Lord Justice Mantell:
Mr Martin Membury used to own a green Triumph Spitfire motorcar. It was
distinctive only in that it had a union jack painted on each of its two front wings. The
Triumph Spitfire was habitually parked outside Mr Membury's home in Sydenham. Sometime
during the night of Monday 12th and Tuesday 13th December 1988 the Triumph Spitfire was
stolen. The thieves were two young men called Griffin and Duncan. Griffin took the car
whilst Duncan kept watch. Half a pair of scissors was used to start it. It was driven to
25 Laurie Park Road also in Sydenham. That is where Griffin and Duncan were living. At
that time also living at 25 Laurie Park Road were Michael George Davis, Raphael George
Rowe, Jason Cooper and a young man called Jobbins. Jobbins was a particular friend of
Griffin and Duncan.
Sometime between about 1:50 and 3:40 am on 16th December, that is three
days after the Triumph Spitfire had been stolen, an Austin Princess motor car was parked
in a field not far from the White Bear public house in Fickleshall. Inside the Austin
Princess were two men. One was Mr Hurburgh, the owner, and the other, a much younger man,
Mr Alan Eley. They were making love. Their love-making was interrupted by three masked
men. One carried a knife and another a gun. Mr Eley was pulled from the car and £10 taken
from him. The man with the knife stood over him. It was clear that the three men were
intending to steal the Austin Princess. Mr Hurburgh objected. He was attacked. By this
time both Mr Hurburgh and Mr Eley were on the ground. One of the men spread petrol around
both of them. Someone lit a cigarette. Mr Eley passed out. When Mr Eley came to he found
that Mr Hurburgh was dead. He had been savagely beaten. Five ribs had been fractured, as
had the sternum. The heart was bruised. He had died from a heart attack.
The Austin Princess had gone. Not far away, however, was an abandoned
Triumph Spitfire. It was the Triumph Spitfire belonging to Mr Membury.
Oxted is a little less than ten miles from Fickleshall. That is where Mr
and Mrs Napier lived with their son Timothy. At about 3:40 am that same Friday morning
their house was invaded by three masked robbers.
One had a knife and one had a gun. The third robber was armed with a
revolver. At first the Napiers resisted but were told they would be shot if they did not
co-operate. There was a struggle. Timothy Napier's arm was cut and an artery severed. The
Napiers were overpowered. Mrs Napier was instructed at knifepoint to remove her rings and
jewellery. She was told that if she refused her fingers would be cut off. The house was
ransacked. The robbers then left, taking Timothy Napier's Toyota motor car which had been
parked near the house. Timothy Napier was taken to hospital. He was operated upon and has
made a successful recovery.
The robbers were in the house for between 20 to 30 minutes.
Later the Austin Princess was found abandoned 100 yards from the Napier's
house.
About 5:00 am on Friday 16th December Mrs Spicer and Mr Peter Almond were
in bed together in an upstairs bedroom at 100 Hilley Field in Fetcham some twenty miles
from Oxted. They woke to find three masked men in the room. One was holding something
which both took to be a gun. They were told to be quiet. They were asked for money,
jewellery and car keys. They were tied and gagged and the house was ransacked. After they
had gone one of their own kitchen knives was found in the bedroom. The robbers were there
for about three-quarters of an hour to an hour. They drove off in a Renault and a Vauxhall
Cavalier. Timothy Napier's Toyota was found nearby.
On 19th December police raided 25 Laurie Park Road and also 71 Adelaide
Road which is the home of Bernadette Roberts, the then girlfriend of Jobbins. In both
places they found property which had been taken from the Oxted and Fetcham robberies. A
number of arrests was made. Those arrested included Rowe and Davis and also Cooper,
Jobbins and Griffin. Duncan was already in police custody. Randolph Egbert Johnson was not
arrested until 6th January 1989 when he was found to be in possession of a revolver.
Plainly, the police took the view that the same three men were involved in
each of the three incidents. It is not difficult to see why. They believed that the three
men were Davis, Rowe and Johnson. Davis, Rowe and Johnson were charged with various
offences arising out of the three incidents, including murder.
The trial took place in January and February 1990 at the Central Criminal
Court. The judge was Mr Justice Auld, now Lord Justice Auld. In the result all three were
convicted of the murder of Mr Hurburgh, causing grievous bodily harm with intent in
relation to Timothy Napier and the several robberies. Each was sentenced to life
imprisonment for the murder and substantial terms were imposed for the other offences.
Davis had previously pleaded guilty to robbery and Johnson to robbery and rape. Those were
offences committed on a quite separate occasion whilst the two of them were engaged in a
burglary. Davis was sentenced to ten years and Johnson to a total of 12 years for the
offences to which they had pleaded guilty. All sentences were concurrent.
It was obvious to prosecuting counsel, as it must have been to everyone
else that the raid on 25 Laurie Park Road had been as a result of information supplied.
The police were not asked to name the informant but it seems to have been assumed that it
was one of Jobbins, Griffin and Duncan.
Jobbins, Griffin and Duncan gave important evidence at trial. It was to the
effect that Rowe had asked Jobbins and Griffin to steal an MG. Instead of stealing an MG,
Griffin and Duncan had taken Mr Membury's Triumph Spitfire. It had been parked at the rear
of 25 Laurie Park Road in the early evening of 15th December. On that day Rowe asked
Jobbins if he could use it. Also present was a man in a black cap said to be Johnson. That
man, called Ronnie, backed up the request to Jobbins. There was difficulty in starting the
Spitfire but Jobbins, Griffin and Duncan helped to bump start it between 7 and 8 pm and
again between 11 pm and midnight, both times at the request of Rowe, Davis and the man in
the cap. Jobbins further gave evidence that Ronnie was present and asked the three of them
how to start the Spitfire. Duncan gave him a half pair of scissors to put in the ignition.
In the presence of Davis and Johnson, Rowe had asked Duncan and then Jobbins for
balaclavas.
There was also evidence from what may be called the "Jobbins
group" about Rowe and Davis returning on the Friday morning with the Renault and the
Vauxhall Cavalier and a quantity of property which the "Jobbins group", between
them, helped to unload and stash. Jobbins said that about 5:00 pm on the Friday Rowe, in
the presence of Davis, had asked him to get rid of the Renault and Vauxhall Cavalier
saying that they were a "bit warm" and that they would have to be burned
completely so as to remove all identification and that it was too risky for them, that is
Rowe and Davis, to do it. Duncan had said much the same except he put the conversation at
about 10:00 or 11:00 in the morning.
Other important evidence came from Kate Williamson. Kate Williamson was a
sixteen year old school girl and an intimate friend of Rowe. She had arrived at Laurie
Park Road at about 8:00 pm on Thursday 15th December.
She, with Rowe, left at about half past ten that evening. The two of them
went to the house of someone called Pooley where they stayed with friends until, at about
12.30 am on the 16th of December, Jason Frost, a solicitor's clerk, drove her and Rowe
back to Laurie Park Road. The two of them went to Rowe's room, where they stayed until
Rowe left between 1:30 and 2:30 am. He returned at about 6:30 am, wearing different jeans
and shoes but the same top. He was carrying a Sainsbury's bag. Two Sainsbury's bags were
taken in the Spicer/Almond robberies. According to Williamson, Rowe took from the bag, a
pendant with a gold chain which was never found, a watch which came from the Spicer
robbery, various papers, and some muddied jeans and boots. Soon afterwards the intercom
buzzer was pressed and Rowe left for about 5 minutes. Upon his return he mentioned that
the police were outside. Kate Williamson noticed that he was wearing two rings. They had
come from the Napier robbery. To discover whether one were a true diamond, Rowe scratched
a window. The landlord Mr Smith, and Police Constable Hoar, each gave evidence that there
was a small 1 inch scratch upon the glass when the window was examined on the 30th March.
Kate Williamson said that Rowe had mentioned two cars, one being a Renault.
He had told her that she could see them from the window which overlooked the back of the
house. According to Jobbins and Duncan, the cars had been parked at the rear of the
premises. She had left on Friday morning, taking with her the Napier rings, and had had
them valued. She had kept the wristwatch given to her by Rowe. On Sunday she had gone to
Laurie Park Road and acquired a watchstrap from Rowe, which came from the Napier robbery.
On Monday after speaking to her parents she handed the two Napier rings, the yellow
watchstrap, and the watch from the Spicer robbery over to the police.
She also said that when Rowe had left her on the Thursday night, having
changed his clothing he was wearing "Zoo" boots. Kate Williamson's evidence as
to Rowe's anxiety about the police being outside, and as to the incident concerning the
trousers, was supported by Joanne Cassar, a woman she did not know. Her evidence as to the
scratch on the window was supported by the landlord. The scientist who examined footprints
at the Napier robbery, found a print in a rear flowerbed, and a print in blood in the
hall. Each matched the other, and also the distinctive "Zoo" imprint on the sole
of a sample boot which Kate Williamson had said was similar to the boot worn by Rowe.
