REGINA -v- PAUL ALEXANDER CLEELAND [2002] EWCA Crim 293

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
AT ST. ALBANS (Mr Justice Lane)
[2002] EWCA Crim 293Case No Case No: 2000/6698/Z1Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
REGINA -v- PAUL ALEXANDER CLEELAND
Before
Lord Justice PotterMr Justice WrightMr Justice Penry-DaveyTimothy Barnes QC (instructed by the Crown Prosecution Service)Edward Fitzgerald QC and Ms TJ Mylvaganam (instructed by Arora Lodhi Heath, solicitors for the appellant)Date 13 February 2002

Lord Justice Potter:

INTRODUCTION

[1]This is an appeal against conviction by Paul Alexander Cleeland (now aged 59) upon a reference by the Criminal Cases Review Commission (“the CCRC”) under s.9 Criminal Appeal Act 1995. It relates to the conviction of the appellant as long ago as 25 June 1973 in the Crown Court at St. Albans following his re-trial before Lane J and a jury, the jury in the first trial having been unable to agree. The appellant was convicted of the murder of Terrence Clarke by shooting and sentenced to life imprisonment with a minimum recommendation of twenty years. The appellant had been represented by leading and junior counsel at his first trial. However, he dismissed his representatives on the second day of that trial and thereafter represented himself throughout the trial and re-trial.[2]The appellant applied for leave to appeal against conviction in July 1973 and was represented by counsel at a hearing in December 1975 when his application was adjourned. At the full hearing of his application on 26 February 1976 he appeared in person when the Full Court (Lawton LJ, Mackenna and Swanwick JJ) refused his application.[3]Since that time the appellant has made a number of attempts to have his case re-opened on the basis that he was wrongfully convicted and that such conviction was improperly obtained. In February 1977, an investigation was carried out by Assistant Chief Constable Boothby into allegations made by the appellant inter alia of perjury by police officers who stated that the shotgun relied upon by the Crown as the murder weapon had been examined at the Metropolitan Police Forensic Laboratory by Mr McCafferty, the firearms expert called for the Crown. Years later, in 1993, there was a further investigation by Superintendent Humphris of the Metropolitan Police Complaints Bureau concerning confessions alleged to have been recently made in prison conversations by Ian Graham (a witness for the prosecution at the trial) and Robert Wilson to the murder of Terrence Clarke. The appellant submitted a number of petitions over the years to the Home Secretary in relation to his case. However, the Home Secretary took no action until the matter was eventually referred to the CCRC for the purpose of considering a reference back to this court. In the course of its consideration, the CCRC commissioned a report from an independent firearms expert, Mr Spencer. Eventually, solely on the basis of his findings, and their possible effect upon the reliability of the evidence of Mr McCafferty at trial, the case was referred to this court. Following such reference, the grounds of appeal have been considerably expanded to take in other matters of complaint than those relating to the expert evidence, all (or substantially all) of which appear to have been considered by the CCRC but were not regarded as justifying reference back. We shall refer to the issues raised and argued by the appellant under various separate headings hereafter.[4]The conduct of the appeal has involved the hearing of oral evidence from a number of witnesses. Although those witnesses were called upon the application of the appellant, he made clear to us that it was his desire to cross-examine them with a view to elucidating various inaccuracies and inconsistencies which, as he submitted, would not only demonstrate the falsehood of Mr McCafferty’s evidence, but justified the inference of a much wider conspiracy to secure his conviction on the basis of false evidence concocted or procured against him. It was also clear that, whereas he relied upon the evidence of Mr Spencer insofar as it criticised the evidence and method of Mr McCafferty, he wished to challenge Mr Spencer on all those respects in which his report had reached largely similar conclusions to those of Mr McCafferty. Accordingly, we directed that the witnesses should be called by the Crown and cross-examined by the appellant. Despite the fact that the appellant was represented by Mr Fitzgerald QC who settled the grounds of appeal, we took the exceptional course upon Mr Fitzgerald’s application of permitting the applicant to undertake the cross-examination of the witnesses, in the light of Mr Fitzgerald’s anxiety that the case should be put as the appellant wished and on the basis that he had minute knowledge of every detail of his case. We also ruled that the applicant could personally address us upon the effect of the evidence, once given, insofar as he wished to add to the submissions of Mr Fitzgerald. It was clear to us that, unless we did so, the appellant proposed to dispense with the services of Mr Fitzgerald which, in all the circumstances, was likely to augment rather than reduce the time taken in argument before us and would redound to the disadvantage of the appellant. In the event, we do not consider that the course which we took should be regarded as a desirable precedent in the conduct of any subsequent appeal of this kind.[5]During the hearing of the appeal, and in particular in relation to the cumulative effect of Mr Spencer’s criticisms of Mr McCafferty’s evidence and various complaints of non-disclosure set out under Grounds 4-7 of the Amended Grounds of Appeal, Mr Fitzgerald addressed us at some length on the question whether the test to be applied by this court in deciding whether or not to set aside the conviction of the appellant was whether the jury might have acquitted the appellant had they heard the fresh evidence relied on in the appeal, or whether the safety of the conviction turned solely upon the opinion of the court, having taken the fresh evidence into account. At the hearing of the appeal, that very matter was under consideration by the House of Lords in R –v- Pendleton [2001] UK ML 66 and the judgment of their Lordships was awaited. We therefore decided with the agreement of counsel that we would defer judgment in this appeal until the opinions in Pendleton were published and counsel had had an opportunity to make further submissions in writing upon the effect of the decision in Pendleton, of which opportunity Mr Fitzgerald availed himself following publication of the judgment on 13 December 2001.[6]It is clear to us from the decision in Pendleton that it is the opinion of this court as to the safety of the conviction which governs the matter. The wording of s2(1) of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995 makes clear that the sole criterion to be applied is what the court thinks of the safety of the conviction i.e. the court itself makes the requisite assessment and concludes whether or not the conviction is safe: see per Lord Bingham at paragraph 19 and per Lord Hobhouse at paragraphs 35, 37 and 38. At the same time, the ‘jury-impact’ test for which Mr Fitzgerald argued has what Lord Bingham describes in paragraph 19 as a ‘dual virtue’; “First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.” (emphasis added)[7]We have borne those words well in mind and applied them in reaching our decision in this case. THE FACTS AND THE ISSUES AT TRIAL[8]The facts and issues as they emerged at trial, as contained in the summing-up of Lane J, can be summarised as follows.[9]Terrence Clarke, the deceased, had a substantial criminal record and, prior to the shooting, had been separated from his wife, Patricia Clarke, for some time. However, they had been reconciled shortly before and were living at Grace Way, Stevenage. At about 2am on 5 November 1972, together with a Mr Caldon, they returned to Grace Way by car from an evening out. Grace Way was a cul-de-sac ending in a fence containing the back gate to the Clarkes’ house. Terrence Clarke drove down the cul-de-sac, past the line of garages on the right hand side, and parked with the bonnet of his car almost up to his garden fence. As he got out of the car, he was shot twice by a gunman who had apparently been lying in wait in the area of the garages to the right rear of the car. The prosecution case was that the appellant was that gunman. It relied on evidence that the appellant, who had known Terrence Clarke for some years, was harbouring a grudge against him and had previously threatened to shoot him; also upon the fact that the appellant had knowledge of the deceased’s movements that night. There was evidence that, shortly before the shooting, the appellant had purchased the gun which the Crown alleged , and called forensic evidence to demonstrate, was the murder weapon; he had also attempted to obtain shotgun cartridges, which had been purchased by one Graham on his behalf. Wadding of the type used in such cartridges was found at the scene. There was evidence from police officers of incriminating conversations between Graham and the appellant when both were detained in police cells on suspicion of the murder. Evidence was also called of lead contamination, consistent with recent discharge of a shotgun on the appellant’s clothing.[10]The appellant denied that he had been involved and suggested other candidates. He relied upon an alibi (as to which the Crown called contradictory witnesses). He robustly asserted that effectively all the key prosecution witnesses were lying and that the police had fabricated evidence. He attacked both the veracity and the reliability of Mr McCafferty alleging that he had never in fact carried out an examination of the gun alleged to be the murder weapon. The evidence of particular relevance may be conveniently considered under the following headings. Knowledge of the deceased’s movements[11]The scene of the murder was the home of Mrs Clarke, with whom the deceased had spent the Saturday evening at a club called The Stetson at Potton. Whoever killed him must have had some knowledge of his movements in order to be waiting for him armed with a shotgun. The defendant accepted he knew of Terrence Clarke’s movements on the night in question and that he would be going back to spend the night at Grace Way. Background and motive[12]The appellant and Terrence Clarke deceased had known each other for some twelve years and had originally met in prison. A year or so before the shooting, when Terrence Clarke was in prison, Mrs Clarke had informed the appellant that Terrence Clarke had received an anonymous letter suggesting she and the appellant were having an affair. Later, the appellant saw Terrence Clarke when he was on pre-parole home leave. He wanted to talk about the letter, but Terrence Clarke had attacked him in what the appellant described in interview as a violent and unprovoked attack in which he had been smashed over the head with a chair, had lost two teeth and acquired two black eyes. The appellant said in interview that Terrence Clarke had later apologised for his conduct. He also stated in evidence that he and Terrence Clarke put work each other’s way after the attack. Mrs Clarke gave an account of the attack upon the appellant by Terrence Clarke. She also spoke of an incident in which the defendant had called at the house and she had heard her husband say, “You shoot me”, before taking the appellant into the kitchen. She said this was in an “I’ll give you ‘you shoot me’” type of voice.[13]A woman who the judge permitted to give evidence as ‘Mrs X’ in order to protect her identity, gave evidence that she had seen the appellant at the end of 1971 with a bruised face, swollen mouth, missing tooth and wearing dark glasses. She stated that, when she told the appellant that she had heard he had been beaten up by Terrence Clarke, he was angry, crushed his paper and said he would “get him for this” …. “Not now but later. I’ll get him one dark night”. In cross-examination she said she had been the appellant’s mistress, which he denied, and he challenged her evidence on the basis that she had fabricated her account.[14]Finally, a Mr Quirke gave evidence that, on an occasion when he was staying with Mr Newton, and in conversation with the appellant, he (Quirke) had told them of an attack with knives to which he had been subjected. The appellant told Quirke he would not have let the man get away with it. When Quirke said that the man had been too big, the appellant replied “Then there are other ways” and suggested that he could have blown his legs off. The appellant disputed such an event and denied that the conversation had occurred at all. The purchase of the shotgun[15]Mr Sell junior, formerly a farmer, but who had now taken up painting and decorating in the course of which he had met the appellant, gave evidence that the shotgun (with two spent Blue Rival cartridges still in it), recovered nearby shortly after the shooting (see further below) had been sold by him to the appellant shortly before the murder. Mr Sell (senior) also identified the gun as that formerly owned by his son. Mr Sell (junior) said he and the appellant had finished a job at about the end of October and the appellant asked him if he wished to sell his gun. He asked £20 for it and the appellant agreed. The appellant had collected it on 4 November. Mr Sell’s family was in at the time. He had coffee with the appellant at a time when the football results were on television. On Sunday 5 November (i.e. the day following the shooting) in the course of a telephone conversation about arrangements for work on Monday, the appellant asked if Mr Sell had heard about the shooting. Mr Sell asked if it had anything to do with the appellant who said that it had not and that he had been in bed at the time. In cross-examination, Mr Sell admitted he had not mentioned the gun in the first two statements which he gave to the police. His explanation was that he had no licence and feared getting into trouble. He agreed to sell it for £20 to the appellant, who collected it on 4 November. Mr Sell gave a circumstantial account of the visit of the appellant to his house when his family was present at the time.[16]Mrs Sell gave evidence in support of her husband saying that, while she had not seen the appellant take the gun away, it was on the work unit in the kitchen when he called, her husband having told her that the appellant was going to buy it. Mr Sell was obliged to admit that, when originally seen by the police, he had said that he had last seen the appellant on Friday 3 November and had not mentioned the gun. However, he explained that he had so acted because he had no licence for the gun and was alarmed that he might be implicated in the shooting. By that time, he had spoken to the appellant on the telephone on 5 November about arrangements for meeting at the beginning of the working week and the appellant had asked if he had heard about the shooting of a man getting out of his car. Sell had asked if it was anything to do with the appellant who had said he was in bed at the time. The evidence of the Sells was attacked by the appellant in cross-examination and in his address to the jury as being a pack of lies. However, the summing up makes clear that the appellant conceded that they were respectable trustworthy and honest so far as he knew, and were people who ordinarily were well disposed towards him. The acquisition of cartridges[17]Mr Newton (who had a number of criminal convictions and abused drugs) was also called. In addition to giving evidence similar to that of Mr Quirke concerning the conversation set out in paragraph 14 above, he gave important evidence that on 3 November 1972 the appellant had called at his house between 6-8pm and asked if he had any shotgun cartridges because he was going shooting at the weekend. Newton said he had none, but Ian Graham (whom they both knew) might. The appellant then drove to see Graham, Newton accompanying him as the appellant did not know Graham’s address. They went in the appellant’s blue 15cwt Transit van. Newton said the appellant and Graham had a conversation in the van which he (Newton) overheard. Graham told the appellant he could get cartridges from the Hobby Shop. There was doubt if the appellant could get them, but Graham was known to the shop. The appellant asked Graham to get them for him, assuring him that his purpose was perfectly legal. In cross-examination, Newton stated that he was pulled in by the police for questioning about the shooting on 5 November, when he made a statement in which he did not mention the name of the appellant because he had only the germ of an idea at that stage that the appellant was involved. He said he did not himself want to get involved. Later, however, he went to see Graham to find out if the cartridges purchased by Graham were the ones used and because he suspected that that they were.