England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Tuesday 20 January 1998

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

MR JUSTICE GARLAND

and

MR JUSTICE RIX

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R E G I N A

- v -

KEITH MAXWELL BIRCHALL

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Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

Telephone 0171-421 4040

(Official Shorthand Writers to the Court)

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MR R D AMLOT QC and MR D EMANUEL and MR A JENNINGS appeared on behalf

of THE APPELLANT

MR P JOYCE QC and MR A MUKHARJEE appeared on behalf of THE CROWN

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J U D G M E N T

(As Approved by the Court )

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THE LORD CHIEF JUSTICE: Keith Maxwell Birchall appeals by leave of the full court against his conviction of murder before Latham J and a jury in the Crown Court at Nottingham on 6 March 1996. The victim of the murder was Mr Billy West who lived at 46, R Road, Carlton-in-Lindrick. The murder was committed in the front room of his house on Saturday, 13 May 1995. There is no doubt that Mr West was murdered. The sole issue at trial was whether the appellant was proved to be the murderer.

Next door to the victim, at 44, R Road, lived Mrs C and her family. She was a divorcee and for some years was party to an intimate relationship with the appellant. For about three years or so, from about 1989 to 1992/1993, they lived together in her house, for the first two years or so as husband and wife. In time their relationship cooled and for the last year they had no sexual relations, but their relationship remained close and friendly. Even after moving out of her house the appellant continued to visit Mrs C frequently, did odd jobs around her house, sometimes for payment, and remained a close family friend. So close was their friendship that he went on a week's holiday in Cornwall with Mrs C and her family. It was on Saturday, 13 May, the day of the murder, that they all returned from holiday together.

By this time Mrs C had become attached to Mr West, her next door neighbour. It seems that she came into contact with him when Mr West's mother was dying of cancer and Mrs C gave him help and support. Meeting in this way the relationship ripened into something closer. It was a relationship known to the appellant and who no doubt regretted and perhaps resented being supplanted by Mr West.

On Saturday, 13 May the appellant drove Mrs C's car containing her and her family to his own house in Worksop. He there got out, and Mrs C drove on to her home, arriving there at about lunch time. The appellant, after a short pause at home, drove on to Mrs C's house in his own car. The afternoon was spent doing chores and shopping.

At about 6.15pm Mrs C went off to have a bath, and at about the same time on the evidence Mr West arrived home. The appellant was still at Mrs C's house. It was clear on the evidence that the appellant left R Road at about 6.40 or 6.45pm that evening. Thus on the evidence there was a period of about half an hour during which the appellant could have killed Mr West. During that period it seems the appellant changed clothes, his shoes, socks, trousers and anorak, which he had been wearing during the afternoon. Those clothes were never seen again.

At about 8.11pm on the same day Mr West was found dead in his front room. Thus the murder must have been committed during a period of just under two hours between 6.15pm, when he was seen returning home, and 8.11pm when his body was found.

After leaving the area of Mrs C's house at about 6.40 or 6.45pm the appellant drove to Worksop. He did not take the most direct route via the A60 Carlton Road. Instead he took the B6054 Blyth Road via Hundred Acre Lane and Crossley Hill Lane. The reason, he later told the police, was that blossom had accumulated in the air vents of his car which had been static during his absence on holiday. The Blyth Road route, although one-and-a-half miles longer, enabled him to drive faster and so to clear the air vents.

The first port of call on his return to Worksop was a Tesco store in the town. His journey by the route taken would have taken some 14 or 15 minutes, and the appellant was recorded on a video at the store arriving there at 6.56pm. He made some minor purchases, paid at 7.02pm and left the store at 7.03pm.

From Tesco it seems probable that he went to Scott's Newsagents a short distance away in Percival Street and bought a lottery ticket at about 7.07pm. From the newsagents he drove along Gateford Road, turned right into Babbage Way and stopped at the Great Mills store. He was seen arriving there on a video at 7.10pm. He obtained a refund for a fence spike he was returning at 7.14. At 7.15pm he returned to his car to fetch change, and at 7.18pm he drove off. Those timings were confirmed by a store security video, although the timings have been corrected to allow for errors discovered in the time-recording device.

