Billingham, R. v [2009] EWCA Crim 19

[2009] EWCA Crim 19Case Nos: 200701486 B4 AND 200702181 B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM BIRMINGHAM CROWN COURT
H.H.JUDGE DAVID MATTHEWS
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/01/2009
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE BENNETTHIS HONOUR JUDGE STEPHENS QC(sitting as a Judge in the Court of Appeal Criminal Division)
Between
THE QUEENRespondentJUSTIN BILLINGHAMAppellants
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Rex Tedd QC for Mark Phillip BillinghamJ W Evans for Justin BillinghamStephen Linehan QC for RespondentHearing Hearing date : 4 December 2008
Judgment
[1]Mark and Justin Billingham appeal with leave of the full Court from their convictions in the Crown Court at Birmingham before His Honour Judge Matthews and a jury of the murder of Michael Cutler. This was a retrial after the first jury had failed to agree. The Appellants were both sentenced to life imprisonment with a minimum term of 17 years less time spent on remand.[2]The evidence against the Appellants consisted mainly of the testimony of Iain Walden, who had pleaded guilty earlier to the murder of Cutler, and Theresa Blanchard. Both Walden and Blanchard had previously made inconsistent statements that were, in the case of Walden, exculpatory of both of the Appellants (or at least not incriminatory of them), and in the case of Blanchard exculpatory of Mark Billingham and which did not unambiguously incriminate Justin. It is the manner in which those inconsistent statements were dealt with in the judge’s summing up to the jury that forms the basis of these appeals. In large part, the appeals concern the effect of section 119 of the Criminal Justice Act 2003 on previous inconsistent statements of prosecution witnesses.

The facts leading to the trial

[3]The deceased, Michael Cutler, was the boyfriend of Walden’s mother. On the night of Thursday 7 to Friday 8 October 2004 he left The Gate public house with Walden and was driven by car, in which Justin Billingham was also present, to Warrens Hall Park where he was killed by being struck several times with a hammer. Following the killing Walden and Justin returned to Justin’s home address where his neighbour, Theresa Blanchard, was present.[4]A microscopic speck of the deceased’s blood was recovered from his Rockport boots seized from Mark Billingham’s new home address in Daventry.[5]Walden was arrested on 8 October 2004 and from that date onwards gave a series of differing accounts as to what had taken place. In police interview on 8 to 10 October Walden denied killing the deceased and stated that he had left him at the entrance to the park. On 11 October he admitted killing the deceased but claimed that he had merely retaliated, having been attacked by the deceased. He said that he had happened to find the hammer in the park during the attack. He made no mention of the Appellants being involved.[6]Between 20 October 2004 and 9 March 2005 Walden prepared a series of six proofs of evidence with his solicitor. In none of them did he mention that the Appellants had played any role in the attack. During October and December 2004 he gave accounts, which were covertly recorded, to various prison visitors in which he either failed to mention the Appellants at all, or expressly stated that Justin Billingham had no role in the attack, or said that Justin’s role was limited to hitting the deceased just the once. On 17 December 2004 Walden was seen by a psychiatrist and gave an account of the incident in which he did not mention the Appellants.[7]In February 2005 Walden lodged a Defence Statement in which stated he that Justin had been with him in the car but had played no role in the attack upon the deceased.[8]Between 14 and 19 July 2006 Walden prepared a written “series of events” followed by a witness statement in which for the first time he implicated the Appellants as playing a joint role with him in the attack upon the deceased. There were some inconsistencies between the ‘Series of Events’ and the witness statement.[9]Theresa Blanchard provided four witness statements to the police dated 14, 15, 16 October and 13 December 2004. In none of those statements did she mention the involvement of Mark Billingham on the night of the killing. On 27 December she contacted police and subsequently between 29 and 31 December 2004 she provided a further witness statement to police in which for the first time she implicated Mark Billingham in the events of 7October.[10]In interview Mark Billingham gave an account largely consistent with that given at trial. He did, however, tell the police that he had only owned one pair of Rockport boots.[11]In a volunteered statement dated 10 October 2004 Justin Billingham stated that he saw Walden on the afternoon of 7 October but that Walden had driven off alone at about 17:20. Justin said he did not see him again that evening which he had spent in the company of Blanchard. In interview on 15 October he made no comment. In a pre-prepared statement under caution he gave an account which was largely consistent, although differing in some of the detail, with that he gave at trial.[12]The prosecution casewas that both Appellants accompanied Walden on the night of the murder and took part in the fatal attack upon the deceased, knowing that a hammer was used.[13]The defence case for Mark Billingham was that he was elsewhere at the time of the murder and took no part whatsoever in the killing (9F; 13A).[14]The case for Justin Billingham was that whilst he accompanied Walden and the deceased on the night of the murder, he was unaware that Walden intended violence towards the deceased. When violence broke out he took no part in it and instead returned to the car. He was unaware of the presence of a hammer.[15]The case for both Appellants was that Walden had invented much of his account with the probable motive of obtaining credit for giving evidence for the prosecution and playing down his own role in the killing thereby hoping to receive a reduction in his minimum term when sentenced.[16]Thus the issues for the jury were whether Mark Billingham went in the car to the park; whether either of the Appellants went into the park; whether either of the Appellants took part in the attack upon the deceased and, if so, what they knew about the use of the hammer in the attack.

