REGINA v IAN JAMES THOMAS [2002] EWCA Crim 941

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
Mr. Justice McCullough
[2002] EWCA Crim 941Case No Case No: 1999/1372/S3Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
REGINARespondentIAN JAMES THOMASAppellant
Before
Lord Justice Auld MrMichael Mansfield QC & James Gregory (instructed by Stephensons) for the AppellantAndrew Edis QC & Miss Anne Whyte (instructed by the Crown Prosecution Service) for the RespondentDate 26 April 2002

Lord Justice Auld:

Introduction

[1]Ian James Thomas appeals against a conviction of the murder in November 1990 of Julie Christian, the woman with whom he lived. He has been tried and convicted of it twice, the first conviction being quashed on appeal and the second conviction on re-trial being upheld on appeal. This is his third appeal arising out of the charge and the second in relation to his second conviction, the matter now being referred to the Court by the Criminal Cases Review Commission.[2]The prosecution case at both trials was that the appellant killed Julie at their home at 3 Teilo Street in Liverpool between midnight on Saturday, 10 th November and about 1 p.m. on Sunday, 11 th November 1990, and that between 6p.m. and 11 p.m. on that Sunday he hid the body under bags of household waste in the alley behind the house and set fire to it. That time frame is important to the prosecution’s case, since it depended on circumstantial evidence. It could be fixed by a telephone call by Julie to her sister, Sally, at about midnight on the Saturday, the last heard of her, and the call of a debt collector, a Mr. Kamara, at the house at about 1 p.m. on the Sunday.[3]On the evening of the Saturday the appellant and Julie had an argument. She was upset by it and stayed at home when the appellant went to a public house with members of her family. Later that evening he returned home. The next person to see him was Mr. Kamara on his call at about 1 p.m. on the Sunday. The appellant was in a highly agitated state and would not let him into the house. Shortly after 2 p.m. that afternoon he went by bus to Speke to shop in a B & Q store, where he made a purchase recorded on a timed receipt that he kept. He later visited various members of Julie’s family saying that she had disappeared and that he was looking for her. He and the family searched for her that night without success. On the Monday morning he reported her disappearance to the police. On the Tuesday various items of her property were found on nearby wasteland. On the Wednesday her body was found badly burned in a pile of burning rubbish in the alley behind their home. On the prosecution case the body had been burning in that pile, replenished with other rubbish from time to time, since the Sunday night.[4]The appellant denied that he had killed Julie. He said that she had been alive and well at home when he left the house at about 2 p.m. on the Sunday and that a stranger must have killed her outside the home some time after that. He explained some scratch marks on his body by saying that they had been caused by a cat or in the course of decorating.[5]Any evidence that might have shown Julie to be alive after the appellant went out on the Sunday afternoon would clearly have been of great significance to his defence for, apart from a few short periods, he was in the company of various members of her family until the discovery of her body three days later.[6]A witness at both trials was a ten-year girl called Emma Duffy, who lived nearby and knew Julie. She gave evidence that, between 2 p.m. and 4 p.m. on the Sunday afternoon she had seen Julie. walking along Teilo Street followed by a stranger. Also in the street at the time was Sarah Skelland, an eight-year-old girl. Sarah was called to give evidence at the first trial, but could remember nothing of importance, and was not called at the second trial because, by then, she could remember nothing at all of the occasion. The circumstances in which Sarah’s potential evidence did not materialise into any evidence at all that might have assisted the appellant were considered by the Court in the second appeal and the appellant seeks to rely on them again on this appeal. However, the Commission has not given them as a reason for the reference.[7]Also of possible relevance to the defence, if it had had been available at either of the trials, would have been evidence of the sighting, claimed by two young boys, of the dead body of a woman on the Tuesday in the garden of a derelict house about 500 yards away from the alley behind Teilo Street. Such claims could tie in with the evidence of Emma Duffy, if it had been accepted, and support the appellant’s case that someone else murdered Julie away from her home after she was seen leaving it on Sunday afternoon. The two boys – now young men - are William Harris and Clinton Jones, and the appellant, as a result of the Commission’s investigation of the matter, now seeks to rely on their claims, by way of fresh evidence.[8]A further matter, also a subject of the reference, relates to the fire in which Julie’s body was found on the Wednesday, which the prosecution evidence indicated had burned continuously, but with varying intensity and with some re-fuelling, from about the Sunday evening.[9]In order to put those issues in proper context and to assess the impact of their possible resolution on the safety of the second verdict, it is necessary to consider the prosecution and defence evidence in more detail and, in the case of Sarah Skelland’s potential evidence, the different course taken at the second from the first trial. The prosecution case[10]The prosecution case and evidence were as follows. The appellant and Julie were in debt, which put a strain on their relationship. They had rows at times, sometimes coming to blows. However, Julie’s family said that, in general, they appeared to get on well together.[11]On the Saturday afternoon, the appellant and Julie went to her grandmother’s house where he did some decorating. They returned home at about 7 p.m. and found a card from a debt collector about a Girobank debt. That prompted a row that led to Julie remaining at home when the appellant joined her family at the public house that evening. He remained with them there for about 40 minutes. None of them, save possibly one whose evidence was contradictory, noticed any marks on his face. In the course of the evening Julie, clearly very upset, telephoned her sister, Sally, and told her about the debt collector's card. She telephoned her again about midnight saying that she no longer felt upset and that she would telephone her again after 1 p.m. on the following day, Sunday. As we have indicated, Sally was the last member of her family to speak to her, for she made no call on that or any following day.[12]The next player in the story was the debt collector, Mr. Kamara. As we have said, he called at 3 Teilo Street at about 1 p.m. on the Sunday. The appellant came to the door dressed in a T- shirt and shorts and looking very upset. His mouth was quivering and his hands were shaking. He told Mr. Kamara to wait outside for a few minutes and then came out and asked him to drive to the next street, saying that he did not want his family to know about the debt.[13]Keeping to the sequence of events of which evidence was called, Emma Duffy, who, at the first trial, was tendered by the prosecution for cross-examination on behalf of the appellant, and at the second trial gave evidence on his behalf, spoke of seeing Julie on the Sunday afternoon in Teilo Street shortly after a band had passed nearby. There was firm evidence that a band had processed that way in the early afternoon, putting Emma’s evidence of the sighting, if correct, at sometime between 2.30 p.m. and 3.30 p.m. She said that she was playing outside her home, No. 7 Teilo Street, with Sarah Skelland when she saw Julie leave No. 3 and turn left towards a T junction with a street called High Park. She said that Julie was wearing a black skirt and jacket and had a shoulder bag. She then saw a man whom she had not seen before walking behind Julie along Teilo Street and turn left into High Park Street behind her.[14]That afternoon the appellant went shopping and made a timed purchase at a B & Q store in Speke. According to his subsequent account, he visited Julie’s grandmother, returned home at about 6.15 p.m., took the dog for a walk and then washed the back yard. After that, at about 7.15 p.m. he set off for Sally’s house to meet up with Julie.[15]At about 6.50 p.m. on the same day Mrs. Coulthardt, who lived in Elwy Street - which runs parallel to and behind Teilo Street - some doors away from No. 3, smelled an unusual, sickly smell. The prosecution case was that it was the first sign of a fire in the alley and of Julie’s body burning in it. But, depending on how accurate the timings are, at about 7 to 7.30 p.m. that day Mr. Corkhill, who, with his wife, also lived in Elwy Street, put a bag of rubbish into the alley for collection the next morning. When he did so, he saw no other rubbish or fire in the alley.[16]Not long after that, at about 8 p.m., the appellant arrived at Sally’s house and spoke to her and a man called Kenneth Maidment. He told them that he had expected to meet Julie there and that he had last seen her at about 2 p.m. Sally telephoned members of her family, trying to find her. According to her, the appellant expressed no concern as to where she might be. He said that he would go home and see if she was there. Maidment took him back but did not go into the house with him, leaving him there alone for about 45 to 50 minutes before returning to take him back to Sally’s house at about 11 p.m. The prosecution suggested that this visit gave the appellant an opportunity to go into the alley to check on the fire and, if necessary, to stoke it up. Shortly afterward the appellant and Maidment went out again looking unsuccessfully for Julie.