Adams, R v Andrew [2007] EWCA Crim 1

Case No 200505169 D5[2007] EWCA Crim 1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 12 th January 2007
Before
LORD JUSTICE GAGEMR JUSTICE SILBERMR JUSTICE TREACY
Between
RCrownAndrew AdamsDefendant(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Benjamin Nolan QC and Michael Graham for CrownTim Owen QC and John Lyons for Andrew Adams
Judgment
[1]On 18 May 1993 at Newcastle-upon-Tyne Crown Court, following a trial before Ognall J the appellant was convicted of murder by the unanimous verdict of the jury and sentenced to life imprisonment. He appealed to the Court of Appeal Criminal Division who, on 16 January 1998, dismissed his appeal.[2]He now appeals on a Reference from the Criminal Cases Review Commission (the CCRC) under s.9 of the Criminal Appeal Act 1995. He appeals on three bases set out in the CCRC’s Statement of Reasons and by leave of the full court on a fourth ground. There are therefore four grounds of appeal before this court which in shorthand are: a) Incompetent defence representation depriving the appellant of a fair trial; b) Material non-disclosure by the prosecution; c) Errors in the summing-up; d) The jury received inadmissible evidence concerning the appellant’s bad character (the jury point).

The background history

[3]On the evening of Monday 19 March 1990, Jack Royal was watching television with his wife Sonia at their home, 44 Laburnum Grove, Sunniside, Newcastle-upon-Tyne. At about 11.35pm their front door bell rang and Royal went to answer it. As he looked out of the window of the porch, he received a single shot gun wound to the face and died almost instantly.[4]Royal had previously been acquitted of the murder of David Thompson. His defence at trial was that he had been acting in self-defence. David Thompson was the brother of Catherine Thompson, one of two other co-defendants in the trial of the appellant for the murder of Royal. The prosecution’s case against the appellant was that Catherine Thompson persuaded the appellant, at the relevant time her boyfriend, to murder Royal in revenge for the killing of her brother. It was alleged that the murder of Royal was carried out by the appellant and the co-defendant, John Hands. Hands was acquitted of murder and Catherine Thompson of soliciting the murder of Royal.[5]The trial of the appellant followed an unsuccessful prosecution of Walter Hepple for the murder of Royal. Hepple was acquitted by verdict of a jury on 26 June 1991. Following his acquittal the investigation into the murder of Royal was re-opened. The genesis of the subsequent arrest of the appellant was largely information about the killing given to the police by Kevin Thompson (no relation of David Thompson) in April 1992. Kevin Thompson was the principal witness at the appellant’s trial.

The evidence at trial

[6]Kevin Thompson, at the time of the murder, was a friend of the appellant. He said that at 6.00pm on 19 March 1990 the appellant and Hands asked him to drive them to Whickham so that they could “chin a bloke who had been cheeky to Cath”. He agreed to meet them in the Denton Hotel at about 10.00pm that evening. They did meet at the Denton Hotel at about that time and Kevin Thompson said that he asked them to return in half an hour. He said he had not sufficient funds to buy petrol and the appellant gave him £5 for that purpose. His evidence was that between about 10.30pm and 10.45pm he saw the appellant and Hands at the door of the Hotel. They all left in the appellant’s silver Renault 5 Turbo. The appellant drove him home where Kevin Thompson collected his blue Ford Escort and drove to a petrol station opposite the Denton Hotel. The appellant and Hands followed in the appellant’s Renault. After filling up his car with petrol, Thompson said that both cars drove to 49 Sugley Street. At the time, the appellant was living at that address. The appellant and Hands went into the house and after a short interval Hands came out with a dark coloured holdall and the appellant with a petrol can both of which were put in the boot of the Escort. They all drove off in Thompson’s Escort to a car park in Whickham, where the appellant and Hands got out by some garages, with the holdall and petrol can, telling Thompson that they would be using a stolen car.[7]Kevin Thompson parked his car and some minutes later a white Montego drove past him and out of the car park. He said that the appellant was driving and Hands was in the passenger seat. Approximately ten or twenty minutes later the car returned to the car park with the appellant and Hands in it. A few minutes later the two men came jogging back to Kevin Thompson’s car. They had in their possession the holdall and petrol can. The appellant asked Kevin Thompson “Did you hear that bang?” Kevin Thompson asked the appellant “Did you chin the bloke?” In response the appellant took a single-barrelled sawn-off shotgun from the holdall and said “I blew his fucking head off”. The Montego was seen by neighbours to be on fire in the car park and the fire service summoned.[8]Kevin Thompson drove the car to a car park in West Denton. There the appellant and Hands set fire to some overalls using petrol from the can. Kevin Thompson agreed to hide the shot gun in a shed at his home. The appellant described to him how he had shot Royal saying “You should have seen it, it blew his head clean off. There was blood everywhere. The blood was all the way up the wall on the side of the porch.” Kevin Thompson said that, at the appellant’s request, he hid the gun in a bin behind the flats where his mother lived. He then drove the appellant home.[9]Kevin Thompson said that on the following day the appellant visited him at work and told him that the Montego had been stolen from the Metro Park Hotel by a lad called “Owla”. The appellant said that it had contained IBM computer equipment and that he and Hands had set up a false alibi with Neil Graham and Brian Duffy. A few days later Kevin Thompson said he retrieved the gun and gave it to the appellant and Hands who broke it up with a hammer. The trigger mechanism was put in one bag and the other pieces in another. The cartridge which had been in the gun was burnt.[10]The prosecution called a number of witnesses whom it was said corroborated Kevin Thompson’s account. Mark Briggs, a friend of Kevin Thompson, said that he had heard Catherine Thompson say to the appellant, “If you loved us you’d sort him (Royal) out.” He said the appellant responded, “Do you want us to go and shoot him? Do you want us to kill him?” Catherine Thompson replied, “Go on then, Go on and do something about it” to which the appellant said “Right I will.” Briggs also gave evidence about seeing the appellant three or four weeks before the murder in possession of a single-barrelled sawn-off shotgun in a green hessian bag. He described the shot gun as quite old and in a bad condition. The barrel had been sawn off close to the front hand grip and most of the wooden stock had been removed. An old sock with the shotgun contained 20 to 25 green, orange and blue cartridges. Briggs, a former soldier, described an occasion when he had shown the appellant how to use the shotgun and had fired it at a telephone kiosk. There was evidence from a man who lived near the kiosk that in early March 1990 he heard a gunshot and the following morning saw damage to the kiosk. Briggs said that he saw the appellant with the shotgun five or six more times but did not see it after Royal’s death.[11]Jane McBeth, at the time a girlfriend of Briggs, said that she had seen the appellant with the shotgun. He had pointed out that the serial number had been erased. Julie Storey, an ex-girlfriend of the appellant, said that he had once told her that he and Hands had done something really bad, the “worst possible thing.” The prosecution suggested that this was a reference to the murder of Royal.[12]Two police officers, P.C .Howstan and P.C. Robotham gave evidence that they had performed Police National Computer (PNC) checks on the appellant’s silver Renault 5 when it was being driven on West Road in Denton at 10.47pm and 10.53pm respectively on the night of 19 March 1990. This evidence was said by the prosecution to be consistent with Kevin Thompson’s sighting of a police Astra GTE as the appellant and Hands were driving up and down West Road when Kevin Thompson was filling up his Escort with petrol.[13]Neil Willumsen, a friend of Kevin Thompson, said that he was at the Denton Hotel at 10.00 – 10.15pm when the appellant entered with another man and spoke to Kevin Thompson who left about fifteen minutes later. The description given by Willumsen of the other man did not match Hands. Willumsen said that a few days later at work Kevin Thompson had shown him a sawn-off shotgun in a green nylon sports bag. He said the appellant visited the garage where he and Kevin Thompson worked later that day but he did not see the appellant near the bag.[14]Neil Graham gave evidence for the prosecution and said that he had been at Duffy’s house on the evening of 19 March 1990. He said that the appellant and Hands had been present but had left at some point during the evening. They both returned later but he was unable to say how long they had been gone. The prosecution’s case was that the appellant and Hands had fabricated their alibi and that this fabrication supported Kevin Thompson’s evidence.[15]Finally, the prosecution called Dr Sunter the Home Office pathologist who had examined the murder scene. His description of the scene was said to be consistent with the comments which it is alleged were made by the appellant to Kevin Thompson.[16]The appellant gave evidence. He denied being involved in the murder of Royal. He said that Catherine Thompson had only once told him about her brother’s death but had not expressed hostility towards Royal. He admitted that for a period of three or four days he had a shotgun at home but he said that he was only looking after it for Kevin Thompson. He admitted that he and Briggs had fired the shotgun, but he said that it was Briggs who wanted to try it out. He said that he and Hands had spent most of the evening of 19 March 1990 at Duffy’s house with Graham. He said that he and Hands left at about 10.30pm to drive to the city centre for food but changed their minds and had just driven around. He accepted that they were stopped by the police at 10.53pm when they were driving back to Duffy’s house. He said they got back to the house at about 11.05pm. He and Hands left again sometime between midnight and 12.30am. He said they called at 49 Sugley Street to pick up some keys and were stopped by police again on their way to Newcastle Airport.[17]A witness, David Clarke, was called on behalf of the appellant. He had been one of a number of defendants who had stood trial for the robbery of an elderly couple in Consett on 6 April 1992. Kevin Thompson, who had pleaded guilty to handling in respect of goods stolen in that robbery, had been the principal witness for the prosecution in that trial. Clarke said that Kevin Thompson had told him in 1991 that he would like to shoot the appellant and that it would not be the first time that he had shot someone. Clarke said that Kevin Thompson had claimed that he and a friend had been paid to shoot Royal and had done so. Clarke agreed that he had not mentioned any of this at his trial two months before, although he had, at that trial, sought to discredit Kevin Thompson in the course of his evidence.[18]The appellant’s father, William Adams, was also called to give evidence on behalf of the appellant. He said that the appellant had day and night access to his business premises at Newcastle Airport and could have destroyed any gun there in privacy. He also gave evidence about the time it would take to destroy a shotgun using a stone mallet.[19]Hands gave evidence about his movements on the night of the murder. His evidence, in the main, accorded with that given by the appellant.

The first appeal

[20]In January 1997 a division of this Court heard an appeal against conviction by this appellant. There were five grounds of appeal. The first ground was that a juror with prior knowledge of the appellant had sought to influence the rest of the jury against him. That ground was amended to allege that there was a material irregularity during the trial by the intervention of the jury bailiff giving information to the jury about a witness. We shall return to this ground later in this judgment. The second ground complained of an alleged misdirection by the judge in respect of the alleged corroboration of Kevin Thompson’s evidence. The third ground relied on a failure by the prosecution to disclose the record of a police interview with Mark Dixon, Kevin Thompson’s co-accused in an earlier robbery (the Presto robbery). Fourthly, it was alleged that the manner of Kevin Thompson becoming an informer was unrecorded and irregular and inadequately placed before the jury. Fifthly, it was contended that the conviction of Adams was inconsistent with the acquittal of Hands. All these grounds were rejected by the Court and the appeal dismissed.