The evidence at the trial

[17]Walden said that on 7 October 2004 he had been at Justin’s house at 19 Bridge Field Walk from midday, drinking with Justin. When they ran low on drink Walden left the address to look for the deceased to borrow money from him. He eventually located him and borrowed £10 with which he bought more alcohol before returning to Justin’s house. When he got back, Blanchard was also there with her children and they were then joined by Mark. All of the adults were drinking.[18]Discussion then turned to Michael Cutler. One of the Appellants got him worked up by questioning how he could put up with his parents being separated and his mother having a relationship with him. It was said that Cutler needed to be “taught a lesson”. Both Appellants and Walden were involved in the discussion. They formed a plan to lure the deceased from the pub, where they knew he was going to be, by Walden stating that he had money in the car to repay him for the earlier loan. He said that it was Mark who took a hammer from the back garden and placed it in the car. They all knew the hammer was present. All three men drove off together in the car with Walden driving.[19]They located the deceased, who was with Walden’s mother, in the second pub they looked in. Walden went into the pub and told the deceased that he had money in the car for him. The deceased left the pub with Walden and when he was outside both Appellants got out of the car and Walden forced the deceased into the back of the vehicle. The deceased asked what was going on and made some effort to resist. Walden punched him in the face. Mark got into the rear of the car with the deceased. Justin said he knew a quiet spot and Walden drove off with Justin navigating. The deceased and Mark were arguing in the back of the car and Mark hit him once or twice with the hammer.[20]Justin directed Walden to Warrens Hall Park, Walden stopped the car in a nearby road and they all got out of the car with the deceased shouting out to try and attract attention. They took him into the field where the deceased offered Walden £10,000 if his life could be spared. Walden and both Appellants then started hitting him using the hammer, their fists and feet. Mark had the hammer initially and then Walden himself used it. The deceased soon fell to the floor and, realising that he was dead, they threw some brambles over him.[21]On the way home Justin threw the hammer from the car into a lake. They had to walk part of the way back to Justin’s house as the car ran out of petrol. Walden was covered in blood and Mark had some blood on him. At Justin’s house Mark changed into some fresh clothes that he had there, before leaving the house.[22]The following day Walden and Justin left the house to get petrol in Blanchard’s car. Walden said that he would take responsibility for what happened if the police got involved as it was a family matter.[23]Walden said that he had lied to the police and his solicitors in previous accounts he had given regarding the incident. He accepted that he had given various previous accounts to police, solicitors, prison visitors and a psychiatrist in which he had failed to mention the involvement of the Appellants. He said that he had lied in his earlier accounts so as to cover-up for the Appellants.[24]In cross-examination Walden said that he had decided to cease to cover-up for the Appellants after prison officers had spoken to him and persuaded him to tell the truth and not to take the rap all himself.[25]Theresa Blanchard, Justin’s neighbour with whom he was having an affair, said that she had returned to Bridge Field Walk at about 19:00 on 7 October. Both Walden and Justin were present in the living room of Justin’s house and were drinking. She thought that Walden had had quite a lot to drink. Mark was also present at the house and he too was drinking. At some point Walden said something about going to pay money to the deceased. At about 22:10 Walden and the Appellants left the house. Walden was agitated when he left. Mark was wearing a pair of boots.[26]At about 00:15 all three men returned. Walden was covered in blood. She asked them what had happened and Justin said, “I can’t believe I’ve (or possibly “we’ve”) killed the fucker. What’s it like sitting next to a murderer?” She was shocked.[27]After about 15 to 20 minutes Walden went upstairs and then came down again having changed into fresh clothes, with his blood stained clothes in a holdall. Blanchard did not say in evidence whether Mark said anything at all at the house; he left after about 15 minutes to go to his brother’s house. She and Justin went to bed. Walden slept at the house.[28]The following morning Justin and Walden left the house together at about 07:30 and returned an hour and a half later. Later in the afternoon she saw Mark at the house and he was singing, “If I had a hammer, I’d hammer in the morning.” There was no further discussion on the following two days as to what had happened on 7 October.[29]In cross-examination Blanchard said that Mark had been sitting on a deck chair in the room after they returned. She accepted that the first time she had ever mentioned this was in cross-examination at the earlier trial, it having been suggested that there was no chair available for Mark to sit on. She said that there was no blood on Mark’s clothes and he did not appear to be injured. He did not change his clothes. She admitted that she had slept with Justin on the night of the incident after he returned with Walden.[30]She accepted that she had not made reference to Mark singing, “If I had a hammer” in her statement to police on 29 December. She had originally made no mention of Mark in her statements to police as she had been frightened of repercussions if she had implicated him.[31]David Walden (whose evidence was read), the father of Iain Walden, stated that his son was a “Walter Mitty” type character who told a lot of lies. He was a heavy drinker and when in drink one never knew whether he was telling the truth or telling lies. Jonathan Walden (whose evidence was also read), the younger brother of Iain Walden, stated that Iain had a tendency to be ‘two-faced’ and a liar. Robin Walden (whose evidence was read), the older brother of Iain Walden, stated that Iain was very aggressive when he drunk and had punched his father two or three times in the face at the time of his parents separating.