Bell, R. v [2010] EWCA Crim 3

[2010] EWCA Crim 3Case No 2009/01393/B4
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
HIS HONOUR JUDGE PATIENCE QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/01/2010
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE SIMONMR JUSTICE ROYCE
Between
RCrownBellDefendant
Mr A Jenkins QC and Mr R Flach for AppellantMr A Haycroft and Miss E Davison for ProsecutionHearing Hearing dates : 10 th December 2009
Judgment

The Lord Chief Justice of England and Wales:

[1]On 13 February 2009 in the Crown Court at Maidstone before His Honour Judge Patience QC and a jury, the appellant was convicted of murder. On 18 February 2009 he was sentenced to imprisonment for life, with a minimum specified term of 28 years. An appropriate order was made under section 240 of the Criminal Justice Act 2003.[2]The victim of the murder, which took place in April 2006, was a defenceless girl, Terry Edmonds, aged 17. She was sexually assaulted and then strangled with her scarf and smothered. The defendant was charged with her murder. He denied responsibility. One or other of those who had associated with the victim must have been responsible for her death.[3]The trial itself was uneventful. No criticism is made of any ruling by the judge during its course, and none is directed, and none could be directed, at his summing up which was characteristically fair and balanced. The appeal against conviction arises from the fact that this trial was the third trial of the issue. The appellant was convicted following jury disagreements at two earlier trials which took place in April/May 2007 and then January/February 2008 at Maidstone Crown Court. After the first trial the jury was discharged and a re-trial ordered. After the second trial the jury were discharged, and the prosecution indicated an intention to seek a further re-trial. Following objections on behalf of the appellant, on 15 May 2008, in a reserved judgment, Judge Patience dismissed the application that the proceedings should be stayed as an abuse of process. For the purposes of the present appeal it is submitted that the decision of the Crown to seek a third trial was wrong, and that the judge was wrong to reject the “abuse” application. In any event, the appellant appeals against the minimum specified term.[4]The foundation for the submission is that the first two trials had proceeded to and ended with a jury disagreement after the appropriate majority verdict was given. This was not a situation in which either trial had, for whatever reason, such as illness or jury tampering, been brought to an untimely end, or where a conviction at the earlier trial had been quashed by the Court of Appeal. It is accepted on behalf of the appellant that as a matter of law a third trial is not prohibited. The essential argument is that, notwithstanding the absence of any express prohibition, this third trial constituted an abuse of process or an unfair trial, not simply because it was the third trial, but because of a number of specific additional features in the forensic process.[5]We must summarise the essential features of the evidence. Terry Edmunds lived at a hostel in the centre of Tunbridge Wells. The appellant was a 21 year old homeless young man, living rough in Tunbridge Wells. He made his home in stairwell 4 of the Morrison’s car park. He shared it with a friend known as Daz. His former girlfriend explained that only the appellant, Daz and she knew that he kept his clothes in a green suitcase at the very bottom of stairwell 4, where it was tucked away under the stairs out of view. From stairwell 4 there is no exit from the car park to the street. No one can enter the supermarket from it. It was therefore very rarely used.[6]The deceased had many friends. She was accustomed to communicate with them by text, and, by habit, responded very rapidly to any text messages.[7]On 17 April 2006 the deceased had a meal of lamb curry with rice at about 4pm. She arranged to see her boyfriend that evening. At 18.05 she walked to Tunbridge railway station and boarded the train back to Tunbridge Wells. CCTV footage shows that 18.23.19 she left Tunbridge Wells railway station. She was on her way to her hostel, a short distance away. Although she could not have known it, she was walking towards the appellant. She was never seen again. A text was sent to her at 18.34.50. It was never opened, and indeed some 20 texts sent thereafter were also unopened. The appellant was also seen on CCTV footage, coming down the stairs leading to the front of the railway station at Tunbridge Wells at 18.23.21. The routes they were taking made it inevitable that they would meet.[8]The case for the prosecution was that the appellant attacked the deceased between 6.30 and 7.30pm on 17 April 2006. He sexually assaulted strangled and smothered her in the basement of stairwell 4. After she was killed, her body was concealed in the appellant’s suitcase, which was then taken up the stairs and removed to another part of the car park. On 29 April it was found by police officers searching for the deceased, hidden underneath the approach ramp of the car park, behind a wall. The body was fully clothed, curled up in the foetal position, and the deceased’s scarf formed a ligature around her neck.