SMITH BERNAL

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)

Regina

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SION JENKINS

MR ANTHONY SCRIVENER QC & MR JOHN HAINES appeared on behalf of the Appellant
MR CAMDEN PRATT QC & MR A GARDNER appeared on behalf of the Crown Prosecution)

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JUDGMENT
(As Approved by the Court)

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LORD JUSTICE KENNEDY:
1. Outline.1. Billie Jo Jenkins was born on 29th March 1983, so on 15th February 1997 she was nearly 14 years of age when she was battered to death by an assailant using a large tent peg, some eighteen inches long, whilst she was painting the doors which opened onto the patio terrace of the large semi-detached house in Hastings where she lived with the appellant, his wife Lois, and their four girls. Billie was not a blood relative, but she had been living with the family as a foster child since 1992, and it was expected that in due course she would be adopted.
2. At about 2.00pm on that afternoon the appellant's second daughter L, aged 10, and her friend Ellen had a clarinet lesson. Both girls were picked up from their music teacher's home by the appellant and his eldest daughter A, aged 12, just after 3.0 pm. The appellant and the three girls drove to Ellen's house, and she was dropped off at between 3.15 and 3.20. from there the appellant and his two daughters drove home, a journey time of about 4½ minutes. Mrs Jenkins and the two youngest daughters were out shopping. At trial the appellant said that he, A and L all went inside. L rushed upstairs to put her clarinet away. She was going to wash his MG car. He did not see Billie, but she would have been painting the patio doors. He heard A speaking to her and recalled A saying goodbye to her. He decided to buy some white spirit. So, together with A and L, he left the house and drove off in the MG intending to go to Do-it-All. About 15 minutes later, still accompanied by the 2 girls, he returned home. Billie was found to be lying on the patio with obvious serious head injuries. At 3.38 pm the appellant telephoned for an ambulance. As his wife was out he telephoned a friend, Denise Franklin, who lived in the same road, and she set off to help.

3. In due course an examination of the appellant's clothing revealed blood on his shoes, his trousers and his jacket which was identical to Billie's blood. The prosecution case at trial was that her blood got onto his clothing when he attacked her. His case was that it got there when he went to assist her after the Do-it-All trip when he discovered her in her distressed state. The prosecution also relied upon other matters, the events of that afternoon prior to the 999 call, and the appellant's conduct thereafter, but, as prosecuting counsel said when opening the case to the jury, the blood spattering was the crux of the prosecution case. The trial took place at Lewes, and on 2nd July 1998 the appellant was convicted of murder. A separate indictment, containing a charge of obtaining a pecuniary advantage by deception, was ordered to remain on the file on the usual terms. The appellant now appeals against conviction by leave of the single judge.

4. 2.Grounds of Appeal.

5. Although there were originally 15 grounds of appeal, many of them subdivided, grounds 6, 8, 12, 14 and 15 have been abandoned, and there are now five matters which remain for our consideration, namely -

6. (1) The children issue.

7. It is contended that by dealing inappropriately with the children A and L on 20th March 1997 the prosecution deprived the defence of potential alibi witnesses, and thus rendered a fair trial impossible, so the proceedings should have been stayed as an abuse of process (ground 1). Alternatively the trial judge should have required the prosecution to call those children or called them himself (ground 2). And in any event the judge was wrong to tell the jury that it had been open to the defence to call them (ground 3).

8. (2) Ruling in relation to D.C. Hutt.

9. It is contended that the judge was wrong to rule as he did in relation to the admissibility of part of this witness' evidence (ground 7).

10. (3) The Confusion issue.

11. It is contended that during the hearing some confusion arose in relation to the medical and scientific evidence, which was reflected in the summing-up. This is coupled, in ground four, with criticism of the way in which the medical and scientific evidence was presented in the summing-up.

12. (4) Other points in the summing-up.

13. Criticism is made of the way in which the trial judge dealt with, or failed to deal with -

14. (a) the evidence of the appellant (ground 5);

15. (b) the evidence of the prosecution forensic scientist Mr Wain (grounds 9 and 10);

16. (c) arguments as to motive, etc. (ground 11) and the pre-assault position of the weapon (ground 13).

17. (5) The fresh evidence issue.

18. This centres on the evidence of Professor Denison, who was instructed after the trial, and who has conducted experiments to show what volume and flow in a single exhalation could have produced blood spattering as found on the clothing of the appellant.

19. 3.History to date of Trial.

20. Before we turn to consider any of the issues which arise in this appeal, it is necessary to say something more about the history of the case. As we have said already, an examination of the clothing worn by the appellant disclosed that it was spattered with what appeared to be the blood of the deceased. It was on his jacket, his trousers and his shoes. The spattering, which was not readily visible, was similar to fine spray which was observed on the front of the leggings worn by the deceased, and neither Denise Franklin nor the ambulance crew paramedics had clothing which was similarly affected. There was blood on the shoes of one of the paramedics, but that was all. The nature and distribution of the blood spattering on the clothing worn by the appellant was consistent with him being the attacker. Mr Wain, the forensic scientist called by the prosecution, said that the marks were "typical" of what he would expect if the wearer inflicted blows to a wet surface. The larger spots would travel forwards towards the French windows, and the fine spray would travel backwards and upwards. Although the appellant is right handed, Mr Wain was not troubled by the predominance of spots on the left jacket sleeve, or by the uneven distribution on the legs, because much would depend, he contended, on how the weapon was held, whether both hands were used, and how the assailant was positioned at the moment of impact. Mr Russell Stockdale, another forensic scientist called by the prosecution, gave evidence to the same effect. Mr McKirdy, a forensic scientist called by the defence, was a little more cautious. His experience indicated that in cases of battering there can be a considerable range in the size of droplets, but the spattering on the deceased's leggings was consistent with her head when wet with blood being hit by a metal spike, and the spattering on her trousers looked the same size as that on the clothing of the appellant. Mr Webster, another forensic scientist called by the defence, also said that the spots on the clothing of the appellant could have been from impact spatter. He thought that they were not completely typical, but there was nothing in the spots which was inconsistent with battering.

21. On the day of the killing it was not known that the appellant's clothing was spattered with the blood of the deceased, but it was recognised that he was the last known adult to have seen her alive, and the first known adult to discover her body. If anyone else killed her they must have stepped into the garden to do so some time after 3 pm on a February afternoon, and then disappeared quickly and virtually without trace. There had been some talk of a prowler, and there was a suggestion that a gate at the side of the house, which was shut when they left for Do-it-All was open when they returned, but that was all.

22. Against that background it is instructive to see what the appellant said on the day of the killing and thereafter about his contact with the deceased, and what he did, and how the explanation for the spattering on his clothing evolved.

23. As we have said, the appellant called for an ambulance at 3.38 pm. It was his first attempt to summon help, and he told the operator that he had just got back. When the operator tried to find out when the incident had occurred the appellant suggested that it must have occurred in the last half to three quarters of an hour. At trial the appellant claimed to have no recollection of that conversation, but suggested that if he said what was alleged he must have been shocked and confused. After making the first 999 call he summoned Denise Franklin who, when she saw the deceased, encouraged the appellant to make a second 999 call. He did so, and during that telephone conversation was asked if he had put the injured girl on her side. He said he had, but in fact he had not. Again he said if he spoke as alleged it was only because he was confused and shocked. There was evidence that as soon as the ambulance arrived the appellant got briefly into his parked MG car. He says that if he did so if was for no other reason than in his state of shock to carry out the mundane task of putting up the roof. The prosecution suggestion was that he got in to provide a possible explanation for any blood that might be found later in the MG.

24. Denise Franklin and the ambulance men described the position of the deceased as being prone, flat on the patio, with the left hand side of her face on the floor facing the garden. There was a plastic bag, part of which was up her left nostril. Denise Franklin had removed that plug before the ambulance team arrived and blood poured out. Six days later, on 21st February 1997, she tried to put Detective Constable Groombridge in the position in which she had seen the deceased. She put that officer's chin a little off the ground in a position in which at first he was unable to relax without letting the chin drop, but when he put his left hand under his body he found a position where his chin could stay off the ground just a little bit, about half to one inch, in a position which satisfied Denise Franklin and he could relax. D.S. Capon, who was there, said that the effect may have been to raise the nose up "just slightly."