[17]Eventually a man called Brian Lloyd drove the appellant home at about 1.30 a.m. With them in the car were Sally, her boyfriend, Brian Cummings, and a woman called Pat Gandy. When they went into the house with the appellant they noticed a sweet, sickly smell. The appellant said that children had been burning rubbish. They saw that the house was very tidy. Sally asked the appellant what Julie had been wearing when she had gone out. He looked at her clothes in the wardrobe and said straightaway that a black jacket and skirt and a blue tracksuit were missing, also a pair of court shoes. Brian Lloyd, Sally, and Pat Gandy left the appellant and Brian Cummings at No. 3 for the night. In the early hours of the morning, following a telephone call from Julie’s father, the appellant and Cummings walked to the house of her grandmother, where she insisted that the appellant should notify the police of her disappearance. The appellant did so at 5.45 a.m.[18]Refuse collectors called to collect the household waste from the residents of Teilo and Elwy Streets each Monday morning. Each of the householders would put out their waste in the alley between the two streets on or before Sunday night or early on the Monday morning. That Monday was no exception, and the refuse men called at about 8.45 a.m. to collect the bags of waste and other rubbish left out in the alley for them. They saw burning rubbish at about the spot where Julie’s body was found two days later but, because it was burning, did not remove it. Nor did they report seeing a body there.[19]Later, sometime after 10 a.m., the appellant returned with his mother to No 3. While there, he went through an entry leading from Teilo Street to Elwy Street and back again. The significance of that, the prosecution suggested, was that the entry formed a junction with the alley running behind the houses in the two streets and the appellant was anxious to look into the alley to see if refuse men had cleared away the remnants of the fire and of his wife’s body. The appellant accepted that he had gone into the entry. He gave no coherent reason for doing so and denied that he had looked into the alley.[20]Meanwhile, other residents of Teilo and Elwy Streets had become conscious of a smell of burning. One had smelled what she described as a horrid, acrid smell of burning just after midnight. And others began to notice it on the Monday morning and throughout the day, worsening as the day wore on. At about 11 a.m. that day Mrs. Corkhill saw a smouldering pile of rubbish in the alley and she and her husband threw water on it. They did not notice a body burning in the fire; nor did anyone else until the body was eventually discovered, very badly burned, two days later on Wednesday afternoon.[21]At 4.15 on the Monday afternoon a boy saw what was later identified as Julie’s handbag in a waste area known as Diggers Park, which is some distance away from 3 Teilo Street and quite close to the garden of the derelict house in South Street, to which we have referred. But his find was not drawn to the attention of the police until the following day.[22]At about 6 p.m. that day, Mrs. Anne Skelland told the appellant that her daughter, Sarah, had told her that she had seen Julie when playing in Teilo Street on Sunday afternoon. As Rose LJ observed, in giving the judgment of the Court on the second appeal, on the face of it, that evidence was hearsay, but it was admitted for such light as it might throw on the appellant’s behaviour at the time.[23]On Monday evening there was an organised family search for Julie, and Brian Cummings spent the night with the appellant at No 3 again.[24]On the Tuesday morning the smell in the vicinity of Teilo and Elwy Streets was still there. One Teilo Street witness spoke of it as a terrible sewer-like smell. At 11. 20 a.m. the appellant spoke to one of the refuse men, Mr. Jackson. He asked him if he had seen anything unusual and told him that the police had found a handbag, make-up bag and shoes on some waste ground. At that time no such items had yet been found by the police or notified to them. It was only at 11.35 a.m. that day that a Mrs Harrison brought them the handbag seen by the boy the previous day at Diggers Park and a court shoe found next to it. And only later in the day were they identified as Julie’s. Her make-up bag was found by the police at Diggers Park at 3.30 p.m. that day.[25]Most of the people who had seen the appellant from the Sunday evening onwards, had noticed marks on his face, including police officers who had seen him on the Monday morning. At about 1 p.m. on Tuesday Dr. Baker examined him at the police station. He found four marks on his face, which he assessed to be two to four days old, consisting of scratches above the left eyebrow and on his left temple and a scratch and a red mark on his nose. The appellant also had bruising on his chest and some older marks on his hand. The appellant told him that one of the marks – the Dr. could not say which – was caused by contact with a wall and one was a cat scratch. Dr. Baker was not able to exclude those explanations, although he said that another possibility was scratching by a human hand.[26]The smell was still there on Tuesday evening. All the time the fire in the alley seems to have continued burning, sometimes merely smouldering sometimes burning as if it had been replenished with more rubbish.[27]The appellant spent Tuesday night with his parents. At about 2 a.m. that night, according to a witness statement of a Mr. Leslie Humphries, which was read to both juries, there was movement in the alley between Teilo and Elwy Streets. His home backed onto one of the entries leading to the alley, and he heard what sounded like two people carrying something and turning into the alley and in the direction of No. 3. The prosecution relied on this account as possible evidence of someone carrying material to replenish the fire. In the light of the potential fresh evidence of William Harris and Clinton Jones on which the appellant seeks to rely in this appeal, it may have a different significance, to which we shall return.[28]On Wednesday morning the appellant returned home briefly to 3 Teilo Street. The fire in the alley was still alive and was then smoking badly.[29]On Wednesday afternoon the appellant made a witness statement to the police. In it he said that the marks to his face resulted from banging against some railings while decorating and the marks to the back of his hands as a result of grazing against a house wall, probably on the previous Friday or Saturday.[30]Also on Wednesday afternoon, Julie’s purse was found in a lay-by and her body was found in the alley. At about 3.30 p.m., Mr. Corkhill, when dousing the fire and stirring it with a stick, found the body in it. Nobody gave evidence of seeing a body in the fire before then. It will be remembered that the refuse men who had called at about 8.45 a.m. on the Monday had not removed the burning rubbish or reported having seen a body in it. And Mrs. Corkhill herself had not seen it when she and her husband had thrown water over it at about 11 a.m. on the Monday. Julie had been a very small woman and the burning had been such as further to reduce her body size.[31]Dr. Burns, a pathologist, said that the body was so badly burned that he could not determine the cause or time of death. He could exclude shooting, stabbing, beating, strangling and poisoning, but drowning or suffocation were possible causes. He was, however, able to say that she had been dead before being put into the fire and that the character and distribution of burning on her body suggested that the fire had been built around her.[32]Dr Davidson, a forensic scientist, said that the fire debris was mostly household rubbish. He concluded from the badly burned remains of the body and its clothing that Julie had been wearing black briefs and the top and bottom of a dark blue tracksuit. He could not tell whether she had also been wearing other items of clothing, namely a dark jacket with yellow paisley lining, black socks or a blue pullover, fragments of which were found in the fire. There was no trace of any shoes. He could see no sign of the use of a fire accelerant. The fire appeared to have been burned slowly and could have sustained itself for two or three days. He said that there was nothing in the remains to connect the appellant with the burning of the body, but that he would not necessarily have expected to find anything if he was. However, he did mention finding in the fire some burnt fabric with an inner mesh lining. He said that it appeared to be from a garment of the same type as two pairs of nylon shorts found in a drawer in the bedroom at Teilo Street. It will be remembered that, according to Mr. Kamara, the appellant had been wearing shorts on the Sunday when he, Mr. Kamara, called at 1 p.m. As will be seen, the appellant in his evidence, maintained that he was wearing jeans, not shorts, and added that he would not have worn shorts in November. He acknowledged, however, that he had three pairs of shorts at the time.[33]Mr. Douglas Leitch, from the Strathclyde Fire Brigade, said that the condition of the body was consistent with it having been destroyed over a period from Sunday to Wednesday. He said that the fire would have required maintenance by the addition of fresh burning material more than once during that period. He expressed the view that rigor mortis had already been present when the body was placed on the fire and explained that normally rigor starts to develop about six hours after death, evidence that was not contradicted by the defence. As Rose LJ pointed in the second appeal, the significance of that evidence was that, if the smell noticed by Mrs. Coulthardt at 6.50 p.m. on the Sunday evening emanated from the burning of Julie’s body, it would have been consistent with her death having occurred before Mr. Kamara found the appellant in a disturbed state at No. 3 Teilo Street at 1 p.m. that day.