The CCRC reference and further background

[21]On 20 June 1998 the appellant submitted an application form to the CCRC. Final submissions from the appellant’s solicitors, Hickman & Rose, were submitted in the form of a revised advice from junior counsel dated 13 May 2003. These submissions were investigated by the CCRC and gave rise to the Statement of Reasons for a Reference to the Court of Appeal dated 27 September 2005. The grounds for the reference have been amplified and are set out in the appellant’s Consolidated Grounds of Appeal. We have already referred to a summary of those grounds.[22]The appeal has involved the court in considering a large number of documents, transcripts of evidence, and hearing oral evidence from the appellant’s legal advisors at trial and four jurors.[23]At trial the appellant’s solicitors were Mr John Foley and Miss Mary Foley. John Foley was a partner, with his brother, in Foley & Co. John Foley specialised in criminal law; practising in the main as an advocate in Magistrates’ Courts. Mary Foley, John Foley’s sister, is an unqualified clerk. She dealt with cases in the Crown Court. Foley & Co also acted for the appellant’s co-accused, John Hands.[24]Initially, John Foley instructed James Chadwin QC (now deceased) and Patrick Cosgrove (now Patrick Cosgrove QC) as leading and junior counsel for the appellant. Following a consultation with the appellant on 8 April 1993, leading and junior counsel returned their briefs in circumstances to which we shall refer later. On 16 April 1993 fresh counsel were instructed: Robert Fordham QC (now deceased) and Andrew Menary (now Andrew Menary QC). At all relevant times Franz Muller QC and Peter Walsh were instructed as leading and junior counsel to represent Hands.[25]We have heard evidence from John Foley, Mary Foley, Andrew Menary QC and Peter Walsh.[26]As already stated, the first appeal involved an allegation of jury bias. In its final form, the ground of appeal raised an issue which was separate and distinct from the ground of appeal alleging jury bias in this Reference. The CCRC interviewed all save one of the twelve jurors (one being deceased). As a result we were persuaded that it was necessary to hear evidence from four jurors. We shall refer, so far as is necessary, to their evidence when dealing with the fourth ground of appeal (the jury point).[27]With this introduction we turn to the grounds of appeal. For reasons which will become apparent we shall start with ground 2.

Material non-disclosure by the Prosecution

[28]On any view there was a considerable amount of documentary material which it was necessary for the appellant’s legal advisers to consider. In addition to the unused material specifically referable to the appellant’s case (the Adams trial) there was unused material from the previous trial of Hepple (the Hepple trial). It was also necessary for the appellant’s legal advisers to consider associated trials in which Kevin Thompson had been involved either as a witness for the prosecution or with which he was in some way connected. In addition there was material from what is known as the Holmes database. The Holmes database is a computer programme set up as a result of an enquiry into the police investigation of the Sutcliffe murders (the Yorkshire Ripper). The database was designed to record all relevant material connected to any large scale police investigation. It was in existence at the time of the investigation into the Royal murder.[29]The CCRC in its Statement of Reasons referred to a number of documents which it was said were not disclosed by the prosecution. It is now common ground that all documents, save two forensic experts’ reports, were disclosed to the defence in that they were either in the unused material relating to the Adams and/or Hepple trials or were recorded on the Holmes database. Accordingly, the focus of the appeal on this ground has moved from an allegation of non-disclosure to an allegation that the defence lawyers failed adequately to examine the available material thus leading to a failure to use or place before the jury material which would or could have assisted the appellant’s case. Thus, this allegation now falls to be considered under the general ground of incompetence in ground one.[30]We return to ground one.

Incompetent defence representation depriving the appellant of a fair trial

[31]This ground of appeal has involved the Court considering the work of the appellant’s legal advisers in the period leading up to the trial and their conduct of the case at trial. Detailed criticisms are made of the pre-trial preparation and also of the strategy of trial counsel and solicitors during the course of the trial. In approaching this task we bear in mind what this Court said in R v Day [2003] EWCA Civ 1060 about complaints of this type. Giving the judgment of the Court Buxton LJ said (para 15):
“While incompetent representation is always to be deplored; is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1096, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.”
We also bear in mind that the criticisms of the legal advisers in the Reference are that they failed to deploy material which ought to have been placed before the jury. In that sense the case is akin to a fresh evidence appeal. In the circumstances, we bear in mind what Lord Brown of Eaton-under-Haywood in Dial & Another v The State of Trinidad & Tobago [2005] 1 WLR 1660 said at paragraphs 31 and 32:
“[31] In the board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view ‛by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict’: R v Pendleton [2002] 1 All ER 524 at [19]. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford v DPP [1973] 3 All ER 762,[1974] AC 878 at 906, and affirmed by the House in R v Pendleton: “While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]” [32] That is the principle correctly and consistently applied nowadays by the criminal division of the Court of Appeal in England – see, for example, R v Hakala [2002] EWCA Crim 730, [2002] All ER (D) 277 (Mar), and R vIshtiaq Ahmed [2002] EWCA Crim 2781, [2002] All ER (D) 80 (Dec). It was neatly expressed by Judge LJ in R v Hakala, at [11], thus: “However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe” “While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]” “However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe”
[32]The CCRC and the appellant’s current legal advisers are very critical of the conduct of John Foley and Mary Foley and the two sets of counsel who acted for the appellant both before and at trial. This ground has seven separate sub-headings, one of which itself is divided into a further eleven specific criticisms of failures to place important evidence before the jury which might or could have assisted the appellant’s case. These criticisms form two groups. The first concerns pre-trial failures and the second, failures at trial.

Pre-trial failures

[33]As presented to this court by Mr Tim Owen QC, on behalf of the appellant, the first important failure was the failure by the Foleys and counsel initially instructed, to appreciate that counsel were almost inevitably going to be faced with a conflict of interest which would lead them to return their briefs. The relevant factual background is as follows.[34]Mr Chadwin QC and Mr Cosgrove had represented Hepple in the Hepple trial. Mr John Foley and Miss Foley knew Mr Chadwin well and had worked with him before. Mr Foley in his witness statement said, and we accept, that the appellant was keen to instruct Mr Chadwin because of his success in the Hepple trial. It is clear from the evidence of the Foleys and from a letter written by Mr Chadwin in December 2002 before he died, that Mr Chadwin made it clear that he could only represent the appellant if it was not alleged that Hepple was responsible for the murder. Mr Cosgrove, in an interview with the CCRC, said that he was troubled by accepting the brief for the appellants. He said he discussed his anxieties with Mr Chadwin but Mr Chadwin was not as concerned as he was.[35]Miss Foley said in evidence that the question of whether or not there was any conflict which would lead counsel to withdraw was kept under constant review. It appears that the matter came to a head when Mr Muller QC, at a Bar mess on 7 April 1993, told Mr Chadwin that he was going to run the defence for Hands on the basis that Hepple committed, or might have committed, the murder. At the conference with the appellant on 8 April 1993 counsel informed the appellant that they had to withdraw and return their briefs. Mr Foley told us that he felt badly let down by Mr Chadwin. In our view, he was quite justified in that opinion. This decision by counsel came at the last minute and apparently as a result of a chance remark at a social event.[36]The trial was due to start on 21 April 1993 having been fixed for that date at a hearing in February 1993. On 15 April 1993 Mr Fordham, then still a junior, but due to be sworn in as a silk within days, and Mr Menary were instructed. An application for the trial to be adjourned was granted by the trial judge, Ognall J, and the trial re-fixed to start on 26 April 1993.[37]There is now no dispute that the decision of the Foleys to instruct Mr Chadwin QC and Mr Cosgrove, and the decision of Mr Chadwin and Mr Cosgrove to accept the instructions, were mistaken. In a note to the Registrar dated 21 March 2006 Mr Cosgrove stated:
“Were these circumstances to recur, I would not accept the brief now. If that is an admission of error, so be it.”
[38]At the start of his submissions to this court, Mr Ben Nolan QC, on behalf of the Respondent, frankly conceded that both counsel and solicitors ought to have realised from the outset that there was a potential problem with Mr Chadwin QC and Mr Cosgrove accepting instructions to represent the appellant. We are in no doubt that this concession was properly made. It seems to us patently obvious that one line of defence for the appellant and his co-accused, Hands, was to blame Hepple for the murder. In our judgment, Mr Chadwin and Mr Cosgrove ought not to have accepted instructions in the first place and ought to have clarified from a very early stage whether there was any conflict which would cause them to withdraw. Whether either counsel or solicitors, or both, were to blame for this error and the late withdrawal of counsel, is not material. It was in our judgment a clear error.[39]We deal next with two associated criticisms made of trial counsel. Mr Owen submits firstly that trial counsel ought to have insisted on a longer adjournment than the five days allowed by Ognall J. Mr Owen submits that for a complex trial such as the Adams’ trial, following as it did, the Hepple trial, ten days preparation was far too short for counsel, however experienced, to come fully to grips with the case. The volume of material to be viewed would, alone, require a longer time to scrutinise. Further, there were difficult decisions of strategy to be made which could not be made without the fullest information available to counsel.[40]Secondly, Mr Owen submits that Mr Fordham, whose practice as a junior appeared to have been largely in the personal injuries field, was too inexperienced to deal with a case as complex as this one.[41]On both these criticisms we heard evidence from John Foley, Mary Foley, Mr Menary QC and Mr Walsh. All but Mr Menary considered that the period of ten days to prepare the case was too short. Mr Foley thought that three to four weeks was needed. Mary Foley thought six weeks was required. She said she asked counsel to apply for six weeks. Mr Walsh thought it a difficult task for the appellant’s counsel to be ready in the time available.[42]Mr Menary said in evidence that he did not think that he and Mr Fordham had been set an impossible task in preparing for the trial in such a short time. In his view they could have started the trial on 21 April 1993 if necessary. In any event if they had felt that they needed more time Mr Fordham would have asked for it.[43]As to Mr Fordham’s experience, Mr Menary pointed out that, in practice as a junior, Mr Fordham had conducted many criminal trials. He said that he was one of the busiest juniors on the Circuit (the Northern) before he took silk.[44]We accept Mr Menary’s evidence that he and Mr Fordham felt they had sufficient time in which to prepare the appellant’s case. We have no doubt that if either he or Mr Fordham felt they needed more time they would have made an application for a further adjournment. However, in our judgment, there can be no doubt that they were faced with a formidable task in making themselves ready for trial. In addition, as Mr Menary was disposed to accept, much depended on whether they had everything they should have had to read. We conclude that in assessing the allegations made in this appeal that some material, which should have been placed before the jury, was not placed before it, we must assess that criticism against the background of the very short period of time which Mr Fordham and Mr Menary had to prepare the case.[45]As to Mr Fordham’s alleged lack of experience, we reject this criticism. We have been told he was a grade 4 prosecutor and on the SFO list. Although it was his first case in silk, we see no reason to doubt that with careful preparation and the assistance of a very experienced junior in the criminal field, as Mr Menary was, he was quite capable of conducting the appellant’s case. We have been fortified in this conclusion by reading the skilful cross-examination of Kevin Thompson by Mr Fordham.[46]The next criticism of the legal advisers is a general criticism that before Mr Fordham and Mr Menary were instructed on 15 April 1993 little or no pre-trial preparation had been carried out by either solicitors or counsel. Mr Owen identified a number of factors which, in his submission, demonstrated a lack of preparation. The following are examples but not an exhaustive list of failures alleged by Mr Owen. By 8 April 1993: a) The appellant had not had a conference with counsel; b) Despite reminders from the CPS not all of the unused material had been inspected; c) The Holmes database had not been examined; d) Potential defence witnesses had not been seen and proofed; e) No transcripts of evidence had been sought from the Hepple trial, the Consett trial, the Presto trial and the Gucci watch trial; f) No proper proof of evidence had been taken from the appellant; g) Generally no work had been done with a strategic brain in place applying his or her mind to the case.[47]We have had great difficulty in assessing these criticisms. The original trial took place over 13 years ago. In that time, not only have memories inevitably dimmed, both leading counsel, instructed on the appellant’s behalf, have died and the Foleys have been deprived of all their working papers. The latter were transferred to the appellant’s solicitors who acted for him on the first appeal and subsequently been lost. It is not surprising that all the witnesses said in evidence on many occasions that they had no recollection of events about which they were being cross-examined. Mr Owen conceded, in respect of Mary Foley, that a generous allowance should be made in her case for the lapse of time and the fact that her working papers are not available to her. In our judgment the same generous allowance should be made in respect of the other professional witnesses. In the circumstances we are not prepared to make findings of fact adverse to any of the legal advisers, save in the clearest instances.[48]With this approach in mind we do not accept that either Mr Foley or Miss Foley did no preparatory work. Mr Foley cross-examined five witnesses called at the committal proceedings in the Magistrates Court. He must have done some preparatory work in order to undertake this task. A note prepared by Mr Cosgrove for the Plea and Directions Hearing shows that three statements had been taken from prosecution witnesses, presumably by Miss Foley. It is not disputed that Miss Foley visited the appellant in prison. She said that she took his instructions on the witness statements and prepared a proof. We accept that she did some preparatory work in this connection but it may not have been as comprehensive as she now believes. A handwritten note by Mr Cosgrove made for the conference with the appellant on 8 April 1993 contains the following:
“MF requested to get Def’s comments on all of the case against him.”
On the other hand there had been no conference with counsel and the appellant before 8 April 1993. Mr Foley accepted that this was not the normal practice. None of the witnesses recollected that the Holmes database was interrogated. Miss Foley said that counsel did not advise that this should be done. Mr Menary could not remember being told of the existence of the Holmes database. There is no evidence that it was examined and some evidence, to which we shall come, that it was not.[49]Mr Walsh’s notebooks, which are unusually full, but not all of which survive, suggest that he, at any rate, examined the relevant unused material, although the cross-examination of Kevin Thompson suggests that there were some gaps. We are unable to make any finding as to how much was done on the unused material by either Mr Cosgrove or Mr Menary by the time of trial.[50]The alibi notice was not sent until 15 April 1993. We find that it was never shown to the appellant and that Miss Foley was wrong in her assertion to the CCRC that up to the date of it she had not received the statements of PCs Howstan and Robotham.[51]The fact that Ognall J was asked during the trial to order transcripts of evidence given by various witnesses in other trials, suggests that no focused thought had been given before trial to the need to obtain transcripts of evidence given by witnesses in trials taking place before the Adams trial.[52]In addition, in view of the fact that no conference had taken place with counsel and the appellant before 8 April 1993, in our judgment, no strategic planning or preparation by counsel had occurred before Mr Fordham and Mr Menary were instructed. Our overall impression is that by the time Mr Fordham and Mr Menary were instructed much work was left to be done and much thought needed to be given by counsel as to how the case was to be conducted. However, in our judgment, the only way we can test the issue of whether the pre-trial work which ought to have been done was not done is by reference to what happened at trial. When making this assessment we bear in mind two concessions made by Mr Nolan. They were first that it was unacceptable for no one in the defence team to interrogate the Holmes database; and secondly, failures to recognise relevant and important unused material would amount to a legitimate complaint.[53]Finally, before discussing failures in relation to the trial we must discuss the criticism that before the trial started on 26 April 1993 neither defence counsel originally instructed nor trial counsel had given any proper strategic thought as to how the defence should be run. Two important issues are raised in this criticism.[54]First, it is submitted that trial counsel failed to grapple with the “blame Hepple” strategy. We have already referred to the fact that Mr Muller for Hands indicated his intention to run the defence of Hepple being an alternative candidate for the murder of Royal. Mr Menary, in evidence, said that he was aware that this was an option open to the defence of both the appellant and Hands. He said that he did not have much faith in it. He said that he had some vague recollection of finding out what had happened in the Hepple case but it was clear from his evidence that he did not rate this line of defence highly. He pointed out that Kevin Thompson was cross-examined on the basis that he had told David Clarke that he had killed Royal.[55]The criticism made by Mr Owen is that “blame Hepple” was an obvious line of defence for the appellant and that not enough preparatory work had been done to enable this option to be a viable line of defence. Secondly, it is submitted that the defence never properly thought through the issue of whether to implicate the police in an allegation that they had been involved in corrupting prosecution witnesses. In particular it was never put to Kevin Thompson or any police officer that Kevin Thompson had been fed information which enabled him to dove-tail his evidence with the appellant’s original version of events on the night of the murder. At the hearing of the appeal counsel referred to this as the “fit up” strategy.[56]In response to theses submissions, Mr Nolan submits that it is clear from the way the case was conducted that counsel for the appellant decided to attack Kevin Thompson’s credibility but to take a softer approach to the evidence of the corroborating witnesses. He submits that in that way counsel successfully avoided the appellant being cross-examined on his previous convictions and, importantly, avoided the introduction by the prosecution of evidence to show that Kevin Thompson may have been consistent in his evidence with what he had allegedly told some of the corroborating witnesses about the events on the night of the murder much closer to the time of it. Mr Nolan submits that if the “fit up” strategy had been deployed it would have opened the door to other evidence being adduced by the prosecution from police officers and other witnesses demonstrating that Kevin Thompson had been consistent in his version of events.[57]As with the first criticism we shall deal with this later when we come to the specific criticisms about evidence which was not placed before the jury and which it is alleged should have been put in evidence by the defence. So far as the second part of the criticism is concerned, in our judgment the tactical decision taken by trial counsel to attack, “trenchantly” as the judge described it, Kevin Thompson’s credibility but take a softer approach with other witnesses was, in our judgment, a reasoned decision which counsel was entitled to make and cannot be described as incompetent.