From the Great Mills store the appellant drove to his home at 90, Valley Road, a short distance which would take him five minutes or less. Thus on these timings one would expect the appellant to have reached home at about 7.20 to 7.25pm. When exactly he did return home is a matter of some importance to which we shall return.

On arriving home he unloaded his car. He made himself a cup of coffee or Lemsip and then he sat with his parents and watched television for a time. Later in the evening he went out for a short time. According to what he told the police, it was in order to visit a vacuum cleaner for his car, but it was closed and he returned home. Again, according to what he later told the police, he had intended to take his car to a power car wash and to that end had changed into working clothes at Mrs C's house, but he had thought better of the plan and decided to do that later.

At his home his mother washed the red pullover which he had been wearing all day, but she noticed no stains on it.

Mr West died from four stab wounds. The murder weapon was a kitchen knife, which was found embedded in his body. At the scene of the crime there was a great deal of blood, such that the killer must have been splattered with blood, at any rate on the lower part of his body. After the killing it appeared that the body of the deceased had been dragged to a position beside a radiator, where a sofa had previously been but had been moved.

An exhaustive investigation of the scene was made by forensic scientists who examined all available evidence. At the trial evidence was given of footprints, fingerprints, fibres, bloodstains, hair and the murder weapon. None of this evidence suggested any link at all with the appellant, as was clear by the end of the trial. The appellant was arrested by the police very shortly after the murder and questioned on six occasions. He gave full and detailed answers, but made no admissions of any kind. His defence at the trial was that he had had no connection with the killing, but he did not himself give evidence.

It seems that the thrust of the prosecution case to some extent altered in the course of the trial as the scientific evidence was fully explored and tested. By the end the prosecution case rested on four main planks. First, the Crown said that the appellant had had a motive to kill as he was Mrs C's former partner supplanted by the deceased. Factually this was true. There was some evidence that the appellant was obsessive in his devotion to Mrs C, unable to accept that their relationship was at an end, but there was nothing in the evidence to suggest that the appellant harboured any violent animus against the deceased.

The second plank of the Crown's case was opportunity. The Crown pointed to the fact that the appellant had had an opportunity between about 6.15pm and about 6.40 or 6.45pm on 13 May to kill the victim. Again that is factually true. It is equally true of anyone else who chanced to be in the area of R Road that Saturday evening, and there was a suggestion that Mr West had been the subject of threats possibly related to some involvement in the supply of drugs. There was no evidence of forceable entry to Mr West's house, but it was evidently his practice to leave his back door unlocked.

Thirdly, and much more importantly, the Crown relied on the evidence of a Mr Thomas Stevenson. He had shared a cell with the appellant when both were prisoners on remand in Lincoln Prison, the appellant charged with murder and Stevenson with fraud. Stevenson gave an account of what the appellant had said when sharing a cell, describing a rambling stream of consciousness account by the appellant of the events leading up to the death of the victim and admitting that he had done the job, in other words that he had committed the murder. The appellant did not himself give evidence directly contradicting Stevenson, but Stevenson's evidence was strongly challenged in cross-examination. It was put to him that he was a fraudster, which he accepted, but he said that he was on remand for defrauding his father-in-law of £60,000 arising from the non-payment of a debt, and that was not, to say the least, the whole truth. It was put to him that certain details allegedly gained by him from the appellant were inaccurate, and that was apparently so. For example, he quoted the appellant as referring to a motorbike, which the appellant had never had, to the suggestion that the appellant had washed his car on the Saturday evening, and to a suggestion that the appellant had gone home to wash his clothes. It was put to him that he had obtained details of the appellant's case by reading the depositions relating to that case when he and the appellant had shared a cell. This was something Stevenson resolutely denied, saying that he had never even seen the depositions. It was put to him that he was implicating the appellant in order to gain an advantage for himself. That was something he denied.