[9]The cause of death was asphyxiation. There were bruises and abrasion marks on the deceased’s back, consistent with being pressed into the ground, and bruising consistent with knees digging into her shoulders during the course of strangulation. She had bled from her nose and from a split lip, but the level of consequent blood contamination would have been small. In addition vaginal and anal bruising and minor anal splits and tears consistent with penile penetration at about the time of death were observed. Debris in her knickers suggested that they had been pulled down, exposing her skin to a dirty area, and then later pulled up trapping debris inside. A hair was found inside her vagina. The pathologist concluded that she had been subjected to a sexual assault before being strangled with her scarf and smothered with a sheet.[10]It was impossible to give a precise time of death, the deceased had died shortly after eating a meal of rice. The contents were still in her stomach. She had died between 2 and 6 hours after consuming the food. The deceased was murdered at the bottom of stairwell 4. Debris on her body linked her with this stairwell, and her blood was found in the basement. The deceased’s belongings were found in a sports bag: so was the pink sheet which was used to smother her. The hooded top which the appellant had been wearing on 17 April was also found.[11]The deceased’s blood was also found on a number of items which the appellant was later to admit belonged to him. The appellant lied when he was first interviewed by the police, asserting that he was not in the car park at the critical time. Eventually he admitted that he was in the car park and indeed present in stairwell 4 during the period between 18.23 and 19.17, a period described at trial as the “lost hour”. Nevertheless he claimed that he was unaware that anything had happened to anyone in the basement of stairwell 4 while he was on the landing area just above the basement, smoking cannabis. On this basis he was sitting some 10 feet or so away from the place where, and virtually certainly at the time when, the deceased was attacked and killed. No less important, the CCTV footage suggested that no one left this area with a suitcase, let alone carrying the suitcase owned by the appellant. The appellant himself was next seen walking back towards the town centre at 19.17.08. The footage shows that he had changed his trousers and he was never again seen wearing the baggy trousers he had been wearing at 18.23, when he was also wearing a second hand pair of trainers, which had been given to him 4 days earlier by his girlfriend on his birthday. They disappeared for several months. The Puffa jacket which he was seen wearing before 18.23 and after 19.17 was not seen again after 20th April.[12]The appellant was spoken to by a police officer in the afternoon of 1 May. He explained his movements. He spoke about the friends he had seen on 17 April. He denied that he had been to the car park, and he said that he knew nothing about any suitcase. He was arrested on 4 May on suspicion of murder. When his clothing was seized it was noted that he had scabs below both knees. The injuries were estimated to have occurred 1 to 2 weeks earlier. He said they were football injuries. He was interviewed under caution. He denied attacking the deceased. He gave an account of his movements on 17 April. He said that his suitcase had been stolen and his clothes emptied from it, but he denied going to the car park during the “lost hour”. On 5 May he was released on bail. The appellant was re-interviewed in July 2006. He was shown the CCTV footage from 17 April. Having seen it, he admitted that he had indeed returned to the stairwell and was there between 6.30 and 7.30 pm. He asserted that he smoked over 7grams of cannabis. As a result he was “stoned”. He denied that he had changed his trousers. He asserted that his trousers and the Puffa jacket he had been wearing that day had gone missing. On 7 August he was charged with murder.[13]On examination, there was moderately strong support for the proposition that the footprint made on the pink sheet which was used to smother the deceased was made by the Converse trainers of the type which the appellant’s girlfriend had given to him for his birthday. There was a bloody substance in the area of the footprint and all over the pink sheet. There was also strong support for the proposition that the debris found on the body of the deceased came from the same source as the pink sheet, but not from the place where the body was found. Flakes of paint on the sheet matched similar flakes found on the top worn by the appellant, his rucksack and his sleeping bag, and they matched sweepings from the basement of the stairwell where the deceased was killed.[14]The hooded top was examined and a blood stain near the waistband was found. Its DNA profile matched that of the deceased. The blood stain was examined more closely. The stain was small and heavy, the size of a raindrop. The blood must have been wet when it was deposited. During the course of the second trial a number of theories were put to the witnesses by the defence in order to seek an explanation for the transfer of wet blood on to it. The forensic scientist, Dr Millington, could not say how it had come to be deposited, and accepted the possibility of indirect transfer. Dr Millington also examined the suitcase in which the deceased’s body was found. A partial DNA profile for its previous owner was found on the lock, but inside there was blood staining from the deceased. The staining on the pink sheet was heavy and this could be explained if the deceased suffered facial injuries and was then smothered with the sheet. A grey Nike hooded top belonging to the appellant was found to have blood and saliva staining likely to have come from the injury to the mouth of the deceased. His sleeping bag had two areas of blood staining which were likely to have been due to the bag coming into contact with the wet blood of the deceased.