[18]Graham (who also had previous convictions and was a former drug addict), gave evidence of the conversation with the appellant in the van. He said the appellant asked for 12-bore cartridges for shooting rabbits. Graham told him he would have to buy a box. He asked why the appellant did not buy them himself and the appellant responded that it would be easier for Graham to do it. The appellant said that he had a gun and had had it for some time. Graham agreed to get cartridges. They agreed to meet next day and that the appellant would call to fetch Graham in the van about 9.15am and that the cartridges would be purchased before Graham travelled by train up to London at 10.15am. That was what happened. The appellant gave him money for the cartridges, Graham again querying whether it was ‘all right’. The appellant confirmed that the cartridges were not wanted for villainy. Graham therefore bought the cartridges, putting them on the van’s dashboard with change from the £5 note he had been given. Graham said the cartridges were Blue Rival Waterproof 6 shot.[19]Mr Cowling from the Hobby Shop recalled a man purchasing cartridges who he stated chose Blue Rival. He said the man wore a check suit. Graham denied possessing such a suit, but agreed that he recognised Cowling as the assistant from whom he bought the cartridges. Although the appellant denied the evidence of Graham, evidence was received from a Mr Thomas who knew Graham that he saw him alight from a blue Transit van near the station at between 9.45 and 9.55am on 4 November. DC Boylan who also knew Graham said he had observed him near Spring Drive at about 9.15am talking to the driver of a waiting Transit van. Graham then got in and the van drove off.[20]Finally, on this aspect, Newton said that he was at home at about 11pm on 4 November, watching a late film, when the appellant called and asked him to look after a box of cartridges as the police sometimes came round to his house. Newton saw the box. He remembered the word ‘Blue’ written on it. He refused to take the box, but agreed not to mention it to anyone. The Shooting[21]Mrs Clarke described the social events of the evening of 4/5 November. She said she and Terrence Clarke returned home having dropped another couple off, she remaining in the back of the car with Caldon who was the worse for drink. She said she and Terrence Clarke were sober. He parked by the fence at the back of his house as usual just after 2am. She thought the ignition was off. He got out and was almost standing by the driver’s door when she heard a crack which caused her to jump out herself. She then heard a second crack and saw blue flame. She said it was less than half a minute between shots. The shot she saw came from between the car and a garage, in the line of garages along the cul de sac in which they were parked. She saw the figure of a man, of whom she had a sideways and then a rear view as he left down the road. She described that man as 5'8” to 5'10'’, wearing a brown or grey vented jacket, medium build and hair either dark, short and curly or, as she later thought, with something over his head which made his head shape into a perfect line. She had known the appellant for about twelve years but it did not occur to her for a moment that it was him. However, she added that if it had been her best friend, she would not have recognised him. She was shown a donkey jacket which belonged to the appellant and said that the gunman’s jacket was more like a suit.[22]Mr Standing, who was called as a witness for the defence, lived in Grace Way nearby. He said he had got home about 1am and gone to bed and was awoken by the sound of a car which he thought was the Clarkes’ noisy Jaguar. About twenty minutes after the car had drawn up he said he had heard a shot, got up and looked out, and saw the flash of a second shot. He could see figures talking and hear some moaning. He said it was very dark. The appellant’s whereabouts[23]Evidence was given by Mrs Roethenbaugh, who lived near the appellant’s home in Four Acres, her bedroom having a partial view of the appellant’s front door. She said she was woken by the sound of dogs on the night of 4/5 November, looked out and the dogs were barking at someone approaching. As he came nearer, she recognised the appellant, whom she watched bend to put the key in his front door, but she did not hear him shut it. She said it was a bright clear night and that she had no difficulty in recognising the appellant, who was wearing a short browny coloured car coat. There were various criticisms of her evidence which the judge said were rightly relied on by the appellant. She had originally suggested that the coat apparently had some sort of fur or sheepskin lining. However, she said, on reflection, that that was an assumption which was not justified as she had not seen the lining. She had prevaricated at the Magistrates’ Court about whether she was actually sharing a bed with the man who shared her house. There were discrepancies between her evidence and that of her partner about whether there was any conversation that night about what she had seen. It was suggested to her by the appellant (which suggestion she rejected) that she had given false evidence because of incidents and differences which had occurred between her, or her partner, and the appellant in the past.[24]Glenda Bailey, another resident of Four Acres, said that, at about 2.45am, friends left and made some noise before driving away, the dogs barking at about that time. She said she went to bed shortly after that and was not woken again. Phyllis Bailey, called by the defence, said that she had stayed downstairs after the barking incident and had not heard further barking after that. Police investigation of the scene[25]DC Chapman said that he arrived at 3.40am on 5 th November and saw mats and traffic cones covering the blood which had been shed by the victim. At the scene he found assorted red green and white cartridge wads. He marked their positions with chalk and bagged them. At 7.15am he searched the scene and found debris nearby which included a Wrigley’s chewing gum wrapper. He also noted marks on the window and door pillar of the car. DI Ratcliffe arranged for the car to be tented and, following his return from the hospital, made a plan. When the car was moved, similar wadding was also found underneath it. Recovery of shotgun and cartridges[26]A Mr Crone who lived some eight to nine minutes walk from the murder scene found twenty-one shotgun cartridges in his garden on 5 November, and shortly thereafter, close to them, the wooden fore-end (or ‘duckbill’) of a shotgun. A few days later he took them into the police station, having heard about the shooting on the news. Later he found two more cartridges close to the position of his original find and also took those in.[27]At about noon on 5 November, children playing found a shotgun, less its fore-end, at the back of bushes a couple of streets away from Mr Crone’s address. Each barrel contained a spent Blue Rival cartridge. The jury was invited to infer that the discarded shotgun was the murder weapon, when combined with the evidence of the wadding found at the scene and the evidence of Mr McCafferty. Interviews with the appellant[28]The police called at the appellant’s home within hours of the shooting because he and Terrence Clarke ‘ were mates’. He was told Terrence Clarke was shot and was dead. The appellant said “No” and then asked if Mrs Clarke was all right. He agreed to help the police and to give them any information he could. He asked to see Mrs Clarke. The police spoke to him about his fight with Terrence Clarke and his response was that they did not like each other but lived in the same town so had to tolerate each other and get on, which included putting work each others’ way. He told police he did not want to have anything to do with guns. It could be him next. He then went home but was asked to return to the police station to make a statement about his movements. He said to the police he did not make statements, but that he did not mind telling them what he did. He agreed the police officer’s note of his account of his movements, (which basically accorded with this evidence at trial), but denied certain comments attributed to him. Later, he was interviewed and said he was sure that was an accurate account of his movements. When the account of Mr Roethenbaugh was put to him, he said that she ‘had it in for him’; she did not want people like him living there and had made her views plain. He insisted he had not gone out that night and she must have seen someone at another house. He said no one had called at his house earlier and she was mistaken.[29]In the course of interview the appellant agreed he had been given a beating by Terrence Clarke but said that he (Clarke) had apologised later. He had not made a formal complaint because it would have jeopardised Terrence Clarke’s liberty. If he had wanted to get rid of him he had plenty of opportunity in the course of work, for example by a falling scaffold pole. He denied there had been animosity between them for seven years and denied that he considered that Terrence Clarke was the reason he had been arrested for a serious theft previously. When asked if he had ever threatened to shoot Terrence Clarke he said ‘Maybe’. He added it was something he may have said quickly in temper after the beating he had received, but once they had talked and Terrence Clarke had apologised, his temper subsided. He described the attack made on him by Terrence Clarke with a chair. He said it was a long time since he had threatened to shoot Terrence Clarke and that there was not a man in town who had not done the same, the men who worked for him being terrified of him. The appellant denied he had been ridiculed at work in front of the men and had then threatened to shoot Terrence Clarke. He said it was rubbish.[30]Having examined the note made of his movements on Saturday, he said it was correct, but wished to add that, at the part where he had described being at the house of one Bill Flowers, Terrence Clarke was there too. The appellant was playing a betting game with Flowers and Terrence Clarke had commented that he could see Flowers was trying to take his money again. The appellant could not be sure whether he was present or not when Terrence Clarke and Flowers made arrangements to meet at the Stetson club. During the interview the appellant appeared stressed and unwell. He said to his solicitor that he did not shoot the deceased or have anything to do with it. He repeated he could have done anything to him on the scaffold and made it look like an accident. Chewing gum[31]On 7 November, while the appellant was in custody, he was visited by his wife, either in the charge room or the interview room. DI Askew and WDC Hillman both gave evidence that, apart from tobacco, Mrs Cleeland brought the appellant a packet of Wrigley’s spearmint chewing gum. Next day Sergeant Fletcher was ordered by Mr Harvey, the officer in charge of the investigation, to clear up the appellant’s cell which was in a mess. He found on the windowsill of the cell a Wrigley’s wrapper with one stick of gum remaining in it which he went and gave to the appellant in the cell to which he had been moved. He then swept out the remainder of the rubbish which he put in a polythene bag before returning the defendant to his cell. The contents of that bag became Exhibit 56 at the trial. It included a variety of rubbish and sweepings, but, in particular, included two Wrigley’s gum wrappers and two balls of chewed chewing gum. At trial Sergeant Fletcher was vigorously attacked in cross-examination by the appellant on the basis that he had never received any chewing gum from his wife at the station, and he had never had any chewing gum in his cell. In evidence the appellant stated that he had not chewed gum since the incident in 1971 when Clarke had knocked out his two front teeth and that the chewing gum and wrappers had been planted in his cell. He stated that the rubbish was not taken away by Sergeant Fletcher in a polythene bag but put down the lavatory, the whole of Exhibit 56 being a plant. These allegations were denied by Sergeant Fletcher. There was support for his version to the extent that Sergeant Hayes, who went in to relieve him, said that he heard the brief conversation concerning the stick of gum handed over by Fletcher to the appellant in the cell to which he had been moved. Cell conversations[32]Evidence was given by DI Jones and Sergeant Thompson of conversations between Graham and the appellant in the cells, when each was being detained for interview, Graham in Cell No 1 and the appellant in Cell No 8. The officers listened and took down notes separately, Thompson largely recording what the appellant said and Jones recording Graham’s words, with some overlap. It was stated that, in the first conversation, there was included a reference to Graham saying that the police had him for buying the cartridges, complaining that the appellant had not said they were for a ‘topping’ job and asking why he had not said what they were for. The appellant replied that it was all a frame-up and told Graham to shut up. Some time later the appellant returned to the cells after an interview at which his solicitor had informed Superintendent Blacker that he did not wish to answer questions unless the solicitor was present. DS Coveney accompanied him back to the cells and showed him the twenty-one cartridges he had in a bag saying that they were identical to the ones Graham said he had purchased for the appellant. The appellant asked who had said that and, on being told Ian Graham, said “No, No, No”, lay down and put his head under the blanket.[33]After Graham had been returned to his cell at 4.15am the officers resumed listening and, at 4.25am, heard a conversation in which Graham said he had been identified by the bloke from the Hobby Shop. Graham said he had told the officers he bought the cartridges for a friend. The appellant stated “They cannot prove anything” and in the course of the short conversation which followed Graham said, “You must have done it. Take it on your own”. The appellant then stated that they could not know where the cartridges were. Graham said it was “Fuck all” to do with him; he was not taking it and was going to put the appellant in it. The appellant said that if Graham did so, he was going to do Graham. The appellant said they could not prove it was him and, after a reference to whether Graham had yet made a statement, the appellant said that, if Graham signed it, he would get the same as the other man. There was further conversation about the ability of the police to prove anything so far as the two of them were concerned. The conversation was denied by the appellant who maintained that it was fabricated from start to finish. Graham on the other hand gave evidence which essentially supported the police version of the conversation. Scientific evidence[34]The deceased had pellets spread wide across his back. He also had a narrow spread of pellets in the chest, causing a severe wound gunshot wound to the upper right front of the chest with laceration of the right lung, great vessels, heart and liver. This caused haemorrhage which led to death. There were also pellets in the inside of the car windscreen and glancing pellet marks across the offside rear window. The position of the pellets both in relation to the car and the deceased were consistent with the description given by Mrs Clarke of the shots coming from the offside rear of the parked car, first striking the back of the deceased as he got out of the car having opened the driver’s door, then having turned round and received a second shot in the chest. Evidence was read from Doctor Cameron to this effect together with an undisputed suggestion that the position of the gunman was to the offside and rear of the parked car concealed in a garage alcove.[35]Mrs Clarke stated that she thought the gunman was about 20 feet away.[36]Mr McCafferty, to whose evidence we will turn in detail shortly, considered that the wounds to the deceased’s back and chest were both fired from a distance of about eighteen feet away, although the pattern of shot was more concentrated to the front of the chest. He attributed that fact to his observation (or it may have been an assumption which he made), that the left barrel of the gun was ‘choked’ i.e. had a somewhat reduced bore. This is frequently encountered in shotguns and has the effect of narrowing the spread of shot.[37]Mr Jennings a gunmaker called for the defence, asserted for his part that, in order to produce the spread or pattern observed, the G&M shotgun would have had to have been fired from some 30-40 feet away. His estimate of 40 feet was based upon a spread of shot measured by taking, as his bottom datum line, the lowest shot mark on the body and, as the top datum line, the marks of the shot on the car windscreen, which gave a vertical spread of shot of something like 24 inches. Mr McCafferty, on the other hand, measured the spread of shot simply from the deceased’s body and clothing and based his estimate on a comparison between that spread and the spread which he obtained on test firing the gun. Mr Jennings also stated that, if the left barrel of the gun was choked and was the source of the shot to the front of the deceased, the muzzle would have been 17-18 feet away from the deceased.