Hampton & Anor v The Crown [2004] EWCA Crim 2139

Case No 2001/6663/W4

[2004] EWCA Crim 2139

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM Liverpool Crown Court

The Honourable Mr Justice Morland

T20017212

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday, 30 th July 2004

Before

LORD JUSTICE HOOPER

MR JUSTICE AIKENS

MR JUSTICE FULFORD

Between

Gary Phillip HAMPTON and Michael Anthony BROWNAppellants

The CrownRespondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr Fitzgerald QC and Mr Paul Taylor appeared for appellant Hampton

Mr Richard Marks QC and Mr Paul Taylor appeared for appellant Brown

Mr David Turner QC and Mr Gordon Cole appeared for Crown

Judgment

Lord Justice Hooper :

[1]This is a judgment to which all members of the court have contributed.

[2]On 18 October 2001 in the Crown Court at Liverpool before Morland J and a jury, the appellants Gary Phillip Hampton now 25 and Michael Anthony Brown now 23 were convicted of the murder of Colin McGinty in the early hours of 23 March 2001. Both appeal against their convictions, leave to appeal having been granted by the single judge on one ground only, namely an application to call fresh evidence from Miss Woodcock, who it is said can give credible alibi evidence for Hampton. Although the fresh evidence which it sought to introduce relates primarily to the appellant Hampton, Gage J, in granting permission, said that:

“If this evidence is credible and is admitted it would affect”

Brown’s case.

[3]Leave to appeal was refused on the other grounds and a renewed application was originally made on all of those grounds.

[4]During the course of the hearing we granted leave on one further ground, that relating to the evidence which David Graham gave as to the registration number of the vehicle used by those who had killed Colin McGinty or were present when he was killed. We refused the renewed applications for leave on the other grounds to the extent to which they were not abandoned during the hearing and will give our short reasons for that refusal later in this judgment.

[5]During the course of the hearing there was a further application made for leave to appeal on the ground of non-disclosure of cell-site evidence relating to a 35 second call made on his mobile by Brown to Hampton at 03.29 in the early hours of the morning following the killing. We granted leave on that ground.

[6]We turn to an outline of the facts. On 22 March 2001 at about 23:15, the deceased, Colin McGinty, went to Sullivans Wine Bar in Bootle together with two of his friends. A number of witnesses were called to give evidence about the events in Sullivans. None of those witnesses knew the appellants. The appellants were in the club. They were “on duty” protecting their employer’s son, John Lynch junior, who was a guest DJ at Sullivans and feared for his valuable record collection. At the time of the alleged offence they were employed as doormen in other clubs owned by John Lynch and his father.

[7]During the evening there was an altercation and Colin McGinty was evicted from the club. On the evidence the deceased and the man with whom he had the altercation, Colin Rogers, “made it up” outside the club. Colin Rogers said that he did not know the appellants.

[8]At about 1.35am, PC Hannett saw a VW motorcar parked outside Sullivans. The officer stopped and spoke to two males who had been speaking to the occupants of the vehicle. One of these males was John Lynch. The officer spoke to the occupants of the car and noticed that part of the registration number was CVM.

[9]In interview both appellants admitted that a very dark grey VW motor car with the registration plate L521 CVM belonged to Brown and that they were the occupants of the vehicle to whom the officer spoke. We have seen photographs of the car and in a number of the photographs it appears as almost black.

[10]The deceased was ejected from Sullivans at about 01:45. At some time after 02.00 hours he was walking along Marsh Lane towards the docks with two friends, Terence Randall and Alan Whelan. At a point about 750 metres from Sullivans, a VW Golf motorcar (old shaped according to Whelan) drove down Marsh Lane and stopped abruptly directly across the road from where they were standing. According to Randall, two men got out of the car: one from the front offside and one from the rear offside. One of the males said:

“who is the kick off merchant?”

. According to Whelan, three men jumped out and he saw the driver’s door open and a passenger door open. He heard the words: “now then snarlers”. Randall and Whelan ran off to safety. According to Whelan it was McGinty who the men in the car wanted.

[11]It was accepted before us that, given what was being said, the attack was being carried out because of the events at the club which had led to the deceased’s eviction from it.

[12]The deceased was attacked and stabbed some 15 times with at least two knives. Some of the stab wounds were inflicted whilst the deceased was trying to escape. He was attacked some 750 metres from Sullivans.

[13]It was not possible during the trial to identify the precise time of the attack, which was over very quickly. A 999 call was made at about 02.48. The attack would have taken place at about 02.40.

[14]During the course of the attack, four other males were walking down Marsh Lane. They saw the vehicle stop and saw four men attack the deceased. As the vehicle drove off one of them, David Graham, made a mental note of the number and make of the vehicle. He said that the vehicle was a dark blue VW Golf and the registration number was C251 CVM or L251 CVM. C251 CVM was, in fact, a silver BMW, so it could not have been that car. The witnesses said that following the attack the assailants ran off and got into the car, which sped off back up Marsh Lane. Graham gave details of the car registration number to PC Hannett at 02.55.

[15]None of these witnesses identified the appellants, who were unknown to them.

[16]Mrs Corrin gave important unchallenged evidence about the arrival of Brown’s Golf outside her house in Fernhill Road at about 02.45. Her evidence was supported by a contemporaneous handwritten note with timings. The computer from which she took her timing was, it appears, running 4 minutes fast. However there appears to have been no real dispute that, if the car had been involved in the killing, it could have been driven from the scene of the killing to arrive outside Mrs Corrin’s house nearby at about 02.41- 02.45. Mrs Corrin also said that 4 “boys” got out of the car, one saw her looking and all 4 ran over to Vaux Crescent. This was challenged.

[17]Brown told the police and told the jury that he and Hampton had arrived at his home in Vaux Crescent from Sullivans at about 02.00 hours, parking his car outside the house and that Hampton had left in his Puma car at 02.15. Vaux Crescent is very close to Fernhill Road but the place where Brown said that he had parked the car was not visible to Mrs Corrin. Brown said that he alone had then moved his car from outside Vaux Crescent at 02.45 to Fernhill Road and then driven to his girlfriend’s house some 3 miles away in his Volvo, giving an explanation as to why he did that. On the prosecution’s case, that was an invention to explain the arrival of the car outside Mrs Corrin’s house. What that did not do, as the prosecution pointed out, was to meet the evidence of Mrs Corrin that 4 men had got out of the car and run over to Vaux Crescent. Nor did it coincide with what Hampton had told the police, namely that he and Brown had arrived in the Golf and parked it in Fernhill Road shortly after 01.35 and that he had left Brown’s home in his Puma at about 02.00 hours.

[18]There was also further evidence from Mrs Corrin which did not, if accepted by the jury, tie in with the evidence of Brown and Hampton. Mrs Corrin described, with the aid of her notes, 2 of the 4 boys coming back at 02.55. “They were at the back of the car and seemed to be looking for something, and then went off again”. She said two boys at 03.10 “were there for about ten minutes looking around the car for something”. “They then walked back into Vaux Crescent”. At 03.50 what seemed to be the same boys again came back and looked around. She did not identify anyone on an ID parade.

[19]Mrs Corrin also gave evidence that the Golf had disappeared at about 17.00 hours that day (ie 23 March)- evidence which contradicted what Brown had said to the police. The prosecution’s case was that the car was taken away to be cleaned.

[20]Both appellants said that they did not know the deceased and had never gone into Marsh Lane in the early hours of that morning. There was no forensic evidence linking the car or the appellants to the killing.

[21]The appellants were arrested on the following Tuesday 27 March in a Volvo which was behind the Golf. In the driver’s seat of the Golf was Miss Woodcock, the proposed alibi witness. Brown said in interview, and both said in evidence, that they were at this time on their way to an auction to sell the car. In interview Brown had stated that on Tuesday 27 March, Miss Woodcock was driving the VW Golf to an auction. He said that he had asked her to do so because he had had trouble with people who were hostile to him. He said in evidence that this was a lie.

[22]In his interviews, Gary Hampton recalled the conversation with the police at about 1.35 am. He said that they had left immediately after that and had dropped two men off in Earl Road. Then they had gone to Fernhill Road and parked the VW Golf there. He said that he had driven off in his Puma at about 1.50 or 1.55 am and gone to his home, which was at 21 Mirfield Street, Kensington, Bootle, which is about 2 km east south east of Brown’s girlfriend’s house.

[23]It was the prosecution’s case that the appellants had destroyed the evidence of blood staining which, on the prosecution’s case, must have been on their clothes and in the car.

[24]Graham’s evidence was crucial to the prosecution’s case. If that was Brown’s car which he saw, then a jury would almost certainly convict him as the owner of the car, given particularly that he had been in the car outside the club shortly before. If the jury were sure that Hampton was with Brown at the time, then likewise a jury would almost certainly convict him.

[25]There are a number of grounds of appeal. In what we shall call for convenience ground A, it is submitted that the learned judge was wrong not to withdraw Hampton’s case from the jury at the close of the prosecution’s case. We refused the renewed application for leave to appeal on this ground.

[26]At the close of the prosecution’s case Morland J gave a detailed ruling. It was submitted to us by Mr Fitzgerald that no jury could be sure that Hampton was in the car at the time of the killing. As to this

the judge said:

“The suggestion that there was a change of personnel in Brown’s Golf by the time of the murderous attack is far fetched.”

[27]We agree.

[28]Ground B relates to the publication of material said to be prejudicial just before the start of the trial. We refused the renewed application for leave to appeal on this ground. We now give our reasons.

