George, R. v [2006] EWCA Crim 1652

Case No 2005/2707/B4[2006] EWCA Crim 1652
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 9 June 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE MOSES
MR JUSTICE BEATSON
HIS HONOUR JUDGE GORDON
(Sitting as a Judge of the CACD)
Between
R E G I N ACrown-v-
Between
ANDREW HAROLD GEORGE
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 A BARKER QC appeared for APPELLANTMR R LATHAM QC appeared for CROWN
J U D G M E N T

LORD JUSTICE MOSES:

For

[1]21 years no-one knew who had murdered Hilda Murrell. She was 78 at the time she was murdered. She had been sexually assaulted, kidnapped and left to die from stab wounds and hypothermia in a copse by a field outside Shrewsbury in March 1984. She was well known there and nationally as a conservationist, gardener and proponent of nuclear disarmament. Her death triggered much publicity and speculation, sometimes bizarre, as to who had killed her. It is relevant to this appeal to recall that there were some six books written about her murder.[2]The appellant, then aged 16½, was interviewed, following his arrest for another offence a week later, about his whereabouts on the day of her death, which was 21st March 1984. He was further interviewed two months later. There was no evidence to link him with her death and he gave an alibi.[3]For 21 years he hid the fact that he had been in her house shortly before she was taken away and killed. He was there committing a burglary. He had been surprised in the house when Miss Murrell returned from a shopping expedition. He had at some stage when she was in the house ejaculated so as to leave semen on her underskirt. Twenty-one years after her death, advances in DNA enabled the police to establish this appellant's presence in the house. But he denied he had abducted and killed her. He said his brother, one year older than he was, had joined him in an unplanned burglary and that it was his brother who had attacked her, attempted to rape her and had taken her from the scene.[4]The abduction had taken place within the victim's own white Renault car. The car had sped away from the scene of an attack. It had been driven in a way so as to draw attention to itself and with such absence of skill that it ended up in a ditch not far from where the unfortunate Miss Murrell was later found. The car was found but she was not until some day later. The evidence of the pathologist established the cause of death as we have recorded.[5]The appellant was convicted of kidnapping and murdering her on 6th May 2005 at Stafford Crown Court and was sentenced by the late Wakerley J to life imprisonment with a minimum period of 15 years, with a concurrent sentence of seven years' imprisonment for the kidnapping.[6]The appeal presented by Mr Barker QC, who had appeared for this appellant at trial, with his customary skill and attack, focuses on two aspects of the case presented against the appellant as establishing his overall submission that the verdict was unsafe. Those two aspects of the case, in the context of the submission that the verdict was unsafe, form three grounds of appeal in respect of which the single judge gave leave. Other grounds were advanced in respect of which leave was refused but at least formally were pursued by way of an application for leave to appeal before us.[7]As to the two aspects of the case upon which Mr Barker sensibly, if we may say so, focused, they were firstly that the judge's summing-up as to the bad character of this appellant amounted to a misdirection; and secondly, challenge was focused upon evidence given by a former police informant in prison at the time with the appellant known as Mr A. He suggested that the appellant had confessed to him that he was responsible for the murder.[8]Those grounds must be considered in the context of the case as a whole and the statutory jurisdiction of this court. It is trite but sometimes forgotten that this court does not sit to reconsider the strength or weakness of a prosecution case following a verdict of guilty by a jury. In many, if not most, cases there will be factors in the evidence which point away from guilt. Not all cases are one way. It is for a jury and not this court to assess whether those factors in favour of innocence are such as to leave the jury in reasonable doubt. But the conclusion of a jury that despite those factors they are sure of guilt does not entitle an appellant to an appeal merely because there exists in the evidence some factors on which the defence can properly rely to suggest innocence. In the instant case, like so many others, although the defence faced formidable difficulties there were factors on which the defendant could properly rely to suggest his innocence.