[38]Mr McCafferty also gave evidence that, on microscopic examination, the wadding recovered by the police was indistinguishable from wadding removed from a test Blue Rival cartridge. He stated that the wadding, which was red, green and white (the colours of the Italian flag) was from Italy and the cartridges were rare, he only having come across them twice before.[39]Mr McCafferty also stated that he had examined and taken swab samples both from inside the barrels of the shotgun and its outer surface. He found considerable lead contamination from powder residue.[40]The police had seized clothing from the appellant which Mr McCafferty tested for traces of lead residue. He stated that lead contamination occurs when a shotgun is discharged. A positive reaction was obtained from a number of items which he accepted might have been used in the appellant’s work as a painter and decorator and were therefore of no probative value. However, a three-piece grey suit (Exhibit 46) and a brown donkey jacket, clear of any work stains, also gave a positive reaction for lead. The defence expert, Mr Lyne, agreed with those findings of Mr McCafferty, but said the suit could have been contaminated by entering an environment in which there was lead while wearing a coat on top which had been left open. He agreed that ordinary street petrol fumes would not have produced the reaction found by Mr McCafferty, but said contamination of the type indicated could happen if, for instance, “You placed your leg with the trousers on it immediately behind an exhaust pipe". He also stated that sanding off lead-based paint at work might produce a powder containing lead which would contaminate clothing worn at the time. Both experts agreed, however, that the grey suit was not a work suit. THE DEFENCE[41]The appellant, who conducted his own defence, challenged the integrity of the police, and the expert evidence. All of the witnesses for the prosecution whom we have mentioned, save for those from the Hobby Shop, were accused of lying, the police of planting evidence, and Mr McCafferty of falsely stating not only his findings but the fact that he had examined the G&M shotgun at all. It was the defence case that the appellant never went anywhere with Graham to buy cartridges. He was not in Stevenage Town Centre early on the Saturday morning and could not have been seen there because he was at home. He gave evidence (supported by evidence from his wife) that he remembered being at home on 4 November because it was a rare day off work for him and he stayed in bed until 9 or 9.30am, going to his mother’s house at 10.30-11am. Witnesses who stated to the contrary had lied. He had to collect children ready for a fireworks display and was back home by just after 5pm. They went to the display for 6pm and remained there until 8.30pm. The children were returned home and, after buying a drink in a pub, he went home and had a bath. He watched television for the rest of the evening until bed time and stayed there until the police woke him at about 5 am. He admitted he knew of the Clarkes’ reconciliation, where they would spend that evening and that the deceased would spend the night at Grace Way. He said that Newton and Graham were lying, Graham because he was frightened, or lying to save himself with Newton helping him. He said he had visited the Sells’ house on Friday 3 November, and not Saturday 4 November, to talk about work arrangements for Monday. It was early evening and he did not see Mrs Sell. He had telephoned Mr Sell on Sunday but there had been no discussion of the gun, nor had he bought it as stated by the Sells.[42]In evidence he suggested that police officers had dissected a Blue Rival cartridge to make it look as if had come from the scene, (this suggestion had not been put to either officer in cross-examination). He denied he had used chewing gum since the incident with the deceased in 1971 because it interfered with his plate. He also denied that his wife brought him any chewing gum in the police station, and in this his wife also supported him. He repeated his allegation of plant in relation to the chewing gum and wrappers said to have been discovered in his cell. He asserted that he was not a violent person; he said that, although he had previous convictions involving violence, they had been trivial. SUMMING UP AND VERDICT[43]The summing up was admirably lucid and comprehensive. The grounds of appeal raise certain points of criticism, to which we turn at paragraphs 123 to 135 below. Suffice it to say at this stage that we do not consider that they have substance. The jury reached agreement upon their verdict of guilty in just under 1½ hours. SUBSEQUENT HISTORY[44]Following his conviction, the appellant applied for leave to appeal on grounds of his own making. Legal aid was granted in order to investigate whether good grounds could be shown. In the light of matters raised by the appellant his solicitors’ investigation took some time and delays were encountered in seeking to obtain the evidence of a witness called Nash whose evidence, if credible, would have cast grave doubt on the evidence of the police as to the cell block conversation between the appellant and Graham on the night of 5/6 November. The application was eventually heard and dismissed by the Court of Appeal on 26 February 1976. The court found that Nash’s evidence was not worthy of belief on the basis of a lengthy statement which he had given to the police and which was put to him in cross-examination. It found no substance in the grounds of appeal which criticised the judge’s summing up, notably in respect of his failure to direct the jury that Newton and Graham should be regarded by the jury as accomplices for the purposes of considering the reliability of their evidence.[45]In February 1977, Assistant Chief Constable Boothby embarked on an investigation under s.49 of the Police Act 1964 into a series of allegations made by the appellant including that of fabrication of records and perjury relating to the scientific evidence of Mr McCafferty. It also covered allegations of perjury by police officers in relation to cell conversations and of threats made to procure Newton’s evidence. There was also a series of complaints relating to the appellant’s treatment in prison following trial including forgery of documents in prison files which are not relevant to any of the grounds of appeal before us. So far as the issues in this appeal are concerned, in his report rendered in August 1979, Mr Boothby made certain criticisms in relation to record keeping and documentation but found no evidence of fabrication or falsehood and concluded that none of any errors brought to light had any bearing, adverse or otherwise, on the outcome of the appellant’s trial or appeal. It is important to observe that Mr Boothby stated that he had considered the need to obtain transcripts of the evidence given at trial but had not done so on the basis that it would be time consuming and extremely costly to obtain them. In a later affidavit sworn on 10 November 1992 in connection with proceedings for judicial review, he elaborated on this by stating:
‘I can confirm that I did not obtain any trial transcripts. I say this with certainty for two reasons: firstly, from recollection, and secondly, because had I done so they would have been listed as annexes to the report, and they are not. I am told that Mr Cleeland says that he recalls my having transcripts of evidence with me while I was interviewing him. If this is his recollection, I must conclude that he is mistaken.’
[46]Following unsuccessful representations by the appellant to the Home Secretary concerning his case, he formally presented a petition to the Home Secretary to refer his conviction back to the Court of Appeal in accordance with s.17 of the Criminal Appeal Act 1968. That petition was refused. It was again considered and dismissed on 19 July 1991, which decision was the subject of an application for judicial review which was dismissed on 24 January 1992. A renewed application was made and dismissed on 13 October 1992 inter alia on the basis of the affidavit of Mr Boothby referred to at paragraph 45 above.[47]Between November 1993 and July 1994 an investigation was carried out by Detective Superintendent Humphris and Detective Inspector Connell of the Metropolitan Police Complaints Investigation Bureau following a statement by the appellant that he had received a letter from another prisoner, Brian Ward, in which Ward stated that he had met Graham, then serving a sentence for a drug related offence and another prisoner, Robert Wilson who was serving a sentence for manslaughter in the prison hospital. In that letter Ward stated that Graham and Wilson, ‘high’ on drugs, had boasted to him that they had killed Terrence Clarke and considered it funny that Cleeland was serving a life sentence for the killing. Ward had been diagnosed as psychopathic and his mental health deteriorated throughout the investigation. However, he confirmed his account to the police. Wilson gave an account of what Graham had said which included Terrence Clarke’s head being blown off, two guns being fired, and Patricia Clarke being shot in the foot. Thus it did not match the known course of events. Graham denied making any such confession, stating that Wilson and Ward had been persuaded to help Cleeland and that Cleeland had admitted the killing to him. The police conducted a search of two graves where (according to the various prison conversations) the shotgun used was said to have been hidden, using radar and metal detection techniques. The specialist who was contracted to do the search concluded that there was no shotgun buried in the grave. Having taken some fourteen witness statements in the course of his further investigation, Mr Humphris submitted his report to the Home Secretary in October 1994. The report concluded:
“It appears possible that Graham did make certain revelations to his cellmates whilst either under the influence of drugs or whilst being detoxified. However, the credibility of the statement is seriously tarnished due the nefarious character of all the witnesses involved. Certainly the main physical evidence which would have conclusively corroborated the subject of the alleged conversation i.e. the recovery of a second shotgun, was not traced.”
[48]Meanwhile, in May 1994, the appellant had submitted a second petition to the Secretary of State for reference of his conviction to this court, in which he suggested the existence and concealment of the transcripts of evidence at re-trial, and challenged the reliability of the police evidence about the alleged cell conversation between him and Graham as well as the evidence of Mr McCafferty about traces of firearms residue on his clothing. On 11 November 1994 the Home Secretary indicated his preliminary review on the second petition that there were no grounds upon which he could act, basing his reply upon the findings of the Boothby report and a preliminary examination of the Humphris report.[49]In correspondence which followed, the Home Office disclosed all the relevant underlying material upon which the Boothby and Humphris reports were based and informed the appellant of the gist of the two reports. The Home Office memorandum containing the substance of the advice upon which the Secretary of State had relied was also disclosed. He refused to disclose the reports themselves on the grounds of public interest immunity. However, on 8 September 1995 the appellant submitted a third petition to the Home Secretary for a referral, suggestion that the police had failed to disclose evidence available to them at the re-trial indicating that the shotgun, when fired, would have been likely to injure the person firing it. By letter of 27 November 1995 the Home Office stated that the Secretary of State was not persuaded that there was evidence that the shotgun had been in such condition at the time of the killing and invited the appellant to have it examined by a firearms expert.[50]On 25 July 1996 the Divisional Court dismissed the appellant’s application for judicial review of the Home Secretary’s refusal to disclose the Boothby and Humphris reports on the basis of public interest immunity on the basis that, all the primary material having been disclosed, it was unnecessary to order disclosure of the reports in order to enable the appellant to make his submissions to the Secretary of State.[51]In August 1996 the appellant made representations to the Secretary of State under s.17 of the 1968 Act on the basis of the evidence of two witnesses which had been available to the Crown at the time of the appellant’s trial but not disclosed. The first was taken from a PC Feast and contained infomaton to the effect that Terrence Clarke had confided to him the fear that he was in trouble again and that people were out to get him, which, it was submitted, suggested the possible existence of others with a motive for the killing. The second was a statement from Mr Duglaw, a firearms expert, who had examined the G&M shotgun prior to trial and found the right lock to be defective. However, the Secretary of State refused to refer the matter to this court. A complaint of non-disclosure in respect of Mr Duglaw’s statement is made under ground 5 of the Grounds of Appeal (see para 58 below). The non-disclosure of the statement of PC Feast is not the subject of any of the numbered grounds of appeal. In case this is a matter of oversight, we should make clear at this stage that we do not think the disclosure of that statement would have added significantly to evidence before the jury from elsewhere that Terrence Clarke was a criminal mixing in criminal circles, quick tempered, unpopular and capable of meting out violence, i.e. he was of a character and criminal disposition likely to make himself enemies.[52]In July 1997, the appellant made application to the CCRC under s.9 of the 1995 Act. Following representations from the applicant, the CCRC refused the application on 23 October 1998. On 22 January 1999 the appellant applied to move for judicial review of the refusal decision. Leave was thereafter granted on 28 May 1999 and, on 21 January 2000, the Divisional Court quashed the decision of the CCRC and ordered a re-consideration of the applicant’s case by a newly constituted committee of the CCRC without reference to, inter alia, the Boothby and Humphris reports. The appellant placed before the CCRC essentially all of the challenges to the reliability of his conviction and the allegations of a conspiracy between police and witnesses which have been canvassed before us. On 24 October 2000, having re-considered the matter, the CCRC referred the appellant’s case to this court on the sole basis of the reliability of Mr McCafferty’s evidence. On 21 November 2000 the CCRC submitted its Statement of Reasons in support of such referral (see paragraph 90 below). Following the submission by the appellant of grounds of appeal dated 6 March 2001 (which have been subsequently amended), on 11 June 2001 this court ordered the disclosure of the Boothby and Humphris reports, counsel for the Crown having indicated that all the underlying material on which they were based had been disclosed and that there was no objection other than the objection of principle to the contents of those reports being seen. The court made clear that its decision to make such an order was made in exceptional circumstances to allay the suspicions of the appellant as to conspiracy and ‘cover up’ by the reporting officers and should constitute no precedent for the future. GROUNDS OF APPEAL Ground 1[53]It is complained that Mr McCafferty misled the court at trial in two ways: first, he gave erroneous evidence as to the distance from which the G&M shotgun would have produced the spread of shot on the body of Terrence Clarke; second, he wrongly claimed that there was choke in one of the barrels. It is also complained that he never corrected his error about the choked barrel before the appellant’s appeal was heard, although he must have been aware of it by that time. Ground 2[54]It is asserted that Mr McCafferty misled the court by claiming that he had examined the G&M shotgun on 15 and 24 November 1992 at the police laboratory. This is asserted on the basis that(i) if he had examined the gun he would have noticed that neither barrel was choked and that it was not in working order;(ii) he made no mention of either of these points when he made his original statement(iii) there are no notes of Mr McCafferty relating to his scientific test to demonstrate that he matched two fired Blue Rival cartridge cases with samples fired from the G&M shotgun(iv) the records at the police station make no reference to the gun having been taken to the forensic laboratory. Ground 3[55]This ground states that the new evidence of Mr Spencer casts doubt on the reliability of the evidence of Mr McCafferty. Ground 4 – Material non-disclosure.[56]This ground alleges non-disclosure, based upon an observation in the Humphris report which stated:
“Patricia Clarke caught only a fleeting view of the rear of the suspect but did not notice a gun. It has always been considered that she may have seen an undetected accomplice, not Cleeland who was subsequently convicted. Caldon was drunk and asleep in the car.”