[34]Dr. Davidson also examined 3 Teilo Street. He found it very clean and orderly, it having apparently been cleaned within the previous two days. Hanging at the top of the stairs were bathroom mats, a carpet and dressing gown, freshly washed and still damp, and there were wet clothes in the washing machine and a wet mop. There was no blood staining or sign of a struggle.[35]At about 10.30 on Wednesday night the police told the appellant that Julie was dead and that her body had been identified. He broke down and cried. The police arrested him for her murder. He said that he had not done it.[36]At about midnight that night Dr. Messing examined him. The Doctor’s evidence was that the injuries to the face were all consistent with having been caused five or six days earlier. They were not consistent with having been caused in the course of decorating as the appellant had maintained. They were consistent with a scratch from a human hand, but there could have been many causes. The mark on his chest was not consistent with having been struck by a ladder as the appellant had claimed. And the marks on his hands were more consistent with human scratches than an abrasion from a wall.[37]The appellant was then repeatedly interviewed, seven times in all. He denied throughout that he had killed Julie. He said that the injuries to his face and hands were caused while decorating, that one of the marks on his face was a cat scratch and another a spot, and that the marks on his chest had been caused by carrying ladders. The defence case[38]The appellant’s case and evidence were as follows. On the Saturday afternoon he and Julie had visited her grandmother at her home, where he did some decorating. He and Julie returned home at about 7. 15 p.m. where they found a card from the debt collector concerning a girobank debt, indicating that he would call again on Sunday at 1 p.m. That prompted an argument between them, which turned into a row. As a result, she did not want to go with him to the public house to meet her family, so he went alone. At that time he already had the marks on his face caused in the way he had explained to the doctors and the police. It will be remembered that none of Julie’s family saw such marks at the time. He went home, arriving at about 10.15 p.m. His relationship with Julie was then back to normal. He was there when she telephoned Sally at about midnight. They went to bed at about 3 a.m. and after some fondling went to sleep about half an hour later.[39]On the Sunday they awoke at about midday. When Mr. Kamara, the debt collector, arrived at about 1 p.m. he, the appellant opened the door. He was not wearing shorts, but jeans and a sweatshirt. He told Mr. Kamara to wait in his car. He did not want him looking at their property in the house. He told Julie who it was and then went out and got into the car. He was apprehensive, but not shivering or shaking. He asked Mr. Kamara to drive to the next street for them to discuss the debt, which Mr. Kamara did.[40]At about 2 p.m. he left Julie in the house to buy some decorating materials. She said that she might stay at home or might go to see her grandmother or meet him at Sally’s home. He bought some decorating materials at the B & Q store and produced a receipt from the store time-stamped at 3.30 p.m. He then went to Julie’s grandmother’s house and after that returned home at about 6.15 p.m. The alarm and the light were on. Nothing had been disturbed. He assumed that Julie had gone to see Sally. He took the dog for a walk. On his return he washed the yard because, he said, there was dog excrement on it. At about 7.15 p.m. he left to go to Sally’s house, arriving there at about 8 p.m. When he saw that Julie was not there, he went home, accepting a lift from Kenneth Maidment. He became extremely worried about Julie and his activity in searching for her thereafter was as described by the various members of the family.[41]As to the appellant’s ability to tell Sally on the Sunday night precisely which of Julie’s clothes were missing, he said that that they had been around the house and he knew that they were missing. He denied having told Mr. Jackson, the refuse man, on the Tuesday morning that items belonging to Julie had been found on some waste ground. And he gave an account of his various minor injuries broadly consistent with that which he had given to the doctors and the police. Ground 1 – the potential evidence of Sarah Skelland[42]In order to understand the first ground of appeal relating to the potential evidence of Sarah Skelland, it is necessary to consider the significance of the evidence of Emma Duffy in the two trials and the events of each insofar as they concerned Sarah. Emma gave evidence at both trials substantially in accordance with her witness statement made shortly after the material events and as we have earlier summarised it. Mr. Richard Henriques, QC, (as he then was) who represented the appellant at both trials and on both appeals, was to submit on the second appeal that her evidence, if accurate or possibly accurate, would have rendered the conviction unsafe. As it happens, neither jury was swayed by Emma’s account of seeing Julie alive at a time after that by which the prosecution alleged the appellant must have killed her. However, Mr.Henriques’ argument was that, had either jury had the benefit of evidence that Sarah might have been able to give, the first or second verdict might have been different.[43]At the first trial, presided over by Waterhouse J. in January 1992, both Emma and Sarah, then aged 10 and 8 respectively, were tendered by the prosecution for cross-examination on behalf of the appellant. Given what they had to say, we do not understand why they were treated as prosecution witnesses at all. Emma had made a witness statement soon after the material events. The Judge, on being informed by counsel for the prosecution that she had not read the statement, indicated, in accordance with normal custom, that she should be permitted to read it before going into the witness box in order to refresh her memory.[44]Sarah, unlike Emma, had not made a witness statement, but the police had interviewed her only three days after the Sunday that Julie had disappeared. One of the interviewing police officers had made notes of the interview, each page of which Sarah and her mother had signed as correct. Her answers as recorded in those signed notes, if put before the jury, could have confirmed the substance of Emma’s witness statement and evidence, though there were some significant discrepancies as to the detail. However, Waterhouse J., on being told that Sarah had not made a witness statement but had simply answered questions in interview by the police, rejected Mr. Henriques’ application that Sarah should be permitted to read the notes of her interview. He may or may not have appreciated that the notes were of the same status as a witness statement in that Sarah and her mother had signed them. However, he was clearly of the view that for a child so young it would not, in any event, be appropriate for her to be shown an aide-memoire of any sort before going into the witness box.[45]Mr. Henriques successfully elicited from Emma in cross-examination as much as or more than he might otherwise have been able to draw from her in chief if she had been a defence witness. However, he did not have the same success with Sarah when she went into the witness box. Pursuant to the Judge’s initial ruling, she, unlike Emma, was not given an opportunity to refresh her memory by reference to the notes before going into the witness box. In addition, she was clearly very distressed at the prospect of giving evidence when she arrived at court. Because of that distress, Mr. Henriques attempted, before Sarah was called to give evidence, to re-open with the Judge the question of showing her the interview notes. The Judge declined to alter his ruling.[46]In cross-examination by Mr. Henriques, Sarah remembered very little of her original account. She said that she could not remember being questioned by the police or when she had last seen Julie save that it was in Teilo Street when she, Julie, was walking on her own. She remembered an occasion when a band had played near Teilo Street, but could not remember having seen Julie on that occasion. Mr. Henriques brought his cross-examination to an end by saying to the Judge that he had explored the matter as far as he could. He had the impression – rightly or wrongly - from his earlier exchanges with the Judge about the interview notes, that the Judge had prohibited him from showing them to Sarah as part of his cross-examination, and he did not attempt to do so. Sarah’s evidence thus did nothing to confirm or otherwise support the account given by Emma.[47]The Judge, in his summing-up, after reminding the jury of the evidence of the two girls, said of Sarah’s inability to remember that it was perfectly understandable for a girl of her age. He then made the following comment on Emma’s evidence:
“… Of course it is not suggested by the prosecution that Emma Duffy is trying to mislead you about the matter but young children do imagine things, particularly when they have been warned against strangers and cars and so forth, and it is suggested that Emma is at best confused. You have to consider the matter in the light of what has been said about the time.”