[15]The knickers worn by the deceased when her body was found were examined. Seminal stains in the crotch contained DNA from two other men, and on the outside front was a small blood stain which contained DNA producing profiles matching those of the deceased and the appellant. External and internal vaginal swabs showed DNA of at least three people other than the deceased herself, and that left six areas containing DNA all of which matched the corresponding components in the profile of the appellant. Again, the witnesses were asked to consider a number of different scenarios to explain how the DNA of the appellant may have been transferred to the deceased or her clothing.[16]Dr Myhill examined the hair found in the labia of the deceased. This was likely to have come from the deceased herself, or from the men whose DNA components were present. Another possible match was the appellant himself. Perhaps more important in the present context, the man who was put forward by the defence at trial as a serious “suspect”, was not. The deceased’s ring contained her DNA. The remaining components matched the profile of the appellant and 25% of the entire population, but again, not this “suspect”. The blood stain on the knickers of the deceased contained DNA matched her profile and that of the appellant, but the DNA had not necessarily arrived there at the same time as the blood.[17]We have not endeavoured to summarise the entire case for the prosecution. We have confined ourselves to the evidence which may be relevant to the issues raised in the appeal. In very brief summary, it is however clear from the CCTV footage that the deceased and the appellant were on what was described as a “collision course” to meet at 6.23 in the car park. Taken with the absence of any further texting, the evidence about the consumption of the deceased last meal suggests very strongly that she died between 6.30 and 7.30 on 17 April. She was killed in the stairwell where the appellant was living and, certainly if she was killed between 6.30 and 7.30, the appellant was present while she was being killed. When first asked the appellant lied to the police, asserting that he was not in the car park at all, but when CCTV footage was shown to him later, entering the car park at 6.23 and leaving it about an hour later, he was obliged to admit that he had been there. He explained this lie on the basis that he had consumed a large quantity of cannabis. There was considerable dispute about whether the evidence of his movements after consuming such a quantity of drugs were consistent with his story, but in the end, that issue seems to us to be of minor importance. Much more important is that the body of the deceased was put into a suitcase owned by the appellant which he kept hidden under his stairs. It was later found in the car park where the appellant had hidden items in the past.[18]There was a mixture of DNA from the deceased and the appellant on the handle of the suitcase. There was no DNA from anyone else on the handle. The pink sheet with which the deceased was smothered belonged to the appellant. The blood of the deceased was found on the top being worn by the appellant that day, and the blood on it must have been deposited while it was still viscous. There was ample evidence linking the appellant with the sexual assault to which the deceased had been subjected. Six DNA components match him alone. His DNA was found in a bloodstain near the crotch of the deceased’s knickers on the front. The pubic hair found was consistent with coming from the appellant, although not conclusive. When arrested there were grazes below each of the appellant’s knees, which were consistent with him straddling her as he assaulted her sexually.[19]It was significant that in the lost hour the appellant changed his trousers. Initially he denied having done so, and then asserted that the trousers had been stolen. The trainers belonging to him were recovered months later and contained inconclusive evidence of blood staining. He was later to tell a friend that he had got rid of the jacket which police were looking for, and another friend, that he knew how to kill someone.[20]The appellant has convictions for violence, and more particularly, there was powerful evidence that he had lured another young girl into the stairwell where the deceased was killed, and there threw her onto the floor and straddled her and started to kiss and touch her. Fortunately for this victim the appellant was disturbed before the incident went any further but it was plainly very similar to the incident involving the deceased.