[29]In his advice of 31 May 2002, Mr Marks on behalf of the appellant Brown summarises the argument under this head as follows:

“The next point that arises concerns problems which arose with regard to the Jury. Prosecuting counsel had prepared a written draft of his Opening, a copy of which was provided by him to the Press. The Opening referred to the evidence of a Mr Humphrey and a Mr Cloutier who spoke of two separate incidents earlier that night involving, in one instance, hostile staring, and in the second, actual violence; both incidents concerned the occupants of a VW Golf. There was no satisfactory evidence that the Defendants were involved in either of these incidents, and accordingly defence counsel indicated that they proposed to object to its admissibility. At the request of the defence, prosecuting counsel did not refer to this in his Opening. Unfortunately, the Press reporter was not in court when the case was opened. She did not know that no reference had been made in the Opening to the evidence of Mr Humphrey and Mr Cloutier and she included reference to it in the article that she wrote, and which was published the following day in the Liverpool Post. Against that background, on the second morning of the trial, the Judge discharged the jury. A fresh jury was empanelled the following day. … A … question that arises in relation to this aspect of the case, namely, whether, in the light of the adverse Press report (which was considered sufficiently serious to warrant the discharge of the first jury), it was appropriate for a second jury to be empanelled so soon after the first jury were discharged; or whether it would not have been preferable for the trial to be delayed for some little time so as to minimise the impact of a Press report, if indeed it had been read by a member of the later jury panel. I have spoken to junior counsel for the defendant in order to ascertain what stance was adopted on the defendant’s part in relation to this aspect of the case. He informs me that no defence application to this effect was made. I am slightly surprised by this, as there must have been just as much of a possibility that someone on the second jury had seen this report, as had someone on the first jury. It seems to me that this may arguable afford the defendant a ground of appeal, although in my view, by itself, it would be most unlikely to lead to the quashing of this conviction.”

[30]Mr Fitzgerald on behalf of the appellant Hampton supports the submissions.

[31]The report appeared in the Daily Post on 3 October 2001. The offending part of the article formed two relatively short paragraphs – 10 lines of a column – within a significantly longer report. When the second jury were empanelled on 4 October 2001, Morland J directed them as follows:

“The terrible killing of 21 year old Colin McGinty in Bootle in the early hours of Friday 23 March of this year has been the subject of much publicity in the media, in newspapers, television and radio and it is likely to be the subject of publicity during the trial. I give you this all important direction in law; put out of your mind anything you may have heard or read or seen about this case, anything you may hear or read or see about this case outside this courtroom during the trial. You decide this case and decide the facts in the case and you must only decide the facts in this case on the evidence given in this courtroom. You will reach your verdict, whether it be guilty or not guilty, on the evidence produced in this courtroom and solely on that evidence.”

[32]We take the view that it is unsurprising that Mr Marks advanced this ground of appeal somewhat tentatively in his advice; indeed, it seems to us that the arguments advanced in this regard are devoid of merit. The judge’s approach to this problem was faultless. The first jury, having heard the opening, were confronted the following day with a newspaper article which purported to reveal additional evidence supporting the prosecution case that had not been mentioned by prosecuting counsel. That particular sequence of events made it desirable for that jury to be discharged. However, the position of the second jury was wholly different: before they heard the opening they were directed, in the strong terms set out above, to concentrate on the evidence and to ignore all extraneous material, and in our judgment that direction ensured that any possibility of prejudice occasioned by this part of the newspaper report was removed, because the jury would have approached both the opening and any press reports they had read correctly. In those circumstances, all counsel, wholly appropriately, agreed to the empanelling of the second jury on 4 October 2001 in order for the trial to recommence immediately thereafter.

[33]When he discharged the first jury, Morland J referred in strongly critical terms to the practice that appears to have developed in some parts of the country whereby prosecuting counsel distribute copies of their opening speech to the media before it is delivered. As the judge observed, this practice is fraught with risks that have been amply demonstrated by the history to this case. We understand from Mr Turner QC that guidance was given in November 2001 by the then Director of Public Prosecutions, Sir David Calvert-Smith QC. The effect of the guidance is that speeches can be distributed if the consent of the judge and of the defence is obtained, if the copy is personal to the reporter and if the reporter receives it on the understanding that he/she is to check the contents against delivery.

[34]In ground C it is submitted that the learned judge failed to give a proper direction relating to David Graham’s identification of the registration number of the VW Golf. This was the ground on which we gave leave but did not call upon Mr Turner to reply.

[35]We have dealt with the arguments compendiously, although it is right to observe that the appellants did not advance identical submissions on this issue.

[36]In light of the overall submissions that are made, it is helpful to set out the evidence of Mr Graham on this issue in full, as summarized by

the judge in the summing up:

“David Graham said that he had a drink at Yates’ Wine Lodge and then moved on to Sullivans, where he met Paul Shaw and his son. They were walking along Marsh Lane. He looked up the road and saw, ‘coming towards us, on the opposite side, towards the bridge, a car’. He used the expression ‘clocked the car’. He told you that he had been in the Territorial Army and had done army training when acting as a soldier at checkpoints to check vehicles. He said: ‘It was a Golf, dark blue, new. It didn’t appear to have any body damage on the side I saw.’ He said it was of the newer type so far as the shape of the Golf was concerned. He said there were at least three people in it. They were white males. There were two in the front and one he could see in the rear offside seat, and it was the offside that he would have seen. He put the speed at 40 to 50 miles an hour. He said he followed it towards the bridge and she saw the registration number as C251 CVM. He was sure of the CVM. He said it did not look like a C model and he might be mistaken and it was possibly an L. He said he was less certain about the 251 than he was about the letters CVM. He administered first aid to Colin McGinty. He spoke to the police and told them the registration number. Remember that Constable Hannett said that Mr Graham said that he was not totally sure of all the indexes due to drink. He said he had drunk seven pints of normal lager. He said that was the rear number plate of the Golf, he did not see the front number plate and he saw the registration numbers. He was asked by Mr Waldron, for Michael Brown, about the circumstances in which he made his statement. It was on Saturday, 24th March, that he made his statement, when the Oxford-Cambridge boat race was on television. Remember, he said in evidence he was certain the letters were CVM, but it was put to him that in his statement he had said, ‘I’m pretty certain of the CVM.’ He said: ‘It looked better than a C registration Golf.’ ... Of course, we know that Brown’s Golf is L521 CVM. The statement, which is a statement of eight pages, apparently took the two detectives who took the statement two and a half hours to take, from ten past one until 20 to four. The evidence of David Graham, of course, is crucial. If through drink he got the CVM wrong, or one of those letters wrong, of course all the evidence that you heard about eliminating all other types of dark Golfs and so on, which was based on those three letters being correct and also based to a large extent on the numbers though in the wrong order if he got the CVM wrong, it would really invalidate the prosecution case. It is of vital importance that before you could conceivably consider convicting the defendants, finding that Brown’s car was involved in the attack on Colin McGinty, that David Graham got, despite the amount he had drunk, the letters CVM correct.”

[37]Although the letters and numbers given by Mr Graham did not exactly match Mr Brown’s Volkswagen, the agreed evidence before the jury was that if Mr Graham was correct as regards the letters CVM, that combination matched only 7 other Volkswagen Golfs. The police had investigated the whereabouts of each of those other vehicles at the relevant time and

the judge summarized the results as follows:

“The investigation revealed that none of those vehicles were at the scene of the murder of Colin McGinty, neither were they anywhere near the scene, nor can they be in any way connected with the murder of Colin McGinty. That leaves one Golf. That is Mr Brown’s. All depends on the accuracy of Mr David Graham’s sighting of those letters CVM.”

[38]It is submitted that in addition to the summary of the evidence of Mr Graham as set out above and the accompanying directions, the judge should have given the jury a warning as regards his evidence, and particularly as to his recollection of the letters and numbers on the licence plate, highlighting what are said to be the potential dangers involved in relying on such evidence, and the special need for caution. This argument is advanced on three bases. First, drawing on the recognised problem of the visual identification of strangers, it is said that a direction of the kind suggested by this court in R v Turnbull

[1976] 63 Cr App R 132

, 1977 1 Q.B. 224 was called for in this case. Secondly, on a more general basis, it is submitted that juries should always be warned of the particular danger that visual identification evidence of this kind – namely that of motor cars and their licence plates - may be unreliable. Thirdly, it is said in any event on the particular facts of this case a special warning was necessary.

[39]As to the latter submission, four factual matters are highlighted, some of which were not referred to by the judge in summing up, that demonstrate, so it is argued, the difficult circumstances in which this observation occurred:(i) the consumption by Mr Graham of 7 pints of beer over 4 hours (10 pm – 2 am);

(ii) the speed of the motor car at the time the licence plate was seen: as Mr Graham said in evidence “40/50 miles an hour easy, faster probably, 50 odd miles an hour”;

(iii) the “fleeting glimpse” Mr Graham had of the back licence plate only, when it was dark; and

(iv) the uncertainty as to when the motor car’s lights were switched on; Mr Graham said that he thought the lights were on.

[40]Bearing those factors in mind, it is submitted that for five reasons genuine scope exists for suggesting Mr Graham may have been mistaken: (i) Mr Graham was not totally sure of the letters and numbers; as he said in his witness statement:

“I looked at the registration plate at the rear and remembered the number as C251CVM. I kept repeating the number to keep it in my head. I’m pretty certain of the CVM part, but I couldn’t see it being a ‘C’ index car because it sound and looked a lot more new. It may possibly have been an ‘L’ index.”

Moreover, he said to a policeman at the scene he was not “totally sure of the index due to drink.” (ii) He failed to notice the nearside headlight was damaged and as a result was not working; (iii) On the prosecution’s case he made two mistakes as to the licence plate if the motor car he saw belonged to Mr Brown: first his evidence that the numbers were 251 as opposed to 521, and second his evidence that the motor car was C registered (although he added it possibly could have been L registered); (iv) On the prosecution’s case he was in error as to the model of the car: he said in evidence it was a new model VR6, which was only manufactured in 1998, whereas Mr Brown’s car was a 1993 model; and (v) On the prosecution’s case he was mistaken as to the colour of the car: in evidence he said it was dark blue, whereas Mr Brown’s Volkswagen was dark grey.