[9]The strength of the prosecution case, however, could not be doubted. For 21 years the appellant had lied about his part in the offence and given a series of inconsistent accounts even after he disclosed, very late in the day, what the defence was going to be. He had, as we have recalled, originally denied presence at the scene or any responsibility giving an alibi. He later had described to his girlfriend that he had committed a burglary some two days after the killing and had, as he put it, "had a wank because of the excitement". Later whilst in prison he had let it be known that as far as he was concerned he had been involved with MI5 and he suspected that they had been responsible for the murder - a suggestion he had no doubt picked up from the more fanciful publications about the cause of her death. He had explained that he thought his mother was not trustworthy and he had lied to her. Further, he had lied even in a short written account he had given at about the time the trial started as to what his defence was going to be. He had in particular lied about the nature of his sexual activity in the house. At first, at the stage when he produced that written document, he had said that his brother had masturbated him in another room, possibly seeking to explain the presence of semen (never identified by way of DNA) on a handkerchief in another small room. But that of course could not explain the semen on the underskirt and by the time he was giving evidence he was compelled to give yet another account explaining that he had witnessed his brother attempting to rape the unfortunate Miss Murrell and that he was about to participate himself but had chosen not to do so and in those circumstances, in a way never wholly explained, some semen had appeared on the underskirt.[10]By the time he gave evidence his account was that he had been surprised with his brother committing an unplanned burglary in the house when Miss Murrell got back from the shopping expedition, his brother Stephen had attacked her, forced her upstairs and was then treating her with violence and attempting to rape her whilst this appellant apparently elsewhere in the house carried on searching for money. According to his evidence his brother was trying to rape the victim and also trying, as he put it, "to get me to have sex with her". His brother attempted to masturbate him but he (the appellant) did not penetrate her.[11]He then continued the story by telling the jury that both his brother and Miss Murrell disappeared. He did not know where they had gone. He had got a can of lager out of the refrigerator, pulled the telephone wires out and had subsequently, after remaining at the house for a period, left and later gone out swimming in the evening. He admitted in cross-examination that he had nearly raped her, but denied that he had anything to do with her abduction or with her murder.[12]It was not just the lies he had told that afforded the basis of a substantial case against him. On his own account he had continued to look around the house whilst his brother, Stephen, had attacked Miss Murrell and he had remained in the house even after his brother and Miss Murrell had left. He did not know where either his brother or Miss Murrell had gone. For all he knew at that time on his own account she had escaped but despite such circumstances he had remained in the house where he could so easily have been detected. He never (on his own account) once asked his brother what had happened.[13]A week later he committed a burglary during the course of which he stole a shotgun and had fired it. He committed a further burglary one year later in 1985 with his brother. He never asked him, on that occasion, what had happened and apparently committed the burglary without any qualm, even though on his own account his brother had committed a terrible murder which had created both local and national outcry and had led to his being questioned about it. It is, we may pause to comment, not surprising that that account was rejected by the jury who also had heard in rebuttal from his brother Stephen.[14]There was thus no dispute that nobody else was involved in this murder save either this appellant or, as he alleged, his brother.[15]There were features, as we have said, upon which the defence could reasonably rely. There was evidence from a substantial number of witnesses that this appellant could not drive. There was no dispute but that the car was driven badly when leaving the house, ending up in the ditch where it was found abandoned. But, said the defence, this appellant was not just a bad driver, but one who could not drive at all. There were a number of sources for that proposition. He was in a young people's care home at the time and there was evidence from a Mr Bromley that he could not drive. There was also evidence from others - his own brother, his girlfriend and from an independent witness, a Mr Dorricott, who many years later had tried to help him drive a small dumper truck but it was quite apparent that he was unable to recognise the clutch or, still worse, knew how to operate it. There was evidence called by Mr Peart who said that he had seen him drive but that, as Mr Barker rightly points out, was highly suspect evidence since he seemed to confuse that driving with the driving of a car which could only have been purchased many years later.[16]All of that evidence was accurately summarised by the judge to the jury and left to the jury to assess. A conviction had to be based upon the conclusion that he was the driver. But the significance of the evidence as to his inability to drive had to be considered in the context of the evidence as to the erratic course that the car took, drawing attention to itself while the kidnap victim was in the front, ending, as we have said, in a ditch. In our view, his inability to drive is two-edged and certainly the evidence of the manner of driving at the time suggests that the driver was inexperienced. These were factors for a jury to weigh. It is quite impossible to say that that evidence affords a ground of appeal of such force as to cast doubt on the safety of the verdict.