Failings at trial

[58]There are as we have already said a large number of criticisms made of the appellant’s trial counsel and solicitors in their conduct of the trial. However, the attack concentrated on nine specific alleged failures which it is said resulted in important evidence not being presented to the jury. To these nine failures must be added two more criticisms which overlap criticisms relating to pre-trial preparation and the conduct of the trial. They come under the headings of the alibi notice and a failure to view unused material. So far as the latter is concerned the Consolidated Notice of Grounds of Appeal refers to a collection of material surrounding the interviewing of and statement taking from Kevin Thompson by the police (the Kevin Thompson unused material). The CCRC state in the Statement Reasons that the latter material was not disclosed by the prosecution. But, as we have said, it is now common ground that this material was available to the defence team if they had properly examined the unused material. The criticisms in respect of this material is therefore that the defence lawyers either did not deploy this material when they ought to have done, or, more probably, they were unaware of the existence of the material because no proper examination had been made of the unused documents.[59]We deal first with the criticism made of the alibi notice and its effect on the trial.

The alibi notice

[60]By letter dated 8 April 1993, the CPS asked John Foley & Co to confirm that the appellant would not be relying on alibi evidence at the trial then listed for 21 April 1993. In response, John Foley &Co sent an alibi notice dated 15 April 1993 for both the appellant and Hands.[61]The joint alibi notice stated that: “We write to inform you that the defendants are relying on alibi in the case, that alibi being set out in a statement of the 24th March 1990, namely that the defendants went to the home of Brian Duffy at 5 Darden Lough, West Denton, Newcastle upon Tyne at approximately 7.00pm. When they got there, there was Neil Graham, another friend, in the house. They state that they were there until approximately 10.45pm when they left to go to the city centre. At about 11.15pm the same day they were stopped by Police Officers on the West Road. They then returned to Brian Duffy’s home and remained there until approximately midnight or 12.30am. They then left and went to Newcastle Airport and on route to the Airport they were again stopped by Police Officers. The witnesses in support of the alibi, obviously, are Neil Graham and Brian Duffy”.[62]Both the appellant and Hands had in the course of police enquires given witness statements on 24 March 1990 relating to the events of 19 March 1990 In his statement the appellant said that the time when he was stopped by the police was 11.15pm while Hands stated that this had occurred as 11.00pm. They also added that the appellant had dropped Hands at home at about 1.00am before going home himself.[63]The complaints of the appellant in relation to the alibi notice are that his solicitors:(a) failed to serve the alibi notice within 7 days of the committal asrequired by section 11(1) of the Criminal Justice Act 1967;(b) had not read the statements in the committal bundle by the time that they served the alibi notice;(c) having read the statements had failed to identify an obvious problem which was the conflict between the times of the stop given by the applicant in 1990 and the confirmed time of 10.53 pm on the Police National Computer for the stop given by PC Robotham in his three witness statements;(d) should have consulted the appellant and counsel before drafting the alibi notice; and(e) should not have stated that Graham would support the alibi of the applicant as this was not the case.[64]As to (a), it is correct that the solicitors for the appellant did fail to serve the alibi notice within the prescribed time period but this failure had no adverse effect on the appellant at trial as it was neither the subject of cross-examination, nor was this failure commented on by prosecution counsel nor by the judge in summing-up.[65]Turning to (b), Mary Foley told the CCRC that the alibi notices gave the time of the stop at 11.15pm because the statements of PC Robotham had not been disclosed by the time the alibi notice was served and that they were only disclosed in response to the alibi notice. Mary Foley was not correct in this assertion. The statements of PC Robotham and of PC Howstan stating that they had seen the applicant travelling west on West Road at 10.53pm and 10.47pm respectively had been served on the defence in the committal bundle before 8 October 1992. This was an error on the part of the appellant’s solicitors but in our judgment it has no effect on the safety of the conviction.[66]Complaint (c) is that by naming Neil Graham and Brian Duffy as alibi witnesses, the appellant’s solicitors had not properly considered the evidence. In fact Graham was a prosecution witness, who had explained in his disclosed statement of 24 April 1992 that the times in his 24 March 1990 statement had been too specific and that he believed that he arrived at Duffy’s house between 6pm and 8pm with the appellant and Hands arriving “some time after”. Significantly, Graham was unable to say when they left although his evidence was that they were away for “longer than half an hour”. In his statement, he said that the appellant later left the house alone and that a few days later he and Hands told him and Duffy to tell the police that they had both been with them at the house at 11.30pm.[67]The complaint of the appellant is that his former solicitors firstly failed to appreciate the discrepancy between the alibi notice and the witness statement to which we have referred; and secondly that neither the appellant nor his counsel had seen the alibi notice before it was served. It is contended that the appellant’s solicitors ought to have sought clarification from the appellant and that they were where not alive to the problems associated with the alibi notice as drafted. We consider these criticisms to be justified but they do not assist the appellant unless they undermine the safety of the conviction[68]In our view, none of these failings set out in (b), (c), (d) and (e) above either individually or cumulatively undermine the safety of the convictions because:(a) at trial, the appellant confirmed the contents of his witness statement of 24 March 1990 which was the basis of the alibi notice. Mary Foley took proofs of evidence from the appellant and Hands in which they both reiterated the truth of what they had said in their original statements as to their whereabouts and movements on the night of 19 March 1990;(b) the inclusion of the name of Graham in the alibi notice was inevitable because section 11 (1) of the Criminal Justice Act 1967 imposed on them an obligation to “give notice ofparticulars of the alibi”. Therefore it was not open to the appellant’s solicitors to omit references to Graham as an alibi witness bearing in mind the facts in the notice accorded with their instructions ;(c) but even if the alibi notice had failed to include the information stated by the applicant in his witness statement of 24 March 1990, prosecuting counsel would have undoubtedly cross-examined the appellant about the discrepancy between the contents of the alibi notice and what the appellant had said in his witness statement. If the alibi notice had failed to include the information stated by the appellant in his witness statement it would have been inevitable that prosecution counsel would have made the damaging and significant point that the appellant changed his alibi in the light of the statements of Graham, PC Robotham and PC Howstan;(d) by the same token, if the alibi notice had failed to include the information stated by the appellant in his witness statement of 24 March 1990, the judge in his summing-up might have criticised the appellant for changing his alibi so as to omit any reference to Graham as a result of seeing the statements of Graham, PC Robotham and PC Howstan;(e) in any event no criticism was made of the alibi notice in the summing-up.