[21]The appellant’s case was that he had not seen the deceased at 6.23 and that he had not lured her into stairwell 4 or attacked or assaulted her in any way. He denied killing the deceased, or putting her body in his suitcase, or wheeling it to take it away from where he lived. He had not told deliberate lies to the police about the “lost hour”. He had forgotten all about it. In any event he did not want the police to know about the cannabis he had consumed. He denied trying to distance himself from any incriminating evidence. He did however agree that if the deceased had indeed been killed during the lost hour, he would have been no more than 10 feet away from her and he ought then to have seen her or the killer. He asserted that he had not seen anyone. Notwithstanding the jury disagreements, we must record our judgment that the evidence to sustain the case for the prosecution that the appellant, not anyone else, was responsible for the murder of the deceased was very powerful indeed.[22]Our view was shared by Judge Patience when he decided that it was appropriate for the third trial to proceed. In his judgment he reflected on a number of decisions from common law jurisdictions including Ireland, The United States of America and Australia as well as to the decisions of The Privy Council and this court. He satisfied himself that the Crown had taken great care in making the decision to proceed with a third trial. He was informed that in addition to the views of the Senior Investigating Officer, the views of the victim’s family had been obtained. He rightly decided that the views of the family could not be “determinative”, but he recorded that they were “neutral”. Before the final decision was made the views of leading and junior counsel and those of a senior CPS advocate had been sought, and that they supported a second re-trial. He analysed the factors which were said to support this view. “Nine factors in favour were set out in Counsel’s note: 1. The guilty should be convicted. 2. Violent crime should be deterred. 3. Confidence in the efficacy of the criminal justice system should be maintained. 4. The instant case was a particularly serious one of alleged murder with a sexual motive, which potentially carried a starting point for the tariff of thirty years, but, if not, one of fifteen years. Four aggravating features as set out in the statute, would fall for the court to consider. There were only two mitigating features. 5. The evidence, although circumstantial and complex, was compelling. 6. Two girls gave evidence of unwanted sexual attention by the defendant on two earlier, separate occasions, thus demonstrating that the defendant presented a danger to young women. 7. The defendant is not prejudiced in the presentation of his defence in that he is not relying on the recollection of witnesses but on a denial of responsibility. 8. There had been no inordinate delay in this case. 9. The defendant has not suffered in his health as a result of standing trial twice.”[23]The judge recorded the contrary balancing factors were drawn to his attention by the Crown. “ The normal convention is not to proceed to a second re-trial even in murder cases because of the strain which has been occasioned to the defendant by the process of two earlier trials. 2. The Crown’s case has been fully argued at two earlier trials and it is unlikely to get any stronger. 3. There is no scope for any further, fresh evidence. 4. The recollections of witnesses as to alleged comments by the defendant may fade, albeit that they can refresh their memories from their witness statements.”[24]The judge added that in argument before him the Crown had suggested not merely that there would be no fresh evidence, but that in view of the fact that no less than 9 experts had been called at the first re-trial, the case might have become “over-complicated and confusing and that less evidence might be called in another trial”. He also considered the submission on behalf of the appellant that there were no particular circumstances which would justify a third trial which would be unfair and oppressive to the defendant and violate his rights under article 6 of the European Convention of Human Rights. The third trial would be simply be a “copy” of the first two, both of which had been surrounded by huge publicity adverse to the defendant. Repeated prosecution on the same facts would be unfair and oppressive.[25]It was submitted by the prosecution that the judge was confined to deciding whether or not the decision of the Crown to proceed to a third trial was reasonable or unreasonable within the ambit of what, for shorthand, were identified as the Wednesbury principles[…]. The judge rejected the submission, acknowledging that the first decision whether a second re-trial was in the public interest should be made by the prosecution, but that it remained open to him to consider that question and decide whether or not the proposed second re-trial would be oppressive and unjust. We agree with the judge. The questions whether the public interest required a second re-trial and whether such a re-trial would be oppressive and unjust were inextricably linked. The Crown rightly addressed both. The decision to proceed was made, as it had to be made, in the round. But once made, the processes of the court were engaged, and the court has exclusive control over those processes. The ultimate question for the judge was whether the interests of justice (which require a fair trial in circumstances which are neither oppressive nor unjust) justified a second re-trial.