Garland, R v

On 20 December 2007 in the Crown Court at St Albans, before HHJ Baker QC and jury, the appellant was convicted (by a majority of 11 to 1) of burglary (count 1), aggravated burglary (count 2) and causing grievous bodily harm with intent (counts 3 and 4).

On 7 January 2008 he was sentenced by Judge Baker to imprisonment for public protection pursuant to s.225 of the Criminal Justice Act 2003 with a minimum term of 17 years on counts 2 to 4 to run concurrently. No separate penalty was imposed in respect of count 1.

On 8 May2008 the single judge, Nelson J, refused leave to appeal conviction and on 24 October 2008the Full Court (Hallett LJ, Stadlen J and HHJ Rook QC) refused his renewed application for leave to appeal conviction.

The appellant now appeals against conviction upon a reference by the Criminal Cases Review Commission under s.9 Criminal Appeal Act 1995 on the basis of:

“Material non-disclosure of information available to the police and the Crown, which gives rise to a real possibility that the Court of Appeal will find Mr Garland’s conviction to be unsafe.”

During the early hours of Sunday 17 July 2006, two male intruders entered the Harvester Public House in Rickmansworth. One of the males was Stephen Ruffolo. Simon and Nicole Cousin managed the pub and lived on the first floor of the premises with their two children. Shortly before 3.30 am, Mr and Mrs Cousin woke up to find the two men standing over them. Mr Cousin told them to get out, at which point they attacked him and his wife with knives. Eventually the two men fled the building. Ruffolo jumped out of the kitchen window and the other man left via the fire exit. The police and an ambulance were called to the scene. Mr and Mrs Cousin were taken to hospital, where they were treated for numerous stab wounds. Mr Cousin received emergency surgery and may never fully recover the use of his right hand.

Following the attack, Ruffolo went to his mother's house in Wolverhampton. On 23 July 2006 he handed himself in to the police and was interviewed. He accepted being present at the incident but denied taking part in the attack. He refused to name the other person as he feared for the consequences. He said that he had not intended that anyone should be hurt. He just wanted to steal goods so that he could sell them. He denied acting in joint enterprise and said that Mr and Mrs Cousin were mistaken when they said they had been attacked by both intruders. He said that he had remained outside the bedroom.

Following his trial but prior to being sentenced, he said that the second man involved in the attack was the appellant. There was no forensic evidence linking the appellant to the scene of the attack but there was telephone evidence showing that calls had been made between him and Ruffolo between 16 and 18 July 2006, both shortly before and after the attack. The appellant also had previous convictions for similar offences.

The appellant was arrested initially on 11 August 2006 and re-arrested on 12 June 2007. He admitted knowing Ruffolo but denied any involvement in the attack. At his trial the prosecution case was that the appellant was the second man involved in the attack. The defence case was alibi. The appellant said that he had spent the night of 16/17 July 2006 in his partner's house. He maintained that Ruffolo had only named him in order to obtain a reduced sentence knowing that he had previous convictions for similar offences and that he was lying when he said that he did not name the second man straightaway because he was in fear. It was argued that Ruffolo was an unreliable witness who had been disbelieved in an earlier trial. The central issue for the jury was whether the appellant was the second man involved in the attack. The jury were also asked to consider whether Ruffolo was pressurised by the police into making a false accusation.

Stephen Ruffolo gave evidence that after sustaining an injury about a year before the incident, he had been out of work and had become depressed, regularly drinking and taking drugs, regularly borrowing money to do so. He got into debt with drug dealers and often relied on the appellant for drugs or money. He had met the appellant about 6-10 months before the incident and knew that he had been in prison for robbery and that a weapon was involved. He was afraid of the appellant but nevertheless happy to associate with him.

Stephen Ruffolosaid that he had seen the appellant about a week or so before the incident and had received a telephone call from him that evening asking whether he wanted to do a burglary. He agreed that he had received a number of calls but said that the important one was at about midnight. They had met at the fire station and the appellant had asked whether he had anything on him that could be discarded and link them to the burglary. He said he had not known where they were going and when they arrived at the pub, the appellant gave him instructions and he followed him in. He denied having a knife or seeing the appellant with a knife. He thought they were looking for jewellery. The appellant went into a bedroom while he waited at the door. The occupants awoke and he saw the appellant fighting with the person on the bed. He froze in the doorway. He accepted that he had come into contact with one of the occupants during the struggle but denied that he was armed with a knife, that he had seen the appellant with a knife or that he had seen any blood or been aware that anyone was hurt. They both then ran away from the premises. He was in a panic and discarded clothing. When he saw the appellant, he noticed blood on his top.

