Percival & Anor, R v [2010] EWCA Crim 1326

Case No 2007/00426D4

Case No 2007/00430/D4

[2010] EWCA Crim 1326

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CHELMSFORD CROWN COURT

HIS HONOUR JUDGE BALL QC

T20057216/231

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18/06/2010

Before

LORD JUSTICE RIX

MR JUSTICE OUSELEY

MR JUSTICE OPENSHAW

Between

REGINARespondent

Mr T Owen QC (instructed by Hughmans Solicitors) for First Appellant

Ms A Johnston (instructed by Janes Solicitors) for Second Appellant

Mr David Jeremy QC & Mr Mark Aldred (instructed by London Special Criminal Division, Ludgate Hill) for Respondent

Hearing Hearing dates : Friday 23 April 2010

Judgment

Lord Justice Rix :

[1]On 28 February 2001 at shortly before 0900 the body of 24 year old Dean Boshell was discovered in some allotments in Leigh-on-Sea, near Southend. He had died from three gunshot wounds to the head, all fired from the same gun, which was probably a Colt revolver. Rigor mortis had set in, so he had been dead for some time. One shot was to the back of the head. Two of the wounds, to the left side of the head, had been inflicted when the gun was very close to or in contact with the skin, presumably fired when Boshell was already on the ground. Other injuries included a laceration to the back of the scalp, caused by a blunt instrument such as the gun (or by him hitting his head when he fell), and a skin rash on the left side of his neck and face, consistent with contact with bleach or ammonia. Three bullets were recovered from the scene of the shooting (two from Boshell’s head), but the gun was not found. Neighbours living near the allotments had heard disturbances at various times of the previous night.

[2]These appeals are against the convictions of Ricky Percival for the murder of Dean Boshell and other serious crimes, and against the conviction of Percival’s friend, Kevin Walsh, for conspiracy (with Percival and others) to pervert the course of public justice by providing Percival with a false alibi for the previous evening of 27 February 2001. There is also an appeal by Percival against sentence.

[3]The trial at which Percival and Walsh were convicted took place at the Crown Court at Chelmsford before HHJ Ball QC and a jury between 28 September and 14 December 2006. Percival was sentenced on 14 December 2006 to life imprisonment with a minimum term of 26 years to serve.

[4]The critical evidence against Percival and Walsh was given by Damon Alvin, a criminal associate of theirs. Alvin had faced trial the previous year, in September 2005, for the murder of Boshell (the “first trial”). Percival and Walsh, as well as Walsh’s girlfriend, Katy Griffiths, were co-defendants, charged along with Alvin with conspiracy to pervert the course of justice by reason of their participation in Alvin’s false alibi. At that trial, however, there was no charge of murder against Percival. 10 days after the commencement of that trial, Alvin changed his defence statement, and his solicitor, and pleaded guilty to the charge regarding perverting the course of justice. The trial was adjourned and the jury discharged. At his own invitation, he was re-interviewed by the police in relation to the murder of Boshell on 25 and 27 September 2005.

[5]By his changed account, Alvin accepted that he had lied about his whereabouts on the night of Boshell’s murder. He said that he had been present at the allotments, just in time to see Percival murder Boshell, but that he had not anticipated Percival’s attack and had not been complicit with it. The prosecution considered Alvin’s explanation to be credible and decided to offer no evidence against him. That decision was communicated to him by letter dated 30 September 2005. On 7 October in court that decision was put into effect and he was acquitted of the murder, and sentenced to two years imprisonment on the count of conspiracy to pervert the course of justice. It is common ground, however, that Alvin was relieved of the burden of facing the charge of murdering Boshell as from the letter of 30 September 2005.

[6]Alvin was debriefed as a “supergrass” as part of his entry into the witness protection programme. The debriefing continued over 204 days. The first debriefing interview took place on 6 October, on the eve of Alvin’s formal acquittal, and the last took place on 8 July 2006. The interviews ran to more than 94 hours and occupy more than 10 lever arch files.

[7]In the course of the debriefing Alvin professed to make a complete revelation of his criminal activities and his knowledge of the complicity of other criminals. Among the matters which he revealed were his and Percival’s roles in a shooting of the Tretton family on 12 June 1999. Alvin’s role in the Tretton shooting was first revealed in the first debriefing interview of 6 October 2005.

[8]In due course Alvin’s confessions and the information he gave against Percival led to the trial with which these appeals are concerned (the “second trial”). Percival was arrested for the murder of Boshell on 2 November 2005 and charged the following day. Walsh (and Griffiths) were arrested on the conspiracy count on 23 (and 24) November 2005.

[9]On 16 December 2005 Alvin pleaded guilty to ten further offences (in addition to his plea to the conspiracy to pervert the course of justice count), with a further sixteen offences taken into consideration. On 11 January 2007 he was sentenced to a total of 5 years imprisonment, concurrent to the two year sentence on the conspiracy count.

[10]Although, as will appear below, there are other grounds, the critical ground of appeal is whether the judge gave an adequate warning to the jury about the difficulties and dangers of accepting Alvin’s evidence against Percival, with its attendant undermining of the alibi provided by Walsh.

The circumstances leading up to the conclusion of the first trial

[11]Boshell was known to the police as an offender and an informant. Following his murder, the police spoke to his known associates who included Percival and Alvin. Boshell was considered by the police to be a weak individual, a friend of and gofer for Alvin and an associate of Percival. He appears to have looked up to both of them, calling Percival his “mate” and Alvin his “brother”. On 3 and 4 March 2001, Percival, Alvin, Walsh and Griffiths, made witness statements saying that they had been together in Walsh’s home on 27 February from about 2245 until, in the case of Percival about 2330 or just after midnight, and in the case of Alvin, about 0030. Percival said he then returned home alone, and Alvin said he was picked up by his wife and returned home with her. Walsh’s home was close to the allotments. Percival and Alvin also said that they had started the evening drinking together in the Woodcutters Arms, and that when they had left there, they had each temporally returned home. Percival said he had picked up Alvin from the latter’s home at about 2230 and driven him to Walsh’s. Alvin said the same, saying they had left the pub at about 2130 and arrived at Walsh’s home at about 2245. Percival said that he had not seen Boshell for some weeks before his death and Alvin said he had not seen Boshell for some days before his death.

[12]The police also spoke in the week after the murder to Jason Spendiff-Smith, with whom Boshell had been spending his time in the months before his death. From Spendiff-Smith the police learned that Boshell had planned to meet his “brother” (Alvin) and his “mate” (Percival) on the evening of 27 February to carry out a raid to steal cannabis plants from a “skunk farm” in a village outside Chelmsford. On 25 February 2001 Boshell took Spendiff-Smith to Boshell’s home to show him a hand-gun and three bullets which Boshell had previously told him he was going to get from Percival for £250 to take on the job.

[13]Suspicion for the murder of Boshell accordingly fell on Alvin and Percival, but the police had little to go on, and they had their reservations about relying on Spendiff-Smith. It was some time before the police acted on their suspicions, but on 1 April 2003 Alvin was arrested in possession of a kilo of cocaine. On 2 April 2003 an “intelligence interview” was conducted with a view to seeing if Alvin would assist the police by providing information which might go in mitigation of any sentence that he might receive for his drug crime. He was prepared, inter alia, to implicate Percival in the supply of a consignment of 60 kilos of cannabis. The carrot of becoming a “supergrass” was put to him, but at that time he declined.

[14]On 16 April 2003, while still in custody, he was arrested for the murder of Boshell and interviewed as a suspect. The police suggested that Percival had been the instigator of the murder, but that Alvin was also present and complicit, since, as a friend of Boshell, he could have stopped Percival if he had wanted to. Alvin made no comment. However, police witnesses gave evidence that there were conversations about what could be done, by way of the witness protection programme, to ensure the safety of Alvin’s family were he willing to speak frankly. His wife, Claire, visited him, but she was unwilling to countenance being uprooted from her family. She was pregnant. On the subject of Boshell’s murder, Alvin remained silent at that time. Percival was then in Spain. Percival himself gave evidence that he had been tipped off by a corrupt detective who had offered him the friendly advice to go on holiday. Percival thought that was in connection with the risk of being arrested for the supply of 60 kilos of cannabis.

[15]Nothing further happened concerning the murder of Boshell at that time. Alvin pleaded guilty in the Basildon Crown Court to the charge of possessing the cocaine with intent to supply and in August 2003 was sentenced to 30 months imprisonment. He accepted at the second trial that his light sentence had been obtained by deceit in the matter of his mitigation. He had constructed an elaborate and entirely false account of duress. To support his story he arranged for his wife, Claire, and his mother-in-law to cut out letters from newspapers to construct threatening notes. His brother arranged for a wreath to be sent to Claire to imply that Alvin was under sentence of death. He also gave intelligence to the police about Percival (but said nothing about the offences which he was to allege against him in due course). He was released in February 2004. On 30 June 2004 Alvin was arrested a second time for the murder of Boshell. He declined to answer any questions in interview and was bailed. Walsh and Griffiths were also arrested on the conspiracy count, as on 17 July 2004 was Percival, who had come back from Spain. In October 2004 Alvin was charged with the murder and the other three with the count of conspiracy to pervert the course of justice. Alvin and Percival went into custody on remand, and were to spend some time together in the same cell or were otherwise able to meet.

[16]Alvin waived privilege in relation to his first trial. He shared a solicitor with Percival, on the recommendation of Percival, by the name of Anne Blyth-Cook. The papers from her files gave an insight into the lengths he went to understand and attempt to meet the evidence against him, but also meshed with his subsequent evidence as to how he was to come to the conclusion that the risks of sticking by his alibi could lead him to take the blame for a murder which he ended up saying had been carried out by Percival. At his second trial he was to say that Mrs Blyth-Cook had advised him that the case against him was weak and nothing more than a tactic “to make him come clean, to make him panic and spill the beans”. He was subsequently to conclude that she was more interested in protecting Percival.