Duncan, Jobbins and Griffin supported her evidence as to the location of the parked cars.
Her sighting of a pendant on a chain was consistent with Mrs Spicer's evidence of such a
piece of jewellery being stolen that night, but never found. There was evidence from a
police officer about the finding of a brooch in Rowe's waste paper basket which had been
taken in the Spicer/Arnold robbery.
Kate Williamson was cross-examined about a letter written to Rowe which she
had never posted in which she apologised for lying to the police. Kate Williamson's
response was to say that the letter had been written under pressure from Nancy Stanley,
another girl friend of Rowe's.
Joanne Cassar gave evidence of Davis having given her a Marks &
Spencer's Amaryllis plant similar to one stolen in the robberies. There was evidence from
the landlord of Davis having had a key to the room which contained the cupboard which in
turn contained some of the stolen property. There was also evidence of Davis' fingerprints
having been found on porcelain figures stored in the same cupboard.
Johnson had not been identified by any of the Jobbins group. However, the
landlord did identify him as someone who helped with the electrics at 25 Laurie Road and
he himself had admitted having been there on the Thursday evening and having the revolver
with him at the time. He also admitted being known as "Ronnie" or sometimes
"Ron" and that he often wore a black leather cap. Indeed he had been wearing a
black leather cap when arrested. There was evidence of his having given an account of an
alibi for his movements that night which could be and had been proved to be false. A man
called Todd gave evidence of having been a fellow prisoner of Johnson's following his
arrest in January 1989. He said that Johnson had admitted his involvement in the offences.
He said that Johnson had told him that he, Johnson, was "involved in it". Todd
said that Johnson described one of his accomplices as a "redskin". That is an
expression common enough in Jamaica to describe someone with lightly coloured skin. It was
also an expression which Johnson employed when interviewed by the police. Rowe is lightly
coloured.
Rowe and Davis gave evidence, Johnson did not. Rowe rejected the evidence
of Jobbins, Griffin and Duncan and, through counsel, suggested that it was they who had
carried out the murder and the robberies. He claimed to have been with Kate Williamson the
whole of the night of the 15th/16th December and attributed her account to jealousy on
account of his relationship with Nancy Stanley. The brooch found in the waste paper basket
had been planted. Davis, similarly, claimed that the evidence of Jobbins, Griffin and
Duncan was false and refuted the evidence of Joanne Cassar. He said he had spent the whole
night in his room at 25 Laurie Park Road. He could not explain how his fingerprints came
to be on the porcelain figures in the cupboard in the storeroom where some of the stolen
property had been found.
A Mr Peter Fyffe was called for the defence. He had come forward in
response to the publicity given to these crimes. He had made a statement to the police.
For some reason, so far unexplained, the Crown Prosecution Service and prosecuting counsel
were never supplied with a copy of the statement. However it was made available as part of
the unused material supplied to the defence representatives. His evidence was in line with
the statement.
He said that on Thursday night, the 15th, he with family and friends had
been to the Horse of the Year show at Olympia. Agreed evidence was that the performance
ended at 11:00 pm. He said that he had left by car at about 11:30 pm. He had first dropped
off one of his passengers, and then taken a route home, which passed by the junction where
the Triumph Spitfire had been found. He thought he had reached that junction at or about
12:30 am on the 16th.
His headlights picked up a Spitfire parked in the field opposite. It seemed
to him to be dark green, with a Union Jack on its wing. As reference points for his timing
he used his departure from Olympia and his arrival home. He thought he arrived home before
1:00 am, and his home was 5 to 10 minutes drive from the White Bear. Mrs Fyffe, who was
with him that evening, thought they reached home at perhaps 12:40 to 12:45 am. Mrs
Stammers, who was the first of Mr Fyffe's passengers to be dropped off, reported that she
was in her home by about 12.15 am. Her home was about 15 minutes drive from the Fyffe
home. It was accepted by the Crown that the Spitfire seen in the field in the headlamps of
Mr Fyffe's vehicle must have been the one stolen from Mr Membury.
The judge summed up over four days in what has been acknowledged to have
been a careful, fair and wholly accurate reflection of the evidence and the issues. His
directions in law were impeccable. He drew attention to the weaknesses in the prosecution
case as well as its strengths. Having directed the jury as to the burden and standard of
proof he said:
"That test is particularly important in a case such as this when so
much of the evidence is disputed, where much of the prosecution evidence is itself tainted
for one reason or another and where there is considerable uncertainty and inconsistency in
important areas."
In highlighting the frailties of the prosecution case the judge had in mind
particularly the evidence of the "Jobbins group" who, on any view, were
accomplices, the fact that Kate Williamson was, on her own account, a handler of stolen
goods, the fact that Todd had interests of his own to serve, the discrepancies between the
appearance of the three defendants and the descriptions given by witnesses and the
evidence of Mr Fyffe and his passengers.
As to the descriptions of the robbers the judge reminded the jury that Mr
Eley had said that because all three men were wearing balaclavas he could not see their
faces or the colour of their skin and he could not help about their height or their build.
He had said that from the way they spoke he felt that two of them sounded "sort of
alike" and "like dark people". But in cross examination he had been
reminded that immediately after the incident he had told Mr Gentles at 2 Ox Cottages from
whom he had sought help that one of the attackers was black and the other two were white
and he had repeated that to the police constable who first came on the scene. He had also
said in his witness statement that he had noticed that one of them was definitely white
skinned as could be seen through the eyeholes of the balaclava. And in re-examination he
had said that he saw the man who appeared to be white skinned lighting the cigarette after
the petrol had been scattered around and that his lips seemed to be a pinky colour.
The judge also reminded the jury that Mr Richard Napier had said that the
man he saw on the landing with the knife seemed to have fair hair on the nape of his neck
and, as he thought, blue eyes. The judge told the jury that if Mr Napier were right about
that it could not have been any of these defendants. Mr Napier had also said that he
thought another of the men was white but he had nothing to go on and it was merely a
hunch. The judge mentioned that Mrs Napier had said that she thought that one of the men
who was wearing a dark woollen black balaclava was white. She was not sure why she thought
so but she had said that she thought the eyeholes were larger on that particular balaclava
than on the others.
The Judge also reminded the jury that Mrs Spicer had said the three men
were all similarly dressed with balaclavas and dark clothing. In her statement to the
police she had said that she could not tell if they were black or white but had come to
the conclusion that they were white or at least the one who did the talking was white
although she could not say for sure. At the trial she had added "I cannot say why I
came to that conclusion. May be it was because of the voice." Mr Almond had seen one
robber with a gun but could not see his skin.
The judge also dealt fully with the "Fyffe" or timing point. The
judge reminded the jury of the evidence from Kate Williamson and others that Rowe and
Davis had not arrived back at 25 Laurie Park Road until about 12:30 am and that, according
to Kate Williamson, Rowe had not left that address until sometime after 1:30 am. He went
on to remind the jury that Griffin had said that the Triumph Spitfire had been moved from
where he had last seen it parked by at the latest 12:30 am. Mr Fyffe and his passengers
had claimed to pass by where the Triumph Spitfire was eventually found at about 12:30 am.
Mr Fyffe had claimed to have seen a Triumph Spitfire bearing a union jack on its flank.
The judge explained to the jury that if those timings were to be regarded as firm or as he
said a "strait jacket" Rowe, at any rate, could not have been in the Spitfire
when it was driven to Fickleshall and on the prosecution case that meant that he could not
have been involved in any one of the three incidents. Any doubt with regard to Rowe's
involvement would have an obvious knock -on effect on the cases against Davis and Johnson.
At the same time the jury was reminded of the evidence which pointed to the attack on
Hurburgh and Eley having taken place at some time after 1:50 am and it was left open to
the jury to consider whether or not it was likely that the murderers or robbers would have
waited around in a field for something over an hour and a quarter.
Following conviction the three defendants appealed. At some stage during
the trial it had become apparent to Julian Bevan QC and Mr Waters QC, as then but a
junior, that the 'informant' must have been Duncan. Early on in the trial the defence had
asked to see Duncan's custody record. It was then examined for the first time. It appeared
to confirm that Duncan had been arrested on 22 December and that he had been interviewed
at Reigate Police Station but not before he had been in the presence of interviewing
officers for 38 minutes of which of no record had been taken or kept. In cross-examination
Duncan had said that during the 38 minutes he had been denying any responsibility for
stealing the Spitfire or setting fire to the other two cars. Otherwise the 38 minutes had
not loomed large in the trial and in summing up the judge said:
"At the end of the day nothing very much seems to have turned on it
- certainly no criticism of the police, which you might have considered was one
possibility at the time it was examined in cross examination."
However, having already formed the view that the informant must have
been a member of the "Jobbins group" the conclusion that it was Duncan can
hardly be described as a leap in the dark. However, counsel did not ask to have their
suspicions confirmed and neither did they communicate them to any of the defence counsel
although it might well have been assumed that defence counsel had reached the same
conclusion for themselves.
