Pinfold & Anor v R [2003] EWCA Crim 3643

Case No 2001/04324/D2Case No 2001/04325/D2[2003] EWCA Crim 3643
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON A REFERENCE FROM THE CRIMINAL
CASES REVIEW COMMISSION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 December 2003
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE AIKENSMR JUSTICE DAVIS
Between
(1) Terence Joseph PinfoldAppellants(2) Henry Jeremiah MacKenneyAppellantReginaRespondent
Mr Edward Fitzgerald QC and Mr Paul Taylor (instructed by Levy & Co) for 1 st AppellantMr Rock Tansey QC and Mr Tim Moloney (instructed by ) for 2 nd AppellantMiss Yvonne Coen QC (instructed by the Crown) for RespondentHearing Hearing dates : Tuesday 28 to Thursday 30 October 2003
JUDGMENTThe Lord Chief Justice:Introduction
[1]This appeal relates to six murders committed between 1974 and 1978. John Bruce Childs pleaded guilty to those murders.[2]Childs gave evidence at the trial of his co-accused. His co-accused included the appellants Terence Joseph Pinfold and Henry Jeremiah MacKenney. Pinfold was convicted on the first count, the murder of Terence Eve, but acquitted of three other charges, the murders of George Brett and Robert Brown and doing an act with intent to impede the apprehension or prosecution of another in relation to the murder of Terence Brett. MacKenney was acquitted of the murder of Terence Eve and Robert Brown but found guilty of the murders of George Brett (count 3), Terence Brett (count 4), Frederick Sherwood (count 6) and Ronald Andrews (count 7). Two other co-accuseds, Paul Morton-Thurtle and Leonard Thompson were not found guilty of any of the murders.[3]The trial judge was the late Mr Justice May, subsequently Lord Justice May. He summed up to the jury from the 24-27 November 1980. His summing up was impeccable. It has not been criticised and in a previous unsuccessful appeal by the two appellants, (1983) 76 Crim. Appeal Reports at p278, it was justifiably described as "outstanding for its clarity and conciseness, and was wholly fair in its presentation of the prosecution and the defence cases. It was no doubt of immense value to the jury in the discharge of their difficult and very responsible task."[4]Both appellants have made numerous unsuccessful attempts to have their convictions set aside since they were convicted. However, by a decision dated 31 July 2001 the Criminal Cases Review Commission referred the appellants’ convictions to this Court under Section 9 of the Criminal Appeal Act 1995 on the grounds that there is a real possibility that the convictions will not be upheld by this Court.[5]The prosecution’s case depended upon the evidence of Childs being accepted by the jury. In addition to being an accomplice, Childs, even at trial, was a very unsatisfactory witness. It is clear that the jury were not prepared to convict any of the defendants unless there was corroboration of his evidence. In fact, the jury convicted the appellants of the offences in relation to which there was corroboration and acquitted them of the offences in relation to which there was no corroboration.[6]The appellants now seek to rely on a considerable quantity of fresh evidence, including retractions by Childs of his evidence incriminating the appellants at the trial, to show that the convictions are unsafe. The question for this Court is whether, as Childs was already discredited and the jury only convicted where there was corroboration after the clearest of warnings by the judge of the dangers of convicting in the absence of corroboration, it is right for this Court to say that the convictions are unsafe?[7]The appellants also rely on allegations of nondisclosure, by the prosecution, of material information. In support of these additional grounds the Court had the advantage of the very detailed written submissions of Mr Rock Tansey QC who appeared for Pinfold. We did not, however, hear oral argument on those particular grounds. In view of the conclusion which we have reached on the credibility issue, it was not necessary for us to do so. Nonetheless, we are able to say that, notwithstanding the written submissions, our preliminary view is that the allegations of non-disclosure are not impressive. The Legal Issues[8]The submissions made by Mr Fitzgerald QC on behalf of MacKenney, by Mr Tansey QC on behalf of Pinfold and Miss Yvonne Coen QC on behalf of the prosecution differ as to what is the appropriate standard to apply as to: i. The admissibility of medical evidence as to Childs’ ability to give credible evidence and the difficulty in detecting that his evidence was not reliable. ii. The evidence of post-trial retractions made by Childs, both orally and in writing in statements and correspondence. iii. The confessions made by Childs of other offences, including murders.[9]Guidance as to the approach to adopt to fresh evidence is provided by Section 23 Criminal Appeal Act 1968. Under Section 23(1) (c) the court has a general discretion to admit evidence if the court thinks, "it is necessary or expedient in the interests of justice" so to do. In deciding how to exercise its discretion, the court has to comply with Section 23(2). That subsection provides:
"(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to – (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