After the incident he was in a panic and did not know what to do. He was afraid of the appellant and so he went to a friend who drove him up to the Midlands. He saw his mother, Joanne Turner,and told her he had done something stupid and was in real trouble. He told her that he had been involved in a burglary and someone had been stabbed, there had been a lot of blood and he did not know if the person had survived the attack. He was unwilling to name the other person involved. She repeatedly asked him who was involved but he refused. However at one stage he let slip the name “Jason” and then told her that that person had just come out of prison for armed robbery.

He said that he had named the appellant after the trial due to pressure from his mother and in order to do something for Mr and Mrs Cousin. He accepted that he was also aware he might get a lesser sentence as a result.

Mr Cousin’s description of the burglar who first attacked him matched the witness Ruffolo. He was not able to identify either the appellant or Ruffolo at a later identification procedure. He said that he was awoken by the bedroom door being opened. As he called out both the burglars jumped on him. He was not able to say whether one or both inflicted the injuries.

Mrs Cousin said she was awoken by her husband’s shouts and saw him wrestling with the intruders. She became involved in the struggle with both men and was also unable to say which was responsible for causing her injuries. As far as they were aware there were no knives missing from the premises although one later recovered was similar to a set they had in the premises.

The medical evidence of their injuries was consistent with its having been caused by a knife and there was forensic evidence which supported the complainant’s account of the struggle and that a knife was used during the incident. Clothing was recovered which had blood matching Mr Cousin.

The appellant was interviewed a year after the events in July 2007. He denied having any part in the offences; he said that he spent about £100 at weekends on cocaine but did not consider himself an addict. He said that he had gone to work on the Monday. He said that Ruffolo rang him out of the blue on 16 July after he had gone to bed and he rang back. Ruffolo wanted him to get some cocaine and have a chat. This was the only call he had received that night. He suggested that Ruffolo had named him because he had been pressurised into doing so and also to get back at him for sleeping with his girlfriend. He had not told him much about his previous robberies except that he would go into premises, wake people up and rob them.

The judge allowed an application by the Crown to adduce evidence of the appellant’s previous convictions. In 1995 the appellant had been sentenced to 14 years' imprisonment for a series of nine armed robberies and two attempted armed robberies on a total of eight different occasions, a number of which were at public houses. There were strikingly similar features to the offence for which he was facing trial. In particular, they were offences committed with accomplices; they involved entry through an upstairs window to the accommodation part of the pubs, often via a drainpipe; weapons were used, including knives and firearms; occupants were tied up for robbery either of safes or gaming machines. The prosecution argued these convictions showed a propensity to commit offences of the same nature to those in the indictment. The Judge noted that four of them had occurred in the early hours of a Monday morning, like the instant offence. All except one had been in the same locality as the Harvester. There were also points of dissimilarity: often more than two people were involved, some of them covered their faces, some were seen to wear gloves, lights were turned on inside, some of the offences demonstrated a degree of preplanning which was not discernible in the instant case, wires were cut to deactivate alarms or telephones and people were deliberately woken up and they were tied up.

The appellant gave evidence that he had met Ruffolo through a mutual friend and they often went to pubs and night clubs. He had met Ruffolo’s parents. He and Ruffolo took drugs together and he had given him cocaine in the past. Ruffolo had known exactly what he had been sent to prison for. They had argued about girls and had stopped seeing each other regularly in about April of 2006 after which they had seriously fallen out. By July 2006 he was working and earning £500-£1,500 per week and had no need to carry out the robbery at the Harvester. He spent the evening and night of 16-17 July with his girlfriend and they did not leave the house all night. He accepted that the flat was about 10 minutes’ walk from the Harvester. He said that Ruffolo had called him during the afternoon and overnight because he wanted cocaine and the appellant told him that he couldn’t help him out. Ruffolo had even turned up at the flat that night and he told him he was “taking the piss”. He had gone to work the following morning which had, in fact, been in Harrow at that time and he had made a mistake about that in his interview.

He pointed to the differences between the robberies he had committed previously and the incident at the Harvester. He said that there was a degree of professionalism in his offending that was lacking in the instant offence.

The appellant called alibi evidence from his girlfriend, C Kirkham. She agreed that the appellant had been with her all day and all night. She remembered being awoken by a call from Ruffolo that night. She was angry and turned the phone off. Ruffolo had turned up and thrown stones at the window.

The appellant was convicted by the jury (by a majority of 11 to 1) on all four counts.

The CCRC has referred the matter to the court on the ground that there has been material non-disclosure of information available to the police and the Crown which gives rise to a real possibility that the Court of Appeal will find the appellant’s conviction to be unsafe.

Following a public interest immunity hearing, disclosure has been made of information received by the police from two confidential sources.