Now in 1990 there was a duty to disclose material information subject to
certain exceptions which were contained in the Attorney General's Guidelines (Disclosure
of Information to the Defence Cases to be tried on Indictment) laid down in 1981 (74
Cr.App.R 302). Amongst the exceptions were cases where a statement disclosed the identity
of an informant and there were reasons for fearing that disclosure of his identity would
put him or his family in danger. There can be no doubt in this case that there were
"reasons for fearing" that disclosure of Duncan's identity would put him or his
family in danger. In those days the decision perforce, had to be made without reference to
the court. There was no provision for the Crown to have ex parte access to the trial
judge. Had it been sought it would almost certainly have been refused. If an application
had been granted it would almost certainly have been viewed as a material irregularity.
Then came the decision of this court in Ward (1993) 96 Cr.App.R 1. Consequently, Mr
Bevan deemed it proper to seek the Court's guidance as to whether or not the fact of
Duncan's status ought to be disclosed to the appellants prior to hearing of the
substantive appeal. That led to two hearings before the court presided over by, Lord
Taylor, Lord Chief Justice, which in turn led to the guidelines issued in Davis &
Others (1993) 97 Cr.App.R 110. Suffice it to say that the court upheld the Crown's
submission that it was unnecessary for the fact to be disclosed. On 22 June 1993 a
different division of the CACD presided over by the Deputy Lord Chief Justice declined to
order disclosure of a report to the Police Complaints Authority and also information
concerning a reward or rewards paid to Duncan. On 23 July 1993 the same court heard and
dismissed the substantive appeals against conviction of all three appellants. Johnson's
grounds of appeal had been based on the fact that he had not been identified by anyone
including Jobbins, Duncan and Griffin, the evidence from eye witnesses about the colour of
the attackers, the unreliability of Todd and the improbability of the accounts given by
Jobbins, Duncan and Griffin. For Davis and Rowe it was advanced that there was a lurking
doubt about the soundness of the convictions and that the judge should have found that
there was no case to answer on any of the charges at the close of the Crown's evidence and
certainly in the case of the murder count. Further it was argued that the evidence of
Jobbins, Duncan and Griffin was so inherently unreliable that it should have been excluded
and in any event that the jury should have been told to disregard it. Reliance was also
placed upon the evidence of the eyewitnesses as to colour and the inconsistency between
Kate Williamson's evidence and that of Mr Fyffe. Having reviewed the evidence in some
detail the court said that it was,
"in the aggregate inexplicable except on the basis that Rowe and
Davis were implicated in the robberies and the associated violence. Taking all the
evidence relating to the timing and events on the Thursday night and the succeeding days
into account we conclude that, on the whole of the material we have reviewed, there is no
basis for saying there is even a lurking doubt about the safety of the convictions of Rowe
and Davis, the same applies to Johnson. On the contrary, the case against them all was,
and remains, a formidable one."
On 30 September 1993 the same court declined to certify a point of law
of general public importance.
In 1994 Davis and Rowe made an application to the European Court of
Human Rights.
In April 1997 the Criminal Cases Review Commission (CCRC) exercised its
powers under section 19 of the Criminal Appeal Act 1995 and following discussions with the
Surrey Police in August 1997 appointed an investigating officer from the Greater
Manchester Police to carry out enquiries at that time into the cases of Rowe and Davis
only. In December 1997 the terms of reference were extended to include Johnson. In January
1999 the investigating officer submitted his report as required by section 12 (6) of the
1995 Act. The report contains a great deal of material. Two matters in particular were
highlighted. The first was that Duncan was a registered informant who had contacted his
handler on 18 December 1988 with the result that he had been housed at Reigate police
station from that day until Sunday 20 December. As a result of what took place between
Duncan and police officers during that period a message had been originated which
suggested that the three robbers were not Rowe Davis and Johnson but Rowe, Davis and Jason
Cooper. Also during the same period there had been discussions between Duncan and the
investigating officers about the possibility of a reward being paid to him at the
conclusion of the case. It is apparent that prosecuting counsel were aware of the
possibility of rewards being paid as early as 9 June 1992 and before the ex parte
applications made prior to the first appeal. That was as a result of a report submitted by
a Detective Inspector Arnold on 9 June 1992 which also recorded the fact that Duncan had
been a voluntary inmate at Reigate police station from late on 18 December until sometime
after the raid on 25 Laurie Park Road. What had not been made known to prosecuting counsel
in 1992 was the fact that Duncan seemingly had first of all implicated Cooper rather than
Johnson.
On 29 March 1999 Mr Bevan applied to this court presided over by the
then Lord Chief Justice Lord Bingham for the Public Interest Immunity Certificate in
relation to Duncan to be lifted. This court acceded to the applications. There has since
been a number of interlocutory applications to this court relating to enquiries which
might be made of jurors at trial and orders have been made permitting such enquiries in
approved terms.
On 7 April 1999 the CCRC referred the matter to this court together with
a detailed statement of reasons. In the case of Johnson the Commission was particularly
concerned about the failure to disclose the message which recorded that Duncan had pointed
to Cooper rather than Johnson. Also the fact that the defence were not informed that
Duncan had been in receipt of a reward. This, the Commission considered, along with the
fact that not one member of the "Jobbins group" had been prosecuted, might have
deprived Johnson's counsel of a profitable line of defence. The Commission also noted that
Jason Cooper was himself a practised burglar and had one conviction for robbery. Further
the statement of reasons mentions the possibility of a juror having visited the site of
the murder. There were also concerns expressed about the evidence of Todd and the lack of
any hard evidence to link Johnson to any of the scenes of crime or to any property stolen
from them. The Commission also underlined the fact that the evidence suggests that at
least one of the robbers was white. So far as Rowe and Davis were concerned the Commission
pointed to the conflict between the evidence of Kate Williamson and others as to when it
might have been that Rowe left number 25 Laurie Park Road and that of Mr Fyffe and his
passengers. The Commission also raised the possibility of the persons responsible for the
attack upon Mr Hurburgh and Mr Eley having returned to number 25 in the Austin Princess
before the same vehicle set off for the Napiers with a different team inside. In
conclusion at paragraph 21.71 of the Statement of Reasons the Commission said this:
"The new evidence and arguments rehearsed in paragraphs 12.1 to
12.61 create a real possibility that Mr Johnson was not one of those three persons. Whilst
there is evidence specifically linking Messrs Rowe and Davis to the robberies, if the
prosecution against one of the three, Mr Johnson, might no longer be sustainable, in the
Commission's view the Court of Appeal ought at the same time have the opportunity to
consider whether the case can still be sustained against Messrs Rowe and Davis."
On 16 February 2000 the European Court of Human Rights (ECHR) gave
judgment in respect of Davis and Rowe. Its decision was that there been a violation of
Article 6 (1) of the European Convention Human Rights at trial which had not been cured by
the Appeal process. The decision focused entirely upon the failure to disclose Duncan's
status as an informant prior to trial together with the fact that he had become eligible
for a reward and may have nominated Cooper as one of the robbers before pointing the
finger at Johnson.
On 6th March 2000 the Crown made a further application in relation to
undisclosed material which the court entertained in private notwithstanding objection
taken by Mr O'Connor QC for Rowe. In consequence of that hearing a great deal of further
material was made available to the appellants. A short judgment was delivered in open
court and is now available. On 3 May 2000 the court rejected an application that those
members of the court then sitting should disqualify themselves because in the course of
the Public Interest Immunity application they had seen material prejudicial to Rowe.
Reasons were given on 12 May 2000 which are also now available.
The substantive appeal was listed to begin on Monday 12 June 2000. In
fact it started on Wednesday 14 June. In the days preceding the hearing of argument a
reply was received from the foreman of the jury to the effect that during the trial he had
indeed visited the site of the murder. The Commission had already passed on a letter from
another juror indicating that it was that juror's belief that the foreman may have made
such a visit.
And that brings the matter up to date, that is to the hearing of the
reference by this court. What has gone before has been merely a thumbnail sketch of the
background intended to make what follows the more readily comprehensible to those
unacquainted with the case. As we proceed it will be necessary to refer to certain aspects
in somewhat greater detail. To begin with, however, we should explain our approach.
We are required to review the safety of convictions resulting from a trial
which the ECHR has adjudged to have been unfair. It may be the first case of its kind; it
will certainly not be the last.
How should we proceed? First of all we are invited to do so as if the Human
Rights Act 1998 were already in force. We accept the invitation for the reasons advanced
by Lord Bingham, Lord Chief Justice and Lord Steyn in R -v- DPP, ex parte Kebilene
& Others (1999) 3 WLR 175, 187C and (1999) 3 WLR 972, 982 A-C.
The Court of Appeal (Criminal Division) is a creature of statute and must
carry out its duties accordingly. Section 2 of the Criminal Appeal Act (1968), as amended,
provides:
"(1) Subject to the provisions of this Act the Court of Appeal -
(a) shall allow an appeal against conviction if they think the conviction
is unsafe; and (b) shall dismiss an appeal in any other case."