25. The police arrived soon after the ambulance, and according to PC Bruce the appellant told him that he had gone out with the two children at 2.55 pm and had not returned until 3.30 pm. As the prosecution pointed out at the trial, that was broadly consistent with what was said to the operator who received the first 999 call, and it was untrue. Furthermore the appellant said that when he and A had returned home after collecting L from her clarinet lesson only L had gone into the house. She had returned very quickly and the three of them had then gone off again to Do-it-All. That also was untrue because, as the appellant later accepted, he did go into the house between the two journeys. Furthermore the second journey was a curious one. It involved a double circle around a large park, followed by a drive to the Do-it-All store, which the appellant said was to purchase white spirit, something he did not need because as a later search revealed he already had some. In fact nothing was purchased because, he said, he realised before he entered the store that he had no money, and he simply returned home. The prosecution at trial contended that the appellant, having murdered the deceased was simply getting the children A and L away from the scene and giving himself time to think.

26. PC Bruce was criticised because he did not note his conversation with the appellant or incorporate it into any statement until Tuesday 18th February 1997, three days later. As the judge said, the jury had to disregard the officer's evidence unless they were sure the appellant said what the officer alleged, but if they were sure then the question arose as to whether the appellant was simply mistaken or whether he was lying to try to distance himself from the murder.

27. On the day of the murder the appellant and his family went to stay with their friends the Gaimsters, and there was evidence that although it was cold the appellant was very reluctant to take the fleece jacket which was later found to be spattered with blood.

28. On the evening of the same day the appellant told another police officer, DC Hutt, that he had not been in the house after collecting L from her clarinet lesson and before going to Do-it-All.

29. On the following day, Sunday 16th February 1997, Dr Hill, a very experienced pathologist, performed an autopsy on the deceased. The cause of death was severe head injuries. The lungs were hyper-inflated, and there was some blood in the airways going down to the two separate branches of the lungs. That blood was regarded by Dr Hill as the obstruction which prevented exhalation from the lungs.

30. On that same Sunday the police interviewed the two girls L and A. It is common ground that those interviews were properly conducted, and we shall look in more detail at the way in which the girls were treated when we turn to the children issue later in this judgment. Nothing that they said formed any part of the evidence laid before the jury.

31. On 22nd February the investigating officers received the preliminary view of the forensic scientists that the spots of blood on the appellant's clothing were typical of those to be expected following an impact on a surface that was wet with blood, and that the blood on the clothing appeared to be the blood of the deceased, but not the blood of the appellant. He was arrested on 24th February, interviewed in the presence of his solicitor, and then, on 25th February, he was released on bail. On 13th March 1997 the appellant was re-arrested, interviewed further and then charged.

32. The case was committed for trial, and the trial was due to begin on 22nd April 1998. On 9th April 1998 the defence served reports from two forensic scientists, Mr McKirdy and Mr Webster. Plainly it was most unsatisfactory that there should have been such late service of those two reports, which raised for the first time the suggestion that the blood on the appellant's clothing had been exhaled by the deceased. The appellant's solicitor said that the late service was due to the defence awaiting confirmation from the prosecution that all evidence upon which the prosecution intended to rely had been disclosed. We have not investigated that issue, but we note that the trial date had to be vacated, after which a report from a neurosurgeon, Mr Sinar, was served by the defence. The prosecution then obtained reports from Professor Southall, a paediatrician, and Mr McAughey, an aerosol chemist, to which the defence responded with a report from Professor Douglas, who specialises in respiratory diseases. His report was not received until after the start of the trial, which began on 2nd June 1998.

33. 4.At the Trial.

34. The blood spattering on the clothing of the appellant clearly called for an explanation, and the explanation which was advanced was exhalation, which, according to the prosecution, was not acceptable in the circumstances of the case.

35. Mr McKirdy and Mr Webster had carried out experiments which showed that a substantial exhalation of air could expel blood from the nose so as to create a pattern of very fine blood spots on a target placed at an angle of about 45 degrees to the nose. When he carried out the experiments Mr Webster exhaled 2.3 litres of air in 2 seconds. Mr Sinar said that where there is an open head injury the victim can go on breathing and making efforts to clear his or her airways for some time, and if, as in this case, there is a lot of bleeding that is some indication that the victim was alive for a time with her heart pumping blood. Mr Sinar "felt from what he had read" that the deceased was still alive when first seen by the appellant after his visit to Do-it-All.

36. Professor Douglas defined some of the terms used in physiology and pointed out that it did not matter how much air Mr Webster had expelled. What mattered was the speed of flow. It was not necessary to breath in 2.3 litres of air to produce a peak flow of 55 litres per minute.

37. The starting point of the prosecution response to this body of evidence was the pathologist Dr Hill. He accepted that it is difficult to be precise as to the time of death, which can be highly variable, but said that where, as here, the brain injury is severe death is more likely to be instantaneous. As to the respiratory function Dr Hill considered that any breathing by Billie after she received her injuries would have been very mild and very slight. The blood in the airways would obstruct exhalation. Dr Hill accepted that movement of the body could have released trapped air, but he regarded the Webster and McKirdy experiments as wholly unrealistic. He said that an exhalation of 2.3 litres in two seconds would be a huge amount for anyone to exhale, and in the context of this case it bore no relation to reality. Had it happened anyone present would have seen a big breathing movement and generally from a physiological point of view Dr Hill considered the possibility of spraying of droplets by breathing to be so remote that it can be discounted. It is clear from the summing-up that it was suggested to Dr Hill in cross-examination that he was not qualified to express an opinion in relation to expectation of life after head injury, or in relation to the possibility of blood being projected by exhalation after such an injury. In some cases it can be entirely appropriate to examine the limits of an expert's expertise but we question whether that line of cross-examination (which was also adopted in relation to other expert witnesses) assisted the jury in this case, any more than it has assisted us. Dr Hill was, as we have noted, a very experienced pathologist, and he was the only expert called as a witness who actually examined the body of the deceased. The defence rightly obtained the services of another pathologist, who was given access to the body, but he was not called as a witness.

38. Professor Southall was described by the trial judge as "a very experienced paediatrician concerned with respiratory physiological research for many years". The professor expressed the opinion that it was impossible for Billie in her state to expel 2.3 litres of air. He doubted if she could have inhaled that amount, and agreed with Dr Hill that if she did so anyone present would be bound to see it happen. Mr Webster, he said, can be seen on the video to be actively exhaling air, which is not what a dying child would do, and there would be no gasping after the heart stopped.

39. Then there was Mr McAughey, the scientist, whose response to the experiments carried out by Webster and McKirdy was to perform some experiments of his own, with equipment and a female volunteer. He said that to get expulsion of blood droplets by force to hit targets 40 and 60 cm. away required a peak air flow of 55 litres per minute. He measured that 2.7 litres of air was exhaled, and 2.7 litres would be 80% of Billie's vital capacity, that is the total amount she could have expelled from her lungs.

40. Obviously the prosecution witnesses attached significance to the fact that neither the appellant nor Denise Franklin nor the ambulance crew saw any sign of life. As to that, and as to what the prosecution alleged to be lies told by the appellant in relation to his movements, the defence relied on Professor Trimball, an expert in psychiatric disorders following accidents, who had done work on post traumatic stress disorders. He gave evidence as to the effect of shock, which can impair memory. There can be flashbacks, and islands of memory, not in proper sequence. However, as he agreed in cross-examination, different people react in different ways, and at an early stage the appellant did prepare comprehensive notes which may suggest a clear and detailed memory of the occasion.

41. We have dealt with the history up to trial, and with the evidence given at trial, in some detail because it forms an essential background to the issues we must now address, but we emphasise that we have restricted ourselves to those matters which we consider to be of some significance for the purposes of this appeal. Many other matters were explored both before and at the trial. We turn now to the first of the issues raised in this appeal.

42. 5.The Children Issue.

43. The submission in relation to abuse of process was made without evidence being called, but by reference to statements and other documents disclosed by the prosecution, from which it emerged that L was interviewed by WDC Gregory and DC Cleverley on 16 February , and A was interviewed immediately afterwards. Both interviews were video recorded. L said that, when they returned home from her music lesson, she ran upstairs to put her clarinet away. She did not see or hear Billie. The appellant went into the dining room and placed his keys on the mantelpiece. She said (page 28/29 of the transcript of interview) that she "ran down and went outside the house to wait" for her father who was going to bring her a bucket of water so that she could wash the MG. The appellant then came and "we were just outside so he just said "jump in" and we just got into the car", because he was going to Do-It-All to buy some white spirit. At pages 76/77, she said that A was waiting by the MG for the bucket and water, and that she (L) went out of the house first, followed by her father who locked the door. In answer to the question whether there was any time between when she and her father left the house, she said: "No. I like came out and he came out just after me and then shut the door". She said that she noticed that the side gate was closed when they went to buy the white spirit, and that it was open when they returned.