[17]Further, so the defence suggests, there was doubt cast upon his responsibility for the murder and support for his accusation that there was someone else in the house by the presence of trainer prints found at the house. There was no evidence to link him with the wearing of trainer shoes at the time. The appellant said he wore Doc Marten boots. The trainer prints were found in rooms which the appellant admitted he had entered, but all the prosecution could do was adduce evidence that some months later he did have in his possession a football shirt and trainers and they asked the question "What young man of 16½ at that time did not have a pair of trainers?" All of this was part of the evidence which the jury had to weigh. It is in our view absurd to suggest that the presence of trainer prints in the house demonstrates that the verdict was unsafe.[18]Mr Barker rightly pointed out that there was no forensic evidence whatever to link this appellant with the car used to abduct Miss Murrell or the scene of the murder a few hundred yards away from the car. That is true. But there was no evidence on the car, somewhat surprisingly, at all of anybody else in the car, either he or his brother or some third party. Mr Barker rightly points out that there were fingerprints of this appellant within the house so it was all the more surprising that his fingerprints were not seen in the car. But in the absence of any forensic link with anybody in the car that point loses something of its force. It is a correct and proper point to advance before a jury. It does not begin to amount to a ground of appeal.[19]There was further evidence of a man seen running away from the scene of the murder, certainly giving rise to suspicions in the minds of the police at the time, but there is no evidence whatever that that man had anything to do with the murder. Since his description did not match either of the two potential candidates for this murder (the appellant or his brother) that evidence was of no assistance to this appellant.[20]So this appeal focused firstly upon the evidence of the informant Mr A. Mr A not only had a lengthy criminal record but there was substantial evidence of his career as a police informant and not just as a police informant but as an unreliable police informant. Besides his lengthy criminal record, there was substantial evidence of his propensity to make unjustified and malicious accusations. The skill of Mr Barker QC in cross-examination amply demonstrated how willing he was to make wholly unfounded allegations against others and a graphic example in relation to an accusation concerning a motor accident was revealed before the jury.[21]Mr A was a follow prisoner of this appellant at Blakenhurst. According to him the appellant was known as "George the Spy" and had advanced a number of stories about the Belgrano and about MI5 whilst in prison. According to Mr A the appellant provided details of the offence concerning the appellant. He told Mr A that he was high on amphetamines and speed and had been inhaling 'gas', some form, we suspect, of glue. He had been confronted by the victim whom he had managed to tie up using a scarf. There was a struggle on the stairs and he had fallen part of the way down. He drunk a can or bottle of beer and then smashed things up, as he put it, a bit in the house. He also told the appellant that his brother had turned up with a car and Miss Murrell had been put in her own car. The appellant said he drove the car and had made a right mess of it. He was not sure of the route and a lorry driver had heard him crashing the gears. He arrived at an area he knew as the "death slide". He made the woman get out, walked her through the fields and stabbed her. On another occasion he told Mr A that another man or his brother had also stabbed her and that there had arrived at the scene two friends of his that he called "Cock-eye" and "Laney". Those names had been written by Mr A on a piece of paper and put in his shoe just before Mr A had passed details on to the police.[22]There was powerful evidence of the manipulative nature of Mr A and his own personal reasons for currying favour with the police. Indeed, the prosecution having disclosed all they knew about Mr A's life as an informant, the defence called police evidence from senior police officers as to their views of Mr A. Their views were that he was dangerous and unreliable.[23]The judge in summing-up this evidence to the jury gave the strongest possible warnings to them as to the care with which the jury had to deal with his evidence. Time and again he not only reminded them of the need to approach the evidence of Mr A with great caution but of the reason why the jury had to do so since, as was so blatant, Mr A had reasons of his own for making up stories against this appellant.