Section 3 (1) of the Human Rights Act 1988 requires the court so far as
possible to read and give effect to primary and subordinate legislation in a way which is
compatible with convention rights.
Article 6 of the Convention for the Protection of Human Rights and
Fundamental Freedoms confers on everyone the right to a fair trial.
We see no difficulty in giving effect to the 'right to a fair trial' when
discharging our duty to consider the safety of a conviction.
Although there are authorities which suggest that the safety of a
conviction is to be considered irrespectively of the trial process by which it was
procured (see R -v- Chalkley & Jeffries (1998) 2 Cr.App.R 79 and R -v-
Clarke & Hewins (1999) (6 Archbold News 2 CA (9704882W3)), we prefer the approach
taken by this court in R -v- Mullen (1999) 2 Cr.App.R 143 CA and R -v- Smith
(Patrick & Others), The Times May 31st 1999. In the latter case the court stated:
"Now that the test for allowing an appeal is simply the safety or
otherwise of the conviction, is it competent for the court to consider evidence
entertained after the wrongful rejection of a submission of no case to answer? Formerly
the position was judged at the time of the submission (R -v- Cockley 79 Cr.App.R
181 CA). In R -v- Berry 98 Crim.L.R 487 (transcript 20th January 1998) this court
seems to have considered that the approach remains unchanged following the amendments made
to section 2(1)(a) of the Criminal Appeal Act 1968 by the Criminal Appeal Act 1995.
However in Berry the point was not crucial. So it is still open and, once again,
not altogether straightforward. What if a submission is wrongly rejected but the defendant
is cross-examined into admitting his guilt? Should the conviction be said to be unsafe? We
think it should. The defendant was entitled to be acquitted after the evidence against him
had been heard. To allow the trial to continue beyond the end of the prosecution case
would be an abuse of process and fundamentally unfair."
We are fortified in our view by the decision in R v Weir, The Times,
June 16th 2000. There, DNA evidence linked Weir to a murder by the profile extracted from
an earlier saliva sample in a case which had been discontinued. The Crown accepted that
the profile should not have remained on the database. Quashing the conviction, Swinton
Thomas LJ said:
" This appellant was convicted of a brutal murder on the compelling
evidence of the DNA sample."
So, a material irregularity resulted in the quashing of a conviction when
evidence as to guilt was overwhelming.
Prior to amendment in 1995 the Act required the court to allow an appeal
where it considered the verdict was unsafe or unsatisfactory, or there had been any wrong
decision in law, or there had been a material irregularity in the course of the trial,
save that the court might dismiss the appeal if it considered that no miscarriage of
justice had occurred. The approach was set out by Viscount Simon LC in Stirland v DPP
(1944) AC 315 at p.321
"When the transcript [of the C of A] is examined it is evident that no
reasonable jury, after a proper summing up, could have failed to convict the appellant on
the rest of the evidence to which no objection could be taken. There was, therefore, no
miscarriage of justice, and this is the proper test to determine whether the proviso to
S4(1) Criminal Appeal Act 1907 should be applied. The passage in Woolmington v DPP (1)
where Viscount Sankey LC observed that in that case if the jury had been properly directed
it could not be affirmed that they would "inevitably" have come to the same
conclusion should be understood as applying this test."
It seems to be generally accepted that the 1995 amendment was not intended
to disturb the previous practice of the Court. That was certainly the view of the Royal
Commission on Criminal Justice (CM 2263 1993), which recommended the change, and of the
then Secretary of State for Home Affairs and the Lord Chief Justice see Hansard (House of
Commons) (6 March 1995) columns 53-55 and Hansard (House of Lords) (15 May 1995) columns
310-312. The reformulation was the subject of comment in R -v- Graham & Others
(1997) 1 Cr.App.R 302. Giving the judgment of the court Lord Bingham LCJ stated at p.308:
"This new provision, the subject of a penetrating analysis by Sir John
Smith QC in (1995) Crim.L.R 920, is plainly intended to concentrate attention on one
question: whether in the light of any arguments raised or evidence adduced on appeal the
Court of Appeal considers a conviction unsafe. If the court is satisfied despite any
misdirection of law or any irregularity in the conduct of the trial or any fresh evidence,
that the conviction is safe, the court will dismiss the appeal. But if, for whatever
reason, the court concludes that the appellant was wrongly convicted of the offence
charged or is left in doubt whether the appellant was rightly convicted of that offence or
not, then it must of necessity consider the conviction unsafe. The court is then subject
to a binding duty to allow the appeal."
As was stated by Roch LJ giving the judgment of the court in Hickey
& Others CA 30/7/97:
"This court is not concerned with guilt or innocence of the
appellants; but only with the safety of their convictions. This may, at first sight,
appear an unsatisfactory state of affairs, until it is remembered that the integrity of
the criminal process is the most important consideration for courts which have to hear
appeals against conviction. Both the innocent and the guilty are entitled to fair trials.
If the trial process is not fair; if it is distorted by deceit or by material breaches of
the rules of evidence or procedure, then the liberties of all are threatened.
This court is a court of review. The court reviews the trial process to
equip itself to answer the question "do we think that the conviction appealed is safe
or do we think it unsafe?
The court is not a court of trial or re-trial. Persons accused of serious
crimes are tried by juries in the Crown Court."
In R v Martin [1998] 1 Cr App R 347, the House of Lords was
considering the proposition that denial of the right to trial by jury in favour of Court
Martial was an abuse of process. At p.353 Lord Lloyd of Berwick said:
"It could not possibly be said that the decision not to stay
proceedings by Court Martial in Germany, where the crime was committed, was contrary to
the rule of law, or that it deprived the appellant of any of his basic human rights. Nor
could it be said to be "something so unfair and wrong" (see per Lord Lowry in
Hui-Chi Ming v R (1992) 94 Cr App R 236) that the courts ought to intervene."
And at p.355:
"Finally, I should also mention that even if the Courts-Martial Appeal
Court has been satisfied that there was an abuse of process, it would still have been
necessary for the court to dismiss the appeal, unless it was persuaded that the conviction
was unsafe."
At p.356 Lord Hope of Craighead said:
"In the ordinary case the Appeal Court exercises its jurisdiction by
examining the effect of the point raised in the appeal on the course of the trial. Defects
or insufficiency in the evidence and errors of law and procedure at the trial must be
assessed in the context of the whole trial before the court can be satisfied the
conviction is unsafe.
…….the Appeal Court……ha(s) power to declare a
conviction to be unsafe and to quash the conviction if they find that the course of
proceedings leading to what would otherwise have been a fair trial has been such as to
threaten either basic human rights or the rule of law."
In R v CCRC ex parte Pearson (2000) 1 Cr App R 141, at pps. 146-7
Lord Bingham LCJ said:
" The expression "unsafe" in s 2(1)(a) Criminal Appeal Act
1968 does not lend itself to precise definition. In some cases unsafety will be obvious,
as (for example) where it appears that someone other than the appellant committed the
crime and the appellant did not, or where the appellant has been convicted of an act that
was not in law a crime, or where a conviction is shown to be vitiated by serious
unfairness in the conduct of the trial or significant legal misdirection, …….Cases
however arise in which unsafety is much less obvious: cases in which the Court, although
by no means persuaded of an appellant's innocence, is subject to some lurking doubt or
uneasiness whether an injustice has been done……If, on consideration of all the
facts and circumstances of the case before it, the Court entertains real doubts whether
the appellant was guilty of the offence of which he has been convicted, the Court will
consider the conviction unsafe. In these less obvious cases the ultimate decision of the
Court of Appeal will very much depend on its assessment of all the facts and
circumstances."
The following is not intended to be an exhaustive statement of the
principles involved. We simply extract the following. The Court is concerned with the
safety of the conviction. A conviction can never be safe if there is doubt about guilt.
However, the converse is not true. A conviction may be unsafe even where there is no doubt
about guilt but the trial process has been "vitiated by serious unfairness or
significant legal misdirection" as in Smith (Patrick and Others) and in Weir.
Usually it will be sufficient for the court to apply the test in Stirland which, as
adapted by Mr Perry, might read:
"Assuming the wrong decision on law or the irregularity had not
occurred and the trial had been free from legal error, would the only reasonable and
proper verdict have been one of guilty?".
That being so there is no tension between section 2 (1)(a) of the Criminal
Appeal Act 1968 as amended and section 3 (1) of the Human Rights Act 1998.
The ECHR has declared the trial of these appellants to have been unfair.
The material passages in the judgment are contained in paragraphs 62 to 67 inclusive. They
read as follows:
"62. In cases where evidence has been withheld from the defence on
public interest grounds, it is not the role of this Court to decide whether or not such
non-disclosure was strictly necessary since, as a general rule, it is for the national
courts to assess the evidence before them (see the above-mentioned judgement, 34).
Instead, the European Court's task is to ascertain whether the decision-making procedure
applied in each case complied, as far as possible, with the requirements of adversarial
proceedings and equality of arms and incorporated adequate safeguards to protect the
interests of the accused.