44. In her first interview, A said that on their return from L's music lesson, she went into the house and saw Billie painting near the patio doors. She (A) was in the hall, and thought that her father was with her as well, but she did not know (page 15). She did not know where her father went: "he could have been behind me in the hall, he might have been outside, I'm not sure (page17). When asked again about her father's movements, she said "I think he was with me as well, but, I don't know. I can't rememberI don't think he went upstairs. He might have been just out, just coming up the stairs or something" (page 26/27). She and Billie said "hello" to each other, and then "we just all walked out" (page 15), but the appellant did not speak to Billie (page 27). She said that she and L were standing and talking near the MG, when their father came to them and told them to get into the car because they were going to go "somewhere else" to get some white spirit (page 14). When asked how long it was before her father came out to join them at the MG, she said "A few minutes. About two minutes, one minute." At page 30, the following sequence took place:

45. Q. You were standing by the MG with L is that right?

46. A. Yeah.

47. Q. Where was Dad then?

48. A. Um, I think he was next to the Opel, next to our other car, But I'm not sure. He, um, I don't know.

49. Q. And where was.

50. A I think he was outside as well.

51. Q. And where was he just before that?

52. A. With me, just, don't know, just (inaudible).

53. Q. Okay. Was he in the house with Billie at any time?

54. A. No. I was in the house and I saw her.

55. She stated that during the journey the appellant said that he was willing to return home without buying the spirit, unless she (A) insisted that she wanted to do some painting.

56. On 22 February, as we have said, investigating officers received the preliminary view of the forensic scientists.

57. The appellant was then arrested on 24 February. He was interviewed and then next day released on bail.

58. A was interviewed again on 25 February. She told the officers that she had talked to the appellant about what had happened every day. She was asked further questions about the events of 15 February. She said that on their return from the music lesson, she went into the hall, and her father went "round the corner", and then into the kitchen (page 25). Then the two of them and L went out of the house (page 18). The appellant closed the door, and they walked down together and got into the car (page 13). He followed "a few seconds afterwards" (page 26). She was reminded that in her first interview, she had said that she and L had waited outside the house a "few minutes" for their father. She said (page 27) that it "really wasn't long, it was like, it was really short. I think it was like an amount of time for someone to close the door and lock it and then follow on afterwards". At page 29, however, she said that she was not aware that he had locked the door, and she did not know where they were going. She thought that they were going outside to wash the cars, and was unable to explain why Billie had said good bye to them, or why her father had locked the door. The first time she was aware that they were going to buy some white spirit was when they were in the car (page 30/1).

59. On 25 February, the officers decided to tell Mrs Jenkins about the bloodspots that had been found on the appellant's clothing. The relevant pocket book entry reads: "Told them to feed into Mum". On the following day, Mrs Jenkins was informed. The pocket book entry records that the officers spent two hours convincing her that her husband had murdered Billie. It describes in vivid detail the distress that was being suffered by Mrs Jenkins and the children.

60. In a statement of 3 March, Peter Gaimster, a neighbour, told the police that A had said on 25 February: "You know, I think I was outside with L when dad came out". On 3 March, Mrs Jenkins told the police that A had volunteered further information. This included that it was odd that the appellant had run down the steps in a bit of a funny mood, and had told the two girls to get into the car quickly. On 4 March, Mrs Jenkins told the police that A had said that the appellant had been cross with Billie for screaming at her over who should do the painting, that when she (A) had tried to get back into the house from cleaning the car, the appellant would not let her, and that she had formed the impression that he was trying to keep Billie and herself apart.

61. On 7 March, Mrs Jenkins made a statement to the police. She said that the appellant had a bad temper, and had been violent towards her, and that he would use a slipper or stick on A and L: all of them were afraid of him. The appellant was arrested again on 13 March, and charged with obtaining a pecuniary advantage, namely his post as a deputy head teacher, by deception. On 14 March, he was charged with murder.

62. Both charges attracted a good deal of media attention. The children of the Jenkins family were hearing rumours at school. Mrs Jenkins had already told the police of the appalling emotional effect the murder and the subsequent events were having on her daughters. On 17 March, the police consulted Dr Bentovim, a consultant psychiatrist, and Mrs Bentovim, a social worker and family therapist, about the possibility of a further formal interview of A and L. Their advice was given orally on 17 March. They advised that Annie had had her own thoughts reconstructed by the appellant, and now needed to have them deconstructed to allow what she knew to become evident. This should be done in a "therapeutic rather than an evidential mode". The children, therefore, needed a "debrief". The advice was confirmed in a report dated 21 March, at paragraph 9 of which, they said:

"As far as the future management is concerned, given that A has made two statements which are contradictory, to carry out further interviews may very well confuse her even more. It was felt in our meeting that it would be helpful to explain to her the current situation, and what has led to the prosecution of her father in general terms. It would be important for A to know that her statements that she made were not responsible for the prosecution of her father, and she needs the opportunity to understand something of the process which led her to make very different statements.,"

63. Agreement was reached between the officers and Ian Vinall (the Jenkins family's social worker) as to how to proceed. They decided that the two children would be told that, although their interviews had been helpful to their father, he had been arrested following police tests that had been carried out on his clothing. They would also be told that he had obtained his post as a deputy head teacher by falsifying his qualifications, and that he had chastised them too severely. Mrs Jenkins agreed that this approach should be adopted. She had already spoken to L about the forensic evidence, and L was aware that blood had been found on her father's clothing.Agreement was reached between the officers and Ian Vinall (the Jenkins family's social worker) as to how to proceed. They decided that the two children would be told that, although their interviews had been helpful to their father, he had been arrested following police tests that had been carried out on his clothing. They would also be told that he had obtained his post as a deputy head teacher by falsifying his qualifications, and that he had chastised them too severely. Mrs Jenkins agreed that this approach should be adopted. She had already spoken to L about the forensic evidence, and L was aware that blood had been found on her father's clothing. Agreement was reached between the officers and Ian Vinall (the Jenkins family's social worker) as to how to proceed. They decided that the two children would be told that, although their interviews had been helpful to their father, he had been arrested following police tests that had been carried out on his clothing. They would also be told that he had obtained his post as a deputy head teacher by falsifying his qualifications, and that he had chastised them too severely. Mrs Jenkins agreed that this approach should be adopted. She had already spoken to L about the forensic evidence, and L was aware that blood had been found on her father's clothing.

64. On 20 March, the officers spoke to all four daughters in the presence of their mother. Mr Vinall was not present. As planned, they were told that their father had not been arrested because of the interviews with A and L, but because of other evidence. Tests had been carried out on his clothing, and there was strong evidence to suggest that he had murdered Billie. In response to a question from one of the children, the officer said that when a person was murdered, the police carried out a whole range of tests. L then interrupted and said "you're talking about the blood on his clothes aren't you?" The children were then told that there had been blood on his clothes.

65. The officers went on to tell the children that their father had not been truthful when he got his job as a deputy head teacher. The children suggested that perhaps he had made a mistake: they did not think that he would be untruthful on purpose. Next, the officers raised the subject of the appellant's temper, and his excessive use of violence on them when they were naughty. L became distressed, and defended her father, saying that it did not even hurt them. When the police added that he used to hit their mother, L said that this was not true, and she stormed out of the room in tears.

66. During the following four months, nothing occurred that is material to the first three grounds of appeal. On 17 July, however, Mrs Jenkins reported to the police the substance of a conversation that she had had the previous evening with A. She said that A had told her that she knew that the appellant had had an argument with Billie earlier on 15 February. A had also said that while she (A) had been cleaning the Opel car, she had tried three times to come back into the house, and had been refused entry on each occasion by her father; on their return from L's music lesson, she did not go into the house at all, but was waiting by the MG when the appellant came running down the steps and told both L and herself to get into the car; neither she nor L knew what was happening or why. When they returned from their abortive drive, she said, the door was open; she thought that this was because he had left in such a hurry that he did not have time to close the door properly. She had also said that later on 15 February, her father said to her: "we'll be alright; we were together weren't we, A?"

67. On 27 November 1997, Mrs Jenkins reported to the police that A had told her, after the committal hearing earlier that month, that she could not recall going into the house after returning home from the clarinet lesson, but that, if she did, it was probably only as far as the hallway. A said she was pressured so much by the appellant that she was unsure what to say.

68. On 22 December, there was another conversation between a police officer and Mrs Jenkins. Mrs Jenkins reported that L had said that she could not recall the exact details of her movements when she returned home from her clarinet lesson; her father had tried not to give his jumper to the police the day after the murder; and that she knew that he had killed Billie.

69. We can now turn to the three grounds of appeal.

70. The first ground of appealThe first ground of appealThe first ground of appeal

71. In support of his submission that there should be a stay of the proceedings, Mr Scrivener QC argued before the judge as follows. The effect of L's account in her interview was that she was with the appellant throughout the time between their return home from the music lesson, and their departure to buy the white spirit. Likewise, the account given by A in her two interviews substantially supported the appellant's account that all three of them left the house together. Moreover, what the children said in interview supported the appellant's account in a number of telling details. These included what they said about the side gate being open, and the appellant's willingness to abort the journey to buy the white spirit. It must, therefore, have been obvious to the police that the two girls were important alibi witnesses for the defence.