[57]In the course of the appeal, this ground was withdrawn by Mr Fitzgerald on the basis of an acceptance that the passage contains the statement of a hypothesis rather than being based on any statement or evidence available to the police which has not been disclosed. Ground 5[58]This ground complains that there was material non-disclosure at trial of the statement of a firearms expert by the name of Mr Duglaw who had examined the G&M shotgun at the request of the police and concluded that the right-hand lock was not working. It is argued that this would have rendered it unlikely that the shotgun was the murder weapon. Ground 6[59]It is complained that the Crown failed to disclose at trial the evidence of DI Smith to the effect that the shotgun and three live cartridges were on 7 November 1972 conveyed to Norwich for display on the television programme ‘Police Call’. It is said this would have demonstrated that DI Ratcliffe was not telling the truth when he stated that the handstock and eighteen live cartridges were taken to the laboratory on 7 November. The further point is made that the evidence of PS Atkinson that he photographed the shotgun at police headquarters at Welwyn Garden City on 7 November was also inconsistent with DI Ratcliffe’s statement. It is asserted that police officers were lying, thus concealing the fact that the shotgun was not in the police laboratory between 7 November and 15 December (where Mr McCafferty said he examined it), as suggested by DI Ratcliffe and the laboratory record. Ground 7[60]It is complained that the Crown failed to disclose at trial a statement by David Jeffcoat an arms expert at Sotheby’s in which he stated that he examined the G&M shotgun on 14 November 1972 with the handstock on it. Since there is no note in the laboratory records that Mr Jeffcoat ever attended to examine the shotgun there, it is said that, had his statement been disclosed, the appellant would have had opportunity to cast doubt on the police assertion that the handstock was taken to the police laboratory, being kept there between 7 November and 15 December. Ground 7a[61]Complaint is made that the Crown failed to disclose to the appellant at trial that a pump-action shotgun had been recovered and submitted for examination in connection with the murder of Terrence Clarke. Nor did the Crown disclose the fact that the shotgun had been examined at the police laboratory by a Mr Pryor who had made certain findings in respect of it. It is contended that the possibility that the pump-action gun (fired by some other person unknown) cannot be excluded as the murder weapon. Ground 7b[62]It is complained that the Crown failed to make disclosure of the second (and principal) statement of Patricia Clarke. Ground 8[63]This is a general assertion that there has been a failure to carry out an independent, fair and impartial investigation into the issues raised by the appellant in respect of his conviction. The appellant relies on the extent to which there has been non-disclosure of material matters which he contends cast doubt on the integrity of the initial police investigation and give rise to the inference that the subsequent investigations of his complaints have not been independent and impartial. Ground 9[64]It is complained that the only receipt for the material at the laboratory on 7 November was not disclosed prior to trial or, indeed, until about 1996. Reliance is placed upon the fact that the entry on the receipt in respect of the shotgun and cartridges is in handwriting rather than having been typed like the other exhibits recorded. It is said that this and various other inconsistencies in record keeping cast doubt on the reliability and credibility, not only of the original police evidence but also of the Boothby report, which it is suggested amounted to subsequent cover-up by the police of the original conspiracy to procure the appellant’s conviction. Ground 10[65]Ground 10 (which is essentially the same as that in ground 7a above) refers to two sawn-off shotguns recovered by the Essex Police from Weir Stream at Harlow on 23 November 1972 and delivered to the Hertfordshire Police on the basis that they might have had something to do with Terrence Clarke’s murder then under investigation. They were delivered to the police laboratory on 24 November by DI Ratcliffe and signed for by the laboratory liaison officer, DS Osborne. According to Mr McCafferty and DI Ratcliffe, the G&M shotgun was also taken to the laboratory for examination that day. It is suggested that, because DS Osborne did not sign a receipt for it, the evidence of Mr McCafferty was false. It is also suggested that the fact that no swab test was done on the recovered shotguns indicated police were not interested in ascertaining whether it might have been the shotgun used in the killing of Terrence Clarke. Doubt is also cast upon the explanation given by the laboratory for such omission. Ground 11[66]This ground attacks the integrity of the Boothby enquiry, asserting that the affidavit which Mr Boothby swore in the Divisional Court proceedings referred to at paragraph 45 above was false on the basis that, whereas he stated that he had not obtained or retained the transcript of evidence at the appellant’s trial, a statement by a Police Sergeant Atkinson refers to him being shown a transcript of his evidence at trial by Mr Boothby. Ground 12[67]This ground criticises the method and evidence employed by Mr McCafferty in relation to testing the appellant’s clothes for lead contamination by asserting that, by the date of his test, there was available a more sophisticated test than that applied which could differentiate between lead caused by firearms and lead caused by environmental contamination. It is said this casts serious doubt on the reliability of all the evidence based on the presence of lead. Ground 13[68]This ground asserts that the fight between the appellant and Terrence Clarke the year before the killing was too remote in time and insufficiently material to amount to evidence of motive and that, in the absence of direct evidence by identification, the evidence should not have been introduced to support identity. Ground 14[69]It is complained that anonymity should not have been granted to Mrs X (see paragraph 13 above), the fact that she would have been embarrassed by exposure not being sufficient reason to grant her anonymity. It is also said that the fact that she was allowed to give evidence wearing a wig and brown glasses to conceal her identity limited the ability of the jury to judge her demeanour in the witness box. Ground 15[70]This ground concerns the adduction of evidence as to the finding of Wrigley chewing gum wrappers at the scene of the crime and other wrappers which were recovered from the appellant’s cell. It asserts that, if the appellant had handled the chewing gum wrappers in his cell, his fingerprints would have been on them but that no evidence was adduced to that effect. Further, in relation to the evidence that chewed gum was recovered from the cell, reliance is placed on the absence of any reference to it in the police exhibit list. The ground goes on to refer to ‘a recent plant of chewing gum’. This is a reference to a recent complaint by the appellant that chewing gum, which the Crown has asserted is the same chewing gum as was found in the appellant’s cell and produced at trial and has since been submitted for DNA testing, must have been surreptitiously obtained after being discarded by the appellant in one of his recent interviews with police or with members of the CCRC staff. The ground states that the matter has been the subject of a recent complaint by the appellant which is currently the subject of investigation by the Norfolk Constabulary, the outcome of which ought to be before the court if the Crown seek to rely on the results of the DNA tests. Finally, it is complained that the fact that the discovery of wrappers and chewing gum in the cell of the appellant was incorporated into evidence in the course of the trial was an ‘illustration of the failure of the trial process to hold a fair balance between the appellant’s interest and that of the Crown’ and that consideration of it by the CCRC (in particular in deciding to commission a DNA test of the chewed gum if still in existence) ‘may also indicate evidence of a failure by the CCRC to conduct an independent and unbiased investigation’. Ground 16[71]It is said that the trial judge acted unfairly by making comments deprecating the fact that the appellant had made attacks upon the integrity of Mr McCafferty and the police, particularly where the appellant was acting in person, whereby ‘the balance of a fair trial was significantly eroded against the appellant and the conviction was consequently unsafe’. Ground 17[72]It is complained that the judge wrongly refused to discharge the jury after an outburst by Mrs Clarke (see further at para 128 below) which prejudiced the appellant and deprived him of a fair trial. Ground 18[73]It is asserted that evidence of the cell conversation between the appellant and Graham should not have been admitted in evidence because it was not recorded in the officers’ notebooks at the time and was not put to the appellant in subsequent interview so that he could confirm or deny the conversation, contrary to what is now required by Code C 11.13. Ground 19[74]It is complained that the judge failed to give an accomplice warning in respect of the evidence of Graham and failed to warn the jury that he was a person with an interest to serve and that, because of his involvement, they should treat his evidence with caution. Ground 20[75]Reliance is placed upon the prison confession said to have been made by Graham subsequently in 1992 (see para 47 above) and that, when he denied that had he done so in interview with DS Humphris, Graham made a demonstrably false charge against the appellant to the effect that shortly after the killing the appellant had been seen ‘covered in blood’. THE MURDER WEAPON[76]As already indicated, it was the Crown’s case that Mr Clarke had been killed by two shots from the G&M shotgun, the link between that gun and the appellant being established by the evidence of Peter Sell. Circumstantial Evidence[77]Apart from his account of the sale and delivery of the shotgun to the appellant the day before the killing, Mr Sell gave two important pieces of evidence(a) that he had not fired the gun for about 12 years prior to November 1972, and(b) that he had cleaned the gun carefully before handing it over to the appellant. He identified the G&M shotgun in the witness box as his; his ownership of that gun was confirmed by his father, Mr William Sell, and by his wife, who said she was present when the gun was handed over.[78]It is clear that the jury must have accepted the evidence of the Sells, whose evidence the judge described as “crucial”. Much later in the history of this affair, when the appellant was making representations to the CCRC, he asserted that the Sells, among others, were at the material time the subjects of pending prosecutions which were discontinued as an inducement to them to give evidence against him. This allegation was investigated by the CCRC and was found to have no basis in fact whatsoever. All the members of the Sells’ family were at the material time, and apparently still are, persons of good character.[79]It was the Crown’s case that the ammunition used in the G&M shotgun to commit the murder was two “Blue Rival” cartridges, manufactured by a small ammunition manufacturer, located in Norwich, known as the Anglia Cartridge Company, the two spent cartridges still being in the shotgun when it was found after the murder. The link between ammunition of this type and the appellant was provided by Graham and Newton. The former described his purchase of them for the appellant; the latter said he had been asked to look after them on the same evening. Both Newton and Graham had significant previous convictions, but it seems clear that the jury must have accepted the thrust of their evidence.[80]At the risk of repetition, the killing took place at about 2am on the morning of Sunday 5 November. That morning Mr Crone found 21 loose Blue Rival cartridges and the handstock of a shotgun in his garden and took them to the police. Later he found two more cartridges under leaves nearby. There was some argument as to whether he had brought in yet another cartridge but, subject to that, his find, together with the two spent cartridges found in the breach of the shotgun, amounted to the 25 that would have been in a complete box of such cartridges. At about midday on 5 November the shotgun itself, less its handstock, was found a short distance from Mr Crone’s house. Both locations were within ten minutes walk of the scene of the murder, and of the appellant’s home. Forensic Evidence[81]The G&M shotgun and spent cartridges were examined by Mr McCafferty, who was at the time a Principal Scientific Officer in the Metropolitan Police forensic science laboratory. He was a man without formal academic qualifications, but he had been in charge of the firearms section of the forensic science laboratory since January 1964, and at the time of this trial he had had 25 years of ballistic experience as an examiner of firearms and ammunition. He found, inter alia, that both barrels were fouled, indicating that both had been fired since it had last been cleaned. He also gave evidence, at committal and at trial, that there was a strong smell from burned powder. If Mr Sell’s evidence of having cleaned the gun was true, this inevitably led to the conclusion that the gun had been fired since Mr Sell parted with it on the Saturday evening. The appellant’s allegation, persisted in before us, has been that Mr McCafferty had not examined or tested either the gun or the ammunition, either in the police laboratory (as Mr McCafferty stated) or at any time before he gave evidence at either the first or second trial. Accordingly, much time has been spent in the hearing of this appeal in tracing through the history of the gun from the time that it was found, in two separate parts, on the morning of the 5 November 1972.