Cummiskey, R v [2003] EWCA Crim 3933

Case No 200102815 B2

[2003] EWCA Crim 3933

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 27th November 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE KAY

MR JUSTICE GIBBS

MR JUSTICE RODERICK EVANS

Between

R E G I N ACrown

-v-

Between

JOHN JOSEPH CUMMISKEY

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MR J H B SAUNDERS QC appeared for APPELLANT

MR C HOTTEN QC appeared for CROWN

J U D G M E N T

Thursday, 27th November 2003

LORD JUSTICE KAY:

[1]On 24th July 1985 in the Crown Court at Birmingham before McCullough J and a jury, following a 17 day re-trial, the appellant was convicted by a majority of eleven to one of offences of robbery and possession of firearms with intent to commit indictable offences. He was sentenced to 15 years' imprisonment for the robbery and 7 years' imprisonment concurrent for the other offence.

[2]Tried with him was a man called Roy Meads, who was similarly convicted and similarly sentenced. There were other men involved, although in different capacities.

[3]There have been previous proceedings that have related to this trial and it is necessary to say a word about those previous proceedings.

[4]On 23rd January 1987 the court dismissed an appeal against conviction brought by Meads. The matters with which we are now concerned were not then before the court. The trial had taken an unusual course in that there had been alleged to be a third active robber in the robbery that had taken place. He gave evidence at the trial and named each of the two defendants standing trial as being the others involved in the robbery. At the conclusion of all the evidence, when the judge came to sum the matter up to the jury, he directed the jury that they should disregard the evidence of that third man, a man called Maguire, because his evidence was so unsatisfactory that no-one could sensibly rely upon it. The basis of the appeal related to the course taken by the judge, and in particular the fact that the judge had given no indication prior to that direction that he intended to take that course. It is unnecessary to go into the matter in further detail, but the court concluded that whilst it may have been undesirable for events to have taken quite the course that they did, they did not in any way render the resulting conviction unsafe.

[5]Subsequently an application for leave to appeal against conviction which had been made by the appellant was refused by the single judge. He had been a member of the court that had considered the appeal by Meads and clearly simply followed the decision of the court of which he had been a member. The matter was not renewed.

[6]The next set of proceedings related to Meads. Following two references each made by the Home Secretary under section 17 of the Criminal Appeal Act 1968 the court allowed an appeal against conviction by Meads on 26th January 1996. The basis of that decision related to the conduct of officers from the West Midlands Serious Crime Squad. There, subsequent to trial, matters had come to light which demonstrated that things had gone seriously wrong in that police squad. As a result in a number of cases the court quashed convictions. The basis of Meads' second appeal on the reference was that had those matters been known at trial, it would have been possible to cross-examine six of the officers who were involved in interviews with him in which it was alleged that he had made damaging admissions, and it would have been possible to put to them questions about their misconduct in other matters which might have had an impact upon the court. There was other evidence available, but the court concluded that the matters that related to the interview were such that an appeal had to be allowed because the other material could not of itself justify a conviction.

[7]The matter now comes before this court following a reference made by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act of 1995. The basis of the appeal is that those matters which the court accepted in the appeal of Meads could properly have been put to witnesses in the case could have been put to those who had interviewed the appellant, and in those circumstances it is submitted that the resulting conviction in his case also has to be viewed as being unsafe.

[8]The facts can be taken very shortly. At about 9.40 am on 18th June 1984 in Coventry a Post Office security van was robbed of bags of money containing £185,000. The attack on the van was carried out by three masked men with firearms who were wearing Royal Mail capes. The Crown alleged that the robbers were the man Maguire, to whom we have referred, accompanied by the two defendants standing trial, Meads and the appellant. They had used a Ford Sierra car as a getaway car and the person who had hired that car, a man called Hetherington, was also charged in relation to that matter.