The information is summarised in a disclosure note prepared by the Crown. The information came from two different sources

On 27 July 2006 police recorded information as follows:

“On the night of the incident a the Harvester in Croxley Green Mark ELLIS was high on drugs and was trying desperately to sell a bike so he could get more, he was also outside the Red House with a tall olive skinned male who is not from Croxley Green and may have been involved in the Harvester incident”.

The police record was based on a text message conversation involving a police officer the full text of which was as follows:

“Something I heard tonight steven ellis was high on drugs the night of the harvester trying desperately to sell a bike was then seen later outside red house with a tall guy with olive skin who had not been seen in Croxley”

“You think he might be involved”

“Yes this guy was not seen b4 and not since and mark was high as a kite and wanting more not a lot of distant between harvester and ellises”

The source was asked in November 2014 about this information. The disclosure note summarises the responses. The source was read the text message conversation and asked to remember it. After a while it came back to him or her. The source apologised and mentioned that he or she had problems with their memory due to treatment for an illness, but was without a doubt that what he or she had texted would have happened. However, if asked now, he or she could not say.

When told that the text message was sent at 20:53, the source said that he or she would have known about the content within a couple of hours before. The source said that he or she would have seen Steven Ellis. If it had been Mark Ellis he or she would have run a mile because Mark is evil.

The source was asked what he or she meant by “the night of the Harvester” and after thinking for a while mentioned a fire where the chef had set the place alight whilst smoking. After being told that there had been a nasty burglary at the pub resulting in the landlord being injured, the source said that he or she knew there was a burglary and confirmed that that was what was referred to in the text, although he or she was not aware of the severity of any injuries.

The source by his or her own admission stated that he or she was getting confused thinking about it. On re-reading the text conversation the source realised that the text messages must have been reporting third hand an overheard conversation.

The source later stated his or her belief that only Mark Ellis would be capable of committing the burglary. The source could not understand why he or she would have referred to Steven being high on drugs, as Steven just smokes a bit of weed but Mark is the one who will take every drug going. The source believed he or she must have meant Mark.

On 15 August 2006 police recorded information from a different source as follows:

“Mark ELLIS is committing shed breaks along Watford Road, he was also involved in the incident at THE HARVESTER PH, WATFORD”

On 25 August 2006 police recorded information as follows:

“Terence WATTS and Mark ELLIS are responsible for a series of shed breaks in Croxley Green area. They have stolen power tools, a petrol chainsaw and at one burglary they found homemade wine which they stole. They have carried out these shed burglaries over the last two months and have been targeting address along WATFORD ROAD, and in the viscinity (sic) of the OLD MERCHANT TAYLORS. WATTS and ELLIS were also responsible for the theft of lights from the exterior of the HARVESTER restaurant in Croxley Green. These lights were sold to a male called [X] at the fair in Mill End. ELLIS knows [X] as he has also previously worked [edited]”.

On behalf of the appellant Miss Kay Driver submits that this material should have been disclosed to the defence during the appellant’s trial but was not disclosed. She submits that had this material been before the jury this might reasonably have led the jury to acquit the appellant. She also submits that failure to disclose this material made the trial unfair. She says that as a result of that non-disclosure the appellant was denied an opportunity to investigate the leads provided by this material and to use the material in cross examination. Furthermore, in oral submissions Ms Driver was very critical of the police investigation and the conduct of the CPS in this case. She submits that the non-disclosed material was deliberately withheld in bad faith.

Mr. Duncan Penny QC, who appears on this appeal on behalf of the Crown, accepts that the material which has now been disclosed should have been disclosed to the defence at the time of appellant’s trial. In our view this concession is clearly correct. He denies that the material was withheld in bad faith. He further submits that the conviction is nonetheless safe having regard to all of the evidence in the case.

Section 2(1) Criminal Appeal Act 1968 provides:

In his skeleton argument Mr. Penny QC drew attention to the decision of the Supreme Court in McInnes v HM Advocate [2010] UKSC 7. The Scottish Criminal Cases Review Commission referred to the High Court of Justiciary a case in which the appellant had been convicted in circumstances where certain statements made to the police by a prosecution witness had not been disclosed to the defence. The complaint was one of non-disclosure in violation of the right under Article 6(1) ECHR to a fair trial. The appellant argued that the appropriate question was not whether disclosure of police statements would have made a difference to the outcome of the trial but whether it might have made a difference. The High Court of Justiciary rejected that argument. On a further appeal the matter came before the Supreme Court for the determination of a devolution issue, namely whether the appeal court had applied the correct test.

