Young, R v [2005] EWCA Crim 1121

Case No 200403639 D2[2005] EWCA Crim 1121
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 26th April 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE WALLER
MR JUSTICE HEDLEY
MR JUSTICE ROYCE
Between
R E G I N ACrown-v-
Between
MARTIN YOUNG
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J BROADLEY appeared for APPELLANTMR T BUBB appeared for CROWN
J U D G M E N T

LORD JUSTICE WALLER:

[1]This is an appeal against conviction upon a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. The Crown do not resist the appeal being allowed. We have obviously had to take a view ourselves as to whether the appeal should be allowed, but we can say at the outset that we do take the view that it should be allowed, perhaps not absolutely consistently with the Commission's view, but that may matter not.[2]The conviction took place at a re-trial in the Leeds Crown Court as long ago as 25th July 1986, when the appellant was convicted by a majority of 11 to 1 of two counts of criminal damage (counts 1 and 2) and one count of possessing articles with intent to destroy or damage property (count 3). At the original trial there had been four counts and the appellant was acquitted on what was then count 3 of that indictment, namely a count of threat to kill, so count 4 became count 3 for the re-trial.[3]The appellant was sentenced to a total of two years' imprisonment, 12 months of which was suspended.[4]He appealed that conviction. His appeal came before a full court on 16th May 1991 and they dismissed his appeal against conviction. The main basis on which that appeal was launched was on the basis that there was a witness who had not been called at the trial. The appeal court did not find that witness credible and that was the basis on which the appeal was dismissed.[5]Looking at the matter broadly for a moment, on the night of 14th and 15th October 1984 a brick was thrown through the window of a house in Halifax, 34 Dene Place, occupied by a family of the name of England (that was the subject of count 1). On the same night a car parked outside belonging to Charles England was damaged: one of the tyres had been slashed and the windshield had been smashed (that was the subject of count 2). The appellant's defence to both counts was alibi. On 3rd April 1995, whilst the appellant was in custody for an unrelated matter, the police searched his home and they alleged they found three petrol bombs. The police alleged that the appellant maintained that those bombs were there for the purpose of defending himself (that was the subject of what became count 3). The appellant's defence to that count was that those bombs had been planted by the police and that they fabricated what they asserted he said.[6]It was the prosecution case that as a result of a long-standing feud between the appellant and Charles England, the appellant had carried out the criminal damage to the window and the car. The Crown relied, and this is important, on the evidence of Brenda England, who said she saw the appellant walking away from the house and stop under a street light, where she was able to see his face. The police later found a knife in the appellant's car that was said to have been capable of causing the damage to the car. In relation to the petrol bombs it was the Crown's case that the appellant had made the petrol bombs and stored them in his cellar, intending to use them as part of his vendetta against the England family. A torn shirt was also found and fabric from the shirt was used for making the wicks for the petrol bombs. The police also found a pair of jeans and a pair of gloves smelling of petrol and canisters of petrol of a similar refinement to that found on the bombs. A note was found detailing the registration number of Charles England's car. Again importantly, the Crown relied on confessions made by the appellant during interviews.[7]It was the defence case that the animosity between the appellant and the England family had not reached such a level that it would cause him to carry out acts of criminal damage. The appellant's friends were able to provide him with an alibi for the time immediately prior to the time the criminal damage took place. It was alleged that the witness, Brenda England, who purported to identify the appellant was either wrong or mistaken. The appellant also asserted that the police had fabricated the confessions. In relation to the offences and the confessions relating to the possession of the petrol bombs, he said that was all part of a malicious campaign against him by the police. He asserted that the bombs had been planted. The appellant called a witness, a workman who had done work at the house where the petrol bombs had been found. That witness, if believed, would have supported the view that the bombs were not there at that moment in time.[8]In a little more detail, the background needs to be spelt out. We can take that from the reasons given by the Commission.[9]The argument between Mr Young and the Englands seems to have flowed from the fact that Mr Young separated from his wife in April 1984. She went to stay temporarily with Brenda England, who lived with her parents and her brother, Charles England. She also went to stay with a family, Mr and Mrs Taylor. A bitter dispute arose between Mr Young and his wife which resulted in divorce proceedings. In those divorce proceedings Charles England was cited as co-respondent. Mr Young accused both the Englands and the Taylors of interfering with the arrangements for access to his children.[10]It was on 15th October 1984 that a brick was thrown through the front living room window of the Englands' house (that was the subject of the count 1) and Charles England also discovered the smashed windscreen and the slashed tyres. It was at that stage that the police were called.