Jackson v R. [2011] EWCA Crim 1870

[2011] EWCA Crim 1870Case No 201002220 D4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
the Crown Court at Norwich before Underhill J
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/07/2011
Before
LORD JUSTICE PITCHFORDMR JUSTICE DAVISMR JUSTICE RYDER
Between
ROYSTON JACKSONAppellantREGINARespondent
W Taylor QC and T Bowden (instructed by Metcalfe, Copeman & Pettefar - Solicitors) for AppellantT G Spencer QC and C Morgan (instructed by CPS Norwich, Norfolk) for RespondentHearing Hearing date: 13 July 2011
Judgment
[1]The applicant, Royston Jackson, (now aged 44 years) was convicted, on 23 March 2011, at Norwich Crown Court before Underhill J, of the murder of Gordon Boon (then aged 73 years). The applicant had previously been convicted of an offence of murder on 28 February 1990. He was sentenced by Underhill J to imprisonment for life with a whole life term ordered under section 269 (4) of the Criminal Justice Act 2003.[2]The applicant now seeks permission to appeal against his conviction. There are two grounds of appeal:(1) The trial judge wrongly admitted in evidence the applicant’s previous conviction for murder;(2) Two other men featured in the police investigation. It is the applicant’s case that an officer in the case, DS Hopkinson, inaccurately stated in evidence that, in effect, these men had been eliminated from the investigation; prosecution counsel compounded the error by repeating the same assertion in his final speech. The prosecution case was circumstantial and, the applicant submits, the case for the prosecution was weak. The effect of these two errors either singly or viewed together had such a prejudicial effect on the fairness of the trial that the verdict is unsafe. We have been assisted by Mr Taylor QC and Bowden for the appellant, who also represented him at trial; and by Mr Spencer QC and Mr Morgan for the respondent, who prosecuted at trial. We grant leave to appeal and henceforth shall refer to Mr Jackson as the appellant. The circumstantial case

The circumstantial case

[3]It is first necessary to identify the strands of the prosecution case. They comprised: i) The background of the relationship between the deceased and the appellant and the chronology of the appellant’s admitted movements; ii) CCTV and cell site evidence which, it was submitted, established movements which implicated the appellant in the killing; iii) Scientific analysis of blood flakes found in the appellant’s car, and fibres and other material found on the deceased’s clothing which, it was submitted, connected the appellant with the killing; iv) The appellant’s suspicious behaviour after the killing.[4]The deceased man had convictions for sexual offences. The defence made the point that there may have been several unknown people who may have had a motive to harm Gordon Boon. He had an interest in pornography including bondage. This is relevant to the prosecution’s assertion that there may have been a sexual motive for the killing. In 2006 the deceased and the appellant were released from prison under licence from sentences of imprisonment. They were lodged at the John Boag Hostel in Norwich where they got to know one another. They both moved out of the hostel in 2008, Mr Boon to warden assisted accommodation at 19 Helgate Court and the appellant to a flat at 16 Pettus Road, Norwich. They continued to keep in touch and the appellant was an occasional visitor. He told the police that he had visited Mr Boon at Helgate Court on about six occasions. He had acquired a parking permit for Helgate Court which was useful, he said, when he went shopping and called on Mr Boon.[5]On Monday 6 October 2008 Mr Boon’s body was found clothed only in a T-shirt, vest and boxer shorts, concealed beneath some fencing panels near woodland in Rabbit Lane, Great Witchingham, some 6 miles outside Norwich. He had been strangled. The site where the body was found is close to the Bernard Matthews turkey processing factory and headquarters, an area known to the appellant. The appellant was employed as a turkey catcher and had admittedly visited the area for a job interview within the preceding eight weeks.[6]On 13 October 2008 a SIM card and a broken mobile handset (221) belonging to the deceased were found, together with the deceased’s credit cards, by employees of the local authority who were cutting grass in Eaton Park, about 110 metres from the appellant’s flat in Pettus Road.[7]The last confirmed sighting of the deceased was by his probation officer at 10.00 am on Friday 3 October 2008. He was reported missing by his son on 4 October. When entry was gained to his flat his television was switched on, and a partially consumed cup of coffee and a newspaper dated 3 October remained on the coffee table. A small black shoulder bag which Mr Boon habitually carried with him was found near the front door. It was the prosecution case that Mr Boon died on the night of 3 - 4 October.[8]At 8.59 pm on 3 October the appellant used his mobile phone (270) to call Mr Boon on his mobile phone (221). At 9.29 pm the appellant’s Ford Galaxy motorcar was captured by an automatic number plate recognition device travelling towards Norwich city centre along the A1074 Dereham Road. At 9.30 pm the car was seen by CCTV travelling in the same direction, some 5 minutes away from Mr Boon’s home at Helgate Court. At 9.33 pm the appellant again telephoned Mr Boon using a cell site serving Helgate Court. The appellant was later to say in interview under caution that he visited Mr Boon that evening at about 9.30 to collect a DVD borrowed by Mr Boon. He phoned in advance to say “I am almost there”. The appellant’s case at trial, founded upon his replies in interview, was that he left Mr Boon outside his flat having picked up the DVD.