Case No: 199906242 X3
199906245 X3
Neutral Citation Number: [2002] EWCA Crim 120
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
(HHJ RHYS DAVIES, Q.C.)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 25 January 2002
B e f o r e :

LORD JUSTICE KEENE
MR JUSTICE FORBES
and 
MR JUSTICE GROSS
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	REGINA		
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	MURPHY and BRANNAN		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr. D Martin-Sperry and Ms. R Darby appeared on behalf of the appellant Murphy.
Mr. A Fulford, Q.C., and Mr. J Lasker appeared on behalf of the appellant Brannan.
Mr. R Scholes, Q.C., appeared on behalf of the Crown.
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Judgment
As Approved by the Court

Crown Copyright ©
Lord Justice Keene:
1.	In the early hours of 24 June 1991 Michael Pollitt was fatally wounded in a Manchester nightclub known as the Express Club.  The cause of death was a single stab wound to the abdomen, which penetrated 8 inches.  
2.	On 17th February 1992 in the Crown Court at Manchester before the Recorder of Manchester (HHJ Rhys Davies Q.C.) after a 6 day trial the appellants were convicted of murder and sentenced to life imprisonment.  On 17 December 1993 the Court of Appeal dismissed their appeal against conviction, leave having been granted by the single judge on the basis of fresh evidence.  They now appeal against conviction following a reference by the Criminal Cases Review Commission under section 9(1) of the Criminal Appeal Act 1995 on the basis that there is a real possibility that the convictions will not be upheld by the Court of Appeal.
3.	Unhappily, John Brannan committed suicide on 14 December 1999 while serving his sentence.  His son has been granted leave to continue the appeal under section 44A of the Criminal Appeal Act 1968.
4.	The prosecution’s case at trial was in essence that Brannan had stabbed the victim Michael Pollitt, but that this was a joint enterprise.  There was a history of ill feeling between the appellant Murphy and the victim, and Murphy had at one stage left the club, returning later.  The Crown alleged that on his return Murphy had had with him an axe and a knife.  Murphy was seen by various witnesses brandishing the axe at the victim and threatening to kill him.  It was the Crown’s case that the attack on Pollitt was one planned by both appellants.
5.	Murphy gave evidence at trial.  He admitted possessing the axe though he denied that he left the club to obtain weapons.  He carried weapons for his own protection, particularly from the victim who had threatened and assaulted him in the past.  It was possible that in the heat of the moment he had threatened the victim but he had not come into contact with the victim at all during the stabbing and had no idea where Brannan was.  There had been no agreement between them to harm him.
6.	Brannan did not give evidence at trial, nor did he call witnesses.  His primary case seems to have been that he had not inflicted the fatal wound or at least that there was no satisfactory evidence to establish that he had.  When interviewed by the police he had exercised his right of silence and refused to answer any questions.
7.	In the course of the trial, evidence was given by a prosecution witness, Michael Haslam, a doorman at the club, that during the incident the victim had been holding a gun at waist level and had been making efforts to use it, but the gun had jammed.  Both Murphy and his sister Catherine Murphy gave evidence that Pollitt had approached Murphy holding a gun, pointed at Murphy.  In his evidence Murphy described Pollitt pulling the trigger twice but the gun failing to go off. 
8.	This led the trial judge, when he came to direct the jury on the need for the Crown to prove that the killing was unlawful, to deal with the law on self-defence.  As the Court of Appeal in its judgment of 17 December 1993, delivered by Roch L.J., rightly said, the judge in his summing up put the issue of self-defence before the jury in a way that was more than fair to the appellants.  At page 11E of the summing up, he said: 
“…, if you think there was a gun, or may have been a gun in the hands of Pollitt, then even if these two were acting together jointly on this occasion and Brannan takes up the knife and in fact plunges it into Pollitt, if that is your view of the circumstances, then the prosecution would not have discharged their burden,…”
Explaining this shortly afterwards, the Recorder said:
“… if you are sure when Mr. Brannan stabbed Mr. Pollitt that Pollitt had a gun, or might have had a gun, then in those circumstances because of what I have just directed you about, as far as self-defence is concerned, then both would be not guilty, even if you were satisfied that they were together on a joint venture potentially to attack Pollitt.”
Finally at the end of his summing-up, he said:
“If you are sure that John Brannan stabbed Michael Pollitt but your view is either that Pollitt had a gun or that he might have had a gun then both Murphy and Brannan should be found not guilty.”
Consequently, as the Court of Appeal said in its 1993 judgment:
“The jury were not invited to consider the case on the basis that Pollitt may have produced a gun in order to defend himself from Murphy’s axe, or to consider, whether or not Pollitt had a gun, whether the two appellants had previously agreed to attack him and kill him or cause him really serious physical harm.
By these directions the Recorder made the question whether or not Pollitt had or might have had a gun one of the two prime issues in the case, the other being whether the jury were sure that Brannan had stabbed Pollitt.”
The jury was not directed to consider self-defence on any more complicated footing.
9.	This issue of whether Michael Pollitt had or might have had a gun was and remains a central issue in the case.  In the course of hearing this appeal, we granted leave for fresh evidence to be adduced on this topic.  Such evidence must be seen in the context of the evidence given at trial and at the 1993 appeal.  At that appeal hearing, fresh evidence on behalf of the appellants was admitted by the Court of Appeal, including evidence from Brannan.  In the course of his evidence, he admitted that he had struck Pollitt with a knife but asserted that he had not intended to stab him but had merely reacted to the gun being held by Pollitt.
The Evidence at Trial
10.	The victim’s girlfriend, Lisa Worthington, gave evidence at trial, to the effect that Brannan had stabbed Pollitt.  This came after Murphy had shouted to Pollitt that he was going to kill him and had got out an axe.  She described another man getting hold of Murphy and pushing him to the side.  The judge said that this other man seemed to be Dominic Donnelly.  Then Brannan came over with a knife in his hand and, although she did not realise it initially, stabbed Pollitt.  She denied vehemently that Pollitt had had a gun with him that night or had had one in his hand.  She did not think that Pollitt had been searched when they entered the club that evening; she had not been, nor had she been searched on previous occasions.  This evidence about searching those who entered the club was relevant mainly to the issue of whether Brannan had had the knife when he first went into the club or whether Murphy had obtained it when he went out during the course of the time which he spent there.  It was common ground that he had not been searched when he re-entered the club.
11.	A doorman, Michael Haslam, gave evidence that he searched all those who came to the club that night including Murphy and, he thought, Brannan.  He described going upstairs to the club area when he heard that there was trouble and saw Murphy with what he thought was an axe.  He said that he told the manager that there was not much he could do about it at that stage and had gone downstairs.  But he went up again shortly afterwards and saw Brannan pushing past someone who looked as if he was falling.  During his cross-examination, Haslam said that he had seen Pollitt with a gun in his hand, holding it at waist level.  It looked like a 9mm Luger.  It had jammed.  Pollitt might have been trying to use it.
12.	Haslam had not said anything about a gun in either of his two statements to the police, but on 18 October 1991 he had made a statement, some months after the event, to a private investigator instructed by solicitors.  In that statement, he had said that he had seen Pollitt with a pistol on the night in question.  When asked why he had not told the police about this, his response was that he thought that he had mentioned it to them.  The fact was that he had not said anything to the police about seeing a gun in Pollitt’s hand, but he had told an officer that a taxi driver in the club had told him that Pollitt had been aiming a handgun at Murphy but that it had jammed.  Evidence of this interview, which took place on 26 June 1991, was not produced at trial, nor was it at that time in the possession of the defence.  We return to that aspect later in this judgment.
13.	Francis Dean was the other doorman at the club that night.  His evidence was that he did not search those entering the club that night but left it to Haslam.  He described how, 10 or 15 minutes after Murphy had left and then returned, he heard someone shouting to the effect that there was trouble upstairs.  He sent Haslam upstairs but did not go up himself.  He also heard words to the effect “No, no, don’t use the axe.”  He could see a scuffle and the lower part of bodies and saw someone fall to the ground.  He also heard someone say “Murphy, stab him”.  He made no mention of a gun, and according to his evidence at trial he was not up at first floor level where the incident itself took place.