Lord Hope DPSC distinguished between two questions which arise in a case of this kind and to which different tests apply. The first question is whether the material which has been withheld from the defence was material which ought to have been disclosed. He continued:

“[20] The second question is directed to the consequences of the violation. This is the question that arises at the stage of an appeal when consideration is given to the appropriate remedy (see Spiers v Ruddy). In that case it was the reasonable time guarantee that was in issue, but I think that the ratio of that case applies generally. As Lord Bingham of Cornhill put it (para [17]), the Lord Advocate does not act incompatibly with a person’s Convention right by continuing to prosecute after the breach has occurred. A trial is not to be taken to have been unfair just because of the non-disclosure. The significance and consequences of the non-disclosure must be assessed. The question at the stage of an appeal is whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair and, as Lady Cosgrove said in Kelly v HM Advocate (para [35]), as a consequence there was no miscarriage of justice (see the Criminal Procedure (Scotland) Act 1995, sec 106(3)). The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict”

Later in his judgment he observed (at [24]):

“The question which lies at the heart of it is one of fairness. The question which the appeal court must ask itself is whether after taking full account of all circumstances of the trial, including the non-disclosure in breach of the appellant’s Convention right, the jury’s verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome – if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence.”

Lord Rodger agreed that the appeal should be dismissed. He stated at [30]:

“The significance of any infringement of an accused’s Art 6(1) Convention rights will depend on the circumstances. As has been said on many occasions, not every infringement of a particular right will mean that the accused’s trial as a whole has been unfair. Obviously, for example, failure to disclose a police statement of a Crown witness who is not called to give evidence will usually have no affect on the fairness of the trial. And, even in a case like the present where the witness, Pearce, gave evidence, an appellate court will have to assess how the failure by the Crown to disclose various statements which he made to the police actually affected the trial. Of course, an appellant can always argue that, if his advocate had been armed with the statements, it is possible that he could have persuaded the jury to come to a different conclusion. But the law deals in real, not in merely fanciful, possibilities. So, in cases like the present, an appellate court will only hold that a trial has been unfair and quash the jury’s verdict as a miscarriage of justice if there is a real possibility that, if the statements had been disclosed, a jury may reasonably have come to a different verdict. Mutatis mutandis, this is the same as the test in Stirland v Director of Public Prosecutions (p.321), which has often been applied by the appeal court.”

He agreed with what was said by Lord Hope at [24] and what was said by Lord Brown at [35] cited below.

Lord Brown stated at [35]:

“What, then, in the context of an undisclosed statement, makes a trial unfair? This, ultimately is the determinative question in the case. I would answer it as follows. The trial will be adjudged unfair if, but only if, the appeal court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence. This in turn depends upon whether the appeal court regards the non-disclosure as having denied the defence the real possibility of securing a different outcome. In short, in a case such as this, the appeal should be allowed if the court decides that, had defence counsel been in a position to make use of the undisclosed statement, the jury might reasonably have come to a different conclusion, otherwise not. It is that which must decide whether the jury’s verdict should be allowed to stand. I understand Lord Hope’s approach in para [22] to be entirely consistent with this formulation.”

Lord Walker agreed with Lord Hope and Lord Rodger. Lord Kerr agreed with Lord Hope and Lord Brown.

Mr Penny also drew the Court’s attention to the recent decision of this court in R v Richard Kelly [2015] EWCA Crim 500 where Burnett LJ, delivering the judgment of the Court, observed at [42]:

“We note that the approach to questions of non-disclosure in criminal trials was settled by the Supreme Court in McInnes v Her Majesty’s Advocate [2010] UKSC 7 relying upon earlier domestic authority, which in turn took full account of Strasbourg jurisprudence on Article 6 ECHR. In paragraphs [19] and [20] of his judgment Lord Hope identified two questions that fall to be considered in disclosure cases. The first is whether material under consideration should have been disclosed and the second is the consequence of any failure to disclose. As to the second he said:

“The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict.”

Both Lord Walker and Lord Kerr agreed with Lord Hope. Lord Rodger at para [30] and Lord Brown at para [35] expressed the test in slightly different terms but to the same effect.”

Mr Penny submitted that the court should approach this appeal in accordance with the principles identified in McInnes and as applied in Kelly.

At the oral hearing we asked Mr Penny how these passages were to be reconciled with authorities such as R v Pendleton [2001] UKHL 66; [2002] I WLR 72 and Mushtaq Ahmed v The Queen. [2010] EWCA Crim 2899. In particular we drew attention to the observations of Hughes LJ, as he then was, in Ahmed at [24]. In response Mr Penny made clear that he was not suggesting that the ultimate test to be applied was anything other than whether the appellate court considers the verdict unsafe, this being the statutory test under section 2, Criminal Appeal Act 1968. We invited further written submissions on the point.