[17]At the end of March 2005, contrary to Mrs Blyth-Cook’s prediction, the prosecution survived a dismissal application. The first trial began on 12 September 2005 with nearly two weeks of legal argument. The prosecution opening note presented the case as depending on Alvin’s known association with Boshell, some evidence of his meeting with Boshell on the night of the murder, a possible motive arising from Boshell’s activities as an informer, but most of all, against that background, on the destruction of his alibi through cell-site evidence. By use of such evidence and with the assistance of CCTV, the prosecution was able to show: that Alvin and Percival (and Walsh and Griffiths) were in the Woodcutters Arms until about 2115 (so far in accordance with the alibi); that at 2032 Alvin was seen taking a call on his phone which could be attributed, on the evidence of a witness Cliff McLaughlin, as having been made by Boshell from McLaughlin’s phone; that Alvin and Percival left the pub together in a car (the alibi said separately); but that at 2145, at a time when on Alvin’s alibi, as supported by Percival, he had gone home to Rochford (he said for a bath), to the north-east of the Woodcutters Arms, to be joined there sometime later by Percival, he was in fact to the south-east, in the centre of Southend, in an area known as the Kursaal, close to where Boshell lived; that his phone was then switched to divert until sometime after 0037 (so that it could not be traced through cell-site information); that during this period of diversion Alvin’s wife, Claire, had made numerous unsuccessful attempts to call him; and that at 2348 a call was made to Claire’s mobile from a telephone kiosk on Elmsleigh Drive, a short distance from the allotments, which the prosecution suggested was from Alvin. (At the second trial, both Alvin and Claire were to say that that call was made by Alvin, and was to ask her to pick him up from Kevin Walsh’s home). In the meantime, the prosecution suggested, the murder of Boshell had occurred sometime in the bracket between 2145 and 2348, which would fit with evidence from neighbours of the allotments who had heard disturbances around 2300 to 2330.

[18]The prosecution therefore suggested that Alvin had lied about his alibi, and had done so to cover up his complicity in the murder of Boshell. The prosecution did not, however, suggest that he had carried out that murder alone. On the contrary, the Crown opening said:

“You will see that Alvin alone is charged with murder. That does not mean that he committed the murder alone or even that he was the one who pulled the trigger. It is most likely that he would not have been alone…Count 2 charges all of the defendants (including Alvin) of lying about [Alvin’s] whereabouts. Whether the excuse is loyalty or fear, lying to police investigating a murder can only be intended to mislead…”

[19]As we have stated above, Alvin changed his defence statement, to implicate Percival, and pleaded guilty to the conspiracy to pervert count, on 22 and 23 September 2005. The catalyst of that change, as he subsequently explained, was the loss of his opposition to an application by the prosecution to admit the hearsay evidence of Boshell’s contact sheets as an informer. These showed that Boshell had informed against Alvin (and Percival). At the second trial the judge was to warn the jury that they had to treat such contact sheets with great caution, but he also said:

“If only a fraction of that material is true you might conclude that it reveals the existence of a self-confident, active, threatening group of criminals at the heart of which appear to be Damon Alvin and Ricky Percival…”

[20]The skeleton argument served on behalf of Percival at this appeal described the failure of Alvin’s opposition to the admission of Boshell’s contact sheets as “potentially devastating” for his defence.

[21]Alvin’s evidence at the second trial was that initially he had accepted Mrs Blyth-Cook’s advice that the case against him was weak, but that as time went on he had increasing doubts about the soundness of that advice and, indeed, as to whether Mrs Blyth-Cook was sacrificing his interests to those of Percival. He began to feel that he might be convicted for a murder which he had witnessed, but not committed. He was concerned about the cell-site evidence, including evidence of two brief calls from Kevin Walsh’s phone to his phone at 2317 and 2347 (when his phone was switched to divert), at a time when, according to the alibi, they should have been in each other’s company at Walsh’s home. He and Mrs Blyth-Cook discussed the possibilities of others who might be suspected of the murder, such as Turkish drug gangs, or a criminal who had been in prison with Boshell but had himself died since Boshell’s death. “All this gives an insight into the way Alvin was plotting, wriggling, squirming ahead of his trial”, commented the judge.

[22]Alvin was also concerned at Percival’s reaction to McLaughlin’s witness statement that he had lent his phone to Boshell to make the call to Alvin at 2032, when Alvin was in the Woodcutters Arms with Percival. That call linked them with Boshell that night. Alvin was to say at the second trial that Percival had sent his brother to get a mutual friend to approach McLaughlin not to give evidence, but the friend would not cooperate; and that during the first trial itself Percival sent his brother to McLaughlin’s father to offer £4000 to get McLaughlin out of the way for the duration of the trial, a plan hatched when Percival and he were on remand together, but which also failed when McLaughlin’s mother vetoed it. That evidence led to a second charge of conspiracy to pervert the course of justice which Percival faced at the second trial, and of which he was convicted. This was despite the fact that McLaughlin’s mother, Tracey McLaughlin, gave evidence for Percival’s defence to the effect that she was unaware of any such plot to get her son out of the way.

[23]Alvin was also concerned that Percival had offered him £100,000 to go through with the trial. He wondered why such an offer might be necessary, if the case was as weak as Mrs Blyth-Cook was advising.

[24]He was still further concerned of a plan by Percival’s brother to nobble the jury, about which he said that Percival spoke to him during the first week of the trial.

[25]Meanwhile, Alvin’s counsel, Mr John Black QC, who gave evidence for the Crown at the second trial to this effect, was trying to get Alvin to explain himself so as to provide ammunition for an alternative defence, in case the alibi was disbelieved. He wanted to be able to run the defence, which seemed to him to be suggested by the Crown’s evidence, to the effect that Alvin and Percival had been together with Boshell that evening: in which case how could the jury be sure who had used the gun? But if that scenario was to be presented, then Mrs Blyth-Cook could no longer represent both Alvin and Percival, because there would have been a conflict of interest. As it turned out, she withdrew from representing Percival on 15 September 2005.

[26]Mr Black gave evidence of what the judge described as “a firsthand and unquestioned account of how [Alvin’s] change of position developed”. Mr Black advised Alvin that the case against him was a strong one, but that if Alvin was not the murderer, but had been present, he should tell the truth, although it was a matter for him, and he could not predict how the Crown would respond. Over a weekend, Alvin considered his position and that led to his change of account. As preparations began for the drafting of a new defence statement, Mr Black became increasingly concerned about Mrs Blyth-Cook’s negative attitude and sought to exclude her from the drafting. Ultimately he told her that she must withdraw, which she did. He considered that her concern was for Percival rather than her client Alvin.

[27]In his amended defence statement, Alvin gave an account of the murder of Boshell which he was to give at the second trial. The judge remarked on the consistency of Alvin’s evidence, and that he did so has been among the criticisms of the judge’s summing up made on behalf of Percival by his new counsel on this appeal, Mr Tim Owen QC. We will return to that criticism. The account that Alvin now gave, and was to give at the second trial, was as follows. Its details, with much else besides, were explored in interviews on 25 and 27 September 2005 and during the lengthy debriefing period which followed the end of the first trial.

[28]Alvin and Percival had planned to rob the skunk farm on the night of the murder, and had involved Boshell as their driver. Percival was not keen to include Boshell, but had been persuaded by Alvin. The evening had started off with Alvin and Percival in the Woodcutters Arms, but they left at about 2115. This is where Alvin’s account began to diverge from the alibi. We omit some detail but the essence of Alvin’s account is that he went to collect Boshell from the centre of Southend (where the cell-site evidence showed him going) and they met up with Percival at the allotments. There Percival started questioning Boshell about the whereabouts of a gun which he had been looking for in the allotments. He accused him of taking it. He was angry. Alvin went back to his car to get a torch. As he returned to the allotments, he could see the two figures of Percival and Boshell ahead of him, with Boshell’s hands to his face. He heard the bang and saw the flash of a gunshot and Boshell fell. He ran away, hearing two further shots. He hid for a while, then made his way to the telephone kiosk where he made the call to his wife’s mobile recorded at 2348, to ask her to collect him from Walsh’s home. As he walked from the kiosk, Percival drew up in his car. He said that Boshell was dead, having pulled a gun on him, and that they needed to talk. He said that he would sort it out, and that Alvin was to say nothing, to which he agreed. They arrived at Walsh’s home at about midnight. Alvin’s wife, Claire, arrived to take him home. He told her nothing.

[29]Subsequently, Percival and Alvin had built an alibi. Percival told him that Walsh would say they had been with Walsh at his home from about 2300. Percival also told him that he had returned to the allotments to fetch Boshell’s phone. He advised Percival to get rid of his. He had his car crushed and disposed of the gun.

[30]As we have stated above, the police were disposed to believe Alvin’s new account, and the Crown offered no evidence on the murder charge. Also as stated above, Alvin’s peril on the murder charge ended with the CPS letter recording the decision to offer no evidence dated 30 September 2005. The formal acquittal and sentence on the conspiracy to pervert the course of justice charge was on 7 October. On 6 October Alvin began his debriefing in a session in which he implicated Percival and himself in a shooting of the Tretton family in 1999.

[31]Percival was arrested for the murder of Boshell on 2 November 2005.

The debriefing

[32]Alvin’s lengthy debriefing was carried out by police officers who were entirely independent of the murder enquiry leading to the first trial. The purpose of the debriefing was to ascertain whether Alvin could really be relied upon as a witness for the prosecution. Such a debriefing is a necessary part of the process of a witness turning Queen’s evidence and entering the witness protection programme. As part of this debriefing, Alvin was required to speak frankly about the whole of his criminal activities, knowing that once he had confessed to these crimes he would be charged and prosecuted for them.

[33]Among the crimes about which Alvin told the police and which concerned Percival were the Tretton family shooting and the Wickford robbery, both of which occurred in 1999 (see below).

[34]What emerged from Alvin’s account of Percival was the image of a young man with a capacity for extreme violence when he was roused to anger, a readiness to use weapons, and a volatility which meant that his violence could be triggered by relatively minor slights or perceived wrongs. Alvin gave general evidence of Percival’s bad character, including his involvement in episodes and threats of violence, drug dealing, robberies, revenge assaults and access to guns, and occasions when he showed aggression and lack of control.

The Tretton shooting

[35]The Tretton shooting was the first crime that Alvin and Percival had committed together. What emerged from Alvin’s debriefing and his evidence at the second trial, including the evidence of other witnesses was as follows. The target was the Tretton family who lived in Southend. Percival had been dealing drugs to Stephen Tretton, who owed him a small debt. Percival, who was in prison at the time, asked Malcolm Walsh (Kevin’s brother) to collect the debt. This led to a feud developing between Malcolm Walsh and the Trettons, and to Stephen Tretton’s stepfather, Terry Watkins, stabbing Malcolm Walsh to death on 10 June 1998. In March 1999 Watkins was convicted of his manslaughter. Percival sought revenge on behalf of Malcolm Walsh. Moreover, Stephen Tretton had had a relationship with Percival’s girlfriend when Percival had been in prison. On the night of 11/12 June 1999 Alvin and Percival drove to the Trettons’ home. The plan, as Alvin understood it, was to harm or knee-cap one of the family, and Percival was armed with a shotgun. Alvin was his driver. Boshell had backed out as driver at the last moment, and Percival had persuaded Alvin to take his place. Alvin went with Percival to the front door of the house next to the Trettons’ home, where Percival had discovered that the Trettons were being entertained by their neighbour (Carla Evans). Percival kicked in the front door, Alvin heard the firing and returned to the car.