[41]Against that background, we turn first to the submissions based on Turnbull. We have sought to identify whether any part of the “Turnbull direction” is relevant to evidence of this kind. As currently promulgated by the Judicial Studies Board the direction is in the following terms:

“The case against the defendant depends to a large extent on the correctness of one identification of him which he alleges to be mistaken. To avoid the risk of any injustice in this case, such as has happened in some cases in the past, I must therefore warn you of the special need for caution before convicting the defendant in reliance on the evidence of identification. A witness who is convinced in his own mind may as a result be a convincing witness, but may nevertheless be mistaken. Mistakes can also be made in the recognition of someone known to a witness, even of a close friend or relative. You should therefore examine carefully the circumstances in which the identification by the witness was made. For how long did he have the person he says was the defendant under observation? At what distance? In what light? Did anything interfere with the observation? Had the witness ever seen the person he observed before? If so, how often? If only occasionally, had he any special reason for remembering him? How long was it between the original observation and the identification to the police? Is there any marked difference between the description given by the witness to the police when he was first seen by them, and the appearance of the defendant? Thereafter the judge will usually go on to remind the jury of the specific weaknesses which appeared in the identification evidence.”

[42]It is immediately apparent that much of that direction could not be said to apply to Mr Graham’s evidence as regards the licence plate. No recognised basis exists for suggesting that this type of evidence needs to be approached with special caution: it has not been established that the introduction of evidence of this kind in the past has caused particular injustice or that witnesses mistaken as to this kind of detail can also be convincing in a special way that calls for a Turnbull type direction. A witness who gives evidence of the details of a number plate is performing exactly the same role as a witness who, for instance, describes the number of punches delivered during a fight, whether traffic lights were green or red before a collision, or whether there were four or five masked men present during an armed robbery.

[43]Accordingly, both the rationale behind and the terms of the Turnbull direction are of little obvious relevance to the evidence of Mr Graham. Moreover, it is accepted that for this argument to succeed the instant case must be distinguished from R v Browning

(1992) 94 Cr.App.R. 109

[44]In Browning a witness by the name of Hughes said that he was overtaken at considerable speed by a Renault 25 with a registration number beginning C7. Glidewell LJ in giving the judgment of the court set out both the submissions of the appellant and the conclusions of the court as follows: “Mr. Griffith Williams submits that a Turnbull type direction should have been given to the jury as regards both the car and the man. As to the car, unlike a human being, the appearance of a car remains constant unless it is deliberately altered by having its colour changed or by having some pieces added to it. Save for such deliberate alteration, it cannot in its nature change shape or colour or size. A human being's facial expression alters constantly and his bodily position and appearance alters constantly. Of course, a human being's dress alters and his style of hair may alter from time to time. Identifying a particular car, in our view, depends upon first, the witness being sufficiently knowledgeable about makes of cars to be able clearly to distinguish one from another - some people can, some cannot; secondly, being able to recollect the make and the colour of the car he has seen; and thirdly, being able to observe and then recollect the most important of the individual distinguishing features which every car carries with it, that is to say its registration number. As to this, the judge said at p. 23 in relation to Mr. Hughes: ‘He saw that it was a C registered car and as I told you in what I was saying before I had our break, he made one statement, then he made another statement, and was asked to go down to Worcester, Hindlip Hall, in order to see if he could identify the car and he told you that on his way down he remembered the 7. He had thought and thought about it, and you may remember that a number of witnesses appeared to be being criticised for the fact that in their initial statement they did not put everything that they had later come to remember. You are required to bring your common sense into the jury box, as I am sure you have, and you will judge that suggestion according to its merits. If you really put your thinking cap on and you perhaps remember more than when you first thought about it, of course the danger the other way is that you may begin to think that you remember things that did not happen at all. You judge that criticism for what it may be worth.’ In our view that was a perfectly proper reminder to the jury. It is our judgment that a Turnbull direction as such is not needed in relation to a motor car. What is necessary is to do what the judge here did: to draw the jury's attention in relation to each witness, first of all, to the opportunity which the witness had to identify the car. The judge did that in relation to a number of the witnesses. He reminded the jury that Mr. Farrell was travelling at about 80 miles an hour, but he put it more graphically, 102 feet a second, in the summing-up. He reminded the jury that Mr. Marsh had said that he only had a fleeting glance. Secondly, he should draw the jury's attention to a witness's apparent ability or inability to distinguish between makes of cars and the characteristics of cars. Thirdly, he should make the point, which the judge made in the passage to which I have just referred, that the jury must decide how far a witness is genuinely recollecting what he saw and how far his mind has invented or has absorbed information from somewhere else and then transmuted that into making him think that he has recollected something that he has not actually recollected at all. In our view the judge in his comments to the jury fulfilled the duty upon him to warn them properly in respect of identifying motor cars.” ‘He saw that it was a C registered car and as I told you in what I was saying before I had our break, he made one statement, then he made another statement, and was asked to go down to Worcester, Hindlip Hall, in order to see if he could identify the car and he told you that on his way down he remembered the 7. He had thought and thought about it, and you may remember that a number of witnesses appeared to be being criticised for the fact that in their initial statement they did not put everything that they had later come to remember. You are required to bring your common sense into the jury box, as I am sure you have, and you will judge that suggestion according to its merits. If you really put your thinking cap on and you perhaps remember more than when you first thought about it, of course the danger the other way is that you may begin to think that you remember things that did not happen at all. You judge that criticism for what it may be worth.’

[45]Three matters have been highlighted in an attempt to distinguish Browning from the instant appeal:(i) In Browning 9 witnesses gave evidence as to the appearance of the vehicle;

(ii) In that case the evidence as regards the motor car mostly – although not exclusively - concerned colour and shape, which, as regards the latter, was distinctive; and

(iii) There were none of the particular difficulties in that case, present in the instant appeal, such as the effect of drink.

[46]We do not consider that those factors provide a sustainable basis for distinguishing Browning. First, although a number of witnesses in Browning described the car, their accounts differed markedly, and notwithstanding the majority description of it as being a Renault, one witness suggested it may have been a BMW, another thought it was a Volkswagen Polo and others gave only general evidence as to colour and size. Secondly, the key evidence in Browning was the evidence from Mr Hughes as to the registration including the letter C and the number 7. Thirdly, although the consumption of alcohol is often a particular feature that goes to the reliability of a witness, it does not usually call for a “special warning”.

[47]Accordingly, in our judgment there is no merit in the argument that Turnbull is authority for the proposition that identification evidence of this kind calls for a special warning, particularly in light of the decision of this court in Browning.

[48]We turn next to the argument, advanced on a more general basis, that such a direction is always necessary in these circumstances. It has been correctly pointed out that certain particular categories of evidence in addition to disputed eyewitness identification of a defendant require a special warning.

[49]In R v Luttrell and others

[2004] EWCA Crim 1344

(a case which dealt with lip- reading evidence) the Vice President in giving the judgment of the court dealt with the need in certain cases to give special warnings in the following way:

“41. With certain limited categories of evidence it is necessary for the judge to give the jury a special warning, highlighting both the potential dangers involved in relying on the evidence in question, and the need to exercise particular caution, e.g. eyewitness evidence identifying a defendant: R v Turnbull [1976] 63 Cr App R 132, 1977 1 Q.B. 224; the identification of a defendant by his voice: R v Hersey [1998] Crim LR 281; R v Gummerson and Steadman [1999] Crim LR 680; R v Roberts [2000] Crim LR 183; and alleged “cell confessions” by defendants: R v Pringle UKPC 17 of 2002 unreported, 27 January 2003; Benedetto V The Queen and Labrador v The Queen [2003] 1 WLR 1545; Pollitt v The Queen [1991-1992] 174 C.L.R. 558. 42. The general principle derived from those and other cases is that a “special warning” is necessary if experience, research or common sense has indicated that there is a difficulty with a certain type of evidence that requires giving the jury a warning of its dangers and the need for caution, tailored to meet the needs of the case. This will often be the case where jurors may be unaware of the difficulty, or may insufficiently understand it. 43. The strength of the warning and its terms will depend on the nature of the evidence, its reliability or lack of it, and the potential problems it poses. For instance, it has been recognised that identification of a suspect by voice is less reliable than visual identification evidence, and accordingly usually requires a warning that is couched in stronger terms: see Hersey;Gummerson and Steadman and Roberts.”

[50]However, Mr Graham’s recollection of the licence plate does not, in our view, fall into such a category of evidence. As we have already indicated, in our judgment experience, common-sense or research have not revealed any particular difficulty with this kind of evidence such as to require a special warning. Moreover, there is no material before us to indicate that when a witness has recalled the make of a car or the number on a licence plate there are dangers that jurors may be unaware of, or may insufficiently understand.

[51]However, we stress it will usually be necessary with evidence such as this for the judge to remind the jury of the circumstances in which the observation was made. Moreover he should set out any factors that might render the testimony less reliable than otherwise would have been the case. Further, we are not in any way seeking to restrict either the circumstances in which a judge may, as a matter of discretion, urge caution in regard to a particular witness when summing up to a jury, or the terms to be used when doing so. We fully recognise that in particular cases judges may consider that the facts merit giving a special warning, tailored to the requirements of the trial in question. It is for the trial judge to decide, as an exercise of discretion.

[52]It follows that we have dealt with the third way in which this ground of appeal is argued, namely that the circumstances of this case called for a direction of this kind. In our judgment, nothing here required the judge to give the jury greater assistance than he did as regards this evidence. He reminded them in detail of the circumstances of the observation, and he made it clear that if they considered that alcohol meant that Mr Graham was mistaken as to the letters CVM, or any one of them, then that would destroy the whole prosecution case. His directions were clear, and he set out all of the main factors that the jury should bear in mind when assessing and analysing this evidence. Notwithstanding the fact that he did not refer to each and every aspect of this evidence, as we have indicated above, no further assistance was called for.

[53]In our judgment there is no merit in this ground of appeal.

[54]We turn to ground D. Mr Fitzgerald submits that this court should receive evidence from Jill Woodcock. He says that her evidence, if it had been given at the trial, could have greatly assisted Hampton’s case that he had returned to his home in 12 Mirfield Street, Kensington, Bootle, between 2.15 and 2.30 am on 23 March 2001. Therefore he could not have been at the scene of the murder in Marsh Lane at 2.45 am, which is the approximate time that the murder took place.