[9]One of the two Post Office employees who was on board the security van was bound and hooded. The other, a man called Hoskins, was instructed to drive away at gun point to a nearby derelict school. As the money was being transferred from the Post Office van to the Sierra those involved were disturbed by a witness called Hatfield, who realised there was something wrong and tried to lock the school gates to prevent them from getting away. A gun was discharged in his direction and the Sierra was driven through the gates. Hatfield tried to follow the Sierra on his motorcycle and eventually attracted the attention of a plain clothes police officer. The robbers abandoned the Sierra, leaving the money and a sawn-off shotgun inside. They made off on foot. Plain clothes police officers attended and sought to find those who were responsible. The appellant was arrested nearby.

[10]In due course allegations were to be made that Hoskins, far from being a victim, was in fact one of those who was responsible for the offence.

[11]As we have indicated, Maguire gave evidence purporting to say what the arrangements were for the carrying out of the robbery. There is no suggestion that Maguire was not involved, but the challenge to his evidence at trial was that rather than name the two people with whom he was involved, he had put forward Meads and the appellant as the people to protect the real robbers.

[12]The case against the appellant therefore fell into three distinct parts. The first was his arrest near to the getaway car. Mr Saunders QC, who appears on behalf of the appellant, acknowledges that this was, on any view of it, damaging evidence and evidence to which the jury were bound to have regard.

[13]The second feature of the evidence were the interviews that were carried out with the appellant. It was not suggested that he had ever made any admission of involvement, but there were a number of remarks attributed to him which, on any sensible reading of the account, if it were true, indicated that he must have been guilty. Those were the subject of direct challenge at trial and, put bluntly, it was suggested that they had been fabricated by the interviewing officers. Thus, any evidence that in any way went to the integrity of the interviewing officers was highly important to that aspect of the case against the appellant.

[14]The third aspect of the case came as a result of examination of the clothes of the appellant and the various vehicles involved, particularly the Sierra vehicle. It was said that there was scientific evidence which provided clear evidence of a link between the appellant and that vehicle. If that were so then clearly, having regard to the rest of the evidence, the only sensible inference was that he had been involved in the robbery.

[15]At trial that element of the case was again disputed by the appellant. He contended that there had been improper behaviour by the police officers and that they had in some way managed to fabricate evidence, to transfer fibres from his clothing to the vehicle, and in that way make it look as if there was a strong scientific case when in fact there was none. He put it quite bluntly that he had been fitted up by the police for this particular offence.

[16]The jury clearly considered the totality of the evidence and concluded that the appellant was guilty.

[17]The basis of the appeal that he now brings is that if the matters to which we have already referred about members of the West Midlands Serious Crime Squad had been known then, they could, as this court has already concluded in the case of Meads, have been the subject of cross-examination of those witnesses. That inevitably, it is submitted, would have meant that the jury would have disregarded the interview evidence.

[18]As to those matters, the Crown accept that they cannot now properly rely upon the evidence of those matters alleged to have been said by the appellant. That is a concession which we have no doubt at all was properly made and was the inevitable consequence of the decision of this court in the case of Meads.

[19]The Crown submitted initially that even if one disregarded that part of the evidence, there was still a case which demonstrated quite clearly that the appellant was guilty which arose from the scientific evidence. It was the intention of the Crown to invite the court to consider whether that evidence was such that this conviction nonetheless could have been seen as being safe.

[20]The matter came before the court as a directions hearing on an earlier occasion. I was a member of the court on that occasion, sitting with two other judges. Each member of the court on that occasion came to the conclusion that the rest of the material, in the light of the way the case had been conducted at trial and what was now known, could not in itself enable one to conclude that the conviction was safe. That view was indicated to the Crown and the Crown indicated that they would consider their position in the light of that indication. Helpfully, having done so the Crown indicated that they accepted that if that was the reaction of the court to the evidence that was available they could no longer seek to uphold this conviction, and they have not sought so to do.

[21]We consider that the conduct of the prosecution in relation to this appeal has been entirely sensible and we are grateful to them, and particularly Mr Hotten QC who has represented the interests of the prosecution, for their realistic and sensible approach to this case.