[48]The jury were clearly not swayed by Emma’s evidence and convicted the appellant.[49]The appellant’s appeal against that conviction was heard in February 1994 by a Court presided over by Russell LJ. He said of Emma’s evidence that it “was plainly important for it struck at the heart of the Crown’s case, namely that if the appellant had committed the murder, Julie Christian must have been dead by about 1.00 p.m. on Sunday 11 th November. Clearly the jury by returning its verdict found themselves unable to accept the testimony of Emma Duffy.”[50]As to Sarah’s evidence, he said that, whether or not Waterhouse J. had appreciated that she had signed the interview notes, the Court could not see any legitimate distinction between a witness statement and a signed record of an interview. He added, however:
“We entirely agree with the learned judge that with a child of such tender years as Sarah …, it was indeed inappropriate to show her her statement before she went into the witness box, though of course if she had been called as a defence witness, the leave of the court for that course would not have been strictly necessary.”
[51]The Court took a different view as to the possible use of the notes in cross-examination. Russell LJ said that had the notes:
“…been put to the witness it may be that her memory would have been refreshed and she would have been able to fill in the gaps which her evidence undoubtedly left. In so doing, it may well be that she would have provided valuable corroboration for the other little girl, Emma Duffy, and it may be that that would then have provided the jury with testimony that would have been worrying, in the light of the crucial finding that the jury had to make as to the time of death. … We are of the view that when cross-examining Mr. Henriques was entitled to use the earlier statement that this girl had made, because what she was telling the jury when she indicated that she could not help as to the time and movement of the deceased on the afternoon was plainly inconsistent with what she had told the police during the course of the interview. So, for whatever reason (and we do not seek to ascribe blame) there was here an unfortunate situation which in our judgment amounted to a material irregularity in the trial process.”
In the result, the Court, after “anxious consideration” ordered a re-trial, commenting that that was a “very unfortunate” outcome, given the passage of time. In so ordering, the Court clearly had in mind that, one way or another, Sarah should have the opportunity to give evidence on the re-trial after having had an opportunity to refresh her memory from the interview notes. Unfortunately, that did not happen because by the time of the re-trial in October 1994, some four years after the event, Sarah was unable to recall anything of the matter with or without the notes, and so was not called as a witness.[52]At the second trial, presided over by McCullough J. in October 1994, and in the light of the views expressed by the Court of Appeal in the first appeal, it was intended and expected that both Emma Duffy and Sarah Skelland would be called as defence witnesses. Mr. Henriques, again for the defence, did call Emma, who by then was aged fourteen. She gave evidence largely in accordance with her original witness statement and her evidence at the first trial. Mr. Henriques did not, however call Sarah to give evidence. It appears that after proper enquiries had been made of her through and in the presence of her parents, and despite having the notes of her interview read to her, she had lost all recollection of the material events in November 1990 and also of the police interview of her. In the circumstances, Mr. Henriques could see no point in calling her to give evidence.[53]McCullough J., in his summing-up dealt with the significance and possible effect of the evidence of another child then aged 15 and of Emma in the following way:
“… Emma Duffy, now fourteen, was then ten. In deciding what weight to give to their evidence you will want to take their ages into account. Children of such an age may be very good witnesses, able both to observe things and to recount them later with great accuracy, but there is always a risk that their evidence may be inaccurate. This is a risk, of course, that you face with adult witnesses but it is increased in the case of children. As you will know from your own experience, children have a greater capacity for imagination than grown-ups. The younger the child the greater the capacity. Sometimes, as your own experience of life will have told you, it is difficult to know what reliance to place on what one’s own young children say. It is more difficult to know what reliance to place on the evidence of a child whom one does not know. …. The defence say Emma Duffy has the day right – the day of the Orange march, and she has got the time right – 3 o’clock, plus or minus half an hour, because that is all confirmed by the police officer at the head of the parade. So they invite you to say, how, possibly, can Emma Duffy be wrong? And if she might be right, then Julie Christian was alive at that time. One possibility for your consideration will no doubt be whether Emma Duffy has simply run two quite different occasions together in all innocence in her mind; the Orange march on the Sunday afternoon and seeing Julie leave her house when she was in the street on some other occasion.”
[54]The nearest the jury got to discovering what Sarah might have been able to say, had she been called to give evidence with her memory refreshed, was in the evidence of her mother, Anne Skelland, of which the McCullough J. reminded the jury in the following passage:
“Anne Skelland says that she thinks it was at about 6 p.m. when she told the defendant that her own daughter, Sarah, said that she had seen Julie when the children were playing in the street between two and four on Sunday afternoon. Sarah Skelland herself, the daughter, did not give evidence so, as I told you at the time, that is not evidence that Sarah Skelland did see Julie then. Its relevance is merely that the defendant was told that at that stage.”
[55]The second jury, like the first, were not put in doubt by Emma Duffy’s evidence, and convicted the appellant.[56]The single ground of appeal from that conviction was that the decision of the prosecution at the first trial to treat both Emma and Sarah as prosecution witnesses had effectively deprived the defence of interviewing and treating them as defence witnesses. The result, it was claimed, was the loss of a likelihood of Sarah giving evidence in accordance with her initial account. Rose LJ, giving the judgment of the Court, clearly appreciated that the complaint embraced the conduct of the prosecution at both trials. He described the nature of the complaint in relation to Sarah’s potential evidence as follows:
“… if she had been able to give evidence, her memory having been refreshed by the interview with the police, this would have established that Emma Duffy had not made any mistake of significance in relation to her evidence placing the deceased in the street between 2.30 and 3.30 p.m. on the Sunday. The appellant was, in consequence, prejudiced by the prosecution’s decision to make these girls two prosecution witnesses at the first trial – as we have indicated, they were both tendered for cross-examination by the prosecution. Had they not been prosecution witnesses, they could have been interviewed by the defence solicitors and would probably both have given evidence in the same terms as their statements to the police. Because Sarah was not, by the time of the retrial, able to recollect or give any material evidence, this Court should regard the conviction on the second occasion as being unsafe.”