[82]This exercise has involved close examination of the Exhibits Register, the entries in various police officers’ notebooks, their contemporaneous statements, and the Metropolitan Police Forensic Science Laboratory records. At this remove of time, hardly surprisingly, none of the witnesses who produced those records had much, if any, live recollection of the events therein recorded. The exhibits register kept at Stevenage discloses that all parts of the shotgun, the 21 unused cartridges and the 2 spent cartridges were received by DC Spinks, the exhibits officer in the case, on the evening of 5 November. As different parts of the gun came from different locations, he logged in the shotgun (minus its handstock) and the two spent cartridges within it as Exhibit RS104A and B. The handstock and the 21 unused cartridges (discovered by Mr Crone) were logged as Exhibit RS105. Both exhibits are recorded as having been taken from the exhibit store at Stevenage on the 7 November 1972 and returned on the 15 December.[83]On the 7 November, together with a great deal of other material, the two spent cartridges (RS104B) and the handstock, together with eighteen unused cartridges from RS105, are recorded as having been delivered to the forensic science laboratory by DI Ratcliffe and DC Spinks, where they were received by PC Osborne, one of the police liaison officers at the laboratory. He signed for them as received on that date upon the retained laboratory copy of Hertfordshire Constabulary form headed ‘Submission of Articles to Forensic Science Laboratory’. He gave evidence to this court. He authenticated his signature and explained the form to us. He was plainly an honest witness.[84]The shotgun as a whole did not go to the laboratory that day. On 7 November Inspector Smith recorded in a statement that he took the shotgun and three live cartridges withheld from exhibit RS 105 from Stevenage to Norwich to be displayed on a television “Police Call” programme. These items were in his possession between 10 o’clock in the morning and 10 o’clock in the evening for that day. He repeated the exercise with the gun for the purposes of a television programme shown in London on the 10th November. He simply described the gun as being “exhibit RS104” and his statements make no distinction between the various parts of the gun. Inspector Smith, who also gave evidence before us, told us that he cannot remember whether he took the complete gun or merely the part listed as exhibit RS104A (i.e. the gun less its handstock). While he would have expected to have taken the shotgun in a complete state for the purposes of a television programme, he could not now say whether he did or did not do so, or whether he knew the handstock was separate but available. There is thus no substantial reason to doubt the accuracy or detail of the forensic science laboratory record in relation to receipt of the handstock on 7 November. Potential confusion was introduced when the exhibit register at Stevenage was amended to transfer the handstock from exhibit RS105 into exhibit RS104 without specifying the date upon which this transfer took place. While it would otherwise have seemed probable that this happened after the shotgun had been examined as a whole by Mr McCafferty at the forensic science laboratory following its return to Stevenage, it may have happened earlier, because it is apparent that the shotgun complete with its handstock, was examined by a Mr Jeffcoat, an arms expert at Sotheby’s on 14 November 1972 (see Ground 7 at paragraph 60 above). However, this gap in continuity does not seem to us to affect the main question raised, namely whether Mr McCafferty inspected and tested the shotgun at the police laboratory for the purposes of giving evidence about it. We have, however, been invited by the appellant to treat confusion in the records in this respect as one of a number of matters which cumulatively indicate dishonesty and bad faith on the part of the police, rather than simply being the product of inadequate record keeping. Having considered the records and heard evidence from various officers criticised we do not consider that, whether taken on its own, or collectively with a number of other points to be made upon the records, the discrepancy we have highlighted amounts to evidence of dishonesty.[85]So far as Mr McCafferty’s access to the shotgun is concerned, a separate Submission Document shows that the shotgun under the label RS104A, was taken for the first time to the forensic science laboratory by Detective Inspector Ratcliffe on 15 November, and it is recorded that the gun was delivered to Mr McCafferty personally. DI Ratcliffe’s notebook and the contemporaneous statements of both men indicate that the gun was returned to Mr Ratcliffe after a brief examination on that same day. It is also apparent from the Submission Document that the gun was brought back to the laboratory and delivered personally to Mr McCafferty on the 24 November. Mr Pryor, a member of the laboratory staff who is referred to hereafter, identified the acknowledgement receipt of the 24 November as being in Mr McCafferty’s writing. The shotgun, together with all the other material originally submitted, was returned to the Hertfordshire police on the 15 December, as recorded in the Exhibits Register at Stevenage.[86]Notwithstanding the fact that the record keeping at Stevenage by the Hertfordshire police was plainly not of a high standard, and various documentary procedures for the acknowledgement of samples received were neglected at the forensic science laboratory, the movements and handling of these exhibits as between Stevenage and the laboratory seem sufficiently clear. A major discrepancy arises in a statement dated 30 November 1972 of Police Sergeant Atkinson (now deceased) who was a police photographer. In that statement, he stated that, on 7 November, he photographed the shotgun and a quantity of cartridges at Stevenage police station. He plainly could not have done so if DI Smith’s evidence (which we accept) is correct. The photograph is available and it shows all parts of the gun. Under cross-examination by the appellant at the trial, PS Atkinson accepted that his statement was erroneous and suggested that he may have taken the photographs on the 10 November. However, that assertion finds no support in his notebook entries. The label attached to the trigger guard of the shotgun, which is supposed to show the signatures of all officers handling the exhibit, and the dates upon which they did so, is also plainly not complete and thus does not help in this respect. The date upon which Mr Atkinson actually did photograph the gun and cartridges remains a mystery. These errors and omissions in the recording of the movement and possession of exhibits by the investigation team have undoubtedly led to a great deal of confusion as to the precise location of the gun at all times. They have certainly caused the appellant to make wholesale allegations of deliberate falsification and forgery of entries in which he has ever since persisted, in support of his assertion that Mr McCafferty did not examine or test the gun or cartridges at all prior to his giving evidence at either the first or the second trials.[87]However, overwhelming documentary evidence from other sources makes it plain to us that the appellant’s assertions in that respect are wholly unsustainable. Quite apart from the inherent improbability that any expert witness purporting to give evidence of this kind would go before a High Court Judge and a jury on not one but two occasions without ever having examined and reported upon the article about which he was to give evidence, there is clear documentary evidence that Mr McCafferty did examine and test the shotgun. First of all, we have seen Mr McCafferty’s notes of his examination. They have both the appearance and the ‘feel’ of contemporary notes. They are made in his own hand and in a somewhat higgledy-piggledy manner. They plainly cover and refer to the matters about which he subsequently gave evidence. Second, there is a witness statement of Mr McCafferty dated the 15 December 1972 in which he describes the gun. In addition to containing the details of his test firings, his statement contains a description of the gun itself, including such details as the trigger pressures required to fire it, the maker’s name which was on the inner surfaces of the locks, and the peculiar characteristics of the handstock, in particular that it was loose and was liable to fall off. That statement also included the statement that Mr McCafferty had compared the firing marks on the cartridges which he fired with the marks on the spent cartridges found in the gun and found agreement. He stated his conclusion to be that one of them had been fired in the left and the other in the right barrel of that weapon. Mr Cleeland, and indeed Mr Spencer the expert instructed by the Commission, criticise Mr McCafferty because his notes do not show a pictorial sketch or illustration of what he observed. However, there does appear in his notes, with reference to the spent cartridges, the comment “different firing pins”, which must relate to the relevant test and no-one suggests that such a test would not have been proper and routine procedure; nor, indeed, does anyone suggest that Mr McCafferty’s conclusion about this aspect of the case was wrong.[88]Third, and perhaps most important, we have before us Mr McCafferty’s sworn deposition which he gave before the magistrates on about 3 January 1973. His evidence was plainly based upon the notes which cover the gun, the cartridges, and the wads and it deals with matters which he could only have known if he had examined the gun in detail. Indeed, it is apparent from the contents of the deposition that he actually had the gun in his hands for purposes of explanation when giving evidence before the examining magistrate. The inevitable conclusion must be, as it seems to us, that he was truthful when he said he had carried out an examination of the gun and spent cartridges prior to trial and there is no substance whatever in the allegation first made by Mr Cleeland at his trial and persisted in to his day that Mr McCafferty lied in that regard. Wads[89]The appellant has similarly asserted that the wads from the discharged cartridges contemporaneously recorded as found at the scene of the murder and which were of the type used in the manufacture of Blue Rival cartridges had been planted there by the police in order to create the false impression that Blue Rival cartridges had indeed been fired in the gun used for the killing. No evidence was adduced to support this assertion or any inference to such effect. It was before the jury who plainly must have rejected it. It is perhaps pertinent to note that this allegation involved the proposition that other wads, which would inevitably have been left on the scene by whatever gun it is suggested was used, were either unnoticed by the police in their thorough inspection of the scene or picked up and destroyed, the distinctive red, white and green Blue Rival wadding being deliberately substituted by the police before the discovery of the G&M shotgun with two spent Blue Rival cartridges still in the breech. It is complained that the evidence given by Mr McCafferty was misleading insofar as he suggested that the Italian-made wads were rare, and that he had only come across them twice before in the whole of his 25 years of ballistic experience. In this connection, Mr Spencer told us that, instructed by the Commission, he made enquiries of the Italian manufacturer of the wads, which has now ceased business. He discovered that the firm supplied wads to a number of small ammunition manufacturers, and, in the absence of any records, could only say that they sold “some thousands” of wads to the Anglia Cartridge Company. There is no record as to what other English cartridge manufacturers were supplied, or in what quantity. It is also complained that the use of the word “rare” was in any event misleading, in the sense that the Anglia Cartridge Company supplied cartridges to a shop in Stevenage, so that, in the locality at least, Blue Rival cartridges would not necessarily be uncommon. We certainly see force in that assertion. However, none of this, as it seems to us, casts any significant doubt upon Mr McCafferty’s evidence that the finding of wads of this manufacturer was consistent with the cartridges used being of the Blue Rival variety. The distance of the shots fired[90]This brings us to the substantial point upon which the CCRC referred the case back to this court (see paragraph 3 above). The CCRC report states:
“The Commissioners considered Mr Cleeland’s representations and has decided to refer the conviction to the Court of Appeal on the sole basis of Mr McCafferty’s inaccurate and apparently unreliable evidence as an expert witness. The Commission is not able to determine the degree to which the inaccurate evidence would have had an impact upon the decision the jury reached, but cannot rule out the possibility that it may have been an important factor leading to the original conviction.”
In its detailed conclusions the Commission observed that Mr Spencer’s report struck at the accuracy and reliability of Mr McCafferty’s evidence, and showed that central evidence in the prosecution case was flawed. The Commission commented:
“A key element of Mr McCafferty’s evidence, in relation to the Gye & Moncrieffe shotgun was that it had a choked barrel (which we now know that it did not). Also that the distance from which the gun would have been fired (if it had been the gun which shot Mr Clarke ) would have been 18 feet. Mr Spencer now makes it clear that the gun had no choked barrel and that if this gun was used it would have been fired once from 30-40 feet and once from 16 - 18 feet. Mr Spencer also criticises other aspects of Mr McCafferty’s technical evidence given at the first trial. However, Mr Spencer’s report makes it clear that the other evidence in relation to the shooting itself, namely the wads and cartridges, is all consistent with the use of the Gye & Moncrieffe shotgun as the murder weapon.”
