Case updates - February 2012 

R v Cleobury [2012] EWCA Crim 17 – Expert Evidence on Appeal

 http://www.bailii.org/ew/cases/EWCA/Crim/2012/17.html

 Summary: Provides clarification of when new expert evidence may be considered and the role of such an expert on appeal. The applicant renewed his application for leave to appeal against a conviction of rape following refusal by the Single Judge. The application focussed upon the findings of a new expert’s report on the DNA evidence given at trial, which levied criticism at defence trial counsel, the trial DNA experts, as well as the trial judge. The new expert’s report concluded that in the course of the applicant’s trial, there had been multiple instances where either the scientific evidence was not fully explored, it was incorrect, or the summing up by the judge was insufficiently detailed to address the complex issues raised by both trial experts.  The court held, agreeing with the Single Judge and dismissing the renewed application, there was strong evidence, quite apart from the DNA evidence, including significant identification evidence, which entitled the jury to convict and made the conviction unarguably safe. The court also pointed out that by expressly criticising how the evidence was dealt with at trial the new expert had failed to confine his report to matters within his sphere of expertise, namely the DNA evidence. Had he done so, it would have been very clear that the appeal was unarguable. The court also made some general observations on expert evidence. The court reiterated that it will not, in general, allow expert evidence to be re-litigated on appeal stating ‘it is plainly for the defence to call their expert evidence at trial and allow the jury to reach a verdict based on the evidence within the trial’.  There may be exceptions where, for example, there has been an advance in DNA technology, or in cases where it is in the interests of justice for the court to receive fresh evidence, but these should be determined on a case by case basis. 

The court emphasised that when an expert is asked to consider a case after trial they must always ensure that their report is solely focussed on providing expert opinion and it must not opine on matters outside their sphere of expertise. Importantly, an expert report produced after trial must never critique the trial proceedings and conduct of counsel, or the judge, and this should be made clear to the expert when their professional services are requested.  The Court highlighted that in this case failure to pay due heed to these principles had led the expert report in this case to read ‘more like a submission to the court rather than the report of an independent expert’. 

C V R [2012] EWCA Crim 6 – Can acquitted defendants be co-conspirators?

 http://www.bailii.org/ew/cases/EWCA/Crim/2012/6.html

 Summary: Provides further guidance on the circumstances in which the Crown is entitled to allege acquitted defendants are, or may be, co-conspirators.  The court also rules that in such an appeal the acquitted co-defendants may not intervene. 

The appellant, C, was originally charged with conspiring to import cannabis alongside M, B, C Senior and P.  M pleaded guilty whilst B, P and C senior were acquitted.  The jury did not reach agreement on C and his case was listed for re-trial.  C, whilst awaiting that second trial, appealed against the decision of the trial judge that the prosecution were entitled to allege at his retrial that ‘the three acquitted men are conspirators notwithstanding their acquittals’. The Crown accepted on appeal that it was only necessary for the Crown’s case that C was conspiring with M.  There were two pieces of evidence the Crown were relying on at C’s retrial, which had not been evidence against the three acquitted men, namely a post it note containing allegedly incriminating information that made mention of P, and also C’s defence case statement which offered an innocent explanation for the post-it note. It was held that the prosecution were entitled to tell the jury that it was their case that C snr and B were probably involved in the conspiracy and the jury could consider their probable role when deciding if they were sure that C had conspired with M.  Where, as with P, there was evidence not admitted at the first trial the prosecution were entitled to allege the co-defendant was, or probably was, a conspirator.  The court did not have to rule on the ‘more difficult’ question of whether the Crown could allege that a co-defendant was a co-conspirator on precisely the same evidence on which the co-defendant was acquitted.  The court stated that, whilst there is no general exclusion on the Crown alleging an acquitted defendant is a co-conspirator, the judge must decide whether, ‘it is unfair to the other conspirators or improper for the Crown to be able to assert that an acquitted person was a party to the conspiracy’ as per Austin [2011] EWCA Crim 345 The appeal was allowed so that the issue can be resolved at the trial in accordance with this decision. It was also held, after hearing full argument, that acquitted defendants could not intervene in the appeal.  Once they had been acquitted they were no longer ‘charged with a criminal offence’ and therefore no Article 6 rights could bite.  It did not bring justice into disrepute for the Crown to allege at a subsequent trial that someone who had been acquitted still may have been a conspirator as the acquittal may have only meant that the original jury were not sure that B, C senior or P had been conspirators.