72. The report of Valerie Mellor, a consultant clinical psychologist, was relied on by the appellant in support of the application. She criticised the conduct of the meeting of 20 March in a number of respects. She thought that it was inappropriate to tell the children about the details of the tests that had been carried out on their father's clothing; the police should not have said anything about his head teacher job, about the fact that he had not been truthful about his education, or about his violence towards them or their mother. Dr Mellor wrote that the effect of this would be to influence the children's perceptions of their father:

" This could in fact work in one of two ways. The children may well have been influenced to think in a negative way about their father or they may have reacted by feeling overprotective towards him.

In either event, the effect of their evidence is very likely to be detrimental, i.e., to change their perception and view of their father. This in turn is likely to affect their recollection of the events of the day in question, i.e., would adversely affect the reliability of their recollections when they came to give evidence in Court."

73. Mr Scrivener submitted that the police embarked on a plan to influence the two children to give evidence that was hostile to the appellant. This they did indirectly by seeking on 26 February to persuade Mrs Jenkins of the appellant's guilt, and then directly by the manner in which they conducted the debriefing session on 20 March. This was bound to taint the evidence of the children. It amounted to improper conduct on the part of the police.

74. Reference was made to R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 1 AC 42, and in particular the passage at page 74G, where Lord Lowry said:

"a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons."

75. Mr Scrivener submits that it was the inevitable result of the police conduct on 20 March 1997 that the evidence of A and L would be undermined. This conduct amounted to an interference with the administration of justice, such as to bring the case within the second of Lord Lowry's two categories of abuse of process.

76. Alternatively, the conduct of the police deprived the appellant of two crucial alibi witnesses, so that it was not possible for him to have a fair trial: the first of Lord Lowry's categories. The prosecution did not intend to call the girls as witnesses. If they were called as defence witnesses, the prosecution would be able to cross-examine them, in the knowledge that the police officers had influenced them against their father.

77. In a careful and detailed judgment, the judge dismissed the application to stay the proceedings. He rejected the submission that the officers' conduct at the meeting of 20 March so offended the court's sense of justice and propriety that the proceedings should not be allowed to continue. Even allowing for Dr Mellor's criticisms, the conduct of the police came nowhere near the sort of conduct that fell within the first of Lord Lowry's two categories. There was no evidence of bad faith, and all that was done was disclosed to the defence.

78. The judge next turned to the question whether the appellant had been deprived of the evidence of two crucial witnesses, so as to lose the right to a fair trial. He said that he was not satisfied on the balance of probabilities that it was the session of 20 March that caused the girls to turn against their father. First, he noted that the three memoranda which recorded what A said all dated from the period between 25 February and 20 March. They showed that A was already becoming more hostile to her father before the meeting of 20 March. The judge refused to infer that this was because the police had "brainwashed" Mrs Jenkins into believing that her husband had committed the murder.

79. Secondly, he said that the fact that there was an interval of four months between the meeting of 20 March and A's conversation with her mother on 16 July showed that it was not the debriefing session which caused the girls to change their evidence. On the contrary, in the case of L, it was clear that at the meeting of 20 March she took her father's side.

80. Thirdly, he dealt with Mr Scrivener's point that the report of Dr Mellor showed that the effect of the session on 20 March would be to make the evidence of the children unreliable. He said that he did not know what evidence they would give if they were called. Even if he were to assume that they would give evidence that was hostile to the appellant, then, notwithstanding the evidence of Dr Mellor, he was not satisfied that the evidence would be untruthful, or that if it was untruthful this would be because of the conduct of the police officers.

81. Has the court's sense of justice been offended?Has the court's sense of justice been offended?Has the court's sense of justice been offended?

82. Before this court, Mr Scrivener has substantially repeated the submissions that he made to the judge. He argues that the judge was wrong to hold that the conduct of the police fell short of the type of conduct referred to in Lord Lowry's first category. We do not agree. The essence of Lord Lowry's first category is that there has been a serious abuse of executive power, such that, although a fair trial is possible, it is an affront to the public conscience to allow the trial to proceed: see, for example, per Lord Griffiths in ex parte Bennett at page 61H-62C. It has been said many times that the jurisdiction to stay proceedings an abuse of process should be exercised very sparingly indeed. As Lord Lane CJ said in Attorney-General's Reference (No 1 of 1990) 95 Cr App Rep 296, 302:

"Stays imposed on the grounds of delay, or for any other reason, should only be employed in exceptional circumstances. If they were to become a matter of routine, it would only be a short time before the public, understandably, viewed the whole process with suspicion and mistrust."

83. In our judgment, even greater caution needs to be exercised before the court stops proceedings on the grounds of abuse of process where the conduct of which complaint is made has not prevented the defendant from having a fair trial. In such a case, it is most unlikely that an application for a stay of proceedings will succeed if the conduct complained of was both lawful and in good faith. In the present case, the good faith of the police has not been challenged, and their conduct was not unlawful. There was nothing unworthy or shameful about the conduct of the police. The decision to have a debriefing session has not been criticised.

84. The judge said that it might have been better if the police officers themselves had not conducted the session of 20 March, and if matters such as the appellant's alleged deception to obtain his teaching post, and violence towards the children and their mother had not been mentioned. We agree, and would be inclined to express our concerns about this aspect of the investigation rather less circumspectly.

85. However, we have no hesitation in rejecting the suggestion that the police embarked on a deliberate campaign to influence the children and taint their evidence so as to damage the defence of the appellant. They were entitled to seek to persuade Mrs Jenkins that her husband was the killer. On the basis of the findings of Billie's blood on his clothing, the case reasonably appeared to them to be overwhelming. They knew that she had further information to give them about the appellant. We can find nothing to criticise in the manner in which the police conducted their inquiries of Mrs Jenkins.

86. We reject the suggestion that the objective of the police on 20 March was to persuade the children that their father was the murderer. The reason for the debriefing session of 20 March was to carry into effect the advice of Dr and Mrs Bentovim. As we have already said, there is no criticism of the decision to have a debriefing session itself.

87. We have no hesitation in agreeing with the judge that case does not fall into the first of Lord Lowry's categories. On the assumption that the 20 March session did not make it impossible for the appellant to have a fair trial, we are quite satisfied that to allow this trial to proceed was not an affront to the public conscience.

88. Was a fair trial impossible?Was a fair trial impossible?Was a fair trial impossible?

89. The remaining submissions of Mr Scrivener under the first ground of appeal are all directed to establishing that the judge was in error in concluding that the session of 20 March did not make a fair trial impossible.

90. First, he challenges the judge's finding that the session of 20 March did not cause the girls to change their evidence. In our judgment, there was ample material to justify this finding of fact by the judge. Of particular significance is the statement on 4 March that A tried to get into the house from cleaning the car, and the appellant would not let her in. But as we have seen, the judge also relied on the fact that there was an interval of four months between 20 March and 16 July to negative any causal link between what was said to A on 20 March and the hostility to her father as evidenced by what she said on 16 July. In our judgment, he was entitled to do so. It is true that there is far less material as to L's state of mind. But the judge took into account the fact that (a) her reaction at the meeting of 20 March was to protect her father, and (b) nine months elapsed between 20 March and the date when, on the evidence, she first indicated a position that was hostile to her father. In our judgment, this was a conclusion that he was entitled to reach on the evidence, and we see no reason to disagree with it.

91. Mr Scrivener's second complaint is that the judge erred in holding that the evidence of Dr Mellor was inadmissible on the issue of the reliability of the children's evidence following the session of 20 March. But even if Mr Scrivener is right about that, it does not avail the appellant. This is because, as we have already said, the judge went on in any event to decide the issue on the assumption that it was right to take Dr Mellor's evidence into account.

92. The next criticism is of the statement by the judge (Tr 18D) that this was not a case where a witness was prevented from giving evidence. It is submitted that the defence were put in an impossible position as a result of the conduct of the police. They could not be expected to call young witnesses who had been subjected to pressure by the police, where there was a serious risk that they had been influenced against their father. The short answer to this is that, for the reasons already given, the judge was entitled to find that, if the children had given evidence which was adverse to their father, this would not have been brought about by the conduct of the police.

93. The second ground of appeal

94. Mr Scrivener applied to the judge for an order that the prosecution be directed or invited to call A and L at the trial. The judge refused the application. Reference was made to the principles stated by this court in R v Russell-Jones [1995] 1 Cr App R 538. At page 544, the fourth principle is stated in these terms:

"The next principle is that the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness's evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another".

