Marsh, R v [2009] EWCA Crim 2696

[2009] EWCA Crim 2696Case No 200702306C5IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SWANSEA
MR JUSTICE RODERICK EVANS
T20067173
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/12/2009
Before
LORD JUSTICE AIKENSMR JUSTICE FIELDHIS HONOUR JUDGE STEPHENS QC
Between
RRespondentStephen MarshAppellant
Mr Michael BirnBaum QC and Mr Nicholas Dunham for AppellantMr Patrick Harrington QC and Mr Christopher Clee QC for RespondentHearing Hearing dates : 15 th and 16 th December 2009
JudgmentLord Justice Aikens :
[1]On 2 April 2007, after a trial lasting three weeks before Roderick Evans J and a jury, the appellant was convicted of the murder of his wife, Jaspal Marsh. On 18May 2007, Roderick Evans J sentenced the appellant to life imprisonment and set the minimum term at 18 years imprisonment, less time spent in custody on remand.[2]Rebecca Harris, who had been the appellant’s lover, had pleaded guilty to the murder of Jaspal Marsh before the appellant’s trial started. Roderick Evans J sentenced her to life imprisonment and set the minimum term at 12 years less time spent in custody on remand.[3]On 17June 2008, the full court gave leave to appeal on two grounds only. It referred three further proposed grounds to the court hearing the appeal. The last of those has now been abandoned. On behalf of the appellant, Mr Birnbaum QC, (who did not appear at the trial below), put forward five other grounds of appeal for which leave has not been given but for which leave is sought.[4]We heard submissions from Mr Birnbaum on behalf of the appellant and from Mr Harrington QC (who also did not appear at the trial below) on behalf of the Crown as respondent on 15 and16 December 2009. (Mr Harrington’s junior, Mr Clee QC, had appeared at the trial below). At the end of the hearing we announced that the appeal would be dismissed for reasons that we would hand down in due course. These are our reasons.

The facts: the murder itself

[5]Rebecca Harris admitted that she stabbed Jaspal Marsh to death in the bedroom of the house where she lived with the appellant in Gorseinon, Swansea, South Wales, in the early hours of Saturday 29 July 2006. The victim was stabbed some 35 times with a large kitchen knife. The knife was left in the victim’s chest. The prosecution case, which the jury accepted by its verdict, was that the appellant had persuaded Rebecca Harris to commit the murder. The appellant had told his wife to leave the front door unlocked and unchained, although in fact the appellant had arranged to stay that night with a male friend. The prosecution case was that he stayed with this friend in order to have an alibi at the time of the murder.[6]The appellant telephoned the emergency services at 6.51pm on Saturday, 29July 2006. He stated he had returned home from work to find his wife dead on the floor of the bedroom of their matrimonial home at 25 Howard’s Way, Gorseinon, South Wales. When officers attended the scene, a large knife with a blade of 20cm was still embedded in the chest of Jaspal Marsh.