14.	The manager of the club, James “Shay” Power, was up at first floor level at the time and saw a crowd round Pollitt on the floor.  He described Murphy holding an axe in a raised position and Donnelly in contact with Murphy, holding his arms up.  A taxi-driver, Brian “Crazy Horse” Clark, gave evidence that he did not see the incident itself but saw someone on the floor.  He also described a man, later identified as Murphy, holding what Clark thought was a knife and being restrained by another man.  The first man said “I am going to kill him”.  The other said “You have already done it”.  Clark saw no one with a gun.  A similar exchange of words was described by another witness, Irene Sharples, who identified the first man as Murphy, waving an axe, and the second as Donnelly, who was restraining him.  By this time the victim Pollitt was already on the floor.  She had not been able to see if Pollitt while still standing had had anything in his hand.  Other witnesses, who did not see the stabbing incident itself, referred to Murphy or to a man having had an axe.  One witness, David Parker, described another man, not the man with the axe and not fitting Brannan’s description, with a knife.  Indeed, subsequently a knife which was not the murder weapon was found at the club.
15.	The only other prosecution evidence at trial to which reference need be made was that of police officers.  P.C. O’Reilly described arriving at the club and finding the injured Pollitt.  He took a statement from the doorman Haslam.  There was no mention of a gun.  However, when cross-examined, he agreed that Donnelly had spoken to him before he had examined the victim and that, having had this conversation, he expected to find a gunshot wound.  D.C. Ross gave evidence about Pollitt’s substantial criminal record, including a wounding with intent to cause grievous bodily harm, an assault with intent to rob and two assaults occasioning actual bodily harm.  He also agreed in cross-examination that some potential witnesses had gone to ground and could not be found.
16.	So far as interviews with the appellants are concerned, there was evidence that both had arrived at the police station together on 2 July and had subsequently been interviewed.  Brannan gave “no comment” answers in response to questions put to him, but Murphy after initially doing the same thing, gave a lengthy account of events in his fourth interview on 3 July.  In it he described Pollitt coming towards him calling him a “grass”, and pulling out a gun.  He saw Pollitt pull the trigger.  He, Murphy, pulled out his axe and raised it to head level.  Pollitt was trying to get the gun to fire.  Then Donnelly came over and got hold of Murphy, holding his hands, and keeping him away from Pollitt.  Then Donnelly left but came back saying Pollitt had shot himself.  Murphy said that he had not seen Brannan stab Pollitt, nor had the two of them gone into the club intending to kill Pollitt or cause him grievous bodily harm.
17.	On several occasions during this interview, which was read to the jury, the interviewing officer, D.S. Bentley, put to Murphy the fact that no-one else had seen a gun that night.  A typical question read as follows (page 29):
“Do you know we’ve interviewed a heck of a lot of people who were in there that night and there is nobody at all that makes reference to a gun?”
Murphy replied to that question that he just did not believe it.  D.S. Bentley was cross examined about this with particular reference to a woman called Christina White, who had been spoken to by a D.C. Mortimer, but he said that her name did not ring any bells.  He did concede that there had been a rumour about a gun, but no witness to it.  We shall have to return to this topic in due course.
18.	It acquires significance, because in his summing up the judge on two occasions drew attention to how it was in this long interview of Murphy on 3 July 1991 that there had first been any reference to a gun.  When dealing specifically with the issue whether or not there was a gun, the judge said this (page 13):
“As I indicated it may be that the first direct reference we know of putting any time to the gun is in this long interview record of Mr. Murphy, and as far as that is concerned, that was some eight days or so after the offence.”
Later when dealing with Murphy’s interview the judge commented:
“The Crown say this account was given by him at a time which was some eight days after this incident had taken place, ample time, as it were, to create this story that he has led before you and ample time to get organised a story about a gun.”
It is clear that the fact, as it seemed to be, that the first mention of a gun came from Murphy and then only some eight days after the incident was being presented to the jury as potentially significant and capable of casting doubt on his version of events.  In essence the suggestion was that the reference to Pollitt having had a gun was a recent invention of Murphy’s.
19.	Murphy gave evidence at the trial broadly in accordance with his account provided at interview.  He said that he had had the axe, which was about 12 inches long, like a tomahawk, with him on arriving at the club that night.  It was concealed in his waistband.  He had it because he was afraid of being attacked by people who considered him a grass.  He was not searched on entry, and searches were never conducted.  As for the incident itself, he described Pollitt coming towards him shouting “grass” with a gun in his hand.  Pollitt pulled the trigger twice, but the gun failed to go off.  He pulled out the axe, and may have said that he would kill Pollitt.  Donnelly grabbed him and told him to stay away.  He heard Lisa Worthington screaming and Donnelly said that Pollitt had shot himself.  He saw the victim on the floor but did not see Brannan.
20.	His sister Catherine Murphy also gave evidence, largely confirming her brother’s account.  She saw Pollitt with a jacket over his arm with something inside it.  She went over to him but was shoved to one side.  He pulled out the gun and pointed it at Murphy.  Pollitt moved the top of the gun but it did not go off.  She moved away.  There was panic and a lot of pushing.  She then saw Pollitt on the floor but did not know what had happened.  She did not see Brannan during this period of time.  She was living at this time with Brannan as his common-law wife, and had done so for a number of years.  Brannan did not give evidence at trial.  
21.	That then was the evidence at the trial.  
The Evidence at the 1993 Appeal
22.	The appeal was brought on the basis that there was available evidence from several witnesses that Pollitt had had a gun that night.  The Court of Appeal gave leave for four witnesses to be called on behalf of Brannan and one on behalf of Murphy.  Two of then, Michelle Driver and her sister Beverley Salt were heard, even though they did not satisfy the requirements of section 23(2) of the Criminal Appeal Act 1968 as it then stood, the court taking the view that it was necessary or expedient in the interests of justice that they should be called.  Brannan himself and Peter Gairns were also permitted to give evidence, the court emphasising that the giving of leave for Brannan to be called was quite exceptional and done, as with Gairns, simply so that the court heard all the evidence relating to the issue of the gun.  The fifth witness called was D.C. Mortimer, who had made a report in 1991 on a conversation he had had with Christina White on the 29 June 1991 in which she had referred to seeing Pollitt produce a handgun and point it at Murphy.  
23.	Before us it has been agreed that the oral evidence given by these five witnesses is accurately summarised in the Court of Appeal’s judgment.  John Brannan told the court that he went to the club that night carrying a knife for his own protection.  He was with Murphy and Gairns.  Trouble arose because Pollitt pushed his girlfriend Catherine Murphy away.  He went over towards Pollitt to hit him but then saw Pollitt holding a gun at waist level.  He thought Pollitt was going to shoot Murphy, because there had been an assault some months earlier.  He, Brannan, got his knife out and went forward for the gun.  He thought he had got Pollitt in the hand, but knew that he had made contact with him.  He had not intended to stab Pollitt, he had just reacted to the gun.  He could see to his left Murphy and Donnelly fighting over an axe.  He went over to Murphy and they went to the door.  He then saw Pollitt on the floor at the top of the stairs.  He and Murphy left and he dropped the knife down a drain.  He agreed in cross-examination that he had decided to say that he had a knife only after he had been convicted and after seeing the statements of Michelle Driver and her sister, in which they said that he had stabbed Pollitt.  He also said that he had not seen a coat covering the gun, or heard Murphy shouting “kill him” or “I’ll kill him”.
24.	Michelle Driver knew Pollitt and both appellants.  She described being at the club and hearing a commotion, and then seeing Pollitt approaching the bar with a gun in his hand.  Catherine Murphy was arguing with him.  Then there was a scuffle between Pollitt and Brannan.  Brannan had a knife and she saw a gun in Pollitt’s hand, a small gun.  He had had a jacket over his wrist.  Bernard Murphy had something in his raised hand.  She thought she saw Brannan punch Pollitt in the stomach, but then saw him put a knife into the back of his pants.  Pollitt fell straight to the floor.  She did not see Brannan or Murphy after that.  Someone shouted “someone’s shot Michael Pollitt”.  When the police arrived, she was outside the club and denied having been inside it.  In cross-examination, it emerged that she had been before the courts on five occasions for offences of dishonesty, once being charged with Catherine Murphy.  She admitted that she had told Catherine Murphy from the outset that she had seen the gun.  She said that she had told the police that she had not been in the club because she was frightened.