The trial judge warned the jury to be cautious in assessing Stevenson's evidence. In the summing-up, which we find in bundle 6, at page 29 the judge said:

"Mr Stevenson's evidence needs to be approached, you may think, with a great deal of caution. He is a man who has been convicted on at least two occasions of fraud and significant fraud. And there is no doubt that he used the fact that he had given information to the police in relation to this defendant in order to seek to -- and it would seem -- obtain some sort of benefit for himself in his forthcoming trial. You will remember he was sentenced at the beginning of August and he was with the defendant in July for about two weeks or so.

He described how he had been asked to be a listener, which he described as a sort of Samaritan, and there is no doubt that he was the sort of person who would make it, you may feel, his business to ingratiate himself with those in authority in order to obtain benefit for himself.

The evidence that he gave you may feel was somewhat guarded. It was not very easy to get clear, direct answers from him but, nonetheless, the evidence he gave was detailed as to the background, that is the relationship between C and the defendant, and as to matters of detail in relation to the houses and the families. The prosecution say that that detail could only have come from the defendant. The defendant through Mr Hunt, however, says that after 27th July 1995, which was the date when he had been in effect committed for trial, he had been given -- that is the defendant -- had been given all the papers, all the statements. And that those would have been in his cell and would therefore have been available to Mr Stevenson if he wished to do so to find out the detail about the evidence in the defendant's case."

At page 31 of bundle 6 the judge said at the end of this passage:

"Members of the jury, the evidence of Mr Stevenson is precisely the sort of evidence which it is your job to assess and you must put it into the overall picture and see what you make of it, with all the caution I have suggested you should take about it for the reasons that I indicated that you should approach it with caution."

The appellant's grounds of appeal include contentions that there were other reasons for discounting Mr Stevenson's evidence which should have been disclosed to the defence and were not, and that the judge's warning should have been given in stronger terms, particularly in the light of the material which emerged.

The fourth plank of the Crown's case related to the disappearance of the clothes which the appellant had been wearing before he changed his clothes on the evening of 13 May. As already indicated, those clothes have never been seen or found. The appellant told the police that he put the clothes, which he had taken off, into a Tesco plastic carrier bag. He had taken the bag out to the car when the car was in the road outside Mrs C's house. He had returned to the house for additional boxes which he wished to put in the car and left the bag in the road by the wheel of the car. When he returned to the car he never thought of the bag and drove off without it, only discovering later that it was missing, and he never discovered what had become of it. Some doubt is thrown on that account by Mrs C's son J, who looked out into the road but never saw the bag, although he did see the car and the appellant. He saw the appellant sitting in the car and apparently rubbing his hands on his thighs. The appellant explained that when he got into the car he found no ignition key. He patted his pockets at the front of his trousers to find it, but it was not there and he had accordingly returned into the house for a handbag in which he had a second key.

The account of what the appellant had said in evidence at his police interviews was challenged by the Crown. The Crown did not, however, simply challenge the appellant's account. It was contended that the appellant had had ample time to dispose of his contaminated clothing, in particular between the time when he left the area of Mrs C's house and the time of his return home. This involves consideration of the relevant timings. From the timetable already sketched, the appellant should have arrived home at about 7.20 to 7.25pm. Had he done so, it was strongly arguable that he had had no time to do more than place the bag in a position where it could be easily found. The case was presented to the jury, however, on the basis that he had arrived home at about 7.50pm. This raised the obvious questions: how had the missing 30 minutes been spent? Why had the appellant not explained how it had been spent? Had the appellant, as the Crown contended, used this time to hide his blood-stained clothes sufficiently effectively to prevent disclosure?

In his directions the judge left these questions plainly to the jury. At bundle 6, page 28 he said:

"He [the appellant] arrived home at 7.50pm. He agreed that the journey from Great Mills to his parents' home took no more than five minutes. He could not explain why it appeared to have taken him half an hour to travel that distance. He said the times were only approximate. He denied using that time to dispose of any evidence."

That was a verbatim quotation of the agreed summary of the appellant's sixth interview with the police, as is seen from bundle 4, page 339. There can be no possible criticism of the trial judge adopting that agreed summary.

On appeal we have received new evidence, the admission of which was not resisted. It is therefore unnecessary to say more of the grounds upon which fresh evidence may be received on appeal.