63. During the applicants' trial at first instance the prosecution decided,
without notifying the judge, to withhold certain relevant evidence on grounds of public
interest. Such a procedure, whereby the prosecution itself attempts to assess the
importance of concealed information to the defence and weigh this against the public
interest in keeping the information secret, cannot comply with the above-mentioned
requirements of Article 6 1. Indeed this principle is recognised by the English case law
from the Court of Appeal's judgment in Ward onwards (see paragraph 37 above et.
seq.).
64. It is true that on the commencement of the applicant's appeal
prosecution notified the defence that certain information had been withheld, without
however revealing the nature of this material, and that on two separate occasions the
Court of Appeal reviewed the undisclosed evidence and in ex parte hearings with the
benefit of submissions from the Crown but in the absence of the defence, decided in favour
of non-disclosure.
65. However, the Court does not consider that this procedure before the
appeal court was sufficient to remedy the unfairness caused at the trial by the absence of
any scrutiny of the withheld information by the trial judge. Unlike the latter, who saw
the witnesses give their testimony and was fully versed in all the evidence and issues in
the case, the judges in the Court of Appeal were dependent for their understanding of the
possible relevance of the undisclosed material on transcripts of the Crown Court hearing
and on the account of the issues given to them by prosecuting counsel. In addition, the
first judge would have been in a position to monitor the need for disclosure throughout
the trial, assessing the importance of the undisclosed evidence at a stage when new issues
were emerging, when it might have been possible through cross-examination seriously to
undermine the credibility of key witnesses and when the defence case was still open to
take a number of different directions or emphases. In contrast, the Court of Appeal was
obliged to carry out its appraisal ex post facto and may even, to a certain extent,
have unconsciously been influenced by the jury's verdict of guilty into underestimating
the significance of the undisclosed evidence.
66. In conclusion, therefore, the prosecution's failure to lay the evidence
in question before the trial judge and to permit him to rule on the question of disclosure
deprived the applicants of a fair trial. The facts of the present case set it apart from
those of the above-mentioned Edwards judgment, where the appeal proceedings were adequate
to remedy the defects at first instance since by that stage the defence had received most
of the missing information and the Court of Appeal was able to consider the impact of the
new material on the safety of the conviction in the light of detailed and informed
argument from the defence (op. cit., 36-37)
67. It follows that there has been a violation of Article 6 1 of the
Convention."
Are the conclusions and more importantly the reasons for them binding upon
this court? Mr O'Connor QC for Rowe submits that they are. He is supported by counsel for
the other two appellants.
So far as is material section 2 of the Human Rights Act 1998 provides:
"(1) a court or tribunal determining a question which has arisen in
connection with a convention right must take into account any -
(a) judgment, decision, declaration or advisory opinion of the European
Court of Human Rights...
whenever made or given, so far as, in the opinion of the court or tribunal,
it is relevant to the proceedings in which the question has arisen."
There is no doubt that the judgment is relevant to the proceedings in which
the question has arisen and it would be difficult to go behind an ECHR decision arising
out of the same factual background without doing serious injury to the intent and purpose
of the Act. At the same time the obligation is to "take into account" which
would seem to be something less than an obligation "to adopt" or "to
apply". Happily it is not necessary to decide to what extent the judgment of the ECHR
is binding upon this Court because in spite of remaining puzzled by the suggestion that
the Court of Appeal may have been unconsciously influenced by the jury's verdict, and
without necessarily accepting that a failure to disclose at the trial stage cannot be
cured on appeal, we have come to the same conclusion, namely that the failure to make
known Duncan's status as an informant together with the fact that he had received a reward
and the content of message 111 was a material irregularity rightly condemned by the ECHR
as a violation of Article 6.
But Mr O'Connor and Mr Blaxland for Johnson go further. Whilst accepting
that 'fairness' and 'safety' are separate concepts Mr O'Connor submits that the finding by
the ECHR raises a "strong presumption" that the convictions are unsafe. Mr
Blaxland submits that the court can only give effect to the Convention right under Article
6 (1) by quashing the convictions.
For the Crown Mr Perry's response is to say that the ECHR is principally
concerned with interpreting an International Treaty and as such does not express any
opinion on the question of whether a conviction in domestic law is safe or unsafe. He has
referred the court to Murray -v- United Kingdom (1966) 22 EHRR 29 at para's 56 and
74-76 and Saunders -v- United Kingdom (1997) 23 EHRR 313 and in particular to
paragraph 86 of the Saunders' judgment where the court observed that it could not
speculate as to whether the outcome of the trial would have been any different absent a
breach of Article 6.
On this we find ourselves in agreement with Mr Perry.
The duty of the ECHR is to determine whether or not there has been a
violation of the European Convention or in this case, more particularly, of Article 6 (1).
It is not within the remit of ECHR to comment upon the nature and quality of any breach or
upon the impact such a breach might have had upon the safety of the conviction. We note
that in Condron -v- United Kingdom ECHR 2 May 2000 the court seems to have
questioned the competence of the Court of Appeal to assess safety against the background
of an unreasoned verdict. But on our understanding the distinction between 'fairness' and
'safety' was recognised in paragraph 65:
"The Court must also have regard to the fact that Court of Appeal was
concerned with the safety of the applicants conviction, not whether they had in the
circumstances received a fair trial. In the Courts' opinion the question whether or not
the rights of the defence guaranteed to an accused under Article 6 of the Convention were
secured in any given case cannot be assimilated to a finding that his conviction was safe
in the absence of any inquiry into the issue of fairness."
And at paragraph 68 the Court simply concluded that the applicants were
denied a fair hearing in violation of Article 6.1 of the Convention.
We are satisfied that the two questions must be kept separate and apart.
The ECHR is charged with inquiring into whether there has been a breach of a convention
right. This court is concerned with the safety of the conviction. That the first question
may intrude upon the second is obvious. To what extent it does so will depend upon the
circumstances of the particular case. We reject, therefore, Mr Blaxland's contention that
a finding of a breach of Article 6.1 by the ECHR leads inexorably to the quashing of the
conviction. Nor do we think it helpful to deal in presumptions. The effect of any
unfairness upon the safety of the conviction will vary according to its nature and degree.
At one end of the spectrum Mr Perry cites the example of an appropriate sentence following
a plea of guilty passed by a judge who for some undisclosed reason did not constitute an
impartial tribunal. At the other extreme there may be a case where a defendant is denied
the opportunity to give evidence in his own behalf. In both cases there might well be a
violation of Article 6. Is each to be treated in the same way? Not in the opinion of this
court.
Before leaving this topic we ought to mention Mr O'Connor's invitation to
the court to state as a rule that a participating, informant witness should never be
accorded protection under the public interest immunity procedure. He argues, persuasively
as always, that such a witness has accepted the risk of reprisals by offering to give
evidence for the prosecution and non-disclosure of his informant status would do nothing
to improve his security. Whilst seeing the force in the submission we consider that it is
simply another factor, albeit important, to be taken into account by the judge in
balancing the public interest in keeping material confidential against the public interest
in securing a fair trial. Therefore, we decline the invitation.
Unsurprisingly the grounds argued on the first appeal are reinstated. They
are common to all three appellants and depend upon the lurking doubt said to arise out of
the "colour question" and "timing question". Then there are grounds
common to all three resulting from the disclosures and investigations post-trial including
Duncan's status as an informant, the internal message which referred to Jason, the fact
that a juror had carried out his own investigations and the pronouncement by the ECHR that
the trial process had violated Article 6 (1). In addition Johnson and Davis have grounds
of their own. Johnson relies upon Todd's so called retraction, information that a small
white car containing three white men had been seen near to and about the time of the
Spicer/Almond robbery, the finding of a Union key in the dash of the Triumph Spitfire, the
wrongful reception of evidence of the revolver, and the failure to disclose the contents
of a police log recording the fact that three white men had been responsible for the
Spicer/Almond robbery. Davis has as a separate ground the fact that Joanne Cassar has
conceded in interview with the Greater Manchester Police that it was possible for Cooper
to have left her room whilst she was asleep and without her knowing. We take each of those
grounds in turn.
The colour question.
The evidence on this aspect of the case has remained unchanged since the
trial. We have already attempted a summary. We can do no better than reiterate what was
said by this court on the first appeal.
"There was some evidence, therefore, from the victims of the attacks
that one or more of the assailants could have been white. The jury had to weigh the
evidence carefully especially in the light of the circumstances in which the victims saw
their attackers. All the assailants were wearing head covering of the balaclava type and
Duncan's evidence was that all three were wearing dark gloves on the Thursday evening at
number 25. The evidence was consistent in showing that very little of the assailants skin
was exposed to view. The area of the evidence was explored carefully with the witnesses in
cross-examination and the judge laid it out carefully for the jury in his summing up. It
was for the jury to weigh the evidence that one or more of the attackers may have been
white along with all the other evidence in the case and decide whether it raised any doubt
upon the Crown case that all three assailants were coloured and were the defendants."
