R v Hakala
| Jurisdiction | England & Wales |
| Judge | Lord Justice Judge |
| Judgment Date | 19 March 2002 |
| Neutral Citation | [2002] EWCA Crim 730 |
| Docket Number | Case No: 2000/033/07Z4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 19 March 2002 |
Lord Justice Judge
Mr Justice Holman and
Mr Justice Mackay
Case No: 2000/033/07Z4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mark Heywood for the Appellant
Edward Rees QC, Peter Weatherby for the Respondent
This is an appeal against conviction by Peter Hakala (the appellant) following a Reference to this Court by the Criminal Cases Review Commission (CCRC).
On 9 th December 1986 the appellant was convicted at a re-trial before His Honour Judge Butler QC and a jury of three counts of rape (counts 1, 3 and 4 of the Indictment). These were unanimous, not as the CCRC suggested, and took into account in making the Reference, majority verdicts. At his first trial, which concluded on 30 th July 1986, he was convicted of assault occasioning actual bodily harm (count 2 of the same Indictment) but the jury were unable to agree verdicts on the rape counts.
On 16 th January 1987, Judge Butler, sitting at Southwark Crown Court imposed three concurrent sentences of life imprisonment for rape, with a three month sentence of imprisonment for assault occasioning actual bodily harm. The appeal is limited to the convictions of rape.
On 25 th March 1988, the Court of Appeal Criminal Division heard and refused a renewed application for leave to appeal against conviction and sentence. The present reference by the CCRC is based on expert evidence, not available at the original trial, said to cast doubt on the reliability of the evidence of the written records of the interviews (second and third interviews) of the appellant by the police in which he was reported to have confessed to the offences. The CCRC directed itself to consider whether, if the results of these new tests had been available at trial, the jury "with the knowledge of that fresh evidence", would necessarily have come to the conclusion that they did.
Mr Edward Rees, QC for the appellant, placed the recent decision of the House of Lords, and in particular the speech of Lord Bingham of Cornhill in R v Pendleton (2002) 1WLR72 at the forefront of his legal submissions. The House of Lords was concerned that this court may have addressed the wrong question – the guilt of the appellant – rather than the right one – the safety, or otherwise, of the conviction. Lord Bingham observed that "the question for …… consideration is whether the conviction is safe and not whether the accused is guilty". We respectfully doubt whether that observation, relied on by Mr Rees, advances the present appeal. Lord Bingham was confirming that, notwithstanding clear evidence of guilt, a conviction may be quashed as unsafe where, for example, it has followed a wholesale subversion of the criminal justice process ( R v Mullen (1999)2CAR143) or where the trial has failed to measure up to the requisite standards of fairness (R v Bentley (2001)1CAR21). On this point, R v Chalkley and Jefferies (1998) 2CAR79, and indeed other decisions of this court, to the contrary effect, are not to be followed.
The issue of principle for decision in Pendleton was whether, following the Criminal Appeal Act 1995, in an appeal against conviction based on fresh evidence, the test identified by the House of Lords, in R v Stafford and Luvaglio (1974) AC878 continues to apply. Viscount Dilhorne said:
"while, …..the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question".
That observation was adopted, either expressly, or in speeches which supported it, by the remaining members of the House.
The test was considered, and in the result adopted, or re-adopted, in the context of the 1995 Act, in Pendleton. Lord Bingham said, in terms, at paragraph 21 that "….. the principle laid down in Stafford was, in the opinion of the House, correct." The House was indeed unanimous on this point. Lord Hobhouse, who agreed that the conviction should be quashed, but for different reasons, wholly agreed with Lord Bingham, commenting, at paragraph 38, "….it is not right to attempt to look into the minds of the members of the jury. Their deliberations are secret and their precise and detailed reasoning is not known. For the appellate court to speculate, whether hypothetically or actually, is not appropriate. It is for the Court of Appeal to answer the direct and simply stated question: Do we think that the conviction was unsafe?".
Having identified the principle decided in Pendleton, we must examine the further observations by Lord Bingham relied on by Mr Rees. At paragraph 19, Lord Bingham highlighted that this court was not a court of trial or primary decision maker, and could only have "an imperfect and incomplete understanding of the process which lead the jury to convict". This passage reflected his earlier emphasis on the constitutional primacy of the jury in a criminal trial. He pointed out that the Court of Appeal "is entrusted with a power of review to guard against the possibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury's deliberations and must not intrude into territory which properly belongs to the jury". He also pointed out that the process which led to the conviction was clearer in some cases than in others. As he explained, "…. although the court does not have the jury's reasons, it does have the jury's verdict. From this some inferences may be drawn….if a proper judicial direction has been given, it will ordinarily be safe for the Court of Appeal to infer that the factual ingredients essential to prove guilt have been established against the defendant to the satisfaction of the jury".
Lord Bingham accordingly advised, and Mr Rees highlighted, that it will "usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional views by asking whether the evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict". We doubt whether Lord Bingham was in fact enunciating any very novel approach. He was repeating, in different language, perhaps with greater emphasis, a long standing practice of this court, not always, but frequently, to test fresh evidence by asking "what the effect of the new evidence upon the jury at trial might have been". (see Lord Lane CJ in R v Callaghan (1989) CAR40 at 47). Moreover, we note that Lord Bingham's advice in these passages represented the culmination of a paragraph in which he had begun by stating in unequivocal terms that, "it is undesirable that the exercise of this important judgment entrusted to the Court of Appeal … 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". In short, decisions, and particular judicial thought processes in other appeals where 'fresh evidence' has been considered (whether the eventual outcome was the upholding or quashing of the conviction) do not create a hurdle or series of hurdles which the appellant, or the Crown, are obliged to surmount.
Mr Rees finally emphasised Lord Bingham's observation in paragraph 26 that, "given the primacy of the jury, it must always be a ground for concern if the jury has never considered a potentially important aspect of the case". This appeal, he argued, was such a case, and if so, the appeal could not be dismissed on the basis of any assessment which we might make of Hakala's guilt. We shall examine the facts later in this judgment. We should say at the outset that although we fully appreciate the necessity for "concern", we do not accept that Lord Bingham's words in this passage bear the weight which Mr Rees sought to impose on them. Lord Bingham did not say that in such circumstances the conviction was, or should be regarded as unsafe. We are not surprised. Such an approach would be inconsistent with the language of section 23 itself. As Lord Hobhouse explained, "The admission of the evidence… in no way prejudges or forecloses this question: section 23 (2) refers to evidence which appears to the court to be "capable" of belief and which "may" afford a ground for allowing an appeal." Moreover, Lord Bingham himself did not imply any derogation from the Stafford and Luvaglio principle, which he had only just adopted and repeated, nor suggest that he was diluting his own clear warning against any obligatory " thought process".
In Pendleton itself, Lord Bingham's conclusion that it was not possible to be sure of the safety of the conviction followed an analysis of the fresh evidence in its factual context. 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 the 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 adduced 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 perform out its statutory responsibility in a fresh evidence case,...
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