[10]As Mr Fitzgerald submitted, it is important to note that, while it is necessary to have regard to the requirements set out in the subsection, the Court can admit the evidence even if the requirements in Section 23(2) are not all complied with. Whether this Court will be prepared to disregard the absence of compliance will very much depend on which of the four categories in Section 23 (2) there has been non-compliance. It would, for example, be pointless to admit evidence which the court already regarded as being incapable of belief because such evidence would presumably not affect the outcome of an appeal. The position is similar where the evidence would be inadmissible. However, the position is not so clear in relation to (d). If the fresh evidence is highly persuasive, the failure to adduce the evidence at the trial may not decisive. See R v Koerns [2000] Crim LR 473 and Lattimore [1975] 62 Cr App R 53.[11]The latter case is particularly relevant in the context of the present appeal because there is no doubt that certain of the evidence that the appellants would now wish to rely upon could have been adduced before the jury on behalf of the defence. It is therefore important to have in mind the general approach indicated by Lord Justice Edmund Davies in Stafford [1968] 3AER 751 at 752, where he stated, " . . . public mischief would ensue and legal process could become indefinitely prolonged were it the case that evidence produced at any time would generally be admitted by this Court when verdicts are being reviewed". (See generally Blackstone’s Criminal Practice 2003 D24.17.)[12]Where the court decides to receive evidence, it uses that evidence to determine whether a conviction is "unsafe". The position is now clearly set out by Lord Bingham of Cornhill in R v Pendleton [2002] 1 WLR 72 at 83, para 19. Lord Bingham refers to the central role of a jury in a criminal trial. He also draws attention to the fact that in Stafford v Director Public Prosecutions [1974] AC 878 the House of Lords rightly rejected the submission of counsel that the Court of Appeal in Stafford had asked the wrong question by taking as the test the effect of the fresh evidence on their mind and not the effect that the evidence would have had on the mind of the jury. As the House of Lords pointed out in Stafford, it would be anomalous for the court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. However, Lord Bingham (in Pendleton) then acknowledged that there are two reasons for remembering the central role of the jury at the trial and why the proper test that the Court of Appeal must apply is whether the conviction is safe, not whether the accused is guilty:
"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 process 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."
[13]This approach usefully combines the fact that it is the responsibility of the Court of Appeal to decide whether a conviction is safe or unsafe with the fact that, despite this, it is important to preserve within the criminal process the primary responsibility of juries to determine issues of innocence or guilt.[14]Turning to the question of the admissibility of expert medical evidence to assist the jury as to the weight, if any, to be attached to the evidence of a particular witness, it is important to appreciate that the approach of this court has over the years developed and is now more generous towards the admission of expert evidence than was once the case. Lord Justice Roch refers to this in R v O’Brien (25 January 2000) (No. 98/6926/27/28 SI) in relation to medical evidence: (at p19) "At one time the law was thought to be that expert evidence of the kind we have heard could only be admitted if that evidence showed a recognised mental illness, this being the interpretation placed upon R v Turner [1975] QB 834. It has now been accepted that expert evidence is admissible if it demonstrates some form of abnormality relevant to the reliability of a defendant’s confession or evidence, see for example R v Ward [1993] 96 Crim App R 1. In the case of Ward at page 66 this court said:
"But we conclude on the authorities as they now stand that the expert evidence of a psychiatrist or a psychologist may properly be admitted if it is to the effect that a defendant is suffering from a condition not properly described as mental illness, but from a personality disorder so severe as properly to be categorised as mental disorder."
Despite what was said there in the case of Ward, the test cannot, in our judgment, be whether the abnormality fits into some recognised category, such as anti-social personality disorder. That is neither necessary nor sufficient. It is not necessary, because as R v Roberts showed, the real criterion must simply be whether the abnormal disorder might render the confession or evidence unreliable. It is not sufficient because an anti social personality disorder does not necessarily mean that the defendant is a compulsive liar or fantasist or that his confession or evidence might be unreliable. The members of this Court, as were all counsel who addressed us, are conscious of the need to have defined limits for the case in which expert evidence of the kind we have heard may be used. First the abnormal disorder must not only be of the type which might render a confession or evidence unreliable, there must also be a very significant deviation from the norm shown. In this case the abnormalities identified by the experts were of a very high level, Hall’s test results falling within the top few percentiles of the population. Second, there should be a history pre-dating the making of the admissions or the giving of evidence which is not based solely on a history given by the subject, which points to or explains the abnormality of abnormalities. If such evidence is admitted, the jury must be directed that they are not obliged to accept such evidence. They should consider it if they think it right to do so, as throwing light on the personality of the defendant and bringing to their attention aspects of that personality of which they might otherwise have been unaware."