[26]The judge reflected on all the relevant considerations and concluded that notwithstanding that there would almost certainly be no fresh evidence, so that a second re-trial would indeed replicate much of what had gone on at the previous trial, that feature was “outweighed…by the fact that this is a case of the utmost seriousness, namely, the alleged murder of a defenceless girl for sexual motive and by the strong public interest in the achievement of a positive decision and thus finality, if possible”. He noted that if the Crown decided that less evidence should be called at the second re-trial, it would be possible to ensure that no unfairness or disadvantage would be occasioned to the defendant, because the court could require the Crown to tender any witness it was no longer intended to call. Accordingly a second retrial was appropriate.[27]We have examined the authorities drawn to our attention by Mr Jenkins in his written argument and his measured oral submissions. There is perhaps a danger of overlooking that the appellant was not acquitted at either of the two previous trials. A second re-trial is not an appeal against an acquittal; there has been no verdict. Its purpose is to establish whether the appellant has been proved to be guilty, or whether the true verdict should be that he is not guilty.[28]The principle which applies in this jurisdiction is best encapsulated in the observations of Lord Bingham of Cornhill in Forrester Bowe v The Queen, (a second re-trial for murder) a judgment of the The Privy Council delivered on 10 April 2001, on appeal from the Court of Appeal of The Bahamas. He observed:
“It is a common practice for prosecutors in England and Wales to offer no evidence against a defendant if two previous juries have been unable to agree…but that is no more than a convention, as recognised by the Court of Appeal (Criminal Division) in R v Henworth…it may well be that the prosecuting authorities, having failed to obtain a conviction even by a majority on two occasions, judge that a further trial will not have a reasonable prospect of culminating in a conviction. It is in the first instance for the prosecutor to judge whether, taking account of all relevant considerations, the public interest is better served by offering no evidence or by seeking a further re-trial. There is plainly no rule of law in this country which forbids a prosecutor from seeking a second re-trial…there may of course be cases in which, on their particular facts, a second re-trial may be oppressive and unjust…whether a second re-trial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served. Full account must be taken of the defendant’s interests…account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system… ”
[29]The Court of Appeal (Criminal) Division has endorsed this expression of principle in R v Byrne [2002] EWCA Crim 632and R v Benguit [2005] EWCA Crim 1953. We respectfully suggest that, although the views expressed in a number of other common law jurisdictions on the issue of a second re-trial are of interest, reference to them, and citation from the relevant judgments, cannot alter or undermine the principles required to be applied in this jurisdiction.[30]Turning to the specific consequences of the judge’s decision, and dealing with it broadly, Mr Jenkins’ first complaint was that prior to the third trial the Crown had “honed” their case. They “abandoned” some expert witnesses who had been called at the earlier trials, because, he suggested, they had been subjected to telling cross-examination. His second linked complaint was that the Crown had strengthened evidence from the forensic scientists to answer criticisms made by the defence in cross-examination during the second trial.[31]The Crown suggested that the evidence at the second trial was different from the evidence called at the first trial because at the second trial the appellant’s version of events had itself undergone something of a change. For example, in interview he had not accepted that the sheet had been anything to do with him, nor that the suitcase in which the body was eventually found was his suitcase. Initially he said that he had not gone anywhere near the car park. By the time of the second trial express admissions were made on his behalf about the truth of these matters. Again, in the second trial, Dr Millington was cross-examined on an entirely new basis (a possible tertiary transfer of blood) which was not foreshadowed in the amended defence case statement. In the course of cross-examination she was to say that if she went and conducted experiments she might be able to deal with the suggestions advanced to her on behalf of the defendant. At the conclusion of the second trial she and her colleague had, of their own volition, examined the questions which had been raised, and having carried out the necessary experiments, they concluded that one suggested explanation advanced by the defence for the blood found on the front of the appellant’s sweater could be excluded as a reasonable possibility. These suggestions had not been advanced at the first trial. Accordingly the suggested explanations had not been considered.