The court then cited a passage from the judgment in Cooper (1969) 53
Cr.App.R 82 in which Widgery LJ (as he was) in delivering the judgment of the court said
this:
"It has been said over and over again ...that this Court must
recognise the advantage that a jury has in seeing and hearing the witnesses and if all the
material was before the jury and the summing up was impeccable this court should not
lightly interfere".
This court concluded that as matters then stood the discrepancies between
the descriptions given by the witnesses and the actual appearances of the robbers was not
such as to give rise to a lurking doubt as to the safety of the convictions. Of course,
the court reached its conclusion after a full consideration of the prosecution case and in
particular what the court considered to be the overwhelming evidence against Rowe. In any
event the point was of little value to Rowe. In difficult conditions he could easily be
taken to be white and on any view there was room for at least one black man in the team.
We can well see that at a superficial level the point might have some popular attraction.
In our view, standing alone it has little weight and would not persuade us to differ from
the view expressed by this court in the first appeal. But, naturally, it does not fall to
be considered alone. It has to be taken into account along with other grounds. It is their
cumulative effect which matters.
The timing point.
As with the previous ground we have briefly reviewed the evidence in an
earlier part of the judgment. Once again this matter was fully investigated before the
jury. It certainly did present the Crown with a difficulty. On the previous occasion this
court came to the conclusion that Kate Williamson and the others who had taken part in the
visit to the Pooley's must have been mistaken first of all as to the time of their arrival
back at 25 Laurie Park Road and secondly, so far as Kate Williamson was concerned, as to
the time when Rowe left the house. There were, of course, other possibilities. Mr Fyffe
and his party might have been wrong about the time they passed by the place where the
Triumph Spitfire was parked. Mr Fyffe may have been wrong in thinking that he had seen the
Triumph Spitfire at all. Both Kate Williamson and the witnesses from her end and Mr Fyffe
and his party might have been wrong in their evidence. Or, it might have been a different
team involved in the attack upon Mr Hurburgh and Mr Eley. If the latter, it is possible
that the Criminal Cases Review Commission are right in suggesting that the Austin Princess
might have been driven back to 25 Laurie Park Road before going on with either the same or
a different team to the Napier house.
In the previous appeal the court took the view that the one firm time was
that of the 999 call made to the police after Mr Eley had sought succour at a nearby
cottage. That was 2:52 am. The court also took the view that the evidence showed that the
attack on Mr Hurburgh and Mr Eley must have taken place between 1:19 am and 2:52 am. That
is because the service station which Mr Eley visited closed at about 1:19 am. Adopting the
same approach as the court on the previous occasion we conclude that the evidence pointed
to the attack having taken place at roundabout 2:00 am. It does seem to us inherently
unlikely that a group of robbers would wait around in a field for approximately 1 hours.
Accordingly, it seems to us much more likely that if anyone has made a mistake it is Mr
Fyffe. We consider there may well be force in the Crown's submission made to us, though
not on any earlier occasion, that Mr Fyffe had seen a motor car and following the
publicity given to this attack and having seen the photographs of the Triumph Spitfire
which had been in the papers he assumed that the motor car he had seen and the Triumph
Spitfire were one and the same. But once again the evidence was fully and fairly laid
before the jury, the difficulties were adverted to in the summing up and it was a matter
which the Court of Appeal on the previous occasion did not consider such as to undermine
the safety of the convictions. Again we find ourselves unable to differ from that
approach. There was ample evidence against all three appellants and it was particularly
strong against Rowe so far as the second and third incidents were concerned. The case for
the Crown and of all three defendants was that the same trio was involved in all three
incidents. That is supported by the evidence as to where Mr Hurburgh's and Mr Napier's
motor cars were abandoned. That being so, the jury were entitled to come to the conclusion
that Rowe was one of the robbers involved in the attack on Mr Hurburgh and Mr Eley and,
therefore, the others were also. It would follow that either Kate Williamson or Mr Fyffe
and his party must have been wrong about the times. So standing on its own the
"timing point" would not lead us to conclude that any of these convictions are
unsafe.
The informant point.
We have mentioned this matter briefly in recording the history. Norman
Duncan provided the information which led to the raid on 25 Laurie Park Road. At the start
of the trial neither the Crown nor the Defence were aware of that fact. As time went by
the Crown did become aware as a matter of inference that Norman Duncan had been the
informant and we take it that defence counsel were capable of making the same deduction.
What neither prosecuting nor defence counsel knew until after the trial was that Duncan
had gone to see his handler on 18 December 1988 and that he had remained voluntarily at
Reigate police station from late on 18 December until Sunday 20 December. The prosecution
was not aware until after the trial that during that period there had been a number of
conversations between Duncan and police officers in which the question of a reward had
been discussed and, so it appears, Duncan had named a man called Jason rather than Johnson
as being the third member of the team otherwise consisting of Rowe and Davis. We have
already referred to the fact that the 'naming of Jason' came to light during the Greater
Manchester Police Investigation. The information was not available to the Crown when Mr
Bevan made either of his two applications for public interest immunity to the Court of
Appeal. It was information obtained by the Greater Manchester Police from the Holmes
Computer and has become known as message 111. Mr Bevan has told this court that had he
known of message 111, even in 1990, he would have deemed it his duty to make known its
existence at least to counsel acting for Johnson and thereby, he concedes, Duncan's status
as an informant would have become known to all as would the fact that he was eligible for
and did in fact receive a reward and the fact that he had been a voluntary inmate at
Reigate police station for two days. It is not necessary, therefore to consider what the
position might have been had message 111 not emerged in the course of the CCRC
investigations. It is enough to say this is a material irregularity. It is also a
violation of Article 6 (1) as the ECHR has found. However, we do not say that every
violation of Article 6 (1) will necessarily amount to a material irregularity. But as we
have seen that is not the end of the matter. We still have to consider the effect of that
material irregularity upon the safety of one or more of the convictions. That in turn
involves some consideration of the use to which such information might have been put at
trial. It may be, as has been suggested, that the Crown would have elected to dispense
with Duncan as a witness. If called however, the fact that he had informed would not
necessarily have impeached his credit. Rather the opposite. If, as suggested at trial, he
had been one of the robbers. It was a remarkably bold move on his part to present himself
to the police together with the evidence which might have led to his conviction, before,
so far as he knew, the police had any kind of lead. Nor would the fact that he was
expecting a reward have provided much ammunition especially as he proposed to decline the
reward offered by the victims of the crimes. Moreover, we are extremely doubtful whether
counsel for Rowe and Davis would have wished much of the background information to emerge
in the trial. After all Duncan was consistent throughout as to Davis and Rowe being
involved in these offences. On the other hand we can well see how the information might
have been exploited on behalf of Johnson. Duncan may well have been vulnerable as to how
it came about that he mentioned Jason rather than Johnson when first speaking to the
police and although we have seen his explanation offered to the Greater Manchester Police
it is by no means certain that he would have had available the same ready answers at
trial. And we can also see that if the switch from Jason to Johnson could be used to
undermine Duncan's credibility some advantage might have accrued to Davis and Rowe. There
is also the point made by Mr Mansfield QC on behalf of Davis that if this information had
been available it would have been possible to cross examine the police and Duncan as to
whether Duncan had been offered immunity from prosecution. It was, after all, the fact
that Jobbins, Duncan and Griffin were never charged with any offence.
There is another aspect to this, though not formulated as a ground of
appeal. Duncan told the jury that he was not arrested until 22 December. He did not tell
the jury anything about his earlier sojourn at Reigate police station. Because he was
concealing his status as an informant he was also forced to lie about what had taken place
in the 38-minute interview. That could only have been in collusion with the police. It
amounts to no less than a conspiracy to give perjured evidence. That is something that Mr
Bevan and Mr Waters would not have countenanced at any cost. We find the fact profoundly
disturbing. It must dent the credibility both of Duncan and the police officers directly
involved. It is possible to present it either as fresh evidence or a further material
irregularity. Either way the "Duncan factor" should make a significant
contribution to our decision.
The Juror point.
This is of some importance and deserves our close attention.
During the investigations of the CCRC, a suggestion emerged that a member
of the jury on his own initiative might have visited one or more of the scenes of crime.
Directed by the Court of Appeal, the Commission wrote to each juror, posing questions
drafted by the Court. They were as follows:
1. Did you, at any stage during the trial, visit any place mentioned in the
evidence?
2. If yes, (i) where did you visit?
(ii) did you visit alone or with others?
(iii) if with others, please say how many and identify them if
if you can.
3. If the answer to 1 is no, are you aware that any other juror visited
such
a place?
4. If the answer to 3 is yes, please identify if you can the place(s)
visited
and the juror(s).