[15]That quotation reflects the present approach to the relevance and admissibility of expert evidence. The same approach applies whether the expert evidence that is being considered relates to a witness or a defendant. However, especially in the case of a witness it is necessary to take into account the importance of the evidence that the witness gives. If the evidence of the witness is of little significance to the issues at the trial, the admission of expert evidence is unlikely to be justified. This approach has to be contrasted with the more restrictive approach adopted by May J and the Court of Appeal in this case. (See (1980) 72 Cr App R 78 and (1981) 76 Cr App R 271.) Miss Coen accepts that, since the date of the trial, there has been a greater willingness to accept medical expert evidence on the issue of the credibility of a witness than existed at the time of those decisions. However, in view of the decision in R v Fell [2001] EWCA Crim 696, she contends that the expert evidence has to be based on a physical examination of the witness whose credibility is being impugned before it can be admitted.[16]In this case the medical evidence which the appellants now want to rely on does not comply with the usual requirement that the expert evidence should be based on an examination of the witness. However, it is our view that while, of course, the court will carefully scrutinise medical evidence before deciding whether it should be admitted, the absence of an examination of a witness or defendant concerned cannot be decisive in determining the admissibility of the expert evidence. The Court has to determine whether the evidence could be considered credible evidence by the jury as to an abnormality from which the witness suffered at the time of giving evidence and which might mean that the jury would not attach the weight it would otherwise do to the witness’s evidence. The absence of an examination by the expert goes to the weight to be attached to the expert’s opinion and not to the admissibility of that opinion. What a court must be on its guard against is any attempt to detract from the jury’s task of finding for themselves what evidence to believe. The court should therefore not allow evidence to be placed before the jury which does not allege any medical abnormality as the basis for the evidence of a witness being approached with particular caution by the jury. Ultimately, it remains the jury’s task to decide for themselves whether they believe a witness’ testimony. The Facts[17]Before proceeding further it is necessary to outline as briefly as possible the remarkable history which results in this case coming before this Court.[18]It was on 4 December 1979 that Childs pleaded guilty to the six murders. Count 1 related to the murder of Terence Eve. The appellant Pinfold was also found guilty of this offence but MacKenney was found not guilty. Count 2 related to the murder of George Brett, count 3 related to the murder of Terence Brett (who was the son of George Brett), count 6 related to the murder of Fred Sherwood and count 7 related to the murder of Ronald Andrews. Pinfold was acquitted of the murder of George Brett and Robert Brown. He was also acquitted of doing an act with intent to impede the apprehension or prosecution of another in relation to the murder of Terence Brett. MacKenney, in addition to being acquitted of the murder of Terence Eve, was acquitted of the murder of Robert Brown but was found guilty of the murders of George and Terence Brett, Frederick Sherwood and Ronald Andrews. Two other accused Paul Morton-Thurtle and Leonard Thompson were respectively found not guilty of the murders of Frederick Sherwood and George Brett. In addition to pleading guilty to the murders, Childs also pleaded guilty to robbery and asked for 24 other offences to be taken into consideration. They covered conspiracy to murder, robbery, grievous bodily harm, theft, conspiracy to rob, conspiracy to commit arson, conspiracy to defraud and possession of firearms and ammunition.[19]The appellants having been convicted, appealed to this Court. On 11 November 1981 the full court dismissed their appeals against conviction. In 1988 the court refused a second application for leave to appeal against conviction by Pinfold holding that it had no jurisdiction to entertain a second application. Protracted attempts were made by the appellants to persuade the Home Secretary to refer their convictions back to this Court but those applications were unsuccessful.[20]In order to reach our decision it is necessary to examine the prosecution’s case against the appellants. It starts with the appellants being in business together since 1965, manufacturing life jackets.[21]In 1972, they formed a company (HJ Marine) and took occupation of a factory unit in Haydon Road, Dagenham. By 1974, Terence Eve was engaged in the manufacture of soft toys within that factory. On his release from prison in August 1974, Childs was also working there. Initially Terence Eve’s manufacturing business was his own but in July 1974, it was registered as a partnership between Terence Eve and Pinfold’s wife. On 4 November 1974 that business was incorporated, with Pinfold’s wife as sole director and the owner of 99% of the issued shares. So already Pinfold, through his wife, had effective control of the business.[22]Childs said that by the autumn of 1974, HJ Marine’s life jacket manufacturing business was far from busy. There had been a number of discussions between the appellants and Childs as to "getting rid" of Terence Eve as Pinfold wished to run the soft toy business for himself. Pinfold had not been keen on merely throwing him out of the factory as he thought that Terence Eve would enlist the aid of his family to wreak some sort of revenge. The discussions turned to the permanent removal of Terence Eve and it was agreed that Childs and MacKenney would undertake the task of killing him. Pinfold said that he would register Terence Eve’s business in his wife’s name and give each of the appellants £100 per week out of the profits. They then considered how the deed was to be done. Suggestions that he be killed in the van were discarded. Childs eventually insisted that it had to be done in the factory. Pinfold agreed provided the body was not left there. He put forward the suggestion that the body should be disposed of by the use of an industrial mincing machine. Pinfold was the group’s policy-maker. Between them, they had agreed that the story to cover Terence Eve’s disappearance would be that he had money troubles and, in particular, owed money to MacKenney, who, if unpaid, was likely to give him a "good hiding".