In her written submissions Ms Driver for the appellant submitted that the approach adopted by Lord Hope in McInnes is not the definitive test to be applied but only one possible route by which the court can arrive at the conclusion as to the safety of the verdict. She submitted that the observations of Hughes LJ in Ahmed do not create a more stringent test for the impact of fresh evidence or previously undisclosed material. Rather they reinforce the approach of Lord Bingham in Pendleton that if the evidence or information might reasonably have affected the decision of the jury to convict, then the verdict must be thought to be unsafe. However, the jury impact test is not determinative but only a mechanism in a difficult case for the Court of Appeal to test its view as to the safety of the conviction.

Similarly, Mr Penny, in his written submissions, submits that the court should approach the question of the safety of the conviction in line with the analysis of Leveson LJ in R v Burridge [2010] EWCA Crim 2847 and Hughes LJ in Ahmed. He adds that if the court finds it useful it may, of course, apply a jury impact test in assessing the safety of the conviction.

McInnes is a decision on the law of Scotland. The relevant statutory provision is in rather different terms from section 2, Criminal Appeal Act 1968. Section 106, Criminal Procedure (Scotland) Act 1995 provides in relevant part:

“(1)

Any person convicted on indictment may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court –

(a)

against such conviction; …

…

(3)

by an appeal under sub-section (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on–

(a)

subject to sub-section (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; and

(b)

the jury’s having returned a verdict which no reasonable jury, properly directed could have returned.”

Furthermore, the Supreme Court in McInnes was addressing the issue as a devolution issue. As Lord Hope pointed out (at [5]) the High Court of Justiciary is the court of last resort in all criminal matters in Scotland and the task of the Supreme Court was, therefore, to identify the test where the complaint was of non-disclosure in violation of Article 6(1) and it was not for the Supreme Court to comment on the test to be applied in fresh evidence appeals which did not raise a devolution issue. Similarly, Lord Brown explained that it was for the Supreme Court to decide whether the court below had adopted the correct legal test but not whether it had then applied that test correctly to the facts. He also agreed with Lord Hope that there will have been a miscarriage of justice if, but only if, the trial as a whole was unfair and, in turn, that it is only if the trial as a whole is unfair that the Crown can properly be held to have acted in breach of Article 6 so as to require the conviction to be set aside.

In the law of England and Wales the statutory test requires the Court of Appeal to allow an appeal against conviction if they think that the conviction is unsafe. In R v Pendleton Lord Bingham stated at [19]:

“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 v Director of Public Prosecutions [1974] AC 878 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. 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 bears 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.”

In Burridge the Court of Appeal stated at paragraphs [99] – [101];

“[99] That brings the court to define the grounds for allowing an appeal on this basis, the principles of which are set out in a number of authorities at the forefront of which is R v Pendleton [2001] UKHL 66, [2002] 1 Cr App R 34, [2002] 1 WLR 72 (per Lord Bingham of Cornhill, at page 83, paras [18] and [19]) which was followed by this court in R v Hakala [2002] EWCA Crim 730 and R v Hanratty [2002] EWCA Crim 1141, [2002] 2 Cr App r 30. This line of cases was cited in Dial & anor v State of Trinidad and Tobago [2005] UKPC 4, [2005] 1 WLR 1660 by Lord Brown of Eaton-under-Heywood who gave the judgment of the majority (the others being Lord Bingham of Cornhill and Lord Carswell) and put the matter in this way:

“[31] In the board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view ‘by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict’: R v Pendleton [2002] 1 All ER 524 at [19]. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford v DPP [1973] 3 All ER 762, [1974] AC 878 at 906, and affirmed by the House in R v Pendleton:

“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 along for deciding the question [whether or not the verdict is unsafe]”

[32] That is the principle correctly and consistently applied nowadays by the Criminal Division of the Court of Appeal in England – see, for example, R v Hakala [2002] EWCA Crim 730, R v Hanratty, decd. [2002] 3 All ER 534 and R v Ishtiaq Ahmed [2002] EWCA Crim 2781. It was neatly expressed by Judge LJ in R v Hakala, at para [11], thus:

“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””

[100] That approach was adopted in R v Harris [2006] 1 Cr App R 5 (see per Gage LJ at para [101]) and it has been recognised that the “emphasis [in Dial] was put in a slightly different way” (R v Dunn & ors [2009] EWCA Crim 1371 per Goldring LJ at para [111]. Mr Blaxland, however, went further and submitted that Dial weakened the rigour of the test identified in Pendleton as exemplified by the fact that Lord Steyn (who had been party to the decision in Pendleton) dissented. In fact, Lord Steyn did not specifically challenge Lord Brown’s analysis of the law but strongly disagreed with the majority on the approach to the specific facts of the case. Thus, the majority took the view that the Court of Appeal of Trinidad and Tobago had been entitled to conclude that a proved significant lie by the main identifying witness was not so central to his identification as to throw real doubt upon it and so render the verdicts unsafe. Lord Steyn (and Lord Hutton) concluded that the Court of Appeal had not considered how the jury would have viewed the potential impact of the lie on the overall truthfulness of his evidence. They also identified further reasons which they considered undermined the safety of the convictions.