The facts: the background

[7]The appellant, who is now 38, had married Jaspal in 1993. They had no children. Jaspal Marsh worked for an insurance company. The appellant worked at a telephone call centre for “118”. He dealt with enquiries by telephone from people who subscribed to a mobile network.[8]In his summing up, the judge described the marriage of the appellant and his wife as “somewhat unusual”. The appellant had a number of extra marital affairs. Jaspal Marsh was aware of at least some of them. However she wanted to keep her marriage together.[9]It was also clear from the evidence that the appellant was a heavy drinker. He described himself as a “functioning alcoholic”. Habitually he would drink between 8 to 10 pints of cider a day, starting early in the morning and drinking at intervals regularly throughout the day and into the evening. As a result he had an enlarged liver, which he was aware of as a result of medical tests. He gave evidence to that effect.[10]At the trial there was evidence from three women with whom the appellant had relationships. The first was Michelle Hales, who met the appellant when she was aged 15. She was 19 at the time of the trial. Miss Hales’ evidence was that, in the context of sexual activity, the appellant asked her to cut him with a knife. She stated that he told her that he liked pain and liked being cut and bleeding. She refused and he did not ask again. Miss Hales also gave evidence that on one occasion the appellant had spoken of wanting to get someone to kill his wife.[11]The jury heard evidence from Natalie Yemm, with whom the appellant had a sexual relationship. Her evidence was that the appellant told her that he liked the thought of being cut and the thought of the person who cut him licking his blood afterwards. Natalie Yemm thought this was just a sexual fantasy of the appellant.[12]The jury also heard evidence from Julie Owens, who met the appellant through an internet chat room. Her evidence was that the appellant told her that he liked women hurting him; he wanted a woman in stiletto heels to walk on his back and cut him and lick the blood off him and to cut him with a knife. Julie Owens told the appellant that she was not interested in things like that and he said “that’s okay”. They had a sexual relationship but it did not last long. On one occasion the appellant sent her a text message saying that he had found a girlfriend who, he said was “into the same stuff as I am”.[13]The appellant met his co-accused Rebecca Harris in October 2005. At the time she was in her late 20s. She was married to Ron Harris, who was then in his late 60s. Rebecca Harris had a young son. Her evidence was that Ron Harris was violent and abusive towards her. Ron Harris gave evidence at the trial and said that Rebecca was violent and abusive towards him. He said that on one occasion she had threatened him by pressing the point of a bread knife into his stomach area. It was clear that their relationship had deteriorated considerably.[14]The relationship between the appellant and Rebecca Harris quickly developed into a sexual affair. They frequently sent text messages to one another on their mobile phones and did so at all times of the day and night. They spoke frequently to one another on the telephone.[15]Unlike the relationships between the appellant and other women, the relationship between the appellant and Rebecca Harris actually involved cutting with a knife during sexual activity. Rebecca Harris’ evidence was that the first occasion occurred in a car. The appellant produced a pen knife. He urged Rebecca to cut him and, because he was most insistent, she did so. She made two or three cuts on his back and two on his arm. Her evidence was that he said “this is lovely, this is good”. She said in evidence that she did it because “he had a way of persuading me”. This occurred on at least one other occasion.[16]When interviewed by the Police, the appellant told them that the cutting was Rebecca Harris’ idea. In evidence at the trial, he admitted he was lying when he had said that to the police. His evidence was that he lied to the police because he wished to conceal from them the fact that he had a long standing interest in the use of knives during sex. His evidence at the trial was that he preferred Rebecca Harris to cut him. However, he also gave evidence that he cut her for her pleasure.[17]One incident where Rebecca Harris was cut by the appellant was recorded on the appellant’s mobile phone. The video clip was shown to the jury and we also looked at it. Rebecca Harris’ account was that the appellant tied her to the bed, blindfolded me and then “sliced” her. She said in evidence that she did not know that he was recording the incident. Her evidence was that he used a knife to do this which had come from the kitchen in the matrimonial home where the incident occurred. It was common ground at the trial that the same knife was the murder weapon.[18]In his summing up, the judge characterised the relationship between the appellant and Rebecca Harris as follows: (page 16 B – D) “….[the appellant] had therefore found a woman who either shared his interest in cutting or was at least willing to indulge in his fantasies. It was clearly Rebecca Harris, you may think, to whom [the appellant] was referring when he told Julie Owen that he had found a girlfriend who was into the same stuff as he was. Rebecca Harris says that she had fallen in love with the defendant and she wanted to be with him. However [the appellant] did not like children and although she thought that he and she could live together, she did not know what would happen to her son, James…”[19]On Friday 28 July 2006 the company 118 had a monthly event known as “the Pay Day Bash”. It took place in a wine bar called Idols in Wind Street, Swansea. That evening Jaspal Marsh was at home. The appellant and Rebecca Marsh stayed at the Wine Bar until approximately 9.30pm. He then walked off into town. His plan had been to spend the night with Natalie Yemm but she had cancelled that arrangement. The appellant then telephoned two other female friends and, finally, a male friend, Andrew Byrne. The appellant and Mr Byrne arranged to meet at a pub where they had some drinks and then they went back to Mr Byrne’s home and played computer games until the early hours of the morning. The appellant stayed at Mr Byrne’s home that night.[20]Rebecca Harris left the wine bar shortly before midnight. She drove to Gorseinon in her car, despite the fact that she had been drinking alcohol that evening. She parked her car near the appellant’s house and walked to it. The front door was unlocked. She went into the kitchen and took a knife from the knife block. Rebecca Harris went upstairs and attacked Jaspal Marsh in her bedroom. There was a struggle. Jaspal Marsh suffered numerous knife wounds. There were 22 penetrating stab wounds of which 16 were to her body and 6 to her left arm. There were 13 superficial cuts. Some wounds damaged vital organs including Mrs Marsh’s heart. Mrs Marsh was left on the floor of her bedroom with a knife plunged into her chest, which is where she was later seen by the police.