[23]At about 7.30pm on 1 November 1974, Terence Eve had left home in a van belonging to the business. His wife understood he intended to meet someone at The Barn Restaurant, where he made regular deliveries. Childs said that Terence Eve had made a delivery to The Barn Restaurant and had returned to the factory at about midnight. Although he could have left the van parked and put the keys through the letterbox and there had been no other apparent reason for him to do so, he had gone into the factory. MacKenney had let him into a covered alleyway, where Childs was hidden behind a curtain, had bolted the door behind him, and had started to beat Terence Eve with a length of hydraulic hose, to which were attached two heavy nuts. Childs emerged from his hiding place and had hit Terence Eve twice in the face with a hammer. Both weapons were used again by the assailants until Terence Eve, lying on the floor, was rendered all but unconscious. MacKenney then began to strangle him with a rope which he had been carrying.[24]At this point, Robert Brown (the alleged victim of count 5), who lived in the factory and who had been disturbed by the noise, came into the factory from the room he occupied and shouted to find out what was going on. Childs went into the factory, threatened Brown with the hammer he was carrying, and shepherded him back into his room, instructing Brown to bolt the door and to stay there. By the time Childs returned to the scene of the murder, he thought that Terence Eve was dead. The alleyway was covered in blood. He threw several buckets of water over the walls and one over MacKenney. Both stripped off and MacKenney used his clothes to block the gap at the bottom of the door to prevent the bloodstained water from running into the car park. They continued cleaning up until the following morning when Pinfold was contacted by telephone and asked to come to the factory. He arrived between 8.00 and 8.30am. He did not wish to know the details but asked where the body was and whether the factory was clear as he had employees attending for work that morning.[25]The recollections of those employees as to the events of the morning were not consistent with Childs’ account. Terence Eve’s mother did work at the factory that morning; his wife, having said in a pre-trial statement that she had also, at trial said that she could not remember; Mrs Myers said that she did not work that morning; her daughter had gone to the factory but, as there was nothing to do, had left. None had seen Pinfold at the factory that morning. According to Childs, after an argument as to whether the women could be allowed to work in the factory that morning, it had been agreed that Pinfold would give materials to those of the employees who turned up so that they could work at home. Pinfold had also told them where there was a 5-gallon drum of sulphuric acid which he and MacKenney had used to wash down the alleyway.[26]Childs said that on Saturday evening he and MacKenney had put Terence Eve’s body, wrapped in a tarpaulin, into the boot of MacKenney’s car and had taken it to Childs’ flat. He gave a graphic description of the attempts which (according to Childs) they made to dismember and dispose of the body. The mincing machine (obtained by Pinfold) was ineffective, its motor not being compatible with a domestic electricity supply. Other means also proved ineffective and, ultimately, they had burnt the corpse in pieces in the grate, a task which had taken nearly four days.[27]Turning to counts 2 and 3 (in respect of which MacKenney alone was convicted). The background facts are that George Brett lived with his wife and two children on a farm near Southend. The co-accused Thompson who lived nearby was his landlord. There was a substantial history of aggravation between the two men which had culminated in an incident on 4 October 1973, when, in the course of an assault on Brett, Thompson’s skull had been fractured by a blow administered by Brett with an iron bar. Thompson had later been convicted of malicious wounding and had received a suspended sentence of imprisonment. Two extensive and thorough searches of Thompson’s premises in the years following the disappearance of George Brett and his son had revealed nothing connecting Thompson to their disappearances save a letter written to a family friend in which Thompson had expressed his malevolent intentions as to Brett.[28]Mrs Brett said that her husband had started his own haulage business in 1972. On 2 January 1975, he had been away on a job. He had taken their 10-year-old son, Terry, with him, as he often did. That afternoon a man, calling himself Jennings, had come to the farm with a view to discussing a haulage job with Mr Brett. After further telephone contact, ‘Jennings’ had called at the farm on Saturday, 4 January. Mrs Brett thought he had been driving a dark-coloured Jaguar car. Her husband had left in his blue Mercedes car, taking Terry with him and a portion of washing line as a towrope to start Jennings’ Jaguar car. She had never seen either again. Mr Brett’s Mercedes car was found in a car park at Kings Cross Station on 7 January. In its boot was the length of washing line. Forensic examination of the car disclosed nothing of relevance.[29]Childs said that he had posed as ‘Jennings’. Pinfold had told him that a man referred to as "Big Lennie" (a friend of MacKenney’s) wanted a man with whom he had had a fight killed. MacKenney had identified the intended victim to him as Brett, saying that ‘Lennie’ had been hit over the head with an iron bar by Brett. MacKenney said that he had agreed a fee of £2,000 (later reduced to £1,800 and the supply of the murder weapon, a stengun).