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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Brown, R v [2002] EWCA Crim 2804 (13 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/2804.html Cite as: [2002] EWCA Crim 2804

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Wednesday, 13th November 2002

1. THE VICE PRESIDENT: On 19th October 1997 at Manchester Crown Court, following a trial before Milmo J, the appellant was convicted of murder and sentenced to life imprisonment. He appeals against conviction upon a referral by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, made on 12th June 2002. Previously, on 12th October 1978, the Court of Appeal had refused the appellant's renewed application for leave to appeal against conviction, the Single Judge having refused leave.
2. The allegation against the appellant, who was 19 at the time, was that, on 28th January 1977, he had murdered a single 51 year old woman called Annie Walsh, in her flat in Hulme, Manchester. Her body was found just after 10.30 on the morning of 31st January 1977, and the cause of her death (which had occurred two or three days before) was multiple blows to the head from a blunt object, whereby there had been fractures of the nose and upper jaw and 16 lacerations to the face.
3. The evidence against the appellant, as the judge made clear in the course of his summing-up, came principally from the confessions which the appellant was said to have made to police officers. To that, in due course, we shall return. But it is necessary to refer, briefly, to some of the other evidence which was before the jury.
4. A woman called Margaret Jones, who was a friend of the deceased, said that, on the afternoon of 28th January, she had stopped and spoken to the deceased for about quarter of an hour, at a little before 4 o'clock. The deceased was with a man, whom Margaret Jones had not seen before. She described him as being 20 to 25 years of age and as having a very thin, boyish face and shoulder length fairish/gingerish hair and a Scottish accent. She also gave a description of his clothing.
5. On 25th March 1977, Mrs Jones attended the first of three identification parades and she picked out, on that date, a 37 year old man called Robert Hill, as to whose appearance there was no evidence before the jury. To Robert Hill we shall later return.
6. At a second identification parade, she did not pick out anyone. On a third parade, she picked out the appellant, but claimed that he had changed his appearance from when she had seen him, as she said, with the deceased. It is pertinent to note that the judge, in his summing-up, directed the jury that it would be dangerous to convict the appellant on Mrs Jones' identification evidence alone.
7. A woman called Mrs Goodman gave evidence that the appellant, for a little time prior to the murder but that period ceasing in November 1976, had lived with her, together with his 15 year old girlfriend. She said that 28th January was a significant date to her because it was the birthday of her daughter. She said that, having been in a public house that evening, she returned home to be awakened in the early hours by a banging on her door. At her door was the appellant with blood on his face and shirt, saying that he had been in a fight in a local pub.
8. Mrs Dougan, who was, at the time, staying with Mrs Goodman, said that she was awakened at about 1.45 in the morning on 29th January, and she went into the kitchen and saw Mrs Goodman and the appellant with a swollen nose, blood on his jacket, jeans and T-shirt and looking as though he had a nose bleed.
9. There was evidence from a Mrs Malone which, as the judge pointed out in his summing-up, was difficult to reconcile with the evidence of Mrs Goodman and Mrs Dougan. Mrs Malone said, eventually, having been recalled, that, on the night of 28th/29th January, the appellant had definitely been watching a television programme called Rich Man, Poor Man, the first episode of which went out on that evening between 10.30 in the evening and 12.15 in the morning.
10. We turn to the police evidence. The appellant was arrested at 7.20 on 18th May 1977, in relation to a wholly unconnected matter which was used, effectively, as an excuse for questioning the appellant about the murder. There was evidence from the appellant and from his girlfriend, which was by no means consistent, in relation to the appellant having been assaulted by the police at the time of his arrest.
11. According to the police evidence, the appellant was first questioned at Moss Side CID office on the morning of 18th May. It was said by the appellant that there had been no such interrogation at that time. It was said that, shortly after that first questioning, there was an interview, with Detective Superintendent Bethel asking questions and Detective Inspector Butler acting as scribe, recording what took place. The appellant's account was that no one was writing anything at all, and the purported record of the interview, in the course of which, according to the police officers, no admissions of any kind were made by the appellant, was a fabrication. There was said to have been a second interview, on the morning of 19th May, again, by Detective Superintendent Bethel and Detective Inspector Butler. Again, it was said that no admissions had been made.
12. On the afternoon of 19th May, there was said to have been a third interview. During the course of this, the appellant was shown a pair of jeans. He admitted, according to the evidence from the police officers, that they were his jeans. He was then shown the jeans opened up, with bloodstains upon them. As the judge commented in his summing-up, the production of those jeans, covered in blood, probably did shake the defendant very considerably. In fact, they were not the appellant's jeans. They belonged to a woman although there is no evidence that the police knew this at the time they were shown to the appellant. The reason why they were bloodstained was because the woman, while wearing them, had miscarried. It was said, by the prosecution witnesses, that Superintendent Bethel and Inspector Butler then left the room, leaving the appellant with Detective Inspector Pearson, who said that, within a few minutes, the appellant admitted killing the deceased.
13. At his trial, the appellant denied making any such admissions. According to the police evidence, Mr Bethal and Mr Butler were recalled to the room and the appellant made full admissions, including a reference to the deceased eating biscuits before he had killed her and a reference to the weapon as being "an ornament or something". It was said that the defendant told the police that he had put the ornament in a rubbish shute on the floor below. The shute was searched. No such ornament, nor any other potential murder weapon, was found, either in the shute or in the adjacent dustbins.
14. The appellant, in evidence, said that he had been assaulted by police officers, prior to the identification parade on which he had been picked out, and that no notes had been made at any of the alleged interviews by Bethel and Butler. According to the appellant's evidence before the jury, he had said "yes" to a succession of questions which the police officers had posed, asserting detail of what it was claimed the appellant had done.
15. In the evidence of Detective Superintendent Bethel was this, as rehearsed in the summing-up:

"There was a considerable period of oral interrogation and when that was closed, he was asked whether he wanted to make a statement or not. Then he made the statement and the statement was taken down as he dictated it. The officer is saying that the questioning had been concluded before the accused made the written statement."