[32]K Carter, a forensic scientist, said that the bloodstain found on Mark’s boot was not a weak or diluted stain and if it had been transferred onto the boot after the deceased had been killed then it would have had to have been transferred at a time when the blood was still wet.[33]Prof. Helen Whitwell, a pathologist, stated that in her opinion the deceased died as a result of blows struck with a hammer rather then the injuries resulting from kicks or punches.[34]Justin Billinghamsaid that he saw Walden on 7 October. Walden had agreed to buy his Ford Escort car from him. The pair spent the afternoon drinking together at Justin’s house until Walden left at about 16:00. At about 19:00 Blanchard came round to Justin’s house. Walden returned to the house sometime after 19:28 and the three of them drank alcohol and talked. There had been talk about the relationship between Walden’s mother and the deceased and it was clear that Walden was not happy about the relationship. Eventually the drink ran out and Walden returned home. Later that evening Justin drove with Walden in the Ford Escort to look for Walden’s mother and the deceased. Justin understood that the purpose of the expedition was so that Walden could see his mother and get some cigarettes and also to sort out money matters with his mother and the deceased. Walden was agitated and not in a good mood.[35]Having failed to find them at the first venue they went to The Gate public house. Justin stayed in the car whilst Walden went into the pub. Walden returned from the pub with the deceased who got into the rear of the car. Walden and the deceased were bickering about money and about Walden’s attitude towards his mother. The deceased did not complain about being driven off in the car. Justin did not know where they were driving to (he had forgotten that he said at the first trial that they had been driving to a cash point so that the deceased could get some money).[36]Walden drove to a road near Warrens Hall Park. Justin had not chosen the route or suggested going to the park. When they parked up there was a heated conversation. They all got out of the car and Walden walked off ahead saying that if the deceased “wanted to make something of it” then they would “sort it out”. Justin walked to the entrance of the park with them. Walden and the deceased continued arguing. There was some pushing and shoving and Walden punched the deceased. Justin told Walden to stop it and returned to the car by himself, thinking that the argument would calm down. The argument had nothing to do with him and he was not involved physically. He waited in the car for 5 to 10 minutes before Walden returned. He did not notice that Walden’s clothes were covered in blood. He asked what had happened to the deceased and Walden said that he had given him a good hiding and left him to catch the bus home.[37]They then returned to the house. It was only back at the house that Justin saw the blood on Walden. He again asked him what he had done and Walden said that he had “battered” the deceased. Justin changed out of his own clothes, which he subsequently disposed of, as he had panicked.[38]The following day he and Walden went out to get petrol for the Escort and then Walden drove away. Justin saw Mark that day but did not mention anything about the incident.[39]Justin had lied in his first statement to police on 10 October to protect himself as he was nervous and scared after seeing Walden on 7 October. The reference in that statement to Mark staying at their brother, Simon’s, house, as opposed to Jason’s house, was merely a mistake and not a deliberate lie. He played no part in the attack upon the deceased. He knew nothing at all of the presence or use of a hammer either in the car or at the scene of the murder. Mark was not with him and Walden that evening. He did not make the remarks back at the house attributed to him by Blanchard. He did not have a discussion with Walden on 8 October whereby Walden agreed to take the blame for the incident.[40]Mark Billingham said that he had nothing to do with the killing and he was not with Justin on the night of 7 October. At the time of the incident he was house-sitting for another brother, Jason, at 38 Bramble Close and looking after his dog. He was working at the time and usually worked between the hours of 08:00 and 16:00 and always worked a full day on a Thursday. After finishing work he would return to Bramble Close. On 7 October he returned to Bramble Close as usual and stayed there overnight and went to work the following day.[41]He saw Justin on the 8 October and they went for a drink in the afternoon. They then went back to Justin’s flat where Blanchard was present but in bed. He did not make any reference to a hammer whilst at the house or sing, “If I had a Hammer”. Nobody said anything to him on 8 October about the incident and the first he knew of it was two days later when Justin gave a statement to the police.[42]He said that he had three pairs of Rockport Boots. The pair on which the blood was found he had left at the Bridge Field Walk address and had not worn them since moving to the Bramble Close address as they were getting worn out and he did not wish to carry them there. He had not been wearing them on 7 or 8 October. He subsequently took them with him to Daventry to get them out of his mother’s way. He said that he should have told the police in interview that he had three pairs of boots and not just one.[43]Whilst he did not think that Blanchard held any serious grudge against him she was unhappy with him because he had not reciprocated the romantic interest that her daughter had shown in him after they had slept together. He thought it more likely that Blanchard was simply mistaken about the events of 7 October.[44]David Chater, who lived near Warrens Hall Park, said that between 23:30 and midnight on 7 October he heard a car pull up. He heard shouting and looked out of the window. He saw the driver get out followed by two other men who all walked towards the park with raised voices. He heard three car doors slam in total. About half an hour later he heard he heard the car doors slam again, on this occasion he thought they slammed twice.[45]Iain Heaford, who also lived near Warrens Hall Park, said that between 23:05 and 23:35 he looked out of his window and saw a number of men, he thought three, by the park entrance. There was some general shouting and then following a loud shout he could see two men by the entrance shouting at each other. One man pushed the other through the park entrance.