[32]If the result of the first experiments had been to provide support for the hypothesis advanced on behalf of the defence, that fact would naturally have been disclosed, and would indeed have assisted the defence. As it happened, the reverse was the case. In short the defence hypothesis could have been advanced at the first trial, but was not, and was advanced at the second trial without a sufficient opportunity for scientific analysis to take place. In our view it was obviously sensible for the new hypothesis to be addressed.[33]By the time of the third trial the Crown indicated that they would not call a number of witnesses. As the judge said, it would, if appropriate, be necessary for the Crown to tender them for cross-examination. In fact Mr Jenkins did not seek to cross-examine any of them. We can understand the forensic reasons why not. If they had been called at all they might have served to strengthen the case for the prosecution. Nevertheless he identified specific instances when, according to his submission, the Crown was able to tidy up or hone its case.[34]At the first and second trials Dr Payne-James gave some evidence about the injuries noted on the appellant’s knees. The Crown contended that those injuries had been sustained when he was attempting to have sexual intercourse with the victim. In cross-examination at the second trial, Dr Payne-James agreed that the injuries to the knees were consistent with the appellant’s account that they had occurred during a football game. The Crown did not call Dr Payne-James at the second re-trial, but nevertheless maintained that the injuries had occurred as a result of the appellant seeking to have sexual intercourse with the victim.[35]The Crown submitted that the purpose of calling Dr Payne-James at the first and second trial was to deal with the timing of the victim’s death, based on an examination of the contents of her stomach and the state of her digestion. The evidence went to the time of death, and, of course, the crucial lost hour. On the bases of the digestion alone, the time of death was very wide. The Crown relied on this evidence, but, as we have indicated, supported it by reference to the evidence of the time the victim had left the railway station, and was last seen on the CCTV and no less important, her failure to respond to numerous texts and calls when it was her habit answer them immediately. At the second trial Dr Payne-James had given evidence that the knee injuries were consistent with damage sustained while the appellant was straddling the deceased. He did not suggest that it was conclusive evidence. In cross-examination he agreed that, although he knew nothing about football, it may be possible that if the appellant had landed on both knees at the same time in a straddling position on a hard surface then he might have sustained the knee injuring while playing football.[36]For the purposes of the third trial, the Crown considered that no expert evidence on this issue was needed. These questions could be answered by the jury on the basis of their own knowledge of the world. The Crown was entitled to advance its case that the knee injuries were consistent with the appellant’s guilt: the defence were entitled to explain the injuries by reference to football. No doubt if they required expert evidence to confirm this possibility, Dr Payne-James could have been called and the possibility put to him. That of course might well have resulted in re-examination by the Crown to demonstrate, at the least, an expert view that the knee injuries were consistent with the Crown’s case as well as with he possibility advanced on the defendant’s behalf. For reasons which seem entirely obvious to us, neither side called him.[37]Another issue at trial related to the effect of the consumption of cannabis which, the appellant asserted, he had consumed in substantial quantities and which would have made it much less likely that he would have observed what was going on a short distance away from him in the stairwell during the lost hour. This was a change from the appellant’s initial story. His case was that he had consumed 7 grams of cannabis and therefore could not remember too much about his movements. The Crown had initially considered that it would be helpful for an expert witness to deal with the effects of the consumption of cannabis in such amounts over a short period of time. Accordingly Professor Hindmarsh was called to give his opinion that the evidence of the defendant’s actions, as shown on CCTV footage, after the “lost hour” was inconsistent with the suggestion that the consumption of cannabis had been at such extreme levels that it undermined his ability to remember very much about what had happened. The defence called no contradictory evidence at the first trial, but at the second trial advanced Professor Daniels as a witness to suggest the potential adverse effect on the memory of the appellant of the effects of cannabis. For the purposes of the third trial the Crown considered it more sensible to address the possible impact of the cannabis on the basis of the appellant’s known movements, and through his known movements to establish what he was capable of doing, rather then advancing the opinion of an expert who in the end could do no more than give an opinion of what might be expected of the average individual consuming this amount of cannabis. The Crown offered to tender Professor Hindmarsh for cross-examination. The offer was declined. Professor Daniels was not called by the defence. In our view this issue required no expert evidence.