Criminal

Practice - fresh evidence confirming safety of conviction which could not have been adduced at trial - extent to which Court of Appeal entitled to considerR v Craven: CA (Latham LJ, Ebsworth and Sullivan JJ): 8 December, 2000In March 1991 the appellant was convicted of murder.

An earlier appeal was dismissed but the case was subsequently referred to the court by the Criminal Cases Review Commission.

Since conviction in 1991, it had become clear that certain forensic evidence was not disclosed at trial and that defect was considered by the court.

However, since trial and in light of advances in forensic science, further DNA evidence was also now available which appeared to support the case for the Crown; and the court heard evidence from a forensic scientist.

The question arose whether the court should consider such evidence which could not have been adduced at trial.Patrick O'Connor QC and Henry Blaxland (instructed by the Registrar of Criminal Appeals) for the appellant; John Milford QC and Paul Sloan (instructed by the Crown Prosecution Service, Jesmond) for the Crown.Held, dismissing the appeal, that in determining whether there had been such unfairness as should render a conviction unsafe, it was necessary first to have regard to the particular vice which was said to constitute unfairness, and secondly to consider the extent to which the Court of Appeal was in a position to correct that vice; that the critical question was whether in considering the extent to which the defect affected the verdict of the jury the Court of Appeal was restricted to a consideration of that evidence in the context of the information which was available to the jury at trial, or whether it was entitled to look at all the evidence now available; that, empowered as it was under section 23 of the Criminal Appeal Act 1968 to consider the jury's verdict in the light of fresh evidence, it should have regard to all the fresh evidence now available to it; that in carrying out that exercise the court would trespass upon what, at trial, would be the function of the jury, but if on a proper analysis of the information now available the only reasonable conclusion was that the conviction was safe the court would not be carrying out its statutory duty if it did not give effect to that conclusion; and that the defects relied upon were not such as could render the verdict unsafe, particularly in light of DNA evidence which had come into being since trial.