25.	Beverley Salt’s evidence was that she had seen Bernard Murphy with an axe in his hand, shouting.  When she looked round, there was another lad near the door with a gun in his hand.  There was a coat over the hand in which Pollitt held the gun.  Catherine Murphy walked up to that lad, Pollitt.  The next thing Brannan had stabbed him.  The bouncers came and dragged Pollitt to the top of the stairs.  Like her sister, Beverley Salt had convictions for dishonesty, including one for conspiracy to defraud which had resulted in a nine months prison sentence.
26.	Peter Gairns described a struggle between Murphy and Donnelly and seeing Pollitt in the doorway pointing a gun towards them.  Pollitt pulled something on top of the gun back twice.  He, Gairns, then took cover and when he emerged Pollitt was lying on the floor and everyone was running about.  He had not seen Brannan stab Pollitt.  He had made two statements to the police, in the first of which he made no mention of a gun and in the second of which he said that he had not seen Pollitt armed with a gun or any other weapon.  To the Court of Appeal, Gairns said that he had made those statements in that form because he had not wanted to get involved.  He had deliberately absented himself during the trial and subsequently had served 28 days for contempt.
27.	D.C. Mortimer dealt with his report on a conversation with Christina White on 29 June 1991.  She had told him about a confrontation between Pollitt and Murphy.  His report continued:
“She saw Pollitt produce a handgun and point it at Murphy who was armed with an axe.  Donnelley was restraining Murphy.  She said she saw Pollitt point the gun at the floor and click the trigger of the gun three times but it did not fire.  She then says that Lisa got Pollitt’s coat as he wanted to leave and sort the matter out another time.  Pollitt was holding his coat in front of him and she saw Brannan walk up to him, pat him with one hand and say words to the effect that he would see Murphy tomorrow and then he stabbed Pollitt in the stomach.  Brannan left the club via the front stairs alone followed by another man whom she refuses to name.
She says that Pollitt looked around the room and then fell to the floor.  She saw the gun and it was picked up and a magazine removed from the handle.  The gun then disappeared. ”
Orally, D.C. Mortimer added that Christina White was at the time a legal executive with a firm of solicitors; she was the niece of a Manchester criminal well known to the police; and she had told him that she had been threatened not to make a statement to the police.
28.	In its assessment of all this evidence in 1993, the Court of Appeal noted that at trial the defence for Brannan was that he did not have a knife and had not stabbed Pollitt.  Murphy had said that Brannan had no quarrel with Pollitt, but he had gone further and given evidence that Pollitt had had a gun, giving rise to a potential defence of self-defence.  The court then said at page 28 A-E :
“We then turned to consider this question: if there had been a gun in Pollitt’s hand and Brannan had used the knife in an instinctive reaction to seeing that gun pointing straight at him from a distance of 1 or 2 feet, what is the possibility that Brannan would not have told those acting for him of that fact, and would not have been advised by those defending him to give and to call evidence?
We consider that possibility to be nil.
The evidence of Brannan is that the first time he told any lawyer of a gun being in Pollitt’s hand was the first time he told any lawyer that he had used the knife, and that was in the statement he made to Mr Dyson on 29th June 1992, after he knew of the statements of Michael Driver and Beverley Salt, and that they in their statements were saying that he had stabbed Pollitt.”
The court went on to note that Brannan had during the appeal proceedings not waived privilege, with the result that the court had not seen the proofs or instructions given by Brannan to his solicitors before trial.  The court said that it was entitled to draw an inference from this.
29.	It then commented that it was unlikely that Bernard Murphy’s defence team would have been unaware of the existence of Michelle Driver and Beverley Salt, given their contacts with Catherine Murphy and yet they had not been called at trial.  The court noted that neither of them had mentioned the coat draped over Pollitt’s wrist until cross-examined, both had convictions for dishonesty; and Michelle Driver’s evidence that she had been sitting at the same table as Catherine Murphy, Bernard Murphy and John Brannan was inconsistent with Brannan’s own evidence.  The court rejected Gairns’ evidence utterly because of discrepancies in his evidence, the conflict with his two earlier statements, and his demeanour as a witness.  It clearly regarded him as a lying witness and said that this “casts a great shadow over this story”.
30.	The court then returned to Brannan’s evidence.  It commented that his description of how he had gone for Pollitt’s hands did not explain how he managed to cause a wound penetrating to a depth of 8 inches.  In addition his description of Pollitt still standing after being stabbed was in conflict with all the other witnesses who said that Pollitt went to the floor immediately on being struck.
31.	There then followed this passage at page 34 in the Court of Appeal’s judgment:
“We simply do not accept Brannan’s account of the stabbing, and we do not accept that Pollitt was still standing when Brannan turned and walked from him.  There is no logical explanation in our view for Brannan not telling any of his lawyers about Pollitt having a gun, and permitting them to advise him on whether he should or should not give evidence without informing them of this vital fact.  Brennan could have told his lawyers that Pollitt had a gun, whether or not he told his lawyers that he, Brannan, had stabbed Pollitt. ”
32.	In respect of Christina White, the court referred to evidence which she had given on oath after the trial in proceedings against her for contempt.  On that occasion she had said that there was no gun but pressure had been put on her by Murphy and his sister to give evidence that there had been a gun.  Given that conflict and her relationship to a prominent member of the Manchester underworld, the court regarded any evidence she might give as quite worthless.
33.	As a result, the Court of Appeal did not regard the fresh evidence as credible.  The court added at the end of its judgment:    
“This case has in our view all the hallmarks of being a carefully prepared campaign by these two men.  They go to ground for a number of days.  They resurface at the same time.  One stays silent; the other, after initial silence, put forward what may be called ‘the gun defence’.  The effect is that the appellants then had two chances of acquittal.  Once that fails there then emerges fresh evidence to support the gun defence, including evidence coming directly from one of the persons convicted.  Although we use the phrase “fresh evidence” we take the view that these were not witnesses who were unknown to them and unavailable to the appellants had they at their trial wished to call them.”
34.	It is quite clear from reading the judgment of the Court of Appeal in 1993 that the court there was influenced to a significant degree by the apparent failure of Brannan to tell his solicitors before trial that Pollitt had had a gun.  The passage already quoted from page 28 establishes this, and then the court returned to the same point near the end of its judgment in the passage quoted from page 34, before concluding that after surfacing one of the two men had put forward “the gun defence”.  It seems to us that this factor must have had a profound effect on the way in which the court in 1993 approached its assessment of the fresh evidence given by the various witnesses.
35.	The position in terms of evidence about a gun stood, therefore, after the 1993 hearing as follows: at trial, the doorman, Haslam, had described Pollitt with a gun but had done so only in cross-examination and not to the police.  The appellant Murphy had also given such an account, but his evidence must have been weakened in the eyes of the jury by the emphasis in the summing-up on him having been the first person to mention a gun some 8 days after the incident.  This “recent invention” status must have also affected the assessment of his sister Catherine’s evidence to like effect.  No other eyewitness mentioned a gun, and Lisa Worthington said positively that Pollitt, her boyfriend, had not had a gun.
36.	During the 1993 appeal, Brannan himself had described Pollitt as having had a gun, as had Michelle Driver, Beverley Salt and Peter Gairns.  But this was all seen by the court as part of a carefully prepared campaign, at least partly because it seemed incredible that Brannan would not have disclosed to his trial lawyers that Pollitt had had a gun.  No weight seems to have been attached by the Court of Appeal to the evidence that Christina White had told D.C. Mortimer about Pollitt having a gun, and had done so on 29 June 1991, some 4 days before Murphy gave his account to the police in interview.