[36]The man with the gun, whom Alvin said was Percival, wearing a balaclava, kicked the front door in and burst into the living room, firing three shots. Only the jamming of his shotgun brought an end to his firing. In the room were Carla Evans, Raymond, Stuart and Christine Tretton, another neighbour Jenny Dickinson, a baby and a small child. He fired at the chest and face of Raymond Tretton, shooting away the hand that he raised to protect himself. He fired at Stuart Tretton, shooting off his hand too. He fired at the sofa, hitting Jenny Dickinson (who had pulled Christine Tretton down) and she lost one finger and the use of two others. These matters resulted in three counts of attempted murder, of which Percival was also convicted. Percival was 19 at the time of these offences.

[37]Two, but not all, of the eye-witnesses said that there were two men in the house, and the judge cautioned the jury that they may wish to consider whether Alvin was trying to play down his role. Christine Tretton said that she recognised the gunman from his eyes as Percival. She was an alcoholic and even had to have a drink before giving evidence. She had never previously said in her witness statement that she had recognised the gunman, but DC Brochen said that one of the women he had spoken to at the scene had told him that she had recognised the gunman from his mannerisms and physical appearance. He did not have a notebook to confirm that evidence, but there was a police policy document dated May 1999 which stated:

“Witness Christine Tretton has stated to DC Brochen the build and posture of one of the attackers similar to Ricky Percival.”

However, the judge told the jury that they must not convict Percival of the Tretton shooting on the basis of Christine Tretton’s purported recognition of him, adding:

“If you are to convict him of the Tretton shootings it must be because you are satisfied so that you are sure that Alvin has told you the truth about his involvement.”

[38]Carla Evans, on the other hand, volunteered in examination in chief that the gunman had blue eyes. She said she had seen them “staring right at me”. Percival had brown eyes, but Alvin had blue eyes. (It was Percival’s case at trial that Alvin was the gunman, and that he, Percival, had not been involved at all. He relied on an alibi.) There was nothing in her three witness statements, the first two of which had been made on the day of the shooting itself, about the colour of the gunman’s eyes. The prosecution successfully applied to treat her as a hostile witness. Her evidence had, however, been anticipated by the defence, because some two weeks before she was called, during the cross-examination of Alvin, Mr Andrew Bright QC, then leading counsel representing Percival, had asked him about the colour of his eyes, namely blue, and contrasted them with the colour of Percival’s brown eyes. Mr Bright had commented that perhaps eye colour was something that women were better at noticing than men. This was despite the fact that in all of the used and unused material generated by the Tretton shooting there was nothing which referred to the colour of the gunman’s eyes.

[39]Carla Evans’ evidence led to the recall of Christine Tretton. She gave evidence of having received a visit, shortly before the start of the trial, from Trisha Madden, a friend of Percival. Trisha had suggested to her that Raymond Tretton, before he died, used to say that the gunman had blue eyes and that he must have been Alvin rather than Percival. This had upset Christine because she had taken it as an attempt to put things into her head. The prosecution therefore argued that Percival must have exploited Carla Evans’ fear of him (her witness statement alleged that he had threatened her prior to the Tretton shooting) in order to feed into the prosecution case the suggestion that the gunman had blue eyes. By their verdicts, the jury showed that they rejected Carla Evans’ evidence about the gunman’s blue eyes.

[40]After the shooting, Percival (said Alvin) rejoined Alvin in the car and told him what he had done. They hid the gun in a drain and went to Pam Walsh’s house. Percival was planning an alibi with Pam Walsh.

[41]Later that morning the police arrested Percival for attempted murder. He instructed Mrs Blyth-Cook to assist him. He was interviewed, and, as he was to admit at trial, told a lot of lies in interview. He admitted in cross-examination that his interviews were “drivel”. The judge gave a lies direction. Despite admitting that among his lies was a gross exaggeration of his closeness to Pam Walsh, he stood by his alibi that he had been with her that night. He also named a man called Peter Edwards as able to support his alibi. In his third interview there was a violent outburst when the police informed him that neither Pam Walsh nor Peter Edwards were supporting his alibi. They did not come to do so at trial.

[42]The shotgun was recovered from a drain a few days later. It had a live cartridge jammed in the breach, and a spent cartridge still in the barrel, which matched one of the cartridges recovered from Carla Evans’ lounge, although of a different weight of pellet. Boshell’s contact sheets showed that he had informed the police that Percival had been the Tretton gunman. He also named a second man as “Dave”, which may have been him covering up for Alvin.

[43]When arrested in 2005 for the Tretton shooting, Percival refused to answer any questions in interview.

The Wickford snooker club robbery

[44]Alvin said that later in 1999 he and Percival had shared another enterprise, a robbery of a snooker club at Wickford. This occurred in the early hours of 20 August 1999. Boshell had introduced the job to the other two, because he had a relationship with a girl who worked at the club, Carla Shipton. She met Alvin and told him about the club routine and the alarm system. There were expectations of a haul of £15,000, although in the event there was less than a thousand on hand, the rest had already been banked. On the night of the robbery, Carla Shipton left the door ajar for Alvin and Percival to get in. The manager, Alan Ashley, who gave evidence at trial, was set upon. He was faced by two men in balaclavas. One squirted him in the face with ammonia, the other punched him. Later he was threatened with a small handgun. Alvin said that the gunman, and the user of the ammonia, was Percival. Later, he said, the gun was hidden by Percival in a wood.

[45]When arrested in 2005 for this robbery as well as the Tretton shooting, Percival refused to answer any questions in interview about it.

The telephone evidence

[46]We have already mentioned the salient matters concerning telephone evidence, but resume them here. It was cell-site evidence that showed plainly that Alvin had lied in his original alibi, shared with Percival, that he had gone home after leaving the Woodcutters Arms at about 2115. In fact he had gone into the centre of Southend (to pick up Boshell). At 2145 an incoming call on Alvin’s home put him in the Kursaal area of the centre of Southend, where he was picking up Boshell. While he and Percival had been in the pub earlier Alvin had been in contact with Boshell by phone at 2032. From 2145 until at least 0037 Alvin’s phone was on divert and thus unable to reveal any cell-site information. During that time his wife, Claire, had made some eighteen unsuccessful calls to his phone, and Kevin Walsh, who on the alibi was supposed to have been at his home in company with Alvin, made two unsuccessful calls at 2317 and 2347 to Alvin’s mobile while it was on divert. (It was suggested on Walsh’s behalf, but he did not give evidence, that these calls were attempts to find Alvin’s misplaced phone.) At 2348 there was a call to Alvin’s wife from a public telephone kiosk close to the allotments, which he said was to her to ask her to collect him from Walsh’s home (and which Percival’s case suggested could have been from Boshell, who on Alvin’s evidence was already dead). There were two further calls from Alvin’s wife to Alvin’s diverted phone after that telephone kiosk call, which on Percival’s case was inconsistent with the idea that Alvin was calling from the kiosk.

The timing of Boshell’s murder

[47]The timing of Boshell’s murder was an issue at trial, and evidence concerning it has become a ground of appeal because of the discovery that the statement of a witness, Gordon Osborne, which was read at trial, contained lies about his service with the Royal Marines. These lies completely undermined his evidence that he was well placed from his service experience to recognise the sound of the gunfire of a handgun, which he said he had heard, as a neighbour to the allotments, at between 2300/2330.

[48]When was Boshell’s murder committed? On Alvin’s evidence sometime around 2315, that is to say some thirty minutes or so before his telephone call to his wife from the kiosk at 2348. On Percival’s case, he and Alvin were together at that time with Walsh and Griffiths. Walsh and Griffiths also said so. Percival’s case was that the murder had happened at about 0200 the following morning, when he was back at home alone, and when Alvin and Boshell had gone to the allotments. Percival produced witnesses from Alvin’s time in prison to that last effect (see below).

[49]The independent evidence, such as it was, came from neighbours to the allotments who were questioned in the immediate aftermath to the murder. On 1 March 2001, in the immediate aftermath of the murder, Osborne spoke to DC Mark Hall who was making house-to-house enquiries with the aid of a “House Enquiry Form”. In answer to the question “Did you hear anything that was unusual”, Osborne’s recorded answer was “Half thinks may have heard a bang. Cannot be sure does not know time. Possibly 11.00 to 11.30 pm.” Three months later on 18 June 2001 Osborne made his first witness statement (by which time he would have known the details of the murder) in which he said:

“About 11 pm (2300) I was awoken by the sound of 2 or 3 shots coming from the direction of the allotments. My bedroom window is always open and I got up to look out of the window towards the allotments but I could not see anything as it was pitch black.”

[50]On 2 September 2005, following Percival’s arrest, Osborne, who had gone to Spain, made a second witness statement. In it he explained the firming up of his evidence from the enquiry form to his first statement as follows:

“I will admit that at the time I didn’t really think about the answers I gave the officer and was quite vague about what I said. However by the time the officer called to take a statement from me I had given it more thought.”

He then amplified his first statement as follows:

“I woke at about 11pm that same evening. I’d heard two or three shots coming from the allotments. I can’t be more specific about the time now but I had a digital alarm clock by the bed which I did look at. I immediately recognised the sounds as coming from a handgun, this type of weapon has a distinctive sound, totally different from a shotgun or rifle. I have had experience of firearms since I was 11 years of age when I shot rifles with the Sea Cadets. I remained in the cadets until the age of sixteen. At the age of 17 I joined the Royal Marines staying with them for 18 months. During training with the Marines I had training with the Browning 9mm semi automatic pistol, SLR rifles, Lee Enfield rifles, American M16 rifles, German Mauser and Luger. Since leaving the Marines I have not had any dealings with firearms, but like riding a bike you never forget what you’ve learnt and the sound each weapon makes.”