[91]It has never been doubted by any of the experts involved in this case that the first shot from the gun struck Mr Clarke in the back, and the second shot, which was the fatal one, struck him in the chest when he turned round. The first shot was fired from the right-hand barrel and produced the more widespread shot pattern on Mr Clarke’s back. The second and fatal shot came from the left hand barrel and produced a more concentrated shot pattern on Mr Clarke’s chest. It may have been this difference that led Mr McCafferty (and, let it be noted, Mr Jennings) to conclude, without measuring the barrels of the gun, that the left hand barrel was choked. Mr Spencer’s evidence before us, which is accepted by both parties in this respect, is that both barrels were in fact open (i.e. neither was choked). Accordingly, it is now accepted on both sides that, between firing the first and second shots, the shooter must have approached closer to the deceased by advancing between ten to twenty feet before firing the fatal shot.[92]It seems to us necessary therefore to consider to what extent, if at all, this version of events is inconsistent with the evidence given by the only eye witness to the shooting, namely Mrs Clarke. She had been sitting in the rear nearside passenger seat and was turning to open the back door on the nearside of the car as her husband got out of the driver’s door. As he did so she heard a “crack”. She jumped out of the car and heard a second “crack” and saw a blue flame. The one shot she did see seemed to her to come from the right of the car between the car and the garage shown on the photograph. She next saw a person further down the road. Her evidence as to her view of the lapse of time between the shots was “less than half a minute” but, understandably, the trial judge expressed some doubt about the accuracy of that estimate. Her estimate of distances was that both the first shot and the second shot came from a distance of about 20 feet, give or take a foot or two. However, as she only heard, and did not see the first shot, the accuracy of her estimate in respect of it is highly questionable, and, as the trial judge pointed out, the circumstances of surprise, shock and fear in virtual darkness would militate against any real accuracy in this regard. As it happens, however, her estimate of 20 feet in relation to the second and fatal shot was very close to the estimate given by Mr McCafferty for that shot, in the light of his test firings from the shotgun in question. That estimate is broadly supported by two of three other experts who have examined this gun for the purposes of the case. In particular Mr Spencer, whom we found a most careful and impressive witness, gave an estimate of some 16-20 feet for the distance of the second and fatal shot.[93]In all the circumstances therefore, it does not seem to us that the undoubted error as to the choking of the left hand barrel which Mr McCafferty made in his examination and report upon the G&M shotgun submitted to him casts any real doubt upon the validity of his evidence that the fatal shot could have been fired from the left hand barrel of that gun. [It is to be noted that the effect of his evidence never went further than that.] Accordingly, even if that error had been corrected when the evidence was placed before the jury, it seems to us quite impossible to hold that the totality of the evidence both old and new, would have led the jury to come to a different verdict. Certainly, the revelation of that error does not lead us to conclude that the conviction is unsafe upon that ground. The other guns[94]It was Mr Cleeland’s submission before us that the murder had in fact been carried out by the use of a sawn off pump-action shotgun. That submission was unsupported by any evidence, the only possible basis for such an assertion being the deposition of Mrs Clarke in which she stated that she saw a policeman pick up a single cartridge at the scene of the crime. If accurate, that might well suggest the use of a pump-action shotgun. However, there is no other evidence that a cartridge was so found; and in particular there is no entry in the exhibit register or other contemporary record of a single, or any, cartridge being found at the scene when there could have been no reason at the time for the police to seek to conceal such a discovery. It seems clear that Mr Cleeland was aware of Mrs Clarke’s evidence as it was in her deposition. It does not appear from the summing-up however that the appellant suggested at trial that a pump action shotgun had been used as the murder weapon, and the appellant confirmed that to us in the course of his submissions. That assertion is now associated with his complaint under Ground 7 that the Crown failed to disclose that, in late November, the forensic science laboratory examined two other shotguns which the appellant submits were candidates for this particular shooting and which were in no way connected with him. It is apparent from the forensic science laboratory records that, on Thursday 24 November 1972, the laboratory received for examination two sawn-off shotguns which had been found by Essex Police in a stream near Harlow in Essex. Essex CID being aware of (though not concerned with) the Clarke killing, sent the guns to the Hertfordshire police in case they might have been involved in the Stevenage murder. The Hertfordshire team did not believe that to be so and the two guns were accordingly submitted to the forensic science laboratory by the Hertfordshire Constabulary by the hand of DI Ratcliffe on the 24 November for comparison with any other crimes. The two guns in question were an American Western Field 12-bore pump action repeater shotgun and a German Muller 12-bore double barrelled shotgun, both sawn-off. It was made clear to us by Mr Spencer that the act of sawing off the barrels of a shotgun would have had the effect of removing any choke that there may have been in the barrels of either.[95]Upon submission to the laboratory, both guns were examined by Mr Pryor, who is now senior firearms examiner in the Forensic Science Service, but was then a junior member of the laboratory staff. He gave evidence before us. In the case of the pump action shotgun, he found that the barrels were dirty and very rusty with some pitting. There was no evidence of fouling i.e. traces the product of discharge, and there were some metal fragments still to be found in the barrel. It was his opinion then and now that this demonstrated that the gun had not been fired since the barrels had been sawn off. His opinion was the same in relation to the Muller shotgun in respect of which he observed that, in both barrels, burring from the sawing off process was still evident, which burring would have been blown off if the gun had been fired since sawing off. On the instructions of the CCRC, Mr Spencer also examined the two guns and he was of the same opinion. He said that if either gun had been fired, the high probability was that any metal fragments or burring would have been swept out of the barrel as a result.[96]We accept the evidence of both these experts (indeed we have none to the contrary)and we are accordingly satisfied that neither of these two shotguns was used in the shooting of Terrence Clarke. Indeed, there is before us no evidence of any kind, or any reason to suppose, that they were connected with the shooting; let alone that the pump-action gun, rather than the G&M shotgun, fired the fatal shot. As Mr Spencer pointed out in evidence the appellant’s suggestion that it was indeed the murder weapon involves three propositions: first, that the gun was cleaned after the shooting; second, that its barrels were sawn off after the shooting; and third, that it was taken from Stevenage to Harlow for disposal where it was found together with another sawn-off shotgun. We do not regard the combination of all three propositions as realistic. GROUNDS 1-3, 6, 9, and 10[97]In summary therefore, we conclude as follows. As to Ground 1, we consider that Mr McCafferty was mistaken in his assumption, and wrong insofar as he stated or assumed in his evidence, that one of the barrels of the G&M shotgun was choked and that the two shots were fired from the same distance. However, we do not think that the court was misled as to the distance over which the fatal shot was fired. As to Grounds 2, 6, 9 and 10, we reject entirely the suggestion that McCafferty’s evidence that he examined and tested the gun at the laboratory was false, or that such evidence was undermined by the evidence of DI Smith or other evidence not previously disclosed. We consider there is no doubt that the G&M shotgun was delivered to the laboratory and there inspected and tested by Mr McCafferty. It is also clear that he matched the two spent cartridges found in the G&M gun with two samples which he took from the remaining cartridges found and which he himself fired for test purposes. We have seen no evidence to suggest that any other gun than the G&M shotgun was the murder weapon. As to Ground 3 we find that, while justly critical of certain of Mr McCafferty’s methods and assumptions, the evidence of Mr Spencer broadly affirms Mr McCafferty’s evidence to the jury as to the distance from which the fatal shot was fired. It also affirms Mr McCafferty’s assertion that the evidence was consistent with the Blue Rival cartridges (fired from the G&M shotgun) being used in the crime. We see no reason to doubt the safety of the conviction under the numbered grounds to which we have referred. GROUND 5 Non-disclosure of Mr Duglaw’s statement[98]Turning to Ground 5, the position is as follows. The G&M shotgun was found at midday on 5 November 1972, by which time, if it had been used in the shooting, it had been outside for some ten hours. On 9 November 1972 it was shown to Mr Duglaw for examination at which time he recorded that the right lock was defective. Thereafter, it was taken to the laboratory on 15 November where it was delivered to Mr McCafferty who found that, apart from being minus its fore-end, it appeared to be in good working order. However, he did not fire the gun until after it was returned to him on 24 November 1972 when, upon test firing of both barrels, he found it to be capable of firing in the normal way. At the committal hearing in January 1973 he stated that ‘the right lock was not cocking at the moment’, for which he offered the explanation at the first trial that the fault could have been caused by a screw on the outside of the hammer having worked loose. On 16 May 1973 the gun was examined by Mr Jennings the defence expert for the purpose of giving evidence at the re-trial. He test-fired the gun with no suggestion of any problem with the right barrel.[99]Upon the instructions of the CCRC Mr Spencer was asked to report upon these matters. It is plain from his report, which was supported by him in evidence before us, that the fault was an intermittent fault of quite common type which can be caused to come and go by changes in atmospheric humidity and can be cured by adjusting the tightness of the lock securing bolt. He stated that placing the gun outside during a damp period would cause the wood to absorb moisture and swell. The fault found at Mr Duglaw’s examination on 9 November 1972 might have been caused by rough handling between the shooting and that examination, but was more likely to have been caused by absorption of moisture by the wooden stock during a night in the open. Storage in dry conditions between its discovery and 9 November would not have cured the fault as, unless the locks were removed, the wood inside would not have sufficient time to dry fully. It appears therefore that Mr Duglaw’s finding of fault in the right lock on 9 November was not an indication that the gun was similarly faulty on 5 November, given the fact that the gun had spent a night in the open between those dates. Mr McCafferty’s successful test firing at some point after 24 November 1972 is consistent with the intermittent fault having rectified itself by drying out. The overall history of the gun is consistent with Mr Spencer’s diagnosis of an intermittent fault caused by handling or changes in atmospheric humidity. Finally, it was the view of Mr Spencer that, even if such a fault had been in place immediately prior to the shooting, it could have been corrected in any event by a sharp blow with the hand by the person using the gun.[100]In all the circumstances, it does seem to us that, given the general challenge by the defence to the prosecution case at trial that the G&M shotgun was the murder weapon and, indeed, that Mr McCafferty had not in fact examined it, the statement of Mr Duglaw should have been disclosed. That said however, we are satisfied there is no inconsistency between the finding of Mr McCafferty and Mr Jennings on the one hand and Mr Duglaw on the other. That is the opinion of Mr Spencer who is the only expert whose attention has been directed to the significance of the fault found by Mr Duglaw. The G&M shotgun could have been fired on 5 November 1972 and yet demonstrated a fault in the right lock on 9 November 1972. Further, nothing emerges from the statement of Mr Duglaw which suggests that Mr McCafferty did not indeed examine the gun, contrary to the assertion of the appellant. The appellant has not sought to call Mr Duglaw or any of the several other experts whom he has consulted over the years to counter the views of Mr Spencer. In all the circumstances we do not consider that the effect of the non-disclosure placed the defence at any material disadvantage or that it renders the verdict unsafe. GROUND 7 Non-disclosure of Mr Jeffcoat’s statement[101]Complaint is made that the Crown failed to disclose prior to trial the statement of David Jeffcoat, the Sotheby’s arms expert who examined the G&M shotgun on 14 November 1972, the day before it was first taken to the forensic science laboratory by DI Ratcliffe and delivered to Mr McCafferty for a brief inspection. It is not suggested that the contents of the statement were concerned with, or threw any light upon, the question of whether the gun had any role in or connection with the killing. Its significance is simply said to lie in the fact that the description of the weapon given by Mr Jeffcoat makes clear that the handstock of the shotgun was in place at the time of its inspection and that, had the statement been disclosed, the appellant would have had further opportunity to cast doubt on the police assertion that the handstock was taken to the laboratory on 7 November and to point to a deficiency in the records of the laboratory in not recording a period of removal for the purposes of examination by Mr Jeffcoat. We are not surprised that, when disclosure was first considered and made in relation to the appellant’s original trial, the Crown did not disclose Mr Jeffcoat’s statement, given that they had no reason to anticipate the wholesale attack which would be mounted by the appellant at his trial upon the honesty of Mr McCafferty, in which context the attack on the police record keeping was mounted. Once the line of his defence became apparent, however, it does seem to us that the statement of Mr Jeffcoat was disclosable as affording some ammunition in that regard. Nonetheless, we do not consider that the point he made indicated anything more than inaccuracy of record keeping and we do not consider that prejudice in any material respect was occasioned to the appellant as a result of such non-disclosure. GROUND 7a The pump-action shotgun[102]We have already stated our conclusion that there is no evidence or reason to suppose that the pump-action gun discovered by the Essex Police was the murder weapon. It seems clear that, at the time, the Hertfordshire investigation team did not connect the finding of the shotgun by the Essex Police with the shooting of Terrence Clarke, in that, on the receipt, it is clear that they submitted them to the laboratory for comparison in relation to other crimes. This was in the light of their clear view that the G&M shotgun found with the cartridges so near to the scene of the crime was the weapon involved. Nor at the time had they any statement from Mrs Clarke indicating or suggesting that they had picked up a cartridge at the scene of the crime. It has been argued that, once they were aware of her observation to that effect they should have considered the position and made disclosure. On balance we consider that such argument is correct. However, given that the expert evidence is clear that the pump-action shotgun bore no evidence of fouling and had not been fired since its barrels had been sawn off and given the absence of any evidence to connect it with the occurrence or scene of this crime, we do not consider that such non-disclosure caused any material disadvantage to the appellant or that it affects the safety of the conviction. GROUND 7b Non-disclosure of Patricia Clarke’s statement[103]It is quite clear from the bundle of trial documents before us, its consecutive numbering, and the index which appeared at its front that the second statement of Patricia Clarke dated 8 November 1972 was disclosed to the appellant, or at any rate the solicitors who represented him until the first day of his trial and we are satisfied that there is nothing in this ground of appeal. GROUND 8 The Boothby Report[104]It is not the function of this court to carry out an investigation into the fairness of police investigations into particular aspects of the case. It is rather to consider any additional factual evidence which they may throw up, forming our own conclusions as to the effect of that evidence. We must make up our minds on the evidence now before the court, whether or not the verdict of the jury is safe. Suffice it to say, we have learned nothing on this appeal which causes us to doubt either the independence or the fairness of the Boothby investigation and certainly nothing which suggests suppression in relation to any of the matters which have come to light in the course of it. GROUND 9 Examination of G&M Shotgun[105]We have already made clear that we are satisfied that the shotgun and cartridges went to the laboratory as claimed by DI Ratcliffe at trial. Having heard from DS Osborne in evidence, we reject the suggestion under this ground that the hand-written reference to cartridges and the handstock which appears over his signature for them as received on 7 November were added later to rebut the assertion by the appellant that the shotgun never went to the laboratory at all. He explained to us that the bulk of the list of exhibits had already been typed out on the document when he received it and, on checking the exhibits received, he found that the cartridges and handstock had not been typed in and simply added them in his own handwriting as he received them on that day. DC Osborne also explained (and we accept) that he informed Mr Boothby in 1997 that the items had been delivered by DI Ratcliffe having referred back to the laboratory form on which his name appeared as officer in the case. He stated that, if it was in fact DC Spinks who brought them in (and his name also appeared on the form), he would not dispute it. We do not consider, as is asserted under this ground, that the number of inconsistencies revealed upon close examination of the documentation (which were criticised in the Boothby report) casts any real doubt upon the reliability and credibility of the Boothby report. There is no material whatsoever before us to suggest that it was simply ‘a cover up’ as it has been stigmatised by the appellant. GROUND 10 Delivery of all three shotguns to the laboratory on 24 November[106]We reject the suggestion made under this ground that the signing into the laboratory by Osborne of the two shotguns discovered by the Essex Police without reference to the G&M shotgun which DI Ratcliffe said he also took with him that day to Mr McCafferty is an indication that he (DI Ratcliffe) did not do so. The two sawn-off shotguns were being taken in for examination for the first time and in relation to other