[30]Some days after MacKenney had collected the stengun and ammunition he had taken Childs in MacKenney’s Jaguar car to show him where ‘Lennie’ lived. As they approached the area Childs hid in the boot of the car. Had MacKenney and Pinfold been arrested following the intended killing, the idea was that Childs would kill ‘Lennie’. On the return journey MacKenney confirmed that he had collected the agreed fee and, at Childs’ flat, the money was divided into three and £600 was given to Childs.[31]Knowing that Brett was a haulier, the plan was to offer him a bogus haulage job and to lure him to the Dagenham factory to price it. This led to Childs’ visit to the Brett’s farm in MacKenney’s black Jaguar, fitted with false number plates. Brett (with his young son) in his blue Mercedes had followed Childs to the factory in Dagenham. Inside the factory MacKenney had shot Brett twice in the head with the stengun. Having done so, he had then shot the boy as he was held by Childs. Childs and MacKenney had argued about the killing of the boy which Childs thought unnecessary. Pinfold was summoned by telephone to the factory and asked to deal with Brett’s Mercedes car. The two bodies were taken to the compressor shed at the back of the factory where MacKenney sawed off the legs from Brett’s body. Both bodies were put in dustbins and transported to Childs’ flat in his van. They laid plastic sheeting where needed and dismembered both bodies, burning them in the grate, a process which took the rest of that weekend. Ultimately, the ashes had been emptied into the canal.[32]Later forensic examination of Childs’ flat had revealed a dustbin in the pram store which had traces of human blood of Group A on the lid. Brett’s blood group was A; the group belonging to 42% of the population.[33]A witness, Mrs Williams recounted a conversation she had had with MacKenney late one night in her flat. While MacKenney had made no admission as to the killing of Brett, he had said that he deserved to die, having beaten up his friend. She accepted that she had not previously given details of this conversation. MacKenney had been her friend and she had helped him while he was "on the run". He had said that all the allegations against him were untrue.[34]As neither of the appellants had been found guilty of count 5 it is not necessary to refer to that count but as to counts 6 and 7 (the murders of Sherwood and Andrews respectively), of which MacKenney only was found guilty, in relation to count 6, the picture that the evidence of the prosecution revealed is that following a move from London to Herne Bay in 1972, Sherwood and his wife had started to lead increasingly separate lives. They had converted one of their properties into a rest home for the elderly which Mrs Sherwood ran while her husband carried on a separate business in other premises in Herne Bay. In 1976, they had purchased another property which was also used as a rest home. The co-accused Morton-Thurtle had been the builder whom Sherwood had engaged to carry out substantial building works to that property. Those works had not gone smoothly but, in the summer of 1978, Morton-Thurtle had purchased the Sherwoods’ first rest home from them.[35]At about 6.30pm on 1st August 1978, Sherwood had left home in his white Rover car. He had told his wife that he had someone who was interested in buying it from him. She had not seen him again.[36]Childs said that he had first encountered Morton-Thurtle, whom he knew as Paul Hammond, in 1975 when there had been some discussions about killing people. Six or eight weeks before Sherwood’s disappearance, he and MacKenney had obtained the contract for his killing. They were to be paid a total of £4,000 (which they intended to split equally) by instalments, the first payment being £750. He and MacKenney had reconnoitred Herne Bay twice with a view to establishing where best to carry out the killing. On 1 August, having been told that Sherwood was selling his car for £1,000, they travelled together in MacKenney’s car to Herne Bay. Childs was disguised. Sherwood was not at home so Childs used the telephone at Sherwood’s home to make an arrangement to meet that evening at 6.30pm. That evening, Childs returned to Sherwood’s home and met him. He showed him £500 in cash and said that he wanted to test drive the car to London. They had driven to MacKenney’s home (behind the Dagenham factory). While Sherwood was counting money, MacKenney had shot him in the back of the head. This first shot had passed through Sherwood’s head, shattering a glass which Childs had been holding in his hand, before hitting a table. Sherwood rose up and turned towards MacKenney. Childs had picked up a hammer and hit Sherwood on the head. He fell to the floor and MacKenney then shot him again in the head. They had cut the legs off the body before transporting it to Childs’ flat in his van. They had disposed of the body in the same manner as the others. MacKenney had dumped Sherwood’s car.[37]Mrs Sherwood had seen a man using the telephone in her home on the morning of 1st August. Mr Guymer had spoken to Sherwood before he drove off on the evening of 1st August in his Rover car. He thought there was a male passenger in the car. Miss Doran had also seen Sherwood driving off in the Rover but thought that he was alone.[38]Turning to the final count (count 7 involving MacKenney), the murder of Ronald Andrews, the background was that MacKenney had been having an affair with Mr Andrews’ wife, Gwen. MacKenney had told Childs that he intended to kill Andrews and enlisted Childs’ assistance. They had had numerous discussions and negotiations about it. Ultimately, Childs had received a fee of £400 six or seven weeks before the murder.[39]As a known friend of the family, MacKenney had made a statement following Andrews’ disappearance. He had referred to the matrimonial difficulties which he knew existed but said nothing of his own feelings for Mrs Andrews. In an interview, he had said that the Andrews had been close friends for many years and, following Andrews’ disappearance, his relationship with Mrs Andrews was like brother and sister.