[51]The statement then went on to explain that Osborne would not return from Spain to give evidence at trial. It was not that he was wanted in relation to an offence (of indecent assault) but that he feared for his safety.

[52]It was known that Osborne had a long list of previous offences against his name, including offences of dishonesty. He had been to prison.

[53]At trial the prosecution applied to have Osborne’s witness statements read, but the defence opposed the application. There is a dispute about the importance to the prosecution case of Osborne’s evidence. Suffice it to be said that the Crown pressed for the admission of the evidence, on the basis that the jury should have all the relevant evidence “in the round” and “what matters is when the shots were fired”, and the defence strongly opposed it. Mr Bright called it “fundamentally important evidence” and sought to underline “how fundamental the issue of the timing of the hearing of the shots is to this case”. It would be “a travesty of justice” to allow such unreliable evidence to be read to the jury. It was “of crushing importance”.

[54]The judge admitted the statements. He accepted the Crown’s submission that the jury should have all potentially relevant evidence for them to consider. He said:

“Are they to be denied hearing what those potential witnesses have said?...I stop to ask myself for a moment were this trial to be concluded and they walked away and the following day learned that there were three people who in different ways had asserted that they had heard different things coming from those allotments, never mind what time, I have not the least doubt that the jury would be amazed that they had been stopped from receiving that information and had been prohibited from making their own judgment about its quality and about the weight that they might attach to it. It is for that very reason, I have no doubt at all, that this legislation was introduced: to stop the artificial exercise of withdrawing from the jury material of potential relevance. Whether, and the extent to which, it has any relevance will be a matter for them… However, ultimately the jury are going to have to focus on when did this killing take place?...”

[55]Later, in his summing-up, the judge commented on the close scrutiny to which Mr Bright had subjected the evidence of Osborne. He said:

“He is the witness who would not come. He is in Spain. He has been charged with some sex offence, so, as is the modern approach, he must be the lowest of the low and he will not come and help. He falls into the category of all those other statements you have heard read; we want these witnesses here but we cannot have them so are you to be denied their statement? Imagine if this case was all over, you went away having delivered your verdicts and then you suddenly heard there was a statement from a man who said that he heard gunshots and you did not learn about it. You would be outraged, would you not, to think that such an important piece of material had been withheld, which is why the law allows you to hear it so you get all the material. What you do with the material is entirely up to you. What weight you attach to it is entirely up to you. If you think this man is worthless and his account is worthless disregard it, do not put it in the scales. If you think there may be a grain of truth in it, well, use the grain if you think it is safe to do so.”

Mr Owen relied on that comment, “such an important piece of evidence”.

[56]Since the trial, it has come to light that Osborne’s only connection with the Royal Marines was for a five-month period as an acting steward, at the age of seventeen, and that he had been discharged as “unsuitable”. In those circumstances, had they been known at trial, it is well possible that Mr Osborne’s statements would not have been admitted at all.

[57]Other witnesses gave various accounts of what they had heard or seen that night. The judge reviewed them all for the benefit of the jury. Mrs Bramzel heard a series of repetitive bangs, between 2 and 6, coming from the direction of the allotments, at some time before she went to bed, later rather than earlier in the evening. The noises had made her look out, but she could not see anything. Mrs Faulkner remembered seeing lights like a torch or bicycle light flashing from the direction of the allotments, at about 2300, her bed time. She sent her husband out to check. Mr Faulkner, having gone to bed about 2230/2300 and while he was dozing off remembers being woken by his wife and sent out to investigate: he saw the lights too, but they went off and he saw and heard no more. Mrs Brown, whose bedroom windows were open, heard a man calling out, a single word or name, in a frantic or stressed way: that was at about 2230/2330. Mrs Andryas remembered a lot of noise from the allotments over a four or five hour period. They were loudest at about 2300, when she went out in the garden to investigate. She could hear sounds of talking and rustling. The noises continued as late as 0030. There were more noises at 0200, when she heard a very loud bang, like a firework, followed by an echo, and then all went quiet. Other statements were read. There was a Mrs Koskas, who recalled seeing a dark-skinned man talking loudly on a telephone at 2255 or thereabouts. Mrs Alsford said she had heard gunshots on four or five occasions, most recently about “three to four weeks ago”, ie one to two weeks before the murder. She said:

“If I heard shots around the time the man was killed I would have reported it.”

Mr Rowley said that he heard two distinct gunshots at about 0555 on 26 or 27 February, which he ascribed to shooting badgers in the nearby woods.

[58]The Crown relied on those who had heard sounds in the period of around 2300, such as Mrs Bramzel, the Faulkners and Mrs Brown, as well of course as on Osborne, who alone spoke of gunshots. The defence relied upon those who had heard sounds later, in particular on Mrs Andryas who mentioned the firework at about 0200.

[59]The facts are that Boshell was murdered with three shots, probably from a handgun. If, therefore, Osborne’s evidence is to be regarded as excluded, or, if as admitted, discounted to nothing by reason of all the matters to be placed against the reliability of his evidence, no one heard the three gunshots.

[60]We said above that Percival relied on witnesses from Alvin’s time in prison to say that Alvin had confessed to committing the murder at 0200. One was Ian Campbell, a prison officer for 15 years, due to retire 6 months after the trial. He was described as the “impecunious prison officer”, because nearly all his salary went on paying the interest on his debts. He had a couple of disciplinary findings against him. His evidence was that in September 2005, when Alvin was in prison on remand prior to the first trial, he overheard Alvin speaking in the showers, saying:

“Fucking hell, mate, at the end of the day I done him. The only thing that keeps me in the clear is Old Bill got the time of death at 11.30 and I done him in the early hours of the morning.”

Campbell said that he was shocked, but did not say anything to anyone at the time, even though Alvin was shortly to stand trial. He also knew Percival, who was in the same prison on remand. He described him as a model prisoner, and said he felt sorry for him, because he was not sleeping well. He spoke to his wife about it (who gave evidence of such a conversation in March/April 2006, she thought April). She advised him to get legal advice. There came a time when he raised the matter in Senior Officer Glasscock’s office in the presence of Percival. SO Glasscock advised him to contact the police or Percival’s solicitors. He did the latter. The proper procedure was in fact to pass the information to the police, and there was a system for doing so. In his evidence Percival said that this meeing in SO Glasscock’s office took place in March 2006, ie possibly after Mr Campbell had mentioned it to his wife.

[61]Campbell was strenuously cross-examined for the Crown. Because Campbell had not contacted the police, there had been no warning of this line of the defence case until 12 October 2006, when in cross-examination of Alvin Mr Bright had put to him that he had been party to the murder of Boshell; and on 17 October 2006 it was put to him that he had confessed to the murder in the showers in prison in the terms stated above. In his cross-examination, Campbell accepted that he had not made a note of the overheard cross-examination. He accepted that nearly all his salary went on servicing his loans. He could not explain why he had not acted on what he had overheard when Alvin was awaiting trial on the charge of murder. He explained his later act of bringing the matter to light on the ground of feeling sorry for Percival.

[62]The judge told the jury that if they thought Campbell might be telling the truth, “it is devastating against the Crown’s case”. However, the jury rejected the evidence of the shower confession.

[63]A further witness to a prison confession by Alvin relied on by Percival was Michael Brown. His statement was read because he could not be found to bring to court. The statement was taken on 24 March 2006 when Brown was in prison, albeit he was released four days later. It was only on 23 November 2006, well into the trial, that his statement was revealed to the prosecution and police help was enlisted to secure his presence, to no avail. He was a serial offender. His statement referred to an occasion in 2003 when he was in prison with Alvin, meeting him for the first time, and Alvin told him that he had murdered Boshell in the allotments, by himself, because Boshell had been informing on him.

The evidence of Spendiff-Smith

[64]Spendiff-Smith, whom we have last mentioned at para 12, was an unreliable witness, but his evidence was nevertheless potentially important in a number of respects. He was a friend of Boshell and could speak to the last few days of his life. His evidence that Boshell had shown him a gun with three bullets, which he said had been given him by his “mate”, ie Percival, was highly significant, if the jury accepted it, and he remained unshaken on that. He also had potentially significant evidence to give about Boshell’s intended role with Alvin and Percival (ie his “brother” and his “mate”) in the raiding of the skunk farm on the night Boshell was murdered. For that purpose, he said he lent Boshell some dark clothing, in which Boshell was found. Boshell’s orange jacket was left behind with him. He also spoke of going down with Boshell to Lidl’s supermarket in the Kursaal to await Boshell being picked up by his “brother” (Alvin) although he did not see the actual pick-up.

[65]Much more obviously unreliable was evidence about threatening calls to his phone. In his numerous statements he said:(a) that he had received an anonymous call at 2120 from someone who introduced himself as “Rick” and “Dean’s mate Rick”, and asked him to tell Boshell to meet him at 2130, but no further calls that night;

(b) that between 0900/1100 the next morning, 28 February 2001, he received a call (which woke him up) from the same caller, Rick, who told him he would get hurt if he did not keep his mouth shut;

(d) that he could not remember the times of the calls exactly, and the caller called himself Ricky;

(e) that none of these calls from Rick or Ricky had happened except the first two (sc that on the evening of 27 February itself and that of 28 February); and

(f) that the call on the evening of 27 February did not occur, and that the only threatening call was on the morning of either 28 February or 1 March, and the caller did not identify himself at all.

[66]In his evidence at trial, however, he spoke, for the first time, of a threatening call at 2330/2400 on 27 February, whose maker gave the name of Rick or Ricky. He had never referred to such a call before. He said that he had made up all his statements about the phone calls (in order to obtain protection), but there was only this one. He had received it before he had learned of Boshell’s death on the following day.

(f) above), he said:

“I’ve got confused. Well, no, because literally it was five years ago. I can’t remember everything from five years ago, otherwise I would be a genius…I’m not exactly sure what day it was.”

He then also agreed, as he had said in his last statement, that the caller did not identify himself. He said the evidence he had given “just now”, ie in court as distinct from the statement, must have been the mistake. However, he reckoned that the caller was Percival:

“Because who else would ring me and threaten me?”

He was adamant that he had been threatened.

[67]Although the matter was not picked up by any of the counsel in court, it is now common ground that the judge erred in summing up this evidence about the phone calls. The judge said:

“Some time later that night, Jason Spendiff-Smith was to tell us, he received a phone call. About 11.30 to 12.00 he put it. It was a strange call. He at that time had not a clue that anything had happened and the caller threatened him by saying something like: “Say nothing, keep your mouth shut or I will cut you and your family.”