[57]As Rose LJ indicated later in the Court’s judgment, the appellant’s complaint, as Mr. Henriques developed it in argument, encompassed delay and possible abuse of process. “What he submitted … is whether what really had gone wrong in this case was that there was a delay between the taking of the statements in November 1990 and the time of the first trial in January 1992 which has operated to the prejudice of the defendant. It has to be said, so far as that is concerned, that there does not at any stage appear to have been any invitation to the trial judge or otherwise to regard such delay as amounting to an abuse of the process of the court such as would afford the defendant grounds for effective complaint. It may be, submits Mr. Henriques, that prejudice results from the prosecution having initially indicated an intention to call the two girls, Had they not done so, the defence could have interviewed the girls and refreshed, intermittently, the recollection of Sarah in particular. He accepts that it was in fact open to the defence to interview the girls. But, he says, this would have been asking too much of the defence solicitors because it was of crucial importance that the two girls should be seen to be independent of each other; the tactical advantage of being able to cross-examine the girls would also have been lost; and that to interview them might have been dangerous, lest it be thought that the defence solicitors played a part in the two girls giving similar evidence. ”[58]Then Rose LJ turned to what he called to “the heart of Mr. Henriques’ submission:
“It did not depend on whether Sarah would have given evidence in accordance with her police interview at the first trial. But what he invites this Court to say is that the conviction at the second trial is unsafe because of what is in the recorded police interview with the girl on 14 th November 1990. He accepts that there was no irregularity at the second trial to use the terms of the recently repealed provisions of the Criminal Appeal Act 1968. But, he submits, the conviction was unsafe by reason of what, on balance, this girl Sarah would have said either had she entered the witness box within a reasonable time of first being interviewed, or had she had her memory refreshed at regular intervals. He accepted that there was no decision of this Court of which he knew in which a lack of safety in the conviction had been founded upon inadmissible evidence. …”
[59]The Court rejected the proposition that a conviction could be set aside upon the basis of inadmissible evidence:
“In our judgment there is no basis on which this conviction can properly be regarded as unsafe. In his attractive and skilful submissions, Mr. Henriques accepted, as we have said, that he could not point to any irregularity or to anything which could be said to have gone wrong in the second trial. The summing-up, he accepts, was meticulous. What was missing from the second trial, as from the first, was any evidence helpful to the defence from Sarah Skelland. The absence of any such evidence was, as at the first trial, due to her complete inability to recall any potentially material events and, at the second trial, she was not called at all. This being so, we are unable to accept that this Court should entertain doubt about the safety of the conviction on the basis of material, namely Sarah’s interview by the police, which, being hearsay, was not and could not be before the jury and which is not and cannot be evidence before this Court. The retrial ordered by the Court of Appeal following the irregularity in the first trial was in order to enable Sarah to give evidence after she had refreshed her memory from the contents of the interview, the assumption being that she might, in such circumstances, be able to give evidence helpful to the defence. As it turned out, this proved impossible at the second trial because she had no relevant recollection at all. … it cannot … be right for this Court, in the circumstances of the present, to rely, in assessing the safety of the conviction, on the terms of an interview with a witness unable to recollect and give evidence about the events to which the interview related. Such reliance would confer unwarranted status on inadmissible material of questionable value and would be an inappropriate means of undermining the jury’s verdict reached on properly admissible evidence. In any event, … two juries have clearly not accepted the evidence of Emma, to which, whatever its status, Sarah’s interview was only capable of affording ancillary support. There is, as it seems to us, ample reason to justify the jury in not accepting Emma’s account; in particular, at the time the body was burnt the deceased was wearing the top and bottom of her blue tracksuit. The description of her clothing given by both girls is not consistent with that. There was, in our judgment, a strong circumstantial case against the appellant …”
[60]The first ground of appeal before this Court, as before the second Court of Appeal, concerns the inability of the defence at both trials to put Sarah’s evidence before the jury, her memory having been refreshed by the notes of her interview. As we have said, it is not one of the reasons given by the Commission for the reference. However, the Court, by section 14(5) of the Criminal Appeal Act 1995 Act, may, as a feature of its own jurisdiction, consider any ground of appeal relating to the conviction whether or not the ground relates to any of the Commission’s reasons for the reference.[61]The appellant’s complaint is essentially one of abuse of process. Mr. Michael Mansfield, QC, who now appears for him, submitted that the conviction in the second trial was unsafe because of a combination of delay and procedural errors in both trials. He maintained that the appellant had been prejudiced in that he had been denied the right, through counsel, at the first trial, to cross-examine Sarah by reference to the interview notes and, at the second trial, of the opportunity to examine her by reference to them. As to the first trial, this complaint refers to Mr. Henriques’ possibly mistaken interpretation of Waterhouse J’s ruling as prohibiting him from putting the interview notes to Sarah in cross-examination, and from Russell LJ’s ruling in the first appeal that he had been entitled to do so. As to the second trial, the complaint is that when it became apparent that Sarah could no longer remember anything material, even with the assistance of the interview notes, and that the Court of Appeal’s intention had thus been frustrated, Mr. Henriques should have applied to McCullough J. to stay the proceedings as an abuse of process.[62]Mr. Mansfield urged the Court in considering this history of events, to have regard “as a matter of background and context” to recent recommendations of the Law Commission and in the Report of the Criminal Courts Review to amend the law to render witness statements admissible. He said that if such recommendations had been implemented at the time of the second trial, the notes of Sarah’s interview could have been put before the jury. As a result, he maintained, the second Court of Appeal would have been able to consider the safety of the conviction in the light of that evidence and would have allowed the appeal.[63]Mr. Mansfield has thus invited this Court – as the second Court of Appeal was invited - to look at the whole history of the matter and not just to focus on the second trial. He said that, as a result of a number of mistakes and delays, both juries were prevented from hearing the critical evidence of Sarah, resulting overall in an unfair trial process. The mistakes and delays on which he relied were as follows: failure of the prosecution at the first trial to consider in good time the status of Emma and Sarah as witnesses and to make them available as defence witnesses rather than tendering them as prosecution witnesses; failure of the defence to take the point; an erroneous ruling at the first trial or its misinterpretation by Mr. Henriques preventing him from cross-examining Sarah by reference to the interview notes; two years delay between the alleged offence in 1990 and the first trial in 1992; further delay of two years between the first trial and the first appeal hearing in February 1994; further delay before the second trial in October 1994; Mr. Henriques’ inability during the second trial to apply for its stay as an abuse of process; and further delay before the second appeal in March.1996. Mr. Mansfield submitted that if this Court, in the light of all or some of those matters, concludes that the trial process overall has been unfair, such unfairness would render the second conviction unsafe. He maintained that the circumstantial evidence relied on by the prosecution could not outweigh the evidence of Emma and the potential evidence of Sarah if accepted by a jury.[64]The first matter for consideration under this ground of appeal, given its procedural route to the Court by reference under sections 9 -13 of the 1995 Act, is whether the Court is bound by the ruling of the second Court of Appeal declining to set aside the conviction on the basis of inadmissible evidence, namely the notes of the interview of Sarah.