95. The video recordings of the interviews of A and L were not served by the prosecution on the defence as part of the committal bundle. They were served as part of the unused material. The judge ruled that for that reason he should not invite the prosecution to call the two girls. He went on to say that, even if he was wrong in drawing a distinction between cases where statements were served as part of the committal bundle, and cases where they were not, he would not have invited the prosecution to call the two girls. Mr Camden Pratt QC had made it clear to the judge that the prosecution had taken the view that "in so far as the video evidence supported the defence case, it was not credible, not because the girls were dishonest, but because they were simply wrong or confused". The judge concluded that the decision taken by the prosecution not to call the two girls was one which it was entitled to take. It was an exercise of discretion with which he was not prepared to interfere.

96. Mr Scrivener puts his argument in two ways. First, he submits that the judge misdirected himself by failing to take into account the fact that it was conduct on the part of the police that made it impossible for the defence to call the girls at the trial. Secondly, and in any event, he submits that the judge's decision was plainly wrong, because A and L were crucial witnesses, and it was essential, if there was to be a fair trial, that their evidence be heard by the jury. Since it was impossible for the defence to call them, there was no alternative: they had to be called by the prosecution or by the judge himself.

97. As was pointed out by this court in R v Brown [1997] 1 Cr App R, 112, 113A, this is a difficult ground of appeal to sustain, because what the court is being asked to review is the exercise of a discretion by the trial judge, where the trial judge himself is reviewing the discretion of the prosecutor.

98. Mr Scrivener's first submission founders on the rock of the judge's finding that the conduct of the police did not cause the girls to change their evidence. Mr Scrivener makes the point that this finding was made in the ruling on the application to stay the proceedings. But in our view that is a barren point: the two rulings were made on the same day. The finding completely undermines Mr Scrivener's first submission.

99. As for his second submission, Mr Scrivener has come nowhere near satisfying us that the judge was plainly wrong in the view that he took of the prosecutor's exercise of discretion. The prosecutor was entitled to regard the accounts given by the children in video interview as confused or wrong, and therefore unbelievable in so far as they supported the appellant's alibi. It is worth recalling that it was Dr and Mrs Bentovim who advised the police that there should be a debriefing because A had had her own thoughts reconstructed by the appellant, and that her thoughts should be reconstructed in a "therapeutic" rather than "evidential" mode. The subsequent shifts in the accounts of the girls did nothing to make them any more credible as witnesses in the eyes of the prosecution. In our judgment, the judge was quite right to decide that this was a case which fell within the fourth of the principles stated in Russell-Jones.

100. As regards the suggestion that the judge should have called the girls himself, there was, in our judgment, no basis for adopting what would have been a wholly exceptional course in this case. There was nothing to prevent the defence from calling the girls themselves, nor, if it was thought appropriate, from cross-examining the officers who conducted the session of 20 March 1997. Once it is accepted that the hostility of the girls to their father was not brought about by any improper conduct by the police, there was no justification for treating them differently from any other witness. We reject the second ground of appeal.

101. The third ground of appeal

102. Neither A nor L gave evidence at the trial. The judge, quite properly, directed the jury that they should not speculate as to the reasons why they were not called. He added:

"There is no evidence from them and that is an end of it. I can tell you this, that under our law no one side has the exclusive right to call a particular witness, either side may call a witness. Mr Scrivener is, of course, right to point out that the burden of proof lies upon the prosecution, but equally it is right that I tell you that the defence as well as the prosecution have a right to call a witness".

103. Mr Scrivener submits that it was a misdirection and unfair to the appellant to add these words, since the conduct of the prosecution had made it impossible for the defence to call the girls. We have already rejected the argument that the conduct of the police made it impossible for the defence to call the girls. In any event, the judge was right to make the position clear to the jury. They might have wondered why the children were not called, and what significance there was in the failure of either side to call them. They might have thought that only the appellant (as their father), or only the prosecution could have called them, or they might have thought, in the unusual circumstances of this case, that neither side could call them. It was important that the jury should be told the true position. This the judge did in a clear, and balanced manner, reminding the jury that the burden of proof remained on the prosecution. In our view, there is no substance in this ground of appeal.

104. 6.Ruling in relation to DC Hutt.

105. The appellant takes issue with the judge's decision to admit in evidence part of an interview with the appellant on 24 February 1997, during the course of which reference was made to what the appellant was alleged to have said to D.C. Hutt on 15 February 1997. Earlier in the trial, the judge had ruled inadmissible D.C. Hutt's evidence of what the appellant had said to him on that earlier occasion, after submissions that D.C. Hutt's contemporaneous notes of what the appellant had said to him did not purport to be a recollection of the actual words of the appellant but had been altered to some extent by the officer when, as the officer put it "I placed them in condensed note fashion in a logical order of events". They were notes in fact prepared for the purposes of a long witness statement which was subsequently made and signed by the appellant. The judge's ruling was as follows: "Not without a certain amount of hesitation I have concluded that it would be wrong to admit this evidence. I base myself on section 78 of the Police and Criminal Evidence Act. It seems to me that where the officer is saying that he is using his own words for the purpose subsequently of making a witness statement for the defendant to sign, it would not be right for that matter to go before the jury; a witness statement was subsequently made" (transcript of ruling 8 June 1998 page 18E - F ). Additionally the judge indicated at a later stage that one of the reasons for his ruling was that it would have been unfair for the notes to be admitted in evidence when the appellant might reasonably have expected to have had the opportunity of reading them through to see if they were accurate before signing them, something he had not been asked to do (transcript of ruling 17 June 1998 page 1D - F).

106. On 24 February 1997 the appellant was interviewed at length in the presence of his solicitor. He was asked whether he had told D.C. Hutt on 15 February that he had not gone into the house on his return from collecting L from her clarinet lesson and he agreed that that was what he had said. It was the prosecution case that the appellant's remark that he had not gone into the house at that time was a significant lie to distance himself from the murder. During the course of the summing up, the judge gave a careful direction about lies which is not criticised and reminded the jury of the appellant's evidence that he had been into the house at the material time. The jury were also reminded of the appellant's explanation that if he had said to D.C. Hutt that he had not been in the house, either he or the Detective Constable had made a mistake or had been confused.

107. The judge's decision to exclude the earlier evidence appears to have been based on unfairness, first because the wording of the note was not the appellant's and secondly because he was given no opportunity to confirm its accuracy.

108. It is clear that on the later occasion the appellant was given the opportunity that he had earlier been denied to confirm the accuracy of D.C. Hutt's evidence. He confirmed that the evidence was accurate. It has further been submitted in argument that one reason for the judge's earlier ruling was that the notes were of conversations preparatory to the making of a formal witness statement. It is not clear whether that was one of the judge's reasons for excluding the evidence but in our judgment such a reason would provide no basis for exclusion. As for the later interview, there was no possible unfairness to the appellant in admitting the evidence and there was equally no basis for excluding it.

109. Before we turn to the Confusion Issue it is convenient to deal with the fourth issue we have identified.

110. 7.Other points in the Summing-Up.

111. The judge is criticised for failing to remind the jury in the summing up of one aspect of the appellant's evidence, namely his suggestion that he had pulled and subsequently pushed the deceased's shoulder when he went to her, causing her head to move. It is submitted that it was important to remind the jury of this evidence as it increased the likelihood of expiration of blood onto the appellant's clothing. During the summing up, the judge reviewed at length the appellant's witness statement, interviews and evidence. At page 105A he said this: "In his evidence he explained how he saw Billie Jo and when he saw her he said his world collapsed. At one stage he bent down to her, at one stage he went back to the children and at another stage he made a telephone call, the 999 call. On one occasion he pulled her by the right shoulder from the dining room side. He said in evidence that was the first thing he had done when he saw her. At another, he pushed her standing from the garden side or kneeling from the garden side. He said in evidence he had no recollection of Billie Jo breathing. He saw a bubble in her nostril but never saw the piece of the bin liner up her noise. He agreed that what he said in his statement was true, that is the witness statement, exhibit 77, but he said he could not remember the chronological order that the events had occurred. He accepted that at no stage has he ever said that Billie Jo was lying on her back breathing, nor has he any recollection of her exhaling." In our judgment the way in which the Judge dealt with the appellant's statement, interviews and evidence was full, balanced and fair and there is no basis whatever for this particular criticism.