The Grounds of the Present Appeal
37.	The appeal on behalf of Bernard Murphy is brought on two main grounds.  First, it is contended that, in the light of further fresh evidence, there is a real possibility that the jury would have concluded that Pollitt had or might have had a gun.  Secondly, the Crown failed to disclose at trial material which was relevant to the defence, this material consisting of four police documents on or before 1 July 1991 recording information received that Pollitt had had a gun.  It is said that these items, had they been known to the defence, would have enabled it to counter the proposition that Murphy was the first person to mention a gun, at the time of his lengthy interview on 3 July, and might also have led to further witnesses being identified and called.  There is also a third ground, which has not featured prominently during the hearing of this appeal, namely that the fresh evidence also goes to establish that the appellants were not searched on first entering the club, which is relevant on the issue of joint enterprise.
38.	On behalf of John Brannan, the same two main grounds are advanced.  It is contended that the fresh oral evidence, as well as transcripts of conversations with Christina White, show that a jury might well have concluded that Pollitt had or might have had a gun.  In addition, the documents not disclosed might have led the jury to take a more favourable view of the evidence of Michael Haslam in cross-examination about a gun.  Finally, privilege is waived as to certain documents and oral communications passing between Brannan and his legal advisers before trial or between his solicitors and trial counsel, so as to demonstrate that he had told those advisers about Pollitt having had a gun but had been advised that it was irrelevant to his defence.
The Evidence before this Court
39.	Section 23 of the Criminal Appeal Act 1968 has been amended since the earlier appeal in 1993.  Section 23(1) gives to this court on an appeal the power to receive evidence not adduced at trial “if they think it necessary or expedient in the interests of justice”.  Section 23(2) requires the court, in exercising that discretion, to have regard in particular to four factors, (a) to (d).  The last of them is “whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings”, i.e. at trial.  There is authority that, even if none of the criteria in section 23(2) are met, the court still has the power to receive the evidence under section 23(1): see R. v. Sale, The Times, 16 June 2000; R –v- Pendleton [2001] UKHL 66; [2002] 1 WLR 72, para. 10.
40.	Dominic Donnelly was, at the time of trial, an associate of Michael Pollitt, though also a friend of Murphy and of Brannan.  He was interviewed by a police officer after the killing of Pollitt but claimed that he could not remember anything about the incident because of the amount he had drunk by that time of night.  This was said in the presence of a solicitor, Keith Dyson, who was subsequently to act for Murphy and Brannan.  The Criminal Cases Review Commission, having interviewed him at length in August 1998, regarded his new evidence as being “key to the safety” of the convictions (Statement of Reasons for Reference, para. 9.67).  In the circumstances we concluded that it was necessary in the interests of justice that we heard his evidence.  
41.	Francis Dean, one of the doormen who had given evidence at the trial, had allegedly failed to describe everything which he had seen because of threats made to him outside the Express Club.  There was material before us which might lend some support to this allegation of a threat.  We took the view that we should receive his evidence because it was necessary to do so in the interests of justice, and we so concluded in respect of evidence from Keith Dyson, who had been the solicitor for Murphy and Brannan in the earlier pre-trial stages and for Murphy alone up to and throughout the trial.  We were more hesitant about receiving the evidence of two further witnesses, Karen Greenwood, Murphy’s fiancée at the time of trial, and her father Barry Bolton.  Neither of them met the criteria of section 23(2).  Both were available to the defence at time of trial and neither was expected to add significantly to the evidence, since neither was present in the Express Club at the time of the incident.  We would not have received their evidence, had it stood alone.  However, bearing in mind that this was a reference under section 9(1) and is a second appeal, and having already received some further evidence, we decided that it was expedient in the interests of justice that we should hear these two witnesses as well, so that there could be confidence in the finality of this appeal.
42.	Dominic Donnelly gave evidence that earlier on the evening in question he had been with Michael Pollitt and Lisa Worthington and Mark Schiavo and that they had all subsequently arrived at the Express Club.  He did not remember being searched when they went in.  He was sitting at a table with Mark Schiavo when he heard a noise and saw the gesticulating of arms over his left shoulder.  Heated words were being exchanged between Murphy and Pollitt.  He himself got up and grabbed Murphy, because he was waving something in his hand, and he Donnelly wanted to calm things down.  Pollitt came towards them putting his hand into his midriff.  When Donnelly turned towards him, Pollitt had pulled out a gun and was pointing it at him, because he was holding Murphy and Pollitt was pointing the gun at Murphy but Donnelly was in the way.  Donnelly described Pollitt coming towards them, trying to manoeuvre around tables and chairs and still aiming the gun.  People were getting out of the way.  He himself turned back again to Murphy, and when he turned round once more Pollitt was on the floor.  Murphy and Pollitt were still between seven and nine feet apart at the closest.
43.	Donnelly described the gun as resembling a seem-automatic, an 8-9mm gun.  He did not see the side of the gun because it was pointed towards him.  When the police arrived, he did not give them this account of events.  The reason for this was that he did not want to get involved.  Nor did he know who had injured Pollitt or what had happened.  When it came to the 1993 appeal, he again tried to stay away from things as much as possible.  He was in Spain a lot of the time and may have been there when the appeal hearing took place.  He said that he thought the result of the appeal would be a forgone conclusion, because everybody would mention the gun.  He had not come forward this time to give evidence, but police officers had arrived at his house (as part of the Commission’s investigation) and mentioned some review.  So he thought that it was time that he stood up and was counted.  He had had time to reflect on the case.  August 1998, when this approach took place, was the first time that he had told anyone about the existence of the gun.  
44.	Under cross-examination Donnelly denied that he had said to P.C. O’Reilly what is recorded in a note by that officer, namely that “he’s been shot by that bastard Murphy”.  He said he could not have told O’Reilly that, because he had hold of Murphy at the time, and that was confirmed by a number of other people.  When he was cross-examined about the version of events given by Murphy in interview, Donnelly accepted that he could have said “he’s shot himself” but he did not remember saying those words.  Everything had happened in a few seconds.
45.	He was asked about the interview of him by officers not long after the incident, when he had said that he could not remember anything at the club because he was so drunk.  Donnelly denied that that was a lie, saying that it was true that he could not remember Pollitt having a gun at the time of that interview.  He said that his emotions were running high at that time and he did not want to get involved.  He was experiencing a mixture of emotions and he did not want to get involved.  (It was suggested to him that this interview was on the 4 July 1991 some nine days after the incident, but it emerged subsequently that that date might have been the date when the interview record was entered by the officer concerned.)  He was in shock and he did not want to upset the two families involved.  He accepted that he had been sentenced in 1988 for assault with intent to rob, receiving a term of five years imprisonment.  However, he emphasised that most of his criminal record was before he was 21 years old and that there was nothing since 1986 which was when he had committed the offence for which he was sentenced in 1988.
46.	Francis Anthony Dean, one of the doormen who had given evidence at trial, is now a serving prisoner as the result of a conviction for conspiracy to import cannabis, a conviction in November 1999.  He said that when he had given evidence at the trial he had missed out about one minute of what had happened.  He had done this because, before the police had originally asked him about the events, he had been approached outside the club and threatened.  This happened about 10 or 15 minutes after the incident had occurred.  A man whose face he knew, though not at the time his name, said something like “what you’ve just seen upstairs, if you mention it it will be used on you”.  He understood this to be a reference to the gun which Pollitt had had and that he should not say that he had seen the gun.  He now knew the name of the person who threatened him, which was Robert O’Neal.
47.	What he had omitted to say at trial was that when the manager had shouted from upstairs, he had run to the top of the stairs.  As he got there he went in and saw Pollitt sideways on with a little handgun sticking out from his body.  So he, Dean, backtracked downstairs and locked the gate there.  He had gone down because his bottle went.  But he had no doubt as to what he had seen.  He did not actually know Pollitt, but the person that died that evening was the person whom he had seen holding the gun.  He said that the police had contacted him in June 1998 and taken a statement from him but he had not said anything about the handgun at that stage because he had felt that the threat from O’Neal was still alive.  After that he had received his prison sentence and was then in jail for the first time and had had time to reflect.  That was why he had decided to speak now.  