[9]Mr Boon’s mobile phone made no calls after 9.30 pm on 3 October. At 9.49.03 pm a vehicle which the prosecution asserted was the appellant’s Ford Galaxy was captured by the same CCTV camera returning westward along the A1074 Dereham Road. There was, in the opinion of Matthew Cass, an image expert, a passenger sitting in the front passenger seat. This evidence was challenged on behalf of the appellant but no expert evidence on the subject was adduced on his behalf. The CCTV evidence was interpreted by Mr Cass who reached the conclusion that the vehicle was a pre-2007 model Ford Galaxy by a process of deduction based upon the appearance of the wheel trim, headlights and grill badge of the vehicle. The CCTV film showed the position of a tax disc which appeared to match the appellant’s vehicle, although it was located in the standard position on the lower nearside of the windscreen. Thirty six seconds after the westward journey timed at 9.49.03 pm another vehicle passed the camera in the same direction which also appeared to be a pre-2007 Ford Galaxy. There was, it was agreed, no passenger in that vehicle. Mr Cass concluded that the appellant’s Ford Galaxy was a better match for the vehicle recorded at 9.49.03 pm than for the vehicle recorded at 9.49.39 pm. There was a consistency in headlight and tax disc holder shape, and the wheel trim appeared to match the 9.49.03 pm vehicle. He did not, however, express certainty. As to the passenger in the 9.49.03 pm recording, Mr Cass expressed the view that the person was white or of light skin tone, and appeared to be wearing a T-shirt or a shirt with the sleeves rolled up. In order to arrive at his conclusions Mr Cass performed reconstructions with the appellant’s vehicle, another Ford Galaxy of a similar age, a Seat Alhambra, a Volkswagen Sharan and a Chrysler Voyager. The vehicles were photographed with the same CCTV camera. Mr Cass agreed that he did not know the speeds at which the 9.49.03 pm and 9.49.39 pm vehicles were travelling. The speed could make a difference to the appearance of the wheel trim. The jury viewed the CCTV recording on more than one occasion and were provided with a series of still photographs in their bundles.[10]At 12.41 am on 4 October a second mobile phone owned by Mr Boon (956) made a data download. When it did so it used a cell site which served Pettus Road and Eaton Park. That phone was never recovered. At 2.30 am precisely the 221 phone received an automatic check from Vodafone. It was using a cell site which served Pettus Road and Eaton Park. There was a 70% probability that the phone was within the zone which included Pettus Road and Eaton Park. The phone was, as we have said, later found in Eaton Park.[11]At 1.04 am and 5.32 am the appellant made visits in his Ford Galaxy motorcar alone to the Tesco service station in Fiveways, Norwich.[12]Between 8.56 am and 3.55 pm the appellant used his mobile phone (270) using a cell site consistent with his presence in Pettus Road. There was, however, no telephone traffic to or from 270 for the following three hours.[13]Between 9.00 am and 10.00 am on 4 October Mr Boon’s son, Philip, attempted to reach his father by telephone. He obtained no reply and later told the police his father’s phone was switched off (there was a record of a voicemail call to the 956 phone at 9.40 am). He therefore went to his father’s flat at 10.00 – 10.30 am but could obtain no response. Mr Boon went off to check his father’s usual haunts and returned between 11.15 am and 12 noon. Having failed to find his father or to obtain a response from his father’s flat, he decided to call the police who attended at about 1.30 pm.[14]Although it was the prosecution case that Gordon Boon was killed during the night of 3 – 4 October there was evidence of sightings on the evening of 3 October and the morning of 4 October from three female residents of Helgate Court. Mrs Barnby gave evidence that she saw Mr Boon returning to his flat at a time between 9.15 and 9.30 pm on 3 October. If her timings were accurate, that was some minutes before the appellant arrived in his Galaxy. Mrs Willgrass made a statement on 24 October 2008. She was too unwell to give evidence and her statement was read. Mrs Willgrass said that she visited her GP on the morning of 4 October for her flu jab. She returned at 9.30 am. A few minutes later she saw Gordon (Boon) leaving. She went over and moved her net curtains to confirm that it was him. He was not carrying his bag; he was wearing his white cap. It was 9.45 am. She said in her statement that she had spoken to Mrs Hagon about this sighting. She had also spoken to other residents who had told her that Gordon was supposed to see his son on the morning of 4 October. Mary Hagon was called to give evidence. Mrs Hagon also said that she went to see her doctor for a flu jab at 8.35 am. She then went shopping and returned at 11.00 am. From her flat she saw Gordon going down the path at 11.30 – 11.40 am. He did not have his bag but he was wearing his baseball cap. It was a back view and she was looking through net curtains which covered the window of her door. She had him in sight for 2 – 3 seconds. When the flat was entered at about 1.30 pm two baseball caps were on the back of a chair. Philip Boon recognised one of them as his father’s but he said he had more than one. The curtains were open and the lights were off.[15]This evidence was important to the circumstantial case. If either Mrs Willgrass or Mrs Hagon was accurate as to the date and time of her sighting of Mr Boon, the prosecution case was fatally undermined. Their evidence was, however, difficult to reconcile with that of Mr Philip Boon. The prosecution suggested that these ladies were mistaken and may have been influenced by gossip in the flats at around the time of Mr Boon’s disappearance.[16]The appellant was visited by a police officer at his home at 10.00 am on Sunday, 5 October. He claimed that he had not seen the deceased for a period of 2 – 3 weeks which he changed to a period of at least 4 weeks. On that day he ceased to use his mobile (270) and switched to a second mobile phone to which he had access (521). He was later to tell the police that he had dropped his mobile phone 270 in the mud at work and it developed a fault. At 9.56 am on 6 October the appellant used his second mobile (521) to make a call of 108 seconds duration. It used a cell site which served the general area in which the appellant was working, some 2 -3 miles from the place Mr Boon’s body was found 3 hours later. At 3.49 pm on 7 October 2008 the appellant sent a text message to the deceased’s phone:
“Call me asap on this number. Other phone is playing up. Cheers. Roy.”