[55]Section 23of theCriminal Appeal Act 1968 provides:

“23. -(1) For purposes of this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice- (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case; (b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in the proceedings; and (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case; (b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in the proceedings; and (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (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.”

[56]Mr Fitzgerald submits that it is necessary or expedient in the interests of justice (under section 23(1) of the 1968 Act) that the evidence of Miss Woodcock should be received by this court. He submits that if this court receives that evidence it will be driven to the conclusion that the failure to adduce that evidence at the trial renders Hampton’s conviction unsafe. This is because that evidence, if it had been given at the trial, might reasonably have affected the decision of the trial jury to convict Hampton, thus making the conviction unsafe. (See: R v Pendleton [2001] UK HL 66, para 19,

[2002] 1 WLR 72

at 83, per Lord Bingham of Cornhill).

[57]Mr Fitzgerald submitted that the statement of Miss Woodcock, which we had read in advance of the hearing, shows that her evidence would be sufficiently capable of belief that we should hear her in anticipation that we might receive and consider it in relation to this ground of appeal. We agreed to this. We also permitted Mr Fitzgerald to call evidence from Mr Andrew Carney, who had been junior counsel for Hampton in the closing stages of the trial; Mr Peter Bown, Hampton’s solicitor at the trial and Mrs Catherine Gladwell, who was the solicitor’s representative who attended the trial on behalf of Hampton. We were also given two statements. The first is from Mr Simon Killeen, who had been junior counsel for Hampton until Friday 12 October 2001. He withdrew from the case at that point because of a commitment to another trial. The second statement is from the appellant, Hampton.

[58]The material other than Miss Woodcock’s evidence was put before us in relation to one of the four factorsthat the court must have regard to when considering whether to receive any evidence not adduced at trial: viz. whether there is a reasonable explanation for the failure to adduce that evidence at the trial. (See section 23(2)(d) of the 1968 Act).

[59]In order to consider the issue of whether we should receive the evidence of Miss Woodcock, it is necessary to set out further details about the prosecution case, the appellants’ cases, the chronology of the proceedings before and at the trial and events after it. Because much of the evidence and argument before us on this ground of appeal was concerned with the “reasonable explanation” issue, Hampton waived legal professional privilege as to proofs of evidence taken before the trial, as well as the consultations and advices given both before, during and after the trial. However, he did not give evidence.

[60]Miss Woodcock was interviewed four times by the police on 29 March 2001. In her first interview she said that she had been out on Thursday 22 March with friends. She said that she had telephoned Hampton at about 00.20 on the Friday morning, to see what time he would be back at his home, where she was then living. She said that he had told her that he would be back at about 01.30 am. She said that she then went to Hampton’s house, let herself in with the key she had and went to bed. She said that she had telephoned him again to tell him she was home. She said that he had returned home at about 01.45 to 02.00. She said that she had looked at the alarm clock, which said “around quarter to, 01.40 something”. In her evidence before us she said that this had been a guess and that she would now say that he had returned later, at about 02.20.

[61]At the start of her second interview she volunteered the information that on either the Wednesday night or the Thursday night she did not feel well so had telephoned down to Hampton (on the ground floor of the house), to bring her something to eat. She also said that she had spoken to her friend on her mobile phone that same night. She was questioned about the phone call to Hampton and said that it was at about 03.00, or perhaps slightly earlier. She said that Hampton brought her spaghetti Bolognese. She identified her friend as Jemelle Bish.

[62]In her third interview she said that on Tuesday 27 March, when she was at Hampton’s house, he had asked her to come with him and Brown to take Brown’s VW Golf to the auctions. She agreed. All three went to the VW Golf and Brown asked her to run the car round to the garage and get £5 worth of petrol and then they would go to the auctions. She was just doing that when the police arrived. This account was inconsistent with Brown’s account in interview.

[63]In her fourth interview she was questioned again about the time Hampton returned home. She said that it could have been either later or earlier than the time she had given before (ie. 01.40 hours). Then she said that she was sure that it was 01.45 hours. But she agreed with suggestions put to her that the time of Hampton’s return could have 01.15, 02.00 or 03.40. Then it was put to her that witnesses could place Hampton, Brown and John Lynch on Stanley Road, Bootle at 01.35. It was put to her that he could not have been in Kensington some ten minutes later. She was asked again about the time he came in. She said she did not know; it could have been 02.40 or even 03.40. It was “around about 40 something”. The interviewing officers then explained to her what Hampton had said in his interview about the timing of events that evening. It was suggested to her that Hampton’s story was consistent with her timings being one hour out; she agreed. She then re-iterated what she had said in her second interview; that she had telephoned Hampton when he was downstairs in the house. She said: “I phoned him and told him I didn’t feel well, asked him for something to eat and I had spaghetti Bolognese”.Then she linked the phone call to Hampton with one received from Jamelle Bish at around 3am.

[64]In her statement given to the police on 2 May 2001 Jill Woodcock said that she heard Hampton come in “in the early hours of the morning”. She also said that she had received a telephone call from Jemelle Bish just after 03.00 and continued:

“When I spoke to Jemelle, Gary was downstairs. After I had spoken to Jemelle I used my mobile phone to call Gary downstairs. I wasn’t feeling very well and I asked him if he would make me something to eat. Gary did not have to prepare the food, as his mum had left a meal out for us…Gary went back downstairs and I ate the food, which was spaghetti Bolognese.”

[65]From an early stage in their enquiries, the police were anxious to scrutinise the telephone billing of the mobile phones of Hampton, Brown and Woodcock. Miss Woodcock used a prepay, BT, mobile phone. Details of the call record of Miss Woodcock’s phone were prepared and set out in a schedule to a statement of Miss Caroline Dennis, dated 15 June 2001. That statement was served on Hampton’s solicitors shortly after that date. The schedule showed that there were calls from Miss Woodcock’s phone to Hampton’s phone at 20.34 hours on 22 March, at 01.59 (6 seconds) and 02.51 (11 seconds) on 23 March 2001. Hampton’s advisers therefore knew from mid – June 2001 that there was solid evidence that Miss Woodcock had called Hampton at 02.51 on 23 March 2001 and at that time Miss Woodcock was at Hampton’s house. (The prosecution always accepted that Miss Woodcock was at Hampton’s house after 01.30 on 23 March).

[66]Hampton’s solicitors took a proof from him in June 2001 and we have seen a copy dated 18 June 2001. That stated that he had gone into Brown’s house and stayed there for about 5 to 10 minutes and then left in his car to go home. He could not remember when precisely he got home. The proof continued (at page 6): “When I got home Gill was there. I assume my mum and dad were there but I did not see them. Gill was upstairs in my bedroom in bed. I made Gill something to eat. I think I went to bed finally at about 3.00 am”.

[67]Then later on in the proof (at page 8), it records: “I do not remember Gill getting the phone call from Jamelle. Gill does have a habit of ringing me on the mobile, even when we are both in the same house. She may very well have phoned me. I did make her something to eat. This would have been something that Mum had prepared earlier and which I heated up in the micro-wave”.

[68]There is a further document dated 13 July and 9 August 2001, which is headed “Comments on Depositions Prepared by [Hampton] Having Read The Witness Statements”.The document consists of notes of Hampton’s comments on various witness statements to the police. It includes comments on Jill Woodcock’s statement of 2 May 2001, then part of the prosecution’s case. They are, in part:

“I have read her statement and I am aware that it contradicts what I have told the police in interview. I have absolutely no reason to disbelieve that the version Gill is giving as to what happened when I got home is correct. I also believe that it is significant that she doesn’t remember a specific time when I returned. I believe that this adds more credibility to her statement.”

[69]The principal difference between Hampton’s account in interview and Jill Woodcock’s statement of 2 May 2001 is that Hampton had said he got home at just after 02.00, whereas Miss Woodcock had said that he came home in the “early hours of the morning”.

[70]On 18 September 2001 there was a consultation with Mr Fordham QC. Hampton and Mr Fordham’s instructing solicitor, Mr Bown, were present. Mr Fordham prepared a note of the consultation that day and he faxed it to Mr Bown the following day (he was representing both defendants). We have seen it. This records that at the consultation two matters in particular were discussed. First: the defence statement was considered. The instructions received were that this should not be anything other than a recital of “the substantive contentions in his interviews”. Mr Fordham advised that the defence statement must be served so that they could press for the Crown’s opening. Secondly, the issue of witnesses was discussed. The note records: “That we now have a batting order from the Crown. I have not yet received my copy but, importantly, the Crown do not propose to call Jill Woodcock. Almost certainly we shall have to call her”.

[71]Jill Woodcock provided a proof of evidence to Hampton’s solicitors. We have seen a document dated 27 September 2001. Miss Woodcock had her mobile phone records when she made it and she refers to them in detail. The relevant principal points made in her proof are:(1) her statement in the first interview that Hampton came in at about 01.45 to 0200 cannot be right. In the police interviews she did not have the phone records and she did not mention a six second phone call to Hampton at 01.59 on 23 March, which she accepts (from the phone records) was made by her to him.

(2) Hampton came in no more than half an hour after she had phoned him at 1.59, “so I would put the time of him coming in between two and two thirty”.

(3) In her police interview she simply got wrong the time of Hampton coming in.

(4) Having seen the mobile phone records, in particular the record of the phone call to Hampton at 02.51 for 11 seconds, she confirmed that he was in the house at the time and that this phone call was made about half an hour after Hampton got in. The statement says:

“In that call I said to him ‘I don’t feel well and I want something to eat’”.(5) She did not know anything about the telephone conversation between Brown and Hampton at 03.29 on Friday 23 March. (6) On Tuesday 27 March, she had heard from Hampton that they were going to take Brown’s car to the auction. She had understood that her role was “going to be simply to drive the car to the garage…and put £5 worth of petrol in the car whilst they were talking and bring the car back. I had not been told that I was driving the car to the auctions.”