48.	In cross-examination he denied saying to P.C. O’Reilly, as recorded by that officer, “it was Bernard Murphy who stabbed him.  He’s not going to get away with it this time”.  He also denied saying to the police that he had been offered money to say he had seen a gun.  Michael Haslam had told him that there were rumours that money was being offered to come forward and he thought that he had said that to the police.  This was money to encourage people to come forward to tell the truth.  He was asked why in his witness statement of 4 July 1991 he had mentioned the knife and the axe and yet had not mentioned the gun.  His answer was that no one had told him not to mention those other weapons, just the gun.  He denied knowing in 1998 that O’Neal was dead.  The threat from O’Neal was still in his mind at that time and that was why he had not mentioned the gun then.  
49.	Keith Dyson is a solicitor practising in Manchester, as he was in 1991.  He gave evidence that his first professional involvement concerning the incident at the club was when he was contacted by Donnolly because the police wanted to speak to him.  He had gone with Donnolly to the police station for an informal interview.  He was sure that that was only a short time after the incident, and Donnelly was tearful and upset and could not remember anything.  Donnolly was very distressed and said that he had not slept since the incident.  Dyson thought that the interview could have taken place on the Tuesday after the incident in the early hours of the Monday morning.  
50.	He had first heard mention of Pollitt producing a gun in the club when he had gone to the Magistrates’ Court on the Monday morning.  This came from someone who had not been an eyewitness and was only hours after the incident.  At this stage he had not been contacted by either Murphy or Brannan.  He denied that Murphy had telephoned him on the Monday morning around 8.30am as Karen Greenwood said in her statement; her recollection was inaccurate on that.  It was sometime later that he had a phone call from Murphy, saying that he was wanted by the police and there was then a series of phone calls from Murphy over some days.  He then got phone calls from Brannan as well.  In the course of these telephone calls Murphy mentioned the gun, but Keith Dyson could not remember whether Brannan had mentioned it on the phone.  He described collecting both of them in due course from a house in South Manchester and driving to the police station.  Both men had mentioned Pollitt having had a gun and had said this independently of each other before going to the police station.  Brannan had been aware that the gun had been taken out of the club.  This dictated the legal advice given, before the interviews, because it was not clear what case was going to be put to the two men.  Therefore, originally it was decided that they should make no comment.  When the gun was mentioned by the interviewing officer to Brannan, Brannan’s demeanour changed.  He had been told by Brannan that Pollitt had had a gun and that it had been taken out of the club after the incident.  Brannan was saying that he had seen the gun.  Subsequently in re-examination Dyson stated that Brannan had told him that Pollitt had had a gun, but he could not recall whether Brannan had said that he had seen it.
51.	In cross-examination part of Brannan’s instructions to counsel for trial were put to him, where Brannan was said to have stated that he did not see the scuffle itself nor was he at anytime aware of Pollitt producing a gun.  Dyson’s response to this was that that was not what Brannan had told him.  He ceased to act for Brannan before the committal hearing on 29 August 1991 because it became apparent that developing the case on behalf of Murphy was likely to strengthen the case against Brannan.  Establishing the existence of the gun might also establish the fact that Brannan had stabbed Pollitt.  
52.	He said that he had received the account of D.C. Mortimer’s conversation with Christina White before trial and had made contact with her on quite a few occasions.  She gave a very forceful account of what had happened, including the gun having been produced by Pollitt.  She came to court on the original date fixed for the trial in January 1991 and was served with a witness summons to attend the trial in February.  Because she was a legal executive, he had never thought that she would disobey the summons.  When she did eventually, they had obtained an arrest warrant.  This was late on in the trial.  The police were saying that she would come and give evidence but she tried to negotiate through a police officer terms about the conditions on which she would give that evidence and the court would not accept that.  He had been astonished at the account she gave when the contempt proceedings took place, because it was quite different from her account given to him.
53.	Karen Greenwood, Murphy’s fiancée, gave evidence that he had come home in the early hours of the morning in question and was very shaken up.  He told her that Pollitt had shouted abuse at him and when he turned he saw that Pollitt had a gun.  He was trying to get the gun working.  Donnolly and Mark Schiavo had held him, Murphy, back and when he was let go he saw that Pollitt was on the floor.  His first thought had been that Pollitt had shot himself and it was only the next day that he heard that it was a knife wound.  Karen Greenwood said that Murphy had phoned his solicitor at around 8.30 that morning about breakfast time.  Then they had gone to her father's house and from there to a caravan site.  Brannan had eventually come to the caravan site as well and on one occasion the two men had wanted to speak to each other on their own.  It was while at the caravan site that she had learned that Brannan had used a knife on Pollitt, and Bernard Murphy had known that as well.  She agreed under cross-examination that she had known all these details in July 1998 when a police officer had seen her on behalf of the Commission.  But he had asked different questions.  
54.	Her father, Barry Bolton, described Murphy and his daughter coming to his house in the small hours of the Monday morning.  He had taken then to a caravan site he knew in North Wales and over three or four days Murphy had told him about the incident.  Murphy had spoken of having a small axe in his hand and had described how the other guy had said that he would shoot him with a gun.  He had subsequently taken Brannan to the site where Murphy was, and they had spent the weekend together there.
55.	In addition to this oral evidence, other material was put forward before the court in a variety of forms.  Certain facts concerning information provided to the police about Pollitt having had a gun were agreed as evidence before us.  By this means it was established that:
i)	there was an anonymous telephone call to the police from a female on 26 June 1991 at 14.04 hours to the effect that she had heard from two different sources that a bloke called “Cathead” (i.e. Murphy) was involved and that Pollitt had had a gun with him.  This was recorded as message M9.
ii)	that, during a police interview with Haslam on 26 June 1991 at 14.45 hours, he had said that a taxi driver had told him that he had seen the whole incident, that Pollitt had had a small handgun which he aimed at Murphy, that the gun appeared to jam and that Brannan had then stabbed Pollitt.  This was recorded as report A19.
iii)	that Christina White telephoned the police on 26 June 1991 at 21.00 hours to say that she had witnessed the incident at the Express Club and that she would make a statement.  This was recorded as message M13.  (She was, as we have already noted, interviewed by D.C. Mortimer on 29 June 1991, when according to his report, she stated that she had seen Pollitt produce a handgun, point it at the floor and click the trigger three time without it firing.)
iv)	that a known informant stated to the police on 1 July 1991 at 11.40am that the club manager “Shay” Power had told him that Pollitt had pointed a firearm at Murphy but that when the trigger was pulled the firing pin fell out.  This was recorded as message M21.
v)	that as a result of that last information the police decided to re-interview “Shay” Power about information relating to the firearm.  (The date of this decision is unknown, but it must have been before the re-interview on 4 July at 12.00 hours).
vi)	that none of the above matters were disclosed to the defence before or during the course of the trial in 1992. 
It is also agreed that those matters were disclosed before the hearing of the appeal in 1993.  Likewise it is formally agreed that Christina White had informed D.C. Mortimer on 29 June 1991 in the terms already noted.
56.	We have also had put before us, without objection, certain documents dealing with the information disclosed by Brannan to his solicitors before trial and the advice given to him by his legal advisers, professional privilege having been waived in respect of these.  We have had regard to those under section 23 of the Criminal Appeal Act 1968, since they would have been admissible not to show the truth of the statements made in those documents but to demonstrate that (contrary to the Court of Appeal’s assumption in 1993) Brannan had disclosed to his legal advisers before trial that Pollitt had had a gun.  Three documents in particular come into this category.
57.	First, there is an attendance note by his solicitor recording that Brannan wished to defend Murphy as far as possible but had been advised that he should consider himself first and foremost.  That note is dated 13 September 1991.  Two days later Brannan wrote to his solicitor saying:
“I know there was a firearm on the premises in the possession of Michael Pollitt, I know he intended to shoot my co-accused Mr. Murphy, I know what happened to the gun afterwards and who was involved in its disappearance.”
58.	Finally, there are the instructions to trial counsel acting on behalf of Brannan in 1992.  Two passages in this document are potentially of relevance.  First, it is said that “Brannan’s case” is that:
“although he saw the aftermath of the scuffle between Pollitt and Murphy he did not see that scuffle itself nor was he at any time aware of Pollitt producing a gun.”