The first ground of appeal argued is that the timings left to the jury were inaccurate and liable to mislead them both as to the passage of an unexplained period during which the appellant could have disposed of the contaminated clothing and as to the grounds for questioning his reliability. This ground involved no criticism of the judge. He summarised the evidence fairly on the case before him which raised questions fit for the jury to consider, but the result of an accumulation of errors is, so counsel for the appellant argues, such as to render the conviction unsafe.

It is important at the outset to emphasise that at the trial counsel for the appellant accepted 7.45pm or 7.50pm as the approximate time of the appellant's return home. This had three consequences. The first concerned Mrs Birchall, the appellant's mother. She was called as a witness by the Crown and testified that the appellant had arrived home at about 7.15pm (see bundle 3, page 3A). She was cross-examined by the defence who suggested to her that the time of the appellant's arrival home had been nearer 7.45pm (see bundle 3, page 6C). She said that she did not look at her watch at the time.

The second consequence concerned a witness named Mrs Geeta Gokal. Her statement was read with the consent of the defence without her being called. She knew the appellant by sight and said in her statement that she saw the appellant wearing a yellow polo-necked shirt in his car turning into Babbage Way (the route taken to the Great Mills store), the appellant having driven down Gateford Road from the direction of the Valley Comprehensive School. She was wrong about the yellow shirt, since all other witnesses agreed that the appellant had been wearing a red pullover. But she was right that he had turned into Babbage Way, and she was right about the direction from which the appellant had driven. Relying in part on timings which she derived from tickets she had obtained when shopping at Sainsbury's, Mrs Gokal put this sighting of the appellant at 7.30 to 7.45pm. This timing was not challenged and fitted in with the suggestion that the appellant had arrived home at about 7.45pm or a little later.

The third consequence of accepting 7.45 to 7.50pm as the time of the appellant's arrival home was that he was treated as having accepted in answer to the police that he had arrived home at about that time, as stated in the agreed summary of his interview.

So there was no criticism of the judge in the way that the matter was left to the jury, or of the way in which the Crown case was presented. But it is plain that the timings put to the jury, although agreed, were wrong. There is clear and incontrovertible evidence that the appellant arrived at the Great Mills store at 7.10pm. The turn which Mrs Gokal witnessed was just before he reached the store. Therefore that sighting cannot have taken place at 7.30 to 7.45pm, as she said, unless the appellant made the turn twice on two different occasions, separated in time by 20 minutes or more, which has never been suggested. It now appears that the Sainsbury's timings were potentially unreliable, but that is a subsidiary matter. The appellant must have been about 20 minutes earlier than 7.30 to 7.45pm when Mrs Gokal saw him.

Why then did the appellant tell the police that he had arrived home at 7.50pm? The answer now given on behalf of the appellant is that he did not tell the police that he had arrived home at 7.50pm. We have been referred to the detailed record of the police interviews. The first of those interviews is set out in full and we make reference to page 45. In answer to questions the appellant said:

"Went down to Great Mills, got me refund, went home to me mum's, and I got home just before they drew the lottery. I had probably been home less than 10 minutes, but might have been 10 minutes er when they do the lottery. Emptied me car."

It is unclear whether the appellant was referring to returning home 10 minutes before the drawing of the lottery or 10 minutes before the beginning of the programme which shows the drawing of the lottery, but that was not a question that was pursued, and in the summary of this interview, which we find in bundle 4 at page 334, it was recorded that he arrived home about 10 minutes before the National Lottery was drawn.

At the sixth interview this question was explored again. The appellant was first asked questions about the time at which he had left Mrs C's house and a number of questions were asked about the timetable. We then find this series of questions:

"THE DETECTIVE SERGEANT: And where did you go from Great Mills? Just refresh my memory.

THE APPELLANT: Home.

THE DETECTIVE SERGEANT: Home?

THE APPELLANT: Mmm.

THE DETECTIVE SERGEANT: And you arrived home at ten to eight?

THE APPELLANT: Well, I don't know.

THE DETECTIVE SERGEANT: Ten minutes before?

THE APPELLANT: I arrived home before.