This was inconsistent with Brown’s account in interview.

[72]Hampton provided a defence statement. A draft was prepared by Mr Fordham QC. We were also shown the final version dated 2 October 2001 and signed by Hampton. That stated: “5. He [Hampton] left Sullivan’s between 01.00 am and 01.30 am. They left in Michael’s car with Michael and two friends. All four got into Michael Brown’s Golf motor vehicle shortly thereafter. The two lads in the back were dropped off near to Michael Brown’s address. 6. After the two passengers had been dropped off, the Defendant was driven by Michael Brown to his address at Vaux Crescent, ‘Liverpool. Gary Hampton stayed a short time and then drove straight home in his own car, arriving home between 02.00 am and 02.30 am. 7. After arriving home, the Defendant spoke with his girlfriend, Gill Woodcock and then went to bed, where he spent the rest of the night. The Defendant got up at about 10.00 am to 11.00 am on the Friday morning”.

[73]There is no specific mention of(a) his mother hearing him return sometime after 2 am, although she had provided a statement to that effect;

(b) the phone call said to have taken place at 02.51 when Miss Woodcock made her request for food to be brought, or

(c) the mobile phone call between Hampton and Woodcock when he was in the house. The reason for this may well be the instructions that Mr Fordham had received at the consultation held on 18 September in which he was told that the defence statement should only contain the “substantive contentions” of Hampton in his police interviews.

[74]In our view, as Hampton and his advisers knew that the prosecution case was that Hampton had been involved in the murder at about 02.45, paragraphs 6 and 7 of his defence case statement “disclosed an alibi” within section 5(7) of the Criminal Procedure and Investigations Act 1996. Therefore the statement should have given details of the name of any witness who might give evidence in support of the alibi: section 5(7)(a).This was not done. If details of the alibi were to be properly given, we would have expected reference to the crucial 02.51 phone call. We are sure that it was not an oversight on the part of Mr Fordham QC and Mr Bown to be “coy” about the timing and details of the phone call.

[75]Brown’s Defence Case Statement (dated 30 August 2001) says: “4.The Defendant will state that at approximately 1.35 am on 23rd March 2001 he drove his Volkswagen Golf motor vehicle, registration number L521 CVM from Part Street, Bootle to his home in Vaux Crescent, where he stayed for approximately 45 minutes (at that time his co – accused left his company). After parking his Volkswagen Golf outside his Grandfather’s home in Fernhill Road, he drove his Volvo motor vehicle to his girlfriend’s house, where he arrived at 2.45 am”.

[76]Prior to or at the start of the trial the prosecution invited the defence to admit the evidence showing that Miss Woodcock had made a phone call to Hampton at 02.51. The defence refused to admit it. The prosecution took the view that the evidence was inadmissible for procedural reasons in the absence of an admission. We find that refusal by the defence both extraordinary and telling.

[77]At the trial Hampton gave evidence on the afternoon of the 15th and the morning of the 16th October 2001, after Brown had given evidence. Mr Fordham asked questions about the evening of 22/23 March 2001 and Hampton’s evidence was that he and Brown had reached Brown’s house in Vaux Crescent at about 01.50 or 01.55 on 23 March. He said that he did not stay long, then got into his Puma car and left for his home at 21 Merfield Street. Mr Fordham then said to Morland J that that might be a “geographically convenient place”,meaning that he wished to stop his examination in chief for that day at that point in the chronology. It was, of course, just before he would have to deal with the crucial telephone call of 02.51 (if he intended to put the call into evidence), about which the jury had so far been kept in ignorance by the defence.

[78]Mr Fordham continued his examination in chief of Hampton on the following day, Tuesday 16 October 2001. Hampton said that he left Vaux Crescent at about 02.00 and it took about 10 minutes to get to Merfield Street from Vaux Crescent. That would mean, on his evidence, that he arrived back there at about 02.10. He said that his mother, father, grandmother (nan) - and possibly his sister - were in the house but not up. His girlfriend Jill was also in the house, but awake in his room in the loft. He said that he went up to the loft (which was up a ladder), saw Jill was awake and then went downstairs. He was asked whether this was to make some food. The questions and answers thereafter are as follows:

“Q. To make some food? A. No, I went downstairs just to sit downstairs for a while. Jill phoned me from the room and said bring some food upstairs. MR. JUSTICE MORLAND. You went downstairs and sat for a while did you say. A. Yes. MR FORDHAM. Jill phoned you? A. From the loft, yes. Q. To downstairs? A. To downstairs. Q. The jury may take the view that that is a bit lazy of her ringing from one room to another, it is a small house, is it not? A. Yes. Q. Has it ever happened before that? A. Yes, it’s something we always do. My sister does it, you can check my sister’s phone records from her bedroom, they phone the kitchen phone. I do it of a Saturday if I’ve been in work of a Saturday night and I hear my mum in the kitchen, I’ll just phone my mobile and say makeup something to eat and bring it up. Q. I see? A. It’s just something that’s been done. Q. You say there was a telephone call, do you. A. Yes Q. From? A. From Jill. Q. To you? A. To me, yes. Q. She is upstairs, you are downstairs in the kitchen? A. Yes. Q. What is the gist of the message from Jill? A. Just make me something to eat, bring it up with you. Q. Did you? A. Yes.”

MR FORDHAM. Jill phoned you? Q. To downstairs? Q. Has it ever happened before that? Q. I see? A. Yes Q. From? Q. To you? Q. She is upstairs, you are downstairs in the kitchen? Q. What is the gist of the message from Jill? Q. Did you? A. Yes.”

Q. Did you?

[79]Hampton then stated that he did not remember what the food was, but it was a hot meal prepared from food that his mother had left out, something which she frequently did. He said that he took the food up to Jill. By then it was about 03.00. The phone record was not put into evidence with the precise time. After she had eaten her food, he said that he went to bed. He did not give evidence as to what time that was. He did not mention the 03.29 telephone call from Brown and its chronological relationship with these events.

[80]In cross examination Mr Turner touched only lightly on the phone call of 02.51. Dealing with that topic, he asked two leading questions:

“Q. You know you receive a phone call, you say, from your girlfriend? A. Yes. Q. You are acting as room service? A. Yes.”

Q. You are acting as room service? A. Yes.”

Q. You are acting as room service?

[81]Mr Turner then asked Hampton if he had spoken to anyone else that night on the mobile phone and Hampton accepted that he and Brown had spoken to one another on the phone at 3.30 am. In re-examination Hampton referred again to the telephone call “from Jill from the bedroom saying…”, but he was cut off by Mr Fordham, who wished Hampton to address another issue.

[82]We shall deal with the sequence of events concerning Miss Woodcock’s possible evidence at the trial when we review the evidence we heard from witnesses in this appeal. Continuing with the chronology of the trial, the defendant Hampton finished his evidence during the morning of 16 October 2001. His father and his mother then gave evidence. Mr Hampton senior finished his evidence at lunchtime, subject to being recalled to produce a document. Mrs Hampton gave evidence after lunch. She had given a statement to the police dated 3 May 2001. In it she had stated that Hampton had come home about 02.00. As we have noted, there is no reference to this in Hampton’s defence statement. Mrs Hampton did not give evidence about the time Hampton returned home. After her evidence there was an adjournment for about 8 minutes between 14.48 and 14.56. Mr Hampton senior was then recalled. He finished his evidence at 15.20. Mr Fordham then told Morland J that he had received a note, which meant that he must request “another short adjournment”. He asked for 10 minutes. After that, in the absence of the jury, Morland J asked Mr Fordham “Are you calling further evidence or not?”.Mr Fordham said he was not. The jury was then recalled and Mr Fordham closed his case. Mr Turner then began his final speech for the prosecution.

[83]After the convictions Mr Fordham gave an advice on appeal, dated 31 October 2001. In it he noted that Hampton’s case was alibi and that he had proposed that Miss Woodcock would support his alibi. In relation to Miss Woodcock’s potential evidence, Mr Fordham commented that her evidence as to when Hampton returned to his house depended on a particular mobile phone call. The weakness in that evidence was that the location of Hampton at the time of that call depended on the oral evidence of Miss Woodcock and Hampton himself.

[84]Mr Fordham went on to state in his advice that one particular problem that had always exercised him in the case was “the extent to which we should rely on Miss Woodcock”. He went on to deal with the problem that had arisen at the trial with the “attendance then non-attendance of Miss Woodcock”. He continued: “My own concern was that she was liable to be a damaging witness to Mr Hampton’s cause. This was a recurring source of discussion throughout the trial. In the event it was decided by Mr Hampton that he would not require her to be called ‘if it was going to upset her’. I explained that the upset to the witness should not be a consideration but her potential causing of damage should. There was a further tactical reason for not relying on her in that, by that stage of the evidence, both the Defendant and his parents had given evidence in what appeared to have been an attractive manner”. (Underlining added)

[85]Mr Fitzgerald submits that the value of this advice is undermined because at the time the decision was made not to call Miss Woodcock, it was not correct to say:

“both the Defendant had his parents had given evidence”

. In our view either Mr Fordham had understandably forgotten the precise chronology or (as seems likely to us) this matter was again discussed just before Hampton’s case was closed.

[86]Mr Fordham concluded that there was no basis on which an appeal could be mounted.

[87]In August 2002 Mr Bown wrote to Mr Fordham on the issue of Miss Woodcock giving evidence at the trial. Mr Fordham replied in a letter dated 31 August 2001. He made comments about the phone records; and on the fact that Miss Woodcock had given a statement to the police that was not wholly consistent with the witness statement that Hampton had given his solicitor. He also noted that the “overall impression” that he had had of Miss Woodcock was that she was a “Reluctant witness” (sic) and that “she was and sometimes Present And sometimes not” (sic). He also stated: “Of one matter you may be assured and that is that the decision not to call Miss Woodcock will have been discussed with Mr Hampton”.

