Banfield & Anor, R v [2013] EWCA Crim 1394

Case No 201202246 B2 & 201202650 B2[2013] EWCA Crim 1394
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
His Honour Judge Beaumont QC
T20117292
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2013
Before
LADY JUSTICE RAFFERTY DBEMR JUSTICE SIMONMRS JUSTICE CARR DBE
Between
RRespondentSHIRLEY BANFIELD & LYNETTE BANFIELDAppellants
William Clegg QC and Adam Kane for Appellant Shirley BanfieldJeffrey Samuels QC and Phillip Parry for Appellant Lynette BanfieldCrispin Aylett QC and Louis Mably for RespondentHearing Hearing date: 9 th July 2013
Judgment
[1]Shirley Banfield (“SB”) (65) and Lynette Banfield (“LB”) (41)on 22 December 2011 in the Central Criminal Court pleaded guilty to conspiracy to defraud (Count 2), forgery (Count 4) and conspiracy to pervert the course of justice (Count 5). Shirley Banfieldpleaded guilty to dishonestly retaining a wrongful credit (Count 3).[2]On 3 April 2012 both Appellants were convicted of murder of Donald Banfield (“DB”) (Count 1).[3]On the same date, Shirley Banfield was sentenced as follows: COUNT OFFENCE SENTENCE 1 Murder Life imprisonment with a minimum term of 18 years, 2 Conspiracy to defraud 18 months imprisonment, to run concurrently 3 Dishonestly retaining a wrongful credit 12 months imprisonment, consecutive to Count 2 but concurrent to Count 1 4 Forgery 12 months imprisonment, consecutive to Count 2 but concurrent to Count 1 5 Conspiracy to pervert the course of justice 12 months imprisonment, consecutive to Count 2 but concurrent to Count 1[4]The total was life imprisonment with a minimum term of 18 years[5]Lynette Banfield was sentenced as follows: COUNT OFFENCE SENTENCE 1 Murder Life imprisonment with a minimum term of 16 years, 2 Conspiracy to defraud 18 months imprisonment, to run concurrently 4 Forgery 12 months imprisonment, consecutive to Count 2 but concurrent to Count 1 5 Conspiracy to pervert the course of justice 12 months imprisonment, consecutive to Count 2 but concurrent to Count 1[6]The total was life imprisonment with a minimum term of 16 years[7]Each appeals against conviction by leave of the Full Court.[8]SB married DB in 1980 and they had Kevin born in 1968 and LB born in 1971. In May 2001 DB disappeared aged 63. His body has never been found. There was evidence he was a heavy gambler and a womaniser. He had on 22 January 2001 retired from William Hill, bookmakers, at short notice.[9]He and SB lived in their family home in 146 Lockett Road (“Lockett”) in Harrow. The marriage was turbulent. He drew a pension from William Hill and in February and March 2001 he had drawn down lump sums from it.[10]In spring 2001 the sale of Lockett for £179,000 was agreed. Proceeds of the sale were to be split equally between DB and SB.[11]On 11 May 2001 DB told PC Riley his concerns about the malign attitude of his family. He co-signed the contract for the sale of Lockett, the last substantiated independent evidence of him in life. He has not been traced since.[12]On 15 May 2001, as SB had asked, LB forged a letter to his pension administrators asking that his pension go into his joint Nationwide account with SB. On Saturday 19 May 2001 DB was reported missing by his friend, Mr McIntosh.[13]The Crown’s case was that between 11-16 May 2001 the Appellants both murdered DB.The defencewas that absent a body and any evidence DB had in fact been killed, the Crown could not prove a death let alone a murder, nor that either or both appellant/s had committed it or was present at the time of it. The case was speculative and circumstantial.[14]The Appellants relied on evidence that DB had previously disappeared from his native Trinidad and intended once again so to do prior to his disappearance in 2001. He had debts of £50,000. His financial affairs were tangled. He had drawn down £30,000 from his pension shortly before his disappearance. PC Savage saw him driving locally after he was said to have been murdered. His mobile telephone had been used on 14 May 2001 and was charged and able to receive calls for months after the alleged murder. The disposal of a body would have been extremely difficult and possible burial sites had been thoroughly investigated. The lies and deception of the Appellants were not evidence of murder. The Appellants confessed to the jury that their motive to the crimes of which they had pleaded guilty was financial gain but also initially to force DB to return, when they could hope to regularise the sale of Lockett.[15]The Crown relied upon evidence documentary and oral that DB complained to his doctor, the police, his friends and family of assaults it suggested were highly indicative of failed murder attempts by both Appellants shortly before his disappearance and on his expressed concerns that they would kill him. In the period leading up to his disappearance, DB described to Dr Karia his GP, the police and his friends domestic tension between himself and his wife and daughter, and their assaults on him. He told Mr McIntosh SB had tried to suffocate him as he slept and that he woke to find his hands handcuffed, a plastic bag nearby. He had started kicking and screaming and LB had released him. He thought his post was being interfered with. Once Mr McIntosh allowed him to have his mail sent to Mr McIntosh’s address letters addressed to DB started arriving.His post was intercepted and he found a stash of letters addressed to him behind the sofa including cheques from William Hill. Nothing like this happened prior to his retirement. He did not want the police to do anything. He could not risk his wife knowing he had gone to them. His house was about to be sold and he was thinking about returning to Trinidad.[16]Dr Karia recorded this account:
“A couple of weeks ago, in the middle of the night, he found himself having been handcuffed behind his back and his wife trying to tie down his legs and put a plastic bag over his head. He says that he woke up and was able to salvage the situation. Another time his daughter tried to spray in his eyes whilst he was asleep and when he tried to confront her, his wife started screaming at him, at which point his wife brought a knife and they both said to him, ‘Why don’t you die?”
[17]The last independent evidence of DB alive came from PC Riley. On 11 May 2001 he signed her pocket book entry that he did not want the police to take any further action. The same day he co-signed the contract for the sale of Lockett.[18]On Saturday 19 May 2001, after he had not heard from DB for over a week, Mr McIntosh reported him missing. When police visited the Appellants that day SB said he had a habit of disappearing. Told that Mr McIntosh had reported DB missing she said Mr McIntosh had mental health problems (as to which she was correct).[19]Next day, Sunday 20th May 2001, LB telephoned the police saying that about three months ago her father had started moving his possessions out of the house and she had now noticed his passport missing.[20]On 22 June 2001 SB made a witness statement to the High Court in support of an application for the appointment of a trustee to complete the sale of Lockett. She alleged that after DB had gone missing he had been seen locally. She did not provide the police with further details. The sale was completed, and the proceeds paid to SB.

