
. The appellant also said something about coming back to see her. Her evidence was that she followed the appellant down the stairs and saw him go out of the front door. Before leaving he asked her how her son was. She understood that to be an indirect threat to her child.[20]Once the appellant had left the house she said that she went up to room 6. The door was slightly open and the lock was broken. She entered and saw David Pickering lying on the floor between the bed and the wardrobe. She shook him and put her hands to his mouth to see if he was breathing. She also felt for a pulse. She concluded that he was dead. She stayed in the room for about five minutes and then went to the lavatory where she was sick. She did not know how long she remained in the lavatory before returning to her own room in the basement, where she stayed listening to tapes on her Walkman until Stephen Muir came home from work at about 7.20 a.m. She followed Stephen Muir upstairs. She did not tell him what she had found earlier, and watched as he tried to resuscitate the deceased.[21]An ambulance was summoned at 7.53 and arrived five minutes later. There was evidence to suggest that the deceased's body was already cooling by that time and that certain areas of the surface of his skin were cold to the touch. In the light of that evidence and her findings at the post mortem, the pathologist expressed the view that death probably occurred at some time between 3.30 and 7.30 a.m. She could not be more definite.[22]We should refer to other important aspects of the evidence. The appellant said that he was at 33 Argyll Street with Angela Motherway between 4 a.m. and the arrival of the police at about mid-morning. This faced two difficulties. First there was evidence from two witnesses that his car was not to be seen in Argyll Street when they went out at 6.50 and 7.40 a.m. respectively. There was also evidence from police officers that, when they arrived, the appellant's car windows were clear, unlike others in the street which had misted up. Secondly the account given by the appellant in interview suggested that he was changing his story as necessary to fit the further information which the police were gathering as to the events of the night. To this is to be added the appellant's refusal to open the bedroom door to the police so that it had to be broken down, and his failure to ask until an advanced stage in his interviews who it was who had been murdered. Angela Motherway was equally unimpressive. Her several accounts given to the police were at variance as between themselves and with those being presented by the appellant.[23]In short it was a compelling case against the appellant. The previous judgment of this court concluded "Against all that evidence it was hardly surprising, in our view, that the jury accepted Mrs Pun's evidence of the fifth visit, despite the points that could be made against here as a witness." Having considered the long and careful summing up at the trial, we agree.[24]At trial leading counsel for the appellant told the jury that if they were sure Renuka Pun was telling the truth about that encounter on the stairs then there could be "no doubt as to who the killer is". In dismissing the appellant's appeal on 24th February 1995, this Court described her evidence as "a vital piece of evidence". We agree that her evidence was highly significant. We would only add that Renuka Pun's description of a fifth visit has to be seen in the context of the evidence of the earlier visits. The evidence about the earlier visits showed, first, that the appellant was becoming increasingly pre-occupied, agitated and angry about Martin Hogg being permitted to use room 6 without permission and without paying rent. Secondly that his anger was directed variously at Stephen Muir, Martin Hogg, Renuka Pun and David Pickering. Then there was the evidence of Jason Boreham that the appellant had said on the fourth visit that he would be back in an hour. The evidence of Mrs Pun and her statements[25]Although, as has been noted, there was a strong case against the appellant even without the evidence of Renuka Pun, what she said about meeting the appellant on the stairs was crucial in the sense that, as had been accepted on behalf of the appellant at the trial, if believed by the jury it was bound to lead to a conviction. If, however, the jury rejected her account or felt unsure of it, it was open to them to convict on the basis of the other evidence.[26]Renuka Pun made 5 witness statements prior to the trial. The first, made on 17 th October 1989 describes a visit by the appellant at about 7:40 p.m. on 16 th October, another at 1:30 a.m. when he banged on her door and was carrying a baseball bat and a third when he had come back about 4:20 a.m. and taken the keys to David Pickering's room. It refers to a telephone call made by her to Stephen Muir between the second and the third visit as a result of which David Pickering came to sleep in her room. The statement also refers to a further visit at about 5:00 a.m. when the appellant banged on her door and asked about Martin Hogg and David Pickering. It records that she told the appellant that Martin Hogg had not returned and that David Pickering was still in her room. This account had David Pickering returning to his room at about 7:30 a.m. approximately a quarter of an hour before Stephen Muir came back from work when she and Stephen Muir went up to room 6 where they found David Pickering's body. A second statement made on 19 th October dealt shortly with an incident in which the appellant