[21]Rebecca Harris left the scene, returned to her car and drove to her home in Morriston. Before and after the killing, there was telephone traffic between the appellant and Rebecca Harris in the form of both text messages and telephone calls. These formed a major part of the prosecution case. The mobile phones used by the appellant and Rebecca Harris were examined by DC Alun Webb in order to try and retrieve data from the mobile phones themselves or their SIM cards. All the text messages had been deleted from the mobile phone of Rebecca Harris. Most had been deleted from the appellant’s mobile phone but some had not. Attempts were made to recover the deleted text messages. The police’s efforts were unsuccessful. The mobile phones were passed to a specialist company. Mr Ryan Bartlett of that company gave evidence. He failed to retrieve the messages which had been deleted from the phones of Rebecca Harris and the appellant. The question of what was done by the police and Mr Bartlett in trying to recover the text messages forms one of the proposed grounds of appeal and an application to adduce “fresh evidence”.[22]As a consequence of the deletions, there was no evidence of the contents of any messages originating from or sent to the mobile phone of Rebecca Harris other than the text messages which were recovered from the appellant’s mobile phone. They were recovered from both the “Inbox” and the “Sent box” on the handset’s memory and also from the memory of the SIM card. The evidence at the trial was that all relevant messages received by the appellant’s mobile phone had the status “read”. The evidence before the jury was that the appellant’s mobile phone attributes the status “read” once a text message had been opened. The evidence was that the appellant would, like Rebecca Harris, delete incoming text from Rebecca Harris because of their continuing relationship. His mobile deleted outgoing texts automatically if, as appeared to be the evidence, the phone was put on a default setting.[23]The appellant’s evidence was that he was unaware that there were these text messages from Rebecca Harris still on his phone. He assumed that he would have followed his usual routine and deleted them. He therefore assumed that there was nothing to be found on his phone and was surprised that anything was found. He said that he could not remember either receiving the text messages or reading them in the evening of 28/29 July 2006, although he accepted that he must have done so.[24]The mobile phone of Jaspal Marsh was also examined. A number of text messages were found on the phone. The last five were unread and unopened. The judge invited the jury to conclude that those were sent and received after Jaspal Marsha had been murdered.[25]At the trial, the prosecution relied on the evidence of Rebecca Harris to demonstrate that the appellant was the instigator of the plan to kill Jaspal Marsh and that he urged Rebecca Harris to do it throughout the evening of 28 July 2006. Her evidence was that he did so orally in conversation before they parted, then by telephone call and by text messages. There was a text exchange between the appellant and Rebecca Harris at 23.50 and 23.51 on 28 July 2006. Rebecca Harris’ evidence was that the text from the appellant was to the effect that she could kill Jaspal Marsh. Her evidence was summarised by the judge that “by the text of 23.51 he had convinced [Rebecca Harris] that she could do it and that she could get away with it”.[26]Between midnight and 2am on 29 July 2006, the appellant sent a text to Jaspal Marsh. This stated “I am still at the Potters Wheel with Andy, just leave the front door open and I’m getting a lift home. Love you xxx”. At the same time the appellant was (according to her evidence) encouraging Rebecca Harris. Her evidence was that she decided finally that she would kill Jaspal Marsh when the appellant said to her in a phone call:
“I’ll take your son on as my own”
. She said that the fact that, despite the appellant’s dislike for children, he was prepared to take on her son, the one thing Rebecca Harris loved, was a “clincher” for her.[27]The jury heard evidence from Andy Byrne with whom the appellant stayed the night of 28/29 July 2006. His evidence was that the appellant was not drunk or did not appear drunk to Mr Byrne at any stage of the night. He also gave evidence that the computer game that they played, which constituted two football games each lasting 20 minutes, was complex and required concentration and deft manipulation of the controls by each player. He stated that the appellant and he “played” competitively and played 2 games for a period of more than 40 minutes. He also gave evidence that the appellant frequently asked for the game to be paused whilst he could attend to text messages from his girlfriend. The judge recorded Mr Byrne’s evidence as follows: (page 46, F-H):
“….I can’t remember how often the game paused but it did affect the pleasure of the game and I thought he was pausing so often it was a diversionary tactic and I think I mentioned this. I can’t recall what I said but he denied pausing for tactical reasons. He said he was receiving texts. He didn’t say who was texting him but, at one stage, he sighed and said “It’s her again” ….. we played the game until approximately 2 o’clock.…….”
[28]The texts of which the contents were found on the appellant’s mobile phone were treated at the trial as having been opened and read by him at the time of receipt. These were:(1) a text from Rebecca Harris to the appellant, sent at 00.5.58 and timed for receipt at 00.11.58. The text was “I’ve been seen. This guy came out seen me and car! It’s over. I told U Ill be spotted. xxxx”. After this, the appellant called Rebecca Harris at 00.06.53 for 3 minutes 49 seconds.(2) A text timed at 00.14.52 from Rebecca Harris to the appellant:
“No too risky, too many people”
. After this, at 00.46.06, the appellant called Rebecca Harris for 12 seconds and then made three very short calls, each of two seconds. (3) A text timed at 00.47.52 from Rebecca Harris to the appellant:
“she screamed and fought! I’m shaking so much!”. (4) A text timed at 01.18.22 from Rebecca Harris to the appellant: “Yes do u want to go home now?” (5) A text timed at 01.23.05 from Rebecca Harris to the appellant: “Stop this please. Ill come and get u send me a text saying u want to meet me and say ur sorry! We’ll go back and u call the police XXXX”. (6) A text timed at 01.27.28 from Rebecca Harris to the appellant: “No say it like u mean it! Do you want me to pick u up? (7) A text timed at 01.40.42 from Rebecca Harris to the appellant: “Send me last txt so I can keep in phone cos we have been txting, need alibi! xxxx”
.