[101] Furthermore, as to principle, it is important to underline that Lord Bingham was part of the majority judgment articulated by Lord Brown and would hardly have been so had he considered that the analysis of Pendleton and the subsequent decisions was not both accurately reflected and fairly illuminated by Lord Brown’s exposition of the law. We have no doubt that it was: both in Stafford v DPP and Pendleton, the House of Lords rejected the proposition that the jury impact test was determinative, explaining that it was only a mechanism in a difficult case for the Court of Appeal to “test its view” as to the safety of a conviction.”

In MushtaqAhmed v The Queen Hughes LJ stated at paragraph [24]:

“Although it is not critical to the outcome in this appeal, we do not in any event agree with Mr Ali’s submission that it is sufficient to render a conviction unsafe that there now exists material which the jury did not have and which might have affected their decision. The responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on this court, which must make up its own mind. Of course it must consider the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. It is likely to ask itself by way of check what impact the fresh material might have had on the jury. But in most cases of arguably relevant fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury’s deliberations, since ex hypothesi the jury has not seen the fresh material. The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty. We have had the advantage of seeing the analysis of Pendleton … and Dial [2005] UKPC 4; [2005] 1 WLR 1660 made recently by this Court in Burridge [2010] EWCA Crim 2847 (see paragraphs [99] – [101]) and we entirely agree with it. Where fresh evidence is under consideration the primary question “is for the Court itself and is not what effect the fresh evidence would have had on the mind of the jury.” (Dial). Both in Stafford v DPP [1974] AC 878 at p.906 and in Pendleton the House of Lords rejected the proposition that the jury impact test was determinative, explaining that it was only a mechanism in a difficult case for the Court of Appeal to “test its view” as to the safety of a conviction. Lord Bingham, who gave the leading speech in Pendleton, was a party to Dial. ”

We note that Pendleton, Burridge and Ahmed were cases of fresh evidence and not of non-disclosure. However we consider that this cannot be a material difference when determining the test that must be applied. In both cases the material in question was not before the jury.

More recently, this approach has been applied by this court in R v. Noye [2011] EWCA Crim 650 at [25]-[31]; R v. O’Meally [2015] EWCA Crim 905 at [68]-[69]; R v. Edward Brown [2015] EWCA Crim 1328 at [43]-[46]; R v. Charlton and Ali [2016] EWCA Crim 52 at [112]-[113].

We do not consider that there is any inconsistency between these two lines of authority. Any apparent differences are, in our view, a matter of emphasis. In particular we note that the Supreme Court in McInnes made clear that it is for the appellate court to make its own assessment as to whether the trial as a whole was fair (see for example Lord Hope at [23]). That Lord Brown considered that there was no inconsistency between the two approaches is clear from a further passage in his judgment in McInnes. Having answered the question of what makes a trial unfair in paragraph [35], cited above, he continued:

“[36] This, I apprehend, would be the position in English law (both as to the test to be applied – in England as to the conviction under appeal is unsafe – and as to the decision being one for the appeal court itself) and I can see no good reason why it should be any different under Scots law. In Bain v The Queen (cited in Archbold, Criminal Pleading, Evidence and Practice 2009, at para [7.51]) Lord Bingham of Cornhill, giving the opinion of the Privy Council, put the matter thus (para [103]):

“A substantial miscarriage of justice will actually occur if fresh, admissible and apparently credible evidence is admitted which the jury convicting a defendant had no opportunity to consider but which might have led it, acting reasonably, to reach a different verdict if it had had the opportunity to consider it.”