[88]We now consider the evidence that we heard on this appeal.

[89]Miss Woodcock gave evidence first. She said that she had known Gary Hampton since October 2000 and they had become partners in March 2001. She said that on Thursday 22 March 2001 she had gone out with friend and she knew Gary had gone to Sullivans. She had rung him at 01.59 on 23 March to let him know that she was back at his house and was safe. Her evidence was that he had said he would be home soon but he did not say where he was. She said that the call at 02.51 was made by her to Hampton after she had seen him in the house. He had been home for about 20 to 30 minutes by the time that call was made. She was in the loft and he was downstairs; she asked him to bring her some food. It was something that they had done before.

[90]Mr Fitzgerald took the witness through each of her four interviews with the police and her statement to the police. She then stated that she had given a proof of evidence to Hampton’s solicitors on 27 September 2001. The original version of this proof had been mislaid, although Miss Woodcock produced a copy. We were shown a copy. She said that it accorded with her statement to the police.

[91]Miss Woodcock then dealt with events at the trial. She said that she had attended court on 16 October 2001 and had expected to give evidence then. She said that she knew that she was to be an alibi witness and that it was important that Hampton should be placed in the house at 2.51 am as he could not then have been at the scene of the murder. She stated that her father had spoken to her and had said that he did not wish her to give evidence and he did not see the necessity of it. She said that on the morning of 16 October when she had attended court she had an argument with her father which was about Gary Hampton and his parents, but not about her giving evidence. She said that she left court upset and crying. Then she returned but had another argument with her father and left in tears again. She then went to have lunch and saw her father during lunchtime. She said that he had told her to be back after lunch and to tell the truth. She said she returned to the Court Building by 2pm and met her father outside the lift. He told her that she would not be needed to give evidence.

[92]Miss Woodcock was cross-examined by Mr Turner. In particular he asked her about the changes she had made during the course of her interviews about the timing of Hampton’s return to the house. Miss Woodcock said that the changes were because she had made a mistake first time round. She denied that she had made up the story of phoning Hampton in the house once she realised that the police could get her mobile phone records and see that she had phoned him at 02.51 when he was, in fact, out of the house.

[93]Mr Andrew Carney was junior counsel for Hampton for only the last week of the trial. He took over the brief from Mr Killeen at very short notice. He said that it was his belief that Miss Woodcock had attended court on 16 October in order to give evidence. Mr Carney said that the sequence of events that day was: first, there was a conference between Mr Fordham and Hampton at which they were told (probably by the solicitor’s representative, Mrs Gladwell) that Miss Woodcock was very distressed. Mr Carney told us that Mr Fordham advised Hampton that he must think carefully about the issue and then decide on whether to call Miss Woodcock. Secondly, at about 13.45, during the lunch adjournment, Mr Fordham asked Mr Carney to go and see Hampton in the cells to find out if he had made a decision about calling Miss Woodcock. Mr Carney saw Hampton alone. Hampton told him that he did not wish to put Miss Woodcock through the ordeal of giving evidence. Thirdly, there was a short exchange between Mr Fordham and Hampton at the back of the court after lunch which confirmed Hampton’s decision. He said that there was, so far as he could recall, no further discussion that day. In cross-examination by Mr Turner, Mr Carney said that he remembered a conversation with Mr Bown, when the jury was out, in which Mr Bown expressed unease at the fact that Miss Woodcock had not been called.

[94]Mr Bown then gave evidence. He went through the history of the preparation of the case for trial. He said that on Tuesday 16 October 2001 he was not present in court all the time that Hampton was giving evidence. He was not present when Miss Woodcock was upset and had left the court building. He was also not present when the decision was taken not to call Miss Woodcock. He said that he had returned to court at about 14.15 expecting that she would be giving evidence, as he understood that was what was intended. But he was told that she would not be doing so. He said that he was “somewhat shocked” by the decision, but was unable to speak to Mr Fordham about it. He said that there was no further discussion about the issue of Miss Woodcock giving evidence before Mr Turner made his closing speech for the Crown later that afternoon.

[95]In cross-examination he confirmed that, at the time that Mr Fordham drafted the defence statement, he (Mr Bown) knew about the mobile phone records and that all the material had been brought to Mr Fordham’s attention. Mr Bown could not say why there was no reference to the mobile phone call of 02.51. He confirmed that Mrs Hampton, Hampton’s mother, had given a statement to the police dated 3 May 2001 in which she had said that her son had come in at about 02.00 and that he was on the phone and laughing. But she did not give that alibi evidence in the trial. Mr Bown said that it was his view that the decision not to call Miss Woodcock was made under the mistaken belief that she was either unable or unwilling to give evidence.

[96]Mrs Gladwell, the solicitor’s representative, was then called. She said that on the morning of 16 October she had attended court and expected Miss Woodcock to give evidence. She had gone to look for her and had been told (by the family of Brown) that Miss Woodcock was very upset. She said that she relayed that information to Mr Fordham. She recalled that after lunch there was a conversation between Mr Fordham and Hampton in the room beside the dock in court. Her recollection was that Mr Fordham said that Miss Woodcock was very upset and that it would not be fair to call her; was that all right. Hampton agreed she should not be called. Mrs Gladwell said that she spoke to Miss Woodcock’s father but not directly to Miss Woodcock. In cross-examination she confirmed that there had been conferences every morning and evening between Hampton and his counsel.

[97]Mr Fordham’s junior until 12 October 2001, Mr Simon Killeen, was not called. But an agreed statement was read to us by Mr Fitzgerald. That stated that:(1) when Mr Killeen came into the case Miss Woodcock was to be called.

(2) There were conferences prior to and during the case regarding Miss Woodcock’s potential evidence.

(3) When he (Mr Killeen) left the case (on Friday 12 October), no formal decision had been made by counsel on whether Miss Woodcock should be called.

(4) Mr Killeen could not speak for Mr Fordham, but he personally would have waited until after Hampton had given evidence before making a decision.

[98]We were also given a statement signed by Hampton which responded to Mr Killeen’s statement. We permitted Mr Fitzgerald to put this in, even though Hampton did not give evidence before us and so Mr Turner did not have an opportunity to cross-examine him on any point. The statement reads: “As far as I was concerned Jill Woodcock was going to be called as a defence witness. If counsel had any doubts as to whether to call her at all, they had not communicated these doubts to me during the trial. There were conferences in which we discussed Jill Woodcock’s evidence during the trial. But we were not discussing whether to call her at all, but how her evidence fitted with what I was saying”.

[99]We turn to section 23 of the Criminal Appeal Act 1968. We were asked to consider or have looked at for ourselves a large number of cases which have considered this section. The most recent of those cases that was drawn to our attention is R v Gilbert

[2003] EWCA Crim 2385

(31 July 2003). That was an appeal against conviction following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. The appellant had been convicted of murdering his partner. The issue at the trial had been whether he was guilty of murder or of manslaughter by reason of provocation. On appeal he wished to adduce fresh evidence from two psychiatrists and from his daughter and others to the effect that he was suffering from a mental illness at the time such as to diminish his responsibility. In the judgment of the Court on the issue of whether the court should receive this fresh evidence, Clarke LJ analysed many of the cases on the question of when the Court of Appeal should receive evidence on appeal. In particular he considered cases where a defence of diminished responsibility had not been advanced at the trial, but the appellant wished to adduce evidence on appeal to enable him to argue that defence for the first time. Amongst the cases Clarke LJ considered were: R v Lomas

(1969) 53 Cr App R 256

; R v Melville

(1975) 62 Cr App R 100

; R v Ahluwalia

(1993) 96 Cr App R 133

; R v Straw

[1995] 1 All ER 187

; R v Steven Jones

[1997] 1 Cr App R 86

; R v Campbell

[1997] 1 Cr App R 199

; R v Shah (unrep. 30 April 1998); R v Gilfillan (unrep. 7 December 1998); R v Borthwick [1998] Crim LR 274; R v Weekes

[1999] 2 Cr App R 520

and R v Pendleton.

[100]In addition to those cases we were referred to other cases, in particular: R v Shields and Patrick [1977] Crim LR 281; R v Irwin

[1987] 1 WLR 902

; R v CCRC ex p Pearson

[2000] 1 Cr App R 141

and R v Sales

[2000] 2 Cr App R 431

[101]From the various cases which we have considered, we draw these conclusions that are relevant to the present case.(1) The cases demonstrate that all applications to adduce evidence on appeal under section 23 turn on their own particular facts. As Lord Bingham CJ put it in ex p Pearson at page 164: “Wisely and correctly, the courts have recognised that the statutory discretion conferred by section 23 cannot be constrained by inflexible, mechanistic rules”.

(2) The fundamental question in each case is whether the Court of Appeal thinks it is either necessary or expedient in the interests of justice to receive the evidence sought to be adduced.

(3) In answering that question the Court of Appeal must have regard to the four factors that are set out in section 23(2). They are not prerequisites that must be fulfilled before the Court of Appeal will receive the evidence that is sought to be adduced on appeal. But, as Lord Bingham went on to point out in ex p Pearson, the cases do identify certain features which are likely to weigh more or less heavily against the reception of evidence on appeal. See also R v Pendleton at page 79 per Lord Bingham.

(4) In relation to the fourth factor, which is set out at section 23(2)(d),viz. whether there is a reasonable explanation of the failure to adduce the evidence at the trial, even if it is held that there is no reasonable explanation, that is not necessarily fatal to the application to adduce evidence on appeal. The Court of Appeal still has a duty to consider whether it is necessary or expedient in the interests of justice to receive the evidence: R v Steven Jones; R v Gilfillan; R v Sales.

(5) In general a defendant is only entitled to one trial, so that it is his duty (as it is that of the prosecution) to put forward all his case and all the evidence that he wishes to be considered at that trial: R v Steven Jones at page 93; R v Pendleton at page 79.