[40]A room had been booked for MacKenney at a motel in Essex for the night of 11 October 1978. The receptionist (who knew MacKenney) saw him arrive with Mrs Andrews at about 11.00am and go towards the room which had been booked. There was no record of a table reservation in the restaurant. According to Childs, MacKenney’s plan was to exacerbate the relations between Andrews and his wife so that his disappearance might be explicable as a desire to get away from her. He had asked both Childs and Childs’ wife to make calls to the Andrews’ home so that each would have suspicions about the other’s conduct. Tina Childs had written a postcard to Andrews, at MacKenney’s behest, in terms which purported to come from a girlfriend. It had been posted in Wisbech on 5 September 1978.[41]The second part of the plan was to ensure that Andrews’ death looked accidental - mere disappearance was inadequate, as suspicions would focus on MacKenney in view of his relationship with Mrs Andrews. Having carried out a reconnaissance, it was decided to drive Andrews’ car into the River Nene near Wisbech, hoping that it would be thought that Andrews had taken a bend too fast and crashed into the river.[42]MacKenney brought Andrews to Childs’ flat on the evening of 13 October 1978 in Andrews’ car. Once at the flat MacKenney shot him in the back of the head with a .38 revolver. At about 8.30 to 9.00pm they then set out to drive to Wisbech, MacKenney driving Andrews’ car (a Lincoln Continental) with Childs following in his van. MacKenney was wearing a diver’s wet suit and had, among other things, a facemask and breathing equipment. The journey took about 2 hours. Once at the previously chosen spot outside Wisbech, MacKenney drove the Lincoln into the river while Childs waited to pick him up. MacKenney told him that because it was low tide, he had had to accelerate the car to get it to cross the mud into the river. The car had not floated but had sunk immediately and turned over. MacKenney had waited for it to flood before escaping but had had some difficulty in climbing out of the river because of the mud. They had then returned to Childs’ flat where they had dismembered and burnt Andrews’ body.[43]In September 1979 MacKenney was arrested. Prior to his arrest he had been keeping out of sight first in France and then in Stratford. While in Stratford he was visited by Mrs Williams and her husband who were old friends. Mrs Williams gave evidence that while her husband was asleep, MacKenney had told her of his love for Mrs Andrews. He explained that he had killed Andrews and how he had nearly killed himself driving the car into the river. He also told her that Childs had helped him, that he intended to have him certified so that he could not give evidence against him and that his story would be that Childs’ wife was having an affair with Mr Andrews and that is why it was Childs alone who had killed Mr Andrews. There was also evidence from a Mr Hawksbee who said that MacKenney, around Christmas 1978, had told him that if asked where he (MacKenney) was on 13 October 1978 that he should say that MacKenney had been with him (Mr Hawksbee), thus giving MacKenney an alibi.[44]Pinfold stated that on the morning when Childs had said that he had been at the factory discussing arrangements for the disposal of Terence Eve’s body he had in fact been at Clacton, with his wife and children, visiting his parents-in-law. He also gave evidence that there was no reason for him to offer any payment or compensation to Terence Eve’s wife in respect of the soft-toy business.[45]In his evidence, MacKenney disputed that the evidence showed that George and Terence Brett were dead. He also called some evidence to show that the Brett’s were not dead. He also relied upon alibi evidence.[46]The charges of which the appellants were acquitted make it clear that the jury heeded the warning of May J as to the dangers of acting on Childs’ evidence where it was not corroborated. However, the corroboration which was relied upon was not particularly impressive except (perhaps) in relation to count 7. Despite this the appellants accept that the matters put forward at the trial as corroboration were, in law, capable of being so and would have justified the jury convicting on the counts which they did if the evidence of Childs had been credible. The appellants also acknowledged that May J paid particular attention in his summing up to the obvious shortcomings of Childs as a witness.[47]As to count 7 it could be said that the evidence of Mrs Williams of MacKenney’s confession of having killed Mr Andrews could in itself justify his being found guilty independently of the evidence of Childs. However, Miss Coen very properly accepts (although she did not appear in the court below) that as the prosecution had been presented on the basis that a jury could not properly convict unless they were prepared to attach at least some weight to Childs’ evidence the conviction on count 7 could only be upheld on this basis. Furthermore, this is the way in which the jury were directed by May J. Accordingly, we consider that it would be inappropriate, even if we were otherwise minded to do so, to distinguish the position as to count 7 from the other counts because of Mrs Williams’ evidence. The Fresh Medical Evidence[48]On 6 October 1980 an application was made on behalf of the appellant to adjourn the trial so that Childs could be examined by a psychiatrist. The judge agreed that the examination could take place (although without an adjournment), but ruled that:
"...one must confine the extent of psychiatric evidence called in criminal trials strictly within the limits laid down by Lord Pearce in Toohey’s case [49 Cr App R 148 at 162-163]. If one did not one would almost have trial by psychiatrist rather than trial by jury. There is no express material before me that Childs is suffering from any mental disease, defect or abnormality of mind that might affect the reliability of his evidence..."