[38]Mr Robert Butler is an expert on forensic imagery and he was called to give evidence that the Converse trainers seen in photographic evidence derived from CCTV footage could have made the marks found on the bloodstained sheet. He never asserted that such an identification could be made. The Crown’s purpose in calling him was to establish that the appellant had changed his trousers, a fact initially denied by the appellant, but admitted after the first trial. The Crown relied on the evidence of the former girlfriend of the appellant who identified the Converse trainers as those she had given him as a present on his birthday 4 days before the killing. Mr Butler accepted that he could not identify the Converse trainers on the basis of photographs, but the Crown asserted, without his evidence, but on the basis of the evidence of the appellant’s former girlfriend, that the trainers seen on the defendant’s feet were Converse trainers which could have produced the marks in the blood.[39]Mr Butler was tendered for cross-examination. The invitation was not taken up, unsurprisingly, because the witness added nothing to the evidence of either side. The only criticism we would advance is that it was unnecessary for him to have been called at either of the earlier trials.[40]We come now a different aspect of the evidence relating to the Converse trainers. As part of the preparation for the third trial, the prosecution served as additional evidence part of the defendant’s evidence at the second trial, and on the basis of that evidence asserted that he admitted that he was in possession of the Converse trainers on the day of the killing.[41]According to the transcript, in his evidence in chief, the appellant was asked whether he had ever had Converse trainers in his possession. He answered that “at some point I did”. He was asked about the training that could be seen in photographs taken on 16 April. He said that he was not sure, “they might be”. He was later asked what had happened to the Converse trainers. He said “they was left by my bed”. The question was put in direct terms “you accept do you not that the very Converse trainers we have seen you owned at some point?” He replied “yes”. Then at a later stage he qualified this evidence. The Crown regarded the admissions about the Converse trainers as important. So, with appropriate notice, it was put before the third jury. At this trial the appellant gave evidence that his earlier answers arose from some confusion in his mind caused by the questions, and he in effect, withdrew such admissions as he had made.[42]Perhaps because of the nature of the appeal process, we are unable to attach very much weight at all to this issue. The significant point was that the evidence of the appellant himself at the second trial appeared to confirm the evidence of his girlfriend. But in the end it was not of huge importance. Converse trainers are not rare items. Even if the appellant owned Converse trainers, there was no conclusive evidence that the trainers which caused the marks were his trainers.[43]In general terms, in the course of a second re-trial, as indeed in the course of a first re-trial, cross-examination of a defendant about evidence given on a previous occasion may be entirely proper, not least because it is not unknown for the evidence of some defendants to undergo something of a sea change. There will be occasions when, in the course of an earlier trial, the defendant will admit matters in evidence which have earlier been denied, and which go to the heart of the case. To take an extreme example, at the first trial there may be a huge “identification” issue which in the end is resolved when the defendant admits his presence on the relevant occasion. Unless he is prepared to make an open admission before the start of a second or subsequent trial, the Crown would be entitled to serve as additional evidence the admissions by the defendant was he was indeed present. The issue of the Converse trainers had no such dramatic importance. Our concern is not so much with any possible unfairness of this process (because we can detect none) but whether this evidence added significant strength to the Crown’s case. Although we doubt that it did, if we are right, its deployment was unnecessary rather than oppressive.[44]The scientific evidence called at the second re-trial was undoubtedly stronger than it had been at the first re-trial. That, however, was because the defence had managed to raise possibilities to explain the way in which the appellant’s clothing may have been innocently contaminated with the deceased’s blood. But, in reality, what all this comes to, is that these experts were invited to consider what in the end proved to be merely theoretical possibilities consistent with innocence which they had not had a proper opportunity to examine before the first retrial. That did not amount to a deficiency in the prosecution’s case: it merely meant that, bearing in mind their responsibility as experts, the witnesses could not demolish an unevidenced hypothesis, itself unsupported by any defence evidence. We can see nothing oppressive in these experts taking advantage of the opportunity to examine and confirm or refute, as