had attacked Alan Nobes by taking hold of his throat. The third statement added little except that it included a further reference to the appellant being at the house at around 5:00 a.m. The fourth statement was of no consequence. However on 8 th November 1989 after Renuka Pun had left the Reading area she made a fifth statement in which she began by saying that she had not told the whole truth previously because of threats made by the appellant. In this fifth statement Renuka Pun said that what she had said previously about the earlier visits was correct except that it lacked certain detail including the fact that the appellant had prodded David Pickering with the baseball bat. The statement then goes onto describe how David Pickering had left to go back to his own room somewhat earlier than previously stated, that she had followed him up a little while afterwards and had met the appellant coming down the stairs. He said to her "I did warn him, and I'm warning you. You know what's what. Now keep your mouth shut or I'll be back to see you." And then, just as he was leaving the house he had made a thinly veiled threat against her child. She then continued up to David Pickering's room where she found the lock splintered and David Pickering apparently dead on the floor. After that she was sick several times and being very frightened went back to her flat to wait for Stephen Muir. She passed the time by playing a tape four or five times over. She was now prepared to tell the whole truth because having moved away from Reading she felt that she had nothing to fear.[27]Unsurprisingly the circumstances in which this last statement came into existence created considerable interest at the trial as it did on the first appeal. Indeed there had been a complaint by the appellant as to the manner in which the case had been investigated which had, in turn, led to an investigation. One of the complaints made on the first appeal was that trial counsel had not sufficiently explored the matter before the jury. The Court of Appeal considered that to have done so might have resulted in more harm than good, a view with which we are inclined to agree. It is only necessary to add that in the course of the enquiry which followed upon the appellant's complaint, Renuka Pun gave as reasons for deciding to tell the whole truth an account which does not coincide with the recollection of the police officer who recorded the statement. However, it did refer to inducements offered and threats made by the appellant's friends and family in connection with her evidence. Events after the appeal[28]Renuka Pun lived with Stephen Muir until April 1998. They had a number of addresses. They did not return to Reading. On 11 October 1996 Stephen Muir was dismissed from his employment by the University of Sunderland. On 4 November 1997 an application was made on the appellant's behalf to the Criminal Cases Review Commission.[29]On 3 and 4 March 1998 Renuka Pun made 4 telephone calls to Naheed Khan, the younger sister of the appellant. The calls on 3 March were partly recorded by Naheed Khan. Those on 4 March were wholly so. In the last of these calls Renuka Pun stated that the man who had killed David Pickering and whom she had met on the stairs was not the appellant but Alan Nobes. It has to be said that the greater part of the recorded calls is taken up with discussion about whether Renuka Pun was prepared to speak to somebody else and much of it is difficult to follow. There are references to her needing money to move house. There are other enigmatic references behind which, it is suggested, lay a desire to obtain money.[30]As a result of these calls, on 20 July 1998 Renuka Pun was interviewed at her home by two representatives of the Criminal Cases Review Commission. A friend was present. In the interview she stated that it was not she whose voice had been recorded. However, she refused to sign the record of the interview and asked that she be taken to the local police station without her friend being present. In her evidence to us Renuka Pun stated that one reason why she wanted to go to the police station was that she did not understand who the representatives of the Commission were and wished to be assured that they were genuine. The other reason was that she did not want her friend to know why she had made the calls. On the way to the police station she told the Commission representatives that she had not told them the truth that and that it was indeed she who had made the calls. This was expanded upon in a statement which she made at the station. In that statement she described how a Pakistani man had come to her home and had told her that he had certain knowledge about Stephen Muir and the reason why he had lost his job which Sunderland University. It is not necessary for us to detail the full nature of the knowledge which the man claimed to have save to say that it related to alleged discreditable conduct which we can well understand Renuka Pun not wishing to have conveyed either to the authorities or Stephen Muir's family. In her statement Renuka Pun went on to say that the man threatened to publicise the information unless she made a call to the appellant's family. She described in some detail why the threat was a real one to her and one to which she felt the need to respond. What she was required to do, so she stated, was to telephone the appellant's brother saying that she had given false evidence at trial. The man had given her a telephone number which she had lost and it became necessary for her to obtain it through a taxi firm in Reading. There was a reference to her having done so in one of the recorded conversations and there is separate evidence to show that is in fact was what happened. In her statement Renuka Pun claimed that she was told by the man to say that it was not the appellant she had seen on the stairs but someone else: she could give any description she liked.