[49]Childs then refused such an examination, despite having agreed to one at the committal hearing. Notwithstanding Childs’ refusal to cooperate, a psychological report was prepared. The report was prepared by Mr Barry Irving. Mr Irving held a master’s degree in Social Psychology and was a member of the permanent research staff at the Tavistock Institute of Human Relations. He had acted as an expert adviser on legal psychological issues for the six years prior to the appellants’ trial.[50]In his report Mr Irving stated at the outset that whilst he had been considerably hampered in his task by:
"... being refused access to Childs and his close associates, I have been able to observe Childs’ examination-in-chief and his cross-examination by Mr Mansfield and to analyse relevant witness statements, depositions etc. Even though these sources of data are limited, I find that what I have observed is sufficiently consistent to come to certain limited conclusions..."
[51]In summary, the conclusions Mr Irving reached are:
"The constellation of behaviour characteristics which Childs manifests fits closely with the general syndrome referred to.... as psychopathy...on the balance of probabilities the disordered nature of Childs’ behaviour and social sense is sufficient to call into doubt the reliability of his testimony... that because of the nature of Childs’ personality and his characteristic response to social situations, including the task of responding to cross-examination, the jury are deprived of many of the normal methods by which the lay observer judges the credibility of a statement."
[52]Mr Irving then sets out the factors exhibited by Childs that support his diagnosis. They are:(a) Emotional instability and impulsiveness;(b) Inability to empathise or make allowances for the needs and feelings of others;(c) Anti-social acts; and(d) Lack of shame or guilt.[53]Based upon these factors Mr Irving inferred that there seemed to be sufficient evidence to suggest that Childs suffered from a personality disorder and his behaviour was psychopathic. The effect of this diagnosis on Childs’ ability to give reliable evidence was then considered by Mr Irving and he stated that:
"Childs’ personality characteristics taken together, and separately, are such that they necessarily cast some doubt on his reliability as a witness..."
[54]Mr Irving added that it is his opinion that Childs’ mental state meant that his demeanour and behaviour in giving evidence would not betray the usual indications to the jury as to when he was lying. He stated that severely psychopathic individuals " . . . may deliver statements in a bizarre and eccentric fashion, but they do not exhibit the signs of lying which allow detection from the manner in which evidence is given. The lack of coherent physiological response to fabrication affects not only the mechanical lie-detector, it is also bound to confuse the naive human observer." He argued "that because I believe Childs to be severely psychopathic insofar as he shows an abnormal lack of reaction to social pressures, he will not exhibit to the court any of the normal externally observable signs of fabrication upon which the jury depend to detect lying from the witness’s demeanour."[55]On 5 November 1980, May J decided that Mr Irving’s evidence was not admissible. On the approach to the admissibility of medical evidence that should be adopted today, we consider that now, despite the views of the Court of Appeal on the previous appeal in this case to the contrary, the evidence of Mr Irving’s evidence is to be regarded as admissible given the circumstances of this particular case. Accordingly we take it into account in so far as it is necessary to do so.[56]In deciding whether a conviction is safe on a reference by the Criminal Cases Review Commission we have to have regard to the evidence that is properly available to us. If evidence was not admitted at an earlier trial because of the then approach to the admissibility of evidence we cannot ignore the evidence if it would be regarded as admissible and relevant today.[57]However, we consider these references can be determined without coming to any independent conclusion as to the validity of Mr Irving’s opinion because of the evidence that we have heard from Dr Somekh who is a forensic psychiatrist approved under section of the Mental Health Act 1983. His evidence is very similar to that which was ruled inadmissible in the case of Mr Irving. He has also not examined Childs, since in view of Childs’ present state of health no purpose would be served in his doing so. Despite this Dr Somekh considered there is such a volume of evidence available in this case that it is possible to make a "reasonable" diagnosis and his diagnosis is that Childs suffered from a severe personality disorder which is a life long condition.[58]Dr Somekh described in answers in evidence the consequences of the condition so far as the credibility of Childs is concerned in these terms; "A. ... Hence often they will tip over into psychosis. The problem is that the truth and lies become very difficult for them to distinguish, hence that it will be observed that they are frequently inconsistent. Q. So is there a high risk of fabrication with someone suffering from this disorder than with ordinary people? A. Very much so. … A. ... I believe that because of the nature of the disturbance of emotional development, individuals like Mr Childs do not react in the same way as other might under pressure and it therefore would be very difficult for either a lay person or a professional to determine at any particular point whether that person was lying or not. Q. What is your view as to the reliability of Mr Childs when he is giving accounts of past events – either evidence in court or later in correspondence etc? A. I think to say that he was extremely unreliable would be to understate the issue. In my view, given the severe nature of the disturbance of personality, I feel, as I said in my report, I feel that his evidence would be wholly unreliable."