(6) If the reason for a case not being argued or evidence not being adduced at the trial is that the defendant’s legal advisers acted in such a way as to deprive the defendant of a fair trial, then that could amount to a reasonable explanation for the failure to adduce the evidence at the trial. However, if there was a deliberate, informed decision by a defendant and his advisers not to advance a defence or evidence known to be available and that decision is made for tactical reasons, then that will not amount to a reasonable explanation for the failure to adduce that evidence at trial. (Compare eg: R v Nangle at para 64; R v CCRC ex p Pearson at page 164; Sankar v The State of Trinidad and Tobago at page 199 – 200).

[102]Mr Fitzgerald submitted that a decision on whether to call a witness to support an alibi is usually a crucial one in a trial where the defence is alibi. Therefore such a decision can only be said to have been made in a deliberate and informed way if the defendant and his advisers had all relevant and accurate information available at the time that the decision is made. We are inclined to accept that submission. But, as this court pointed out in R v Irwin at pages 905–6, counsel is not obliged in every case to consult his client at the moment before the alibi witness is called or not called.

[103]It could be suggested that if an informed decision is made not to call an alibi witness for sound tactical reasons, then that is, in a sense, a “reasonable explanation” for the failure to call that witness at the trial. We take the view that, for the purposes of section 23(2)(d) of the Criminal Appeal Act 1968, this is not so and that, in the context of that section, such a decision should be regarded as not being a “reasonable explanation” for a failure to call a witness. In any case, the Court of Appeal has always to ask the ultimate question: is it necessary or expedient in the interests of justice to receive the evidence that the appellant wishes to adduce at the appeal? If an informed decision was made by the appellant and his advisers, for sound tactical reasons, not to call a witness at the trial, then even if the factors in section 23(2)(a) (b) and (c) are in the appellant’s favour, the Court of Appeal is most likely to conclude that it is not expedient in the interests of justice to permit the evidence of that witness to be adduced on appeal.

[104]With these points in mind, we must ask: is it expedient that this Court should receive the evidence of Miss Woodcock. We consider first the four factors set out in section 23(2). On the first factor, having heard her evidence about the events of 22/23 March 2001, we are prepared to assume for the present that her evidence is capable of belief. She undoubtedly made a call from her mobile phone at 02.51 to Hampton which lasted 11 seconds. We accept that she was in his house when she did so. A jury could believe that she was phoning from the loft to him in the kitchen on the ground floor and asking him to bring her up some food. Secondly, we accept that her evidence, if believed by a jury (or if a jury concluded it might be true), may afford a ground for allowing the appeal. That is because her evidence, if it had been given at the trial, might reasonably have affected the decision of the trial jury to convict. If so then that would render the verdict unsafe. Thirdly we are satisfied that the evidence of Miss Woodcock would have been admissible at the trial on an issue which was the subject of appeal. Hampton’s defence was alibi.That was the issue at the trial and it is a principal issue on his appeal.

[105]That leaves the fourth factor: is there a reasonable explanation for the failure to adduce her evidence at the trial? Mr Fitzgerald submits that there is a reasonable explanation. He says that all the evidence before this court, in particular from Miss Woodcock herself, Mr Carney, Mr Bown and Mrs Gladwell, establishes the following facts:(1) that it was always intended that Miss Woodcock should be called as an alibi witness;

(2) that she attended court on 16 October 2001 for that purpose;

(3) that her father was unhappy about her relationship with Hampton and Hampton’s parents and he made his feelings plain that morning;

(4) that Miss Woodcock and her father had an argument about that at court and she left the court building very upset and she then returned but had another argument with her father on the same subject which upset her again;

(5) that she went off to have lunch with a friend expecting to return to court at 2pm to give evidence;

(6) that she met her father at lunch time, they made up and he told her to be back after lunch and to tell the truth;

(7) that Mr Carney was told (probably by Mrs Gladwell) that Miss Woodcock was very distressed;

(8) that at a conference between Hampton and Mr Fordham at which Mr Carney was present, Mr Fordham told Hampton that he must decide whether Miss Woodcock should be called. Mr Fordham asked Hampton to think about that carefully;

(9) that at about 1.45 pm Mr Carney went down to the cells on his own to ask Hampton if he had made a decision about calling Miss Woodcock. Hampton told him that he did not want her called as he did not want her put through the ordeal of giving evidence;

(10) that Mr Fordham had a quick discussion with Hampton at the back of court after the lunch adjournment to confirm that decision;

(11) that Miss Woodcock met her father after lunch at court and he said, much to her surprise, that she was not needed to give evidence;

(12) when the jury had retired, Mr Bown told Mr Carney that, in his opinion, Miss Woodcock should have been called to give evidence.

[106]Mr Fitzgerald submits that, on those facts, it is clear that Hampton was left to make the decision on whether Miss Woodcock should have been called. But he decided that she should not be called in the belief, which was false, that she was so upset as to be unable to give evidence, or that because she was so upset she was unwilling to give evidence. In fact (Mr Fitzgerald submits) neither was the case; she was both able and willing to give evidence. He submits therefore that the decision not to call her was not an informed tactical decision at all, but one based on a mistaken view of the state of affairs at the time.

[107]We cannot agree with that analysis. We accept, of course, that Mr Fordham had advised on 18 September that the defence would “almost certainly” have to call Miss Woodcock. But it is clear from the agreed statement of Mr Killeen that no final decision had been taken to call her before or during the trial. There were daily conferences at which this issue was discussed. As we have noted, Mr Killeen said in his statement that although he could not speak for Mr Fordham, Mr Killeen would have waited until Hampton had given evidence before making a decision. That evidence strongly suggests that no decision had been made until Hampton gave evidence. That is consistent with how we would expect Mr Fordham, who was a most experienced and astute advocate, to have conducted the defence. He had drafted the defence statement but had deliberately not referred to the 02.51 telephone call. He had stopped the examination in chief of Hampton on Monday 15 October just before he got to the vital issue of the 02.51 telephone call. He obviously wished to consider, overnight, whether to adduce that evidence in chief. He decided to do so, but was clearly nervous that the jury might think it incredible that Miss Woodcock should phone Hampton when he was just two floors below in the same house– hence the questions about whether such a call had been done before. A jury might well have thought that the reason for Miss Woodcock’s phone call was that Hampton had not returned as he had promised, by 01.30, and she was phoning him to find out where he was. If they did think that then a conviction was almost certain. We are satisfied that Mr Fordham was deliberately leaving open the decision on whether to call Miss Woodcock until after Hampton had given evidence and his mother had given evidence. As we have noted, in his advice on appeal, Mr Fordham said that he thought Mr Hampton and his parents had given “apparently attractive” evidence.

[108]Mr Fitzgerald submitted that there was no evidence that counsel’s concerns about Miss Woodcock’s testimony had been communicated to Hampton. In our view there is indeed such evidence. But the most striking feature in this appeal is that we did not hear evidence from the appellant himself. There has been no explanation of events from him, despite the fact that it was Mr Carney’s evidence that Mr Fordham left the decision on whether to call Miss Woodcock to Hampton himself.

[109]We do not accept the submission that Hampton was unaware of counsel’s concerns about the wisdom of calling Miss Woodcock. The statement of Mr Killeen and the evidence of Mrs Gladwell establish to our satisfaction that there were conferences each morning and evening with Hampton and we are satisfied that the issue of calling Miss Woodcock was raised at those. We conclude that Hampton must have known of the concerns about calling Miss Woodcock at all times. He knew that her statement to the police was inconsistent with his own account in interview.

[110]We have concluded, on the evidence we have heard that, at the close of Hampton’s evidence, no decision on whether to call Miss Woodcock had been taken. It is clear from what Mr Fordham wrote in his advice on appeal that he considered at the trial that Hampton’s evidence had gone well. It was in this state of things that counsel and Hampton learned, at around lunch time on 16 October, that Miss Woodcock had had arguments with her father that morning, had disappeared from the court building in an hysterical state and was, apparently, still very upset. We find that neither counsel, nor Hampton were under a mistaken impression that she was either unable or unwilling to give evidence for Hampton.

[111]It was in those circumstances that the decision not to call Miss Woodcock was made and confirmed by 14.00 on 16 October. It is clear from the evidence that there were two short adjournments in the afternoon of 16 October 2001 before Hampton’s case was closed. There was ample opportunity for counsel and Hampton to review the question of whether Miss Woodcock should be called. She was, by that time, present in the court building. We are quite sure that if either Hampton or counsel had wished to have further time to reconsider that issue, or to make further enquiries of Miss Woodcock on her willingness to give evidence, Mr Fordham would have asked for a further adjournment and he would have been granted one. We are not satisfied that Mr Bown was, at that stage, urging Mr Fordham to call Miss Woodcock.

[112]In these circumstances we are sure, on the evidence, that Mr Fordham concluded that it would be unsafe to call Miss Woodcock to give alibi evidence in her state, but he left the final decision to Hampton. Hampton decided, we conclude, that she should not be called because it would be a dangerous thing to do in her emotional state. Both must have decided that there should be no request for an adjournment. We are satisfied that both Hampton and his counsel made a clear tactical decision not to call her and that was made on a fully informed basis. No doubt both had in mind the potential damage which Mr Turner could do to the defence case when cross-examining Miss Woodcock about the inconsistencies in her various accounts and the inconsistencies between her account and other accounts. If he had wanted to, he could have compared what she was saying with Hampton’s defence statement which had omitted all reference to the 02.51 call.

[113]Therefore we conclude that, for the purposes of section 23(2)(d) of the Criminal Appeals Act 1968, there is not a reasonable explanation for the failure to call Miss Woodcock to give evidence at the trial. We also hold that, in the circumstances, it would not be expedient to receive the evidence of Miss Woodcock. Hampton had the opportunity to call her at his trial. He and his advisers decided not to call her for very sound, tactical reasons. There are, in our view, no exceptional circumstances why Hampton should now have the opportunity to adduce Miss Woodcock’s evidence on appeal when an in formed tactical decision not to call her had been made at the trial.

[114]Accordingly, this ground of appeal must be rejected.