The relevant parts of the summing up

[46]Referring to Walden’s evidence,

the judge said:

“Mr Walden has admitted that he told a lie after lie after lie to the police, to his mother, to those who visited him in prison, and to the psychiatrist instructed by the defence who went to see him. The prosecution have invited you to say that in spite of that, do you, now, belatedly, he has told the truth.”
[47]The judge then set out at length the evidence given by Walden, and summarised all of the previous inconsistent statements he had made, to which he referred in the above passage, and the statements he had made to his own solicitors, as well as the explanations put forward by Walden for the inconsistencies and changes in his account of the murder. The judge also reminded the jury of the evidence of Walden’s father and his younger brother Jonathan. He told the jury of the possibility that Walden had implicated the Appellants so as to influence his sentence. He continued:
“It has become clear after his four days in the witness box that he lied repeatedly to the police, his mother, the psychiatrist, the people who came to see him in prison. I have reminded you of evidence which plainly shows that he can be aggressive and violent, and his own mother described him as volatile. On his own admission he murdered Mr Michael Cutler upon whom terrible injuries were inflicted with a hammer, and you know that his own family regard him as a liar. Those are matters that you have to take into account when you consider whether he has told you the truth about what happened on the night of the murder. Plainly, you have to approach the evidence of a man against whom so many criticisms are made with care and with caution. Badly, however, those lies and is violence reflect upon him they do not by themselves mean either that he cannot at this late stage have told you the real truth about the events of October 7 of October 8, nor do they mean that he has not done so. He has given an explanation of the series of lies that he told after he was charged with the murder of Michael Cutler, and how those lies were tailored to fit what he believed the police came to know as their enquiries progressed. He has told you why he lied and about what he says was an agreement reached between him and Justin Billingham, and he has given an explanation, which I've told you about, as to why he said he decided to tell the truth in July of 2006 and not to continue to take the rap for others. His proven history of dishonesty and some violence is evidence that you must, of course, consider carefully when you are assessing his evidence. But, ultimately, it is for you to determine whether his account due last week, and in the previous week, is in fact the true account of what happened on October 7. You will also have to consider whether in some material respects his evidence is supported by the evidence of Theresa Blanchard and whether her evidence is reliable truthful evidence that you accept.”
[48]The judge then summarised the evidence of Theresa Blanchard, and moved on to deal with the criticisms made of her evidence by the defence. He reminded the jury that she had made witness statements on 14, 15 and 16 October 2004, in none of which had she made any mention of Mark Billingham; she did not do so in a further with the statements made on 13 December 2004, and it was only after she was seen by the police on 29 December that she implicated him in the events of the night of 7 October. The judge said:
“What approach do you take where you come to the conclusion that a witness has said something to you that differs from an account that the witness has given on an earlier occasion and you will recall, I am sure, that there had been a number of occasions in this case when Theresa Blanchard, Iain Walden, Justin Billingham and Mark Billingham have each had it suggested to him or her that on some previous occasion, he or she has said something which differed from the evidence to you. Do you remember that happening from time to time during the case? It may have been the earlier trial, it may have been in a statement to the police and I think on almost every occasion that that's happened, the witness has accepted, after being reminded about it, that he or she had previously said something different. Where that happens you can, of course, take into account any inconsistency between the two accounts and what the witness says about the reason for it. It is for you to judge the importance of any inconsistency between a witness's evidence to you and what that a witness has said on an earlier occasion and it is for you to decide to what extent if at all it affects your judgment of the witness's evidence, but if having looked at the witness's evidence you are sure that one of the two accounts is true, then that's evidence that you can take into account when considering your verdict in the case.”

The judge then summarised Theresa Blanchard's cross-examination, and continued:

“Why, she was asked, hadn't she told the police about Mark Billingham on the 14th, 15th or 16th of October and why had she simply only referred to two men? And her explanation for that was that she'd been frightened to implicate Mark. She said he was the baby of the family and she was frightened of repercussions. She accepted that in her statement on 14 October to the police she said that she had overheard Iain Walden, when speaking to his father I think, make reference to ‘a friend’ and she had taken that refer to Justin Billingham. ... You will have to assess Theresa Blanchard's evidence with care. The defendants maintain that she has lied to you about Mark Billingham being there at all and that she has either lied or certainly been mistaken in what Justin Billingham had to say when he came back to Bridgefield Walk after the murder. On any view, I suspect that you're unlikely to think that Mrs Blanchard behaved either responsibly or creditably. She took no steps to contact the police about what she had seen and heard and she remained with and appears to supported Justin Billingham at least until the following Monday. If her evidence to you from the witness box is true, then she concealed from the police that Mark Billingham had also been present on the night of the murder until almost 3 months later and you will have to ask themselves why she did that, but at the same time consider the explanation that she has given you. Take into account, in assessing her evidence, what you know about her circumstances, her marriage and her position at that time of being Justin Billingham's girlfriend and decide what extent, if at all, you come to the conclusion that that may have influenced the way in which she behaved and the way in which she conducted herself. Mark Billingham himself said that he didn't think that Theresa Blanchard had any serious grudge against him, although he did go on to suggest three reasons why she might bear a grudge, which you will have to consider and examine. I think that the three reasons he gave were that there had been some damage done to their father's car. One of their daughters was wanting to move out but because she said she was scared and it was suggested by Mark Billingham that she was annoyed because of his refusal to share any interest in her daughter Kelly. Mrs Blanchard denied that she was even aware of any relationship between Mark Billingham and Kelly. Consider whether any or all of the possible reasons why she might have a grudge against Mark Billingham may have prompted her to make up an account of his presence on that night and thus put Mark Billingham at risk of conviction for murder, or whether that is a suggestion that you dismiss. If you are left unsure that Mrs Blanchard is a truthful and reliable witness, then you must reject her evidence and not rely upon it, but if you are sure that she's told you the truth about who was at 19 Bridgefield Walk on October 7, then it must follow, must it not, that Justin Billingham and Mark Billingham have not themselves been truthful about who was there and you will have to ask yourselves, in those circumstances, why that was. Her evidence is a matter of your careful consideration and assessment, bearing in mind all the points that have been made during the course of cross-examination.”
[50]The judge then summarised the evidence of Mr Chayter and Mr Hayford, and the evidence about Mark Billingham's Rockport boots and what he had said about them. As to the latter, he said:
“ If you are left unsure as to whether the blood came to be on the boot as a result of some accidental contact with wet blood whilst the boot was still at 19 Bridgefield Walk, in other words if you consider that to have been a possibility, then the evidence is of no significance and not evidence against Mark Billingham, but if you rejected Mark Billingham's account that he had left the work boots there and had not taken them with him to Bramble Close and you are sure that he took the boot with him to Bramble Close and sure that he was wearing them on Thursday, October 8, then in those circumstances, the small area of blood is capable of being evidence in the case against him because, of course, it's his case that he didn't go to 19 Bridgefield Walk on the Thursday evening and, in fact, was next to their only after you finish work on the ensuing Friday.”
[51]Having referred to the other forensic evidence adduced by the prosecution, the judge gave the jury a break. In their absence, Mr Parker QC, who represented Justin Billingham in the trial, but by reason of Mr Tedd QC’s absence was also representing the interests of Mark Billingham, raised the question of section 119, and reminded the judge that previous statements made by, for example, Iain Walden, were also evidence on which the Defendants relied insofar as they were exculpatory of them. Mr Linehan, for the prosecution, submitted that section 119 had no application, and that, effectively, the previous inconsistent statements of the prosecution witnesses should be dealt with as they were before section 119 came into force. He submitted that it was unnecessary for the judge to say anything further. The judge said that he would return to the topic in his concluding remarks.[52]The judge gave the jury another short break just over an hour later. In their absence, he asked counsel whether there were any matters that they wished to raise. Mr Parker raised none.[53]Having concluded his summary of the evidence for the defendants,

the judge said:

“Fundamentally, in this case you have to make a judgement about the truthfulness and reliability of the evidence of the two witnesses upon whom the prosecution principally rely, Iain Walden and Theresa Blanchard. The defence contended that the evidence of each is not true. Furthermore, the defence suggested that the accounts which Iain Walden was giving to his solicitors in 2004 and February 2005 were much closer to the real truth than the account that is given to you in the witness box. You have to consider that suggestion. It is for you to decide in each case whether the accounts that Iain Walden has given, and the accounts that Theresa Blanchard has given, in the witness box is true and you act upon it only if after considering the whole of the evidence in the case you are sure in each case that it is true.”
[54]At this point, the judge again asked counsel if there was any think they wished to raise in the absence of the jury. Mr Parker said that he did wish to do so, and the jury left the court. In their absence, he again raised the question of section 119. He said:
“In my submission, Your Honour should tell the jury that what, for example, Iain Walden has said before is just as much evidence of the truth of its contents as what he says in the witness box and that it is for them to decide, to weigh up what he said before and what he says now to decide which pieces of evidence they rely upon. I am just concerned that otherwise the evidential status of what has been said before is watered down, and that perhaps particularly in the light of Your Honour's remark a moment ago, that the evidence is primarily what they have said in the witness box. In my submission it is, in colloquial terms, up from grabs as to whether it is what he said in the witness box or what he said before. That is my only comment.”
[55]After discussion between the judge and counsel, the jury returned. The judge said to them:
“In case clarification be needed, the defence have drawn your attention during the course of the case to a number of earlier statements made by Iain Walden, either oral or written, to the police, to his solicitors, and to those who came to visit him whilst he was in prison and his conversations were recorded. The defence say that they are inconsistent with the evidence that he has given to you from the witness box. As I hoped I had already made clear, you're entitled to consider all those earlier statements and decide for yourselves whether they are or may be true or whether you are now sure that it is his evidence from the witness box that is the truth. I hope that is clear.”
After further for present purposes immaterial directions the jury retired. In due course they arrived at unanimous verdicts convicting both of the Appellants of murder.