[59]We heard Dr Somekh’s evidence without first determining its admissibility. We are satisfied that we should treat it as fresh evidence that is admissible on this appeal. In view of the unsuccessful attempt to have Mr Irving’s evidence admitted at the trial and the unsuccessful appeal, the unavailability of the evidence earlier is not to be criticised; despite Miss Coen’s cross- examination we found the evidence credible and we believe it could have influenced the decision of the jury and so it is in the interests of justice that it is admitted. As to the weight to be attached to the evidence we have very much in mind Miss Coen’s submissions. The Other Fresh Evidence[60]In addition to the medical evidence, the appellants relied on other fresh evidence. They wished this court to hear evidence directed to the practicality of burning bodies as described by Childs in a domestic hearth. For this purpose they wished to introduce the evidence of Mr Williamson, an Assistant Chief Fire Officer. If the appellants had wished to introduce evidence of this nature at the trial they could have done so and we can see no justification for permitting its introduction now. To do so would be to allow the appellants, for no good reason, to have the best of both worlds. They will have avoided the risks involved in introducing the evidence at the trial but they would have had the benefit of it on this appeal. As we have pointed out, the issue to be determined here is the whether the convictions are unsafe. In doing that, as Lord Bingham stated in Pendleton, (see para 12 above) the Court of Appeal will test its own provisional view of whether the new evidence if given at the trial might reasonably have affected the decision of a jury to convict.[61]Evidence was also placed before us to suggest that the victim of count 1, Terence Eve, was still alive after the date of the murder as alleged by the prosecution and allegations of non-disclosure were made in relation to this count; but we do not feel they assist us to determine the outcome of these appeals.[62]Since the trial Childs has made a number of statements which are in themselves in conflict with each other but most importantly are in conflict with his evidence at the trial as to the responsibility of the appellants for the crimes of which they have been convicted. The retractions were made by Childs to the police and to other witnesses. They are contained in statements and in correspondence. While, as Miss Coen submits, the statements can usually properly be described as hearsay as to the truth of the facts stated in them, the statements are undoubtedly admissible as to the fact that they were made. The statements detract further from the credibility of Childs and confirm the medical evidence that he is a pathological liar. Particular reliance is placed on his confessions of having committed other horrific murders and acts of violence which are inconsistent with his evidence at the trial that he did not commit this category offence on his own. In addition, there are the statements made in correspondence written by Childs which Childs was not to know would feature in possible appeals. These statements are also inconsistent with the appellants being guilty as he had alleged at the trial.[63]As Miss Coen forcefully submits, there is a need for a degree of certainty and finality to attach to a jury’s verdict; and she also stresses that there can be considerable advantages to an offender, who having given evidence on behalf of the prosecution and having received credit for doing so, then re-establishes himself with his fellow offenders by renouncing his evidence after their trial. We are alert to that danger. However, on the other hand it is important that convictions that are unsafe are not allowed to stand. In many cases the problem is not as acute as in this case because if the convictions are quashed the court can order a retrial. That course is not a viable possibility in this case because Childs could not give evidence at a retrial and in any event it would not be just to retry the appellants so long after the original trial; particularly when Pinfold indeed has already been released from custody. The issue is not as to their guilt or innocence but the safety of their convictions. This has to be determined by this Court in the manner indicated by Lord Bingham in the passage we have cited earlier. Our Conclusion[64]Without usurping the function and decision of the jury because we base our decision on evidence that was not available to the jury, we have come to the conclusion that these convictions are unsafe. We say this despite the fact that we cannot determine where the truth lies as to these murders. However, in the light of the whole of the fresh evidence that we have before us, considered in the context of the evidence at the trial we have come to the conclusion that Childs’ evidence is so unreliable that it is worthless. The appellants’ convictions depended on Childs’ evidence. The evidence of Childs had some corroboration but (as Ms Coen accepted) if there is no evidence capable of belief to be corroborated this does not assist the prosecution. The appellants’ convictions are quashed.

Cited in 7 later judgments