The grounds of appeal

[29]The first ground of appeal is that important evidence adduced by the prosecution was both inadmissible and highly prejudicial to the appellant. This evidence is said to fall into two categories:(i) The evidence of the appellant’s interest in cutting as a form of sexual gratification.(ii) Evidence that in March 2005 the appellant had considered assaulting a man who had attacked him whilst at the same time arranging a false alibi.[30]The second ground of appeal is that the judge failed to direct the jury as to the potential relevance and limitations of the evidence concerning the cutting as a form of sexual gratification or the projected false alibi.[31]The appellant seeks leave for six further proposed grounds of appeal. (As already noted, proposed ground five has now been abandoned). The third ground is that the judge’s directions on the danger of relying on Rebecca Harris’ evidence were inadequate in two respects. First, the judge did not highlight the fact that Rebecca Harris had access to all the prosecution papers before giving her detailed account to the police. Therefore she could tailor her account to what she learned the police already knew. Secondly, the judge did not highlight the fact that Rebecca Harris had refused to waive legal professional privilege in respect of advice given to her up to the time that she pleaded guilty.[32]The fourth ground relates to the judge’s direction on lies by the appellant to the police. It is said that (assuming the evidence about cutting for sexual satisfaction was admissible at all), the appellant’s lies to the police that(a) Rebecca Harris had instigated the use of knives during sexual activity; and(b) the appellant’s denial to the police that he had discussed cutting during sexual activity with other women, should not have been the subject of a standard Lucas direction on lies.[33]The sixth and seventh grounds concern the amount the appellant had had to drink on the night of the killing and whether he had opened and read the text messages which were found on his mobile phone subsequently. Samples of blood and urine had been taken from the appellant the day after the killing. They were not analysed for the purposes of the trial. However, an expert, Helen Hunt, has done an analysis and it is said that her conclusion is that the appellant must have drunk very large quantities of alcohol before the time of the killing. It is said that this gives support to an argument that the appellant’s evidence that he was too drunk to appreciate what texts he had received or to open and understand them is credible.[34]Ground 6 therefore asserts that the prosecution behaved unfairly and irresponsibly in accusing the appellant of lying about the extent of his drinking when the prosecution had not obtained any expert evidence as to the likely extent of his drunkenness even though such an analysis would have been possible at the time.[35]Ground 7 relies on a report of Mr Chris Watts. He has analysed the mobile telephone of the appellant. This report concludes that it cannot be established which of the texts sent by Rebecca Harris and recovered from the appellant’s mobile phone or SIM card were opened by the appellant himself as opposed being opened subsequently as a result of the examination of his mobile telephone by the police or Mr Bartlett. Secondly, Mr Watts’ report suggests that the examination process of the mobile telephone by the police or the expert company examining it may have led to overwriting of data of evidential value.[36]Proposed grounds 8 – 10 are based upon a report on Rebecca Harris that was prepared by Dr Damian Gamble, a consultant forensic psychiatrist. That report was commissioned by the Swansea Family Court in the context of an application by Rebecca Harris (after her conviction and sentence for the murder of Mrs Marsh) for contact with her son. One of the questions that Dr Gamble was asked to consider was whether Rebecca Harris was suffering from any identifiable mental illness or personality disorder.[37]An application was made to the judge in the family proceedings that the report of Dr Gamble be made available for use in this appeal. That application was granted by Judge Parry in July 2009, although parts of the report have been “redacted”. We have read the redacted version of the report.[38]It was submitted on behalf of the appellant that the report of Dr Gamble is consistent with the possibility that Rebecca Harris had a compulsion to becoming involved in sadomasochistic relationships and was a willing participant in such activities. It is suggested that her evidence exaggerated the extent to which the appellant controlled her. Therefore it was submitted that if Dr Gamble’s report had been available at the trial, there would have been some evidence before the jury to suggest that she committed the murder of Jaspal Marsh entirely on her own initiative and did so in order to maintain her relationship with the appellant, rather than because he urged her to do so.[39]Ground 9 refers to the fact that Rebecca Harris refused to waive legal professional privilege and confidentiality in respect of material. It was suggested that this may have concealed relevant material from the defence because it would have undermined Rebecca Harris’ evidence that she committed the murder at the instigation of the appellant by whom she was controlled.[40]Ground 10 asserts that the prosecution did not take the appropriate course of action with regard to Rebecca Harris. It was argued that the prosecution knew she had lied in a number of interviews and prepared statements shortly after the killing; had originally pleaded not guilty and had been proposing to rely on psychiatric evidence in her defence; and that she and her solicitors had had access to all the prosecution statements and exhibits prior to making her witness statement in January 2007. The prosecution also knew that the appellant’s defence team had requested that she waive privilege and all confidentiality in respect of all instructions and medical records and reports. It was submitted that Rebecca Harris should not have been called unless she waived legal professional privilege and confidentiality in respect of material that was relevant, in order that the defence could properly put its case with regard to her evidence before the jury.

Ground One:

[41]The issue is whether evidence of the appellant’s “bad character” was wrongly admitted. The two items of evidence are:(i) his interest in cutting as a form of sexual gratification; and(ii) that on an earlier occasion he had planned to assault someone and had, at the same time, sought to arrange a false alibi. We should explain that the latter evidence concerned an incident after the appellant’s jaw had been broken by a boyfriend of a former girlfriend of the appellant. On 27 March 2005 the appellant had sent a text message to “Matt” about attacking the person who had broken the appellant’s jaw. The text said “…I’ll do it anyway as long as I get someone to say I was with them when it happens”. The prosecution said that this demonstrated that the appellant was prepared to get someone else to attack someone he disliked and that the appellant was prepared to arrange an alibi for himself to ensure he was not a suspect.[42]Sections 98, 101(1) and (3), 103(1) and 112 (definition of “misconduct”) of Chapter 1 of Part II of the Criminal Justice Act 2003 (“the 2003 Act”) contain the relevant provisions concerning “Bad character” evidence of a defendant in a criminal trial. They provide as follows:
“Chapter 1Evidence of bad character Introductory 98“Bad character”
References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which— (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence. ……. Persons other than defendants 101Defendant’s bad character (1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if— (a) it is important explanatory evidence, (b) it has substantial probative value in relation to a matter which— (i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole, or (c) all parties to the proceedings agree to the evidence being admissible. ………. (3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)— (a) the nature and number of the events, or other things, to which the evidence relates; (b) when those events or things are alleged to have happened or existed; (c) where— (i) the evidence is evidence of a person’s misconduct, and (ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct; (d) where— (i) the evidence is evidence of a person’s misconduct, (ii) it is suggested that that person is also responsible for the misconduct charged, and (iii) the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time. ……. 103“Matter in issue between the defendant and the prosecution” (1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include— (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; (b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect. ……. 112Interpretation of Chapter 1 (1) In this Chapter— ……. “misconduct” means the commission of an offence or other reprehensible behaviour; …….” Introductory

