Reference by Criminal Cases Review Commission - second appeal reconsidering same evidence as in first appeal - test of safety of conviction

R v Mills; R v Poole (No 2): CA (Lord Justice Auld, Mr Justice Keith and Mr Justice Simon): 17 June 2003

In 1990, the appellants were convicted of murder.

They appealed to the Court of Appeal on a number of grounds, including the fact that a senior police officer in the case had warned a prosecution witness not to attend the committal proceedings.

The Court of Appeal heard the witness's evidence but concluded that if the jury had heard the witness's evidence it would not have raised a doubt in their minds as to the appellants' guilt.

The appeal was dismissed as was the subsequent appeal to the House of Lords [1997] Gazette, 15 October, 39; [1998] AC 382.

After a libel trial in which the jury upheld a television channel's defence of justification in alleging that the senior police officer in the case had lied about his dealings with a prosecution witness, the Criminal Cases Review Commission referred the matter back to the Court of Appeal.

Vera Baird QC and Joel Bennathan (instructed by Birnberg Peirce & Partners) for Mills; Edward Fitzgerald QC and Charles Bott (instructed by Birnberg Peirce & Partners) for Poole; Alun Jenkins QC and Sarah Reagan (instructed by Crown Prosecution Service, Headquarters) for the Crown.

Held, allowing the appeals, that provided that the court, on the second appeal as well as the first, kept in mind its own need to be sure of the safety of a conviction, it was not appropriate, in the absence of exceptional circumstances, for the court to revisit its previous decisions when there was no new argument of law or fact, or new evidence; that the 'jury impact' test in R v Pendleton [2001] UKHL 66; [2002] Gazette, 14 February, 34; [2002] 1 WLR 72, looked at as a range of permissible intrusion into the jury's thought processes for confirmatory purposes, was equally applicable where the new matter was one of argument, either of law, or of interpretation of, or of inference from, the evidence at trial; and that similar questions might also have to be asked as to the effect on the jury of evidence improperly given or of other irregularities at trial.

Chanting of racialist nature at football match - 'Paki' used in derogatory sense - insulting within meaning of Football (Offences) Act 1991

Director of Public Prosecutions v Stoke on Trent Magistrates' Court: QBD (Lord Justice Auld and Mr Justice Goldring): 16 June 2003

The defendant was charged with attending a football match and chanting the words, 'you're just a town full of Pakis'.

At the trial, he admitted to the charge but submitted that the words were not of a racialist nature within the meaning of section 3(2)(b) of the Football (Offences) Act 1991.

The district judge acquitted the defendant and found that the chant was not insulting - the phrase was mere doggerel and the term 'Paki' was nothing more than 'Brit', 'Aussie' or 'Kiwi' and was short form for 'Pakistani'.

The Director of Public Prosecutions appealed by way of case stated.

Edward Coke (instructed by Crown Prosecution Service, Newcastle-under-Lyme) for the claimant; the defendant did not appear and was not represented.

Held, allowing the application, that the chant was insulting within the meaning of section 3(2)(b) of the 1991 Act because it was implicit that Oldham was inferior because of the nationality or ethnic origin of a number of citizens, and 'Paki' demonstrated that it was those of Pakistani origin who were the cause of the inferiority; that the term 'Paki' was used in a racially abusive or derogative sense, the word 'just' in the chant was indicative of that fact; and that accordingly, the defendant's admitted behaviour fell within the mischief at which the statute was aimed and the case would be remitted to the judge with a direction to convict.