Mr Banfield’s state pension

[21]On 22 January 2003, his 65th birthday, DB would have become entitled to his state pension. The Appellants made a claim in his name, and from 22 February 2003 to 17 February 2008, a (gross) £26,811 was paid in and from 18 February 2008 to 4 May 2009, a further (net) £7,571.[22]On 31 December 2004 SB took early retirement from the Inland Revenue. On 10 June 2005 she submitted a claim for Disability Living Allowance including an entry purportedly by DB but written by LB detailing SB's disability.[23]The Crown relied on DB’s disappearance being immediately after he had signed the contract for the sale of Lockett which SB wrongly believed entitled her to complete the sale on her own. After he was reported missing, both Appellants were in the contention of the Crown unconcerned and both reported seeing him on Sunday 13 May 2001. They subsequently gave what the Crown said were misleading and untrue accounts to police and the High Court including: i) LB said he had voluntarily removed possessions and his passport from Lockett months before his disappearance and, in a joint statement with SB, that she had seen him at Christmas 2007 and 2008. ii) SB said he had a habit of disappearing, Mr McIntosh the friend who reported him missing had mental health issues (as was correct), DB had been seen locally in betting shops after his disappearance and, as PC Savage had said, driving a car in August 2001. iii) She and LB saw him at Christmas 2007 and 2008. She told police he had probably returned to Trinidad and was ill.[24]Within six months of his disappearance the Appellants used the proceeds of the sale to set up home together, 200 miles away.[25]In July 2009, DB by now missing for over eight years, the investigation was re-opened.