112. It is further submitted on behalf of the appellant that the judge failed to deal adequately with the evidence relating to the suggestion that blood had been found on the steering wheel of the MG, and with the fibre evidence. As to the first, the judge said (at transcript page 59F of the summing up) "The MG car : there was no blood, save the inside rubbing with tissue produced a chemical reaction which could have been blood, but there was no visible sign of blood and even if this was blood, he could not say when it got there. It could be from some other time and something else." It is suggested on the appellant's behalf that reference should have been made to Mr. Wain's evidence that he had been unable to repeat any test because the first test had removed the substance. In our judgment the judge's brief summary of the evidence was accurate and adequate. As to the fibre evidence, the judge summarised the position in a few lines at transcript 59D - F. Again in our judgment the summary was accurate and dealt adequately with the evidence on this subject.

113. It is further submitted on behalf of the appellant that against the background of prosecuting counsel describing (both in cross examination and in his final speech) the appellant's relationship with the deceased as "a complex relationship", it was incumbent on the judge to remind the jury that there was no evidence of misconduct by the appellant towards the deceased. The judge did remind the jury of tensions in the family involving the deceased and the appellant and his wife on the one hand and the deceased and the natural children on the other. Equally he reminded them of the evidence that the deceased had not been sexually assaulted and was not sexually active. In our judgment there is no basis for the criticism that is made.

114. It is also suggested that the judge failed to remind the jury of a point made on the appellant's behalf that the tent peg used as the murder weapon must have been taken from the top of the coal bunker some way away from the position in which the deceased had been painting, and that in order to get there the appellant would have had to pass tools and potential weapons which were on the table next to the deceased. Apart from his careful review of the evidence in the case, the judge (at pages 109B -110G) summarised the essence of counsels' submissions for the prosecution and for the defence. He said that it was difficult to summarise the arguments of counsel and indicated to the jury that they should have them all in mind. He concluded with these words: "As I say, those are only some of the very many arguments that were put before you and which you will no doubt wish to consider and consider very carefully when arriving at your verdict." It is not incumbent upon a judge in summing up to remind the jury of every point made. In our judgment the judge's approach was sensible, balanced and fair and there is equally no basis for this final criticism.

115. 8.The Confusion Issue.

116. Mr Scrivener QC, for the appellant, submits that when Mr McAughey and Professor Douglas gave evidence at the trial there was some confusion in the use of medical terms and figures. It was not satisfactorily resolved, and was carried forward into the summing-up.

117. In order to explain this point it is necessary to state what may be described as the textbook position. It is conveniently set out in a part of Professor Denison's report of 3rd June 1999 which part is now agreed to be correct. At rest an adult male takes about 12 half litre breaths per minute, so he processes about 6 litres of air per minute. That is known as minute volume. As each breath is both inhaled and exhaled the average flow of air is twice the minute volume (i.e. 12 LPM) and the rate of flow is not even. It rises to a peak flow which is about three times the minute volume, and that relationship of peak flow to minute volume applies at all levels of regular breathing. On mild exertion the minute volume rises two or three fold, and on maximum exertion it can rise twenty fold, so, for example, it would only require mild exertion (3 x 6 litres minute volume) to produce a peak flow of 54 LPM.

118. We now turn to the evidence. When giving evidence in chief Mr McAughey said that to expel blood to spatter targets set 40 and 60 cm away it was necessary to have an air flow (i.e. peak flow) of 55 LPM. He then volunteered that peak flow for ordinary breathing would be typically of the order of 30 LPM for each of the five half litres breaths per minute which he envisaged (transcript 10D). In fact if the minute volume of 5 litres was multiplied by three the peak flow would be only 15 LPM but, as we have indicated, the peak flow could easily rise to 30 LPM without the breathing becoming in any way extraordinary. Mr McAughey was then asked questions about exercise, and he said that above 35 LPM "you will find that the air will split so that more of the air comes in and out through the mouth ..... because the nostrils are fairly small there is a limit to the amount that will comfortably come in, and so you start to make up the air from the mouth." That was a potentially confusing way in which to adduce the evidence, because there was a shift from peak flow (30 LPM) to minute volume (35 LPM) without it being made clear that different types of measurement were being considered. In due course the evidence of Mr McAughey was put to Professor Douglas by the judge, and he agreed with Mr McAughey.

119. 'Q. At 55 LPM are you into the area of exercise or is that not right?

120. A. I think you are; and of course you could then move over to this nose to mouth breathing.

121. Q. Well, that is the next thing I wanted to ask you about, because he (Mr McAughey) went on to say: "when you are breathing at 35(sic) litres a minute you start to breath through your mouth to make up for the air that is required to breath at that rate"?

122. A. Yes. It is really a matter of overcoming the nasal air-flow resistance.'

123. Leading counsel for the defence was then permitted to ask further questions, but did not address the confusion which is now put in the forefront of the case. Mr Camden Pratt QC, for the Crown, submits that was because this was not really regarded as an important aspect of the case.

124. When he came to sum-up, the judge, as is now conceded, accurately set out what the witnesses had said. At 88G he said -

"I think during the course of his address to you Mr Scrivener said that the professor had said that 55 litres per minute was equal to normal breathing. In fact the professor said that 55 litres per minute was about twice the speed of normal breathing, which he accepted was 30 litres per minute. At 35 litres per minute you start, as I have told you, he said, to use your mouth. He agreed with Mr McAughey on this."

125. At 93G, when reviewing the evidence of Mr McAughey, the judge said -

"To produce the exhalation of droplets to 60 cm distance requires 55 litres per minute of peak flow. 30 litres is the norm. 35 litres per minute of peak flow requires the mouth to be used to inhale and exhale as well as the nose. His tests showed that 2.7 litres is required to be exhaled in 2 seconds to get the equivalent blood spatter in this case, and that is in the region of 80% of Billie Jo's vital capacity."

126. At the end of the summing-up Mr Scrivener questioned whether the judge was right in his recollection of the evidence of Professor Douglas. As the judge was right no correction was made, but Mr Scrivener now contends that on an issue which "went to the heart of the case" there was some confusion.

127. In reality of course the underlying complaint is that two the expert witnesses did not say what it is now contended that they should have said, so this is really, if anything, a fresh evidence point. The witnesses were allowed to say what they wanted, and what they did say was accurately reproduced in the summing-up, so there was no confusion in the legal process, but they both now say that they were wrong, or at least what they said was capable of being misunderstood. Mr McAughey now accepts that nasal breathing through a single nostril can allow a peak flow of 55 LPM without an obligatory switch to mouth breathing, and that a degree of confusion has been caused by comparing a minute volume of 35 LPM with a peak flow from a single breath of 55 LPM. Evidentially the position is, to say the least, unusual. Although we have an affidavit from Professor Douglas dated 18th November 1999 we were not asked to hear him, and so far as we know there is no agreement that we should, if so minded, receive his evidence on affidavit and treat it as part of the evidence in this case. Mr McAughey was called before us as a witness, but in order to deal with other matters, and so technically it can be said that we have no proper evidential basis on which to proceed in relation to this point. But as the factual position seems now to be clear, and not to be in dispute. In our judgment it is unfortunate that the two relevant expert witnesses did not when giving evidence maintain at all times the sharp distinction between peak flow and minute volume. Their failure to do so may have misled the jury, as it misled the judge, on the question of whether or not, in the opinion of the experts, in order to obtain a peak flow of 55 LPM it would be necessary to breathe by both nose and mouth. Mr Scrivener, in his skeleton argument, puts it this way, that the jury may have been led to believe that the only way the victim could have produced blood spots was if she had been breathing so hard that she would have been breathing through the mouth and nose. But, as Mr Scrivener himself pointed out, Professor Douglas made the point time and time again that what mattered was not the volume but the peak flow from a single breath. He said that 55 LPM was a "relatively low peak flow" which was "closer possibly to normal breathing." He regarded the 2.3 litres of air exhaled by Mr Webster as a "red herring". All of that was brought to the attention of the jury, and it is therefore at least possible that the mistakes made by the experts which we have identified did not have any real effect at all. The defence did demonstrate that a peak flow of 55 LPM could project onto a target blood spattering broadly similar to that found on the appellant's clothing, but at the trial save for what was said initially by Professor Douglas no serious attempt seems to have been made to explain how a peak flow of 55 LPM could be obtained without at least one substantial inhalation and exhalation of breath, and nothing of that sort was observed. Indeed it is at the heart of Professor Denison's thesis that the experts who gave evidence at the trial failed to recognise the significance of the hyper-inflated lungs and "did not ask themselves the essential question, namely, what is the smallest size nasal valve that should be taken into account, and thus what is the smallest volume and flow, of a single exhalation, needed to generate blood droplets and project them 50 cms or more". We therefore doubt whether, even in isolation, the mistakes made by the experts rendered the conviction unsafe. It is not, however, necessary to decide this issue since we have now heard a good deal of fresh evidence, and our function must now be to decide whether in all the circumstances (which include the fresh evidence) we think that the conviction is unsafe. The exhalation theory has been developed by the defence in a much more detailed and sophisticated way than it was at the trial. It is to that evidence that we now turn.