The defence relied upon this text as support for a conclusion that the appellant believed Mr Boon to be alive and well. The prosecution suggested that he sent the text in order to give that impression.[17]On 9 October a decision was made to locate and arrest the appellant. He went to work that day leaving his Ford Galaxy at the Cherry Tree Public House in Dereham where he was picked up by work colleagues. He did not return to the car when dropped off after work but was driven to Essex by a relative. The appellant was to say in interview that on his return he noticed activity around his car, took fright since he was on a life licence from prison, and sought help from his relative. The appellant surrendered to the police on Tuesday, 14 October. He told the police in interview that he had taken delivery of a DVD from Mr Boon on the evening of Thursday, 2 or Friday, 3 October. Mr Boon met him outside Helgate Court, climbed into the front passenger seat of the Ford Galaxy, and remained with him for a few minutes only. He said that once Mr Boon had climbed out of the vehicle he drove back to Pettus Road alone and had not seen Mr Boon since. During the weekend of 4 and 5 October the appellant said that he had cleared rubbish from his garden in Pettus Road and disposed of it at a dump near his parents’ home at West Bradenham. He also cleaned his Ford Galaxy inside and out.[18]The Ford Galaxy was examined. Tapings were taken from the interior, front and back. Five flakes of blood were found on four tapings taken from the rear nearside of the vehicle. Two flakes were found on the outer surface of the rear nearside seat belt, and one from the inner surface of the seat belt. A fourth flake was recovered from the back of the rear nearside seat adjoining the boot space. A fifth flake was recovered from the carpet underneath the nearside seat in the middle row. The three flakes taken from the seat belt were combined. The DNA profile produced matched that of Gordon Boon. The remaining two flakes were combined. They produced a partial and almost complete profile which also matched that of Mr Boon.[19]The deceased’s body and clothing were taped in situ. The scientist, Susannah Clarke, found on the tapings a population of fibres containing brown and grey “wavy” polyester fibres. From the back of Mr Boon’s T-shirt she recovered 191 grey fibres and 29 brown fibres. From his boxer shorts she recovered 30 grey and 6 brown fibres. In Ms Clarke’s experience this was not a common combination. Similar fibres and tufts of fibres were recovered when further tapings were undertaken in the laboratory. Three “indistinguishable” grey fibres were recovered from the Ford Galaxy at the base of the driver’s seat, on the front nearside arm rest, and on the back of the middle row of seats. No brown fibres were found in the Galaxy. Recovered from a brick shed at 16 Pettus Road was a pair of tracksuit bottoms (RG/10) which were associated with the appellant by DNA analysis. One “indistinguishable” brown fibre was recovered from RG/10. Also recovered from the appellant’s wardrobe was a fleece which was associated with the appellant by DNA analysis. Susannah Clarke recovered from the fleece two brown fibres and one grey fibre which were indistinguishable from those taken from the deceased’s clothing. The original source of the fibres was not located. Two vacuum cleaners were examined, one recovered from 16 Pettus Road, the other from the appellant’s parents’ home. No relevant grey or brown fibres were found in their contents.[20]Ms Clarke was asked in evidence to assume that the source of the grey fibres on the deceased’s clothing and in the Galaxy was one and the same. Could she explain why there were so few fibres found in the Galaxy? She proffered the following explanations:(1) The Galaxy had been cleaned of many similar fibres; or(2) Contact between the shedding garment and the Galaxy was fleeting; or(3) Fibres within the Galaxy were shed by secondary transfer. The remaining alternative was that the fibres on the deceased’s clothes and in the Galaxy were from different sources. Secondly Ms Clarke was asked to consider the significance of the absence of relevant fibres in the contents of the vacuum cleaners. She offered the following possibilities: (1) The vacuum cleaner had been used to clean the Galaxy but it had since been emptied and re-used before recovery by the police; or (2) A different vacuum cleaner had been used. The third alternative was that the fibres on the deceased’s clothes and in the Galaxy came from different sources. Finally, Ms Clarke was asked to consider why, if they were from the same source as the fibres found on the deceased, there were so few fibres on the tracksuit bottoms (RG/10) and the fleece (RG/18). She suggested the following: (1) The track suit bottoms and fleece had since been used and had shed fibres; or (2) The track suit bottoms and fleece had been exposed to the source for a comparatively fleeting period; or (3) Secondary transfer to the track suit bottoms and fleece. The fourth possibility was that the fibres were not from the same source.[21]Ms Clarke’s opinion was that there was moderately strong support for the contention that the grey and brown fibres recovered from the deceased and the fibres recovered from the Galaxy and the appellant’s clothing had a common source. Ms Clarke conceded that if the source had been an item of Mr Boon’s clothing he could have shed fibres into the Galaxy by the wearer sitting in it. We add that, in that event, the discovery of fibres on the appellant’s clothing could be explained by secondary transfer from the Galaxy to the appellant’s clothing.