The grounds of appeal

[56]The grounds of appeal of Mark Billingham are as follows:(i) The Judge failed to give an adequate direction to the jury as to the effect and application of section 119 of the Criminal Justice Act 2003 to the previous inconsistent statements of Iain Walden and Theresa Blanchard.(ii) The Judge failed to remind the jury of those parts of the previous statements which the appellant had identified as being admissible evidence of the matters stated therein.(iii) No section 119 direction was given by the judge during his summary of the evidence of Iain Walden.(iv) The Judge failed to remind the jury that it was the appellant's case that the previous accounts given by Waldon represented the truth of what had occurred.[57]The grounds of appeal of Justin Billingham are:(i) In his directions to the jury, the Judge erred in failing to make any reference to the general effect of section 119 until well after he had, selectively, reviewed the evidence of Walden and Blanchard and he failed to make any specific reference to the section until prompted to do so by counsel.(ii) The judge failed to direct the jury adequately or at all as to the effect of section 119 and/or the following matters: (a) The previous inconsistent statement was just as much evidence as was the testimony from the witness box. (b) Careful consideration was needed as to whether reliance could be placed upon what was said in the witness box or in the inconsistent statement. (c) Whether the conflict between the oral testimony and the previous statement was so great that the evidence of the witness could not be relied upon at all. (d) The reasons why the jury were being given some, but not all, of the previous statements, and the importance of not attaching disproportionate weight to the statements they had been given. (e) That they should also rely upon the recollection of the oral evidence and the Judge’s summing-up thereof.(iii) The Judge failed to place any direction as to the effect of section 119 into the context of the evidence to which it related.(iv) The Judge failed to remind the jury of all of the relevant parts of inconsistent statements which the Appellant relied upon.(v) The Judge failed to remind the jury of a critical part of the evidence of Walden (later retracted in evidence) in which he admitted to arguing with the deceased on the way to the car about his own behaviour towards his own mother.