[11]At first it seems Mr England thought that local youths were responsible. Then, on enquiry from the police as to whether anybody had a grudge, he said that the only person he could think of was Mr Young.[12]Four days later, on 19th October 1984, Mr Taylor discovered his car tyres had been slashed. Mr Young was arrested as a result of information given to the police by Mr Taylor and Mrs Young. He was interviewed but denied the offence. His car was searched and the police found a knife under the front passenger seat. He was released on bail pending further enquiries.[13]Mr Taylor's tyres were again damaged on 25th October. Again, the police suspected that Mr Young might be responsible. It is at that stage that Detective Sergeant Ellis of the West Yorkshire Police took over the responsibility for the police investigation. On 30th October he re-interviewed the England family and, according to DS Ellis, Brenda England, who had been present in the house when the police had first attended about the matter and had spoken to the Englands, at this stage told DS Ellis that she had seen Mr Young walking away from the house shortly after the brick had been thrown through the front window. She had made no mention of that sighting to the police on 15th October.[14]As a result of what Mrs Young told DS Ellis, as well as investigating the damage caused to the Englands' property and Mr Taylor's car, DS Ellis also conducted enquiries in relation to other similar incidents. Statements were taken from a number of witnesses who said that, after having had arguments with Mr Young, tyres of theirs had been damaged.[15]DS Ellis decided to set up a video surveillance. That happened, but before any evidence from that video could be obtained Mr Young was arrested and taken to the police station.[16]DS Ellis suggested that he had got Mr Young's consent to search Mr Young's house. That was disputed by Mr Young, but the house was searched. Various matters including Mr Taylor's and Mr Charles England's car registration numbers written on pieces of paper were found by the police at Mr Young's house.[17]Mr Young was interviewed later that day by DS Ellis and a woman detective constable. He was questioned about various incidents. It was DS Ellis' suspicion that it was Mr Young who had slashed Mr Taylor's car tyres, but at that stage he was released on bail.[18]There was a further incident at 34 Dene Place on 1st December 1984, when Brenda England made a complaint that Mr Young had made a threat to kill. That was the subject of the count of which the jury at the first trial acquitted Mr Young.[19]Mr Young was arrested on 8th January and allegedly interviewed by DS Ellis and Detective Constable Irvine. The officers alleged that it was at that interview that Mr Young admitted causing damage to the Englands' property.[20]No solicitor was present at that interview. Mr Young always denied making any admissions, and indeed it was his case that the interview never in fact took place and that DS Ellis and DC Irvine had fabricated the notes of the interview.[21]On the following day Mr Young was seen in his cell by DS Ellis and Detective Inspector Haigh. The officers alleged that during conversation with Mr Young he repeated admissions. Mr Young's case always was that he accepted that a conversation had taken place but he denied making any admissions. Mr Young was charged with criminal damage and making threats to kill on 9th January and he recorded on the charge sheet the words "not guilty".[22]There was a hearing at Calder Magistrates' Court on 3rd April, when Mr Young was committed for trial to the Crown Court. During that hearing Mr Young alleged that the police had fabricated his admissions and were trying to frame him. As he was leaving court on that day DS Ellis arrested him for the theft of some windscreen wipers from a car belonging to another gentleman unconnected with the families we have been describing. That theft had in fact occurred about six days previously.[23]Mr Young was taken into custody. On arrival at the police station he wrote on the record of detention that he was not prepared to say or sign anything. He also requested the services of his solicitor, a Mr Nigel Atkinson, but that was refused. No reasons were endorsed on the record of detention as to why access had been refused.[24]DS Ellis obtained a magistrates' court warrant to search Mr Young's house for the stolen windscreen wipers. When he searched the house, together with DC Irvine, those officers allegedly found three home-made petrol bombs in a cellar. DS Ellis and DC Irvine alleged that they interviewed Mr Young later that day. They said that he admitted making the petrol bombs with the intention of throwing them at Charles England's car.[25]The record of the interview indicated that Mr Young had said that if Charles England had come to his house he would have used the petrol bombs to defend himself. Mr Young denied making any admissions and alleged that DS Ellis and DC Irvine had told him that they were going to fabricate the notes of the interview and that they had planted the petrol bombs in his house.[26]The ban on his access to a solicitor was lifted at 10.30 that evening after the alleged interview, and Mr Young was eventually allowed to see a solicitor, Mr Atkinson, at 10.40 the following morning, 4th April. He was charged that morning at 11.15 with possessing articles with intent to destroy or damage property. Again on the charge sheet he wrote "not guilty".