The caller, he said, gave a name that sounded like Rick but he could not be sure. He was sufficiently upset by the phone call, apparently, to get rid of his phone the next day. If he is telling the truth about that phone call, and remember he admits lying and exaggerating the extent of the calls that he was claiming to have received from Ricky Percival, if he is telling the truth about that one phone call then, if nothing else, it points to the fact that something of significance may have happened prior to or around the time of midnight. Given the nature of the evidence he gave, and its potential influence in the case it was no surprise that he was subjected to an in-depth cross-examination by Mr Bright who explored with him the series of statements that he had made to the police following the shooting in which he readily agreed he had lied and lied again, principally about the extent of the threatening calls from Ricky Percival. He excused those lies by saying he was on heroin and crack cocaine at the time and he suggested at one point he was exaggerating the threats that he was receiving from Percival to get the police to protect him, even though he did not know who Percival was. The suggestion was made that he was deliberately pandering to the police’s desire to have incriminating evidence against Percival and he was deliberately keeping Alvin’s name out of things. To that he responded, you might think, quite robustly. He said that he never met Alvin, he did not know him, did not even know he had been charged with murder and he owed him no allegiance at all. He said:

“I haven’t a clue who he is.”

As for his lies and exaggerations against Percival he said they were purely made up himself. He did not have any reason to lie about Percival, not even knowing him. Even though he accepted the numerous lies and the statements and, you will remember, that come the first trial the Crown were not even going to rely upon him and call him as a witness, which indicates perhaps the reservations that they plainly had about him at that time, he was adamant when being cross-examined by Mr Bright that Boshell did talk to him about doing a cannabis job, of that he was absolutely sure, and he is absolutely sure that Boshell showed him that gun.”

[68]That, we think, was a fair and accurate resume of Spendiff-Smith’s evidence save for this error: the judge overlooked that the evidence about the timing of the threatening call given in examination in chief was withdrawn in cross-examination, albeit only in favour of the last witness statement which had said that the call was either on 28 February or 1 March, and that the caller had given no name.

[69]Another error of the trial, not of the judge, was that the prosecution had overlooked the evidence of a disclosed police report dated 26 May 2004 in which PS Michael Ruddock had investigated the billing of Spendiff-Smith’s phone. That showed that on 27 February 2001 Spendiff-Smith received no calls from an unidentified caller; that the same was true of 28 February; but that on 1 March – “ he received telephone calls at 7.37 (0737) 10.12am (1012) and 10.59am (1059). The details of these calls are unknown (No trace from Telephone analyst, Holmes or Intel checks) but the first of these is likely to have woken him.” It is possible therefore that Spendiff-Smith did, as he said in his last witness statement, receive at any rate one threatening call from an anonymous caller on 1 March, which woke him that morning.

[70]However, in making his error in overlooking the withdrawal in cross-examination of his evidence about the call at 2330/2400 the judge was also in error in suggesting that “something of significance may have happened prior to or around the time of midnight”.

The prosecution and defence cases at trial

[71]The prosecution case at trial was unique in that it relied for its essence on the evidence of a witness, Alvin, who had been charged but acquitted on the same murder as that on which Percival was tried. The prosecution case stood or fell on Alvin’s evidence. The case was that Percival was a man of anger and volatility who liked guns and could act with unpredictable violence. He had killed Boshell because he had lost his temper over Boshell’s removal of his gun from where he had secreted it on the allotments (and possibly because he suspected him as an informer). He had shot up the Trettons as revenge for Malcolm Walsh’s death and over the slight to him of Stephen Tretton’s relationship with his girlfriend. Alvin on the other hand had no reason to kill Boshell, whom he had befriended, and had no argument with the Trettons. Although Alvin had lied over his alibi for the evening of 27 February 2001, and had had and taken every opportunity to familiarise himself with every aspect of the papers involved in the first trial, he lacked the same opportunity with respect to the Tretton shooting and Wickford robbery, and demonstrated remarkable consistency over an immense amount of detail on which he was little cross-examined. When questioned about the Boshell murder in April 2003 he had considered entering the witness protection programme, but had then rejected the idea because of his wife’s unwillingness. However, his peril of being convicted for a crime he had not committed led him to accept that fate in September 2005. The entire forensic process by which he came to make that decision was laid bare, including his loss of faith in his solicitor, Mrs Blyth-Cook, who appeared to favour the interests of Percival over his. Having been told that he would be acquitted of the Boshell murder, he had gone on to give a full account of his life and crimes rather than cease his co-operation. In doing so he had put himself in new peril of being held accountable for those crimes. He also gave a detailed account of Percival’s bad and volatile character, some of which was admitted by Percival himself. As for the Tretton shooting, the Crown was also able to rely on the admitted lies which Percival had told in interview, and the failure of Pam Walsh and Peter Edwards to support his alibi.

[72]In short, the Crown asked the jury to accept the reliability of Alvin. That was the critical issue in the case. There was little clearly independent of his testimony on the murder charge to corroborate his evidence, because such independent testimony as there might perhaps have been was open to the riposte that he had crafted his evidence around the prosecution material which, on the Boshell charges, was entirely open to him because of his role as defendant in the first trial.

[73]The defence case, on the other hand, at any rate as it emerged during the second trial, was not only to deny all participation in the various offences charged against Percival, and put the Crown to the burden of proof, but ultimately to accuse Alvin himself of the Boshell murder and the or a leading role in the Tretton shooting and Wickford robbery. The defence came to be a mirror image of the prosecution. It was Alvin whose character was violent, volatile, and murderous, Alvin who had access to guns and a propensity to use them. He had used the opportunity given him by access to all the forensic material available in the first trial to craft a tale of deceit in which Percival was ensnared – in order to save his own skin. His ability to do so was plain to the jury; whereas Percival called medical evidence to show that his IQ was at the very low level of 77.

The grounds of appeal

[74]Leave to appeal was granted on limited grounds by the full court. Following that leave, the grounds allowed were reformulated as eight, lettered A to H. At the hearing of the appeal, however, Mr Tim Owen QC, who had not appeared at the trial, concentrated on five grounds, A, C, D, G and H. As will appear, the first three, grounds A, C and D, were in essence part of a single complaint that the judge had not held the scales fairly between his presentation of the evidence of Alvin and Percival. Indeed, Mr Owen introduced the whole of the appeal as a complaint that the judge was not fair, in particular, he said, with respect to the murder charge.

[75]Ground A (“Inadequacy of direction on special need for caution”) was that the judge had failed to give an adequate warning or correct direction as to the need for caution in dealing with the evidence of Alvin or as to the identification of evidence capable of corroborating it. Mr Owen submitted that the judge had failed to apply the learning of R v. MB (4 November 1999, unreported) where Henry LJ had said:

“As Makanjuola makes clear, under the new regime it is a matter for the judge: “…to decide the strength and the terms of the warning…” and that is a matter for his discretion. There is no complaint on that score. What is complained of is at the conclusion of the summing-up, in the absence of the jury, counsel for the appellant with the support of counsel for the Crown invited the judge to draw the jury’s attention to those matters which were considered to be capable of being supporting evidence. It was the joint view of counsel in the case that there was no supporting evidence. In the event, the judge did not accede to those submissions, and did not add to his summing-up in this regard. The mischief complained of is that the jury were told that it was essential for them to look for and pay attention to supporting evidence, but were given no help at all as to what might or might not be such evidence. Without such help, the risk of a juror wrongly identifying what was not supporting evidence as being supporting evidence would be high… The jury needed careful direction on this point. The right direction would have been that there was no independent supporting evidence. But if the judge thought there was independent supporting evidence, he was bound to identify it, both to guide the jury, and to enable the defendant and his advisors to consider whether that direction was right in law.” “…to decide the strength and the terms of the warning…”

[76]Archbold 2007, as at the time of trial, had referred to R v. MB at para 4-40q in these terms:

“Where a judge gives some form of corroboration warning it is incumbent on him to identify what evidence is capable of lending support to the evidence in need of support, and if there is no such evidence, to direct the jury to that effect.”

[77]Ground B (“Judge’s adoption of Alvin’s account for his own factual narrative”) was a complaint that the judge had structured his summing-up in such a way as in effect to adopt Alvin’s evidence for his own narrative. However, at the hearing Mr Owen volunteered that this was a difficult argument to sustain. The point was not pursued. The jury could never have been at any misconception that they were hearing Alvin’s account summed up as the prosecution case, as to which their role was to decide whether they were sure or not as to his credibility. The judge turned subsequently to the defence case and reviewed that.

[78]Ground C (“Misdirection that lack of cross-examination of Alvin relating to debrief was capable of demonstrating consistency”) was the complaint that the judge had wrongly directed the jury that the fact that the defence had chosen not to cross-examine Alvin on the mass of detail contained in his six months of debriefing could be relied on as demonstrating Alvin’s general consistency and thus his reliability as a witness. Mr Owen did not develop this ground at any length. His essential point, made in his written skeleton argument, was that whereas much of Alvin’s detail, particularly where it concerned himself, was not capable of cross-examination, yet where, however, it concerned Percival, Alvin was attacked “broad-side”: eg by reference to his obvious motive for implicating Percival to extricate himself from a murder charge which he alone had faced; his accomplished preparation for his evidence with the aid of the papers from the first trial; his proven (and successful) deviousness in relation to his false mitigation in connection with his plea to the earlier charge of conspiracy to supply the kilo of cocaine; and his long life of admitted criminality.

[79]Ground D (“the Judge wrongly and repeatedly bolstered Alvin’s credit and reliability in a way which was unbalanced and unfair”) was a counterpoint to ground A. Not only had the judge given an inadequate direction on the special need for caution in dealing with Alvin’s evidence and on the significance of the need for its corroboration or the lack of corroboration, but the judge had gone out of his way to boost Alvin’s credibility. This bolstering had encompassed the judge’s warning of the need for care in relation to Alvin’s evidence, overwhelming or at least seriously discounting it. We will deal with these grounds below as part and parcel of one another.