[24]No application was made to exclude Mr A's evidence pursuant to section 78 either before or after he gave evidence. There was, in our view, no basis for excluding that evidence. Our system of conducting trials permits the prosecution to call evidence of such a nature provided there is full disclosure both to the defence and, if the defence so chooses, to the jury as to the context in which that evidence is given and as to the great dangers that their exist in reliance upon it. There was, as the judge correctly reminded the jury, evidence that Mr A had been given facts, the only source for which could possibly have been this appellant. Papers within the appellant's cell had been stolen and no doubt distributed amongst the others within the prison. There had been books written, although there was evidence of no book within the prison, about the case. But much of the detail so far as it was known was in the public domain. But there was evidence for a jury to assess as to the appellant telling Mr A about the use of a scarf, material which could only have come from the appellant. The use of the expression "death slide" for which there was no very obvious other source than the appellant, and in particular the two names of friends, Cock-eye and Laney, nicknames used by the appellant to describe those two. All of that was evidence for the jury to weigh as to whether there could possibly be any other source for that information other than the appellant. The appellant denied ever saying anything to this witness, Mr A, other than that he had told him he had taken part in the burglary. There was, therefore, a conflict of evidence for the jury to assess. But the judge in summing up this aspect of the case very fairly pointed out to the jury that even if they were sure that the appellant was the source, having regard to the manipulative nature of this witness they would still have to consider whether it was not the fact, or may have been the fact, that Mr A had put a number of pieces of disparate information that had come from the appellant, together.[25]As we have said, this was all evidence for the jury to assess. It is not for this court to substitute its own views as to the quality and effect of that evidence in the context of a fair and correct summing-up and directions on the issue. We reject the ground of appeal that Mr A's evidence should have been in some way withdrawn from the jury or that the jury should have been told to disregard it. The judge's approach to that evidence was, in our view, correct.[26]We turn then to the next aspect of the challenge to the summing-up of the judge. Evidence was adduced of this appellant's bad character pursuant to section 101 of the Criminal Justice Act 2003. The appellant had convictions, as the judge told the jury, for burglary and for offences of violence. The jury were told of the offence one week after the death of Miss Murrell when the appellant stole a shotgun, loaded the gun and fired it within the house where he was committing the burglary. He had committed offences of burglary in 1985 and 1991, violence or threatened violence in 1986 and 1987, including causing really serious bodily harm in 1990. There were further offences relating to drugs and violent disorder in 1992, 1997, 2000 and 2001.[27]There was no dispute but that that evidence was properly admitted. There could not be any dispute because this appellant had accused his own brother of committing the murder.[28]The judge having identified the previous convictions then directed the jury as to the circumstances in which they had come to hear about those previous convictions. First, they were told that it was right in the circumstances for them to hear that evidence in the light of the attack upon his brother. Secondly, they were directed that they could take it into account in deciding whether the appellant's evidence was truthful. But they were frequently reminded that it was a matter for them to decide whether they should take it into account at all against the appellant. Thirdly, they were directed that it was relevant to their assessment of his account that it was his brother who was attacking Miss Murrell and the explanation for the semen was the activities of his brother either cajoling or egging him on or forcing him into such behaviour.[29]It is important to appreciate the basis upon which this evidence of bad character was admitted and the use to which the prosecution sought to put that evidence. The evidence was admitted under section 101(1)(g). The defendant had made an attack on another person's character, in casu his brother Stephen. Thus the evidence was admitted, as it always could have been admitted, pursuant to the Civil Evidence Act 1898. The evidence was admissible not to show propensity but so that the jury could assess the accusations he had made against his brother in the light of the character of the source of those accusations. The jury could weigh, on the one hand, this appellant's criminal career against the criminal career of his elder brother (one year older) who had far fewer convictions, one for gross indecency some time later but had settled down and led, once he had achieved adulthood, a wholly creditworthy life living with his wife and children.[30]The directions made by the judge were impugned because it was said they failed to distinguish between dishonesty and credibility. At page 21 the judge had said this:
"... if, but only if, you think it right and fair you may take your knowledge of the character of the defendant into account when deciding whether or not his evidence to you was untruthful. It's trite to say, isn't it members of the jury, that a person with bad character may be less likely to tell the truth than a person of impeccably good character? But, of course, it doesn't mean or follow that he, the defendant, is incapable of telling the truth. ... You will also want to bear in mind that the really serious offences of dishonesty, of burglary here, were committed by him a very long time ago when he was a youth, so you must decide to what extent, if at all, his character helps you when judging the truthfulness of his evidence."