Secondly, later in the instructions, the solicitors raise a tactical question, saying:
“Further, by virtue of matters canvassed in his statement and comments on depositions, he (Brannan) is quite convinced that on the night in question Pollitt was indeed in possession of a small hand gun.  Initially he required that aspect to be fully explored and amplified during the course of any trial.  Instructing Solicitors pointed out to him that it was not their business to defend Murphy and that, on the basis of Brannan’s instructions, the issue as to whether Pollitt had a gun was irrelevant ... .  Instructing Solicitors trust that the above tactical approach is correct, particularly in view of the fact that the only witness whose statement to the police makes mention of a gun is to be found in the unused material and is non (sic) other that Katherine Murphy.”
59.	The last category of material put before us consists of transcripts of two tape-recorded conversations with Christina White.  The first of those took the form of an interview of her by a private investigator, Stuart Greatbanks, working for Murphy’s solicitor on 8 December 1991.  It was available to Murphy at trial but not, it seems, to Brannan.  The second seems to be a recording of a conversation between Brannan and White on or about 6 January 1992, when the trial was originally scheduled to start.  It was available to Brannan at trial but not to Murphy.
60.	The Prosecution did not seek to resist this material being received by the court.  It seems to us that it may well have been admissible at the February 1992 trial under either section 23(2)(c) of the Criminal Justice Act 1988, on the basis that as at that date Christina White had failed to answer a witness summons, and a warrant for her arrest had been issued, but had not been executed, or alternatively under section 23(3) if Greatbanks could properly be seen as a person charged with the duty of investigating offences.  In all the circumstances we take the view that it is right as a matter of discretion in the interests of justice for us to receive this evidence.
61.	In the conversation with Stuart Greatbanks, Christina White confirms in effect what she had told D.C. Mortimer on 29 June 1991.  She says that she witnessed the incident:
“Bernard Murphy pulled an axe, Michael Pollitt pulled a gun ... He let the gun go three times, he had the safety catch on.”
Brannan knifed Pollitt, who dropped the gun on the floor.  White tells Greatbanks that she did not want to get involved in the case, because of her career as a legal executive. 
62.	The transcript of the conversation between White and Brannan is not of good quality, it being clear that parts of the recording were inaudible or unintelligible.  Nonetheless, the two participants discuss the possibility that Lisa Worthington would give evidence at the trial without referring to the gun.  This is described as her not telling the whole truth.  White expresses anxiety about giving evidence herself about the gun, in case she were to reveal that Brannan had stabbed Pollitt. 
The submissions
63.	On behalf of the appellant Murphy, Mr. Martin-Sperry emphasises that the issue of when a gun was first referred to had become a central point in the case by the time of summing-up at trial.  During the fourth interview of Murphy the police officers repeatedly said that he was the first person to mention a gun, and the point received considerable attention during the judge’s summing-up.  Yet one now knows from the undisclosed material that there had been a number of people who, prior to that interview of Murphy, had provided the police with information that there had been a gun.  Had the Defence been in possession of such material at the time, it would have enabled them to rebut the powerful argument that the presence of the gun was a late invention by Murphy eight days after the incident.
64.	While it is right that the Defence did have Christina White’s comments recorded by D.C. Mortimer on 29 June 1991, they expected her to give evidence at trial, as the solicitor Keith Dyson has testified.  Some of the undisclosed material, such as the report A19 dated 26 June 1991, actually went into some detail about the gun jamming, in line with what both Murphy said in interview and Haslam said at trial.  Moreover, the undisclosed material, had the Defence had it at trial, would have enabled them to seek further witnesses or to have cross-examined “Shay” Power and the taxi driver “Crazy Horse” Clark.  They were deprived of this opportunity.  Though these items were known about by the time of the appeal in 1993, they do not seem to have been pursued to any real degree in argument.
65.	Mr. Martin-Sperry accepts that Donnelly was an unsatisfactory witness, but he submits that the evidence of what Christina White said in the tape-recorded conversations is a powerful indication that Pollitt did have a gun.  Little weight should be attached to her evidence in the contempt proceedings, where it was not possible for the Defence to cross-examine her, and where she was clearly trying to find some excuse for her non-attendance at trial.
66.	It is contended that the Court of Appeal in 1993 had been greatly impressed by the apparent fact that Brannan had never told his lawyers before trial about the gun and so could be seen to be lying in his evidence to the Court of Appeal.  That impression affected the court’s view of the other witnesses, who they saw as being part of a deliberate conspiracy to deceive the court.  But it is now clear that Brannan had told his lawyers about the gun.  The evidence of Keith Dyson to that effect is supported by the documents now available as a result of the waiver of privilege.
67.	Finally, Mr. Martin-Sperry submits that there is a lot of evidence that entrants to the club that evening were not searched on entry.  Lisa Worthington amongst others testified to that, and no one other than Haslam gave evidence that entrants were searched.  There was therefore no proper basis for finding Murphy guilty on the basis of joint enterprise.
68.	Mr. Fulford, Q.C., on behalf Brannan, also submits that the non-disclosure by the prosecution contributed to the serious false impression created for the jury that Murphy’s interview was the first mention of Pollitt having had a gun.  The Crown’s argument that this was a “late invention” must have had a powerful effect on the jury, who were misled as a result.  This must have affected their assessment of Murphy’s evidence about the gun.
69.	At the same time, Haslam’s evidence at trial about the gun was seriously weakened because it was not referred to in his witness statement to the police.  He said in evidence that he believed that he had mentioned it, but the judge in summing-up commented that “it is common ground that he did not”.  Yet in fact he had mentioned a gun to the police on 26 June, as is shown by the undisclosed report A19, albeit that the information was said to come via a taxi driver.  Since his evidence at trial was the only independent evidence about Pollitt having had a gun, the apparent weakness of that evidence was of great importance.  It is also argued that the non-disclosure of the various items hampered the Defence in cross-examining witnesses like the taxi driver, Clark, and the manager, “Shay” Power.
70.	Mr Fulford makes a similar point to that made on behalf of Murphy, namely that in the light of the evidence of Keith Dyson and the privileged documents now available, the basis for the rejection of Brannan’s evidence by the Court of Appeal in 1993 cannot be sustained.  That court had looked at the new witnesses collectively and saw all the fresh evidence as part of a carefully prepared campaign, with the result that the court’s view of Brannan coloured their view of all that evidence.  The assessment of the credibility of all those 1993 witnesses may well have been different, had the court known about Brannan’s early references to a gun and about the legal advice he was given.  The phraseology used by Brannan as recorded in the instructions to counsel can be understood, given that his defence at the time involved him trying to distance himself from the incident.  
71.	Finally it is submitted that the cumulative effect of all the witnesses at trial, in 1993 and now, plus the documents, referring to a gun raises a real possibility that a jury hearing such evidence would conclude that there may have been a gun.
72.	For the Crown Mr. Scholes, Q.C., contends that the non-disclosure of certain documents was of no significance.  The Defence were already in possession at trial of D.C. Mortimer’s report of his interview with Christina White.  Message M9 would have been devastating to Murphy’s case, had it been used at trial, and report A19, recording Haslam’s reference to a gun, would have added nothing to the evidence Haslam actually gave at trial.  It is not accepted by the Crown that the jury were misled as to when the police first became aware of the possibility that Pollitt had had a gun.  Christina White was wholly flawed as a witness.  She should be seen as a fantasist and a liar and her various statements disregarded.
73.	The Criminal Cases Review Commission had in its Statement of Reasons described Donnelly as the key to the safety of the convictions.  Yet his evidence in the witness box was such that no reliance can be placed upon it.  What the fresh evidence called at this hearing does reveal is that Murphy lied at the trial.  The evidence of Karen Greenwood shows that he knew that Brannan had stabbed Pollitt.  
74.	While there was evidence suggesting that entrants to the club had not been searched on the night in question, there was also evidence to the contrary.  All the evidence on this topic had been put before the jury and they had clearly concluded that Murphy was guilty on the basis of joint enterprise.  There was no reason for this court to interfere with that verdict.  The Court of Appeal reached the right decision in 1993 and nothing put before this court should lead to any different decision now.