The Kevin Thompson unused material

[69]The strategy of counsel cross-examining Kevin Thompson was, as we have said, to make a strong attack on his credibility. It is clear from the transcript of Kevin Thompson’s evidence that, in cross-examination, Mr Fordham and Mr Muller sought to undermine his credibility by suggesting to him that before he made his witness statements and gave answers to questions under caution by the Northumbrian police officers conducting the investigation into the Royal murder, he had made a deal with the Durham police officers investigating a robbery of an elderly couple living near Consett in County Durham. The clear suggestion in cross-examination was that Kevin Thompson was giving evidence in the Adams trial because of the deal reached with police in respect of the Consett robbery.[70]On any fair reading of the cross-examination of Kevin Thompson by Mr Fordham and Mr Muller, the impression is of a skilful and effective attack on his credibility. It resulted in

the judge giving the following direction to the jury:

“Then there was a close analysis of the matters implicating him – those six matters implicating him in the Consett robbery which I have summarised and he, in effect, acknowledged that there had been a formidable case against him justifying a prosecution for robbery, but that had been dropped and he was dealt with very leniently for the offence of handling stolen goods.”
A little further on in the summing-up

the judge said:

“On the whole of the evidence you have heard, ladies and gentlemen, it would be open to you to conclude, despite his denials, that Kevin Thompson was indeed an accomplice in the murder of Jack Royal, that is to say that despite his denials, he was a knowing and willing party to the killing of that man. He, of course, denies it. He says it was only after the murder that he realised with shock and consternation that a murder had in fact been in contemplation and had been committed, but if you, the Jury, took the view that he knew in advance at the time he drove those men to St. Michael’s Green car park that it was in order to effect the killing of Jack Royal, then, of course, he would be a party to the crime of murder. But even if his role was the more limited one, as he maintains, he is plainly a person who, on his own evidence, may well have a purpose or purposes of his own to serve by giving false evidence implicating Adams and Hands in the murder. When I say “purpose or purposes of his own” conducing to falsehood, I refer of course either to minimising his own role in the killing, or because of the 1991 and 1992 history that I have already sufficiently reviewed. Whether because he is an accomplice or whether because he may well have a purpose or purposes of his own to serve, ladies and gentlemen, I must tell you that it is dangerous to convict in reliance solely on the evidence of Kevin Thompson, unless that evidence is corroborated in some material particular by other evidence in this case.”
[71]At the first appeal it was contended on behalf of the appellant that the prosecution had not disclosed some material which could have been used to reinforce the inference that Kevin Thompson had done a deal with the Durham police. In the course of the appeal counsel for the prosecution conceded that a deal had been done. The court in its judgment said:
“As to the status and treatment of Thompson, it is, in our judgment, deplorable that no records were kept of the conversations between the Durham police officers and Thompson in the Consett police station, and when going to and from Thompson’s home on 10th April. That was an inexcusable and serious irregularity. But the question which we have to consider is whether that irregularity renders the appellant’s conviction unsafe. In our judgment, it does not, for two reasons. First, we reject the inference suggested by Mr. Beresford-West that what was discussed on those occasions was the Royal murder. There is no evidence to support this and the probabilities, in our judgment, are against it. The officers with Thompson were investigating not that murder, which was the concern of the Northumbria police, but the serious Consett robbery, for which Thompson had recently been arrested. We accept that they did a deal with Thompson in relation to this, whereby, in due course, a plea by him to handling was accepted and he gave evidence for the prosecution at the trial of the four robbers. It is also plain that the judge who sentenced him was provided with information about the help that he had, by then, given, in relation both to the Royal murder and to the Consett robbery. Hence it was that he got the highly lenient sentence to which we have referred. However, we see no reason to believe that, on 10th April, Thompson discussed the Royal murder with Oughton and French. Mr. Beresford-West relies on Nicola Henderson as being able to give evidence, had the appellant’s defence at trial known of it, which would have destroyed Thompson. We reject this. The passage in her evidence which we have quoted not only does not, in our judgment, undermine Thompson, it is entirely consistent with his account that he did not discuss the murder with the police at that time. Inspector Sharp, who was investigating that murder, spoke to Nicola Henderson about it after she had been released on bail. But she said that, to her knowledge, he did not speak to Thompson about it. There is no evidence before us, from the custody record or otherwise, to suggest that Inspector Sharp even saw Thompson, still less discussed the Royal murder with him.”
The criticism made in the appeal before us is similar to but quite separate and distinct from that made in the first appeal. The background is however the same, namely the chronology of the arrest of Kevin Thompson for the Consett robbery and the events which led to him making statements to the Northumbrian police conducting the Royal murder investigation. They encompass a short time span of no more than twenty-two days from 8 April 1992, when Kevin Thompson was arrested, to 29 April 1992 when the interview process of him under caution was completed.[72]It is clear from the transcript of the cross-examination of Kevin Thompson that Mr Fordham cross-examined him in some detail about the interview process during this period of time with a view to establishing contact between the Northumbrian police investigating the Royal murder and Kevin Thompson. However, as the CCRC in the Statement of Reasons demonstrate it seems that some important material was not used by either Mr Fordham or Mr Muller. The detail of what was used and what was apparently not used is set out in a short chronology prepared by Mr John Lyons, junior counsel for the appellant, using shadings to demonstrate material that was not used. The material which was not used included the following: 9 April 1992 A meeting between the Durham police And the Northumbrian police (Royal murder) officers. 9 April 1992 19.53 A “missing” interview with Thompson by the Durham police. 10 April 1993 12.00 Northumbrian police with Durham police. 14.00 Unrecorded visit between Thompson and his girlfriend Nicola Henderson. 14 April 1992 15.00 Northumbrian police visit Thompson at Nicola Henderson’s parents home. 26 April 1992 Northumbrian police lengthy interview with Thompson at Consett safe house. The meeting was not mentioned in witness statements.[73]The significance of the unrecorded meeting between the Northumbrian police and Kevin Thompson on 14 April 1992 is that on 15 April 1992 Kevin Thompson made a witness statement in which he blamed the appellant for the murder of Royal but gave no indication that he was in any way involved in it. The significance of the unrecorded meeting on 26 April 1992 is that it was followed by interviews of Kevin Thompson on 27 April 1992 and 29 April 1992 in which Kevin Thompson set out in detail what became his evidence at trial.[74]The material to support this chronology is contained in the custody record and the personal notebooks of police officers all of which was listed in the unused material. That these notebooks were not seen by the defence lawyers appears from a passage in the transcript of the cross-examination of Kevin Thompson by Mr Fordham in which the following exchange took place:
“Q. … I did not realise that they (the police) had seen you on the 14th? – A. They came on the Tuesday to see me then and then I made a statement on the Wednesday. Q. And on my understanding I thought only that they had spoken to Mr Henderson Snr. On the 14th but they had actually spoken to you on the 14th, had they? – A. Yes.”
[75]Mr Fordham did not pursue this topic at any length thereafter. Because of the absence of cross-examination on it, it seems safe to conclude that similarly Mr Fordham was unaware of the meeting between the Northumbrian police and Kevin Thompson on 26 April 1992, the day before he gave a detailed account of the appellant’s part in the murder.[76]Unsurprisingly, the CCRC and counsel for the appellant make much of failures to use this material. Mr Lyons submits that the material provides a link between the Durham police conducting their investigation into the Consett robbery and the Northumbrian police investigating the Royal murder. He relies on the existence of the “missing interview” which occurred on 9 April 1992 for which no notes exist and the tape has now been destroyed. It followed a meeting between the Durham police and the Northumbrian police. As noted by the Court in the first appeal, on 10 April 1992 Kevin Thompson saw Nicola Henderson at 14.00 following a visit to the Consett police station by the Northumbrian police. After Kevin Thompson was bailed there occurred meetings between the Northumbrian police on 14 April and 26 April 1992 in respect of which the police records are extremely slender. DC Mackle’s (Northumbrian police) notebook records the following in respect of the 14 April meeting (CCRC para 269):
“3.00pm 3 Grange Villas, Wallsend, see Kevin Thompson. Told us Adams had told him he had killed Jack Royal, had name OWLA or HOWLA had stolen the car used from the Metro Park Hotel. Arrange statement tomorrow. 5.30pm Gosforth. Confer re further actions and statements.”
There is no reference to the length of the meeting nor any detailed record of what was said.[77]The existence of the meeting between Kevin Thompson and the Northumbrian police on 26 April 1992 is recorded in the notebooks of DI Sharp and DC Mackle. The entries record that both officers went on duty at 9.00am. Each then contains a reference of travelling to Consett to see Kevin Thompson. The length of the meeting is not recorded although DC Mackle noted that a “…long conversation re night of Royal murder…” took place. DI Sharp’s note ends with the observation that Kevin Thompson agreed to be interviewed. The officers returned to their police station at 16.30. DI Sharp’s notebook gives some indication of what Kevin Thompson said before he was advised not to continue with “…admissions pending advice on arrest and interview”.[78]It seems clear from the notebooks that Kevin Thompson was prepared to give information which would suggest that he was an accomplice in the murder. It is, to say the least, surprising, in the circumstances, that the length of the meeting and the detail of what was said was not recorded by either officer.[79]Mr Nolan submits that in view of the cross-examination of Kevin Thompson and the summing-up by the judge on the issue of whether or not a deal was made between the Durham police and Kevin Thompson, the jury may well have concluded that there was such a deal. This was certainly the view of the Court in the first appeal. Before that Court Mr Robson, for the respondent, accepted that a deal had been done but Mr Nolan made it clear that he had no instructions to make a similar concession.[80]Mr Nolan further submits that there is no evidence of the Northumbrian police having contact with Kevin Thompson before he was released on bail by the Durham police. The inference is that by that time any deal had been agreed. He submits that in view of the effective cross-examination by Mr Fordham and Mr Muller and the judge’s summing-up there can be no question of this material adding to the effect on the jury of Kevin Thompson’s lack of credibility.[81]We do not accept Mr Nolan’s broad submission that this material would not have added to the damage already done to Kevin Thompson in cross-examination. Mr Nolan accepts that the strategy of the defence lawyers was to undermine Kevin Thompson’s credibility and at the same time expose opportunities for information to have been fed to him by police officers. In our judgment the use of this material might have had just that effect. What was missing from the cross-examination was the reference to the visit by Northumbrian police to Consett police station before Kevin Thompson’s release on bail. In addition, it seems to us, that this strategy could well have been assisted by reference to the meetings on 14 and 26 April 1992 and the absence of detailed notes of those meetings in the police officers’ notebooks, something that in our judgment required some explanation from those officers. In the first appeal the Court described the absence of notes by the Durham police in similar circumstances as deplorable and inexcusable. By way of a postscript we add the fact that counsel at the first appeal accepted, contrary to Kevin Thompson’s evidence, that a deal must have been done between Kevin Thompson and the Durham police in respect of the Consett robbery, further undermines Kevin Thompson’s evidence given at trial.

Evidence not presented at trial

[82]We deal now with the nine specific criticisms made in respect of evidence which was not presented at trial. The allegation is that the appellant’s legal advisers at trial did not adduce evidence which was available and which undermined Kevin Thompson’s evidence and supported the proposition that another person or persons were responsible for the murder. We shall deal with each under the headings ascribed to them in the Consolidated Notice of Grounds of Appeal.

