The European Convention on Human Rights inter alia, provides for a right to freedom of expression (Art 10), a right to a fair trial (Art 6 (1)) and a right to be free from discrimination (Art 14).

The Human Rights Bill (Cmnd 3782) cl 3, "provides that primary and subordinate legislation, whenever enacted, must as far as possible be read and given effect to in a way which is compatible with the Convention rights" (see Chalkley [1998] 2 All ER 173B, per Auld LJ).

There are limitations.

The ECHR does not say you must take account of cultural difference, unless such difference leads to exclusion or less favourable treatment.

Cultural difference might include consideration of way of life, where for example, the doctrine of purdah may make women silent or complicit or result in perjury or recantation.

It is judges who will give effect to the Convention rights and it is judges (largely male and largely white) who will interpret the meaning and impact of cultural factors, for example, purdah.

Gender and ethnicity is at the very gravitas of the circumstances in the case against Zoora Shah who could not speak and when she spoke could not be heard.At her trial for the murder of Mohammed Azam on December 21, 1993, who died from arsenic poisoning, she gave no evidence and in police statements denied any involvement in the killing.

The prosecution depicted Zoora Shah as a scheming woman who killed in order that she might profit financially from the house in Bradford, bought in Azam's name although she made the mortgage repayments.

She was found guilty of murder and sentenced to life.On appeal, before Lord Justice Kennedy, Mr Justice Butterfield and Mr Justice Richards, (March 31-April 3), she confessed to killing Azam, pleading guilty to manslaughter on the grounds of diminished responsibility.

It was necessary to provide a convincing account of why she had perjured herself at trial, why now she was speaking the truth not merely serving an ulterior motive and to satisfy the court that fresh evidence of diminished responsibility was "capable of belief" (s 4(2)(a) Criminal Appeal Act 1995 amending the 1968 Act) and may afford any ground for allowing the appeal (s 4(2)(b)).

Post-trial confessions by a defendant on appeal are rare, made instead by co-accused or third parties (for example the confession of O'Dowd to the Guildford bombings).

Zoora Shah's post-trial confession together with new grounds for a defence of diminished responsibility is almost unprecedented.Zoora Shah intended only to make Azam weak and impotent so he would not touch her or her daughters.

She described how she consulted with a holy man in Pakistan who gave her a taveez (writing on a piece of paper to be administered to the intended person by dissolving it in water and drinking it).

The words written would determine events and Azam after drinking the taveez would sign the house over to her.

The holy man gave her a neelatotha (green powder which would make Azam weak and impotent).

It was arsenic! "I did not know about the thing," said Zoora Shah.

Although at a later point she also said she was "no longer concerned whether he lived or died".The court then heard how Azam had sexually abused and pimped her to his friends finally threatening to have sex with her daughter.

Fear of Azam -- a criminal with previous convictions, and of his family -- who were powerful religious community leaders, and shame of what she had endured, silenced her and contributed to her mental state.

She spoke to no one, not to her GP, nor to her friends, nor even to her lawyers, "[t]he shame and insult to me .

.

.

I could do nothing.

I was a mattress for men in Bradford.

Disgrace for me .

.

.

it was my sons and my daughters.

I was frightened and my children in danger .

.

.

How could I tell them the truth?" The Court of Appeal heard fresh evidence on her mental state at the time of the killing -- of a long term reactive depression arising from his treatment of her -- which included demands for sex in the cemetery in which two of her children were buried.The court's task was to consider whether the fresh evidence, including the impact of purdah on Zoora Shah's denial and silence at trial and her subjugation and abuse physically and mentally on her mental state was evidence "capable of belief" (Criminal Appeal Act 1968, s 4 (2)(a) and whether the conviction was "unsafe" (s 2(1)(a)).

In accordance with s 23(1) the court has an unfettered discretion to receive fresh evidence if it is in the interests of justice.

Rarely is evidence received under this section because of the "public mischief" that would ensue (per Edmund Davies LJ, in Stafford and Luvaglio [1968] [Note] 3 All ER 752).

"It is only in the very rare cases that the matter can be raised in the Court of Appeal for the first time otherwise it would permit a practice of allowing appellants to have a second bite at the forensic cherry" (Jones 1980, Lexis, Enggen, January 28, per Roskill LJ, emphasis added, see also Arnold [1996] 31 BMLR 24).The "very rare cases" have included Home Secretary References (see Lattimore, Salih and Leighton (1976) 62 Cr App R 53, Ahluwalia [1992] 4 All ER 889, at 900CD, Ward [1993] 2 All ER 577 at 596) or where a plea of guilt was entered at trial (Lee [1984] 1 WLR 578, Foster [1984] 3 WLR 401, Swain [1986] Crim LR 480).

In Ahluwalia (ibid) at trial the first line of defence was that she had no intention of killing or causing really serious harm, a secondary line was provocation.

On appeal, fresh evidence was admitted to support a plea of diminished responsibility.

The court stated, "It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it.

Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences.

Nothing could be further from the truth" (per Lord Taylor, CJ, 899j).There is no test, magic incantation or formula for admitting evidence under s 23(1).

Home Secretaries have in the past applied public feeling or "other consideration of substance" to assist them.

The Court of Appeal has been obscure, although in Richardson and Others 1 996, December 5, Transcript, such a conclusion was reached having considered "all the circumstances of the case, it was expedient in the interests of justice for the evidence to be admitted".