128. 9.The Fresh Evidence Issue.

129. The power of this court to receive fresh evidence is limited, and is to be found in section 23(1) of the Criminal Appeal Act 1968. We may receive any evidence which was not adduced in the proceedings from which the appeal lies if we think it necessary or expedient to do so in the interests of justice. That wide discretionary power is subject to section 23(2) which provides -

"The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any grounds for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and,

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."

130. We were invited by Mr Scrivener to receive evidence from Professor Denison, who was not instructed until March 1999, long after the conclusion of the trial, and who then began to carry out the series of experiments to which his two reports refer. Mr Camden Pratt submitted that we should not even hear the evidence, because it represents no new break-through in scientific knowledge. It is simply fine tuning of a defence which was run unsuccessfully at trial, and in reality the evidence of Professor Denison could have been obtained just as easily before trial as after it. In our judgment there is considerable force in that submission, which focuses on section 23(2)(d) of the 1968 Act. We recognise that in a case such as this lawyers acting for the defendant within a tight time scale and with a lot of material to consider may have considerable difficulty in identifying the nature of the expertise required, obtaining authority to instruct appropriate experts, locating appropriate experts who can make themselves available, and then obtaining reports which can be disclosed, but, as Edmund Davies LJ said in Stafford (1968) 3 All E R 752 -

"Public mischief would ensue and legal process could become indefinitely prolonged were it the case that evidence produced at any time will generally be admitted by this court when verdicts are being reviewed."

131. We concluded that as Professor Denison does not simply echo the evidence given at trial but has done a lot of work of his own, as his reports indicate, his evidence should be heard. We heard his evidence initially de bene esse, and on the same basis heard evidence in response from Dr Hill, Mr Wain, Mr McAughey and Professor Widdicombe, to which the appellant responded with further evidence from Mr Sinar, Mr Campbell and Professor Denison. Having heard that body of evidence from reputable experts we were satisfied as to paragraphs (a), (b) and (c) of section 23(2). We were not, and are not, satisfied that there is a reasonable explanation for the failure to adduce the evidence of Professor Denison (and if considered necessary that of Mr Campbell) at the trial. Nevertheless we have decided that in this particular case it would be expedient in the interests of justice for all of the evidence to be received.

132. In Stafford v D.P.P.(1974) AC 878 the House of Lords considered the approach to be adopted by this Court where fresh evidence is admitted. At 907 E Lord Cross said -

"It is to be remembered that in many fresh evidence cases the court does not commit itself to any view of its own as to the effect of the fresh evidence. At one end of the scale there are cases where the court will say:

'this fresh evidence puts such an entirely new complexion on the case that we are sure that a verdict of guilty would not be safe. So we will quash the conviction and not order a new trial.'

At the other end of the scale there will be cases where the court will say, as it said in effect in this case:

'the fresh evidence though relevant and credible adds so little to the weight of the defence case as compared with the weight of the prosecution's case that a doubt induced by the fresh evidence would not be a reasonable doubt. So, we will leave the conviction standing.'

But in many cases the attitude of the court will be:

'We do not feel at this stage sure one way or the other. If this fresh evidence was given together with the original evidence and any further evidence which the Crown might adduce then it may be that the jury - or we, if we constituted the jury - would return a verdict of guilty but on the other hand it might properly acquit. So we will order a retrial.'"

133. Mr Scrivener has made no secret of the fact that a retrial is the remedy which he seeks.

134. In R v McIlkenny (1991) 93 Cr App R 287 Lloyd LJ, giving the judgment of the court, emphasised the primacy of the jury in our criminal justice system, and said at 311 that this court "is perhaps more accurately described as a court of review".

135. In the recent unreported case of Clegg Carswell LCJ, giving the judgment of the Court of Appeal in Northern Ireland, considered the authorities to which we have just referred and then said at page 22 of the transcript -

"It is not for an appellate court to attempt to resolve conflicting issues of fact or opinion, which remain the province of the criminal court at first instance, to be determined by the jury or, in a scheduled case, the judge. The Court of Appeal may reach one of several possible conclusions:

(1) it may consider that the fresh evidence is not, after testing, such as to be reliable and capable of belief (this would more usually apply in cases of a conflict of factual rather than expert evidence). In such case the conviction would be regarded as safe and the appeal would be dismissed.

(2) The court may regard the fresh evidence as conclusive in the appellant's favour, in which case it will simply quash the conviction.

(3) It may conclude that the impact of the fresh evidence on the case is not conclusive but is such that, taking all the evidence given both at trial and on appeal together, it cannot resolve one or more conflicts of fact or opinion. If it considers that a reasonable tribunal of fact might properly resolve the conflict in favour of the appellant, and so be left with a reasonable doubt about his guilt, the court should then allow the appeal and quash the conviction, giving consideration to the question whether to order a new trial."

136. That formulation does, on first reading, suggest that once fresh evidence is found to be reliable and capable of belief an appeal must be allowed, but that would be inconsistent with Lord Cross, and was plainly not what the Lord Chief Justice intended because in the next paragraph of his judgment he said -

"We consider that we should look at the whole of the evidence given, both at trial and on appeal, and determine whether it leaves us with matters which cannot be resolved by the court and which if they were to be resolved in the appellant's favour could give rise to a reasonable doubt about his guilt. If so, the conviction should be regarded as unsafe and should be quashed. If, on the other hand, as the Crown contended, there is no reasonable doubt about the safety of the conviction after consideration of all the evidence, then it should stand."

137. Bearing in mind the words of section 2 of the Criminal Appeal Act 1968, as amended, which require us to allow an appeal if, and only if, we think that the conviction is unsafe we turn now to look at the fresh evidence and to consider its effect. Does this case come within the second or the third of the three categories identified by Lord Cross? No one seriously contends that it falls within the first of his categories.

138. Professor Denison built, or had built for him, a model which is well illustrated in his reports, and which consists in essence of a three litre syringe feeding into a tube which leads to a small nozzle. The syringe is intended to represent the lungs of the deceased, and the nozzle her nasal valve. With that equipment Professor Denison performed 85 experiments initially which showed that when three drops of fresh blood were placed behind the exit opening a brief (1 tenth of a second) pulse of low pressure (15 mm. Hg) displacing 63 ml. of air (about half a wine glass) was sufficient to fragment the drops of blood and propel them over 1 metre distant. If the nozzle was angled 30 degrees upwards the droplets reached a height of 85 centimetres above ground level at a distance of half a metre.

139. Experiments were also conducted on female volunteers of the deceased's build, lying on a firm examination couch. They were picked up by the shoulders and then released. The result was the passive expulsion of about half a litre of air from the lungs.

140. Professor Denison initially interpreted the reference to hyper-inflation in Dr Hill's post mortem report as an indication that the lungs were a little over three quarters full, with a volume of 3½ litres (out of a total of 4.2 litres) and a recoil pressure 15mm Hg. His conclusion was that transient release of an upper airway obstruction sufficient to release 50 to 65 ml of air via a bloody nostril could generate the blood spatter pattern found on the appellant's clothing. Although when making submissions to us Mr Scrivener contended that the site of the obstruction was immaterial, that was not what Professor Denison said in the witness box. In answer to Mr Camden Pratt he said that he envisaged a block at the level of the nasal valve because if the blockage was far down the pressure would have dissipated, and at the very end of his evidence, in answer to a question from Mr Justice Penry-Davey, the professor said that all of his experiments were postulated on a blockage and release at nasal valve level. The exhalation which he envisaged would be passive, brief, inaudible and invisible, and it could have occurred even after death.

141. The equipment used by Professor Denison was criticised on the basis that it did not sufficiently represent the respiratory organs of the deceased, so he made modifications, and then conducted further tests, principally to allow for the effect of the nose. Those tests showed that with the nozzle at 20 centimetres above the ground, and a small amount of blood introduced close to the nasal valve, a brief 15 mm Hg pulse of air could project 150 droplets of blood onto a vertical screen 50 to 55 centimetres away, rising to a height of 47.3 centimetres (when the nozzle was tilted at 30 degrees) and to a height of 62.3 centimetres (when the nozzle was tilted at 45 degrees). Professor Denison's overall conclusion was and is that the blood spattering found on the clothing could have been caused by a brief passive or transiently active expiration. Further tests which he and Professor Widdicombe performed when they visited Mr McAughey's laboratory at Harwell are said by Professor Denison to confirm that the results that he achieved by use of his model "are seen in real life". Those tests included measurement of the angle at which air leaves the nose (between 30 degrees and 45 degrees to the line of the body), and measurement of the height of the upper nostril when a model head is laid on one side parallel to the ground (10 centimetres).