crime, whereas the G&M shotgun was being delivered for the attention of Mr McCafferty as the scientist who had already had it brought to him personally by DI Ratcliffe on 15 November, before its return to him on the same day after brief examination. GROUND 11 Transcripts[107]We have already referred to Mr Boothby’s affidavit in which he stated that he did not obtain a transcript of the evidence given at the appellant’s trial. It is submitted that this is inconsistent with a statement by PS Atkinson in which he expressly refers to being shown a transcript of is evidence. We have not been afforded the explanation for this apparent difference. It may be that Mr Boothby obtained, or had in his possession, transcripts of certain parts of the evidence. Following a direction by this court upon a hearing for directions in June 2001 that the prosecution make careful enquiries of Mr Boothby and any other internal source within the police to ascertain whether any transcripts are now available and, if so to supply copies to the appellant, we have been assured that such enquiries have been made but that Mr Boothby’s position remains the same. We do not consider that the impasse in this respect gives us cause to doubt the overall integrity of the Boothby enquiry. GROUND 12 Lead tests[108]We have set out the state of the evidence before the jury as to lead contamination at paragraph 40 above. This ground of appeal submits that the evidence about lead contamination was unreliable because there was a form of electron microscopic testing available at the time, which was not used, which could have established whether the lead contamination found on the appellant’s clothes contained traces of barium and antimony (supportive of a firearm as a source) or none (which would indicate an environmental source). There is a certain amount of material in papers before us which asserts this may have been the case, but it has not been the subject of any evidence called by the appellant. When cross-examined on this point Mr Pryor said that, at the time, electron microscopic testing was being developed but he did not think it had yet been sufficiently developed within the Metropolitan Police Laboratory to be in use. Whether or not that is correct, we have heard no evidence as to what such testing might or might not have demonstrated at the time or with the benefit of hindsight. It is not suggested that the evidence actually called was inadmissible or that the defence lacked any opportunity to deal with it. Nor is it suggested that the judge summarised the state of the evidence otherwise than accurately. Accordingly, this ground of appeal is not made out. GROUND 13 Admissibility of evidence as to motive[109]We consider that the evidence as to alleged motive called by the Crown was plainly admissible. GROUND 14 The evidence of ‘Mrs X’[110]The question of the grant of anonymity to ‘Mrs X’ was a matter within the discretion of the judge. It is not in dispute that the reason why she was granted anonymity was because she made clear that, unless that was so, she would not be prepared to give evidence. No doubt, in granting her request, the judge took into account that this was not a case where anonymity was sought vis-à-vis the defendant, who was well aware of her identity and not embarrassed in any way in cross-examining her or advancing his own case as a result of the anonymity she was granted. The assertion is that the defendant was prejudiced in the sense that she was enabled to shelter behind her anonymity and make claims about her relationship with the appellant while denying any relationship with Clarke, secure by reason of her disguise from challenge by a member of the public who, if aware of her identity, might have come forward to contradict her. We do not accept the force of that assertion. As the appellant has acknowledged, he was part of the same social circle as the Clarkes. He would thus have been able, if he had thought it appropriate, to invite any person who he knew to be in a position to contradict the evidence of Mrs X to come forward and do so. We accept that to some extent, the appearance of Mrs X in a wig and wearing dark glasses might have limited the ability of the jury to judge her demeanour in the witness box. However, this aspect should not in our view be overstated, and we have no doubt that the judge would have borne it in mind before making the decision which he did. We do not find any substance in this ground of appeal. GROUND 15 Chewing gum[111]During the re-trial before Lane J, the prosecution adduced and relied on the evidence that a Wrigley’s chewing gum wrapper had been found in the vicinity of the shooting and that, when Mrs Cleeland went to visit the appellant after his arrest, she gave him a packet of Wrigley’s chewing gum. In addition, when Sergeant Fletcher had been ordered to clean out the appellant’s cell, he found among the debris two balls of chewing gum and some Wrigley’s wrappers (see paragraphs 31 and 42 above).[112]As the judge pointed out in his summing up, that evidence assumed a significance which, on the face of it, it did not appear to deserve, bearing in mind the number of users of Wrigley’s chewing gum who might have been in the area of the garages in the days or hours prior to the shooting. However, in response to the suggestion that his wife had given him chewing gum at the police station, the appellant asserted that the allegation was fabricated; he said he did not, and was unable to, chew gum and that anything related to chewing gum in his cell had been planted. On this appeal, the appellant not only maintained that no chewed gum was recovered from his cell, but also asserted that no chewed gum had been included in Exhibit 56, when produced at his trial. He sought to make good the latter assertion by reliance upon a passage in the summing-up of Lane J (at page 92F of the transcript) at a point where he referred to the confession of Sergeant Fletcher in cross-examination, that on the arithmetic of the matter, there were two bits of chewing gum missing, only three out of the packet of five being accounted for. However, it is quite clear to us that the appellant’s assertion was based on a misinterpretation of the relevant passage in the summing-up. It certainly provides no basis whatever for the suggestion that there were not two balls of chewed gum recovered in the debris from the cell and produced at the appellant’s trial.[113]In this connection, we have not seen the transcript of the evidence of Sergeant Fletcher at the trial before Lane J. However, we have seen a transcript of his cross-examination by the appellant in the first trial before Thesiger J in April 1973, in which the following passage appears:
“Q. In this statement you say “(1) numerous cigarette ends; (2) numerous old matches; (3) a polythene drinking cup; (4) sundry scraps of paper from Old Holborn tobacco packet, cellophane and silver paper including an advertising inset to a Piccadilly packet of cigarettes. Additionally, I found amongst this rubbish: two balls of chewed chewing gum; two silver inner wrappers; two paper outer wrappers marked ‘Wrigley’s Spearmint Chewing gum’ colour white, red and green; small section of silver foil being part of the final outer wrapper of Wrigley’s spearmint chewing gum.”
Have you got that final outer wrapper there? Will you take it out? Is that the outer wrapper of a packet of 5? A. It says “Five sticks” on the side Q. Five sticks. So you find two silver inner wrappers; two paper outer wrappers, that is two – two chewed pieces of chewing gum. Correct? A. Correct Q You say you come back later and you took one complete one out? A. Yes Q. There are two missing, are there not, sergeant A. It would appear so. Q. Yes, where do you think they got to. A. That is a matter for conjecture and I do not really think I can answer. I certainly did not find them. Q. You did not find them. It is funny that among other exhibits there is that wrapper, is it not? (no answer)… Q. There was never any chewing gum in that cell, was there? A. Pardon Q. There was never any chewing gum in that cell was there Mr Fletcher? A. My Lord I repeat my evidence that when the cell was cleaned out I found these two balls of chewed chewing gum, the silver outer wrapper and the outer wrapper to those two. Q. What did you do with the rubbish out of my cell? A. It was retained by me and then given to Detective Constable Spinks. Q. I am going to tell you what you did with that rubbish because I was there. It was put down the toilet and flushed, was it not, Mr Fletcher. A. It was not put down the toilet and flushed, Mr Cleeland.”[114]It is clear in our judgment that, in the passage we have mentioned in the summing up at the retrial, Lane J was referring not to the absence of two pieces of chewed gum from Exhibit 56 but to the two (unused) pieces of chewing gum missing from the original packet of five which were never found, or exhibited.[115]Sergeant Fletcher, now retired, gave evidence before us. He confirmed his account of the cleaning of the cell and of his recovery of various items including two balls of chewed chewing gum. He also confirmed that he had put the debris in a polythene bag and, with other items, had handed it to Detective Constable Spinks, who also gave evidence before us. He referred to the exhibits register and acknowledged that, in relation Exhibit 56, it referred to various items recovered from the cell including Wrigley’s spearmint wrappers, but made no reference to chewed gum. We reject the contention that the absence of any reference to chewed gum in the entry in the Exhibit Register has a sinister significance. There was a substantial number of other small items of debris present in the exhibit which were not specifically identified for the purposes of the Exhibit Register description and we reject the suggestion that the omission of any reference to chewed gum in that description affords any substantial support for the allegation of “plant”. We accept the evidence of Mr Fletcher as to what he recovered from the cell, as no doubt the jury did at the trial. In this connection, we note in parentheses that, as the appellant himself conceded when addressing us, while there might have been some point in 1972 in a corrupt officer planting and producing a wrapper or wrappers to connect the appellant with the scene of the crime, there would have been no point in planting and retaining chewed gum as there was no form of DNA analysis available in those days.[116]We reject Mr Fitzgerald’s submission that the way in which this aspect of the case was incorporated into evidence in the course of the trial was illustrative of the failure of the trial process to hold a fair balance between the interests of the appellant and those of the Crown.[117]The judge made clear in the course of summing up the peripheral relevance of the chewing gum to the main issues in this case. But he also pointed out, entirely properly in our judgement, that, on the issue of credit, it might be of some importance. He asked the jury the question whether it might be that the four police officers who had given evidence on this aspect of the case were all telling lies in which case the jury should dismiss it from their minds, or on the other hand whether they were telling the truth, and if so, the effect that would have on the credit of the appellant and his wife. This relatively insignificant issue became significant because of the appellant’s response to it.[118]The prosecution sought leave under s. 23 of the Criminal Justice Act 1968 to call before us evidence of recent DNA analysis of the two chewed balls of gum said to have been found in the appellant’s cell and contained in Exhibit 56. That application was resisted on a number of grounds by the appellant. The accuracy of the analysis evidence sought to be adduced was not disputed, in that there were formal admissions made by the appellant to the effect that a buccal swab recently taken from the appellant had been compared with two pieces of chewed gum also submitted to the laboratory, and that Mr Whittaker a scientist who carried out the comparison correctly concluded that the DNA profiling results provided extremely strong support for the assertion that the cellular material tested from those two pieces of chewed gum originated from the appellant. However, the appellant asserted in the course of his submission that any such gum must have been obtained and forwarded to the laboratory as the result of recent covert dishonesty by the police in somehow obtaining gum chewed by him, he having for some years now resumed the habit of chewing gum which he had dropped in 1971. It was his contention that the chewed gum recently so obtained must have been substituted for the chewed gum formerly present in Exhibit 56 by officers aware that any DNA tests on the latter would prove negative and who, while themselves entirely uninvolved in his original conviction, were nonetheless concerned to procure false evidence to support it years later. He stated that a complaint in this respect was currently under investigation by the Norfolk Police. We decided that, before reaching any conclusion about the admissibility of the evidence, we should hear evidence relating to the preservation and continuity of Exhibit 56.[119]In relation to this, we considered statements from Detective Sergeant Crawley dated 25 May 2001 and 20 July 2001, who also gave evidence before us. He said that on 30 January 1998, on instructions from a senior officer, he went to Stevenage Police Station to ascertain if any exhibits from the case were still in existence. He described the exhibits as in all sorts of conditions, packed in cardboard boxes and contained in their original 1972 bags. He said that those bags were made of polythene and were in the main intact and sealed, with exhibit labels attached. In relation to Exhibit 56, which had the reference RS 159A, he said that he took possession of it, took the exhibit label off the outer bag containing the various items making up the exhibit and put it in a new bag which he sealed. He did not unpack anything. He said that the original (now the inner) exhibit bag was and remained sealed. Having done that, he said he returned the exhibits to the secure property store and, at a later date, having been requested to arrange transportation to the forensic science laboratory at Birmingham, he sent the exhibits by recorded delivery post. He said that neither he nor anybody else opened the bag containing two pieces of chewed gum.[120]We also heard the evidence of Javaid Hussain, a laboratory scientist, who had made a statement dated 31 July 2001. He received various items at the laboratory, including Exhibit 56 and he examined them for fingerprints, in the event with no significant results. However, during the course of his evidence he was asked about Exhibit 56 and he produced photographs which he had taken of that exhibit when it was received at the laboratory. He said, as was clear from the photographs, that when he received the exhibit it consisted of one outer bag which was sealed, but that the large inner bag was open with two smaller bags inside that.[121]In the light of the clear difference between the evidence of Detective Sergeant Crawley and Mr Hussain as to the state of the exhibit concerned, Mr Fitzgerald on behalf of the appellant submitted that the evidence of recent continuity of the exhibit was such that we should not in any event admit the evidence. In our judgement there is force in that submission and we therefore decline to admit the evidence of the analysis. Having made clear the basis on which we decline to admit the evidence, we should also make clear that, in his submissions to us, the appellant made serious allegations of misconduct, dishonesty and planting of evidence against a number of people including a member of the CCRC who examined Exhibit 56 at Stevenage police station. In the light of our decision not to admit the evidence which the prosecution seek to call, it is unnecessary for us to say more about those allegations, in the light of the inquiry currently being conducted by the Norfolk Police.[122]In this connection, we should make clear that, following reservation of our judgment, the court received a letter from the appellant’s solicitors requesting that the matter be re-listed for further argument prior to judgment being delivered on the basis of matter contained in an affidavit of the appellant sworn on 9 January 2002. In that affidavit he made clear that Detective Superintendent Grant of the Norfolk Constabulary is currently investigating the appellant’s recent complaint against the Hertfordshire Police and the CCRC that the chewing gum submitted to the laboratory for DNA testing was a ‘plant’. The appellant said that he had learned from DS Grant that it was his intention to submit the ‘packaging around the chewing gum’ (by which it appears he means the inner exhibit bag) to examination, in particular for fingerprints, in order to seek to establish how and by whom it had been opened. He also asserted that it had, been agreed between the Hertfordshire Constabulary and the CPS that examination would be delayed until after this appeal had been concluded. The appellant submitted that this was fresh evidence confirming that the Hertfordshire Constabulary and the CPS were conspiring to pervert the course of justice in that they must have been aware prior to the hearing of the appeal that the packaging around the chewing gum was unsealed but deliberately sought to suppress it. He submitted that the interests of justice demand that the matter should be re-listed for consideration by this court as a matter which has ‘a material bearing on [the appellant’s] credibility and that of the Crown and the Hertfordshire Constabulary’. We declined to re-list the matter for that purpose. Even in the event that the appellant’s complaint were found to have substance as result of that investigation, it would not carry the matter any further in respect of the relevant issue originally before the jury and re-canvassed on this appeal, namely whether chewing gum was planted in the appellant’s cell by other officers almost thirty years ago, as to which we have already expressed our conclusions. GROUND 16 Unfairness by trial judge[123]The appellant vigorously pursued at trial his wholesale attack on Mr McCafferty, not on the grounds of incompetence, but on grounds that he had never received or examined the G&M shotgun at all. Mr McCafferty was accused of joint fabrication with the police of the case against the appellant and in giving a false account of the movements of the key exhibit. In this respect

the judge said:

“He [Mr McCafferty] has been giving expert examination to guns, he says for something like a quarter of a century, many of the occasions being ones similar to this. He is a man, whatever else you may think about him, plainly of very great experience indeed, but, unhappily, his honesty was attacked, not merely his expertise, and that is perhaps a rarity in this sort of field. One hears experts cross-examined about their findings for hours on end, but it is not very often that you hear an expert challenged about the whole basis and veracity of his evidence, because it is suggested that Mr McCafferty never examined Exhibit 14 [the G&M shotgun] at all and that was put in terms and bluntly to him and so you must consider it”
[124]The judge then went to consider the basis for the suggestion. Later, having reviewed the ballistic evidence of Mr McCafferty and Mr Jennings, the judge observed:
“You may think that there are only two possible conclusions to be drawn from this ballistic evidence. Either the whole ballistic evidence is so uncertain as to be valueless and you are left to draw your proof and evidence from other sources or Mr McCafferty is right and was indeed in the end supported by what Mr Jennings said, however reluctantly. In either event, you will have to consider whether there is any question at all that Exhibit 14 was the gun which the murderer, whoever he may be, in fact used.”