[22]Looking at the scientific evidence, there were at the time of trial matters that certainly raised question marks about that evidence. The first related to the keeping of an exhibits book by the exhibits officer who was a member of the West Midlands Serious Crime Squad. The exhibits did not appear in the book in the order in which they were said to have been recovered. That was explained by the officer on the basis that when he initially received items he did not have an exhibits book available to him, he had made notes on paper, he had not realised the importance of either then transferring those matters into the exhibits book in the same sequence as he had recovered them, and nor had he realised there was any need to record the time of their recovery. At trial it was submitted that this was the result of inexperience or, at worse, stupidity, and that it did not in any way indicate any impropriety. It must have been the case that the jury accepted that explanation faced with the evidence they had heard in the trial.

[23]A further factor related to a discrepancy between an officer who gave evidence that he had recovered the sawn-off shotgun from the Sierra vehicle, as to the time when he did that when compared with the evidence of a scenes of crime officer about that matter and when compared with a statement made by various prosecution witnesses that there had been no examination prior to 3.30 in the afternoon following its recovery. Thus there was material that at least must have caused the jury to consider whether the evidence could safely be relied upon.

[24]Over and above that they had to consider the defence of the appellant, which was an alibi defence for the actual time of the robbery. That was evidence that was put before the jury and clearly they had to weigh those matters.

[25]When we look at this matter now at this stage it seems to us quite impossible to say how the jury must have approached their task. They might have been persuaded that those parts of the scientific evidence were entirely genuine, notwithstanding the criticisms to which we have referred, and that those in themselves pointed conclusively to the guilt of the appellant. If that was known to be their approach then it might be difficult to say that the conviction now was unsafe. However, it is equally possible that the jury thought that those elements in themselves did not establish guilt, but when one looked at the interview evidence, that, either taken on its own or taken in conjunction with the scientific evidence, enabled one to reach the relevant degree of certainty. Thus we consider it to be impossible at this stage to reach any clear conclusion as to the way in which the jury must have approached their task and whether or not the revelation of the matters that now come before the court and cause the Crown to abandon the evidence relating to the interviews would have had any significant impact on the jury or not.

[26]Mr Saunders drew our attention to the well-known case of Pendleton

[2001] UKHL 66

[2002] 1 Cr App R (S) 34

, and to the speech of Lord Bingham of Cornhill in that case, with which all except one member of their Lordships' House agreed. He particularly drew our attention to paragraph 19. It is sufficient for our purposes if we simply set out the concluding words of Lord Bingham in that paragraph, when he said:

"... 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."

We adopt that approach. We ask ourselves whether the evidence that has now come to light, which could have been the subject of cross-examination, might have had such an impact on the jury. We have to say in relation to it that it might have done. That being so, following the guidance given by the House of Lords, it follows that the conviction must be thought to be unsafe. In those circumstances we have no difficulty in concluding that this appeal must be allowed.

[27]We make it clear, as the Crown do, that in reaching that conclusion we are not thereby making any finding of any relevant impropriety by any police officer in relation to this case. If this appeal was being heard at a time soon after the original conviction we would have taken a lot of persuading that it was not a case in which we should order that there be a re-trial. Now, many years after the event, the appellant having completed the whole of his sentence, clearly it would be unrealistic to make such an order and the Crown have not invited us so to do. We simply say that the trial that did take place resulted in a conviction which now has to be viewed as unsafe and we quash the conviction, but we go no further than saying that.

[28]MR SAUNDERS: Can I mention one matter. I know Mr Cummiskey instructed solicitors privately to prepare the submissions to the Criminal Cases Review Commission. Would your Lordships make a defendant's costs order which would enable him to recover those?

LORD JUSTICE KAY: We will make a defendant's costs order. Whether that will have the effect, happily we need not decide.

[30]MR SAUNDERS: I am afraid that has only just occurred to me, which is why I have not taken instructions or got the relevant --

LORD JUSTICE KAY: If we make it you can then argue, if you think it appropriate, that it does cover such costs. We will make a defendant's costs order but we give no indication what the consequences of that are, that is for the taxing judge.

[32]MR SAUNDERS: Thank you.