Regina v Mattan (deceased); Court of Appeal (Criminal Division) (Lord Justice Rose, Vice-President, Mr Justice Holland and Mr Justice Penry-Davey) 24 February 1998

IN THE LIGHT of material which had not been disclosed to the defence at the time of a murder trial in 1952 which had resulted in the hanging of the accused, the conviction could not now be regarded as safe and would be quashed.

The Court of Appeal allowed the appeal of Mahmoud Hussein Mattan against his conviction of murder on 24 July 1952 at Glamorgan Summer Assize, for which he was sentenced to death.

On 19 August 1952 the Court of Criminal Appeal refused his application for leave to appeal, and on 8 September he was hanged in Cardiff Prison. The case was referred to the Home Secretary in 1969, but he saw no reason to re-open the case. The present appeal against conviction followed a referral of the case to the Court of Appeal by the Criminal Cases Review Commission.

Michael Mansfield QC and Anne Shamash (Bernard De Maid & Co, Cardiff) for the appellant; John Griffith-Williams QC (Crown Prosecution Service) for the Crown.

Lord Justice Rose VP said that the deceased was a woman called Lily Volpert, who had kept a shop in the Cardiff docks area. On 6 March 1952 her throat had been cut from side to side from behind. The motive was apparently robbery, a sum of about pounds 100 having been stolen.

The key prosecution witness had been Harrold Cover, who had told the jury that he had seen the appellant coming out of the shop doorway at the time when the murder must have been committed. However, as a result of the investigation by the Criminal Cases Review Commission, it appeared that he had made a statement the day after the murder which had differed materially from his evidence before the jury. That statement had not been disclosed to the defence at the time of trial.

Furthermore, about two weeks before the hearing of the present appeal, the prosecution had furnished the defence with copies of entries made in a notebook by a senior police officer who had assisted in the Volpert enquiry. Those entries revealed that Cover had identified the man in the doorway as Taher Gass, who, it had emerged, had been tried for murder by stabbing in 1954, and had been found not guilty by reason of insanity.

Counsel for the Crown had no longer felt able to rely on Cover's identification of the appellant as credible. Counsel for the appellant had submitted that in the circumstances the conviction should be regarded as unsafe, and the court accepted that submission. For better or worse, and the present case showed for worse, it had not been the practice in 1952 for prosecution witness statements to be shown to the defence. The rules now applicable required far greater disclosure of material to the defence, by the police and the prosecution, than had been required in 1952.

It was a matter for very profound regret that in 1952 the appellant had been convicted and hanged, and that it had taken 46 years for that conviction to be shown to be unsafe. The court could only hope that its decision would provide some crumb of comfort for his surviving relatives. The case had a wider significance, in that it clearly demonstrated five matters.

First, capital punishment was not perhaps a prudent culmination for a criminal justice system which was human and therefore fallible. Secondly, in important areas, some of which had been alluded to, criminal law and practice had, since the appellant had been tried, undergone major changes for the better. Thirdly, the Criminal Cases Review Commission was a necessary and welcome body, without whose work the injustice in the present case might never have been identified. Fourthly, no one associated with the criminal justice system could afford to be complacent. Fifthly, injustices of the kind in the present case could only be avoided if all concerned in the investigation of crime, and the preparation and presentation of criminal prosecutions, observed the very highest standards of integrity, conscientiousness and professional skill.

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