[22]The deceased’s clothing was also examined by Dr Louisa Marsh. She found, amongst other things, three pieces of green plastic material on Mr Boon’s T-shirt. They were microscopically indistinguishable from similar fragments recovered from a sweeping brush found in the brick shed at 16 Pettus Road. Dr Marsh was prepared to say only that it was more probable than not that the fragments came from the same source. From the hair combing taken from Mr Boon, Dr Marsh recovered, from within a population of 14 gold coloured pieces of metal, three fragments which, when analysed, were shown to be brass. Brass is a compound of copper and zinc whose chemical proportions will vary between one sample and another. In Dr Marsh’s opinion it is highly unlikely that an individual person chosen at random would have brass in his hair. Inside the Galaxy was found a Nike top (CN/2) which was linked to the appellant by DNA analysis. From the Nike top Dr Marsh recovered a similar population of 13 pieces of gold coloured metal. Three of the fragments were chemically analysed and found to be brass of the same chemical composition as those fragments recovered from Mr Boon’s hair combings. Again Dr Marsh concluded that it was probable these brass fragments originated from the same source.[23]The defence called a scientist, Mr David Northcott. He did not challenge the evidence of discovery and analysis of flakes of the deceased’s blood found in the Galaxy. The blood was not wet when deposited and could have been caused to move by a draught of air. It was not possible to age the blood. Mr Northcott criticised Miss Clarke for not carrying out a thin-layer chromatography analysis (“TLC”) of the fibres. She had carried out a microscopic examination through the light spectrum by which she made her first judgement. The fibres could be compared by measuring their rate of absorption of light which measurements could be and were reproduced in graft form by a technical process called microspectometry. Ms Clarke had not carried out TLC because it destroys the integrity of the sample and, in any event, it was the view of her laboratory that the techniques used were accurate. Mr Northcott disagreed. He thought that TLC could have shown up differences between the fibres. Mr Northcott had not, however, himself carried out the TLC test, nor arranged for the prosecution to do so. Mr Northcott agreed that the population of grey and brown fibres recovered from the body probably came from a single source. He did not agree that the majority were wavy as Ms Clarke had described. Ms Clarke explained that the laboratory process may have affected the waviness she had observed. The judge advised the jury to leave out of account any similarity based upon Ms Clarke’s observation of “wavy” fibres. Mr Northcott did agree that on conducting Ms Clarke’s tests the fibres appeared to be indistinguishable. The level of discrimination between fibres of this type was in his opinion low. In Mr Northcott’s view they were “common enough”. It should not be regarded by the jury as a certainty that the fibres came from the same source. He regarded the fibre evidence as of very limited support for the prosecution case. Dr Marsh’s evidence was not challenged.[24]The body of the deceased was examined by a pathologist, Dr Swift, on the day after it was discovered. Dr Swift’s evidence was not in dispute. Mr Boon died from strangulation, either manual or by means of a ligature. He died a period of days before the examination but Dr Swift could not be more precise. He was able to say from the pattern of collection of blood under gravity after death, called “lividity”, that the body had lain on its back for some time after death. When the body was discovered it was lying on its side. The inference was that the body had been moved a significant period after death. There were marks on the neck consistent with a struggle during the act of strangulation. Dr Swift found marks on the right forearm and right leg which suggested that those limbs had been bound while Mr Boon was still alive and the ligature removed after death. Mr Boon had bled from the nose and the neck. There were no defence injuries except perhaps for those on the neck. There could have been sexual activity before death but there were no sexual injuries found on Mr Boon’s body. Strength or weakness of the prosecution case[25]The prosecution thus relied on a number of circumstances which, viewed together, made the evidence against the appellant, as they submitted, compelling. First, there was the unaccountable fact that Mr Boon left his flat with the intention of returning shortly afterwards. He left his TV on and his coffee cup was part full. He left his bag, probably his cap, and his medicine behind. This would be consistent with an intention to meet the appellant fleetingly outside his flat at 9.30 pm on Friday 3 October 2008, a meeting, subject to the evidence of sightings on 4 October, from which he did not return. Second, there was the CCTV recording and Mr Cass’ evidence of the outward journey of the Galaxy with a passenger inside the vehicle. Third, cell site evidence appeared to put both Mr Boon’s mobile telephones outside the area of the best coverage for his own home but within the area of best coverage for the appellant’s home. Fourth, there was no outward call from Mr Boon’s phones after 9.30 pm 3 October 2008. Fifth, one of Mr Boon’s phones was found a short distance from the appellant’s home. Sixth, Mr Boon’s body was found in an area visited by the appellant on at least one previous occasion. Seventh, when he was visited by the police the appellant lied as to his movements on 3 October by claiming that he had not seen Mr Boon for 4 weeks. Eighth, traces of Mr Boon’s dried blood were found in the appellant’s Ford Galaxy even after it had been cleaned. Ninth, there was a link, albeit moderate in strength at best, between fibres found on the deceased’s body and fibres recovered from the appellant’s car and clothing. Tenth, there was a link between material found in combings from the deceased’s hair, the brick shed at the appellant’s home and a jacket recovered from his car.