Persons other than defendants

[43]We note at the outset that both the prosecution and the defence legal teams were highly experienced and skilful as, of course, was the trial judge. We have been told by Mr Harrington and we accept that, before the Plea and Case Management Hearing, the prosecution team had considered at length the issue of whether or not any application to the trial judge would be necessary in respect of possible “Bad Character” evidence relating to the appellant’s admitted or alleged conduct, within the meaning of Chapter 1 of Part II of the Criminal Justice Act 2003 (“the 2003 Act”). The prosecution team concluded that an application was neither necessary nor appropriate. No issues concerning possible “Bad Character” evidence was raised at the PCMH hearing.[44]This court also has before it a note from Mr Gerard Elias QC, who was leading counsel for the defence at the trial. The note was prepared at the request of the current legal team for the appellant. This note indicates that Mr Elias took the view at the time that the evidence concerning the appellant’s interest in cutting as a form of sexual gratification was relevant to an important issue at the trial, viz. whether the appellant had exercised a controlling influence over Rebecca Harris in persuading her to carry out the killing (as the prosecution alleged) or not, as was the appellant’s case. The note indicates that he also took the view that the evidence concerning the alibi text in 2005 went to an issue in the trial, namely whether the events on the night of the murder had occurred spontaneously or whether they were the result of planning to give the appellant a “false alibi”.[45]Mr Birnbaum submitted that both the “cutting” evidence and the “false alibi” evidence constituted “bad character” evidence within the meaning of sections 98 and 112 of the 2003 Act. He submitted that they would not have passed through any of the possible applicable “gateways” set out in paragraphs (a) to (g) of section 101(1), unless the evidence was admitted by agreement (paragraph (a)). Even if it was admitted by agreement, it should not have been because it was not relevant to any issue concerning the appellant’s part in the murder of Mrs Marsh. Accordingly, because the evidence was wrongly admitted and the judge gave no proper directions about it, the conviction was unsafe.[46]There could be arguments on whether the “cutting” evidence or the “false alibi” evidence constitute “bad character” evidence within the terms of the 2003 Act. But there is no point in debating that issue. The evidence was admitted without demur from either the highly experienced and skilled defence counsel or the equally experienced and skilled trial judge. It was admissible because there was tacit agreement between all parties to the proceedings that the evidence was relevant, admissible and should be admitted. If, as we assume for these purposes, the “cutting” and “false alibi” evidence was “bad character” evidence, it was admitted under paragraph (a) of section 101(1) of the 2003 Act.[47]Therefore, it seems to us, the only question is whether, as a consequence of this agreed admission, it can be said that the conviction was unsafe. In our view the evidence of “cutting” and “false alibi” was undoubtedly relevant evidence for the reasons that Mr Elias gave in his note. The “cutting” evidence went to an important issue in the trial, which was whether, as Rebecca Harris said, the appellant exercised a controlling influence over her. The video clip is, in our view, particularly striking in this regard. The “false alibi” evidence went to the issue of whether, as the appellant contended, the events of the 28/29 July 2006 were spontaneous and done solely on Rebecca Harris’ initiative. Or was it the case that the appellant had some part in planning them, including the planning of an alibi for himself whilst getting Rebecca Harris to commit the actual murder? We note that no one suggested at the time that either piece of evidence should be excluded under section 78 of PACE 1984. If such an argument had been available, we are quite satisfied it would have been put by Mr Elias. Rightly, in our view, he did not advance such a point.[48]The conviction can only be unsafe, therefore, if the judge’s directions in relation to that evidence were so much at fault so as to lead to the conclusion that the jury did not know how properly to deal with that evidence when considering their verdict. That means that Ground One cannot succeed on its own and we have to go on to consider Ground Two.

Ground Two

[49]The ground is that the judge failed to direct the jury as to the relevance of the two categories of “bad character” that we have identified. Mr Birnbaum laid much emphasis on the way counsel for the prosecution at the trial, Mr Davies QC, approached the question of the “cutting” evidence in his closing address to the jury. Mr Birnbaum submitted that Mr Davies’ argument to the jury was to the effect that the “cutting” evidence showed that the appellant was a sadist and that this fact would help the jury reach the conclusion that the appellant would have instigated this sadistic murder by exercising his control over the murderer, Rebecca Harris. Mr Birnbaum submitted that the judge ought to have emphasised that this would be an impermissible approach to the “cutting” evidence and that the jury should be astute not to draw such conclusions from it.[50]We do not accept this characterisation of the closing address of prosecution counsel. The passages at the start of Mr Davies’ address where he emphasised the cutting evidence are primarily dealing with the fact that the appellant had said that he was a man of good character. Mr Davies wished to counter that by pointing out that the jury might think, in his words, that he was “…a sadist, you are manipulative and you are a hypocrite” and that he had considered arranging a false alibi in the past. Those were legitimate points to make.[51]Mr Davies also pointed out (pages 8 – 9 of his closing speech) that the “cutting” evidence was helpful in considering the appellant’s motive for instigating the murder of his wife. He suggested that the appellant had, at last, found a woman “…that he could interest in using knives to cut one another up as part of a programme of sexual activity”. That was also perfectly legitimate.[52]Lastly, on this topic, Mr Davies referred to the video clip of the cutting and asked the jury whether that was evidence (as the appellant had suggested in evidence) that the appellant was submissive; or did it show him to be sadistic? That too was a legitimate question.[53]In his closing address, Mr Elias had submitted, in characteristically powerful and persuasive terms, that the appellant was not on trial for his immorality, deception, sexual preferences or disregard for the decent values of married life. Therefore, even if the jury disliked him for what he did, those prejudices must be put aside and the jury must concentrate on the task in hand: did the evidence establish that the appellant murdered his wife, in the sense that he planned it with Rebecca Harris?[54]Given the context in which the judge came to sum up, it was, in our view, bound to be clear to the jury where the evidence of “cutting” was relevant. The judge did not expressly set it out in the way that Mr Elias has set it out in the note that he has prepared at the request of the appellant’s team and we have recorded above. But the judge specifically directed the jury that the court was not a court of morals and the jury was not there to enforce standards of private behaviour. It had to try the appellant “on the evidence which relates to [the] allegation of murder”: page 32H. He went on to warn the jury that it did not do decide the case on a basis of whether it liked or disliked a witness and added: “You must not be affected by any feelings that you have arising from the defendant’s behaviour or the way of life he led”.[55]The judge had already dealt with the “cutting” evidence earlier in his summing up. We have set out above how the judge summarised the relationship between the appellant and Rebecca Harris, at page 16B-D of the summing up. The jury could have been in no doubt of the relevance of the “cutting” evidence. The judge said at page 16D:
“we will look in a little more detail [on Monday] as to how the various relationships developed”
. It was to the relationship between the appellant and Rebecca Harris that this evidence went and the jury will have had that clearly in mind.[56]The judge dealt with the “false alibi” evidence at page 68 of the summing up. He set out the texts and referred to the rival submissions of counsel as to the significance of that material. Once again the judge did not spell out the exact relevance of that evidence, but it was clear to the jury: did it suggest that the appellant would be likely to engage in planning something and arranging an alibi for himself?[57]In R v Campbell [2007] 1 WLR 2798, [2007] 2 Cr App R 28 , Lord Phillips CJ set out general principles as to what a judge should and should not say in directions to the jury when “bad character” evidence was before the jury. But the Lord Chief Justice also said, at paragraph 23, that “Failure to give a direction that is no more than assistance in applying common sense to the evidence should not automatically be treated as a ground of appeal, let alone as a reason to allow an appeal”. That statement is applicable in this case. The judge might have given more pointed directions as to why the “cutting” and “false alibi” evidence was relevant to the issues before them. But if the judge had done so it would have been no more than giving the jury assistance in applying common sense to the evidence. If there was any failure, which we doubt, it is not a ground for allowing the appeal.[58]We therefore reject the first and second grounds of appeal.