THE DETECTIVE SERGEANT: The National Lottery?

THE APPELLANT: Yeah.

THE DETECTIVE SERGEANT: Ten minutes before?

THE APPELLANT: Yeah.

THE DETECTIVE SERGEANT: Where were you for 40 minutes?

THE APPELLANT: I wasn't anywhere. I went basically straight home.

THE DETECTIVE SERGEANT: How long does it take you from Great Mills to get to your house?

THE APPELLANT: Five minutes.

THE DETECTIVE SERGEANT: Five minutes? So where were you for 40 minutes?

THE APPELLANT: Well, I don't know. I might have been home earlier. You know, I mean, I said at the time, times are approximate.

THE DETECTIVE SERGEANT: Yeah, was it that you were getting rid of any evidence?

THE APPELLANT: No, no."

Those answers were summarised in the words used by the judge in his summing-up (see bundle 4, page 339).

The thinking of the Detective Sergeant is clear. The television broadcast of the National Lottery draw usually begins at 7.50pm and the draw itself takes place at 8.00pm or just before. The Detective Sergeant therefore took it from the appellant' answers that he returned home at 7.50, 10 minutes before the draw at 8.00pm. It is still not clear that the appellant was referring to the drawing of the winning tickets rather than the start of the programme, but more importantly there is now evidence before the court to show that on 13 May the timings of the television broadcast of the National Lottery draw departed from the usual pattern of time. On this occasion the programme began at 7.43pm and the draw took place at 7.53. About 10 minutes before the programme therefore takes us to 7.30, and about 10 minutes before the draw takes us to about 7.40. But the evidence shows that there is a possibility that road works delayed the journey from the Great Mills store to the appellant's home on this occasion, and there is furthermore evidence that on his return home he unloaded the car and made himself a cup of something to drink.

In our judgment there is force in the appellant's complaint, involving no criticism of the judge, that because of Mrs Gokal's error, and because of the Detective Sergeant's false assumption about the timing of the television programme, and because of the unintentional distortion of what the appellant had said in the summary of his interview, the case was left to the jury on an inaccurate and potentially prejudicial basis.

That leads us on to grounds 4 and 5, which relate to the witness Mr Stevenson. These grounds are linked. In ground 4 the appellant complains of the failure to disclose to the defence at trial the fact that Stevenson, in addition to giving information to the police about the appellant, had given additional evidence to the police about other alleged criminal activity in Scotland and Northern Ireland. The first of these items of information was given almost immediately after his arrest, the second after the information he gave about the appellant and after sentence. The complaint of non-disclosure is not made against prosecuting counsel or the Crown Prosecution Service, neither of whom knew of this information. The complaint is made against the police who did know of this information and failed to pass it on. The appellant predictably makes the point that if the defence had been alerted to this information, it would have greatly strengthened its attack on Stevenson as a man willing to do anything to serve his own ends. The judge was inclined to that view of Stevenson anyway, as is evident from the terms in which he summed up. But it is argued that the judge's criticism would and should have been even stronger if this additional evidence had been before the jury, and it is argued that the jury would probably have taken an even more unfavourable view of Stevenson.

There is a further ground on which the reliability of Stevenson's evidence is now impugned. In this court we received evidence from Mr Trevor Boot, a fellow prisoner of the appellant and Stevenson on remand in Lincoln Prison. According to Boot Stevenson told him that he had read the depositions in the appellant's case and that the appellant appeared to be plainly guilty. This evidence relates not only to the credit of Stevenson, but to the source of his information of the appellant's alleged offence. This source of information was resolutely denied by Stevenson in evidence at trial. If the jury had heard Boot as well as Stevenson we do not know how they would have resolved the conflict between them. There is a clear possibility that they would have been reluctant to place any reliance on the evidence of Stevenson. As noted, the warning given by the judge was in strong terms, but if the reliability of Stevenson had been shown to be suspect on this important additional ground, we would have expected this experienced judge to have warned the jury in even stronger terms than he did.