[65]Mr. Mansfield made two submissions about this. First, he said that the Court has jurisdiction to re-open the matter of Sarah’s unavailability to give evidence at the second trial under the statutory provisions for reference since it turns on a different argument from that considered by the second Court of Appeal. The new argument is that the whole history of the matter resulting in Sarah’s evidence being lost to the defence case made the second trial an abuse of process despite the best intention of the first Court of Appeal. He drew back from an earlier argument that the abuse resulted from a failure by Mr. Henriques to apply at the second trial for a stay of process because of his inability to put Sarah’s evidence before the jury. He acknowledged that such an application would have been difficult in the light of the first Court of Appeal’s order of a re-trial. However, he relied on the fact that Mr. Henriques had not felt able to make such an application and the fact that the damage – i.e. the inability to convert Sarah’s initial memory into evidence – had been done long before. He said that Mr. Henriques had not advanced such an argument to the second Court of Appeal. He maintained that this is a different issue from that on which that Court’s decision turned, namely whether it could rely on inadmissible evidence to declare the second conviction unsafe.[66]Mr. Mansfield said that he was not inviting this Court to assess the safety of the conviction on the strength of inadmissible evidence, but against the availability at the time of potentially admissible evidence. In summary, he said that if the first Court of Appeal felt obliged to set aside the conviction for want of the potential evidence of Sarah, and that, despite its order of re-trial to give the defence the opportunity to call such evidence, the jury at the second trial did not hear it, its verdict must be unsafe.[67]Second, Mr. Mansfield submitted that even if his argument is not new, the Court should exceptionally reconsider the matter since the question of abuse of process, though mentioned by Mr. Henriques in argument and referred to by the Court in its judgment on the second appeal, was not fully or positively developed in argument. Cf. R v. Bentley ( Deceased ) [2001] 1 Cr. App. R 307, CA, per Lord Bingham CJ at para. 80. He acknowledged that this Court should be cautious about reconsidering the issue, but contended that the events leading to the second conviction were highly unusual and damaging to the interest of the appellant. His argument was that if the information available in the notes of Sarah’s interview had been before the second jury, “it might have tipped the scale” in favour of acquittal.[68]Mr. Andrew Edis, QC, for the respondent, submitted that the second Court of Appeal, having decided that the conviction was safe despite the absence of evidence from Sarah at the second trial, the issue raised before this Court, however it is expressed, has been decided. As to Mr. Mansfield’s contention that his is a new argument which, if made to the second Court of Appeal, must have succeeded, Mr. Edis maintained that there is nothing new about it. The complaint was the same then as it is now, subject only to the refinement that it is suggested, albeit softly, that defence counsel at the second trial should have considered applying for a stay of the trial as an abuse of process. As Mr. Edis observed, since such reasoning presupposes that such a submission would have succeeded, it is hard to see how a failure to make it could have been other than incompetent. However, it is not any such possible incompetence, but the consequence of it, that matters, and he submitted that it is most unlikely that McCullough J would have granted a stay on that basis.[69]Mr. Edis. acknowledged that the Court has power on a reference to consider an issue again even where there is no new evidence or argument, but maintained that it can do so only in exceptional circumstances as identified by the Commission or, if not so identified, in at least equally exceptional circumstances identified by the Court. He added that the jurisdiction to quash a conviction earlier upheld by the Court where there is no new argument or evidence should be invoked with great circumspection. He said that his researches had failed to reveal any case in which the Court has quashed a conviction on a ground that had previously failed before a differently constituted Court of Appeal. He said that where, as here, the Commission has not exercised its power to make a reference in the absence of new argument or evidence, the Court should in its discretion apply the principles underlying its general approach to appeals. He added that, in doing so, it should have in mind the important policy considerations underlying the doctrines of estoppel and stare decisis, which are central to the legal system.[70]On that basis, he submitted that, in the absence of any new argument or evidence on this issue or any change in the law, there are no circumstances that would justify this Court in declaring the decision of the second Court of Appeal to have been wrong. In any event, he submitted, the second Court of Appeal’s decision was correct on this issue for the reasons they gave. He said that this Court should only depart from it if it is of the view that the absence of evidence from Sarah at the second trial renders the conviction unsafe and that, therefore, the second Court of Appeal’s decision was clearly wrong. Nothing less will do, for example, a feeling that, at trial, the verdict might have gone the other way or that the converse would have been more arguable. Such features are relevant to the grant of leave to appeal in every case, but do not govern the re-argument on a second appeal by way of reference of old points on an earlier appeal.[71]In our view, there is no new argument here. As Mr. Mansfield acknowledged, Mr. Henriques did not complain to the second Court of Appeal of any irregularity in the second trial and he, Mr. Mansfield did not submit that the second Court of Appeal was wrong in its reasoning. Rose LJ, in the passages from judgment that we have set out, was clearly alive to the possibility of an abuse argument before the Judge, but noted that no such application had been made because, seemingly, the defence had not regarded the delay and circumstances as sufficient to amount to an abuse. It is true that Rose LJ concluded the judgment by dismissing the appeal on the comparatively narrow ground that the Court could not rely on inadmissible evidence in the form of the interview notes to undermine the jury’s verdict on admissible evidence. However, it is plain that the Court did so in the context of considering and rejecting the broader argument advanced by Mr. Henriques in, as Rose LJ described it, “the heart of his submission”, that, notwithstanding the lack of an abuse application to McCullough J, there had been an abuse of process for the reasons advanced in that submission.[72]The Court’s jurisdiction and duty on a reference, as in an ordinary appeal, is to consider the safety of the conviction. Section 9(2) of the 1995 Act provides that a conviction reference shall be treated “for all purposes” as an appeal under section 1 of the 1968 Act. Section 13(1) of the 1995 Act empowers the Commission to make a reference if it considers that there is a real possibility that the Court would not uphold a conviction in the event of a reference because of a new argument or evidence. Section13(2) empowers it “in exceptional circumstances” to make such a reference even where there is no new argument or evidence and, by necessary implication, acknowledges or extends the power of the Court in exceptional circumstances to depart from its previous decision where there is no new argument or evidence. The Commission clearly did not consider there to be such exceptional circumstances here. Nor did it regard the Sarah Skelland issue as a reason for the reference, although it had considered the material facts relating to it. Nevertheless, as we have said, the Court is not confined on an appeal by way of reference to grounds based on the Commission’s reasons for the reference.[73]The Court, in the exercise of its overriding power and duty to consider the safety of the verdict, is not bound under the reference procedure by the rule in R v. Pinfold (1988) 87 Cr. App. R. 15, CA, that it cannot re-open its previous determinations on the merits. If and to the extent that issue estoppel may be a feature of the criminal law, as distinct from and in addition to result estoppel in the form of pleas of autrefois convict and autrefois acquit (see Connelly v. DPP . [1964] AC 1254, HL, and DPP v. Humphrys [1977] AC 1, HL), the reference procedure is capable in appropriate circumstances of overcoming it. However, in the absence of new argument or evidence, the proper exercise of the Court’s power to depart from its previous reasoning or conclusions should, we believe, equally be confined to “exceptional circumstances”; see e.g. R v. Chard (1984) 78 Cr. App. R 106, per Lord Diplock at 113, under the former procedure of reference by the Home Secretary:
“… the Court that hears the reference will give weight to the previous judgment, from which it will be very slow to differ, unless it is persuaded that some cogent argument that had not been advanced at the previous hearing would, if it had been properly developed at such hearing, have resulted in the appeal against conviction being allowed.”