One juror having been discharged, there was a total of 11 to whom the
Commission attempted to address those enquiries. Seven jurors replied; six answering all
relevant questions "no" and the seventh, No 2 answering as follows:
"I did not at any stage during the trial visit any place mentioned in
the evidence but the jury were aware that one juror had. From the seating plan of the
jurors which you enclosed, to the best of my recollection the juror was No 3 who was also
the foreman of the jury. The jury discussed the journey he had made to various sites
mentioned in the evidence including distances and timing between the garage, the pub, the
field, and routes taken etc. However for specific identification of places and journeys
made I feel he would be the person to give you more detail."
There was difficulty in tracing juror no. 3, the foreman. Eventually he was
found and replied to the following effect. He had during the trial visited places
mentioned in the evidence. He had gone by car to the street in which Davis and Rowe had
lived. From the roadway he had looked at the house for about one minute. He had then
driven to a road near to the public house close to the field in which Mr Hurburgh had
died. He had stayed there for one or two minutes. He had been alone at all times. So far
as he knew, no other juror, had visited any of the places mentioned in the evidence.
We were invited by Mr Bevan to require the jurors, or at least nos. 2 and 3
to attend for further questioning. We refused the application. Section 8 of the Contempt
of Court Act 1981 prohibits any enquiry which might lead to disclosure of matters
discussed in the jury room. Historically, this Court has been vigilant to preserve the
sanctity of a jury's deliberations. In our judgment, to ask any further questions would be
to risk contravention of Section 8.
It is apparent on the face of the letters from jurors 2 and 3 that their
recollections differ. We have been reminded that this was an alert jury, (It was the jury
who picked up the relevance of the Marks and Spencer's amaryllis plant as a birthday gift
to Joanne Cassar) and confident enough to send a number of notes to the Judge during the
trial. Many of those notes were penned by the foreman, juror no. 3 That he wielded some
authority cannot be ruled out. Juror no. 2 volunteered the information that there had been
some discussion. None was mentioned by no. 3
In R -v- Gurney (1976 Crim.L.R) at 567 the judge decided that it
would cause too much trouble and expense for the jury all to have a view to consider the
quality of the street lighting in a particular street where the defendant was alleged to
have committed the offence of dangerous driving. He authorised one juror who lived near
the scene to view it and describe it to others. It was held on appeal that the judge broke
the rules which required the jury to stay and hear all the evidence together and that
there was no place in the jury system for apportioning work between jurors. The
prosecution did not press for the application of the proviso and the conviction was
quashed.
In R v Smyth, Aspinall and Aspinall CA 67 (1988) the court
considered the appropriate criteria when considering individual knowledge acquired by one
juror. It concluded "we think the correct question to ask when considering whether
such an incident renders a conviction unsafe, is whether what was done could have affected
in a significant way an issue the jury had to determine."
The fact that he went to where Mr Hurburgh was killed suggests to us that
juror no. 3 was concentrating on the mystery of the timing. We remind ourselves that he
drove from 25 Laurie Park Road to a field near the White Bear, but drove no other part of
the journeys taken by the robbers that evening. He may have been considering the line of
sight enjoyed by Mr Fyffe. He may have been considering the time taken to achieve the
journey. We cannot be sure that he viewed the correct area, let alone from the correct
angle.
Might he have gone back to the jury with his own solution to "the
mystery"? If he did, then there is no guarantee of the basis upon which the jury
reached its verdict. A cogent though not conclusive test for the effect of this disclosure
is the approach which each member of this Court would have adopted if sitting as the trial
Judge and equipped with the information which has subsequently emerged. Dependent upon the
timing of the juror's visit, it might have been possible to "cure" the
difficulty by arranging a controlled view for the whole jury. Were that not possible, then
one of two things would have happened. Either juror No 3 alone would have been discharged,
on the basis that no discussion had taken place with the other members of the jury or the
trial would have been aborted.
The area of fact which this jury must, in our judgment, have been
considering, is crucial. Either, as Mr Mansfield put it, the Crown comes up against the
block of the Fyffe body of evidence, or, it comes up against the block of the Kate
Williamson evidence. The two are irreconcilable. In our judgment, this visit by juror No
3, was another material irregularity in the course of the trial and a serious one at that.
Before leaving this matter it may be appropriate to say something about the
instructions which are routinely given to jurors in waiting. We understand that they are
shown a video which describes their duties in some detail. In addition they are told by
the jury bailiff about the domestic arrangements and the facilities available to them.
They are informed that they are not to talk to people outside their own number about the
case which they are trying. Something similar is said by the judge at intervals during a
trial. In R -v- Oliver (1996) 2 Cr.App.R 510 at 520 the court said:
"The jury must decide the case on the evidence and the arguments they
have seen and heard in court and not on anything they may have seen or heard or may see or
hear outside the court. That the evidence has been completed and that it would be wrong
for the jury to seek for or to receive further evidence or information of any sort about
the case."
It does not seem to be the common practice to warn jurors not to visit the
scene of crime unless a view has been organised for that purpose. In future Judges would
be wise to consider whether or not in the particular case there might be a risk of a juror
acting on his own initiative as appears to have happened here and to give some further
appropriate direction. Finally, we would like to say that nothing in this judgment is
intended to reflect upon the integrity of the particular member of the jury and neither
should it be taken to be any criticism of what he did.
We turn next to the additional and separate grounds of appeal raised on
behalf of Johnson and Davis.
Martin Todd.
Although there was evidence at trial from the "Jobbins Group" of
Johnson being involved in preparatory acts the only evidence which put Johnson at the
scene of any of these crimes came from Martin Todd who spoke of Johnson having admitted
his involvement. His account was circumstantial and, on its face, entirely credible. He
made notes of his conversation shortly afterwards from which he was permitted to refresh
his memory. When seen by the Greater Manchester Police he expressed concern that in his
evidence he might have attributed a more definite role to Johnson than was warranted by
what Johnson had told him. He wanted to make it plain that what Johnson had said did not
amount to any more than an admission of some involvement. That is in fact what Todd had
said in evidence although the notes he made did attribute to Johnson an admission that
"he did it". That was by no means a "retraction" and in our view does
not constitute fresh evidence capable of throwing any doubt upon the safety of Johnson's
conviction. However, Mr Courtney Griffiths QC also relies on an alteration to the notes
made by Johnson consisting of the crossing out of the word 'white' describing Johnson's
accomplice or accomplices which Todd has initialled. It is accepted on all sides that that
alteration must have been made, to put it no higher, at the suggestion of a police
officer. That the word 'white' was crossed out is evident to the untutored eye but the
fact has been confirmed since trial by an expert. It seems to us that the point was
available to be taken at trial. It does not surprise us that defence counsel was not
prepared to run the risk of the document becoming an exhibit. Had that happened the jury
would have seen recorded the words "he told me he was scared as he did do it."
That was stronger than anything Todd had said in evidence. In our view the ground now
raised has little merit. The only conceivable point which might be made on appeal is that
the crossing out of the word 'white' is of a piece with the suppression of message 111 and
suggests an attempt by the police to doctor the evidence. If so, it was a very clumsy
attempt given the obvious nature of the alteration and the fact that presumably, Todd had
been asked, to initial the alteration. Mr Courtney Griffiths also takes the point that the
Crown should have led Todd's criminal convictions rather than oblige defence counsel to
put them to him and so risk Johnson's character going before the jury. Mr Bevan has told
us that there would never have been any question of him seeking to put in Johnson's
character as experienced Counsel for Johnson must have appreciated. Moreover, we have no
doubt that if asked to do so Mr Bevan would have led Todd's criminal record in chief. It
has also emerged through the Greater Manchester Police enquiries that Todd misled the
jury, as he had the prison authorities, by claiming to be suffering from multiple
sclerosis. It seems that this had been said simply to obtain a place in the hospital wing
of Brixton prison and was quite untrue. So he told a lie not only to the prison
authorities but also on his oath. Given Todd's record and the fact that the lie was in no
way directed at Johnson we consider this piece of "fresh" evidence to be wholly
irrelevant.
The small white car.
An alternative side heading might have been "message 90". It has
emerged during the enquiries and was recorded in message 90 that a Mr Roger Cole saw three
white men in a small white vehicle not far from the Spicer/Almond household. It is
postulated that the small white car might have been the Renault 5 stolen after the
robbery. Mr Cole thought it was a white Peugeot. He recorded the registration as UUF 408Y.
That registration number belonged to a Triumph Acclaim the owner of which lived in
Brighton. Moreover, it does not correspond in any way with the registration number of the
Renault which was E546 MOW. Perhaps even more importantly three white men in one motor car
does not accord with the three robbers leaving the Spicer/Almond home in a Renault and a
Vauxhall Cavalier. The "fresh" evidence is of no assistance either way.
The revolver.
It will be remembered that when Johnson was arrested he had with him a
revolver. He admitted having had it with him on the evening of 15 December. It became an
exhibit at trial. Richard Napier said that it was the same gun as has been pointed at him.