[27]So Mr Young was initially charged with two separate counts in relation to criminal damage, those were the incidents relating to the Englands, and with the threatening to kill Charles England. As we have said, the threatening to kill was a count on which he was found not guilty by the jury at his first trial so the re-trial was concerned with count 1 criminal damage, which was Charles England's car, count 2 criminal damage, which was the broken window, and what became count 3, which was possessing the petrol bombs with intent to destroy or damage property. Mr Young was evidently committed for trial on certain other charges, but it is unnecessary to go into the details of why those other charges were not proceeded with.[28]As may by now be clear, the prosecution case really came under three heads. They first relied on Mr Young's alleged admissions, they relied on Brenda England's identification evidence and the evidence of the hatred and animosity felt by Mr Young towards the Englands, which it was alleged provided a motive for the offences. So the police evidence as to the interviews and to the admissions was critical, as indeed was Brenda England's evidence. She said she was in bed and had heard shouts from downstairs and she had heard the brick thrown through the front window. She said that she had gone immediately to the front upstairs window and seen Mr Young walking away from the house towards Richmond Road. She said in her evidence that he stopped as he turned left into Richmond Road and looked back towards the house. Although it was dark she recognised it was Mr Young because he was standing directly under a street light and she could see his face. However, she got only a brief glimpse and she said he was about 300 yards away. She said that her view was unobstructed. She could not recall whether she was wearing her glasses at the time.[29]At the re-trial, and indeed at the first trial, there were no photographs of the area made available to the jury; all that was before the jury was an Ordinance Survey map produced by the defence. Mrs Brenda England's evidence as to her ability to identify Mr Young was cross-examined simply by reference to the Ordinance Survey map.[30]The defence case at the trial was first and foremost that Brenda England's identification was wrong, either because she had made a mistake or, as the defence were asserting more likely, because she had fabricated her evidence. What was suggested was that DS Ellis had put her up to lying. The defence said it was suspicious that she had not mentioned her sighting of Mr Young to the police until 30th October 1984, nearly two weeks after the incident. It was also suspicious that she did not give a formal statement to the police until 7th January 1985, this being one week after the incident when Mr Young allegedly made threats to kill Charles England and only the day before Mr Young was arrested and re-interviewed.[31]The defence also alleged that DS Ellis and DC Irvine had fabricated the admissions attributed to Mr Young. The defence alleged that they had planted the petrol bombs. It was alleged that DS Ellis in particular had developed a hatred of Mr Young and that the whole of his investigation was driven by malice towards Mr Young. It was asserted that DS Ellis would go to any lengths to secure a conviction, including fabricating evidence.[32]Mr Young's defence to counts 1 and 2 was one of alibi and he called three witnesses to support that alibi. The prosecution asserted that those witnesses were either mistaken or lying to support Mr Young.[33]As far as the interviews were concerned, Mr Young alleged that the interview on 8th January never took place, he claimed he had been in his cell the whole time. He alleged that the police must have fabricated the entry in the record of detention which showed him out of his cell for interview. He agreed that the conversation between himself and DS Ellis and DI Hague on 9th January did take place, but denied that he made any admissions.[34]He alleged that the 3rd April interview was a complete fabrication. He alleged he had been taken to an interview room but no interview had actually taken place. He asserted that it was on that occasion that DS Ellis and DC Irvine told him that they had made the petrol bombs and had planted them in his house and that they were going to make up a confession. He alleged that the interview notes were made up later and were a complete fabrication. He alleged that the officer prevented him from leaving the interview room. He said that at one point he saw PC Ingram, who was the jailer, passing the door and he tried to escape, but DS Ellis physically restrained him. He alleged that PC Ingram intervened and told DS Ellis that the physical well-being of prisoners was his responsibility. He claimed that when he was taken back to his cell he complained to PC Ingram that DS Ellis was setting him up and was going to fabricate a confession. He also claimed, and again this is important, that he made the same complaint to two senior officers, Inspector Richardson and Inspector Alderson.[35]Those officers all gave evidence at the trial. Inspector Alderson said that Mr Young had made it plain to him that DS Ellis had interviewed him that evening. However, he had indicated in one breath that DS Ellis was going to give fabricated evidence but in the next breath was trying to have him believe that he had not listened to the interview and could not remember signing the interview notes. Inspector Alderson had advised Mr Young that in the circumstances, because it was so late, he should request to see a copy of the notes through his solicitor the following morning. Thus it was that Inspector Alderson made no effort at that stage to check the position in relation to interview notes.