[74]It is difficult, to envisage what other such circumstances might be; see Taylor on Appeals (2000), at page 449. Mr. Edis drew our attention to one possibility, with which we agree, suggested by Sir Frederick Crawford, the Chairman of the Commission, when giving evidence to the Home Affairs Sub-Committee, namely, some form of jurisprudential “drift” where the Court has developed the law by accepting an argument that it had previously rejected. In the absence of such exceptionality the Court should apply the principles which underlie its general approach to appeals. There may be others, arising, for example, out of possible tension between the statutory criterion for safety of a conviction and the ECHR concept of a fair trial. However, the exceptional circumstances, whatever they are, would have to be such as would convince the Court that if the matter had been arguable and argued in that way before the previous Court, it would - not might - have quashed the conviction. The Court should in any such cases be very slow to differ from its previous judgment.[75]We share the view of the Commission that there are no circumstances, exceptional or otherwise, to justify reconsideration of this issue. Although Emma Duffy appears to have given a clear account to both juries, both must have found her evidence unpersuasive when considered against the strong circumstantial prosecution evidence. As Mr. Rodney Klevan, QC, argued on behalf of the Crown on the second appeal, Emma Duffy was not only the elder of the two girls by almost two years, but she was also potentially the better of the two witnesses. Her recollection was more detailed and spontaneous; there were significant discrepancies in the detail of their accounts; and, given that Emma’s account had been rejected by two juries, even had Sarah been able to recollect and give material evidence, it would have been most unlikely to have affected the jury’s conclusion. But the challenge is not as to the conduct of the second trial or as to the second Court of Appeal’s ruling upholding the conviction. It is to the failure of defence counsel to apply for a stay of the second trial as an abuse of process because, the second jury did not have the benefit of Sarah’s evidence with her memory refreshed or restored by sight of the interview notes. In substance it is the same point as that relied upon before the second Court of Appeal, which, as is apparent from the judgment of Rose LJ, did not sway the Court.[76]In any event, as Mr. Edis has pointed out, to succeed on such an argument, the appellant would have to show that an abuse application, if made, would have succeeded or that it would have failed on such grounds that the second Court of Appeal would have quashed any conviction. In the context here, the appellant would have to show that McCullough J would have granted an application for a stay if made and that defence counsel’s failure to make it had, in consequence, been so incompetent as to undermine the safety of the conviction; see e.g. R v. Ciinton (1993) 97 Cr. App.R. 320, CA. Given the discretionary nature of the courts’ abuse jurisdiction, the Court could not possibly say that. Put more broadly, there is clearly nothing exceptional about the circumstances relating to this ground of appeal, whether by necessary implication from section 13(2) of the 1995 Act or under the Court’s general statutory jurisdiction, that would enable this Court to overrule the correct decision of the second Court of Appeal’s on the same facts and essentially the same argument. Ground 2 – fresh evidence of the finding of the dead body of a woman away from the alley[77]The second ground of appeal, which is one of the Commission’s two reasons for making the reference, depends on the receipt of fresh evidence. It goes to the prosecution argument at trial that the closeness of the body to 3 Teilo Street pointed to the appellant having murdered Julie in the house rather than to a stranger killing her in a chance encounter elsewhere. The fact that the Commission has included potential fresh evidence as one of the reasons for its reference does not dispense with the need to obtain a decision of the Court whether to receive it under Section 23 of the 1968 Act.[78]The appellant seeks to rely on fresh evidence derived from partly disclosed prosecution material at trial that two young boys, William Harris and Clinton Jones, claimed to have seen a dead body on waste ground some 500 yards from Teilo Street in the afternoon of the Tuesday after Julie’s disappearance. We say “partly” disclosed because the Commission, in paragraph 11.2 of its Statement of Reasons, mistakenly concluded that there had been no disclosure of the police incident report of a telephone call from William Harris’s mother, Mrs. Maria Harris, about her son’s sight of a human leg in the South Street garden. In fact, the appellant’s solicitor was given access to this record before the first trial. It is not known whether he inspected it or if, having done so, he was alive to the possible significance now attached to it. Whether or not, for those reasons, some of the material was available for use at both trials, we consider that we should concentrate on the other factors in section 23(2) of the 1968 Act in deciding whether to receive as fresh evidence the accounts since provided by the boys.[79]It is argued that such evidence, if received, would suggest that Julie had been murdered outside the alley, and would give fresh significance to the evidence of Mr. Humphries at trial of hearing movements in the entry leading to the alley between Teilo and Elwy Streets at about 2 a.m. on the Wednesday after Julie’s disappearance.[80]The circumstances giving rise to the proposed fresh evidence, in a little more detail, are as follows. Police records available at the time of the first trial and, as we have said, disclosed to the appellant’s solicitor, show that Mrs. Harris, who lived nearby, telephoned the police on the afternoon of the Wednesday following Julie’s disappearance. She informed them that her nine years old son, William, and his school friend, Clinton Jones, aged seven, had seen a clothed human leg the previous afternoon in the garden of the derelict house in South Street. A policeman went with Mrs. Harris that afternoon to look in the garden, but saw no signs of a body. By that time, of course the remains of Julie had been discovered in the alley. The officer reported the matter to his superior who took no further action. As a result, no statements were then taken from the two boys and, although Mrs. Harris’s telephone call and the reporting officer’s visit to the site, which had been logged, were identifiable on a log of telephone calls disclosed to the defence, there was nothing about the report to relate it to Julie’s death.[81]Mr. Mansfield submitted that, in the light of the potential evidence of the two boys, there is a possibility that Julie was murdered by someone other than the appellant in a chance encounter in the neighbourhood, that her body was initially left in the garden of the derelict house in South Street where the body was seen by them on Tuesday afternoon and that the killer then moved the body into the alley in the early hours of Wednesday morning.[82]The Commission interviewed Mrs. Harris and William, in December 1997. Mrs. Harris made a written statement recalling William telling her on the Tuesday afternoon of having seen the naked body of a white woman in the garden of the derelict house in South Street. She explained her delay in informing the police on her initial disbelief and said that she only did so the Wednesday at her son’s insistence.[83]William also made a written statement in which he claimed to have seen a woman’s body lying face down in the garden, in thick nettles. He stated that he had clearly seen one leg and a foot, which were unclothed. He added that he had made a 999 call from a nearby telephone box, that the person at the other end had told him not to waste their time and that he then went home and told his mother, who did not at that stage believe him.[84]Clinton Jones made a written statement to the Commission in June 1998 having come forward in response to a television broadcast that month of a programme in a series called “Clear My Name”. His statement was broadly the same as that of William Harris, though there were some differences of detail. He stated that William had tripped over some bin bags in the garden under which there had been a body, of which he had seen a hand and a wrist. He added that he had been scared and had run home and, because of his fear, had never told anyone about it.[85]We have heard evidence from Mrs. Harris, her son, William, and Clinton Jones with a view to considering whether to receive it under Section 23 of the 1968 Act.[86]Mrs. Harris’s evidence accorded broadly with her witness statement, though she amplified it by saying that William had mentioned having seen a leg or an arm and that the woman had long, dark hair. She said that, after she had told William she didn’t believe him, he went out for an hour or so, and that, on his return, he told her he had telephoned the police from an outside call box and had been told off for talking rubbish.[87]William Harris said that on the day in question he had arrived home from school at about 5 p.m. Shortly afterwards Clinton Jones met him outside his house and they began to play a chasing game called “Tig”, which took them into the garden of the derelict house in South Street. Clinton saw the body first. He shouted “There’s a body”, and ran. He, William, then saw the naked body of a woman with long hair lying face down in and partly obscured by a clump of nettles. It was not partly covered with bin bags. He left within seconds and made a 999 telephone call from a nearby telephone box (a call of which there is no trace on police telephone records). The person to whom he spoke told him he was lying and that it was an offence to make lying telephone calls. He put the receiver down and went home and told his mother what he had seen. At first, she did not believe him, but she eventually telephoned the police. He and Clinton never spoke to each other about what they had seen.[88]Clinton Jones said that William had called at his house at or about 4 p.m. and that they went out to play Tig. The game took them into the garden of the derelict house where one or other of them tripped over some black bin bags. There was a body under the bin bags. He saw an unclothed pale white arm and shoulder. After a few seconds he ran off home. He told no one what he had seen, not even his mother, until many years later.