[37] True, that was a case of fresh evidence rather than an undisclosed statement but, as a member of that Board, I did not regard the opinion there as inconsistent with an earlier opinion I myself had given in Dial and Gottin v Trinidad & Tobago (para [31]) in the context of fresh evidence which showed the main prosecution witness to have lied during his evidence at trial:

“In the Board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the Court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the Court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the Court regards the case as a difficult one, it may find it helpful to test its view “by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict” (Pendleton at p. 83, para [19]…). The guiding principle nevertheless remains as stated by Viscount Dilhorne in Stafford (at p906…) and affirmed by the House in Pendleton:

“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 [whether or not the verdict is unsafe]””

Similarly, in his dissenting judgment in Taylor v The Queen [2013] 1 WLR 1144 Lord Kerr addressed the question whether there exists a tension between the McInnes test and the question of the safety of the conviction. In his view there was no reason to believe that the McInnes case cast any doubt on the approach of Lord Bingham at paragraph [19] of Pendleton. He concluded (at [44]-[46]) that no such tension exists and that the proper test to be applied where new evidence which ought to have been put before the jury had subsequently come to light was whether that evidence might reasonably have led to an acquittal.

We also note that in R v Richard Kelly this court concluded its examination of the effects of non-disclosure by asking itself whether the conviction was unsafe and whether the appellant was denied a fair trial and answered both questions in the negative (at [48]).

In any event this Court has to apply the law of England and Wales as laid down in Pendleton, Burridge and Ahmed. In doing so we have had regard to the question of what impact the withheld material might have had on the jury. The ultimate question for our consideration, however, is whether that material causes us to doubt the safety of the conviction.

With regard to the value and relevance of the material Miss Driver submits as follows:

In our view, however, the entire edifice of the appellant’s submissions is built on a very shaky foundation.

We accept the submission by Mr Penny that the information obtained from Source 2 is totally irrelevant to the issues under consideration and may therefore be disregarded. It is clear from the second record of information from Source 2, that the incident at the Harvester to which he or she refers is not the burglary with which we are concerned but a theft of lights from the exterior of the building. This evidence is irrelevant to the issue of involvement in the burglary. Ms Driver did not attempt to persuade us to the contrary.

The statements from Source 1 are very unclear and unsatisfactory in a number of important respects and their provenance is also very uncertain.

For these reasons, the reliability of this information and the reliability of its source are highly suspect.

On behalf of the appellant it is said that the defence were denied the opportunity of making a hearsay application so as to adduce the material from Source 1. However, we do not consider that this evidence would have been admissible at the trial, had it been known to the defence. On an application under section 114(1)(d), Criminal Justice Act 2003 the court would have to be satisfied that it was in the interests of justice to admit it. In applying this test, the court would be required to have regard to its probative value. It seems to us that it has very little, if any, probative value. It is evidence of certain circumstantial matters which have caused Informant 1 to speculate as to the involvement of Mark or Steven Ellis in the burglary. The court would also have to consider how reliable the evidence of the making of the statement appears to be. Source 1 does not identify the party who made the statement which was overheard. Here we are concerned with multiple hearsay of very uncertain provenance.

The appellant submits that had this evidence been available at trial the judge would have been less likely to admit the evidence of the appellant’s bad character. The appellant invites this court to re-assess whether or not the case against him was sufficiently strong that his past convictions should have been placed before the jury. The argument here is that the case against the appellant would, in those circumstances, have been so much weaker that the judge should have concluded that this was a case where bad character evidence was simply being used to bolster a weak case.

We reject this submission. There is no reason to suppose that had the undisclosed material been available the court would have been any the less likely to admit the evidence of the appellant’s previous offending. On the contrary, as the Crown points out, had it been possible to conduct a positive defence in which it was suggested that Mark or Steven Ellis and not the appellant was Ruffolo’s accomplice, the issue of the appellant’s propensity to commit burglaries and robberies of this kind would have been even more material. We are confident that the evidence of the appellant’s previous convictions would, in these circumstances, have been admitted through gateway (d) of section 101, Criminal Justice Act 2003. It would have been important for the jury to compare the evidence which implicated the appellant and such as might have implicated whichever of the Ellis brothers was said to have been involved. If the defence had run a positive case that Ruffolo’s accomplice was Mark Ellis, the jury would have had to weigh the evidence of the relatively petty criminal offences which had been committed by Mark Ellis against the previous convictions of the appellant which bear a striking similarity to the index offences. In any event, the evidence of the appellant’s bad character would have been admitted through gateway (g) because of his attack on Ruffolo.

A further submission is made by Ms Driver that this material should have led to further investigations by the police. Alternatively, she submits that had this material been available to the defence it would have had the opportunity to make further enquiries. As it was, she submits, the appellant was denied that opportunity and the trial was unfair. We reject this submission. The material itself was, for the reasons set out above, most unsatisfactory. Moreover, the appellant’s submissions as to the possible outcome of further enquiries are so highly speculative that we are unable to accept that the non-disclosure denied the defence a real possibility of securing a different outcome.

