R v Donald Pendleton

JurisdictionUK Non-devolved
Judgment Date13 December 2001
Neutral Citation[2001] UKHL 66
CourtHouse of Lords
Date13 December 2001
(Appellant) (On Appeal From the Court of Appeal (Criminal Division)

[2001] UKHL 66

Lord Bingham of Cornhill

Lord Mackay of Clashfern

Lord Steyn

Lord Hope of Craighead

Lord Hobhouse of Wood-borough



My Lords,


This appeal concerns the role of the Court of Appeal (Criminal Division) when fresh evidence is received on an appeal against conviction. The legal question raised (although not the legal question certified) is whether in Stafford v Director of Public Prosecutions [1974] AC 878 this House correctly defined the test to be applied in deciding whether or not to allow an appeal in such a case.

The outline facts


On the night of 2-3 June 1971 Mr Bernard Clark, a middle-aged newspaper seller, was murdered in Bradford. The appellant was interviewed by the police during the inquiry which immediately followed the murder, and made a statement dated 19 June 1971, but was eliminated as a suspect. Nearly 14 years later, as a result of information given to the police by Gordon Sharpe, the appellant was arrested on 23 March 1985. He was interviewed over a number of hours, in the absence of a solicitor, on that and the two ensuing days. After initial denials and assertions of inability to remember what had happened on the night in question, the appellant admitted being in the company of John Thorpe and in the vicinity of the crime when the deceased had been murdered, although he adamantly denied that he had himself inflicted any violence on the deceased. That violence had been inflicted by Thorpe. The appellant and Thorpe were jointly charged with murder of the deceased and were tried at Leeds Crown Court before French J and a jury.


At trial the appellant was represented by solicitors and two counsel. His instructions consistently were that he had not been in the vicinity at the time of the murder. When arrested he had been so upset and distressed that he could not stop shaking. He had been put under pressure and had been prepared to say anything to "get the police off my back". When he had come to make a statement he had tried to recite what the police had said, although it was a complete pack of lies. He had come to regret making the statement because it was so inaccurate. The appellant was unable to call evidence (other than his own) to substantiate his assertion that he had not been present at the time when the murder was committed, and that assertion was directly contradicted by the admissions he had repeatedly made in interview. The view was taken that, if he were to give evidence that his admissions of presence at the scene had been false, the jury would be unlikely to believe him. So (with, as the House understands, his consent) he was not called to give evidence and it was hoped that the jury would accept the truth of what he had said to the police in interview: that he had been present when the crime had been committed but had not himself been party to any violence. There was some evidence indirectly supporting this case. But the appellant's co-defendant Thorpe did give evidence, to the effect that it had been the appellant and not he who had murdered the deceased. The trial judge directed the jury that Thorpe's oral evidence was not evidence against the appellant, but on 3 July 1986 the jury convicted both defendants of murder. On 8 June 1987 the appellant's renewed application for leave to appeal was refused by the full Court of Appeal.


On 4 February 1999 the Criminal Cases Review Commission referred the appellant's conviction to the Court of Appeal in exercise of its powers under section 9(1)(a) of the Criminal Appeal Act 1995. By section 9(2) the reference was to be treated for all purposes as an appeal against his conviction by the appellant under section 1 of the Criminal Appeal Act 1968. The appellant then made application to the Court of Appeal to receive evidence not adduced at the trial. This evidence consisted, first, of reports by Professor Gudjonsson and Dr Badcock and related to the reliability of the admissions made to the police by the appellant in interview. It consisted, secondly, of documents dating back to 1971, in particular the appellant's statement of 19 June 1971, bearing on his movements on the evening of 2-3 June, but not available at the time of the trial. The reception of this evidence was not opposed. Professor Gudjonsson and Dr Badcock both gave evidence before the court and were examined and cross-examined. The court read and considered the appellant's statement of 19 June 1971. But having considered this evidence the court had no doubt but that the appellant's conviction was safe and so dismissed his appeal. The House is now asked to decide whether the Court of Appeal formulated the right test and, if it did, whether the court erred in applying it.


The certified question, not very pertinently expressed, is in these terms:

"Where, on an appeal against conviction, the Court of Appeal receives fresh evidence under section 23 of the Criminal Appeal Act 1968, in determining the safety of the conviction, is the court confined to answering the question, might a reasonable jury have acquitted the appellant had they heard the fresh evidence?"

The history and legislative background


Before 1907 issues of law arising in criminal trials could be resolved by writ of error and the reservation of legal questions under the Crown Cases Act 1848 and section 47 of the Supreme Court of Judicature Act 1873, but there was no readily available means of challenging a criminal conviction otherwise than on purely legal grounds. For very many years there was public pressure to establish a court of appeal with more general jurisdiction in criminal cases. Among other grounds for opposing such a court it was argued that to allow an appeal against conviction would undermine the role of the jury: see Radzinowicz and Hood, A History of English Criminal Law, 1986, vol 5 at p 765. This argument recognised what was, and remains, a central feature of trial on indictment in England and Wales, the extraordinary role of the trial jury. To it are entrusted, following a judicial direction on the law, the decision of the all-important issues of fact and the determination whether or not the defendant is proved to be guilty of the crime charged or some lesser alternative crime. In a civil trial by judge alone the judge will hear the evidence, consider the law and deliver a reasoned judgment summarising the legal principles governing the case and the facts to which they must be applied, and giving his decision. If the decision is challenged, an appellate court may ordinarily review both the legal ruling and the factual findings and the application of one to the other. But a criminal jury gives no reasons. Its answer is guilty or not guilty. While it is usually safe to assume, in the absence of very good reason for holding otherwise, that the jury will have heeded the judge's direction on the law, the process of reasoning by which its decision is reached is never disclosed and can only be a matter of inference. The role of an appellate court reviewing a conviction by a jury can never be the same as that of a court reviewing the reasoned decision of a judge.


The Criminal Appeal Act 1907 did not intend to undermine the traditional role of the trial jury but did intend to arm the new Court of Criminal Appeal with powers sufficient to rectify miscarriages of justice, of which there had been notorious recent examples. Section 1(7) of the Act provided that the court:

"shall, for the purposes of and subject to the provisions of this Act, have full power to determine, in accordance with this Act, any questions necessary to be determined for the purpose of doing justice in the case before the court."

A right of appeal was granted, with leave or with the certificate of the trial judge, on any ground of fact or mixed fact and law (section 3(b)). The core provision of the Act was expressed in section 4(1):

'The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.'

The subsection plainly called for an exercise of judgment by the court: "if they think", "they are of opinion". This core provision was buttressed by a range of other powers, again calling for the court to exercise its judgment: power to affirm or substitute a sentence "if it appears …" (section 5(1)); power to substitute conviction of a lesser offence if "it appears …" (section 5(2)); power to substitute such conclusion on the effect of a special verdict "as appears …" (section 5(3)); power to quash the sentence passed on a defendant if "it appears" that he was insane when the act was done (section 5(4)). A further and important range of powers was conferred on the court by section 9:

"For the purposes of this Act, the Court of Criminal Appeal may, if they think it necessary or expedient in the interest of justice, -

(a) order the production of any document, exhibit, or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case; and

(b) if they think fit order any witnesses who would have been compellable...

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