It is said that in that passage the judge failed to distinguish between dishonesty and credibility. This submission is based upon the decision of this court in R v Hanson [2005] 2 Cr.App.R 21 at page 299. At paragraph 13 this court pointed out the distinction between propensity to dishonesty as demonstrated by offences of dishonesty, as opposed to propensity for untruthfulness. It was said that that distinction was not maintained in the summing-up in the instant case. But the next paragraph, paragraph 14 of the decision of this court in Hanson, makes it plain that the courts was not considering the admission of bad character evidence pursuant to section 101(1)(g) but, rather, admission through other gateways, in particular in Hanson section 101(d), where such evidence was adduced to establish propensity. Hanson teaches that where evidence is adduced to establish a propensity, a distinction between offences of dishonesty and evidence of untruthfulness must be maintained. No such distinction arises where the evidence is adduced to show the character of the source of an accusation, pursuant to section 101(1)(g). The summing-up in our view was correct, but bearing in mind in any event the ample examples of this appellant's lack of credibility, in the repeated changes in his account, his credibility was shot in any event.[31]The other ground on which this bad character evidence was admitted related to section 101(1)(d) and possibly section 101(1)(c). The defence said that the attack had been instigated by his brother and that the explanation for the semen on the underskirt was because he was goaded into that behaviour by his brother. The convictions were relied upon by the Crown to demonstrate that it was incredible that this appellant would have adopted so submissive a role. His behaviour subsequently, as shown by his subsequent convictions, demonstrated, so it was argued, that his account was a lying account.[32]Although the judge did not have the benefit of the authorities of this court later in 2005, we consider that his summing-up was correct, appropriate and covered by correct and appropriate warnings as one would expect from so respected and experienced a criminal judge.[33]We would mention one possible caveat: during the course of his summing-up the judge quoted what was said to be the prosecution's phrase that his previous convictions demonstrated "a ruthless disregard of humanity in spades". Mr Latham QC eschews the use of such language normally and says he did not use it on that occasion. Be that as it may, telling a phrase though it was, it was perhaps best avoided, particularly since his behaviour the following week which was linked to that phrase could hardly fall into that category. But his behaviour at the scene did. Even on his own account he had watched a violent attack on this defenceless 78-year-old by his brother and he himself had sexually assaulted her. It would perhaps have been better to avoid some telling phrase seeking to summarise the effect of those previous convictions. After all the whole structure of section 101, read with section 103, seeks to avoid prejudice which can all too easily be triggered by the use of colourful language. But in the context of this particular case there is no basis for the criticism made of the summing-up by Wakerley J in relation to bad character.[34]We return then to the context in which those criticisms were made. This was a strong case against the appellant, fortified by the absurd story the appellant advanced in his defence. It made no sense. The jury was entitled to reject it. Sensibly, Mr Barker QC has not pursued grounds based on delay, save to point out that the delay deprived the defence of the opportunity of calling more immediate and reliable evidence of identification and this appellant's ability to drive. But this appellant had only himself to blame. One can readily understand how a 16-year-old would not want to confess to his sexual assault on that 78-year-old or the burglary. But nevertheless, he maintained his silence for all those years. He can then hardly be heard to complain of delay. It is somewhat surprising that the judge took so charitable a view of the application to dismiss for abuse resulting from the delay. Some members of this court would have given such a submission much shorter shrift. We refuse leave to pursue the renewed grounds of appeal. In relation to the substantive grounds we dismiss them. We are not persuaded that the verdicts were unsafe. This appeal is dismissed.

Cited in 3 later judgments