[89]Mr. Edis submitted that this evidence is unreliable but that, even if credible and accurate, it would not afford any ground for allowing the appeal. He pointed to inconsistencies between Mrs Harris’ initial version to the police of what William told her he had seen and her subsequent accounts of it. He drew attention also to the differing accounts of each boy on different occasions and as between the two of them of the sighting of the naked body, and also as to the inconsistency of their accounts with the evidence of the clothing on Julie’s burned body when discovered on the fire. He maintained that the theory advanced by Mr. Mansfield could not account for the strong probative body of evidence of the strong and sickly smell of what can only have been a body burning in the alley way from the evening of Sunday to Wednesday afternoon when the badly burned and reduced body of Julie was found in the fire. Finally, he urged the inherent unlikelihood of some chance killer of Julie initially dumping her body in a derelict garden where she lay undiscovered until late Tuesday afternoon and then, on Tuesday night, while the search for her as a missing person was on, moving the body back to the alley behind her home and proceeding to burn it there.[90]In our view, there is force in those submissions. The evidence of Mrs. Harris, her son, William, and Clinton Jones lacks reliability, not so much because the three witnesses are untruthful, but because their differing accounts, now and then, are of such poor quality as to suggest an unsureness as to precisely what was seen in the greying light of a mid November afternoon in an untidy garden of a derelict house. Their evidence is also inconsistent with prosecution evidence. Even if the sighting was of a dead and naked body or part of one, it does not overcome, as Mr. Edis has submitted, the weight of evidence of an evil smelling fire burning in the alley behind Teilo Street for some three days after Julie was last seen alive and in which her badly burned and clothed body was eventually discovered.[91]In our view, it is not a realistic possibility that a killer, whether the appellant or another, would have initially deposited the barely concealed and naked body of Julie in a derelict garden some 500 yards from her home and then, while the hunt for her was on, returned the body to an alley behind her home, re-clothed it and then put it on the fire. It is true that one would not normally expect a man who had just killed his companion to attempt to burn her body in a public alley close by their home. However, the evidence more closely matches the prosecution case that this was an unplanned killing followed by a panic stricken attempt quickly to dispose of the body by a man who had no car and no other means of removing the body far from the house without discovery. The evidence of Mr. Kamara, the debt collector, is particularly significant in this context. Both the method and location of the disposal of the body point to the guilt of the appellant rather than of anyone else. For those reasons and also because of the very strong circumstantial evidence supporting the prosecution case, we are of the view that the proposed fresh evidence, even if credible and reliable, would not have afforded a reason for regarding the conviction as unsafe. Accordingly, we do not receive the evidence under the provisions of section 23 of the 1968 Act. Ground 3 – fresh scientific evidence[92]The third ground of appeal, coupled with an application to the Court to receive fresh evidence, is based on the second of the Commission’s two reasons for making the reference. We deal with it separately for convenience of presentation, but it is largely bound up with the success or failure of the second ground of appeal, since it goes to the theory that someone other than the appellant killed Julie away from her home and brought the body back to the alley to be burned. As we have said, Dr. Burns, the prosecution pathologist, in spite of the damaged condition of the body, gave uncontradicted evidence excluding as causes of death shooting, stabbing, beating, strangling or poisoning, but indicated suffocation or drowning as possible causes, tending to point to a domestic killing by the appellant rather than with some other form of attack away from home.[93]The appellant’s solicitors have since obtained reports from Dr. Roger Berrett, a former principal scientist at the Metropolitan Police Science Laboratory, and Professor J. Crane, State Pathologist for Northern Ireland.[94]Dr. Berrett is of the view that the blood on the clothing on the body was ante-mortem, thus conflicting with Dr. Burns’ evidence as to the possible cause of death. As to the length of time the body may have been burning, he acknowledges the difficulty of any firm assessment independently of external evidence. But his opinion is that the body was more likely to have been placed on the fire about 12 hours before its discovery than to have been burning on it for about three days.[95]Professor Crane also challenges Dr. Burns’ opinion that the only candidates for cause of death are suffocation or drowning. His view is that, given the severity of the burns, it is not possible to exclude a head injury or stab wounds and that it is not possible to say whether the blood staining on the clothing is ante- or post-mortem. As to the length of time the body was on the fire, he states the obvious that the severity of the burns did not necessarily indicate that the body had been burning for several days before its discovery; much depends on the severity of the fire.[96]Dr. Berrett’s opinion that blood on the clothing was ante-mortem and Professor Crane’s allowance of the possibility of some other cause of death than suffocation or drowning are, by their very nature of limited value. But they are also peripheral to the real issue on this appeal, which is more concerned with who killed Julie than precisely how she was killed. And the difficulty about their thoughts as to the length of time for which the body may have been burning, apart from their inevitably speculative nature, is the unchallenged evidence of Dr. Burns that the character and distribution of the burning on the body suggested that the fire had been built around it rather than it having been placed on an already burning fire. All the experts agree that the damage to the body was capable of having been caused by burning for 12 or more hours on a fire, so, at best, these views of Dr. Berrett and Professor Crane are neutral.[97]The Commission’s comment in its Statement of Reasons on these matters, insofar as they go to where the murder took place, was:
“… There appears to be common ground amongst the experts that it is notoriously difficult to establish, or give an opinion about, the length of time that a fire may have been burning and, by the same token, how long a body may have been on a fire. It appears to the Commission that to a significant extent such an opinion is necessarily informed by the existence, if any, of evidence external to the fire itself. At trial, the prosecution expert witnesses gave their opinion that the body had been on the fire for something in the order of three days. In Dr Berrett’s opinion, (which is not shared by the other experts), the body had been on the fire for between 8 and 16 hours. The Commission does not regard Dr Berrett as providing fresh evidence which, of itself, calls into question the safety of the conviction or indeed provides intrinsically more reliable evidence about the burning time than was given at trial. The expert evidence now available is however material to the assessment of the significance of the non-disclosure [i.e. of William Harris’s and Clinton Jones’ sighting of a body] and the implications that had for the defence case.”
[98]In the ordinary way the existence of a reasonable explanation for not calling evidence at the trial, to which the Court should have regard when considering whether to receive fresh evidence, has more ready application to factual evidence than to scientific evidence since expert witnesses, though varying in standing and experience, are interchangeable in a way in which factual experts are not; see per Lord Bingham CJ in R v. Steven Jones [1997] 1 Cr. App.R. 86. However, it may be that since a trial there has been an advance in scientific knowledge or, as Mr. Mansfield contended here, the evidence sought to be relied on has a new significance prompted by some fresh argument or evidence which the Court is considering. However, even if we had decided to receive the evidence of the two boys, we do not consider that this “new” material, if received as fresh evidence, would afford any ground for allowing the appeal. It is, as Mr. Mansfield conceded in argument, speculative in the sense that all the fire experts who gave evidence in both trials acknowledged that their evidence should give way to reliable eye or nose witness evidence as to the duration and nature of the fire. It is also peripheral in that the pathologist’s evidence went to the method of killing, which was never ascertained, rather than the identity of the killer.[99]For those reasons, and because of the weight of the circumstantial evidence against the appellant, looked at a whole, we do not consider that the reception of such evidence would have afforded any reason for considering the conviction to be unsafe, and we do not receive it.[100]We have referred more than once to the strength of the circumstantial evidence of the appellant’s guilt, quite apart from the matters on which the grounds of appeal have focused. As we have noted, Rose LJ, in his concluding remarks of the second Court of Appeal’s judgment, expressed the view that there was a strong circumstantial case against the appellant. We are of the same view, fortified by Mr. Edis’s thorough and compelling analysis of it in his submissions to the Court. We mention, in particular: the serious argument between the appellant and Julie on the Saturday night; the nature and timing of the appellant’s injuries and his differing and unconvincing explanations for them; the appellant’s appearance and behaviour on Sunday at 1 p.m. when Mr. Kamara, the debt collector, called and his subsequent lie as to what he had wearing at the time; the appellant’s washing of the bath mats, tidying of the house and washing of the back yard; the appellant’s conduct thereafter in seemingly establishing an alibi; his immediate ability on the Sunday night to identify which of Julie’s clothes were missing; his delay in reporting Julie’s disappearance to the police; the evidence of the fire and the nauseous smell emanating from it over the next three days; his opportunities to replenish the fire; and his curious conversation with Mr. Jackson on the Tuesday morning.[101]For all those reasons we do not consider the appellant’s conviction to be unsafe and, accordingly, we dismiss the appeal.

Cited in 3 later judgments