The police stop on West Road

[83]On the night of the murder the appellant’s Renault 5 Turbo motor car was the subject of two checks on the Police National Computer (PNC). We have referred to this evidence in paragraph 12 above. The appellant admitted that he and Hands were in his Renault car at the time the checks were made. It was common ground that PC Robotham in a police Vauxhall Astra GTE car had stopped the appellant’s car at about 10.53pm, the time recorded on the PNC. The importance of this evidence was that Kevin Thompson said he had seen the appellant’s car and the Astra GTE at about that time when he was filling up his car with petrol at a garage near Denton roundabout in West Road. His evidence was that the appellant and Hands followed him to the garage and then drove up and down West Road until such time as he had completed filling his car and drove out onto West Road. He said that he followed the appellant’s car to 49 Sugley Road where the appellant and Hands collected the dark coloured holdall which the prosecution allege contained the sawn-off shotgun. Kevin Thompson said that the appellant had told him that he was “trolling up and down West Road” in order to get stopped so as to provide him with an alibi for the time of the murder.[84]The prosecution contended that the appellant’s admitted presence in West Road at that time corroborated this part of Kevin Thompson’s evidence. The prosecution further alleged, on the basis of this evidence that the appellant was endeavouring to provide for himself an alibi for the time of the murder. Much was made of this incident by the prosecution in cross-examination of the appellant and in prosecuting counsel’s closing speech. There can be no doubt, that as it was left to the jury, the evidence was powerful support for the prosecution case.[85]Kevin Thompson was not specifically cross-examined on this part of his evidence and the two police officers, PC Robotham and PC Howstan, were subjected to no more than cursory cross-examination. Both the CCRC and the appellant’s counsel criticise the defence lawyers for failures in regard to this evidence.[86]The Holmes database contained a document entitled Action 491 (A 491). It contained the following paragraph referring to the stopping of the appellant’s car:
“190390 stopped by PC Robotham (traffic) on behalf of DC Perkins, Newcastle West CID. No offences were disclosed. Vehicle had been seen in the vicinity of Bobby Shaftoe when two stolen vehicles were sighted.”
The note appears to be dated 25 June 1990.[87]It is contended by counsel for the appellant that this document potentially undermined the prosecution case in respect of this incident. Mr Owen submits first that the reference to the vehicle being sighted in the vicinity of the Bobby Shaftoe public house supported the evidence of the appellant and Hands that before the stop their car had been in Condercum Road not far from the Bobby Shaftoe public house. They said that at the time of the stop they were on their way back to Darden Lough, the address where Duffy, one of the alibi witnesses, lived. Secondly, it is submitted that the reference to the car being stopped by PC Robotham on behalf of DC Perkins contradicted Robotham’s evidence that he had stopped the car because it was speeding. DC Perkins suggested to the CCRC that he had “shouted up” for the appellant’s vehicle to be stopped.[88]Mr Owen for the appellant goes further. He argues that A491 and the times of the checks potentially exposed inconsistencies between the evidence of the two police officers and Kevin Thompson’s evidence. Kevin Thompson said that he saw the appellant’s car travelling west up West Road when he was filling up his car at the garage. At the same time he saw the police Astra car driving up the road. He said that by the time he had completed filling up his car and driven out of the garage he was able to see the Renault driving west along West Road. He caught up with it and followed it to Sugley Street. Mr Owen contends that by taking the times of PC Howstan’s sighting (10.47) and PC Robotham’s check (10.53) it can be demonstrated that if Kevin Thompson was telling the truth he must have been filling his car up in the garage for a period of at least 13 minutes. Mr Owen submits that this is inherently unlikely and casts doubt on Kevin Thompson’s evidence in respect of this incident. He submits that this time might have been further extended if the defence had followed up DC Perkins’ report and been able to show the time when he saw the appellant‘s car “in the vicinity of the Bobby Shaftoe”. If that time had been known it might have shown that for Kevin Thompson’s evidence to be correct it must have been in the garage for as much as 16 minutes.[89]Mr Owen also points to the discrepancies between PC Robotham’s evidence as to when he made his check (after stopping the vehicle) and what he stated in his first witness statement of 24 April 1992 (before he stopped the vehicle).[90]PC Howstan said in evidence that he checked the vehicle number “… as I was looking for a stolen vehicle”. In his witness statement dated 24 April 1992 he made no mention of the reason for stopping the appellant’s car. Mr Lyons points out that neither police officer noted these events in their notebooks and that their statements were made just over two years after the event. The evidence of these police officers was not probed in cross-examination. Mr Owen suggests that it might have been possible to establish that it was probable that PC Howstan’s car was the second car which Hands said in evidence was involved in the stop by the Astra. This would have supported the evidence of the appellant and Hands and undermined the evidence of the two police officers.[91]Mr Michael Graham, junior counsel for the respondent, accepts that A491 suggests speeding was not the reason for the appellant’s car being stopped and supports the reason given by the appellant in his witness statement of 10 March 1990. He submits that the evidence of PC Howstan and PC Robotham is not necessarily inconsistent with Kevin Thompson’s evidence. He submits that there are many imponderables about the timings because the PNC records do not show precisely what time the clock starts to run when a check is made or where the officer was when he made the check. He also submits that any attempt to establish that both cars were involved in the stop would be based on pure speculation.[92]We have not found the evidence and arguments on this point easy to evaluate. On the face of it there is an important inconsistency between PC Howstan’s witness statement and PC Robotham’s evidence. There is also some confirmation in A491 of the appellant’s evidence. But, as Mr Graham points out, there are imponderables about the timings and the places where the police officers were when they made their checks. There is also some support for Kevin Thompson’s evidence to be found in Willumsen’s evidence that he saw the appellant at Denton Hotel at about 10.00pm on that evening. Nevertheless, we cannot escape the fact that the prosecution case on this important piece of evidence was not tested to any real extent by the defence lawyers. They ought to have seen A491. Mr Nolan concedes that it was unacceptable not to have examined the Holmes database. If this document had been unearthed it would have given the defence lawyers a useful tool with which to challenge both the evidence of the two police officers and Kevin Thompson. It may also have led to further fruitful enquiries being made as to the time when DC Perkins “shouted up” for the appellant’s car to be stopped. On its own the failure to obtain and use A491 and make the associated points might not be sufficient to render the verdict unsafe. But, in our judgment, it is something which must be put in the balance with other factors when we consider whether this verdict is unsafe.

Beverley Yeadon

[93]Beverley Yeadon saw the Montego car leaving Laburnum Grove at the time the murder was committed. It has never been disputed that she had seen the killers leave in that car having committed the murder. She gave a description of the driver of the vehicle to the police. At first she said that she did not think she would be able to recognise the driver, but after examining photographs shown to her by police officers she pointed out Hepple saying she was not absolutely sure that the driver was him. On 11 April 1990 she identified Hepple at an identity parade.[94]Miss Yeadon was a very important witness in the Hepple trial. Her evidence was subjected to a careful and skilful cross-examination by Mr Chadwin. Obviously the jury, in that trial, cannot have accepted that her identification was accurate. The question arose in the Adams trial of whether the defence should call Miss Yeadon to give evidence. In the end it was decided not to call her and an application was made for her evidence to be read. Ognall J ruled that the complete transcript of her evidence given in the Hepple trial could be read.[95]The decision not to call Miss Yeadon to give oral evidence in the Adams trial is the subject of strong criticism by the CCRC and the appellant’s legal advisers in this appeal. It is submitted that no proper interview of Miss Yeadon was carried out before the decision was made. Mr Owen relies on the fact that Miss Yeadon told the CCRC that having seen photographs of the appellant in the media she had never believed him to be the driver of the Montego. Whether Miss Yeadon actually attended the trial is in dispute. She told the CCRC that she saw Miss Foley at a police station but was never asked to come to court. Mr Walsh, in his evidence to us, said that he had seen Miss Foley talking to a woman at court whom Miss Foley subsequently told him was Miss Yeadon. Miss Foley was able to throw no light on this issue but we accept Mr Walsh’s evidence and find that Miss Yeadon did attend court during the trial and was seen by Miss Foley.[96]It is clear that the question of whether or not to call Miss Yeadon to give evidence in the Adams’ trial was a very difficult one. Mr Menary said that he and Mr Fordham had been given the flavour of what she had said in the Hepple trial. He said that they took the view that she would not have been a good witness and calling her could have been a disaster. He said that he never had a great deal of faith in the blame Hepple strategy and was anxious not to call a witness whose evidence could have been discredited in cross-examination.[97]Mr Walsh said that he and Mr Muller were very worried that if pressed Miss Yeadon might have identified Hands as the driver. A photograph of Hands at the time of the murder bore a number of similarities to the description of the driver given by Miss Yeadon. However, we reject that as a good reason for not calling her. It seems to us that there could be no fear of Miss Yeadon being allowed to make a dock identification of Hands. In any event, he was never suggested to have been the driver of the Montego.[98]We also recognise that evidence could have been called to show that the lighting of the street corner where Miss Yeadon had seen the Montego was far better than had been put to her in cross-examination by Mr Chadwin in the Hepple trial. Further, evidence could have been called to show that the Montego could not have negotiated the corner of the street at the speed suggested by Mr Chadwin. This evidence could have bolstered her identification.[99]Despite the submissions made on behalf of the appellant, in our judgment, the decision taken by counsel for both the appellant and Hands was one pre-eminently for them to take as an exercise of their collective forensic judgment. We can entirely understand Mr Menary’s anxiety that by giving her evidence orally Miss Yeadon might have turned out to be a disaster for the defence. In the circumstances, we are quite unable to find that the decision taken was one which fell below acceptable standards of competence.

The appellant’s hairstyle

[100]Miss Yeadon gave a description of the hairstyle of the driver of the Montego. She said he had “short hair, cropped at the back”. In cross-examination it was suggested to the appellant by counsel for the prosecution that at the time of the murder he had “long swept back hair at the top, shorter at the back.” This description was said to conform to a photograph taken of the appellant on 21 March 1990. This photograph was shown to the jury.[101]In fact a document on the Holmes database showed that DS White recorded the appellant’s hair as “dark brown shoulder length hair.” This description was given by DS White on 24 March 1990.[102]The criticism made of the defence lawyers is that if they had viewed the Holmes material they would have been able to rebut prosecuting counsel’s suggestion that the appellant’s hair was shorter at the back.[103]In our judgment this is a very minor point. It represents another example of a failure by the appellant’s legal advisers at trial to view the Holmes database, but the photograph was before the jury and the jurors were able to judge for themselves the accuracy of counsel’s description. In our judgment this point is of no real assistance in resolving the issue in this appeal.