[80]Ground E (“Judge’s failure to remind jury of cardinal lines of defence”) was not developed. We do not propose to say anything further about it, save that Percival’s defence of total non-participation, his alibis in respect of both the murder and the Tretton shooting, and his “mirror” accusations against Alvin, as supported by witnesses such as Campbell and Brown concerning Alvin’s alleged prison confessions, were all presented to the jury for their consideration. As the judge remarked with reference, for instance, to Carla Evans and her evidence about the Tretton gunman’s blue eyes:

“if it is true or might be true, if you accept that it might be true, it blows a hole in [the prosecution’s] case”

. As

the judge said with reference to Percival’s evidence as a whole:

“Because if you think what he has been saying to you might be true then it would follow that you are not satisfied that Alvin’s account is the truth. If you are not satisfied so that you are sure that Alvin’s account is the truth then the case against Percival collapses.”

[81]Moreover, in this connection

the judge reminded the jury that there was evidence of bad character on both sides:

“…because there are two sides to all of this, you have now heard everything that is known to the detriment of Damon Alvin. It is not one-sided. It has all gone into the pot. All the dirty linen has been washed before you. You have had everything known to the detriment of Alvin in terms of the offences of which he has been convicted, or has not been convicted but has now owned up to, of all those other matters TICed and, indeed, other matters which generally show him to be of a violent and dishonest disposition.”

[82]Ground F (“Inadequate direction on appellant’s failure to waive privilege”) was the complaint that the judge had allowed Alvin’s waiver of privilege with respect to the first trial to be contrasted with Percival’s refusal to waive privilege. Mr Owen did not develop that submission orally. It is of no weight. The judge had to explain why they had heard everything about Alvin’s discussions with his lawyers in the first trial, but had heard nothing similar from the defence. He emphasised that “that is his absolute right. He does not have to waive privilege, he does not have to help the prosecution in any way at all”.

[83]Ground G (the Osborne point) was, apart from ground A, the main ground of complaint. The submission is that Osborne’s lies about his service with the Royal Marines demonstrate that his evidence should never have been admitted, and that if those lies had been known about, would never have been admitted. He was the only neighbour to have heard the sound of gunfire at around 2300/2330, the time at which Alvin placed the murder. The judge himself had referred to it in his summing-up as “such an important piece of material”. The timing of the murder was a critical issue in the case. Indeed, timing lay at the heart of the case. Without Osborne’s evidence there was no support for Alvin’s account of the timing of the murder. No complaint is made of the admission of Osborne’s evidence on the material available at trial, but, in the light of what is now known, it can be seen that the evidence was crucial, but false, corroboration of Alvin’s account and must have had a critical effect on the jury’s deliberations. The convictions can no longer be regarded as safe.

[84]Ground H (the Spendiff-Smith point) raised the complaint that the judge had misdirected the jury regarding Mr Spendiff-Smith’s evidence as to a threatening call he had received at 2330/2400 on 27 February 2001, and that the judge then compounded his error by suggesting that a call at such a time was evidence that “something of significance” may have occurred at about that time. That made the error regarding the Osborne point still more significant.

[85]We will develop and analyse the surviving grounds as necessary below, in the light of the material which we have set out above.

Grounds A, C and D

[86]Mr Owen concentrated on an extensive passage in the judge’s summing-up which formed a passage or bridge between his account of the circumstances in which the first trial ended and his account of Alvin’s evidence concerning the murder and his criminal career. In that passage the judge was directing the jury as to how they should approach Alvin’s evidence. At the centre of that passage was a warning. The judge said:

“…but I must give you a direction in law about Alvin and his evidence. Quite simply it is a warning. You must examine Alvin’s evidence with great care. By his own admission he has been a violent, dishonest and devious man.”

[87]Mr Owen submitted, however, that on either side of that warning were encouragements to look benignly on Alvin’s evidence, or what Mr Owen described as a bolstering or boosting of it.

[88]The judge began by explaining the reasons why he had refused during the trial to accede to a jury request to give them a copy of Alvin’s amended defence statement at the first trial. The fact was, he told the jury, that he had not been cross-examined on it for any inconsistencies with what he had said in court. It was “not the subject of a single challenge”. He had been “incredibly consistent”. His defence case statement was “absolutely spot on with what he has told you in court”. It “did not feature in cross-examination at all”. That “theme of consistency” brought the judge to his next point, which was that all the documents which had been available to Alvin at the time of the first trial had been taken away from him following his pleading of guilty to the conspiracy to pervert the course of justice charge in September 2005. The judge reminded the jury at this point about some police evidence about the nature of the debriefing procedure, a time when Alvin had not had access to the trial papers:

“Then they are taken away from him, removed from him and he has not seen them since.”

Therefore, in giving his evidence at the second trial, Alvin “plainly has not had the opportunity to study or rehearse from his statements in the way that he did before the trial last year…He had to rely on his memory and memory alone.” And that “exposes him to cross-examination about everything that happened during that debriefing period. Again, you will have noticed a singular lack of cross-examination upon almost anything that happened in that debriefing six months.”

[89]The judge then posed the question which was raised on the debate at trial between Alvin’s and Percival’s evidence, and between the submissions of their respective counsel:

“He has been consistent from the moment that defence case statement was lodged. Is he consistent, and this is a big question for you to answer, is he consistent because what he is now doing is telling you the truth? If you tell things how they happened then by and large you tell the same story every time. That is the Crown’s contention. Or is he consistent and has he been consistent from the moment the defence case statement was served because he has got this phenomenal memory, because he rehearses his lines, because he approaches things in an anal way, to use Mr Jeremy’s inelegant expression?”

Mr David Jeremy QC was Crown counsel at trial, and appears again for the Crown on this appeal.

[90]The judge next reminded the jury that when Alvin chose to plead guilty at the first trial to the conspiracy charge, that was the only crime which the Crown at that time could ask the court to punish him for. He could then have “taken his sentence and walked away”. He had chosen instead to go through with the debriefing process in which he had exposed himself to further punishment for the crimes to which he had owned up during that process. In the end that had resulted in an indictment with fourteen charges against him and a further 18 serious offences to be taken into consideration, for which “he will be sentenced at the conclusion of this trial”. In making that point the judge had referred to 7 October 2005 as a watershed day, the day when Alvin had been formally acquitted at the first trial.

[91]The judge next reminded the jury of Alvin’s entry into the witness protection programme. On behalf of Percival Mr Bright had suggested to a police witness that this amounted to cosseting. The judge said that the issue at trial was whether Percival represented a threat to people who crossed him. But, “certainly the witness protection programme…is not something lightly undertaken”.

[92]It was at this point that the judge gave the jury the warning cited at para 86 above. He lengthened the warning as follows:

“He has explained the great lengths he went to in the build-up to the last trial to advance a false defence and to deceive the jury. He prepared himself to lie and lie and lie again. Apart from his track record as a devious man you know that he now awaits sentence from me at the conclusion of this trial so you must be alert to the very obvious temptation that must exist in such circumstances for him to play down his role, to minimise his criminality, to exaggerate the role of others. Remember, we know that he has deceived a court before by presenting that false picture of his involvement with the kilo of cocaine back in 2003.”

[93]Having made those severe, but just, criticisms of Alvin the judge then said that it was nevertheless important to bear in mind two counterbalancing facts. One was that Alvin had exposed himself to punishment by his confessions. The judge had made that point before. The second was that if Alvin had deceived the police in his debriefing, he ran the risk first, that he would not be used as a Crown witness, and secondly, that he would be disbelieved by the jury: in either event, his credit would undoubtedly be affected “when in due course he came to be sentenced.” Then, the judge returned by way of counterpoint to the theme of Alvin’s crookedness: “Bear them all in mind but never forget for one moment what a crook he has been and what an adept liar he has been”.

[94]Finally, on that note, the judge concluded this passage of his summing-up with a reference to corroboration. He said:

“One thing you might care to do when judging his evidence is…be on the look-out for evidence which might support his account in areas where it is capable of being supported. Test his evidence, see if it fits in and chimes with other evidence, either direct or circumstantial. Do not forget, of course, that much of his account about the murder is given at [a] time when he had all those papers in front of him and it would be easy for him, given his wit, to tailor his account to fit in with the evidence that he knew the police had. It is more difficult for him to do so in relation to Wickford and the Trettons, because he did not have that material. It is much more difficult for him to do in other areas and we will touch on some of those as we go through. However, you may find that there are instances where his account is borne out [by] something that is wholly independent of him and that may help judge his reliability.”

The judge then turned to Alvin’s evidence.

[95]Mr Owen criticised the whole of that passage in the following way. First and foremost, he said that the final passage on corroboration was deficient for the reason stated in MB by Henry LJ. Either the judge should have told the jury that there was no independent evidence capable of corroborating Alvin’s account (and here Mr Owen relied on phrases in Mr Jeremy’s skeleton argument to the effect that Alvin’s evidence was “substantially uncorroborated”, that there was “little if any independent corroborative evidence” and that even the evidence of Mr Osborne and Mr Spendiff-Smith “could not be said to be independent evidence that provided corroboration of Alvin because he knew what they had told the police before he changed his defence”), or he should have clarified for the jury what could or could not have been capable of supporting his evidence. This was a case, submitted Mr Owen, which cried out for a comprehensive direction on the special need to exercise caution before accepting the evidence of Alvin, on the need to look for supporting evidence before convicting, on the need to identify any evidence capable of independently supporting his evidence, and on the need to make it plain that there was none.

[96]Secondly, Mr Owen said that in this passage (and elsewhere in the summing-up as well) the judge repeatedly bolstered Alvin’s credibility. Thirdly, Mr Owen submitted that the judge was quite wrong to say that as of 7 October, when Alvin was formally acquitted of the murder charge, he stood in no peril of any other charge and could therefore have walked away. In fact he had incriminated himself in the Tretton shooting in his first debriefing interview on 6 October. Therefore his continued co-operation was necessary if he was to earn himself a reduced sentence for his admitted crime.

[97]It is clear that before the judge’s summing-up there had been a discussion between him and counsel as to his directions. We have the transcript of those discussions in our papers. It is plain that there was agreement with the judge that there was no need for a direction that corroboration was required. The judge said:

“there will be a broad, a strong and repeated warning to the jury about how they should be on their guard when assessing the evidence of, essentially, all the contentious witnesses. I do not propose giving a direction that any form of corroboration is, in fact, required because plainly in law it is not but, equally, I expect speeches to focus to an extent upon what independent material there may be which, in particular, supports the account of Alvin.”

That was acceptable to the parties, subject only to Mr Bright’s submission that the judge should make it clear that Alvin was a witness tainted not only by his crookedness, but also by improper motives and self-interest. The judge said that there would be “special provision, you can rest assured”.

