Smith, R. v [2003] EWCA Crim 927

Case No 200107177X1[2003] EWCA Crim 927
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 nd April 2003
Before
LORD JUSTICE MANTELLMRS JUSTICE RAFFERTYMR JUSTICE GRIGSON
Between
REGINACrownSHANE STEPON SMITHDefendant
Mr P Weatherby instructed by Irwin Mitchell for AppellantMr M Ellison instructed by the Crown Prosecution Service for CrownHearing Hearing date: 24 th March 2003
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
[1]On the 5th November 1993 at the Central Criminal Court the Appellant was convicted of one offence of attempted rape and one of burglary with intent to commit rape. He was sentenced to five years imprisonment on the first offence, three years imprisonment on the second, to be served consecutively, making a total sentence of eight years. He has served that sentence.[2]Following his conviction he sought leave to appeal both conviction and sentence. Both applications were refused. He appeals against conviction for the second time following a referral by the Criminal Cases Review Commission. The grounds of appeal are wholly different to those advanced previously.[3]For the purposes of this appeal it is unnecessary to narrate the factual basis of the offences. It is sufficient to say that there was no forensic evidence linking the Appellant to the offences, and neither victim could identify their assailant: the only evidence which implicated this Appellant was his confession.[4]At trial there was no dispute that each victim had been attacked. Nor was it in dispute that the Appellant had admitted that in each case he was the attacker. The Appellant denied that he was in fact the attacker and alleged that his confession was untrue. As the learned

Judge directed the Jury, [p15B]:

“…you are going to have to determine…..whether you are satisfied so that you feel sure that the Prosecution has established that these are genuine confessions and not some contrived fantasies.”
[5]The defence case was unsupported by any medical evidence. It seems that Defence Counsel had relied upon a psychiatric report (of which no copy has survived) which indicated that whatever character deficiencies the Appellant might have had, they were not so severe as to be classified as abnormal. If that opinion was correct, the evidence of the psychiatrist as to the reliability of the confession would not have been admissible.[6]Since his release from prison the Appellant has been seen by two psychologists both pre-eminent in their field. Professor Gudjonsson was instructed on behalf of the Appellant, Ms Jackie Craissati by the Respondent. Each has interviewed the Appellant and conducted the necessary and appropriate tests. Each has analysed the series of interview which culminated in the confessions. It is unnecessary to rehearse the detail of their reports. Each has concluded that there are serious doubts as to the reliability of those confessions.[7]Their evidence is plainly capable of belief and affords a ground for allowing the appeal. It would have been admissible at trial. Without investigating the explanation for the failure to adduce such evidence at trial, this Court concludes that it is necessary in the interests of justice to receive that evidence.[8]In R v O’Brien, Hall and Sherwood [unreported] the Court of Appeal (Criminal Division) gave some guidance as to the approach to be adopted by Courts faced with evidence of this sort.

Lord Justice Roch stated:

“The members of this Court………are conscious of the need to have defined limits for the case in which expert evidence of the kind we have heard may be used. First the abnormal disorder must not only be of the type which might render a confession or evidence unreliable, there must also be a very significant deviation from the norm shown. ……..Second, there should be a history pre-dating the making of the admissions………which is not based solely on a history given by the subject, which points to or explains the abnormality or abnormalities.”
[9]The evidence of both psychologists is that the Appellant on testing, produced abnormally high confabulation scores, both on immediate and delayed recall. He is “abnormally suggestible and compliant on testing” (per Professor Gudjonsson).[10]There has been put before the Court uncontested evidence which satisfies the second of Roch LJ’s requirements.[11]The question for this Court is whether, in the light of the new and uncontested evidence this conviction can be regarded as safe. That question permits of only one answer. The conviction is not safe and must be quashed. Given that the Appellant has served his sentence, there is no public interest in ordering a re-trial.