Ms Driver was very critical of the conduct of the police and the CPS in relation to this investigation and the resulting proceedings. In particular she makes allegations that the undisclosed material was deliberately withheld in bad faith. While we consider that this material should certainly have been disclosed, we are unable to see that there is any basis for this allegation of bad faith. Detective Sergeant Duncan Woodhams states in his witness statement that the grade of the intelligence and the lack of corroboration led the investigation team to believe that this intelligence was the result of rumour and that it lacked credibility. On the basis of the investigation done into Mark Ellis it was agreed with the Senior Investigating Officer that he was not a credible suspect and that unless further information became available no further work would be done in relation to Mark Ellis. Furthermore, he states that the fact that such intelligence existed was highlighted on the schedules of unused material that were submitted to the CPS as part of the court files for both Ruffolo and this appellant. This submission does not advance the appellant’s case.

Notwithstanding the non-disclosure of this material, in breach of the obligation on the Crown to make proper disclosure, we have no doubt as to the safety of this conviction. The case against the appellant was not weak as is now suggested on his behalf. On the contrary his conviction was founded on a substantial body of evidence.

First there was the evidence of Ruffolo. This, of course, was the evidence of an accomplice and one who hoped to receive a lighter sentence for giving evidence in the trial of the appellant. However, the jury were given appropriate directions in relation to this.

Secondly, there was the evidence that Ruffolo, in a conversation with his mother very shortly after the offence, had named a “Jason”, who had just come out of prison for armed robbery, as his accomplice. On 27 July 2006, only ten days after the burglary, the police obtained a statement from Ruffolo’s mother, Joanne Turner, to this effect. This, as Ms Driver points out, is not evidence from a source independent of Ruffolo. However, it is significant evidence in our view. It was the appellant’s case at trial that Ruffolo was giving false evidence against him in the hope that he might receive a lighter sentence and in circumstances where they had fallen out over women. On the appellant’s case, this reference by Ruffolo to his mother to a Jason who had just come out of prison for armed robbery must have been part of a plan already conceived only days after the burglary to frame the appellant and to reduce his sentence. Yet, Ruffolo thereafter refused to name his accomplice. At his trial he was cross examined about this and still refused to name him. It was only after conviction that he informed the police that his accomplice was the appellant. It seems to us improbable in the extreme that the statement made to his mother was part of a carefully laid plan to frame the appellant at a much later date.

Thirdly, there were intensive telephone contacts between the appellant and Ruffolo at the time surrounding the burglary, a total of 7 calls between 19.13 on 16 July and 19.12 on 17 July. The prosecution case was that the appellant was in contact with Ruffolo in order to set up and then implement the joint plan to go to the Harvester. As the judge pointed out in his summing up, the times and the pattern of the calls fit the Crown’s case, including an attempt the following morning to make contact to talk over what had gone wrong during the burglary. By contrast, the appellant’s explanation of these phone contacts was that he was repeatedly disturbed by calls from Ruffolo asking the appellant to get some cocaine and to have a chat. This explanation and the intensity of the phone contacts at that time are, however, difficult to reconcile with the appellant’s evidence that there had been a major falling out between him and Ruffolo.

Fourthly, there was the bad character evidence of very similar offending by the appellant. This was, in our view, compelling evidence in support of the prosecution case. The judge, very fairly, pointed out the points of dissimilarity between the events at the Harvester and the appellant’s previous offences. Nevertheless, the points of similarity were very powerful evidence. The trial judge summarised them in this way:

“There are points of similarity between these offences and the incident at the Harvester. The points that I am going to list are not all common to each of the eleven other cases but most of them are found in most of the cases. Those offences involved licenced premises where the staff lived on the premises. All except one were in the same locality as the Harvester. They involved confrontation with a member of staff, usually the licensee. Mostly they occurred in the early hours of the morning. The licensee or other staff members were usually asleep when the entry was effected. Weapons were either taken to the premises or picked up there. Knives tended to be picked up at the premises themselves. Sometimes in the eleven offences, although not of course in this one, a handgun was shown. The offences were committed by more than one offender, the defendant said in his evidence at least three, of which one would be the driver. Quite often the number that were seen by those on the premises would be three. In the eleven offences, according to the defendant, they worked as a team though he put that forward as a point of dissimilarity, not similarity. Access was frequently gained via a window on the first floor, often over a roof, albeit a flat roof, not a sloping one as in this case. Sometimes drainpipes were climbed for access. The staff would be woken up, often by the intruders going into the bedrooms and express or implied threats from the weapons would be used in order to encourage them to give access to the safes and fruit machines holding cash downstairs and in order to switch off or immobilise or avoid the alarms.”

For these reasons, the undisclosed material does not in our view give rise to any doubt as to the safety of this conviction.

Finally, we record our appreciation of the careful work of the CCRC in preparing and making this reference.