[98]In our judgment, it was not entirely happy, although it was done by agreement, that the direction about supporting evidence was left somewhat up in the air dependent on closing speeches. Moreoever, MB is clear guidance, at any rate in a case of that kind, as to what is required. We would observe, however, that this case was quite unlike MB. There it was common ground that there was no independent supporting evidence. Nevertheless, the judge there left the jury to find it where it might, without any guidance. In this case, however, the matter was equivocal and complex. It was appreciated that there was little that was independent of Alvin’s ability to construct a story which took the evidence of the murder into account (however, that did not apply to the Tretton shooting). That is not to say, however, that there was no evidence capable of supporting his account. Osborne gave evidence of gunshots at 2300/2330 and other witnesses gave evidence of sounds and lights and disturbances at about that time too (as well as later). That evidence was, in its origins, quite independent of Alvin. It was simply evidence, good or bad, of what neighbours to the allotments heard and saw that night. If that evidence carried any weight with the jury, and that is a big if, it could support an account of a meeting in the allotments at that time, for all that Alvin was capable of weaving it into his account and thereby able to render it, in that sense, capable of being used for his own purposes. The same point can be made of the evidence of Spendiff-Smith about Boshell showing him a gun and three bullets which he said came from Percival, and about the plans for the skunk farm robbery, and about Boshell’s meeting with Alvin in the centre of Southend. The same point, perhaps above all, could be made about the cell-site evidence which had been inconsistent with Alvin’s earlier alibi, consistent with his revised account, and of course wholly inconsistent with Percival’s retained alibi, which put him and Alvin together at Alvin’s home when Alvin was in the centre of Southend and put him, Walsh and Griffiths and Alvin altogether at a time when Alvin was giving a different account. After all, Percival’s case, which had to be contrasted with Alvin’s, was that there was no meeting in the allotments, no plan for a robbery involving the three protagonists, and that he and Alvin were together with Walsh and Griffiths at the time highlighted in the disputed alibi. If therefore the judge was to give a comprehensive direction on what was independently capable of supporting Alvin’s evidence on the murder, it would have been a complex direction to have given, and was quite capable of going awry.

[99]As it was, despite the judge’s agreed proposal at the time of his discussion with counsel, in the end, possibly because of what emerged from final speeches, but we cannot be sure about that, the judge, while remaining with his decision that no corroboration was required (see R v. Makanjuola

[1995] 2 Cr App R 469

, and there is no complaint about that) did after all tell the jury to be on the look-out for supporting material. But equally, he did (contrary to Mr Owen’s broad negative submission) direct the jury’s attention to those aspects of the evidence which could provide independent support to Alvin’s account.

[100]Thus, he referred to the evidence of the neighbours (“things that go bump in the night”). In that context he referred to Osborne’s evidence, by way of example, as “such an important piece of evidence” that the jury should consider it: but he made it clear that “what weight you attach to it is entirely up to you” and that part of its importance was that the jury should “get all the material. What you do with the material is entirely up to you.” He also referred to the potential significance of Spendiff-Smith’s evidence about the gun and skunk farm robbery, in these terms:

“This evidence, if it is true and if you are able to place reliance on it, is potentially highly significant although this is precisely what you are here to do, to make assessments about evidence such as this because if Dean Boshell had possession of that revolver and took it out with him on the night of the job to rob the skunk farm with its three rounds of ammunition, but such a gun was never recovered from the scene, although three rounds of ammunition were, it does…fit with Alvin’s account, or may fit with Alvin’s account, of how a gun of this type used to kill Boshell, the expert speaks of a Colt revolver being used, might have been present at the scene. Also, if Boshell had in fact taken it from its hiding place on the allotments earlier it might explain why Ricky Percival might have been in a rage, but all that depends upon whether you believe the evidence or not, whether you think it is sufficiently reliable for you to act upon it.”

That is, in our view, an impeccable direction.

[101]Another example is the evidence of Alvin’s wife, Claire, albeit it could be said that a wife’s evidence is not entirely independent.

The judge said:

“She gives evidence in a number of what may be significant areas, if you believe her, supporting her husband’s version. She told you how close Dean and Damon were…The account you get is he is almost, but not quite, part of the family… She also supports her husband’s account with regard to his movements on the night of the killing…”

The judge then spoke of the call from Alvin to her from the telephone kiosk at 2348, and her collecting him, as asked, from Walsh’s house, and his remaining the rest of the night with her (all matters on which she was strongly cross-examined but remained firm). The judge also reminded the jury of her detailed evidence about what she knew about the circumstances of the first trial and the role of Mrs Blyth-Cook, eg that the latter would not say anything against the advice of Alvin’s counsel in their presence, but “telling her privately that Damon should carry on with trial because he would get off on appeal”.

[102]But the judge was also conscious of her role as, in Mr Bright’s words, “a career gangster’s moll”. “She seemed to turn a blind eye to their activities so that she could enjoy the fruits of their criminal labours. This is worth bearing in mind because you have to judge her credibility.” So again, her value as a potentially independent supportive witness rested on the jury’s evaluation of her and her evidence. The summation was again carefully nuanced.

[103]There was also the cell-site evidence, which was clearly independent evidence, and was presented as evidence which supported Alvin’s new account, for all that it could also be said that his account was wound about it. Moroever, Alvin’s new account of his whereabouts could not be divorced from Percival’s inconsistent account, for Percival’s alibi depended in part on him and Alvin being together.

[104]There were also minor prosecution witnesses who were able to throw some helpful light on Alvin’s allegations that Percival had tried to nobble the jury at the first trial. The judge referred to their evidence as “significant”. Perhaps more important was the light that Alvin’s leading counsel at his first trial, Mr Black, was able to throw on the circumstances in which Alvin accepted his guilt on the conspiracy charge but came to throw new light on the murder of Boshell. The judge described that as “a firsthand and unquestioned account of how his change of position developed”. Mr Black’s evidence also covered aspects of the jury tampering attempts. The judge did not perhaps use the expression of saying that Mr Black’s evidence was capable of being independent supporting material, but the jury could not have understood it in any other way.

[105]There was also the important evidence relating to the Tretton shooting. In that respect, Alvin’s account could not be attacked as being dependent on access to all the prosecution documents. The judge therefore directed the jury that they might want to start with the Tretton shooting, which in any event had occurred earlier. He said this, towards the end of his summing-up:

“You may find it helpful to approach the evidence in this way; you have the huge conflict between Alvin’s evidence and the rest that is raised against him, with some supporting evidence in the middle. You may feel that a sensible approach would be to start chronologically, start in fact with the Tretton shooting, because that is an area in the case where there is significant evidence not just from Alvin, not just from civilian witnesses, but also from the police in relation to their interviews with Ricky Percival and the interviews that he gave when he was initially arrested and there is material in the Boshell contact sheets as well. It is an area in the case where you have perhaps the greatest volume of material to resolve an issue. So perhaps start there. Then work away from there, if you have resolved that, because if you make decisions in relation to Tretton you can carry those decisions or the impact of those decisions forward. That means quite simply this: if you have found, for example Alvin to be credible and reliable in what he has told you about the Trettons, then when you go on to consider the next matter, Wickford, if that is the route you take, or wherever you next go, you carry him forward as a witness with credibility intact. On the other hand, if, when you consider Trettons, your judgment is his credibility is shot to pieces, you are not going to hang a cat on his word, then you carry forward to the next case the fact that you have discredited him.”

But the judge also went on immediately to warn the jury that they should not assume that an adverse finding in one area meant the same in another area with its own evidence.

[106]In sum, we do not accept Mr Owen’s first major criticism of the judge’s summing-up in relation to the possibility of corroborative evidence. We find that the judge did properly present to the jury those aspects of the evidence which could be called (to a greater or lesser degree) independent supportive material, while constantly reminding them also that, particularly where the Boshell murder was concerned (and less so in the case of the Tretton shooting), so much depended on their evaluation of Alvin’s credibility.

[107]As for Alvin’s credibility, we do not accept the criticism that it was improperly bolstered or boosted. We have set out in detail the significant passage from the judge’s summing-up of which complaint is made by Mr Owen: although there is some repetitive comment engendered by the judge’s concern always to balance one side with the other, we find that what was said in Alvin’s favour could properly be said, and that it was matched by the judge’s forthright remarks about his lifetime of crime, his deviousness and the dangers of plausibility. Moreover, even outside the passage on which attention is focussed, the judge maintained a constant refrain in which he kept before the jury the critical issue of whether the jury could trust a man like Alvin whose past was as it was and who had also shown himself to be adept in deceit.

[108]The judge was also fair in what he said about Alvin’s decision to assist the prosecution, the consequences of it, and the self-interest and dangers of it. Although the judge mistakenly focussed on 7 October 2005, but naturally enough as the date of Alvin’s formal acquittal and perhaps forgetting that his debrief had started on 6 October, nevertheless what the judge said was fair and, in the overall scheme of things, accurate. As from the CPS letter to Alvin of 30 September, he was no longer at peril on the murder charge. Therefore, when he started his debrief on 6 October and on that day confessed to his role in the Tretton shooting, he was putting himself in new peril of punishment. Moreover, the judge made plain that his punishment would be likely to be mitigated by his evidence against Percival, and the jury were wholly alive to that. In that connection the judge was right to counterbalance the value of such mitigation with the credibility of Alvin’s evidence. The jury knew, but were anyway entitled to be reminded of what would happen if Alvin did not co-operate or was not believed. They knew, and were entitled to be told, that the incentive to tell the truth and be believed was balanced by any incentive to lie. If, as was the case, Alvin was not cross-examined on much of his detail, that was the fact. If, as was also the case, there was a wholesale (Mr Owen’s “broad-side”) attack on his credibility and criminality, including the charges that his account of Percival’s character merely held up a mirror to his own and that he was himself guilty of Boshell’s murder, the jury were well apprised of that.

[109]We refer in passing to merely some of the numerous references throughout his summing-up which show that the judge kept before the jury the essential question-mark which hung over Alvin’s evidence. For instance, commenting on the jigsaw aspect of the murder case, the judge said:

“It is wholly dependent, of course, upon Alvin telling the truth. If Alvin is having you over then there is not a case against Percival on the murder.”

We have already referred above to the judge’s comment in introducing Percival’s case that “If you are not satisfied so that you are sure that Alvin’s account is the truth then the case against Percival collapses.” As for the Tretton shooting,

the judge said:

“If you are to convict him of the Tretton shootings it must be because you are satisfied so that you are sure that Alvin has told you the truth about his involvement.”