John O’Brien, Gibside Arms CCTV tape, the Coalway Lane getaway

[104]We take these three alleged failures together since they are inter-linked.[105]John O’Brien was at the time of the murder a security guard working at the Gibside Arms in Whickham. His office overlooked the sole entrance and exit to the St Mary’s Green car park in which the burnt out Montego was found following the murder. He made a witness statement dated 22 March 1990. In it he described seeing a white coloured Montego saloon car entering at speed the service road leading to the car park. Within a minute he saw it leave at speed. A few seconds later after he had left his office, he saw the same car return at speed. About 10 seconds later he heard two loud bangs coming from the direction in which the vehicle had travelled. He said that no vehicles left the car park after that time. The inference is that this was the Montego.[106]O’Brien’s witness statement was read to the jury. The CCRC and the appellant’s counsel criticise the defence lawyers at trial for failing to call O’Brien to give evidence orally to the jury. The importance of O’Brien’s witness statement is that the fact that he saw no cars leave the car park after the two bangs is inconsistent with Kevin Thompson’s evidence that he drove out with the appellant and Hands as passengers after the car had been set on fire.[107]The CCRC and the appellant’s counsel contend that this important evidence would have had far greater effect if O’Brien had given live evidence to the jury. On the face of it there is clearly substance in this contention. Mr Menary had no recollection of why O’Brien was not called. Mr Walsh said that his recollection was that the question of calling O’Brien was investigated. His recollection was that Miss Foley reported that he was going to be unhelpful. Mr Walsh was confident that some effort was made to contact him but the result was not very promising.[108]It is in our view quite impossible for us to make any finding as to why O’Brien was not called on behalf of either the appellant or Hands. We suspect, but are unable to say with any degree of certainty, that he was an awkward witness who was reluctant to give evidence. If that is right there can be no criticism of the decision not to call him. We are not prepared to find that the failure to call O’Brien can be put down to the incompetence of the appellant’s legal advisers. We believe that it is far more likely to have been a pragmatic decision taken to deal with a reluctant witness.[109]The Gibside Arms CCTV tape was not made the subject of any extensive submissions by Mr Owen. The tape was not kept and in our view no criticism can properly be made of the appellant’s legal advisers in respect of this matter.[110]This leads us to the topic of the Coalway Lane getaway. It is submitted on behalf of the appellant that there was some evidence of an alternative version of how the killers of Royal made good their escape which is consistent with the evidence of O’Brien and the evidence of other witnesses either read or not called by the defence; and is inconsistent with Kevin Thompson’s evidence. The plans of the car park and the surrounding area show that there was a possible escape route from the place in St Mary’s car park where the burnt out Montego was found along a footpath, the Coalway Lane footpath, leading to South View Terrace. This route runs from the eastern side of the car park and is closer to where the Montego was found than the exit which Kevin Thompson said he used when ferrying the appellant and Hands out of the car park. Although a footpath, Coalway Lane can accommodate cars and it is said was frequently used by those who stole cars from the car park.[111]The evidence on which the appellant relies is as follows. Two witnesses, Christopher Williams and Malcolm Hession lived in houses overlooking the relevant part of the car park. Each looked out of windows in their respective houses and saw the Montego on fire only seconds after it had been set alight. Neither saw anybody in the area of the Montego, suggesting that those who had set it on fire had escaped by a route other than one which would take them across the car park in the direction of the place where Kevin Thompson said his car was parked. Hession’s witness statement was read. Williams was not called nor was his evidence read. Both statements were part of the committal bundle.[112]The appellant relies on other evidence on this topic which it is alleged was available to the defence but not deployed. In summary this evidence is: 1) The fact that Hepple lived nearby (at 11 Mount View). 2) A large burgundy car, possibly an Audi, was seen by Paul Walton parked in the car park before the fire started close to where the Montego was found. He did not see it in the early hours of the following morning when walking past that part of the car park. 3) At 22.40 three men were seen by Jean Hayden acting suspiciously in the Coalway Lane getaway route. 4) The Holmes database disclosed the existence of a transcript of an anonymous telephone call taken by PC Tyrie on 24 March 1990 from a person describing himself as an eye-witness. It was made in answer to a police advertisement seeking witnesses who might assist in the investigation of the murder. The man said that he had seen a dark coloured car driving along the public footpath in Coalway Lane at the relevant time. He described the car as flying down the Lane and going along South View Terrace. He thought there were two people in the car and although he said he could not actually say it was the killers he thought it sufficiently important to ring up and inform the police of it. 5) Morris Birdsall, who lived at 16 South View Terrace made a statement in which he said that between 23.50 and 00.10 on the night of 19 March 1990 he saw a large saloon car drive along South View Terrace from the east end. His statement is recorded on the Holmes database and was apparently not seen by the defence lawyers. 6) Yvonne Hogarth lived at 48 South View Terrace. She described a dark coloured saloon car travelling at high speed along South View Terrace. She gave the time of this incident as 23.50 on 19 March 1990. Her statement was also on the Holmes database. 7) On 25 March 1990 a police dog handler found a discharged 12 bore shotgun cartridge near the Colway Lane footpath.[113]Mr Owen submits that this evidence, coupled with the evidence of O’Brien, provided a credible alternative escape route by the killers of Royal and ought to have been deployed by the defence.[114]Neither Mr Menary nor Mr Walsh could shed any light on whether or not this evidence was considered by the defence lawyers at trial.[115]Mr Nolan submits that the evidence in respect of the Coalway Lane getaway was far too vague to provide any credible alternative to Kevin Thompson’s evidence.[116]We accept that the evidence relied on by the appellant on this topic, if adduced, on close examination may not have been quite as powerful as Mr Owen submits it is. We have, however, no doubt that the appellant’s legal advisers at trial were unaware of its existence and unaware of its potential value. Much of this evidence was on the Holmes database and should have been seen by the defence team. We are quite confident that it was not. In our judgment, if the defence had known of the existence of this evidence, they would have adduced it.[117]The anonymous telephone call chimes with the witness statements of Birdsall and Hogarth. Together with the other evidence it formed a comprehensible body of evidence suggesting a possible alternative escape route by the murderers of Royal. It also fits with the time of the murder. It was evidence which potentially rebutted the prosecution allegation of the getaway being made through the car park exit with the assistance of Kevin Thompson. Taking the evidence at a whole we can see no reason why it should not have been placed by the defence before the jury and every reason why it should have been. In our judgment the reason for it not being used was almost certainly that in addition to not examining the Holmes database, in the time available to them for pre-trial preparation, Mr Fordham and Mr Menary simply failed to appreciate the significance of this evidence and the argument that could have been mounted in respect of it. We do not solely blame them for this failure. It was in our judgment in large measure a product of the late return of the instructions by their predecessors.[118]A question has arisen as to whether use could in fact have been made of the transcript of the anonymous message at a trial taking place in April 1993. In our judgment the answer to that question is almost certainly affirmative. Sections 23 and 24 of the Criminal Justice Act 1988 permitted the introduction of hearsay evidence contained in a statement made by a person in a document as evidence of any fact of which direct oral evidence would be admissible. Certain requirements under those sections had to be satisfied. We conclude that those requirements were likely to be satisfied either by section 23(2)(c) or by section 24(1)(i) and (ii). The court would then have had to apply principles under section 25 or section 26 of the 1988 Act in deciding whether the evidence was admissible. As far as those sections are concerned, we have come to the conclusion that the court would have been likely to have admitted the evidence about the anonymous phone call subject to the matter next discussed.[119]The issue is raised as to whether a tape recording of a call recorded on a police system or a transcript of that call could be admissible under the hearsay provisions of Part II of the Criminal Justice Act 1988. Schedule 2 of the 1988 Act, in its original form, which was the form in force in 1993, provided as follows at paragraph 5:
“Expressions used in Part II of this Act and in Part I of the Civil Evidence Act 1968 are to be construed in Part II of this Act in accordance with Section 10 of that Act.”
We therefore need to turn to section 10 of the Civil Evidence Act 1968 in the form in which that Act existed in 1993. Section 10(1) provided that “document” includes (inter alia) any tape or other device in which sounds are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom: see section 10(1)(c).[120]Section 27 of the Criminal

Justice Act 1988 provides as follows:

“Where a statement contained in a document is admissible as evidence in criminal proceedings, it may be proved (a) by the production of that document, or (b) (whether or not that document is still in existence) by the production of a copy of that document or the material part of it authenticated in such manner as the Court may approve: and it is immaterial for the purposes of this section how many removes there are between a copy and the original.”
[121]We therefore conclude that had the tape of the anonymous phone call still been available at trial it would have been admissible by virtue of section 27 (a). What would have been the position if the tape itself no longer existed? Would the transcript, which is the document this Court has seen, have been admissible? To answer this question it is necessary to revert to section 10 of the Civil Evidence Act 1968. Section 10(2) provides:
“In this part of this Act any reference to a copy of a document includes: (a) in the case of a document falling within paragraph (c)…. of the definition of “document” in the foregoing subsection, a transcript of the sounds or other data embodied therein”
[122]Having regard to that definition of what is meant by a copy of a document, it is clear to us that by virtue of section 27(b) of the 1988 Act, the transcript of the anonymous telephone message would have been itself admissible. Accordingly, the statements made in that anonymous phone call do fall to be considered by this Court as material available to the defence at the time of the 1993 trial of which evidential use could have been made. In fact, Mr Nolan did not strenuously seek to argue to the contrary.[123]This issue was raised by CCRC and is relied upon by the applicant in the written skeleton argument but it was not developed orally by Mr. Owen. George Thompson and Martin Thompson were brothers of David Thompson and Katherine Thompson. After Royal’s acquittal for murdering David Thompson, George Thompson was convicted of assaulting Royal’s son, Paul Royal. George Thompson and Martin Thompson were arrested for Royal’s murder on 20 March 1990 but they were soon released.[124]Although George Thompson claimed to have been at home with his girlfriend at the time of the death of Royal there was no records on the Holmes database or any other subsequent police investigation of him. This was notwithstanding that first George Thompson had an apparent motive for the murder and that secondly on the 22 March 1990 an informant had told DS Welton that Hepple’s father had told him that George Thompson had committed the murder after drinking in the Sandwell area and had spent the night at his father’s address but that his wife had put forward a good alibi for him[125]The assertion that is made is that Stephen Beavers made a witness statement on 24 and 25 May 1990 describing Hepple’s admission of his involvement in Royal’s murder in which it was said that Hepple had;(a) admitted driving a Montego stolen by some local louts to a pub called “The Railway” or “The Station” to collect George who was a local man who “had been done for fighting and was not afraid of prison” and another man;(b) George had a sawn-off pump action shotgun and he pulled up outside the house and kept the engine running while George and the other man went into the house;(c) he heard a shot and then they returned to the Montego and drove away and later burnt the car out; and that(d) he knew that he had been seen but he was confident that the police would realise that he was “only the driver”.[126]There was also a statement on the Holmes database from John Norris who worked at a petrol station in Swalwell and who, assisted by the till roll, recollected that on the 19 March 1990 Martin Thompson had bought £1.31 of diesel at 3.07pm putting it in a petrol can. Martin Thompson claimed in a police interview to have borrowed the petrol can from Hepple. Although Martin Thompson would have had a motive for the murder of Royal there were no further investigations of him after Hepple’s arrest.[127]It is accepted that the Beavers’ evidence was double hearsay and was as such inadmissible with the result that it would not have been possible for the defence to have called Beavers to give evidence of Hepple’s alleged admissions to him. It is also significant and noteworthy that when he was called as a witness at the Hepple trial, Beavers was apparently disbelieved.[128]In our view, none of this evidence would have been of any assistance to the appellant because either it was hearsay or it came from an unreliable source, namely Beavers.

Thompson and the radio scanner

[129]This matter was briefly referred to in the Grounds of Appeal. However, it does not appear in the appellant’s skeleton argument nor was oral argument addressed to us on the topic. The essence of the matter is to be found in paragraphs 355 to 359 of the CCRC’s Statement of Reasons. It is submitted that Kevin Thompson gave inconsistent evidence at the Consett robbery trial when compared to his evidence at the Adams trial in relation to a radio-scanner believed to have been involved in the Consett robbery. On 25 April 1992 a carrier bag was found at Lyne Bay near Ashington. At that time Kevin Thompson was the only person suspected of involvement in or connection with the Consett robbery who was on bail. The bag was found to contain a sawn-off shotgun and other items suitable for committing a robbery together with a radio-scanner. When Kevin Thompson gave evidence at the Consett robbery trial he was cross-examined about his knowledge of the contents of the bag in the following way:
“Q: Now you say do you that you saw no shotgun during your involvement with this robbery? A: That’s true. Q: No cartridges? A: That’s right. Q: You never saw a scanner? A: That’s right.”
Q: No cartridges? Q: You never saw a scanner? A: That’s right.”

Q: You never saw a scanner?

[130]At the Adams trial, under cross-examination by counsel both for the appellant and for Hands, Kevin Thompson admitted that he had previously seen the radio-scanner, having placed a deposit on it in a shop in Newcastle in January 1991 for David Clarke. According to Kevin Thompson, Clarke said he wanted the scanner for flying lessons.