Ground Three

[59]This ground alleges that the judge failed to direct the jury adequately as to the danger of relying on the evidence of Rebecca Harris. Mr Birnbaum emphasised that Mrs Harris had access to all the prosecution papers before making her final witness statement and so could tailor her evidence accordingly. He also stressed that the judge should have warned the jury of the fact that Mrs Harris had refused to waive privilege in respect of material in the hands of her solicitors or had refused to waive confidentiality in respect of other material, eg. in the hands of her doctors.[60]The judge’s directions on how the jury should treat the evidence of Rebecca Harris are at pages 25F to 27A of the summing up. The judge reminded the jury that it was the defence case that Rebecca Harris was lying when she gave evidence that the appellant was implicated in the murder of his wife. He warned them that she might implicate him in order to minimise her own responsibility for the offence. He specifically said that the jury must approach her evidence with “particular care”: page 26B. He went on to remind them that Rebecca Harris had admitted that she had lied to the police about her involvement in the killing. He referred to the different statements that she had given and that she had admitted lying in three of the five and that the defence alleged she had lied in all five. He reminded them that it was the defence case that she had lied in evidence at the trial. He reminded them that she had admitted lying to her husband about her affair with the appellant. The judge continued: “When you evaluate Rebecca Harris’ evidence you must consider those matters and decide whether they cast doubt upon the evidence that she has given against this defendant”.[61]The judge returned to the question of the statements that Rebecca Harris had given to the police at page 58 of his summing up. At the end of that page he refers to the defence submission that “they do not know whether Rebecca Harris has given other different accounts to her solicitors and doctors because she has exercised her legal right to refuse access to legally privileged documents”.[62]Mr Birnbaum relies upon statements that were made by Judge Parry in her ruling (made in July 2009) on the question of whether the report of Dr Damian Gamble should be released to the defence team in connection with the present appeal. Mr Birnbaum submitted that those remarks demonstrate that there probably was something inconsistent in the account given to Rebecca Harris’ solicitors or, perhaps, doctors, which have remained privileged or confidential. Judge Parry said:
“9. Where does the public interest sit if an individual is seeking to run two completely different cases because each serves his or her litigation interests in the respective proceedings where the logical consequence might be a serious miscarriage of justice?” …… 20. One of her concerns is that her case may be undermined in the appeal process of more information about her is made available to the applicant. Her only case currently I the successful outcome of any application she may make for parole in due course should her case that she was manipulated into murder by the applicant be rejected or questioned.…”
[63]The first extract is a rhetorical question which is posed in a passage dealing with general principles. It is not referring to the specific facts of this case. The second passage refers to the appeal process itself in the case of this appellant and the possible consequences of a successful appeal by this appellant. There is nothing in these passages to suggest that there is, or even may be, important material that has not been disclosed which should have been the subject of a warning to the jury.[64]The question of precisely what degree of warning a judge should give a jury as to the caution it should take over the evidence of a co- accused is a matter of judgment for the trial judge. This court has said more than once that it will not regard a conviction as unsafe on the issue of such a warning given to the jury unless it is clear that the warning was manifestly inadequate. We are quite satisfied that the judge’s warnings in this case were not. Leave on this ground is therefore refused.