The appellant's second numbered ground of appeal concerns the judge's direction to the jury on the drawing of inferences from the appellant's failure to testify under section 35 of the Criminal Justice and Public Order Act 1994. The complaint is that the judge omitted to direct the jury on one of the essential pre-conditions to drawing inferences under the section. In the course of his summing-up the judge said at bundle 6, page 5G:

"But, of course, you have not had the advantage of seeing him [the appellant] give those answers and you have not had the advantage of seeing him questioned, cross-examined, because he did not give evidence. And he is entitled not to give evidence. The corollary of the fact that the prosecution has to prove its case is that the defendant does not have to prove anything and is entitled to say to the prosecution: 'You prove the case. I am not going to go into the witness box to help you to do that in any way at all to expose myself to questions which may produce misinterpretation of answers which could be used against me.' And the fact that he has not given evidence does not prove guilt. But you are entitled to take the fact that he has not gone into the witness box as one of the factors when you consider the overall picture presented in the case. And you can draw inferences from the fact that he has not given evidence , if you think it is right and proper to do so.

For example, he has given an account in the interviews of what he did between six o'clock in the evening and the time that he got back to his parents' home, and there is that account in the interviews. But he has not given evidence about it and he has not therefore exposed himself to cross-examination about it. He has not given evidence about what happened between him and Mr Stevenson in the cell in Lincoln Prison, and therefore you have not heard his explanation for how that came about and you have to asses Mr Stevenson therefore on the basis of his evidence alone and the cross-examination of Mr Stevenson which I shall come back to.

In those circumstances you will have to consider the fact that he has not given evidence in those respects and, if you felt driven to the conclusion that the only reason that he did not give evidence was because his guilt would have been exposed if he had given evidence, then, members of the jury, you would be entitled to take that into consideration. Members of the jury, remember, all you are entitled to do is to draw such inference as is proper. And, when you are drawing inferences from evidence or lack of evidence, you can only really use it in the context of a criminal trial against a defendant if you are sure that, at the end of the day, the only inference that you can properly draw is that he has failed to give evidence because it would expose his guilt. Do you follow. That is the only basis upon which you could properly, in a case such as this, draw an inference against him. And I cannot underline that too clearly. It is only if you are driven to that conclusion that that is the only reason that he did not give evidence that you could hold the failure to give evidence against him. All right?"

That is a full, faultless and emphatic direction save, as the appellant argues, in one respect. In R v Cowan and others [1996] QB 373, this court considered the effect of section 35 and laid down authoritative guidelines on the application of that section. Two passages in the judgment of the court are relevant. The first is to be found on page 379A:

"It is further argued that the section alters the burden of proof or 'waters it down' to use Mr Mansfield's phrase. The requirement that the defendant give evidence on pain of an adverse inference being drawn is said to put a burden on him to testify if he wishes to avoid conviction.

In our view that argument is misconceived. First, the prosecution have to establish a prima facie case before any question of the defendant testifying is raised."

The second relevant passage occurs on page 381. The court there considered a model direction promulgated by the Judicial Studies Board which included this passage:

"What proper inferences can you draw from the defendant's decision not to give evidence before you? If you conclude that there is a case for him to answer, you may think that the defendant would have gone into the witness box to give you an explanation for or an answer to the case against him."

The court's observations were in these terms:

"We consider that the specimen direction is in general terms a sound guide. It may be necessary or adapt or add to it in the particular circumstances of an individual case. But there are certain essentials which we would highlight."

Those essentials included at (4) the following:

"Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant's silence."

The appellant complains that the trial judge in the instant case did not direct the jury as to essential (4) either in the terms suggested or in terms to similar effect. The Crown accept that he did not, but contend that on the facts here the omission was immaterial since, so it is argued, there very plainly was a prima facie case.