It is accepted that Richard Napier could not safely identify it as the same gun because it
was a popular model without any distinguishing features. No objection was taken at trial
to the admission of the evidence. Nevertheless Mr Courtney Griffiths argues that the
evidence should have been excluded by the judge on his own initiative. He submits that the
prejudicial effect of allowing it in far outweighed the probative value of the evidence,
given that it could not sensibly be said to have been the same gun which was used by one
of the robbers. We disagree. The evidence was plainly admissible to show consistency and,
in the absence of objection, there was no reason for the judge to exclude it.
The Union key.
This had been found in the dash of the Triumph Spitfire. It was not known
at trial but has been discovered since that it was capable of being used to start the
Triumph Spitfire. It is not suggested that it was designed for that purpose and Mr
Membury, the owner, had said that he had retained all the keys for the car. However, Mr
Courtney Griffiths submits that if available at trial the evidence might have cast doubt
upon the evidence of the "Jobbins Group" that Johnson had asked for some means
of starting the car. Why should he do that if the means was already to hand? We recognise
that it is the sort of jury point which is sometimes made in cases of this kind but we
cannot think it is of any importance in the context of this case as a whole.
The Police log.
It seems that a police incident log had recorded that the three robbers in
the Spicer/Almond robbery were white. Had that been known at trial, as it was not, Mr
Courtney Griffiths submits that it might have provided some ammunition for
cross-examination. The actual words recorded "three males believed white" is no
more than a reflection of the evidence which Mrs Spicer gave at trial. We cannot see that
the point is of any significance.
Joanne Cassar.
This is a separate ground of appeal taken on behalf of Davis. In interview
with the Greater Manchester Police Joanne Cassar accepted the possibility of Cooper having
absented himself for a time without her having been aware of the fact. At trial she had
said that she and Cooper had slept in the same room that night thus providing an alibi for
Cooper and removing him from the list of possible suspects. As Mr Bevan points out Jason
Cooper was wont to brag about his nefarious exploits and there was absolutely no reason
for him to be other than entirely open about his comings and goings. It is, Mr Bevan
submits, extremely unlikely that he could have escaped for a period of some hours and
returned without Joanne Cassar being aware of the fact. In any event it was open to
defence counsel to pursue that point in cross-examination had he so desired. In our view
the point is no more than a trifle.
In resisting the appeals Mr Bevan has reminded the court of the strength of
the prosecution case particularly as against Rowe. He suggests that it is essential to
begin with an appreciation of the evidence which connects Rowe to the Napier and
Spicer/Almond incidents. He points to the fact that property from both robberies had come
into his possession by the early hours of 16 December. There is no explanation offered
save for a fanciful suggestion that there had been a conspiracy between the police, the
"Jobbins Group" and Kate Williamson. Whilst a ready motive might be found for
the "Jobbins Group" on the assumption that they themselves were responsible for
these crimes and Kate Williamson was said to have acted out of jealousy, there seems to
have been little reason for the police to go against Rowe, Davis and Johnson rather than
the easier target of Jobbins, Duncan and Griffin. Further, Mr Bevan asks rhetorically, how
did it come about that Kate Williamson and the "Jobbins Group" were able to put
their heads together when she and they were barely acquainted. And why, would a frightened
16-year-old girl make up such a story anyway. It is absurd to suggest that she would run
the risk of offending Rowe and laying herself open to criminal charges if what she said
was not the truth. Then she is supported by the scratch on the window and the finding of
the brooch in Rowe's waste paper basket. Although Mr Bevan cannot and does not pray in aid
any of the material researched by the Greater Manchester Police which might positively
assist his case he does point to the fact that nothing has been turned up to support the
conspiracy theory for which Rowe contends. He submits that if it is accepted that the fact
that Rowe was involved in the second and third incidents is overwhelming then, given the
general acceptance that the same trio was involved in all three, it must follow that Rowe
was also involved in the Hurburgh/Eley incident. We interpose the comment that by the same
reasoning if there is doubt that Rowe was involved in the first incident then there must
be doubt about him having been involved in the second and third. However Mr Bevan
continues; if Rowe was properly convicted the conspiracy theory falls apart. The three
robbers were not Griffin, Jobbins and Duncan. That has implications for the other two
appellants. Davis' case is closely intertwined with that of Rowe. There is the evidence of
the "Jobbins Group", Joanne Cassar and the Amaryllis plant and the fingerprints
on the porcelain figures. On his own admission Johnson was at 25 Laurie Park Road on the
evening of the 15 December; he had a revolver in his possession; he was concerned to know
how to start the Triumph Spitfire; he made admissions to Todd; he gave a false alibi; he
did not give evidence.
In our view the case against all three appellants was formidable. The
evidence against Rowe on counts 9, 10 and 11 was overwhelming. However we are bound to
follow the approach set out earlier in this judgment, namely assuming the irregularities
which we have identified had not occurred would a reasonable jury have been bound to
return verdicts of guilty? In all conscience we cannot say that it would. At this distance
we simply cannot assess the impact which the undisclosed material might have had on the
case for and against Johnson. Nor can we be certain that the results of the juror's
private investigations, whether or not communicated to the others, might have played a
part in resolving the timing mystery in favour of the prosecution. Accordingly we cannot
say that any of these convictions is safe. They must be quashed and the appeals allowed.
Ten years on it is not appropriate to order a retrial. For the better understanding of
those who have listened to this judgment and of those who may report it hereafter this is
not a finding of innocence, far from it.
MR BLAXLAND: My Lord, we have a very simple application
for a defendant's costs order under section 16(4) of the Prosecution of Offences Act,
which provides the court with a power to make such an order where an appeal against
conviction is allowed. Can I make it plain that legal aid was granted very shortly I think
after this case was referred to the court by the Criminal Cases Review Commission. The
purpose for applying for a defendant's costs order is simply this, that my instructing
solicitor conducted a lot of work on this case prior to the case being referred, indeed
was involved in making submissions to the Criminal Cases Review Commission on behalf of
the appellant, Mr Johnson. The application is for a defendant's costs order to be taxed in
the normal way. That is the extent of the application.
LORD JUSTICE MANTELL: Where ought we to look in the red book?
MR BLAXLAND: In Archbold it is at Chapter 6, paragraph 5.
LORD JUSTICE MANTELL: This is for the additional work done, is it, Mr
Blaxland?
MR BLAXLAND: That is right.
LORD JUSTICE MANTELL: What would that consist of?
MR BLAXLAND: The representations made to the CCRC. I do not have chapter
and verse as to how long they went on for, which is why I make the application that the
costs be taxed. But there was work undertaken by my instructing solicitor.
LORD JUSTICE MANTELL: You are asking for an award of costs out of central
funds to cover that additional work if it is found to merit remuneration on assessment?
MR BLAXLAND: Yes.
LORD JUSTICE MANTELL: I understand that. Yes. Mr Mansfield, do you have a
similar application?
MR MANSFIELD: My Lord, in my case my instructing solicitors appeared at the
trial and have appeared on behalf of Mr Davis ever since, and Mr Young in particular has
done a considerable amount of work on the case. He made representations to the Home Office
in the 1993 to 1997 period before the CCRC took over. He made prison visits. He cooperated
fully with the CCRC and continued prison visits and read all the material and made
submissions to the CCRC.
LORD JUSTICE MANTELL: Your application is similar. You are only seeking an
order for costs in so far as your solicitors have not been sufficiently remunerated by
reason of their legal aid certificate?
MR MANSFIELD: Yes.
LORD JUSTICE MANTELL: Is that it?
MR MANSFIELD: It is.
LORD JUSTICE MANTELL: And that would come out on assessment? Yes. Yours is
the same application, Mr O'Connor?
MR O'CONNOR: Mine is the same. The proposition that Mr Nichols has not done
work pro bono would be rejected as incredible by the courts. He has, as ever, done
a considerable amount of work before legal aid was granted but from 1997 onwards which is
when he started to act in particular therefor with the CCRC, so the principle is the same.
LORD JUSTICE MANTELL: Yes.
MR JUSTICE BLOFELD: May I ask one question. If the CCRC come in and there
are solicitors, is there any provision for payment then, or none?
MR O'CONNOR: My Lord, none, except for this retrospectively. The solicitors
themselves take the chance and it is a critical part of the system as we have seen in many
cases that they do.
LORD JUSTICE MANTELL: You have come across a similar order being
made in the past have you, Mr O'Connor?
MR O'CONNOR: Yes. My Lord, exactly the same order was made in the Hickey
and Robinson cases and the Bridgewater case. Exactly the same.
LORD JUSTICE MANTELL: I do not imagine, Mr Waters, you want to say
anything?
MR WATERS: My Lord, no.
LORD JUSTICE MANTELL: The court is minded to make an order to be expressed
in the same terms as were employed in the Hickey case in relation to all three
appellant's solicitors. Does that satisfy you, Mr Mansfield?
MR MANSFIELD: My Lord, yes. I wonder if it might be extended to my junior.
In fact he has also done a considerable amount with the solicitor. It may require a
separate application for him but there was work done prior----
LORD JUSTICE MANTELL: My Lady thinks that the same application will cover
both. If not, Mr Mansfield, then liberty to apply.
MR MANSFIELD: Thank you very much.