Defence evidence

[26]SB told the jury that during their long relationship and marriage DB would frequently disappear. He indulged in gambling and womanising. SB put up with all this because she loved him and they were mutually supportive.[27]As hisretirement approached they made plans to move to the North East where property was cheaper. SB did not know DB had personal debts of £50,000 or that he was writing to his sister in Trinidad. After his retirement he became very depressed and his behaviour irregular. She denied any attempts to kill him and said and there was no truth in his complaints to others.[28]When they signed the contract for sale on Friday 11th May 2001 SB knew it was only the first stage of the process. The Saturday was a normal day. DB returned in the evening and may have left early on Sunday morning. After some time he did not return and she noticed he had taken personal belongings. Concerned about how the deed of transfer would be done and the sale completed without DB, on the Monday or Tuesday she telephoned LB and on Tuesday her solicitors told her exchange had taken place. LB told SB that DB had been moving his clothes for the last 2-3 months. They rang his mobile which rang but was not answered. SB immediately decided to transfer his pension into their (his and her) joint account, calculated to bring him back when he discovered it, since SB needed him to sign the transfer deed. LB agreed to forge the letter - it was clear DB had left for good. It was thoroughly dishonest and SB intended to repay William Hill.[29]SB did not contact the police since he had gone missing before and had taken all his clothes. SB gave the police his contact numbers and was in regular contact with them. The disappearance caused many problems for SB and she lied to the solicitors about having been told that she and DB had to sign the transfer deed. Through the Citizens Advice Bureau she instructed another solicitor and two applications were made to the High Court to convey the house and release the sale proceeds. SB then moved to the north east as originally planned.[30]His 65th birthday on 22nd January 2003 left DB eligible for a state pension. SB telephoned the Department for Work and Pensions and, as she had done with the William Hill pension, arranged for it to be paid directly to their joint account. SB had pleaded guilty to this offence and was ashamed about it. She also lied on a claim for Disability Living Allowance but that was more out of stupidity. She lived in fear of her frauds being discovered but four years after the disappearance was still hopeful that he would return. She lied about seeing him so as to cover up the frauds.[31]SB lied in police interview because she panicked. She went on the extravagant holiday to Grenada as she had not been on holiday for a long time and the plan had been to make inquiries about the deceased in Trinidad.[32]LBsaid she originally worked at a solicitors firm before reading an undergraduate degree at Bristol University. She visited SB regularly and then moved in with her parents to help care for her grandfather. She took out a mortgage to buy her grandfather’s council flat and moved in with him to help with his care. LB got on well with DB who often confided in her. He did not cope well with retirement and she knew nothing of her parents’ finances. There had been no incidents of violence or threats towards DB whom she and SB had never harmed.[33]LB was present when the papers were signed on Friday 11th May 2001, the last time she saw DB. His disappearance was not unusual. On the Tuesday, SB asked her to forge the pension letter to complete the house sale. They knew that if the pension were transferred DB would be very angry and come back. Hence LB agreed. She did not understand the seriousness of the forgery and also thought SB was being melodramatic. After a couple of years they had to keep the pension payments going because they were worried about what William Hill would do. They still hoped DB would return. He would have been angry but they could have sorted it out and he would not have gone to the police.[34]LB had told the police what she knew but had not mentioned the pension letter. She thought DB had wanted to disappear and was surprised to hear he had been seen driving locally. LB was not involved in the applications to the High Court but was aware of the problems with the solicitor and agreed to be a trustee so as to help. She signed a statement in those proceedings but did not read it.[35]LB knew SB claimed his state pension. Part of this was to conceal the fraud on the William Hill pension. LB agreed they had lied about seeing DB and in interview and said this was because she was worried about being implicated in the pension frauds.[36]The Appellants called Alan Strickland who saidhe had seen DB between 2005 and 2007.

Ruling on submission of no case

[37]The Appellants submitted that the evidence was insufficient to prove(a) which Appellant was responsible for the murder, or(b) whether both were responsible. They relied on R v Strudwick and Merry [1993] 326 in which Farquharson LJ said:
“This case has considerable similarities with R v Lane and Lane (1986) 82 Cr.App.R 5, when the court was confronted with the same problem. It involved a charge of manslaughter of a child against the mother and stepfather. As in the present case neither of the accused made any admission and the Crown invited the jury to find that the accused were responsible. It was proved that they had told lies, but these did not lead to the inference of that appellant's presence. The defendants' purpose was to "alibi" each other, but as Croom-Johnson LJ pointed out, if the lie was shown to be false it did not advance the prosecution case. There are cases in which the present problem is overcome if the presence of both accused can be established at the time the assaults took place. An example is to be found in R v Lawsonand Thompson (unreported) where the presence of both appellants was admitted at a time when the child victim was heard screaming by the next door neighbour. If of course evidence of that kind is available it avoids the problems which arise in the present appeal. For these reasons we are of the opinion that the Crown had not made out a prima facie case of manslaughter against the appellants and those convictions will be quashed.”
[38]Arguing successfully that the case should be left to the jury, the Crown relied upon: i) The letter of 15th May 2001 - diversion of pension - forged by LB for the benefit of SB. ii) The joint actions and responses of both prior to and after the disappearance, including their lack of helpful input into the Missing Persons Inquiry and the false trails they created. iii) Their £26,365 holiday to Grenada booked on 22 March 2010 for departure in April 2010. iv) Their purchase within 6 months of May 2001 of a property 200 miles away. v) They acted jointly in the deception offences over 7 years. vi) They benefited financially. vii) They admitted lies that they had seen DB alive after May 2001. Their only motive was to create false trails.[39]The Judge said the evidence was sufficient directly to implicate each and that the case was not akin to R v Lane & Lane [1986] 82 Cr.App.R 5 or R v Strudwick and Merry [1993] 326.[40]By the time he came to sum up the Crown could also rely on the Appellants’ failure in interview to mention matters they sought to rely on at trial.[41]The Judge provided to the jury a document headed Route to Verdicts, only Question 3 of which need concern us. It read:
“Are we sure that the defendant whose case we are considering caused DB’s death by either being involved directly in the fatal attack on DB or else was present at the time of that fatal attack and encouraged the other who carried it out to do what she did that caused DB’s death? If the answer is (sic) No, then that defendant must be found Not Guilty of his Murder and no alternative verdict of Manslaughter arises. If the answer is Yes then (Q4)”
[42]Grounds of appeal for each Appellant are that the Crown was unable to say which of the two killed him, or that it must have been both acting jointly. The submission at the close of the case for the Crown should have succeeded.