[115]Ground E related to cell site evidence and ground F to the evidence of two witnesses, Mr and Mrs Corrin. Both were abandoned.

[116]We turn to ground G, which we have already identified as concerning the non-disclosure of cell-site evidence relating to a 35 second call made on Brown’s mobile to Hampton’s mobile at 03.29 in the early hours of the morning following the killing. Hampton agreed in evidence that Brown had spoken to him on the mobile.

[117]Evidence of the fact of the call was served upon the defendants at about the time of the start of the trial. However the prosecution were unable formally to prove the call and invited the defence to admit it. As in the case of 02.51 call, the defence refused.

[118]No mention of that call was made in the course of the evidence of Brown, either in examination in chief or cross-examination. No mention of the phone call had been made during Brown’s interview with the police notwithstanding that that interview took place only a few days after the events in question. No mention was made of the phone call in Brown’s defence statement notwithstanding that one would have expected him to be able to gain access to his phone records for the important events of the night of the killing if he had wanted to do so.

[119]No mention was made of the phone call by Hampton in his police interview, in his defence statement or in his examination in chief. During the course of his examination in chief, however, he had mentioned the 2.51 call which forms such an important part of the Jill Woodcock fresh evidence ground.

[120]Mr Turner had not felt entitled to make reference to the 3.29 call in the absence of an admission by the defence that such a call had been made. Brown had not mentioned it in his evidence. However, Hampton having referred to the 02.51 call, Mr Turner felt entitled to ask this question:

“Q. Who else do you speak to that night after that?”

[121]The transcript then reads:

“A. It’s actually quite interesting this. Me and Michael, according to Mrs. Corrin, are standing at the back of Michael’s car at half - - - Q. No, who else do you speak to that night on the mobile phone? A. This is what I was going to say, who I spoke to. Me and Michael at half three in the morning are standing at the back of Michael’s Golf but Michael is on the phone to me at that time. So we’re standing at the back of Michael’s Golf, I’ve got my mobile phone in my hand and we’re talking to each other because that’s what we do. Q. Do you agree that 3.30 you and Michael spoke to each other on the phone? A. Yes, so unless - - - Q. What were you talking about at 3.30 in the morning you and Michael? A. If they actually bring my phone records in you’ll find that a lot of my calls are made between the hours, nightclub hours because I sleep of a day and I work of a night. I’m a nighttime person. Q. What were you talking about at 3.30 in the morning? A. I don’t know, it was probably him saying - - this is a guess, he just said like you open the gym up tomorrow morning or if I had like got in at 4 o’clock in the morning I was thinking I’m not getting into work for one here, I’d phone him up and say; listen, you go in early. Q. So you were talking at 3.30 and cannot remember what you were talking about? A. The phone call lasts for 30 seconds, doesn’t it? That’s a 30 second phone call and I’m sorry, I can’t remember the exact conversation but ... Q. You had been together all that time and yet there is a call at 3.30 in the morning? A. Yes. Q. You are still up and about at 3.30 in the morning. Where were you? A. I’m in the house at 3.30 in the morning. ...”

Q. No, who else do you speak to that night on the mobile phone? A. Yes, so unless - - - Q. What were you talking about at 3.30 in the morning you and Michael? Q. What were you talking about at 3.30 in the morning? Q. So you were talking at 3.30 and cannot remember what you were talking about?

Q. You are still up and about at 3.30 in the morning. Where were you?

[122]We cannot but help ask ourselves why there was so much “coyness” about the 03.29 call (as there had also been about the 02.51 call from Miss Woodcock to Hampton). The answer must be this: introducing the 03.29 call into evidence carried with it a substantial risk. Brown’s defence statement ended with his account of driving his Volvo motor car to his girlfriend’s house, arriving there at 02.45. Her house was some 3.4 miles from Vaux Crescent. It was agreed that, at that time, it would take about 7½ minutes to drive that distance. In evidence he said that when he arrived at his girlfriend’s house at about 02.50 she was in bed asleep. He said:

“He got into bed, went to sleep”

. As Mr Turner pointed out, that evidence would, on the face of it, be inconsistent with a phone call made at 03.29 to Hampton. Furthermore a call at that time to Hampton, from whom on his account Brown had parted at about 02.00 might be difficult to explain if they had not been involved in the killing. The call was, it may well have been thought, more consistent with the prosecution’s case that the two were involved in sorting out the consequences of having killed Colin McGinty.

[123]Brown and Hampton must have remembered that phone call (and Hampton certainly did), as Mr Bown, the solicitor who represented both defendants. Mr Bown, we note, did not seek discovery of any cell site evidence relating to it. Indeed the call, as we have said, was not mentioned in either defence statement.

[124]Before the trial the prosecution had evidence from Brown’s mobile phone provider that Brown made that call within half a mile of its mast in Devonshire Place. Devonshire Place is not far from the home of Brown’s girlfriend and within the radius of the transmitters. That provided some (albeit far from conclusive) evidence to support what Brown was saying in his defence statement, namely that he was at his girlfriend’s house from 02.45 and, by implication, that he stayed there overnight. If he was there by 02.45 and had stayed there overnight, that could undermine the prosecution’s case based on the evidence of Mrs Corrin that it was he and Hampton who were looking at the car at 02.55, 3.10-3.20 and 3.50. It could also undermine the prosecution’s case that Hampton and Brown were inseparable and that, for this reason, amongst others, the jury could conclude that Hampton was in Brown’s car at 02.45 when its occupants were involved in the killing of Colin McGinty.

[125]The cell site evidence was not disclosed to prosecuting counsel.

[126]Although Mr Turner sought at first to argue that the material was not discloseable, it seems clear that it was discloseable in the light of section 7(2) of the Criminal Procedure and Investigations Act 1996. Mr Turner, after some hesitation, accepted this. We were told that the SIO and the CPS reviewing officer felt that it did not undermine the prosecution case or assist the defence case. We disagree, as also now does Mr Turner. The material was plainly disclosable and it is most unfortunate that the material was not disclosed.

[127]As was said by the House of Lords in R. v. H and R v C

[2004] UKHL 3

“14. Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.”

[128]Those responsible for disclosure decisions must bear this in mind and must also bear in mind that a failure to disclose when disclosure should have been made may well put at risk a conviction only obtained after a great deal of emotional stress for the victim of the crime or for his or her family and friends and after the expenditure of a great deal of time and money.

[129]In the light of our conclusion that there was a failure to disclose, we must now ask whether the conviction is safe.

[130]Mr Marks QC (with whose submissions Mr Fitzgerald concurred) argued that if the defence had known about the cell site evidence, this would have been “a helpful but not a knockout blow”. It would tend to support Brown’s case that he was at his girlfriend’s house on and after about 02.45.

[131]Mr Turner submitted that there was still ample time for Brown to get to his girlfriend’s house after the 03.20 Corrin sighting and back by 03.50 for the next sighting. He submits that the call is consistent with Brown going to his girlfriend’s house in order to dispose of incriminating material, such as bloodstained clothes, and then, following the call, return to take another look at the car. Mr Marks points out that all that the “boys” were seen doing was looking around the back of the car.

[132]Mr Marks submitted that if the prosecution had put their case in this way, then counsel for Brown would have asked Mrs Corrin whether she had seen a Volvo drive past her house and drive back again. The basis for that submission was his instructions that the Volvo would have to pass in front of Mrs Corrin’s house in order to get to the home of Brown’s girlfriend. The prosecution did not accept those instructions in the course of oral argument in front of us.

[133]As Mr Turner points out, this makes no sense. On Brown’s case he did leave in his Volvo at about 2.45 and, if the instructions he gave to Mr Marks were correct, he must have passed in front of Mrs Corrin’s house. The journey in the Volvo was part of his defence case and if it had been thought that Mrs Corrin would have seen it, then questions could have been asked of her about it. No such questions were asked.

[134]Mr Marks then submitted that CCTV evidence might have been obtained. However as Mr Turner pointed out, CCTV evidence would have been important for Brown’s primary case that he went to his girlfriend’s house at 02.45, as well as the more important earlier movements. No attempt was made to find any such evidence to support that case.

[135]The assumption underlying the submission made by Mr Marks is that the phone call was made from the girlfriend’s house and that evidence to that effect would have been given. However, as we have pointed out, no evidence was given about the 03.29 call albeit, even without the cell site evidence, it could tend to show that Brown and Hampton were not together at 03.29. However neither appellant chose to rely upon that fact in their defence statements or in their evidence in chief. Hampton did accept it when cross-examined about the matter by Mr Turner. It is submitted by Mr Marks that at that point, if not before, the location of cell site evidence was of even more importance, given what Mr Turner was putting to Hampton in the passage which we have set out.

[136]We have concluded that the decision not to admit and put into evidence the 3.29 call shows clearly that the appellants recognised that it was, as Mr Turner submits, very double edged. We believe that the defendants would not have relied on the cell site evidence which in any event, showed only than that Brown was within the radius of the transmitters in Devonshire Place.

[137]Even if we were wrong about that, the cell site evidence would have been of very marginal significance to the defendants in the presentation of their case and would have contradicted the evidence given by Brown that he was asleep at 03.00 (evidence which he gave knowing that there had been a call at 03.29, albeit that the prosecution could not rely on it). The cell site evidence would not conceivably have affected the outcome of the case. Nor do we think that this conclusion is affected by the fact that the call was mentioned during the cross-examination of Hampton.

[138]We remind ourselves of the principle in Pendleton that this court must not intrude into territory which properly belongs to the jury. Nonetheless, in our view no jury would have reached a different conclusion even if the cell site evidence regarding the 03.29 call had been deployed by the appellants.

[139]This ground also fails. For these reasons the convictions are safe and the appeals fail.

[140]There are two lessons which can be drawn from this case. Firstly, if a defendant is in a position to call a witness on his behalf at his trial and he makes a deliberate and informed decision not to do so, he and his advisers should not expect this court to allow an appeal on the basis of fresh evidence. Secondly, those responsible for disclosure of unused material must realise the potentially drastic consequences of not making disclosure.