He commented to similar effect about the conspiracy to pervert the course of justice charge – “it rests entirely upon the evidence of Alvin”. As for Alvin’s character, the judge was equally persistent in reminding the jury of it. He said “the two central characters are, on all the evidence we have, living in the centre of this world of reprehensible conduct”. As for the Tretton shooting, he commented:

“Although there was no discussion of guns, Alvin knew that Percival would carry them on work and that did not put Alvin off joining in”

. We have referred to the judge’s comment that the jury had heard of the matters “which generally show him to be of a violent and dishonest disposition”.

[110]We therefore reject these grounds of appeal.

Ground G: The Osborne point

[111]We accept for the sake of argument that if the judge had known of Mr Osborne’s lies about his service in the Royal Marines, he would not have admitted his hearsay statement. We also accept that the judge would have been understood as telling the jury that they might have regarded Mr Osborne’s evidence, had they heard of it only after the trial, as important.

[112]However, its limitations and its context must be understood. The judge presented Mr Osborne’s evidence, as it was then known, with all its flaws. He would not come from Spain to assist in the trial. He was wanted here on a sex offence. His immediate house to house enquiry report said only that he “half thinks he may have heard a bang” at 2300 to 2330. His reference to two to three shots, and his ascribing his knowledge of gunfire to his time with the marines, came only in his subsequent statements. Each subsequent statement became more positive and embroidered the matter more. These discrepancies would have been well drawn to the attention of the jury. It was for these reasons that the judge went so far as to tell the jury:

“If you think this man is worthless and his account is worthless disregard it, do not put it in the scales.”

At its highest, there might have been “a grain of truth in it”. Even after all we now know, that remains the position.

[113]So much for the limitations of that evidence. However, there was also its context. For the main part, the other neighbour witnesses spoke of sounds or lights at about the same period, in particular Mrs Bramzel and Mr and Mrs Faulkner (see para 57 above). None of the other oral witnesses spoke of the sound of gunfire that night. Even Mrs Andryas, who spoke of a single very loud bang like a firework at about 0200, spoke also of noises at about 2300.

[114]There was also support for the evidence of witnesses as to goings on in the allotments before midnight in the general evidence of the telephone timings, in the evidence about the skunk farm plan, in Alvin’s presence in central Southend to pick up Boshell, and in the alibi which had been planned for the time up to midnight in the early days of the investigation, almost immediately after the murder, and long before the protagonists knew the shape of the case available to the prosecution. It is suggested that it is mere happenstance that Alvin and Percival and the others gave alibi evidence in their early witness statements for the evening up to midnight of 27 February 2001. However, it is not. Percival’s witness statement dated 3 March 2001 reads:

“I have been asked what I have done this week…The only night this week I remember is Tuesday night 27 [February] 2001…I can say that the only reason I recall Tuesday night is because when I spoke to Damon he said the police had spoken to him about Dean’s murder and he had said that, otherwise I would not recall it.”

Percival here was not responding to a specific allegation about a particular day or time; he was creating a (false) alibi for a particular day and time.

[115]Plainly, the jury did not know everything there was to be known against Osborne and his evidence. Nevertheless, the importance of his evidence can be greatly exaggerated. It would have been more serious had the Crown been presenting its case on the basis that timing at 2300/2330 showed Alvin to be truthful, rather than that Alvin was truthful and therefore the murder occurred when he said he did, which other evidence to a modest degree supported. We will consider the safety of the convictions below.

Ground H: The Spendiff-Smith point

[116]It is acknowledged that the judge misstated the total effect of Spendiff-Smith’s evidence concerning the threatening phone-call at 2330/2400 on 27 February 2001; and that the judge’s comment that “something of significance may have happened prior to or around the time of midnight” was therefore uncalled for. In the circumstances, the possible over-emphasis on Osborne’s evidence and its timing also has to be borne in mind as not unconnected.

[117]Nevertheless, we do not think that this error is a serious one in the context of the case as a whole. We have already made the point that the prosecution case was that Alvin was a credible witness, rather than that the murder was timed at before midnight and therefore Alvin was to be believed. The credibility of Spendiff-Smith on the matter of the phone-calls was in any event in tatters, given his tergiversations on the subject. However, the telephone evidence which lay in the background, unused (see at para 69 above), shows that his final evidence that there was at any rate one threatening call, from an anonymous caller, on either 28 February or 1 March 2001, was probably sound. Moreover, his evidence about Boshell and the gun and the planned raid on the skunk farm and Boshell going to meet his “brother” (Alvin) in the centre of Southend was important evidence, and he was firm about that.

[118]We do not therefore think that this was a significant error.

The safety of the convictions

[119]In summary, it can be shown that there were three errors in the summing-up: subsequent evidence has shown that Osborne’s evidence might well not have been admitted and that he lied in his exaggerations about his career in the Royal Marines; the judge therefore probably over-emphasised the importance of his evidence; and the judge misstated Spendiff-Smith’s evidence about the phone-call and the significance of its timing.

[120]Nevertheless, we are entirely satisfied that these errors, as far as they went, in no way affect the safety of Percival’s convictions. The essential issue for the jury was as to the credibility of Alvin’s evidence. There is no doubt that the prosecution presented the case in that way, that the defence attacked the Crown case by attacking Alvin’s credibility, and that the judge summed up to the jury by making it crystal clear that that was the issue on which the whole case turned. There was significant support for Alvin’s evidence with respect to the Tretton shooting: not only in Percival’s lies at interview, and in his false alibi which his two would-be alibi witnesses did not support, but also in the highly significant evidence about the alleged “blue eyes” of the gunman, which, if rejected, as it was, was very destructive to Percival’s case. If the jury rejected his account of having no complicity in the Tretton shooting, his attempt to throw the blame of the Boshell murder on Alvin would have started very much one down. Although there was less obvious evidence to support Alvin’s account on the murder charge, nevertheless the case as a whole had a richness which made that account highly believable: such as his closeness to Boshell, the plan for the three protagonists to raid the skunk farm that night, the gun and three bullets which Boshell showed to Mr Spendiff-Smith and claimed to have been acquired from Percival, and the fact that Percival and Alvin had from the very beginning chosen to provide an alibi for what one would suppose to be the critical part of the night. That alibi was exploded so far as Alvin was concerned by the cell-site evidence: but that evidence was in its way equally damaging to Percival, in the light of Alvin’s account, in circumstances where Percival maintained a false account of an alibi in the presence of Alvin. The rejection of the defence’s reliance on Campbell and Brown was also destructive.

[121]It is said that Alvin is a clever man and that Percival with his IQ of 77 was no match for him. It is said that the judge had to be reminded to remind the jury as to the medical evidence about Percival’s low intellectual attainments. However, the jury could make up their own minds about that. We have been provided on this appeal with Percival’s personal lengthy and detailed notes in manuscript in which he raises issues in his own defence and in attack upon Alvin. We have considered those notes, and they display no lack of sophisticated awareness about the ramifications of his trial and appeal.

[122]Alvin was eleven days in the witness-box, and Percival five days. Where the issue of Alvin’s credibility was so well drawn to the jury’s attention, and so obvious in itself, where Percival’s case was the mirror image of Alvin’s, and where the issue was so much within the province of the jury, it would not be right for this court to interfere with the jury’s convictions on the ground that they were unsafe because of the comparatively insignificant errors which this appeal has brought to light. On the contrary, we consider that the convictions are entirely safe. We therefore dismiss Percival’s appeal against conviction.

Walsh’s appeal against conviction

[123]Kevin Walsh has an appeal from his conviction with Percival and Griffiths (and Alvin) on the charge of conspiracy to pervert the course of justice. The submissions track those of Percival’s above. Walsh did not give evidence. In our judgment, and for the same reasons, we dismiss Walsh’s appeal against conviction.

Percival’s appeal against sentence

[124]Percival was sentenced on the murder charge to a mandatory term of life imprisonment, with a minimum term of 26 years. He fell to be sentenced with regard to the principles set out in schedules 21 and 22 of the Criminal Justice Act 2003 but subject to the practice in existence at the time of the murder in February 2001: see R v. Sullivan

[2004] EWCA 1762

[2005] 1 Cr App R 3

. He also received concurrent determinate sentences of 22 years (ie 11 years to serve) for the three attempted murders and 5 years for the conspiracy charge.

[125]Percival had already served two years in custody at the time of sentence. Therefore when the judge fixed on a minimum term of 26 years in respect of the life sentence, he was thinking of 28 years, having taken into account all matters of aggravation and mitigation. Mr Owen submits that this was just too high a starting-point, and suggested that the judge was too much influenced by the 30 year starting point under the 2003 Act for murders committed with the use of firearms. Mr Owen submitted that the proper sentence should have been in the region of 22/24 years, say 23 years, not 26 (although whether that was before or after the two year reduction for the period on remand is not quite clear to us). He referred to R v. Vincent and Smith

[2007] EWCA Crim 3

(26 January 2007) as a worse case in which this court had reduced minimum term sentences of 30 and 25 years to 25 and 22 years (less time on remand). That case concerned a drive-by shooting, a planned execution. Mr Owen contrasted that with the much more spontaneous killing which appears to have occurred in the present case. Hughes LJ said that it was likely that the judge there was influenced, however much he sought not to be, by the new and significantly increased starting points created by the 2003 Act (at para 49).

[126]However, we are satisfied that the minimum term of 26 years, or 28 years before the remand period was taken into account, was entirely justified. There was no mitigation. The killing was aggravated by the use of ammonia and the execution of the victim at close range, albeit, as we would accept, in anger rather than planned calculation. If the murder had stood by itself, we could acknowledge that the judge’s sentence was probably somewhat high. However, the murder did not stand by itself. There was, inter alia, the Tretton shooting with its three attempted murders, only brought to an end by the jamming of the shotgun, pre-planned as a matter of revenge. Mr Owen submitted that the murder and the attempted murders should be sentenced entirely separately, so that the judge’s 22 years determinate for the attempted murders could simply stand by themselves. We reject that submission, however. We consider that the murder charge, as the single most serious offence, needed to bear the totality of Percival’s crimes, and that the three attempted murders seriously aggravated the criminality involved. In such circumstances, Percival cannot complain about his sentence. His appeal against sentence is therefore dismissed.

Conclusion

[127]In conclusion, the appeals against conviction of Percival and Walsh are dismissed, as is Percival’s appeal against sentence.