Submissions developed

[43]There was acceptance that Question 3 in the Route to Verdict was, so far as it went, an accurate statement of applicable law. The criticism is that it failed to reflect the lacuna identified in the Grounds and advanced during submissions at the close of the case for the Crown. “….either being involved directly in the fatal attack on DB or else was present at the time…….” (our emphasis). The Appellants argue that the fatal act could not be excluded as having been carried out by one or other Appellant. That being so, the Crown could not prove that it must have been carried out jointly. The evidence was as consistent with one Appellant acting alone later assisted by the other as it was with a joint enterprise murder.[44]The Crown submitted that a substantial body of evidence demonstrated they had acted together in recently assaulting him, in diverting his pension shortly after he was last seen (demonstrating confidence that he was dead), and in maintaining the pretence that he was still alive for their own financial gain. These facts were capable of establishing a pre-meditated joint enterprise to murder. This was not a case where the evidence could go no further than establishing that the offence was committed by one or other or possibly both, rather it was capable of proving the positive case of joint enterprise.[45]For SB Mr Clegg QC with whom Mr Parry, for LB agreed made three concessions: DB was murdered, his death was between 11th and 16th May 2001, and he was murdered either by both Appellants together or by one of them. The indictment did not plead, though it could have done, conspiracy to murder. Rather the Crown led a simple joint enterprise choate offence. Had the conspiracy been pleaded against SB he concedes that the way he puts her appeal today would not be open to him.[46]He postulated five explanations for the death of DB: i) The applicants acted in concert. ii) SB killed him and LB encouraged her. iii) LB killed him and SB encouraged her. iv) SB killed him absent LB. v) LB killed him absent SB.[47]It was agreed that to succeed the Crown must prove that at the infliction of fatal injury both women were present and acting in concert. Mr Clegg QC argued that since the Crown could not even prove presence of either, necessarily proof of concert fell away. He challenged its reliance on ante and post mortem joint activities as permitting an inference that the murder was also joint. He conceded from the outset that were the Crown able to prove the Appellants acted in concert it did not have to prove who was the principal and who the secondary party.[48]The Crown relied insofar as was permissible on ante mortem events which it advanced as capable of being seen as attempts upon the life or at least health of DB and as involving both Appellants. This Mr Clegg QC pointed out was accurate only in some respects. Some assaults were alleged as by individual Appellants. The Crown suggested that SB tried to poison him, used a knife upon him, and cuffed and smothered him whilst he was in bed. Some of these indignities were said to be in the presence of LB but not all. (DB had said LB rescued him when he was in bed and awoke cuffed). The Crown suggested one Appellant hit him whilst he slept. It suggested LB had a knife, squirted polish into his eyes and wanted him dead.[49]For LB it was argued that the Crown could not even positively assert that LB was in the house at the time of the killing. She lived elsewhere and did not habitually stay at her parents’ house. The Crown however relied upon the words of DB to a third party that LB still lived with her parents. We did not need to resolve this issue.[50]For the Crown Mr Aylett QC sought to distinguish the ruling of the Judge at the conclusion of the case for the Crown from his summing-up. By the time of the latter SB and LB had told the jury that there was nothing in what DB had said which was to their disadvantage. By the time they gave evidence, he argued, their joint responsibility was strongly made out. At the close of the case for the Crown there was ample evidence, he suggested, of concert. He relied on what he called evidence of a pattern of dishonest conduct from Tuesday 15 May 2001 until arrest. Additionally each woman was unconcerned. The two lied on and on, and the lies were common to each.