[125]It is complained that those comments unduly undermined the attack made by the appellant upon the credibility and reliability of Mr McCafferty. We do not agree. As to the first passage complained of, the basis of the attack upon Mr McCafferty was that he had never examined Exhibit 14 at all, that he had manufactured notes and had given detailed false evidence about findings and tests in respect of a weapon which he had in truth not examined. We have been able to find no basis whatsoever for that attack maintained to this day. Whereas, now, judges are astute to avoid references to what may or may not be the norm in cases other than the case being tried before them, the comment made by the judge was no more than accurate and, throughout his summing-up, he made clear that matters of fact and credit were wholly the province of the jury.[126]It is also complained that, in considering the issue of the chewing gum, the judge, while remarking that it assumed a significance which it did not appear to deserve, directed the jury that they might find it useful to consider the issue as going to the credit of the defendant generally if they decided that they accepted what the police had said.

The judge stated:

“But what is of interest and may be indeed of some considerable relevance in your enquiries into this matter is the reaction of the defendant to the police evidence, first of all that he was given chewing gum by his wife when his wife visited him in prison and, secondly the evidence that he must have in fact chewed the gum while he was in the cells. His attitude to that suggestion, and indeed the attitude of his wife insofar as she comes into the picture, was that every single policeman and policewoman who supported the suggestion was fabricating that evidence. It therefore becomes necessary to examine the evidence, you may think, for two reasons. First of all, on the question of credit, how much reliance can you place upon the evidence of the defendant or, indeed on the evidence of his wife, if you accept what the police say is true? Secondly, you may think, if the police evidence is true, why should the defendant go to such lengths to deny it?”
[127]We consider that such a direction was, in the overall circumstances of the case both logical and unexceptionable. GROUND 17 Mrs Clarke’s outburst[128]It was plain from her original statement to the police, her evidence at the original trial, and her evidence at the re-trial, that Mrs Clarke gave the police a description of the person whom she saw at the scene of the shooting which did not match the appellant and that, upon seeing the appellant at the police station she told the police that she did not think he was the man she had seen. However, under cross-examination from the appellant at the re-trial she stated in a sudden outburst, that having heard all the evidence at the first trial, she considered that the appellant was guilty. The judge did not discharge the jury, and indeed it is not clear that there was any application made to that effect. However, he made clear to the jury that they should ignore Mrs Clarke’s outburst, putting the matter this way in his summing-up:
“She [Mrs Clarke] had in cross-examination, an outburst and this is one of those occasions when I regret we lost the cool atmosphere which the judge tries, not always successfully to maintain and she said, stimulated by certain questions from the defendant, ‘I now find you guilty of killing my husband’. That was on the strength, she said, of what she had heard when she attended the first trial. That opinion is, of course, entirely valueless. She is usurping your very functions and you will pay no attention, I need hardly remind you to that sort of outburst which, if there had been time, or if I had been able to, I should have stopped.”
[129]The decision whether or not to discharge the jury in the light of Mrs Clarke’s outburst was plainly one for the judge’s discretion. In the circumstances we do not consider that it was necessary for him to do so, provided that he gave a clear direction to the jury to ignore the outburst. In the passage which we have quoted above he did so and we find no substance in this ground of appeal. GROUND 18 The cell conversations[130]This ground asserts that the evidence of the cell conversations should not have been admitted. According to the police, notes were taken of the conversations at the time on pieces of paper which were produced in evidence. In 1972 the officers were not obliged to note or replicate in their notebook hand-written notes of this kind and there was no pre-condition to the admissibility of the evidence of the cell conversations that they should have been put to the appellant for his comment. That was certainly not done. It appears from the summing-up that the only police interview or interviews of the appellant after the cell conversations were conducted on the basis of a pre-prepared questionnaire limited to questions about the background to, and circumstances immediately surrounding, the killing. Mr Fitzgerald has argued that, in considering the fairness of admitting the evidence of the cell conversation from the police officers, current standards of fairness should be adopted by this court: see R –v- Bentley (deceased) [2001] 1 Cr App R 307 and R –v- Johnson [2001] Cr App R 408. He invited us to consider what would have happened if an objection had been raised before the judge on similar grounds to those which now appear in s.78 of the Police and Criminal Evidence Act 1984. He submitted that, in the light of Code C: 11.5-11.13, a judge dealing with the matter today would have excluded the evidence.[131]The difficulty in that submission is that, at trial, it does not appear that any objection was raised before the judge to the admission of the conversations and he had no opportunity to make a ruling in the light of argument and counter-argument on the question of fairness and prejudice. In that respect the judge would no doubt have had in mind the fact that Graham was in any event available to give evidence of such conversation and that the appellant would have a full opportunity to deal with the matter in that context. We think it unlikely that, even faced with the problem today, as opposed to the state of the authorities in 1972, the evidence of the conversations would necessarily be excluded and we do not consider that it was unfair to the appellant to admit such evidence. GROUND 19 An accomplice warning[132]It is complained that the judge failed either to give an ‘accomplice warning’ in respect of Graham’s evidence or to warn the jury that he was a person with an interest to serve because of his involvement and for that reason they should treat his evidence with caution. Reliance is placed upon the fact that, in the cell conversations, Graham expressed concern that because he had bought the cartridges for Cleeland he was being regarded by the police as an accessory before the fact and stated ‘I’m not going to stand for nothing. I ain’t going down for something I know fuck all about’. That was made clear by the judge in his summing-up, but he did not give any formal ‘accomplice direction’. What he did do was tell the jury, when examining the evidence of Graham (and Newton), to bear in mind their criminal backgrounds and to be careful for that reason about accepting what he said was true. He also made clear to the jury the defendant’s contention that Graham was lying to save his own skin or because he was frightened in relation to his purchase of the ammunition for the appellant. In particular, in turning to the detail of the evidence of Graham and Newton the judge prefaced his remark as follows:
“Bear in mind what I said abut the evidence of people with the sort of background that those two men have. They are, or have been at some stage, addicted to drugs as well as having a criminal record and all these points must cause you to look at their evidence with some considerable care. In the end you will have to go on the impression that they made in front of you. As I said before, it does not necessarily mean that a person who has suffered criminal convictions or even a person who may have been in the past or is at present addicted to drugs cannot tell the truth. You must judge.”
[133]More importantly, the judge’s examination of their evidence ended with the following:
“I repeat, it will come in the end to your assessing them for what you found them to be as they stood in the witness box. Did their evidence, despite their admitted records and background, ring true or may it be the case, as is suggested, that each of them is just telling a tissue of lies to save their own skins at the expense of the defendant.”
(emphasis added)[134]So far as a formal accomplice warning is concerned we consider that the position is as stated by Lawton LJ when this court dismissed the appellant’s original application for leave to appeal, namely that:
“[The appellant] has accepted that he never, at any time during the trial, suggested that Graham and Newton were the murderers or had assisted the murderer. All he put forward at the trial, and he has repeated his allegation in this court, was this. When the police came to interview Newton and Graham, as they interviewed a lot of other men in the Stevenage area after this killing, these two suspected that they were in dire trouble with the police – maybe suspected rightly for all we know – and in order to curry favour with the police they said whatever the police wanted them to say. That would not have made them accomplices in any technical sense. The suggestion was one which the jury had to consider. The learned judge was at pains, as I have already recounted, to get the jury to weigh very carefully the evidence of such witnesses as the prosecution call who seem to be disreputable. In our judgment there is nothing in that ground of appeal.”
[135]We do not think that there is substance in the complaint that the judge failed to warn the jury that Graham was a person with an interest to serve and that, because of his involvement, they should treat his evidence with caution see R –v- Beck 74 Cr App R.221. By reason of the passages in the judge’s summing-up to which we have made reference and, in particular, that last quoted at paragraph 133 above, we consider that such warning was effectively given. GROUND 20[136]Mr Fitzgerald has relied upon the content of the Humphris report and the fact that, in 1992, Graham is alleged to have made admissions to three fellow detainees in prison that he himself committed the murder itself. He submits that this renders the conviction unsafe. It was made clear to us in that regard that Mr Fitzgerald had not been instructed to seek leave to have called before us, Graham or any of the serving prisoner witnesses who gave statements to Mr Humphris concerning his alleged confession. The report having been put before us with the consent of the Crown, we are prepared to accept that Mr Humphris has accurately set out and recorded in the various underlying statements what was said to him by the various prisoners in the course of his investigation. However, by reason of the complicated circumstances and the network of relationships and motives which emerge from the report, the inaccuracies and inconsistencies of the accounts as between the prisoners and, on occasions, as between accounts given to Mr Humphris by the same prisoner, we feel quite unable to accept any of the statements taken as ‘new evidence’ in the appeal which carries any weight or credit in the absence of substantiation on oath before us. We note the terms of Mr Humphris’ conclusion, as quoted by us at paragraph 47 above. We also note that most (if not all) of the persons interviewed were at various times in the same prison as Mr Cleeland and must have had contact with him, either directly or at one remove, in the course of his continuing search for evidence which might assist him in protesting his innocence. All concerned appear to have had substantial criminal records.[137]It is quite clear that, in the course of interview concerning his alleged statement, Graham has never deviated from his assertion that he made no such confession, had nothing to do with the killing and that it is the appellant who was responsible. Wilson stated that he may or may not have heard Graham confess to the murder but that he in any event believed the appellant to be guilty. He later offered to give evidence of Graham’s involvement in exchange for his own new identity and release. When he eventually supplied a statement concerning Graham’s confession it was in terms that Graham and Newton had shot Clarke, Newton firing a shot into Clarke’s shoulder and neck and blowing his head off and Graham firing into the car and crippling Patricia Clarke. Graham and Newton then decamped and buried Graham’s gun in mud at the bottom of an open grave which was filled a couple of days later, Newton’s gun being dismantled and placed under a hedge near the appellant’s home. That account was plainly at odds with the known course of events. Furthermore, the police having identified the two graves which might possibly have been open on the night of the murder, and after extensive searches using radar and metal detection techniques, it was concluded by the contracted specialist employed that there was no shotgun buried in the grave. In our view there is no evidence before us worthy of belief of any reliable or credible confession having been made by Graham that he killed Terrence Clarke, or which leads us to doubt the safety of the conviction of the appellant for that crime. CONCLUSION[138]For the reasons we have stated, this appeal must be dismissed.

Cited in 2 later judgments