Ground Four

[65]It was submitted by Mr Birnbaum that the judge misdirected the jury in directing them that the appellant’s lies in interview as to his interest in cutting was relevant to his guilt. He submitted that the judge should have directed the jury that the appellant’s lies to the police in interview on this topic, (ie. by saying that it was Rebecca Harris who insisted on the cutting and he had not discussed it with other women), were too remote. Mr Birnbaum submitted that they were not capable of being an element that the jury could take into account when considering the appellant’s guilt.[66]The judge gave a “classic” Lucas direction on this lie at page 28D-G of the summing up. We need not set it out. We have already stated that the “cutting” issue was a relevant one in the trial. It went to the question of whether the appellant controlled Rebecca Harris or not and so to his implication in the murder. The Lucas direction did not elevate an irrelevant matter into a relevant one. The judge was careful to warn the jury that lies do not, by themselves, demonstrate guilt. This court has also said that it may be appropriate to give a Lucas direction when a lie is relied on by the prosecution to attack the credibility of a defendant, eg. when the lie figures largely in the case and there is a danger that the jury may think that the defendant is guilty because he has lied: see Blackstone’s Criminal Practice (2010) section F1.20 at page 2278.[67]In our view no legitimate criticism can be made of the judge’s direction on lies. Leave is therefore refused in relation to this ground of appeal.

Grounds Six and Seven

[68]These two grounds relate to the appellant’s consumption of alcohol during the evening of 28/29 July 2006. The proposition is that the prosecution behaved unfairly and irresponsibly in arguing that the appellant was lying about his consumption of alcohol on that evening, because an analysis would have demonstrated that he must have drunk very large quantities of alcohol. The appellant relies upon the reports of Helen Hunt dated 12 and 17 November 2008.[69]It is common ground that blood and urine samples were taken from the appellant on 29 July 2006. They were not then analysed. We have before us a note of the consultation between Mr Elias QC and the appellant, which took place after the PCMH hearing on 19 January 2007. At this consultation the issue of whether or not an expert on alcoholism and memory loss should be obtained was discussed with the appellant. A decision was taken not to rely on such expert evidence. The conclusion was that it would be better that the appellant should give his own evidence on memory loss. (That is what he did at the trial). The note does not record any specific discussion of whether or not the defence should obtain an analysis of the blood sample that had been take on 29 July 2006.[70]Mr Birnbaum submitted that the report of Helen Hunt, a forensic scientist, demonstrates that the appellant must have drunk very large quantities of alcohol in the evening of 28/29 July. The purpose of this analysis and conclusion would be to lay the foundation for a submission that the appellant was not lying in evidence when he said that he suffered memory loss that evening and that was why he had no recollection of receiving or reading various text messages from Rebecca Harris. The argument would be that he had drunk so much and had such a high alcohol level in his blood that he might have suffered memory loss and that supported the appellant’s evidence.[71]Mr Birnbaum submitted, if necessary, that the court should receive the reports of Helen Hunt under section 23 of the Criminal Appeal Act 1968 and that it was necessary or expedient in the interests of justice to do so.[72]In our view the reports of Helen Hunt can do no more than establish that the appellant was approximately three times over the drink driving limit at the time that he reported his wife’s death to the police. We are quite satisfied that no accurate “back calculation” could be done to establish the alcohol level in the appellant’s bloodstream over the period 11pm on 28 July to 2am on 29July 2006. The evidence was that, as always, the appellant had drunk intermittently but copiously during the day on 29 July. Therefore the reports of Helen Hunt could not provide any foundation for saying that the appellant was much more drunk than Mr Byrne said in evidence. Nor does it provide a foundation for corroborating the appellant’s evidence that he was so drunk that he had little or no memory of texts that evening. It is not necessary nor expedient in the interests of justice to receive this report and we will not do so.[73]There is no basis for any allegation that the prosecution behaved either unfairly or irresponsibly in arguing that the appellant was lying about his consumption of alcohol prior to the text and telephone calls relied upon. The jury heard the evidence of Mr Andy Byrne. The prosecution was entitled to rely upon that evidence. It was not incumbent upon the prosecution to have obtained an analysis of the blood sample taken in circumstances where it would demonstrate nothing that would advance the case either one way or the other. Moreover, as Mr Harrington pointed out in the Crown’s written submissions, the telephone schedule demonstrated, by reference to a number of text messages, that the appellant was able to compose, spell correctly and punctuate text messages throughout the evening on Friday and Saturday morning. Further, the messages retrieved from Rebecca Harris’ mobile phone displayed a two way conversation in texts. Therefore the prosecution was, in our view, entirely justified in asserting that the appellant was lying when he said he had no memory or ability to read or send text messages.[74]In relation to ground seven, the appellant wishes the court to receive, as fresh evidence, a report of Mr Chris Watts of Griffin Forensics dated 16 January 2009. This report suggests that there were numerous irregularities in the handling of the mobile phones and the recording of data by the police and by Mr Bartlett. It suggests that the text messages which it was common ground at the trial were all read by the appellant at the time, may not in fact have been opened until after the police obtained the mobile telephones.[75]Mr Birnbaum submitted that this report provided a foundation for a conclusion that the appellant did not read the text messages sent to him on 28/29 July by Rebecca Harris and so corroborated his evidence that he did not remember receiving or reading them.[76]We refuse to receive this evidence. It is neither necessary nor expedient in the interests of justice to do so. There is no point in receiving it unless there is at least an arguable ground that this evidence may afford a ground for allowing the appeal. In our view, it cannot do so. At best, the report can only demonstrate that certain text messages sent by Rebecca Harris were not read by the appellant at the time. But that conclusion gets the appellant nowhere. The point of the Crown’s case on the text messages from Rebecca Harris is that they demonstrate, by their content and the fact that they were sent to him, that the appellant and Rebecca Harris were involved in the murder together. The text messages show that she was reporting to him on what was happening. It is quite clear that the two conversed by text messages as the record of the text message traffic in the telephone schedule demonstrates.[77]Therefore, neither the alcohol analysis evidence nor the report on the appellant’s mobile telephone would assist the appellant’s case. Leave is therefore refused in relation to these grounds of appeal.