Discussion

[58]Section 119 of the 2003 Act is so far as material as follows: “Inconsistent statements 119(1) If in criminal proceedings a person gives oral evidence and— (a) he admits making a previous inconsistent statement, or (b) a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865 (c. 18), the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.(2) …” (a) he admits making a previous inconsistent statement, or (b) a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865 (c. 18),[59]Section 119 reversed the previous rule that a previous statement made by a witness out of court was evidence only if the witness adopted it, i.e. accepted that it was true, when he gave evidence. A typical example was a hostile witness who in cross-examination accepted that his earlier witness statement was true. But if the witness did not accept that his previous statement was true, it was not evidence, and was relevant only to the credibility of his account in the witness box. Even though his previous witness statement was not evidence, the fact that he had made an earlier inconsistent statement might deprive his testimony of credibility. The law can be seen from the standard Judicial Studies Board direction, which was as follows:
“[X has admitted that he] [You may be satisfied that X] had previously made a statement which conflicted with his evidence. You may take into account the fact that he made such a statement when you consider whether he is believable as a witness. However, the statement itself is not evidence of the truth of its contents, except for those parts of it which he has told you are true.”
[60]The effect of section 119(1) is clear: it renders previous inconsistent statements made by a witness evidence. The current JSB direction, based on section 119, is as follows: “[X has admitted that he] [You may be satisfied that X] made a previous statement which was inconsistent with the evidence he gave in court. [Identify the inconsistency.] You may take into account any inconsistency [and X’s explanation for it] when considering X’s reliability as a witness. It is for you to judge the extent and importance of any inconsistency. (If appropriate:) If you conclude that he has been inconsistent on an important matter, you should treat both his accounts with considerable care. If, however, you are sure that one of X’s accounts is true [in whole or in part], then it is evidence you may consider when deciding upon your verdict[s].[61]The similarity between the standard direction (and in particular the last sentence) and the Judge’s direction to the jury in this case cited at paragraph 48 above is sufficiently close for us to believe that he based that part of his summing-up on it.[62]It is true that the judge did not clearly direct the jury that all of the previous statements of Walden and Blanchard were evidence. However, it is by no means easy to direct a jury on the effect of section 119 without causing confusion. A jury is entitled to reject a statement in evidence, and to accord it no weight at all, because they do not consider it to be true. That may be because of its inconsistency with previous statements or because of inconsistency with other evidence or simply its improbability or the manner in which it has been given. For a jury to be directed, as Mr Parker suggested to the Judge, and is suggested by Justin Billingham’s grounds of appeal, that a previous statement is just as much evidence as the witness’s testimony in court is liable to confuse them: the jury may take the direction to mean that they are obliged to give the previous statement the same evidential weight as the testimony (and vice versa).[63]In order to convict the Appellants, the jury had to be sure that the testimony of Walden and Blanchard was true. If they were, it followed that they rejected the truth of their previous inconsistent statements. The fact that, as a matter of the law of evidence, those previous statements were evidence became immaterial at that point. Hence the Judge’s direction modelled, as we think, on the standard JSB direction, “if having looked at the witness's evidence you are sure that one of the two accounts is true, then that's evidence that you can take into account when considering your verdict in the case” was to that extent appropriate. The judge’s final direction, set out above under paragraph 55 above, dealt adequately with the consequences of section 119 in relation to the evidence of Walden. It was unfortunate that he did not extend it to Mrs Blanchard’s evidence, a consequence, probably, of the fact that Mr Parker referred only to Walden by name in the submission that led to that direction being given. However, the Judge had already given an adequate direction to the jury on the evidence of Mrs Blanchard, in the passage cited above under paragraph 49 above, which was additional to that given in the passage at paragraph 48.