[26]The prosecution was able to submit to the jury that the movements of the defendant, the mobile phone usage and scientific evidence proved that the appellant drove Mr Boon away from Helgate Court, killed him that night and later moved his body to a remote spot where it was later discovered. Contrary to the submission made to us by Mr Taylor we do not accept that this was a weak circumstantial case. In reaching this conclusion we have given full weight to Mr Taylor’s argument that each feature of the scientific evidence viewed in isolation, provided support which was modest at best. However, it must be recalled that the jury’s task was to judge the strength of the case provided by all the circumstances. It was open to them to conclude that the circumstances, temporal and scientific, viewed in combination, could not be explained as mere coincidence consistent with innocence. We are not in the least surprised that Mr Taylor considered himself unable to advance a submission of no case to answer. The appellant himself chose not to give evidence. We turn to consider the grounds of appeal. Admission of bad character evidence[27]We have noted above the probability that two of the deceased’s limbs were bound while he was still alive. This was suggestive of sexual activity, whether consensual or not, before death. On 4 March 2010 the trial judge ruled that the prosecution should be permitted to adduce evidence of sexual advances made by the defendant towards other residents at the John Boag Hostel. The appellant himself, in interview under caution, told the police that he was bisexual. No challenge is made to the judge’s decision to admit this evidence. In advance of trial, on 12 February 2010, the judge was asked to rule upon the prosecution’s application to admit in evidence, under section 101(1)(d) Criminal Justice Act 2003, the appellant’s previous conviction for murder. Mr Spencer represented the prosecution. Counsel for the defendant then instructed, Miss M Baker QC, resisted the application on his behalf. As we have noted, the conviction took place in 1990 when the appellant was in his early 20s and the victim was aged 16. The prosecution did not suggest that the fact of the conviction alone was sufficient to establish a propensity to commit the offence of murder. Mr Spencer relied upon a number of features of the previous murder which were relevant to the facts of the present case. The similarities comprised aspects of previous behaviour and, therefore, propensity which rendered the previous conviction of probative value for the purposes of section 103(1)(a) Criminal Justice Act 2003. As Rose LJ, Vice President, observed in Hanson & Others [2005] EWCA Crim 824; 1 WLR 3169; 2 Cr App R 21 (299) at paragraph 9:
“9. There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where the circumstances demonstrate probative force in relation to the offence charged (compare DPP v P [1991] 2 AC 447 at 46 E 2461 A). ”
[28]The following similarities were recognised by Mr Taylor in argument. Both victims were male and known to the appellant. The disappearance of the deceased followed a social meeting with the appellant. Both victims had suffered strangulation and their clothing had been interfered with. In both cases a vehicle had been used to transport the victim or the body and the sites where the bodies were found were in relatively remote places. In his ruling the judge made clear that not all the similarities might be regarded as probatively significant. At paragraph 19 of his ruling he said:
“19. I can accept that not all of the points made by Mr Spencer have great weight individually but, taking them as a whole, I am satisfied that they do have significant probative force on the question of whether it was the defendant who killed Mr Boon. Without wishing to detract from the importance of other points as part of the overall picture, I would attach particular significance to the fact of strangulation as the method of killing. Looking at the overall picture, the facts on which Mr Spencer seeks to rely show, if they are properly established, that the defendant in the case of Mr Raven, took the victim into his car, attempted to strangle him – it does not seem to me material whether that was the only injury – left him at a remote location, and attempted to remove evidence by cleaning the car inside and out. The removal of his shoes and attempted removal of his jacket and the other interference with the clothes may have been a further attempt to remove evidence of his involvement in the offence, but I do not attach special importance to that. All those features are present in the present case and they do, in my judgment, amount to a substantial similarity to which the jury would be entitled to attach real significance in considering whether the defendant is guilty of the offence charged and which thus, subject to the question of fairness raised by section 101(3), ought to be placed before it.”
[29]The judge proceeded to examine the question whether, notwithstanding the probative value of the evidence, he should exclude it under section 103(3) of the 2003 Act on the grounds, “by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case”. Having considered the decision of the Court of Appeal in Murphy [2006] EWCA Crim 3408 the judge took the view that although the previous conviction concerned events 20 years old there were sufficient similarities between the proved facts of that conviction and the alleged facts in the present case to conclude that the probative value of the evidence had not dissipated with the years. The judge proceeded to consider the impact of the evidence upon the fairness of the proceedings (see section 101(3) Criminal Justice Act 2003 and section 78 Police and Criminal Evidence Act 1984). He acknowledged the risk that the jury would give undue regard to the conviction and not give sufficient regard to the strength or weakness of the prosecution’s circumstantial case. He concluded that with appropriate directions the jury would (paragraph 21):
“have regard to the facts of the previous offence to the extent, and only to the extent, that the particular features of similarity, as proved, will make it more likely that the defendant was indeed guilty of the offence.”