Ground eight

[78]The submission here was that a report such as that of Dr Gamble, although prepared in the context of the access proceedings in the family court, would have undermined Rebecca Harris’ evidence about the “cutting” and the result is that it would not have been admitted as “bad character” evidence. That therefore made the conviction unsafe. Once again, this potential ground of appeal can make no progress unless this court is prepared to receive Dr Gamble’s report under section 23 of the Criminal Appeal Act 1968. We are not prepared to do so because, in our view, it is neither necessary nor expedient in the interests of justice to receive it.[79]The report was written after an interview with Rebecca Harris and after a review of various sources of information which were identified in the report. Some of these references have been redacted from the copy of the report which is before the court. The nub of the report, for present purposes, is contained in two paragraphs on page 10. Dr Gamble concludes as follows:
“In my view the relationship with Mr Marsh provides evidence that Ms Harris has a fascination with and compulsion to become involved in sadomasochistic relationships. The relationship with Mr Marsh became sufficiently important for Ms Harris’ emotional equilibrium that she was prepared to commit murder in order to continue the relationship. It is my experience and the experience of other colleagues who work with sexually deviant patients that in a sadomasochistic relationship, such as the relationship between Mr Harris and Mr Marsh, both partners are willing participants. For the masochistic partner, the relationship allows them to explore their own violent wishes and fantasies at a distance, by encouraging the sadistic partner to act them out. The relationship may allow both partners too manage their violent thoughts and feelings in a contained way within the relationship. When the relationship is threatened, however, both partners may become anxious that they will be unable to manage their feelings on their own. In this situation they can be driven to more and more extreme measures in order to maintain the relationship. This can include more and more dangerous sexual “games”, as appears to have happened in this relationship. It appears that for Ms. Harris, her need to maintain the relationship with Mr Marsh was so powerful that she was willing to do anything in order to keep it going, including to commit murder. ……..”
[80]The report may provide an explanation for why Rebecca Harris was prepared to commit the murder of Mrs Marsh. It does nothing to suggest that the appellant was not involved or that Rebecca Harris committed the murder on her own. On the contrary, the report suggests that the relationship between the appellant and Rebecca Harris was a sadomasochistic one and that when the relationship was threatened, the two parties could be driven to more and more extreme measures in order to retain the relationship. This report does not even arguably afford any ground for allowing the appeal. It is not at all favourable to the case of the appellant.[81]Accordingly, whilst we accept that this report could not have been available at the time of the trial, and we are prepared for the present purposes to accept that it would have been admissible and is certainly credible, it cannot be said to be either necessary or expedient in the interests of justice to receive it.[82]Therefore, leave on this ground is also refused.

Ground 9

[83]Mr Birnbaum submitted that the failure of Rebecca Harris to waive legal professional privilege in relation to material in the hands of her solicitors or to waive confidentiality in respect of other material means that her evidence could not be properly tested and so made the conviction unsafe. He pointed out that Rebecca Harris made a number of false statements. He noted that she was, before deciding to plead guilty, seen by three psychiatrists. He submitted, (on the basis of the statements in the judgment of Judge Parry to which we have referred above), that it is clear that Rebecca Harris insisted on retaining legal professional privilege to conceal from the court material which would have affected the credibility of her evidence at the trial.[84]There is no force in this proposed ground of appeal. It is clear from the cross examination of Rebecca Harris by Mr Elias QC that Rebecca Harris was pressed hard on her refusal to waive privilege. Mr Elias referred to it specifically in his closing address (page 24 E-F). He pointed out that this meant that the jury could not have any idea whether she ever told a different story to that which emerged in the court through her evidence.[85]Mr Birnbaum suggested that the Crown could, in some way, have insisted that Rebecca Harris waived privilege to material in the hands of her solicitors and waived confidentiality in respect of other material as a condition of her being called to give evidence. With respect, we regard this suggestion as fanciful on the facts of this case.[86]The jury was fully aware of the problems of Rebecca Harris’ evidence which had been highlighted in cross examination, defence counsel’s closing speech and the judge’s summing up. The fact that she refused to waive privilege does not, even arguably, make the appellant’s conviction unsafe.[87]We refuse leave on this ground of appeal also.

Ground 10

[88]Mr Birnbaum submits that the prosecution was at fault in failing to insist that Rebecca Harris should waive legal professional privilege. We have already dealt with this ground, in effect, in dealing with ground 9. We are quite satisfied that the prosecution acted entirely properly in its approach to the calling of Rebecca Harris as a witness.[89]We refuse leave on this proposed ground.

Conclusion

[90]We have considered the grounds of appeal both individually and together. We are quite satisfied that, either individually or collectively, they do not demonstrate that the conviction of the appellant was unsafe. Mr Birnbaum himself accepted that the case against the appellant was “a powerful one”. The most compelling aspect of the case against the appellant consisted of the telephone and text message traffic between him and Rebecca Harris before and after the time of Mrs Marsh’s murder. The compelling nature of that evidence has not been undermined by any of the arguments put forward by Mr Birnbaum, despite the persuasive way he has done so and the thoroughness with which he has explored every possible aspect.[91]For these reasons this appeal is dismissed.