[36]Mr Young called as part of his case a Mr Graham, a plumber, to give evidence to support the fact that the petrol bombs had been planted.[37]The judge, in his summing-up, directed the jury on this aspect that someone had to be lying about the petrol bombs and put it to the jury that either Mr Graham was telling the truth, in which case, assuming he was correct about the date, the bombs must have been planted; alternatively, Mr Graham was lying in order to protect Mr Young.[38]As we have indicated, after the finding of guilt of Mr Young at the re-trial the matter came to the Court of Appeal. We repeat what we have already said, which was that the only point taken on the appeal was that Mr Young now had available a new witness who was saying that he had slashed Charles England's car tyres and thrown a brick through the window. The Court of Appeal on that occasion did not find Mr Quill's account credible and thus the appeal was dismissed.[39]Mr Young applied to the Commission. So far as the reasons are concerned, they date that as 17th July 2000, but the reasons also state that it included an advice from counsel dated 24th January 2002. It possibly is not material precisely which date the matter was referred to the Commission. The important thing is that it was referred to them and the Commission made very extensive investigations into Mr Young's complaints about the police conduct and into the way in which the trials, and particularly the re-trial, had been conducted and ultimately referred the matter to this court by virtue of the following points.[40]First, they were of the view that there was a misdirection to the jury on the defence of self-defence in relation to count 3. It must be remembered that the charge was that Mr Young "had in his custody or under his control three petrol bombs intending without lawful use to use them to destroy or damage a motor car belonging to Charles Keith England". Of course, Mr Young's defence was that those bombs had been planted. It was the police case that, in making admissions about those bombs, Mr Young had said something to the effect that he had those bombs in his possession in order that he could use them against Mr England's car. There is no doubt that technically it is right, as the Commission point out in paragraph 77 of their reasons, by reference to Attorney-General's Reference (No 2 of 1983), that self-defence can be a defence to the charge made against Mr Young in relation to the petrol bombs. But we have to say that, first of all, it seems rather unlikely where Mr Young was asserting that these bombs had been planted that he would have wanted at his re-trial a direction on self-defence, but even if the judge had felt obliged to do so, in a case such as this where someone is talking of throwing petrol bombs at a motorcar belonging to Charles England, we are doubtful whether any Court of Appeal would have said that the conviction was unsafe by virtue of any failure to direct the jury on self-defence. But this is just one point amongst others.[41]The Commission went on to deal with four points which they raised under the heading of "Abuse of Process". They quite correctly point out that cases may be stopped on the basis that there has been an abuse of process and they correctly point out that that can be so by reference to conduct of the police. We have to say, however, that at the time that this case was tried we are in doubt as to whether abuse of process could have been successfully pursued, but once again that really is not the significant point. The significant point is whether, looking at the matter now by reference to the points that the Commission make, this conviction could be considered safe. When one takes the points, and particularly when one takes the points cumulatively, it seems to us clear that the conviction cannot be considered safe. The four points in brief are these.[42]As previously indicated, the prosecution case at trial was that Mr Young had admitted to the offence in count 3 during a contemporaneously recorded interview on 3rd April 1995. The defence case was that the interview was entirely fabricated and that DS Ellis had told Mr Young that he planted the petrol bomb and was going to fabricate a confession. As already indicated, Mr Young asserted that, having been returned to his cell, he had complained to three police officers that DS Ellis was going to fabricate notes of the interview. One of those police officers was Inspector Alderson. The Commission have done a detailed investigation of the way that matter was treated at the trial, how, for example, Inspector Alderson's evidence was given orally at the first trial but was then read at the second trial and how it was dealt with by counsel, and indeed there is some criticism of the way it was dealt with. But the key point is that the view that the Commission had taken, obviously rightly, by reference to the regulations to which they refer in paragraph 103 of their reasons, was that the complaint made by Mr Young that DS Ellis and others were in the process of fabricating notes and fabricating admissions was clearly a serious complaint and Inspector Alderson's only excuse for not investigating that complaint when it was made to him on that evening was that there was some uncertainty as to what Mr Young was saying and that it was late at night that the complaint was being made. So that very serious complaint was not at that moment in time investigated at all. The point, of course, is that if that complaint had been investigated at that moment in time, then, if notes were being fabricated, that would have been discovered; on the other hand, if they were not, then any allegation of fabrication would go by the board. But so far as this court is concerned now, and any Court of Appeal even quite soon after the event was concerned, the mere failure to conduct that investigation in relation to a serious complaint meant that evidence from Inspector Alderson as to what the position was simply was not available.[43]The next matter that is referred to by the Commission is the fact that Mr Young was refused access to a solicitor. Again, it may to some extent be with the benefit of hindsight that one can so clearly see that the refusal of access to a solicitor was a very serious matter. Certainly Mr Young appears to have asked for a solicitor, about that there seems no doubt, and it is clear that he was refused access and only given access after some 24 hours. The Commission put it this way:
"The record of detention indicates that Mr Young made a request to consult with his solicitor, Mr Atkinson, but that his request was refused for 8 hours at 12.10 pm on the authority of Inspector Slocombe. The ban on an access to a solicitor was lifted at 10.30 pm, after Mr Young had been interviewed, on the authority (it appears) of Inspector Alderson. Mr Atkinson was eventually contacted at 9.00 am the follow morning (4 April). He is recorded as having a consultation with Mr Young at 10.40 am. Mr Young had a further consultation with his solicitor at 11 am. The name of the solicitor is not recorded. Thereafter, Mr Young was formally cautioned and charged at 11.15 am. When charged he is recorded as saying 'not guilty'."
[44]The police conduct in question as to why access was refused was the subject of a police inquiry by Superintendent Wooler. It is only necessary to refer to his conclusion. He concluded that "Inspector Ellis [DS Ellis presumably by then being Inspector Ellis] agreed that he would not allow Young's solicitor to have access to him. This was because he feared the solicitor may inadvertently interfere with the process of the investigation". Superintendent Wooler was of the opinion:
"Whilst this explanation appears to be based on theory rather than practice, there is no evidence available to support Mr Young's allegation that the reasons were 'silly'."
[45]The Commission formed the view that there is, and was at the time of Mr Young's trial, evidence to establish a breach of Mr Young's right at common law and under the Judges' Rules to consult a solicitor. They were of the view that the reasons given by DS Ellis for refusing access, that the solicitor might be an unwitting dupe or, worse, divulge information prejudicial to the investigation, were unjustifiable, and then they give a number of reasons. In essence, what those reasons come to is that the charge at this stage in relation to Mr Young was the theft of the windscreen wipers and any idea that he had stolen those windscreen wipers in order to acquire them, as opposed to destroy them, seemed highly improbable, and any idea that a solicitor might have interfered with the administration of justice seemed highly improbable. So that, again, the view of the Commission that Mr Young was wrongfully deprived of a solicitor is a view that we would support. The importance of it in this case is, of course, that if there had been a solicitor present at any of the interviews at which admissions were said to have been made, again it would either be known that those admissions were made or, if there was any impropriety taking place in the recording of admissions, then the presence of a solicitor would have safeguarded Mr Young against that impropriety.[46]The third matter related to the obtaining of the search warrant. The point here is that the police used the theft of the windscreen wipers as a basis for obtaining the search warrant. Of course, the search warrant would have to be issued pursuant to section 26(1) of the Theft Act 1968, which provides that:
"If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or possession or on his premises any stolen goods, the justice may grant a warrant to search for and seize the same..."
DS Ellis was in fact cross-examined at the trial on the line that he was simply using the theft of the windscreen wipers as a basis on which to obtain this search warrant when really he had no belief whatever that Mr Young would have the windscreen wipers on his premises. The fact that the point was taken at the trial does not detract from the fact that it is a point, as it would seem to us, of some force that here a search warrant was being obtained in circumstances where it was difficult for the police to justify believing that the windscreen wipers would be on the premises of Mr Young.[47]The fourth point, and perhaps the most important point, relates to the identification evidence of Brenda England. This was critical evidence. At the trial she gave evidence that within minutes of a brick being thrown through the front window of 34 Dene Place she went to an upstairs bedroom window and saw a man walking away from the house. Although it was dark she recognised that it was Mr Young because he was standing directly under a street light and she could see his face.[48]During cross-examination she said that at first when the man was walking away from the house, she could not be sure it was Mr Young as he had his back to her. It was only when she saw his face under the street light that she was positive it was him. She emphasised the fact that she saw Mr Young standing under a street light:
"He just glanced for a couple of seconds, and that's when I could see because he was under a street lamp, right under the street lamp then"