[30]An issue arose as to the ability of the prosecution to prove the circumstances of the earlier murder. The judge indicated that he would not make a formal ruling upon the application at that stage but would rely on the parties to reach agreement if they could. In due course, the relevant evidence was admitted by way of formal admission.[31]Mr Taylor now submits, as did Ms Baker in the Crown Court, that the similarities advanced by the prosecution were superficial. He points to the fact that the victim, Stephen Raven, was aged 16 by comparison with Mr Boon, a 73 year old man. The fact that the appellant was known to both victims was, he submitted, of marginal significance; similarly, a disappearance following a social meeting. Stephen Raven died of multiple injuries mostly caused by blunt impact. It is suggested that the removal of the victim’s clothing was not particularly remarkable especially if the purpose was to dispose of forensic evidence. Stephen Raven’s body was left uncovered and unconcealed in a “lover’s lane”. Gordon Boon was killed in one place and conveyed to another. It was Mr Taylor’s submission in writing, repeated in the same or similar terms several times during oral argument, that the jury could not safely conclude “that the same person is likely to have committed both murders”.[32]We accept Mr Taylor’s close analysis of the facts of each case. However, it seemed to this court that Mr Taylor was proceeding under a misunderstanding of the route by which the bad character evidence was admitted. We do not understand the judge to have admitted the evidence on a “strikingly similar fact” or “signature” basis but as evidence of a propensity to carry out a serious attack by strangulation. Evidence of previous misconduct within the meaning of section 98 Criminal Justice Act 2003 was admissible if (section 101(1)(d)) “it [was] relevant to an important matter in issue between the defendant and the prosecution”. The important matter in issue was the identification of the appellant, by inference from circumstances, as Mr Boon’s killer.[33]By section 103(1)(a) matters in issue between the defendant and the prosecution include the question whether the defendant “has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence”. Section 103(2) provides that a propensity may be established (without prejudice to any other way of doing so) by proof of a previous conviction for an offence of the same description or category; but section 103(3) disapplies subsection (2) if the court is satisfied that, by reason of the length of time since the conviction, or for any other reason, it would be unjust for it to apply in his case. That is plainly, it seems to us, the reason for the judge’s specific examination of section 103(3) and the facts surrounding the previous conviction in the quest for a (properly arguable) prevailing “propensity”. The judge was not looking for striking similarity in the appellant’s previous behaviour but for similarities which, in the words of Rose LJ in Hanson “demonstrate probative force in relation to the offence charged”.[34]We are not persuaded that the judge was wrong to view these circumstances as sufficiently similar to bring probative significance to the previous conviction, notwithstanding its age. It is certainly not a decision which this court could describe as plainly wrong. It is undoubtedly the case, as Mr Taylor submitted, that a previous conviction for murder which bore these similarities with the offence charged was capable of having an adverse effect upon the jury’s objective consideration of the prosecution’s other circumstantial case unless they received careful guidance both as to relevance and the limitations of the evidence. Once the evidence was admitted it was essential that the jury viewed it in its proper perspective, as one only of the circumstances which they were being asked to consider. The judge expressly recognised this need. Provided the jury received such assistance we do not consider that unfairness would result.

The judge addressed the jury upon the subject in his summing up as follows (page 116 F):

“The law does now permit you to hear about previous convictions where they may be relevant. In this case, you have been told about the defendant’s previous conviction for murder because you may consider it relevant to your decision in this case that the defendant is a man capable of committing a murder, and of committing it in this particular way, including the strangling of the victim. Mr Spencer went through various features of the murder of Stephen Raven which he said could be parallels in this case; that they were both male, though he accepted the big age difference; that they were known to each other, this was not the killing of a stranger; that the killing of Stephen Raven started with a social meeting; that a vehicle was used; that there was interference with his clothing; that he was strangled and that he was dumped in what Mr Spencer described as a remote location, though I think he had to accept that it was not remote in the same sense as Rabbit Lane. Mr Taylor you will remember argued that those parallels were only on the surface. Now, members of the jury whether any of the features relied on by Mr Spencer are sufficiently relevant to help you in your decision is a matter for you. If you do not consider them relevant or helpful, you can simply put them out of your mind. Even if you do consider anything relevant, you must certainly not treat that as proving by itself that the defendant is guilty of this murder. That would obviously be a very unfair thing to do. At most, his previous conviction is one factor which you can take into account as part of your consideration of all the evidence in the case. I would advise you to first and foremost focus on the circumstances of this case as I have taken you through them and only when you have thoroughly digested those, feed in the fact, if you find it relevant, that the defendant is a man capable of committing a murder involving strangulation, and with any of the other features referred to by Mr Spencer to which you may attach significance.”