The judge intervened:

“Judge: Did you believe him? Thompson: At first yes. Judge: When did you cease to believe him? Thompson: Nearer the time of the robbery. Judge: Which robbery? Thompson: The Consett one. That’s the next time I seen it.”
The point is made that neither counsel cross-examined Kevin Thompson to point out the apparent inconsistency between his answers at the two trials. It is said that such cross-examination would have undermined Kevin Thompson’s credibility. Moreover, it is said that the evidence shows that Kevin Thompson was more closely involved in the robbery than was known at a time when a decision was taken to charge him with handling stolen goods. This, it is said, represented a further motive for Kevin Thompson to have made a deal to avoid being charged with the Consett robbery. As we have already said, this point has not been pursued in the Appeal, but we feel it right to deal with it nonetheless.[131]Firstly, we are not satisfied that there is any clear inconsistency established. The context in which the phrase “nearer the time of the robbery” is used, appears to deal with the time after the robbery had taken place rather than before it. Moreover the scanner had been purchased over a year before the Consett robbery. In any event, cross-examination by Mr Fordham at the Adams trial plainly exposed the unsatisfactory nature of Kevin Thompson’s claim to have had a relatively minor connection with the Consett robbery. A number of powerful points were made by the defence which will have suggested to the jury that he was unlikely to have merely been a handler of the proceeds of that robbery and that he may well have been a full, conspiring participant. In summing-up, the judge commented about the purchase of the scanner and observed that this evidence would also have strengthened the prosecution case against Kevin Thompson on the Presto robbery which took place in March 1991. He also referred to it in the context of the Consett robbery which took place in April 1992, as an indication that Kevin Thompson was “deeply implicated in the events preceding and following that robbery”. He went on to say that the jury might think that the evidence concerning the scanner might have warranted Kevin Thompson’s conviction for that robbery in contrast to his case that he had a lesser involvement in that offence.[132]In our view, even if there was an inconsistency in the two sets of evidence given by Thompson, it added very little to the assault upon his credibility in the context of firm and effective defence cross-examination in relation to Kevin Thompson’s claims that he was not guilty of either the Presto robbery or the Consett robbery. Lies that he had told in relation to those matters were exposed and real doubt was cast upon his answers in that respect by counsel. We have come to the conclusion that even if there was an omission to take the point about conflicting evidence, it made no material difference to the conduct of the case or the jury’s view of Kevin Thompson.

Inconsistencies between Thompson and Willumsen

[133]This ground asserts that there were significant differences between Willumsen’s version of events on 19 March 1990 and that of Kevin Thompson. In particular it is submitted that there are differences in the accounts in relation to Kevin Thompson’s use of a Ford Escort on the evening of the murder and also in relation to the description of a shotgun which Willumsen said Kevin Thompson had been in possession of after the killing at the garage where Kevin Thompson worked. Those differences are apparent from the witness statements and criticism is made that the defence did not use those differences to best advantage by cross-examining upon them in a way that would undermine Kevin Thompson’s evidence.[134]Willumsen was not seen by the police until two years after the murder. When he came to court he seems to have been a nervous witness. His witness statement itself suggests that he was frightened. At any event his evidence-in-chief did not go into a great deal of detail, certainly rather less than appeared in his witness statement. He described the appellant coming to the Denton Hotel on the night of 19 March and speaking to Kevin Thompson. His evidence-in-chief also described his (Willumsen’s) visit to the garage where Kevin Thompson worked some three days later. He described the appellant as being there at some point having his car washed but he did not describe in his evidence-in-chief having seen the appellant in the presence of a shotgun during his visit to the garage. A criticism is made that Mr Fordham did not cross-examine Willumsen on the detail of what appeared in his witness statement. However, to do so would have run the risk of introducing evidence in re-examination which was contrary to the interests of the appellant and supportive of the prosecution case. For example, cross-examination to the effect that Willumsen had seen a double-barrel shotgun might have introduced material that Willumsen had seen that gun being handled by the appellant at the garage as Willumsen’s witness statement indicated. Moreover, it may have elicited the fact that the gun which was seen was an old gun which would have provided some support for the expert, Mr Fletcher’s evidence that the gun which killed Royal was a rusty one.[135]On the evidence which was in fact given by Willumsen, there were two main inconsistencies which arose between Willumsen’s evidence and that of Kevin Thompson. Firstly, whether Hands was the second man in the public house (Willumsen gave a description which did not match that of Hands). The second inconsistency was whether Thompson had parked his car in the public house car park or at his mother’s home nearby on the occasion of his visit to the public house. As to the first matter, this was relied upon strongly by Hands and was dealt with fully by the judge in summing-up and may in part explain Hands’ acquittal.[136]As to the second matter, this was not dealt with in the course of the summing-up and appears to us to be a relatively minor detail in the context of the central issue, which was whether or not the appellant met Kevin Thompson in the public house that night. We do not think that counsel can be criticised for not making more of this particular matter, nor do we think that the judge can be criticised for not referring to this relatively minor detail in the course of his summing-up. We think counsel adopted a legitimate strategy in focusing on the fact that at the garage Kevin Thompson was in possession of the gun and thus underlining the defence case which was that the gun belonged to Kevin Thompson rather than the appellant. We think it was also legitimate strategy to touch lightly on the question of the disputed issue of a visit by the appellant to the Denton Hotel by suggesting Willumsen had made a mistake in confusing his visit with some other occasion which had occurred three years previously. The strategy avoided the risk of introducing evidence which could benefit the Crown and supplement the shortcomings of Willumsen’s evidence-in-chief.

Other criticisms

[137]In this catalogue of criticisms we have not mentioned one which features in the appellant’s skeleton argument but not in the Consolidated Notice of Grounds of Appeal. It concerns the evidence about guns. A point about guns is made in the CCRC’s Statement of Reasons, but not put forward as a factor which affects the safety of the conviction. We propose to deal briefly with the criticisms made of the appellant’s trial lawyers on this topic. There are three criticisms.[138]First, counsel for the appellant are criticised for failing to cross-examine witnesses about different descriptions given by them of the sawn-off shotgun seen and admitted to be in the possession of the appellant. Some said that the gun was double-barrelled; others that it was a single-barrelled gun. In our judgment this criticism had no real weight. It is the sort of difference of recollection which is to be expected two years after the event.[139]Secondly, criticism is made of the decision to call the appellant’s father, William Adams, to give evidence about the length of time it would take to break up a shotgun in to small pieces, as described by Kevin Thompson. Mr Owen submits that an expert should have been instructed, as has now been done, to give evidence on this issue.[140]There is a little more substance in this criticism. The appellant’s father had an obvious axe to grind which could well have been thought to have coloured his evidence. In his summing-up the judge was dismissive of his evidence. It would no doubt have been better, if such evidence was to be called, to have instructed an independent expert. But, in our judgment, Kevin Thompson’s evidence on this topic was vague on the length of time it took for the appellant to break up the gun and on how comprehensively this had been accomplished.[141]Thirdly, the legal advisers are criticised for a failure to present to the jury the possibility that Kevin Thompson had access to guns other than the one he claimed the appellant destroyed. It is submitted that greater reference to other guns could have diluted the effect of Briggs’ evidence of the gun he saw in the appellant’s possession before the murder. In this way the use by the prosecution of Briggs’ evidence of the gun he saw as corroboration of Kevin Thompson’s evidence might have been undermined.[142]In our judgment there is nothing in this argument. Briggs’ evidence of the bag in which the appellant kept the sawn-off shotgun in his possession was very similar to Kevin Thompson’s description of the bag which he saw being used by the appellant on the night of the murder. Mr Muller cross-examined Kevin Thompson about his association with guns used in the Presto robbery and the Consett robbery. There is no reason to think that the points made on behalf of the appellant on this topic would have carried any additional weight to such arguments as the appellant’s trial counsel were able to make on this topic.[143]There are other criticisms of the defence lawyers at trial which we do not think it necessary to deal with specifically. Some are devoid of merit. One such is a complaint that the three thieves of the Montego and the alleged handler of it were not called to give evidence in support of the appellant’s case. These witnesses, in our judgment, were for a variety of reasons demonstrably unreliable and there can be no valid criticism of the decision not to call them.[144]Other criticisms have a little more substance such as a complaint that the corroborative witnesses were not asked why they had not come forward when Hepple was charged with murdering Royal. But none in our judgment are of sufficient merit to add any significant weight to the conclusion we have reached on the safety of the conviction which we set out below.

Errors in the summing-up

[145]The CCRC and counsel for the appellant rely on five factual errors made by the judge in the summing-up. The respondent does not dispute the factual accuracy of the matters identified but submits that they are errors of a minor nature and do not give rise to any real possibility that they render the conviction unsafe.[146]We do not think it necessary to go into the detail of these complaints. We accept the submissions made on behalf of the respondent. In our judgment neither individually nor cumulatively are these errors sufficient to render the verdict unsafe.

Conclusions on the failures identified in grounds one, two and three

[147]It follows from what has gone before in this judgment, that we accept criticisms and failures are made out in respect of the Kevin Thompson unused material, the West Road stop and the Coalway Lane getaway. We reject all the other criticisms and alleged failures as having any real substance. We turn to the question of whether these errors are sufficient to render the jury’s verdict unsafe.[148]Mr Nolan submits that the case against the appellant was a strong one. He accepts, but does not concede, that the Court may inevitably find that Kevin Thompson had done a deal with the Durham police over the Consett robbery but he relies on three broad submissions in support of his argument that any failure by trial counsel is not sufficient to undermine the conviction.[149]Firstly, Mr Nolan submits that the trial judge gave the jury a clear and firm warning about the dangers of acting on the evidence of Kevin Thompson. This point was made forcibly by the respondent in the first appeal and was accepted by the Court. The judgment of the Court in the first appeal sets out those passages of Ognall J’s summing-up in which he dealt with the need for corroboration.[150]Secondly, Mr Nolan points to what he describes as the compelling corroborative evidence from witnesses who were friends of the appellant and which supported the evidence of Kevin Thompson.[151]Thirdly, it is submitted that the strategy and tactics which would have been required in order to deploy all the evidence now relied on by the appellant ran a high risk of introducing the appellant’s bad character and also of permitting the prosecution to lead evidence in rebuttal to show Kevin Thompson’s consistency.[152]We accept that there is some force in these submissions. On the other hand, there was no forensic evidence which linked the appellant with the murder. The evidence of the corroborative witnesses did not contain any admission by the appellant that he had killed Royal. Julie Storey’s evidence did not go that far, save inferentially. There is the oddity that Hands, whose case was as near identical to the appellant’s case as makes little difference, was acquitted. The argument that the verdicts are inconsistent was bound to fail given the corroborative evidence available to the prosecution on the case against the appellant. Nevertheless, in our view, the verdicts show that the case against the appellant was by no means overwhelming.[153]Mr Owen submits that no half-way strategy was available to the defence. There should have been a head-on challenge to all the prosecution witnesses. We do not accept this submission. In our judgment the strategy adopted by the appellant’s legal advisers at trial was a reasonable one. It succeeded in defeating the prosecution attempt to put in the appellant’s character. We are also of the opinion that there is no reason to suppose that if the defence had put in the evidence which we have concluded they ought to have done, it would have made it more likely that the prosecution would have been able to put in the appellant’s character or introduce evidence in rebuttal.[154]Against this background we have asked ourselves whether the criticisms and failures which we accept have been made out are sufficient to render the verdict unsafe.[155]None of the evidence which was not deployed on these three topics can be described as fresh evidence. It was all available to the defence before trial. But the failure to use this evidence, in our judgment, demonstrates that, for whatever reason, the legal advisers at trial had failed in those respects in their pre-trial preparations. The reason for this is not hard to see. The principal cause of these failures was, in our view, the late return of their instructions by counsel first instructed. At the date when the briefs were returned much preparatory work remained to be done. Some confirmation for this finding is to be found in a note made by Mr Cosgrove for the conference to be held on 8 April 1993 to which we have referred above (see para 48). We find that not all of the essential preparatory work was carried out. It was this deficiency in pre-trial preparation which caused the failures which we have identified. It would be unfair to blame Mr Fordham and Mr Menary alone for all these failures. We have no doubt that they did their best. We have also no doubt that they believed that everything that ought to have been done had been done. But in our judgment they underestimated the time needed to complete the work.[156]It is difficult to conclude that the criticisms and failures which we have found in respect of any one of the individual topics were on their own sufficient to render the verdict unsafe but we are quite satisfied that taken together, cumulatively they were sufficient to render the verdict unsafe. Each of these topics was important. The relevance of the Kevin Thompson unused material was, as Mr Menary conceded to the CCRC “crucially important”. The West Road stop was a very important part of the prosecution case. It went largely unchallenged by the defence at trial. The ability meaningfully to probe it in the way suggested is in our view significant. Finally, the Coalway lane getaway evidence represented an opportunity further to undermine Kevin Thompson’s evidence of his alleged assistance given to the appellant and Hands in carrying out the murder.[157]We are not to be taken as finding that if there had been no such failures the appellant would inevitably have been acquitted. We are however satisfied for the reasons given that the verdict is unsafe. The appeal will be allowed and the conviction quashed.