. She was asked whereabouts in Richmond Road the man turned round. She said he was "Just on the bend" and he was turning left where the footpath was, this being a reference to the map. When asked where the man then went, she said he carried on walking down Richmond Road. She described the fact that the street light itself was visible. She said:
"You can see for about, what, 2 or 3 yards as you get round into Richmond Road, where the light is, the street light, and then after about 2 or 3 yards you can't see anything because the block of flats are obstructing the view..."
She was shown the plan, which was, as we have said, the only aid available, and asked whether her view of Mr Young was in any way obstructed. She agreed that there were some shops and garages between the house and Richmond Road, but maintained that her view of Mr Young was unobstructed as the buildings had flat roofs.[49]Before the Commission there were produced certain photographs. First, there were photographs produced by a private investigator, a man called Mr Roy Moses, but there were also produced photographs which had been taken during the inquiry that Superintendent Wooler had carried out. Amongst the photographs taken during that inquiry was one photograph which the Commission described as photograph 4. That was a photograph taken from Brenda England's bedroom window looking towards Richmond Road.[50]What the Commission concluded was that the photographs provide strong evidence that Brenda England's trial testimony, and that she saw Mr Young under a street lamp from the window where she said she was standing, must have been untrue as the line of sight was blocked by the roof of the now demolished fish and chip shop. The point is very much clearer from photograph 4 taken from the bedroom window than from the photographs taken by Mr Moses in the opposite direction. What they stress is that photograph 4 demonstrates more strongly than the plan adduced at trial that Brenda England's trial testimony must have been untrue. Counsel, Mr Swift, had endeavoured to establish the same point by use of the plan, but it appeared to the Commission from the trial transcript that the jury may have ended up unable to be sure, other than through their assessment of witnesses, as to where the truth lay. They say that the plan was of limited assistance. What they then stress is that the vantage point of the bedroom window was something that had not been available to the defence at the time of trial, although it had been available to the police. What they say is that that may add support to the conclusion that the police either knew, or at any rate could have established with very little effort, whether Brenda England's evidence appeared on the face of it to be false. They also stress that the new evidence does lend some support for the criticism of the police conduct during the investigation.[51]The Commission Refer to the fact that one question that would arise before the Court of Appeal is whether this photographic evidence, which is clearly evidence that was not produced at the trial, would be evidence that the Court of Appeal would admit at the appeal stage. They refer to section 23 of the Criminal Appeal Act 1968. That section of course is well-known and provides by subsection (2) that there are certain matters that the court will take into account in considering whether to admit that evidence. The Commission refer to two of those matters: first, (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal, and (d) whether there is a reasonable explanation for the failure to adduce the evidence at the previous proceedings.[52]What the Commission conclude, and we would agree with them, is that certainly this photographic evidence would afford a ground for allowing the appeal: it appears to undermine Mrs Brenda England's evidence as to seeing Mr Young under the street lamp. The photograph shows that the view she was saying she had was in fact obstructed. So far as a reasonable explanation for the failure to adduce the evidence at the previous proceedings, it is certainly right that the photographs of Mr Moses are photographs which could have been produced at the trial. But the Commission make the point that so far as photograph 4 is concerned, the one they found most compelling, that is a photograph taken from the bedroom in the house of Mrs Brenda England and was a vantage which was not available to the defence.[53]In any event, these are matters simply to which the court must pay attention and the ultimate question is whether, with that fresh evidence and with the other matters to which we have referred and on which the Commission rely, what view should the Court of Appeal take about the safety of these convictions? As we have indicated, we would not be of the view that these would have raised successful arguments for abuse of process, but, whether or not that is so, it seems to us cumulatively that these grounds give serious cause for anxiety about the safety of these convictions. As we have already indicated, the Crown have not sought to resist that conclusion and we are clear, therefore, that the right view to take is that these convictions are unsafe, that they should be quashed and the appeal allowed.[54]MR BROADLEY: My Lord, may I mention the question of costs. The position is, if I can take your Lordship very briefly over the history of the matter, that the appellant was initially in receipt of legal aid with a small contribution. That was at the lower court for the trial and re-trial. Of course, he is now in receipt of legal aid, as I understand it, for today's hearing from the Commission, but there was a lacuna. There was a period of time from conviction until recently when he was funding his representation privately. I would ask your Lordships to consider a defendant's costs order.