the case may be, a hypothesis advanced by either side, and for the court of trial to be fully informed of their conclusions. Conclusion[45]Unlike the judge, who was making his decision in advance of the second re-trial, we have examined not only the basis of his decision (about which in our judgment there can be no criticism whatever) but also whether, in the result, the effect of his decision was to produce an unfair trial or, to use more familiar language, oppressive or unjust. Our conclusion is uncomplicated. We can see none. The second re-trial was, of course, different in some respects from the first re-trial, and indeed the original trial. The Crown’s case was better focussed, and there was less unnecessary reliance on expert evidence. But the more efficient presentation of the critical evidence did not deprive the defence of any evidence which it may have sought to obtain from the expert witnesses, and as we have said, we can see no criticism whatever on the grounds of unfairness or oppression in the expert witnesses called to give important evidence making further investigations into matter of apparent concern and interest to the defence. We cannot discern any unfairness or oppression. The conviction is safe.[46]We doubt the value of offering further guidance on the circumstances in which a second re-trial may be appropriate. We shall confine ourselves to reminding the Crown that the jurisdiction which permits a second re-trial after two jury disagreements in circumstances like the present must be exercised with extreme caution. The broad public interest in the administration of criminal justice leads us to the clear view that a second re-trial should be confined to the very small number of cases in which the jury is being invited to address a crime of extreme gravity which has undoubtedly occurred (as here) and in which the evidence that the defendant committed the crime (again, as here), on any fair minded objective judgment remains very powerful. Sentence[47]The facts of this dreadful offence speak for themselves. The judge was profoundly concerned by the way in which the deceased had been lured to the stairwell where the appellant lived, where she was subjected to a horrible sexual attack before she was smothered and strangled. He was concerned by the earlier incident in July 2005 which he described as a “foretaste” of what the appellant was to do to the deceased. The judge rightly concluded that the appellant was a danger to young women.[48]He addressed the provisions of schedule 21 of the Criminal Justice Act 2008. He regarded the case as one of particularly high seriousness, attracting an appropriate starting point in determining the minimum term at 30 years. The Judge noted that this was an attack on a stranger, a 17 year old girl living in a hostel, and therefore vulnerable, and also involved the concealment of her body after the killing. He was prepared to regard the absence of premeditation and an intent to kill, and the defendant’s age at the time of the killing as mitigating features.[49]The criticism of the judge’s assessment is that there was no evidence that the deceased was particularly vulnerable for the purposes of paragraph 10(b) of schedule 21, or that she had been lured to the stairwell, and that although the body was concealed in a suitcase, it was concealment of a nature which did not involve any destruction or dismemberment of the victim’s body. Taken together, these errors in the judge’s approach to the aggravating features of the case, produced an end result which was excessive, bearing in mind that there never was any intent to kill, nor any premeditation, and that the appellant was very young.[50]We accept that the victim was not particularly vulnerable because of her age, although it is plain that she was vulnerable in the broadest sense, and we are also prepared to accept that there was no sophisticated concealment or dismemberment of her body. As it seems to us, the judge was entitled on the basis of all the evidence, including the evidence of the victim of the attack in 2005, to conclude that the deceased had been lured to the appellant’s stairwell. This view is reinforced in our judgment by the impossibility of explaining any reason why she might otherwise have gone back to it with him when she was on her way to her hostel prior to meeting her boyfriend. The victim was in a vulnerable position, albeit not on the basis of age alone, and although the concealment was unsophisticated, the body of the deceased after the killing was, in an endeavour by the appellant to avoid the consequences of the dreadful crime he committed, stuffed into a suitcase and taken away from the scene. These considerations are all relevant to the seriousness of the offence. Although we acknowledge that the appellant is a young man, and that there was no long premeditation, it is clear that he intended to commit a serious sexual crime, and although we are inclined to agree that he did not long premeditate death, by the time he strangled her, it is difficult to see that he did not intend to kill her. The level of culpability was not diminished by his youth, and the minimum term ordered by the judge broadly reflected the essential features of the crime.[51]Accordingly the appeal against sentence is dismissed.

Cited in 14 later judgments

and 5 more of the most senior