Section 23(2) requires the court to receive fresh evidence if the evidence is "capable of belief" and may afford any ground for allowing the appeal, if the evidence is admissible and is on an issue and if there is a reasonable explanation for not adducing the evidence at trial.The "capable of belief" hurdle, is supposedly a lower threshold than its predecessor "likely to be credible" although the two phrases have been applied synonymously (see Stafford at 753A).

Lord Bingham asserts, "the requirement in sub(s) 2(a) that the evidence should be capable of belief applies more aptly to factual evidence than to expert opinion, which may or may not be acceptable or persuasive but which is unlikely to be thought incapable of belief in any ordinary sense" (Jones (1997) 1 Cr App R 86 at 93c)"On an issue" means on an issue which was raised below and is the subject of the appeal in this court (Melville [1976] 1 All ER 395).

This ground has been applied rigidly (see Kooken (1981) 74 Cr App R 30).

Reasonable explanations for not adducing evidence have included post-trial confessions of co-accused (Ditch (1969) 53 Cr App R 627), or inconsistent post-trial statements by prosecution witnesses (Conway (1979) 70 Cr App R 4).The court must also consider whether the conviction is "unsafe" (s 2 (1)(a) 1995 Act) rather than the former test of "unsafe and unsatisfactory".

"The new provision, in confining the test to one of safety of the conviction, may be, in this respect, narrower than before, depending on whether the word "unsatisfactory" signified an additional and independent ground for quashing a conviction or merely another way of saying "unsafe" (per Auld LJ, in Chalkley [1998] 2 All ER 172e).In resolving this question the court will defer to previous case law.

Again, there is no pre-determined formula, instead the "lurking doubt" test derived from Widgery LJ, in Cooper (1969) 53 Cr App R 82, prevails which the court acceded has more to do with "the general feel of the case" (see also Lake (1977) Cr App R 172) -- more to do with the judicial viscera than with the cerebra.

In resolving questions both of reception of fresh evidence and safety of the conviction the court will consider what "they think" (see Byrne (1989) 88 Cr App R 33, Callaghan and Others (1989) 88 Cr App R 40, at 47, Maguire [1993] 2 All ER 433), rather than what a jury might think, thereby reversing s 9, Criminal Appeal Act 1907, which required the court to consider what a jury might have done.In the case of Zoora Shah, the Court of Appeal (reserved judgment on April 30, see Practice Statement (Supreme Court Judgments) The Times, April 23, 1998) in considering the fresh evidence found the appellant to be a most unsatisfactory witness.

They had difficulty in understanding why no bruising was noticed or why she did not share her troubles when her own liberty was at stake, referring to her inconsistencies -- sharing her problems with a holy man in Pakistan but concealing them in Bradford, and discrepancies in her own statements and evidence.

As to grounds of her appeal the court were not convinced that was an abnormality nor that the evidence provided the basis for a finding of substantial impairment, applying what "they think".

Relying on Melville (ibid) the new evidence was considered not "on an issue" (but how could it be) and evidence of battered woman syndrome compounded by the ramifications and consequences of the doctrine of purdah and shame and fear was considered not to be a "reasonable explanation" for failure to adduce the evidence since in their view she had little honour left to salvage by coming clean first time round.

In respect of s 23 (1) the court concluded it was not in the interests of justice to receive fresh evidence very much for the same reasons that she failed to meet s 23(2).Where new evidence is inconclusive a retrial is especially appropriate (Ahluwalia (ibid) Thornton (No 2) [1996] 2 All ER 1023) this would require a finding of unsafe and a quashing of the conviction.

In the case of Zoora Shah all the evidence was inconclusive since complex cultural, religious and gender issues impossible to comprehend made it unlikely that her silence, her later admissions and her inconsistent accounts would be regarded as reasonable.

Legal rules have evolved and developed to deal with specific disputes and problems arising within an English context, and are applied by English judges, whose experience is of things English.

There have been few instances where the courts have given allowances for cultural difference (see Adesanya (1974) unreported).

In Bibi [1980] 1 WLR 1193, the appeal court reduced the sentence passed on a Muslim widow on the grounds that purdah and family practice had placed her under the total control of her brother-in-law.

(See Seemi, Edwards NLJ, May 25, 1990, Vol 140, No 6457, p 747.Psychiatric evidence of her diminished responsibility was also inconclusive and needed to be tested by a jury.

In the words of Devlin (The Judge, 1979,172-3) "(when) judges are seemingly indifferent to whether a jury has heard all the evidence or not, when they act as if all that matters is that they alone should be satisfied of the safety of the conviction, when they declare that if they have no doubt then neither should a jury, is there not then the sapping and undermining of which Blackstone wrote?"What now? A "safety net" against decisions of the Court of Appeal is provided by the Criminal Cases Review Authority.

Before an application to the CCRC is referred back to the court further fresh evidence is required (s 13(1)) or "that there are exceptional circumstances" (s 13(2)) and the applicant will need to show that "there is a real possibility that the conviction would not be upheld" (s 13 (1)(a)).

The mysterious East is an enigma to the Western mind; codes, customs and silences may not conform to Western logic.

Actors may be inconsistent, they may be mentally ill.

Accounts, rhymes and reasons may be implausible and their narrators incredulous but are they necessarily lying?