142. The fresh evidence from Mr Sinar and from the other neuro-surgeon Mr Campbell, in so far as it relates to expectation of life after injury, adds nothing to what was said by Mr Sinar at the trial, but there was some amplification of Mr Sinar's original evidence that even the seriously injured and unconscious have a desire to live, and will snort, sneeze or cough in an attempt to clear airways. This, said Mr Campbell, may progress, (as Mr Sinar said at the trial) to Cheyne Stokes respiration, where a period of deep harsh respiration gradually diminishes in frequency and depth and then, after a pause, the process is repeated. Mr Campbell asserts that when so afflicted the patient could easily expel 2.3 litres of air. The neuro-surgeons also dealt with the possibility that it may become impossible to breathe by mouth. Patients with serious head injuries often have clenched teeth, and the tongue can become so positioned as to seal off the airway. Mr Sinar submits that may have happened in this case, but until the ambulance crew arrived the deceased was never on her back, and when he was summoning for assistance by means of a 999 call the appellant spoke of blood coming from Billie's mouth, which does suggest that at that stage the mouth was open.

143. Dr Hill found no evidence of any obstruction of the upper airways of the deceased, and nothing to suggest a sudden removal of a blockage so as to allow a brief exhalation, which was then terminated by a further blockage. At higher levels the size of the blockage would have to be significant. To block the trachea would require an obstruction approximately the size of a cork to a wine bottle. He attributed the hyper-inflation of the lungs to the obstruction by blood of the small lower airways. This, he said, was not an uncommon finding.

144. Mr Wain pointed out that when he had a female volunteer on the floor with her body laid out in the position in which Billie was found (as illustrated in the photographs AW/5) pushing and pulling the shoulder did not raise the head of the volunteer significantly above the floor, even when considerable effort was applied. The head being heavy it tended to stay on the floor, with the shoulders rotating at the neck. The distance between the nose of the volunteer and the ground was measured and found to be no more that 10 centimetres, half of the height at which the nozzle was placed by Professor Denison for the purposes of his experiments. Even if one adds an inch, to allow for the position in which Denise Franklin placed the head of D.C. Groombridge the result is still only 12.5 cm. Again by reference to his own experiments, Mr Wain saw no reason to postulate the nostril being tipped up at an angle of 30 to 45 degrees to the horizontal. The nostril of D.C. Groombridge was certainly not tipped at anything like that angle. Squatting beside the volunteer Mr Wain measured the distance between the nape of his neck and the floor. That distance was 84 centimetres, significantly higher than any blood spattering height achieved by Professor Denison. Mr Wain's build is roughly the same as that of the appellant, and the highest marks on the appellant's clothing were at neck level. Mr Wain emphasised, as he did at the trial, that the fine spattering which he found on the appellant's clothing was what he would expect to find if the appellant were the attacker, but on some at least of Professor Denison's target sheets there were blood spots which were significantly larger.

145. Mr McAughey's early attempts to get results similar to those of Professor Denison when using human volunteers, and even when using his equipment, were unsuccessful. As he says, the choices of experimental volumes of 62.5 ml and a pulse time of 0.1 second are not explained in terms of human breathing. The former is simply a level below which Professor Denison did not choose to go, and the latter one which he says is not critical, but of course the "escape" of air must be swiftly terminated if the lungs are to remain hyper-inflated. As Mr McAughey points out, Professor Denison's model pre-supposes that only one nostril is available for use, the other nostril and the mouth being firmly shut. His own experiments, he conceded, were not designed to replicate the release of pre-existing pressure in the respiratory system.

146. Professor Widdicombe, Emeritus Professor of Physiology in the University of London, was a witness for whom Professor Denison had considerable respect, and we too found him to be impressive. Initially he was dismissive of Professor Denison's model. He said in his first report -

"The pressures, flows and gas velocities used by Denison in his model are all considerably greater than those in quiet breathing, and correspond far more closely to those that would be found with a deep sigh or gasp. The resistance of his model valve is also far greater than in the real nose. The model lungs and valve resemble a bicycle pump attached to a pea shooter, more than the real respiratory system."

147. Thereafter Professor Denison altered his model, but in the opinion of Professor Widdicombe it still could not, and cannot, be regarded as accurately representing the reactions of a human being for a number of reasons. In the first place it makes no allowance for air escaping through the mouth. In his second report Professor Widdicombe says -

"If one puts oneself in Billie Jo's body position one will find that no possible maximal positioning or distortion of the head on the trunk will block the mouth."

148. Having heard the evidence of the neuro-surgeons Professor Widdicombe was still of the same opinion. He pointed out that with the head positioned as it was the tongue could be used to block the passage of air through the mouth, but only by means of a positive movement controlled by the brain, which could not be undertaken by an unconscious girl. Air passage through the mouth could be blocked by a very large blood clot, but that would also block the nose, and in reality the blockage which maintained the hyper-inflated lungs had to be, as Dr Hill found it to be, close to the lungs. Secondly Professor Denison's model necessarily postulates a blockage and a high degree of pressure at a high level, where no evidence of any blockage was found, because if the air had to travel from the air sacs via the bronchi and bronchioli it would lose speed to a significant extent, and Professor Denison's model makes no allowance for that. Thirdly the pressure envisaged, 15 mm Hg, is above that to be expected in the body of a girl such as Billie breathing normally. In a small adult it would take 2½ litres of air above functional reserve capacity to produce such a pressure, and if there was air trapped between the supposed high level blockage which disappeared without trace and the low level blockage found by Dr Hill it is difficult to see how that trapped air was subject to any significant pressure at all. In his first report Professor Widdicombe said at page 19 -

"I find the idea that a lung hyper-inflated due to internal obstruction can exert a pressure in the nose to cause a blood spray both mechanistically and numerically untenable, unless the lung were to collapse completely."

149. If it did collapse completely, how then did it re-inflate?

150. 10.Conclusions.

151. We have already expressed our conclusions in relation to the first four issues which we identified at the beginning of this judgment. Even if we had decided in relation to the Confusion Issue that, standing alone, without reference to further evidence, the mistakes which we there identified could be said to render the conviction unsafe, the fact is that at the request of the appellant we have now received fresh evidence, and in our judgment each ground of appeal does now fall to be determined in the light of all of the evidence. Mr Scrivener submitted otherwise, but we reject that submission which, as he concedes, is devoid of authoritative support. The fresh evidence has left no room for doubt as to the distinction between minute volume and peak flow, and as to the positions occupied by each of the experts, but it has gone far further than that. We do not question for one moment the integrity of Professor Denison, or the validity of the experiments which he has conducted for what they are.But his exhalation theory does not fit the facts of this case, since it depends on the existence of an obstruction of blood in the nasal valve. We are satisfied from the evidence of Dr Hill that the only obstruction was in the lower airways. It is now possible to say, that looking at the case as a whole, including the evidence which was before the jury -

152. (1) the appellant was the last known adult to see the deceased alive, and the first known adult to see her dead.

153. (2) his clothing was found upon examination to be spattered with blood in a way which was consistent with him being her attacker.

154. (3) the clothing of others who went to the aid of the deceased was not similarly spattered.

155. (4) the spattering on his clothing matched precisely the spattering on the leggings of the deceased, which latter spattering was undoubtedly caused by her attacker.

156. (5) during the initial stages of the police enquiry the appellant repeatedly failed to reveal that he had been into his house about 15 minutes before the body was discovered, and indeed stated that he had been away for much longer than that.

157. (6) the appellant's explanation for his absence from the home during the 15 minutes or so immediately prior to discovery of the deceased was itself unusual in that he went without money by a circuitous route to buy an item that he did not need.

158. (7) although it may be possible for an injured person to exhale a fine spray of blood onto the clothing of someone nearby -

159. (a) no one claims to have seen any signs of the deceased breathing.

160. (b) in order to spatter the appellant with the blood which was found upon him the deceased would, whilst unconscious and in the prone position, flat on the ground, have had to have her head in such a position that one nostril was about 20 centimetre above the ground, and angled upwards to the extent of 30 to 45 degrees towards the appellant, at a time when he was crouched down beside her. At that moment she would then have to have released about 62.5 ml. of breath at a pressure of 15 mm Hg for 0.1 second. The amount of breath released and the period of release might have been greater, but not so great as to render her lungs when her airways became re-obstructed less than hyper-inflated.

161. (c) even if all of that were achieved, blood spattering would not, it seems, reach the height on the appellant's clothing at which spattering was found.

162. Returning to the words of Lord Cross, we conclude that the fresh evidence though relevant and credible adds so little to the weight of the defence case as compared with the prosecution's case that a doubt induced by the fresh evidence would not be a reasonable doubt. We therefore dismiss this appeal against conviction.