This court is reluctant to countenance the view that direction of a jury calls for the mouthing of a number of mandatory formulae, and departure by the trial judge from a prescribed form of words will by no means always justify the upsetting of a jury's verdict. Standard directions are, however, devised to serve the ends of justice and the court must be astute to ensure that these ends are not jeopardised by failure to give directions where they are called for. The drawing of inferences from silence is a particularly sensitive area. Many respected authorities have voiced the fear that section 35 and its sister sections may lead to wrongful convictions. It seems very possible that the application of these provisions could lead to decisions adverse to the United Kingdom at Strasbourg under Articles 6(1) and 6(2) of the European Convention on Human Rights unless the provisions are the subject of very carefully framed directions to juries. Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant's failure to give oral evidence at his trial until they have concluded that the Crown's case against him is sufficiently compelling to call for an answer by him. What was called the "fourth essential" in Cowan was correctly described as such. There is a clear risk of injustice if the requirements of logic and fairness in this respect are not observed.

It is therefore necessary for us to consider whether the omission to give this direction in this case renders the jury's verdict unsafe. It is clear, as already pointed out, that the appellant arguably had a motive to commit this crime and an opportunity to do so. But those matters cannot constitute of themselves a prima facie case. Did the evidence given by Stevenson of the appellant's confession constitute a prima facie case? In our judgment it must be at least doubtful whether it did. Stevenson was a proven fraudster and, it would appear, a liar. He appears to have made every possible effort to secure advantages for himself by attempting to incriminate others. It appears at least possible, to say no more, that he deliberately lied about the source of his knowledge of the crime allegedly committed by the appellant. Had the judge given the strengthened direction, which we feel sure he would have given had he known of the new material damaging to Stevenson, we think it at least questionable whether the jury would or should have regarded Stevenson's evidence as calling for an answer.

What then of the appellant's clothing worn on the afternoon of the murder which mysteriously disappeared? It is possible that this clothing could have been disposed of by the appellant on his journey back from Mrs C's house to his own even on what now appear to be the correct timings. It is possible that the clothing could have been disposed of when he went out later that evening after his return home. The jury might have concluded that there was a case here which called for an answer and might have felt compelled to draw inferences of guilt from the absence of any answer by the appellant. However, given what now appear to be the correct timings, the problem for the jury's consideration would not have been that which the judge left with them, an interlude of about half an hour at an important juncture of the narrative for which the appellant had failed to offer any explanation. The jury could have concluded that the passage of time was adequately explained and that there was no reason to question the account given by the appellant to the police.

In the light of the new evidence now available to us we have to ask ourselves whether we consider the verdict is unsafe. We must consider it unsafe if, in the light of all that new material, we have doubt of the appellant's guilt.

We have considered this matter with some care, taking account of the clear and helpful arguments, both written and oral, on both sides. In the result, and on the grounds of appeal so far considered, we are left in doubt of the appellant's guilt and accordingly consider this conviction unsafe. It is not our task to decide whether he is innocent and we do not do so.

For completeness we should mention a further ground of appeal relating to a misunderstanding apparently shared by counsel on both sides and hence by the judge of the fingerprint evidence. There were two fingerprints, not belonging to the appellant nor identified as belonging to any known person, found on a radiator near which the body of the deceased was found after it had been moved from its position at the time of the killing. These, it is said, could have been made by the killer, although they were not made by fingers contaminated by blood and would have pointed towards a killer other than the appellant. The existence and position of these fingerprints was not drawn to the attention of the judge or the jury at the trial. This seems to us a point of much less weight than the others we have considered. It is, however, unnecessary to consider it further since for reasons already given it is clear that the appeal must be allowed and the appellant's conviction quashed.

MR JOYCE: My Lords, I wonder whether, in view of the terms of the judgment, the Crown might have a few minutes to consider one other matter?

THE LORD CHIEF JUSTICE: Certainly. Would you like us to rise?

MR JOYCE: Yes, please.

THE LORD CHIEF JUSTICE: Certainly.

(The court adjourned for a short time )

MR JOYCE: My Lords, we are very grateful for the time you have allowed us so that we might advise those whom we have to consult or advise. My Lord, in view of the formulation of the judgment the Crown have taken those matters into account, and other matters. We do not ask for a retrial. It is as simple as that.

THE LORD CHIEF JUSTICE: Very well. I think we have no further orders to make. We repeat our thanks. It has been an extremely helpful exercise the manner in which the papers have been prepared in this case. It is really quite unusual. The material was so well organised and so readily digestible.

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