The role of this Court 
75.	Section 9(2) of the Criminal Appeal Act 1995 provides that a reference by the Commission shall be treated for all purposes as an appeal under section 1 of the Criminal Appeal Act, 1968.  It follows that this court has to decide whether these convictions, or either of them, are unsafe or not.  The approach to be adopted by the Court of Appeal when fresh evidence is advanced has been given recent consideration by the House of Lords in Pendleton (ante).  In that case Lord Bingham of Cornhill emphasised that the Court of Appeal has an imperfect and incomplete understanding of the full processes which led the jury to convict.  He then continued (para. 19):
“The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard.  For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict.  If it might, the conviction must be thought to be unsafe.”
The majority of the House agreed with that formulation, which reflects the fact that the primary decision-maker in trials on indictment is the jury and not the Court of Appeal. 
Analysis
76.	We begin our own analysis with an assessment of the oral evidence put before us.  Dominic Donnelly was not an impressive witness.  Although some parts of his evidence-in-chief rang true, as when he described people getting out of the way as Pollitt came towards him and Murphy, pointing the gun, and his comment that he did not see the side of the gun, because it was pointing at him, it is impossible to accept his evidence in cross-examination that at the time when he was interviewed by the police he could not remember Pollitt having a gun.  He claimed that he believed at that time that it was true that he was so drunk that he could not remember the incident.  We do not believe that.  There were other obvious weaknesses in his evidence.  He also has a criminal record involving serious offences, though without recent convictions.  We take the view that a jury would have attached little weight to his evidence.
77.	We have reached the same conclusion about Francis Dean, one of the doormen.  He made no mention of having seen a gun when interviewed by police on behalf of the Commission as late as 1998, and his explanation for having now decided to come forward and “tell the truth”, namely that he had had time to reflect in prison since his conviction in November 1999, was not convincing.  He also denied having made certain statements to the police in 1991 which had been noted at the time.  Those factors, plus his criminal record, have led us to take an unfavourable view of his credibility.  Karen Greenwood was more capable of belief, even though a jury would no doubt have borne in mind that she was Murphy’s fiancée and was living with him at the time.  She was not an eyewitness of the incident itself, but she did give evidence which would show that Murphy was referring on his return home immediately after the incident to Pollitt having had a gun.  Some of her evidence given in examination-in-chief was not favourable to the appellant’s case and this leads us to regard her as a more reliable witness on those matters she dealt with.  The evidence of her father, Barry Bolton, is of no real significance.
78.	In contrast, the evidence of Keith Dyson, the solicitor, is of significance.  If accepted, it would show that Murphy was mentioning the gun in the course of telephone calls some time before the appellants went to the police station on 2 July 1991; that both appellants had separately mentioned Pollitt having had a gun at least shortly before going to the police station; that Brannan was telling his legal advisers about this as early as July 1991; and that Christina White had been expected to attend trial and that only late during the trial did it become apparent that she would not do so.  There was one area of conflict between his evidence and that of Karen Greenwood, as to when he was first contacted by Murphy, but looked at overall we can see no reason why a jury would not have regarded Dyson as a credible witness.
79.	Nonetheless, taken by itself the oral evidence produced before us would not persuade us that these convictions were unsafe.  Nor can we see any force in the arguments advanced on behalf of Murphy about the issue of joint enterprise.  The evidence now relied upon on his behalf about the absence of searches of those entering the club that evening was almost entirely before the jury at trial.  There was evidence the other way from Haslam, and there was also evidence of hostility on the part of Murphy towards Pollitt.  It must be the case that the jury, having heard all this evidence, concluded that joint enterprise was established and almost certainly that Murphy was aware of the knife carried by Brannan.  Certainly there is no basis for interfering with the jury’s verdict because of evidence about entrants to the club being searched.
80.	That means that this case turns upon the issue of whether the jury might reasonably have concluded that Pollitt might have had a gun, had all the material now available been before them.  Allied to this is the issue of the non-disclosure by the Crown of the matters set out in para. 55 of this judgment
81.	It is clear to us that, by the time the jury retired to consider their verdicts, a great deal of emphasis was being placed on the apparent fact that the first mention of Pollitt having had a gun had come eight days or so after the killing, in the course of the long fourth interview of Murphy on 3 July 1991.  The summing-up indicates that the Crown was suggesting that this was a story invented by Murphy during that intervening period.  The judge, as set out in para. 18 of this judgment, referred to that interview as being the first direct reference to the gun.  The jury may well have accepted the Crown’s suggestion.
82.	Yet the undisclosed material reveals that from as early as 26 June 1991, two days after the incident, the police had been receiving information from various sources to the effect that Pollitt had had a gun.  Message M9 was merely an anonymous telephone call, but the other items were potentially of greater significance.  The information passed on by Haslam in report A19 was quite detailed, including as it did a description of the gun appearing to jam – a description which accords with Murphy’s own account in interview and in evidence.  The police clearly took seriously the information provided by the known informant about “Shay” Power’s description of Pollitt pointing a firearm at Murphy, because they decided to re-interview Power.  Yet neither the informant record (message M21) nor the decision to re-interview Power was disclosed to the Defence at trial.
83.	Even under the disclosure procedures operative in 1991 – 1992, i.e. the Attorney-General’s Guidance of 1981, these items should have been disclosed, because they had “some bearing” on the offence charged and the surrounding circumstances of the case.  We do not find the points now made on behalf of the Crown generally persuasive.  Message M9 would not have been devastating to Murphy’s case: apart from referring to Pollitt having had a gun, it merely recorded the informant as saying that “Cathead” (Murphy) “had something to do with” the incident.  Report A19, dealing with Haslam’s interview on 26 June, was important and did add to the evidence he gave at trial, because it showed that he was making mention of Pollitt having had a gun as early as 26 June, many days before Murphy’s long interview.  It is true that Haslam is speaking of what he had been told by a taxi driver, but that does not materially diminish the significance of the timing of this information received by the police.
84.	Indeed, this report A19 was potentially significant in two further ways.  First, it illustrates how non-disclosure may have prevented the Defence from putting such references to a gun in cross-examination of prosecution witnesses, such as the taxi driver Clark, or from pursuing potential Defence witnesses disclosed by the material.  Secondly, in the case of Haslam, report A19 might have made his evidence at trial about the gun seem more credible in the eyes of the jury.  His was the only independent evidence at trial about Pollitt having had a gun, and we accept Mr. Fulford’s argument that Haslam’s contention that he had mentioned the gun to the police must have seemed to the jury difficult to accept when the judge told them that “it is common ground that he did not”.  The fact that was that he had made mention of a gun to the police at the interview on 26 June.  Had that been known to the Defence and to the jury, his evidence about the gun might have been regarded by the jury as more worthy of belief.
85.	We return to the issue of the apparent “late invention” by Murphy of the story of the gun.  It is true, as Mr. Scholes stresses, that the Defence at trial did have D.C. Mortimer’s report about his conversation with Christina White on 29 June, in which she referred to Pollitt having a handgun and clicking the trigger three times without it firing: see para. 27 of this judgment.  This was not used by the Defence to rebut the argument of late invention, apparently because until very late in the trial it was expected that Christina White would be giving sworn oral testimony.  But whatever the reason, the end result was that the judge and jury were misled.  It must be that prosecution counsel overlooked this particular report, because it was not consistent with the prosecution’s argument, recorded in the summing-up, that the gun story was something created by Murphy during the eight days before his substantive interview.  Moreover, that argument must have been reinforced in the minds of the jury by the several references by officers during that interview to the “fact” that nobody else had made reference to a gun.
86.	All of this led to the emphasis placed by the judge in his summing-up on this ‘late invention’ point: see para. 18 of this judgment.  Given the crucial importance of the gun in the way the issues were left to the jury, the non-disclosure of material items and the way in which the jury may well have been unwittingly misled must cause concern.  It had the effect of downgrading both Murphy’s evidence about the gun and Haslam’s independent evidence along similar lines.