[36]Mr Taylor accepted that he made no application to the judge to discharge the jury once, as he submitted, the prosecution case at the close of the evidence appeared significantly weaker than it did when the judge made his ruling. We have already expressed the view that the prosecution case was far from weak. Had that been a real concern at the time, we would have expected the matter to be raised with the judge. Again, we express no surprise that it was not raised. We observe only that when the prosecution relies upon a circumstantial case whose strength may well depend upon different strands of oral evidence likely to be the subject of significant challenge, it may be prudent to postpone consideration of an application to admit the defendant’s bad character until the strength of the evidence, as adduced, can be properly assessed. The Vice President in Hanson,at paragraph 10, observed that the strength of the prosecution case should always be considered. If there is little or no other evidence against a defendant it is unlikely that it would be just to admit previous convictions, whatever they are.[37]During submissions at an earlier directions hearing, Mr Taylor informed the court that he had no criticism to make of the summing up. At the appeal hearing Mr Taylor has argued that the judge should have gone further in isolating for the jury the arguments he had advanced before the jury as to the superficiality of circumstances common to both killings. As the passage we have extracted demonstrates, the judge summarised the cases respectively for the prosecution and the defence, made clear to the jury that decisions as to the relevance of the similarities contended was for them and drew the jury’s attention specifically to Mr Taylor’s arguments as to their lack of relevance.[38]Mr Taylor had no other criticism to make. We note that the judge did not explicitly invite the jury, first, to decide, whether they were sure the admitted facts of the previous offence established a relevant propensity to commit the offence charged and, if so, second, to assess to what extent that propensity assisted them in their decision whether the appellant had committed the offence charged. The judge adopted a different approach. He reminded the jury that the principal factor on which the prosecution relied was the admitted strangulation of Mr Raven. It was a matter for them to assess whether that, or any other similarity which they found to be present and relevant, assisted them in their judgement whether the appellant was guilty of the offence charged. They were expressly advised to concentrate on the circumstances of the offence charged first, and only then to factor in the relevant context of the previous conviction. They were warned against over-valuing the previous conviction. In our view, in so expressing himself, the judge was tailoring his legal direction to the facts of the case and his choice of words had the effect of elucidating the jury’s task. It was not necessary that the word “propensity” should be used, provided that the relevance of the evidence and the jury’s task was explained, and the caution which they should exercise conveyed. In no sense was the direction unfair or misleading; on the contrary, the judge was adopting an approach which was favourable to the appellant. By informing the jury that they could, depending upon their view, treat the previous conviction as evidence that the appellant was “a man capable of committing a murder involving strangulation” the judge was diminishing its impact and drawing the sting from any risk of prejudice. Prosecution “loose ends”[39]We turn to the second ground of appeal which concerns Mr Taylor’s attempt to utilise some of the unused material to the appellant’s advantage. Three cigarette ends recovered from an ashtray in Mr Boon’s flat were analysed for DNA material. The profiles of two men, James Palgrave and Steven Plitsch, were produced. When interviewed Mr Palgrave said he had no knowledge of Gordon Boon and had not been to his flat. Mr Palgrave said he was an alcoholic who spent his money on alcohol, consuming about 2 ½ bottles of vodka per day. He said that his room adjoined Mr Plitsch’s room at a hostel where they were both resident. Mr Plitsch would frequently scrounge cigarettes and cigarette ends from him. When Mr Plitsch was interviewed, he accepted he had been to Mr Boon’s flat and had borrowed money from him. He had last been to the flat a few days before he heard that Mr Boon had been killed. He said he had no knowledge of the circumstances of Mr Boon’s disappearance. Mr Plitsch suffered schizophrenia and had a drug problem. On 8 October a social worker observed that Mr Plitsch was going downhill.[40]They were asked by the police to account for their movements over the weekend of 3 – 6 October. They could not establish their movements. Mr Palgrave confidently expected that he had been drinking in his room. Included within the unused material were witness statements made by both men together with an officer report from Leslie Payne. On 20 October 2009 Leslie Payne reviewed the evidence gathered by the investigation team into the movements of Palgrave and Plitsch during the weekend of 3 – 6 October. Enquiries were made of the hostel staff, the men’s telephone accounts were obtained and efforts were made to reconstruct their weekend. Having reviewed the evidence Mr Payne concluded as follows:
“It has not been possible at this time to eliminate James Palgrave or Stephen Plitsch from this investigation. This is mainly due to the lifestyle the two men lead. Palgrave is an alcoholic who by all accounts was at the relevant time drinking heavily and would spend most of the time drinking and sleeping. Plitsch was misusing drugs and was having problems with his medication. Neither man is able to account for their movements over the relevant weekend, nor can they suggest anyone who may be able to assist in this matter. Whilst not being able to be eliminated, neither man can be implicated in the murder of Gordon Boon. No link has been found between Palgrave and Boon. Whilst DNA from Palgrave was found at the home of Boon this was found on an object, a cigarette, which in all probability was taken and left there by Plitsch. Palgrave does not have transport and by his own admission is scared of driving probably due to his drink problem. It is likely the murderer of Boon would need transport to take Boon to the deposition site at Great Wichingham. Plitsch has acknowledged an association with Boon, visiting his flat and getting cigarettes from Palgrave. This would indicate the legitimate reason for his DNA to be found on cigarettes at Boon’s home. Plitsch does not have access to transport.”