The jury point

[158]As we have already concluded that the verdict of the jury is unsafe, it is strictly unnecessary to consider this ground of appeal. But we have heard full argument on it and it may be of wider interest than to those directly concerned with this appeal. Accordingly we propose briefly to set out the procedure which we adopted in dealing with this ground of appeal and our reasons for concluding, as we have, that it does not succeed.[159]Following the trial, it appears that one juror to whom we shall refer as juror 9, made contact with the appellant’s family. She told us that this happened about a month after the trial. In due course, she swore an affidavit prepared in the office of the appellant’s then solicitors setting out some of her concerns about the trial. These solicitors also took two statements from this juror. The history of what happened next up to and including the hearing of the first appeal is fully dealt with in the judgment of the Court dismissing the appeal and needs no repetition by us.[160]In his application to the CCRC the appellant repeated the allegation that one juror had prior knowledge of him which was communicated to the other jurors. The CCRC in its review concluded that the investigation by the Treasury Solicitor before the first appeal was inadequate. It decided to make its own enquiries. It also took the view that following the decision of the House of Lords in R v Mirza; R v Connor & Rollrock [2004] 1 AC 1118 the scope for such an inquiry was wider than hitherto. A questionnaire was prepared by which it was intended fully to address directions given by the Court before the first appeal. The questionnaire stressed that the jury should give no information about things said in the course of the jury deliberations and gave a definition of what was meant by deliberations.[161]Eleven members of the jury were interviewed by the CCRC and their answers recorded. One member of the jury had died since being interviewed by the Treasury Solicitor. Eight jurors gave answers to the questions which raised no issues and confirmed there had been no question of bias. Juror 9, on the other hand, in answer to the question (question 7) “did you at any time become aware that any other jury member may have had personal knowledge of the other three defendants or anyone connected with the case?” said:
“Yes. As soon as we went back to the jury room after being sworn in, before we heard any evidence but the judge had done his opening a lady (elderly) said “Ah yes I know this case, and these lads are guilty…”
At this stage we were just having a conversation in the jury room.”[162]In answer to the further question “did you consider it as individuals or a group?” she said “No. when she first said it I did not take a lot of notice and I don’t think the others did, but as it went on she kept repeating it and we told her “you cannot say these things” it was not until much later and probably after the trial that I thought about it and thought this was wrong I knew it was the wrong attitude to have throughout the trial.”[163]Juror 11 in answer to question 7 said:
“Definitely personal knowledge but that just grew probably from hearing things. They just knew of them. One guy definitely knew of them; it was the drugs side”
[164]The same juror in answer to a question about improper pressure said:
“No. After the trial there were newspaper articles and I remember being swept up in to thinking maybe he wasn’t guilty. This was through other jurors I must have had contact with (name supplied) afterwards she must have contacted me although her husband was a carpet fitter and I may have contacted her because of that”
She added that she had been contacted by a newspaper and in responding to that contact she thought that she was probably being influenced by the other juror.[165]It is common ground that her reference to being contacted by another juror was a reference to juror 9. From further answers about the identity of the “guy” it was possible to identify that person as juror 12. Juror 12 gave answers to the questions which displayed no knowledge of the appellant or his co-defendants.[166]Juror 4, the foreman, in answer to question 7 said:
“I have a feeling that one of the other jurors had said something like “I’ve seen that man (one of the defendants) around town. (Male Juror) none had any more knowledge than that.”
[167]On 6 April 2006 this Court, differently constituted, gave directions in relation to this appeal. In those directions the CCRC was directed to ask further questions of jurors 9, 10, 11 and 12. The parties were directed to agree which of these jurors should be available to give evidence at the hearing of the appeal.[168]On 14 July 2006, following a discussion with counsel, we gave further directions about hearing evidence from jurors. It was apparent at that hearing that the respondent did not accept that juror 9 was credible. We directed that jurors 4, 9, 11 and 12 were to be made available to give evidence unless they were notified that they were not required. The purpose of this direction was to see if the parties could reach an agreed position on the factual basis on which the court should act. No such agreement was reached and arrangements were made for the four jurors to attend.[169]A few days before the hearing of the appeal we were notified that one juror was reluctant to attend. With the assent of both parties witness summonses were issued and all four jurors attended the hearing. We heard evidence from each being careful to hear each separately in the absence of the others. As a result we were able to gain an impression of each of these jurors.[170]Juror 9 confirmed what she had said in answer to the questions put to her by the Treasury Solicitor and the CCRC. She said that over the years her contact with the appellant’s family had become fairly regular and towards the end, before his mother died, they became quite friendly. Of some of the documents which she had signed she said she would dictate them and Mrs Adams would type them. She had also visited the appellant in prison. She said that the person who had made the remarks about knowing the “lads” was an elderly woman and not a man. In answer to the question if she at any time thought to draw the matter to the attention of the court she said:
“No, I just thought it was just like possibly comment, you know how people see things?”
[171]Juror 11 confirmed the answers which she had given to the Treasury Solicitor and to the CCRC. She said that the man who had passed the remark which she set out in her answers to the CCRC questionnaire was a young man probably aged about thirty. She agreed that later she had said that her memory was now very vague about what was said. She remembered giving the answers to the CCRC about an elderly lady making remarks but could not now remember the remarks.[172]Juror 12 said that he remembered things being said after the trial in the public house to which the jury went immediately they left court. He also remembered overhearing a conversation in a public house during the trial. Someone said “I reckon they did it” or something to that effect. He did not know the person who made the remark and he paid no attention to it. He said that mentioned it to no one.[173]Finally juror 4, the foreman, gave evidence. He agreed that he had told the CCRC that he felt one of the jurors had said something to the effect that he had seen one of the male defendants “around town”. It was a male juror and it is agreed this it was a reference to the appellant. He said that he became foreman from about day one of the trial. He said that if he had heard any member of the jury say something that indicated they knew anything about any of the defendants he would have drawn it to the attention of the judge. At one stage when being asked about something a female juror was alleged to have said, he gave the following answer:
“It is on the next document, where a female juror says, “I know these lads and they are guilty” or “I know about this case and these lads are guilty”
Certainly I am not aware of either of those statements having been made. I hope I am not - - during the course of the jury, people make observations, “I think this” and then their views change. That is part of the nature of the process.”[174]Before we state our conclusions in relation to the evidence of the jurors we must add a little about our reasons for adopting the procedure outlined above. In earlier discussions with counsel at a directions hearing, we concluded that we were entitled to hear evidence from jurors. It seemed to us implicit in some of the observations made in the speeches of the members of the House of Lords in Mirza (see Lord Slynn para 54 and 55; Lord Hope para 106 and para 118; Lord Rodger para 162). In this appeal once the Treasury Solicitor and the CCRC had made enquiries of the jurors and there emerged a conflict between the parties as to whether a juror was credible, it seemed to us inevitable that we should hear evidence from the jurors.[175]Mr Owen submitted to us that we were entitled to hear evidence from jurors as fresh evidence pursuant to s.23 of the Criminal Appeal Act 1968. He submitted that the judge, had he been informed of what juror 9 alleged, would have been entitled to question the juror or jurors in order to determine the best course of action. In the same way this court was entitled to receive the evidence and also to compel a juror to attend court to give it. In our judgment, there is force in this argument although the provisions of s.23 do not seem entirely apt to deal with evidence of jurors. However, we note that in R v Box 1964 1QB 430 the Court, presided over by Lord Parker CJ, heard the evidence of the foreman of the jury against whom allegations of bias were made. Lord Parker giving the judgment of the Court said (see p.434):
“So far as the foreman himself is concerned, an application was made to call him, and while there is no concluded decision in the reports as to the principle to be applied in regard to such a case, it is to be observed that at the end of his judgment in Rex v. Syme Bankes J. said : “It may be unwise to make such a statement, but unless he says that whatever the evidence may be he is determined to come to a certain result, it cannot be a ground for interfering with the conviction.”
It is to be observed that Bankes J. was not stating that as a principle but as the high water mark of the evidence which would be necessary before the court could possibly interfere with the conviction in any case. Accordingly, without ruling on the matter, this court decided to hear the evidence of the foreman de bene esse.”[176]In our judgment, in this appeal, hearing evidence from these jurors was the only way to resolve the issue of bias.[177]Mr Owen submits that the evidence of juror 11 alone is sufficient to show that the verdict was tainted by bias. We do not agree. We bear in mind, as was made clear in Mirza, that there is a strong presumption against bias. We have no hesitation in concluding that juror 9 has been unwittingly influenced by her association with the Adams family. She made no objection to the foreman or judge to any of the remarks she alleged were made during the course of the trial. Apart from juror 11’s vague recollection of a remark made by an elderly lady, no other member of the jury remembered remarks, of the sort about which juror 9 complained, being made by an elderly woman. Juror 9 clearly assented to the guilty verdict. We unhesitatingly reject the allegations of bias based on her evidence.[178]As to juror 11 we have no doubt she was doing her best to recollect accurately and truthfully what she heard. However, her recollection is not supported by juror 12 whom we found an impressive witness. It is also clear that at some stage she was contacted by juror 9. In addition we were very impressed by juror 4, the foreman. Mr Owen accepted he was a mature, balanced and impressive witness. In our judgment, the clue to what juror 11 said is to be found in juror 4’s answer to which we have referred. As is no doubt inevitable in any trial, jurors will from time to time make offhand remarks. In this case Mr Nolan points out that some evidence concerning drugs did creep in. In our view the sort of remarks to which juror 11 referred, if they were made, about which we have considerable reservations, were no more than casual observations which any juror might make in response to such evidence. None of the jurors thought any remark made was sufficient to make it necessary to draw it to the attention of the judge.[179]Before the jury was sworn the judge said that any juror with prior knowledge of any defendant should declare it before being sworn. None did. No irregularity was drawn to the attention of the judge by any juror during the course of the trial. The verdict was unanimous. In the circumstances we are quite satisfied that no evidence of bias has been shown, so as to render the verdict unsafe.[180]We add the following final remarks. Our experience of hearing evidence from these jurors has shown us how difficult it is to draw the line between what are deliberations of the jury and what is evidence of extrinsic matters. For this reason we are of the opinion that it is highly undesirable for any person to seek to interview a juror without first obtaining the leave of this Court. There is a high risk that any such inquiry will cross the threshold into the forbidden territory of the jury’s deliberations. Next, we regard circumstances in which this Court will need to hear evidence from a juror or jurors as likely to be rare and exceptional. Since Practice Direction (Crown Court: Guidance To Jurors) 2004 1 WLR 605 was issued, which advised judges to tell jurors that they should report any irregularities occurring during the course of the trial to the Court, silence as to any such irregularity will in our opinion almost certainly mean that this Court will assume that none occurred.

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