The sentencing remarks of Saunders J are available on the Judiciary website. It is interesting that, at the first trial, Dizaei was sentenced to 4 years imprisonment but 3 years was imposed at the second trial. Saunders J gave his reasons for being able to impose a lower sentence. The judge said
- " .... I take into account that you will be re-starting a prison sentence. It is well known that for a first offender in particular it is the start of a custodial sentence that is most difficult. For police officers, sentences of imprisonment are especially and I am told and accept that you spent a substantial time in solitary confinement as a result of your treatment by other prisoners. In all those circumstances, I feel able to pass a lesser sentence on you than was the appropriate sentence on the last occasion. However, you will have to return to prison for a period of time."
The Court of Appeal's judgment stated - " ... in the course of a minor and wholly personal dispute with a civilian, [Dizaei] arrested the man for threatening behaviour when he knew there was no justification for doing so, thus abusing for personal reasons the considerable power given to him for public purposes." The man who Dizaei had arrested was known as Al-Baghdadi. The Court of Appeal considered information relating to Baghdadi including information about false benefit claims involving considerable sums of money. The court concluded that it could not be satisfied that the information about the benefit claims was known to the defendant. For this reason, a retrial was ordered but, in so doing, the Court of Appeal noted that there was a great deal of evidence independent of Al-Bhagdadi.
The Court of Appeal's views relating to whether fresh material renders a conviction unsafe are important. The responsibility for making that decision rests inescapably on the appeal court. The line between the case where the court could properly be satisfied of the safety of a conviction notwithstanding fresh evidence and the case where it could not is sometimes a fine one; the decision is unique to the facts of each case. The question for the court is whether the conviction is safe and not whether the defendant is guilty. The appeal court does not re-try the defendant and cannot do so, because it does not hear the whole case. Ordinarily it hears no evidence at all, and when it does, as here, it is limited to fresh material. This court is not, therefore, in a position to substitute itself for the jury.
En route to deciding whether the conviction is soundly based (i.e. safe) the court considers the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. In many cases, it is likely to ask itself by way of check what impact the fresh material might have had on the jury. But in most cases of arguably relevant fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury's deliberations, since ex hypoethesi the jury has not seen it. The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty.
The Court of Appeal expressed agreement with Burridge  EWCA Crim 2847 (see paragraphs 99 – 101) where the cases of Pendleton  UKHL 66; and Dial  UKPC 4; were analysed. Where fresh evidence is under consideration the primary question "is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury." (Dial). Both in Stafford v DPP  AC 878 at 906 and in Pendleton the House of Lords rejected the proposition that the jury impact test was determinative, explaining that it was only a mechanism in a difficult case for the Court of Appeal to "test its view" as to the safety of a conviction. Lord Bingham, who gave the leading speech in Pendleton, was a party to Dial.
Leave to appeal to the Court of Appeal is required in all cases in relation to conviction or sentence (except in relation to contempt) save where a certificate has been issued by the trial judge that the case is fit for appeal. Section 2 of the Criminal Appeal Act 1968, as amended, provides that the Court of Appeal shall allow an appeal against conviction if they think the conviction is unsafe, and shall dismiss an appeal in any other case.
The Guardian 13th February 2012