Discussion and conclusion

[51]This was an alleged joint enterprise murder with no body, no suggested mechanism of death, no identified day when the murder was said to have occurred, no time and no place and no suggestion of what happened to the body.[52]The appeal turns on whether there were evidence at the close of the case for the Crown from which the jury could infer that the two defendants must have killed together and not one in the absence of the other.[53]It is true that the test for the Judge hearing a submission was whether a jury could infer joint responsibility, not whether it were obliged so to do. The test for the jury was whether the Crown had made it sure of joint responsibility. The Crown’s difficulty is readily apparent. If at the close of its case the evidence were consistent both with inculpation and exculpation of either defendant then it had not established a prima facie case of murder, against either.[54]If circumstantial evidence, upon which much of this case was built, were to allow of but one interpretation, then a jury would be driven to a finding of guilt. That was not the position here.[55]The Crown relied on animus. It contended it had proved the intention to cause grievous bodily harm, and that each Appellant had both opportunity and motive. Mr Aylett accepted it was unusual that the Crown had pleaded so narrow a range of dates.[56]The Crown also argued that one Appellant woman alone would have found it difficult to kill DB. We were unpersuaded. The courts regularly see proved allegations of homicide against a woman acting alone. A moment’s reflection demonstrates the fallacy in the Crown’s argument – for example a knife used whilst the victim is unwary or asleep. Disposal of the body is more readily argued as difficult for one woman alone but post mortem activities are not capable without more of proving guilt of murder. If it were otherwise, every relative assisting in the disposal or delayed finding of a body would be guilty of murder. The Crown is entitled to suggest such activities give rise to suspicion but suspicion without more does not equate to proof.[57]Given its decision to indict murder but not conspiracy to murder (which latter would at the very least significantly have modified the submissions open to the Appellants, as Mr Clegg readily conceded) the Crown’s consequential difficulty was its inability to prove that the two women acted in concert to bring about DB’s death. It could, many would accept, prove that they had a motive so to do, and that each, singly and with the other, had in his life done enough to suggest animus. It could fortify that in reliance upon the post mortem dishonesty of both, jointly. What it could not do was prove a joint enterprise to be present when he was murdered either as killer or as participant in a joint enterprise.[58]As the authors of Smith and Hogan’s Criminal Law, 13th Ed, para 8.4.1.5 remark, if all that can be proved is that the principal offence was committed either by the first or the second accused, each must be acquitted: Richardson (91785) 1 Leach 387; R v Abbott [1955] 2 QB 497. We have reminded ourselves of the example given by Finnemore J and referred to in the judgment of Croom-Johnson LJ in Lane: If two sisters were provably in the room when X was murdered, and either both together or one alone were responsible, there is no prima facie case against either since the Crown would be unable to exclude either. We have reminded ourselves too that in that case there had been no suggestion that two had acted in concert, rather that one or the other was responsible. Nevertheless, the logic of the approach is not weaker as a consequence.[59]In our judgment the words of Farquharson LJ in Strudwick resonate as powerfully in this case as then they did: It was proved that [the Appellants] had told lies, but these did not lead to the inference of [a single] Appellant's presence, let alone participation. These Appellants by their pleas and in evidence admitted lies, but the subject-matter even allied to motive came nowhere near proving their presence at the killing of DB.[60]We were grateful for the sharp focus on reality of Mr Clegg QC who accepted that the likelihood is that one or other appellant murdered DB. This case however demands the application of established law to fact even if the outcome appears troubling. As the LCJ said in Abbott:
“Although it is unfortunate that a guilty party cannot be brought to justice, it is far more important that there should not be a miscarriage of justice and that the law should be maintained rather than that there should be a failure in some particular case.”
[61]The five postulations as to what might have explained the death, lucidly set out by Mr Clegg QC, are an useful guide to the problem the Crown’s choice of a count of murder not of conspiracy to murder created. i) SB killed him and LB encouraged her. ii) LB killed him and SB encouraged her. iii) SB killed him absent LB. iv) LB killed him absent SB. v) The applicants acted in concert.[62]The first four show how obvious were the tenable alternatives which could have led to DB’s death. Once the Crown was unable to identify of which of the four options the jury could be sure, the fifth could not on the evidence provide a backstop.[63]The submission of no case to answer should have been allowed. These appeals will be allowed and both convictions will when we complete this judgment be quashed.

Cited in 3 later judgments