LORD JUSTICE WALLER: Which proceedings would he be funding privately?

[56]MR BROADLEY: He was effectively funding lawyers, as it were, working on his case up to and including the Commission, first of all receiving instructions, and then finally taking the case on, as it were.

LORD JUSTICE WALLER: What is the position in relation to costs before the Commission? I do not know what the position is. Any order we could make in relation to costs could not override what the normal position is in relation to costs before the Commission.

[58]MR BROADLEY: No, no, and indeed I think the legal aid representation order is dated from the receipt of the reference, which is 1st July 2004, so of course your Lordships could not override that, nor do I ask your Lordships of course. From 1st July 2004 any costs are borne out of legal aid, but there was a period of time when Mr Young and his advisers were preparing the case for the Commission --

LORD JUSTICE WALLER: Well, that is for the Commission. I do not know what the position is in relation to costs before the Commission, nor do I know whether we have any jurisdiction to deal with costs before the Commission or whether they have their own jurisdiction. The position so far as this court is concerned -- I have not consulted anybody yet, but I would think that the position is that matter has been referred to this court, from that moment he had legal aid. So far as this court is concerned, therefore, the legal aid has covered the proceedings in this court. There may be a way in which he is entitled in some way to costs for investigating the case and then taking it to the Commission et cetera, I do not know about that, but that does not seem to be covered by this court.

[60]MR BROADLEY: Would your Lordship allow me one further moment.

MR JUSTICE HEDLEY: He was publicly funded presumably not only for the trials, but the appeal.

[62]MR BROADLEY: Yes -- sorry, he was publicly funded for the trials and then there was that period of time between the trials and the Commission taking the case --

MR JUSTICE HEDLEY: I meant the original appeal.

[64]MR BROADLEY: The original appeal was privately funded.[65]MR JUSTICE HEDLEY: So you are talking about the whole period between the end of the second trial and the reference by the Commission?[66]MR BROADLEY: Yes. Would your Lordship allow me one moment please.[67]My Lord, I have been given a part answer, which is, with respect, your Lordship is entirely right in relation to the latter part of the proceedings, which was the preparation leading up to the immediate presentation of the case to the Commission, which leaves me with the contribution to legal aid at the trial stage at the lower court and the first appeal.

LORD JUSTICE WALLER: So you have the answer to the Commission point.

[69]MR BROADLEY: I have the answer to the Commission, yes, my Lord, and I cannot ask for costs leading to the presentation of the papers to the Commission.

LORD JUSTICE WALLER: Do you have any observations on this point, Mr Bubb?

[71]MR BUBB: No, my Lord.

LORD JUSTICE WALLER: You should have the repayment of your contribution plus your costs of the first appeal.

[73]MR BROADLEY: Thank you, my Lord.

LORD JUSTICE WALLER: Possibly the right answer is to make a defendant's costs order and you have whatever that entitles you to have.

[75]MR BROADLEY: Thank you.

LORD JUSTICE WALLER: Thank you very much for your help.