[31]On 30 June 1999 Renuka Pun answered written questions put to her by the Commission. In one of her answers she explains how the murder and trial have affected her life.[32]On 4 October 2001, three and a half years after the telephone calls to Mrs Khan, two officers from the Thames Valley Police visited Renuka Pun at her home. She declined to be interviewed formally or to allow the interview to be recorded but nevertheless told them of the threat that had been made by the Pakistani man, in some respects in different terms from that contained in her statement of 20 July 1998. She told them that she named Allan Nobes in the telephone conversations on instructions, although she had tried to hold back on what she was saying. She said that when she made some of the calls the man was sitting beside her. She spoke of the problems which the case was continuing to cause her The Appeal .[33]As already stated the only ground of appeal now relied upon is the history of this matter following the first appeal which, so it is said, creates a very real doubt about Renuka Pun's evidence at trial which ought to lead to the conclusion that the appellant's conviction is unsafe. To that end, and by agreement, all the background material to which we have referred has been placed before us as fresh evidence. In response the Respondent invited us to hear evidence given by Renuka Pun via a video link. The application was not opposed and the court granted leave. Accordingly she was called, examined in chief by the Crown and cross-examined on behalf of the appellant. There is a full transcript of her evidence which shows that because of her mental state she is claiming to be unable to recall matters of detail. However, she rejected the suggestion put in cross-examination by Mr Topolski QC that in making the telephone calls her purpose had been "to sell the truth for money". She said that she had told the truth save when she was speaking to the appellant's sister on the telephone and in her first interview with the Commission, the record of which she had refused to sign.[34]No medical evidence was put before us to support what Renuka Pun told us about her present condition, in particular her inability to remember detail. We bear in mind that it is easy for a witness who might otherwise face a difficult line of questioning to say "I cannot remember". We were satisfied, however, in particular by her general demeanour of over the two hours during which she gave evidence, that she did have real difficulty in recollecting the details of past events.[35]We have considered her evidence very carefully and the content of her statement made in July 1998, about a man coming to see her and making threats that unless she telephoned the Ahmed family he would broadcast information about Stephen Muir. We are sure that this is not a fabrication. It seems to us that starting with a clean slate, as would be the case if this had been invention, it was open to Renuka Pun to put forward any lie she chose. In those circumstances why not simply state that the man had threatened either her or her son with violence? That might seem far more straightforward and understandable. Instead she chose to say that the threat was not made directly against her or her son but involved the disclosure of unsavoury material about a man from whom she intended to separate. The fact that she put this form of blackmail forward involved the very consequence that she was anxious to avoid. Then the account in her evidence and statement is so circumstantial as to make it very unlikely to have been invented. Finally, notwithstanding the skilful manner in which she was cross-examined by Mr Topolski and the discrepancies which undoubtedly exist between her various accounts both internally and with those of others, we are entirely satisfied that her evidence about being threatened or blackmailed is substantially correct. Of course, our ultimate concern is the safety of the conviction as to which it was Renuka Pun's evidence that she told the truth at trial. That was something she stated more than once and in a manner which this court found convincing. We are sure that she was not lying when she told us that she did her best to tell the truth at trial. We are reinforced in that view by the absence of any discernible motive for Renuka Pun to point an accusing finger at the appellant and the very substantial body of evidence coming from sources other than Renuka Pun which also points to the appellant being the killer. We refer, of course to the appellant's refusal to open the door to the police; to the lies told as to his whereabouts at the material time; to the fact that he had a key to the front door of 11 Waylen Street; to the fact that he had displayed hostility towards David Pickering among others; to the fact that he was threatening violence; to the fact that on the fourth visit he said he would return later; and finally to the fact that he did not need to ask who had been killed. Conclusion[36]Lord Bingham's speech in Pendleton contained the following passage at p.453 with which all of their Lordships agreed:
"Where the Court of Appeal has heard oral evidence under section 23(1)(c) (whether pursuant to its own decision, or by agreement, or de bene esse ), the evidence will almost always have appeared, on paper, to be capable of belief and to afford a possible ground for allowing the appeal. By the time the Court comes to decide whether the appeal should be allowed or dismissed, it will have heard the evidence, including cross-examination, and any submissions made on its effect. It may then conclude, without doubt, that the evidence cannot be accepted or cannot afford a ground for allowing the appeal. Such was the case, for example, in R v. Jones (Steven) [1997] 1 Cr.App.R. 86, where the Court, having decided to receive and having heard opinion evidence from an expert, found conclusive objections to the acceptability of that opinion (see p. 94). The Court may, on the other hand, judge the fresh evidence to be clearly conclusive in favour of allowing the appeal. Such might be the case, for example, if a witness who could not be in any way impeached testified, on oath and after all appropriate warnings, that he alone had committed the crime for which the appellant had been convicted. The more difficult cases are of course those which fall between these extreme ends of the spectrum. It is 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 statute and that adherence to a particular thought process should be required by judicial decision. Thus the House in Stafford were right to reject the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their minds and not the effect that that evidence would have had on the mind of the jury ((1974) 58 Cr.App.R.256), ([1974] A.C.878 at 880). It would, as the House pointed out, be anomalous for the Court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. I am not persuaded that the House laid down any incorrect principle in Stafford so long as the Court of appeal hears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty. But the test advocated by counsel in Stafford and by Mr. Mansfield in this appeal does have a dual virtue to which the speeches I have quoted perhaps gave somewhat inadequate recognition. First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe."
Pendleton was considered by this court in R v. Hakala [2002] EWCA Crim 730 . Judge L.J. identified the principle in Pendleton as being the same as professed by Lord Dilhorne in Stafford [1994] A.C. 878 at 906:
"While, …., the Court of appeal and this House may find it a convenient approach to consider what a jury may have done if they had heard the fresh evidence, the ultimate responsibility rest with them and them alone for deciding the question."
Judge LJ considered in paragraph 9 of the judgment in Hakala the effect of the concluding words of Lord Bingham in the passage we have cited from Pendleton . He concluded that Lord Bingham was doing no more than repeat in different words the long-established practice of testing fresh evidence by asking what its effect on the jury at trial might have been. In a passage cited with approval by this Court in Hanratty [2002] EWCA Crim 1141 :

Judge LJ stated at paragraph 11:

"The judgment in "fresh evidence" cases will inevitably therefore continue to focus on the facts before the trial jury, in order to ensure that the right question – the safety, or otherwise, of the conviction – is answered. It is integral to process that if the fresh evidence is disputed, this Court must decide whether and to what extent it should be accepted or rejected, and if it is to be accepted, to evaluate its importance or otherwise, relative to the remaining material which was before the trial jury: hence the jury impact test. Indeed, although the question did not arise in Pendleton , the fresh evidence produced by the appellant, or indeed the Crown, may serve to confirm rather than undermine the safety of the conviction. Unless this evaluation is carried out, it is difficult to see how this Court can carry out its statutory responsibility in a fresh evidence case, and exercise its "powers of review to guard against the possibility of injustice"
. However the safety of the appellant's conviction is examined, the essential question, and ultimately the only question for this Court, is whether, in the light of the fresh evidence, the convictions are unsafe".[37]Section 2(1) of the 1968 Act as amended requires us to allow the appeal if we think that the conviction is unsafe. It is submitted that we should so conclude because of Renuka Pun's retraction of her evidence when speaking to the appellant's sister and her substitution of Alan Nobes as the prime suspect. As is shown by Pendleton and Hakala it is for this Court to decide whether or not the evidence should be accepted. If it is to be accepted, the question is then as to its impact on the safety of the conviction. The new evidence here is that of Renuka Pun and the appellant's sister that they took part in the telephone conversations in the terms recorded and transcribed. That is not in dispute. The question is whether Renuka Pun told the truth to us or was telling the truth in the conversations. As previously indicated we are satisfied that she told the truth to us and was lying in the conversations. Although not strictly necessary to say so we are also satisfied that she lied because she was being threatened.[38]It follows that in our view the fresh evidence has no impact upon the safety of the conviction. We might also add that in the context of the evidence as a whole any reasonable jury would be bound to reach the same conclusion. Accordingly this appeal is dismissed.

Cited in 20 later judgments

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