Calvert, R. v

Factual and Procedural Background

On 26 June 2014, the Appellant was convicted of murder and possession of a firearm with intent to endanger life. He was sentenced to life imprisonment with a minimum term initially set at 36 years, later reduced to 32 years on appeal. His application for permission to appeal against conviction was refused both on paper and upon renewal before the full Court.

The Appellant applied to the Criminal Case Review Commission (CCRC) on 8 September 2017, primarily based on statements from two new witnesses alleging that a critical prosecution witness, RC, had admitted that his trial evidence was false and that he had been asked to lie by the police and/or the Selby family. One witness also stated that the Appellant's co-defendants admitted involvement in the incident but excluded the Appellant.

On 3 April 2019, the CCRC declined to refer the case to the Court of Appeal, reasoning that the fresh evidence would not be admissible under section 23 of the Criminal Appeal Act 1968, reflecting the Court of Appeal's prior stance on similar evidence.

In July 2022, the CCRC reconsidered the case following receipt of further evidence relating to RC's credibility. The CCRC conducted additional investigations, including police inquiries under section 19 of the Criminal Appeal Act 1995, and concluded there was a real possibility the conviction would not be upheld. The Appellant now appeals against conviction based on this fresh evidence, which suggests RC admitted to perjured testimony at trial.

The Appellant is represented by Attorney Webster KC, and the Respondent prosecution by Attorney Myerson KC, both of whom served as trial counsel.

The factual background, as summarized by the Full Court in 2015, involves two violent attacks in Bradford in October 2013, linked by forensic evidence to the same handgun and vehicle but disputed in terms of participant identity. The Crown alleged the Appellant as the ringleader of a feud-related attack resulting in the victim's death by acid after being shot. Identification evidence was mixed, with key testimony from masked victims and anonymous witnesses. Central to the prosecution's case was evidence from RC, a prisoner with a history of dishonesty, who claimed the Appellant made a cell confession of guilt. The Appellant and co-defendants did not give evidence at trial.

Legal Issues Presented

1. Whether the fresh evidence concerning RC's alleged retraction of his trial testimony undermines the safety of the Appellant's conviction.
2. Whether the Court should admit the fresh evidence despite prior refusals and the CCRC's investigatory findings.
3. How to assess the credibility and reliability of RC's retraction statements and the circumstances under which they were obtained.

Arguments of the Parties

Appellant's Arguments

• RC's changes in account and prevarications reveal him as an unreliable and unsatisfactory witness.
• The statements made by RC to the private investigator (GL) provide an unassailable record of RC admitting to lying at trial.
• Absent any credible explanation from RC, the Court has clear evidence that RC contradicted his trial evidence, rendering the conviction unsafe.
• There is no evidence of external pressure on RC to retract, and the circumstances suggest the retraction was freely given.
• Given the lack of scientific or direct evidence linking the Appellant to the crime, the case against him largely depends on RC's testimony, which is now undermined.

Respondent's Arguments

• No proper investigation was conducted into why RC gave false evidence at trial.
• The narrative that RC feared for his sister's safety is implausible as she was deceased before the alleged threats.
• Discrepancies exist between RC's statements and those of other witnesses, such as Jason Green, undermining the reliability of the new evidence.
• The private investigator's (GL) statements lack detail on the questions asked and instructions received, raising doubts about the integrity of the evidence.
• The CCRC erred by not investigating how the investigator was instructed to approach RC and the timing of the visit, which affects the credibility of the retraction.
• RC's attendance was compelled for cross-examination, which is necessary to test the truthfulness of the retraction evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Calvert & Others [2016] EWCA Crim 890	Refusal of renewed application for permission to appeal and treatment of new evidence	Provided procedural context and prior appellate stance on fresh evidence related to RC's credibility
Turnbull [1997] QB 224; (1996) 63 Cr App R 132	Guidance on identification evidence and warnings to juries	Trial judge gave standard Turnbull warnings regarding identification evidence
Maharaj v Trinidad and Tobago [2021] UKPC 27	Rigorous examination required for retraction of evidence, especially confessions	Guided the Court's critical appraisal of RC's alleged retraction of his trial evidence
R v Flower [1966] 1 QB 146	Considerations on witness credibility and impeaching evidence	Supported the Court's view that RC's integrity was not so impeached as to render his trial evidence unsafe

Court's Reasoning and Analysis

The Court began by acknowledging the caution required when assessing the credibility of so-called "cell confessions" and their subsequent retractions, referencing established authority. The Court noted the complexity surrounding RC's alleged retraction, including inconsistencies between contemporaneous notes taken by the private investigator (GL) and the typed statements signed by RC. These discrepancies undermined the reliability of the retraction evidence.

The Court found GL to be an honest witness, but identified that GL's investigative approach was influenced by the Appellant's family’s subjective outlook, which may have affected the independence of the investigation. GL did not probe the source of the family's information about RC's whereabouts or the timing of his visit, nor did he question them rigorously, which raised concerns about potential undue influence.

The Court also observed that the CCRC failed to investigate these concerns adequately, dismissing them without proper inquiry. The sudden and unanticipated nature of RC's disclosures to GL contrasted sharply with his more equivocal and controlled demeanor in subsequent meetings with the Appellant's solicitor.

RC's oral evidence at the appeal hearing was found to be inconsistent with the signed statements; he denied having made the retraction and disavowed knowledge of the individuals and threats described therein. The Court accepted that RC signed the statements without reading them fully, relying on GL's assurance that they reflected their discussions.

Despite RC's denials, the Court found no cogent reason to prefer the retraction over the original trial evidence. The Court emphasized the consistency of RC's earlier accounts and the corroborative prison diary entry linking the Appellant to a co-defendant, which remained unchallenged by direct evidence.

Ultimately, the Court concluded that the fresh evidence did not undermine the safety of the conviction. The Appellant's conviction was supported by multiple strands of evidence, and the new material concerning RC's credibility was insufficient to justify admission or to render the conviction unsafe.

Holding and Implications

The Court DISMISSED the appeal against conviction.

The direct effect of this decision is the upholding of the Appellant's conviction and sentence. The Court found no basis to admit the fresh evidence or to disturb the jury’s verdict. No new legal precedent was established; the decision reaffirmed established principles regarding the assessment of witness credibility, fresh evidence, and the rigorous scrutiny required before admitting retractions of critical trial testimony.