87.	We turn next to the topic of the fresh evidence given to the Court of Appeal in 1993.  This is inherently a difficult area to deal with, since that court heard those witnesses in 1993 and we have not done so.  Nonetheless, the judgment of that court makes it crystal clear that the court was greatly influenced by the apparent fact that Brannan had not told his solicitors in 1991 that Pollitt had had a gun.  The court took the view that, had he done so, he would have been advised to give and to call evidence: see para. 28 of this judgment.
88.	We have concluded that, in the light of the evidence now available, that reasoning cannot be sustained.  The letter from Brannan to his solicitor dated 15 September 1991, together with the instructions to trial counsel and the evidence of Keith Dyson, reveal that Brannan had told both his original solicitor and the solicitor acting for him at trial about Pollitt having had a gun.  It is true that he couched the information provided to his trial solicitor in terms of “knowing” that Pollitt had had a gun rather than in terms of having himself seen the gun, but we see force in Mr. Fulford’s point that that phraseology may well have flowed from the fact that his main case at trial was that he was not personally involved in the incident.  Moreover, it is evident from the documents that Brannan was advised by those acting for him that the gun was irrelevant to his defence.  That undermines the reasoning in the Court of Appeal’s judgment quoted in paras. 28 and 31 of this judgment, reasoning which was patently of importance in their assessment of Brannan’s credibility.
89.	It follows that this court cannot simply adopt the assessment of Brannan’s credibility and of his evidence which was made by the Court of Appeal in 1993.  Some of the considerations which led that court to disbelieve his evidence remain, but the very significant ones just referred to are no longer valid.  Since that court admitted his evidence in 1993 under section 23 of the Criminal Appeal Act 1968, we take the view that we should have regard to that evidence and treat it as having more credibility than it was seen as having in 1993.
90.	This has repercussions for the assessment of the evidence of the other witnesses who gave evidence at that earlier appeal hearing.  The Court of Appeal on that occasion was, in our view, influenced in that assessment by the conclusion it had reached about the main witness it heard, Brannan.  Undoubtedly those other witnesses were of variable quality.  Gairns seems to have been singularly lacking credibility in his own right.  But it is more difficult to say what weight would have been attached to the evidence of Michelle Driver and Beverley Salt, had the court not come to the conclusion that the “gun defence” had not been mentioned by Brannan until after the trial and that the evidence put before it was part of a carefully prepared campaign.
91.	This court is in the position where it can only consider the factual material as given in evidence at the 1993 hearing, together with what was known about those witnesses and any other material relevant to their credibility.  With the exception of Gairns, it does not seem to us that the fresh evidence given in 1993 can simply be treated as worthless.  A jury might have been prepared to attach some weight to the evidence of Brannan, Driver and Salt.
92.	So far as Christina White is concerned, we have already dealt with the issue of when Pollitt’s possession of a gun was first mentioned to the police.  The evidence about her various statements concerning the substance of what she saw on the night in question does reveal an obvious conflict between, on the one hand, what she told the Crown Court during the contempt proceedings against her and, on the other hand, what she told D.C. Mortimer, Stuart Greatbanks and John Brannan.  That conflict undoubtedly reduces the significance of her statements.  Nonetheless, we do not believe that it renders those statements of no materiality.  There was a considerable degree of consistency in the detailed descriptions she gave to Mortimer and Greatbanks of Pollitt’s handling of the gun, including his attempting to fire it three times.  Her very different version of events given at the contempt hearing was, at least in effect, self-exculpatory and probably intended to be so.  None of her statements were open to testing by cross-examination and that must reduce the weight to be attached to them, but in our judgment her descriptions of Pollitt with the gun cannot be entirely disregarded.
93.	We accept that all the evidence now available has to be looked at as a whole, including the evidence at trial, that given at the 1993 appeal hearing and the fresh evidence produced before this court.  The situation has altered since 1993.  Both Murphy’s evidence and Haslam’s evidence at trial, and Brannan’s evidence in 1993, may well have been discredited by factors which now appear to have been unjustified.  There is a knock-on effect, as we have described, on the assessment of some of the other evidence given in 1993.  When all the evidence now available about Pollitt’s possession of a gun is put together, we find it impossible to say that a jury hearing such evidence would necessarily have come to the same conclusion.
94.	It has to be emphasised that the appellants were themselves partly responsible for the outcome both of the original trial and of the 1993 appeal.  Brannan declined to give evidence at the trial, put forward a false defence and did not waive privilege for the 1993 hearing.  Murphy had the tapes of Christina White’s conversation with Greatbanks available and chose not to use them, and both appellants had the record of her interview by D.C. Mortimer available.  As the Court of Appeal noted in 1993, Murphy’s defence team were likely to have been aware of the existence of Driver and Salt and yet they were not called to give evidence at trial.  
95.	Nonetheless, our task is to consider whether these convictions are unsafe or not.  Because of the way in which the issue of the gun became of central importance when the charges were left to the jury, we have concluded that the totality of the evidence now available on that topic, if given at trial, might reasonably have affected the decision of the jury to convict these two men.  In those circumstances these convictions must be regarded as unsafe and therefore both appeals are allowed.
Mr Justice Forbes:
96.	I agree.
Mr Justice Gross:
97.	I also agree.
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LORD JUSTICE KEENE:  These appeals are allowed, for the reasons set out in the detailed judgment which has already been handed down.  However, for the benefit of those who may not have had access to that judgment, we propose to give a brief summary of our reasons.  This summary, I emphasise, does not form any part of the formal judgment.
      These two appellants were convicted in 1992 of the murder of Michael Pollitt and their appeals were dismissed by the Court of Appeal in 1993.  The matter has since been referred to this Court by the Criminal Cases Review Commission.
      There is now no dispute that the appellant Brannan killed Pollitt by stabbing.  In our view there was adequate evidence on which the jury could have found, as they did, that this was a joint enterprise in which the appellant Murphy was involved.  However, a central issue by the end of the trial was whether Pollitt had had a gun, thus giving rise to a defence of self‑defence.
      In the hearing of this appeal, fresh evidence on that issue has been put before this Court.  We have concluded that, had a jury heard both that fresh evidence and the additional evidence put before the Court of Appeal in 1993, they might reasonably have come to the view that Michael Pollitt might have had a gun at  the time when he was stabbed.  In those circumstances the convictions cannot be upheld and the appeals are allowed.
      Yes.
MR FULFORD:  My Lord, today Mr Gregory appears for the Crown.
LORD JUSTICE KEENE:  Yes.
MR FULFORD:  Otherwise, the representation is the same.
LORD JUSTICE KEENE:  Yes.
MR FULFORD:  My Lords, there was a period between January of 1999 and October of 1999 when my instructing solicitor was working for the appellant in assisting the Commission in the preparation of the report.  As my Lords know, Brannan committed suicide some little time ago.
LORD JUSTICE KEENE:  Yes.
MR FULFORD:  Those costs will now fall on to the estate and effectively his family.  I know that these days it is expected that counsel can provide an estimate of costs.  They will be no more than £2,000, and I would ask the Court to make a ‑‑ certainly what used to be called a defendant's costs order.  I am not sure whether that precise terminology has survived the new regulations, but my Lords will know what I mean.  I ask for an order that will not exceed that sum. 
LORD JUSTICE KEENE:  Thank you.  Are there any other applications?  Yes, Mr Martin Sperry.
MR MARTIN SPERRY:  My Lord, a similar application as far as Murphy is concerned.  His position is slightly different, inasmuch as there was a substantial amount of work which was undertaken pro bono by those who instruct me in order to have the case referred to the Criminal Cases Review Commission, to assist the Commission, and work up to the point when the case was referred back and legal aid was granted.
      My Lord, I would ask that a similar order be made in their favour.  My Lord, I am not able to give the Court a figure.  It will take some careful calculation because there was a substantial amount of work that was undertaken, by both them and their counsel, on a pro bono basis.
LORD JUSTICE KEENE:  Yes.  We shall make defendant's costs orders in both cases.
MR FULFORD:  Very much obliged, my Lord.
LORD JUSTICE KEENE:  Are there any other matters arising?
MR FULFORD:  No, my Lord.
LORD JUSTICE KEENE:  Thank you very much.