[64]It is for these reasons that we consider that the omission of a direction as to the effect of section 119 was inconsequential. In fact, the judge dealt at some length with the fact that Walden and Blanchard had made inconsistent statements which were not incriminatory of the Appellants, as the above passages demonstrate.[65]The remainder of the grounds of appeal contend that there were material omissions from the summing up, and, in the case of Justin, that the Judge should have directed the jury to consider whether the conflict between the oral testimony and the previous statement was so great that the evidence of the witness could not be relied upon at all. We do not think that the judge could be faulted in the latter respect. There had not been a submission of no case to answer at the close of the prosecution case; it is not now submitted that the evidence before the jury was such that the convictions were perverse; and it follows that the judge would have been entitled to reject such a submission.[66]What is more significant is the submission on behalf of the Appellants that the Judge failed to draw the strings of their case together: to remind the jury not simply that the earlier accounts of Walden and Theresa Blanchard were consistent with and supported the Appellants’ case at trial, but also to remind them of the content of the earlier statements and in what respects they were supportive of their case. Similarly, the judge reminded the jury of the evidence of Messrs Heaford and Chater, but did not say in terms that their evidence was supportive of Mark’s case that he had never been in the car with Justin and Walden when Cutler was taken to the park.[67]We would agree that the summing-up would have been improved if the judge had drawn together the threads of the defence case as has been suggested on their behalf. However, the jury knew that Walden’s and Blanchard’s previous inconsistent statements were exculpatory of the Appellants, and it was obvious that the evidence of Messrs Heaford and Chater was supportive of Mark’s case. The jury were clearly warned of the need for caution when considering the testimony of Walden and Blanchard, and the need to consider those inconsistent statements. The fact that Walden and Blanchard had changed their accounts was emphasised more than once. In our judgment, the summing-up was adequate. We do not consider that the jury were under any misapprehension as to those matters. We do not find it surprising that the jury were able to reach a verdict on Justin Billingham before reaching their verdict on Mark. Justin’s case, that he had accompanied Walden with Cutler, not knowing where they were going, had played no part in the violence, and had not noticed the blood on Walden until they returned home, and that he disposed of his own clothes out of panic, was not an easy one. Mark had the difficulty of the evidence of Cutler’s blood on his boot and of the inconsistency between what he had told the police in interview as to how many boots he owned and his evidence at trial: an inconsistency that it was difficult to explain away. Having considered the grounds of appeal with the care which they deserve, our conclusion is that both convictions are safe.[68]We nonetheless consider that the present JSB direction should be reconsidered. Where the previous statement is exculpatory of the defendant, it is sufficient for the jury to conclude that it may be true: the present direction requires the jury to be sure that even an exculpatory statement is true. It would be preferable for the direction to make this distinction. However, we consider that this had no effect on the adequacy of the summing up or the safety of the convictions, since it is clear that the jury concluded that they were sure that the incriminating testimony of Walden and Blanchard was true.[69]For the reasons given above, these appeals will be dismissed.

Cited in 1 later judgment