[41]Mr Taylor requested that Detective Sergeant Hopkinson be tendered for cross-examination. He wished, if possible, among other things, to establish that a photograph of Stephen Plitsch had been showed to the non-residential warden of Helgate Court, Linda McLoughlin. Mrs McLoughlin had given evidence that she had seen a man, whose photograph had been shown to her, loitering around Helgate Court. Mr Taylor wanted to establish the identity of the man in the photograph as Stephen Plitsch. Mr Spencer took exception to Mr Taylor’s questions, suggesting that this was a matter which could have been dealt with by way of admission. The judge, however, permitted the questioning to continue. DS Hopkinson gave evidence that he believed Mr Plitsch’s photograph had been shown to Miss McLoughlin who had identified him as a visitor.[42]In re-examination Mr Spencer asked DS Hopkinson to explain the result of any enquiries made by the police into Messrs Palgrave and Plitsch. He replied “We could find nothing that would implicate either of those two males in the murder of Mr Boon. They were in fact subject to a TIE and what that means is trace, indicate [probably the witness said “implicate”] or eliminate … obviously we were aware that Mr Plitsch had been to that address but we could find nothing that suggested that he was in any way involved in Mr Boon’s disappearance or murder … He was spoken to by police officers. The movements that he gave obviously would be looked into [in] quite a lot of detail over the period of 3 October until 6 October when the body was found. We spoke to numerous witnesses, shops, locations where he would frequent, that type of thing … Mr Palgrave exactly the same. Checks would have been done on him. We could prove that the two men were associates in a hostel, a different hostel, not the John [Boag], another hostel in the city, but as far as anything more than the fact that they lived in the same hostel there was no association between those two males …”[43]Mr Spencer then asked why Mr Palgrave and Mr Plitsch had been “eliminated” from the inquiry. (DS Hopkinson had not, as a matter of fact, suggested that they had been eliminated from the inquiry.) DS Hopkinson explained that no evidence had been found to link them with the murder. Mr Spencer then asked whether either of them had access to a vehicle and DS Hopkinson replied that they did not. He went on to say that to his knowledge they could not drive a motor vehicle either. By that he meant that they had not held a licence to drive. At that stage Mr Taylor made no further application to the judge.[44]On the following day, Tuesday, 16 March 2010, Mr Taylor drew to the attention of the judge the fact that Mr Palgrave had indeed been in possession of a driving licence until he was convicted of drink driving. He did not subsequently apply for the renewal of his licence. Unless this impression was corrected the jury might accept at face value that Mr Palgrave was incapable of driving a car. The judge was sympathetic to Mr Taylor’s concern and agreed that an appropriate formal admission should be made. Secondly, however, Mr Taylor argued that Mr Spencer and/or DS Hopkinson had given the impression that Mr Palgrave and Mr Plitsch had been excluded from police enquiries as a result of confirmation of their movements. That was not the case. He asked the judge to consider ordering that DS Hopkinson be recalled for further examination. Mr Spencer pointed out that the net result of such an exploration would be to demonstrate that there was no evidence connecting either man with the disappearance of Mr Boon. Extensive efforts had indeed been made to establish their movements and to a significant degree their usual routine was confirmed. The judge indicated that he was reluctant to permit a full exploration of the evidence through the hearsay contribution of DS Hopkinson. Had Mr Taylor wished to embark upon an examination of the evidence before the jury he could have done so during cross-examination of DS Hopkinson but had elected not to do so. The judge said he would need some persuading. On reflection Mr Taylor indicated his acceptance of the limited formal admission the prosecution was prepared to make and concluded, “I don’t invite my Lord to do anything more”.[45]In his final speech to the jury Mr Spencer again, and wrongly, described the effect of DS Hopkinson’s evidence as being that Mr Palgrave and Mr Plitsch had been “eliminated from this case”. Mr Taylor argues that Mr Spencer compounded the difficulty in which he found himself in consequence of re-examination of DS Hopkinson; the effect must have been to influence the jury improperly. Mr Spencer has frankly acknowledged that he fell into the same error when addressing the jury as he had in re-examination of DS Hopkinson. In his mind “elimination” from an inquiry was not the same thing as proof of innocence but he accepts that without correction the jury may have been misled. On the other hand, Mr Taylor had the opportunity in his own final speech, which he took, to comment upon the inaccuracy of Mr Spencer’s description of the effect of DS Hopkinson’s evidence.[46]Furthermore, when

the judge dealt with the issue in his summing up he reminded the jury that:

“You heard from DS Hopkinson that those two men had been investigated and that nothing had been found to link them to this offence.”
Mr Taylor submitted that the effect of the passage of evidence we have described and Mr Spencer’s submissions to the jury may well have been to leave the jury with the impression that the field of possible suspects had been confined to the appellant when that was not the effect of the evidence gathered, about which the jury had heard nothing. That was unfair to the appellant. Mr Spencer submitted that, on the contrary, the judge accurately summarised the effect of DS Hopkinson and it is upon the judge’s summary that the jury would have acted.[47]We agree with the observation of the learned judge that if the defence wished to set out to establish a “loose end” in the prosecution case they should have done so either by seeking from the prosecution a formal admission drafted in advance or by cross-examining the witness in permissible terms, or by adducing the evidence themselves. Mr Taylor could hardly expect the prosecution to stand by while he gave the jury the impression through cross-examination of DS Hopkinson that Mr Palgrave and Mr Plitsch were live contenders for the murder when there was no evidence to implicate them. Having read the officer report from Mr Payne, we are quite satisfied that, had the matter been fully investigated before the jury, they could only have concluded as the officer did, and as the learned judge summarised in his summing up, that there was nothing to link the murder of Gordon Boon to either man. While we can understand Mr Taylor’s anxiety that nothing should have been done to mislead the jury, we are not satisfied that in the result the jury were misled. We do not consider the emergence of the hearsay evidence to its limited extent was unfair to the appellant and we do not consider that the absence of a full exploration in the evidence as to the movements of Mr Palgrave and Mr Plitsch impacts in any way upon the safety of the verdict.[48]For these reasons we have concluded that the jury’s verdict is safe and the appeal should be dismissed.