16. Detective Butler's evidence was that Bethel had recorded Brown's statement at Brown's dictation. Detective Inspector Pearson's evidence was:

"It was not Bethel putting the story to the defendant and the defendant accepting it. The written statement was taken as spoken. It was dictated by Brown and written by Bethel."

17. There was evidence from a police doctor who saw the appellant on the early evening of 19th May, for the purpose of taking specimens from him. He received no complaint from the appellant that he had been assaulted and he did not see any sign of assault to him. A Dr Martin, who examined the appellant some 60 hours or so later, said there was a little tenderness on the appellant's upper chest, right rib and abdominal wall, but the appellant made no complaint to him of assault. The appellant's explanation to the jury of the absence of complaint was that he thought it would have done no good and might simply have led to further violence.
18. In his evidence, the appellant denied any knowledge of ever having met the deceased. He said that he had watched Rich Man Poor Man in all its Friday episodes. He said that he had been punched in the stomach on arrest by one of the police officers and in the course of interviews with Bethel and Butler he had cried. No notes had been made during the interview and he had never said that he knew the deceased or had walked home with her. He said that Butler had used violence to him, punching him in the stomach and ribs, prior to the identification parade. Two other officers, whom he named, had been present at the time and had dragged him over a table. Bethel had come in and told the officers not to hit the appellant in the face. He had been asked if he wanted a solicitor, but Butler had told him that only a guilty man asked for a solicitor.
19. On 9th May, Detective Inspector Pearson had told him that he had helped others to achieve a manslaughter verdict in what would otherwise have been a murder case.
20. So far as his appearance at Mrs Goodman's home was concerned, he said that there had been an occasion when he had arrived covered in blood but that had not been on 28th/29th January, but the previous November. He had not been there at all on the 28th/29th January.
21. He said that Bethel had punched him in the ribs, prior to him, the appellant, making the statement. What had happened was that Bethel had asked questions to which he had replied 'yes'. Butler had written down a statement ostensibly made by him which was not true.
22. That then was the evidence before the jury. Since the trial, a number of important events have occurred. There had been disclosed before trial to the defence a report from a Mr Handoll, a biologist dealing with the scene of the crime. But it is conceded by Mr Bevan QC, on behalf of the Crown, before this Court, although he did not, of course, appear at trial, that no disclosure was made to the defence at trial, or before it, of a second report from Mr Handoll, which dealt with a fibre found on the deceased's coat. The substance of that report was that the fibre was consistent with having come from a sweater belonging to the man, Hill, whom, it will be recalled, Margaret Jones had picked out on the first identification parade as having been with the deceased on the afternoon before she met her death.
23. On 29th March 1983, Detective Chief Inspector Butler (as he had then become) was sentenced to 4 years' imprisonment, having been convicted of attempting to pervert the course of justice and accepting bribes. His conduct had come to light as the result of an enquiry, started in 1979, culminating in what has been referred to as the Topping Report, by Superintendent Peter Topping. That report, to which the Criminal Cases Review Commission, understandably, attached considerable importance, was one in relation to which, perfectly properly, PII immunity was claimed. It was by virtue of an order of this Court, with the express acquiescence of Mr Bevan on behalf of the Crown, that it was disclosed to those representing the appellant for the purposes of this appeal. That disclosure was made last week.
24. The significance of that report, for the purposes of this appeal, can be very shortly expressed: in addition to the matters which gave rise to Butler's conviction in 1983, it was apparent to Superintendent Topping, by virtue of the enquiries which he made, that, between 1973 and 1979, there was, sadly, at Platt Lane police station in Manchester, a culture of corruption and conspiracy to pervert justice over which Detective Inspector Butler had presided in a senior role.
25. The Criminal Cases Review Commission sought an analysis of the appellant's statement of alleged confession, and the police written records of the interviews which were said to have preceded, it from Professor Coulthard, a Professor of English language and linguistics. His report was one to which the Criminal Cases Review Commission attached considerable significance. His conclusion was that the appellant's confession statement was produced, at least in part, by a process of questioning by police officers and answers from the appellant, being converted into a monologue ostensibly emanating from the appellant. The reasons for that conclusion do not call for consideration at this stage.
26. The Crown, in turn, obtained a report from Professor Hoey, another Professor of linguistics. He differed in some respects, particularly of emphasis, from Professor Coulthard. But, during the last week or so, the two Professors, with the endorsement of this Court at a directions hearing last week, have reached agreement in a written document which is before the Court. Only one sentence in that document need be referred to. It is this:

"It is more likely than not that the confession statement was introduced in part as answers to eliciting questions."

27. One further event since the trial should be referred to. In a television programme on 14th June 1993, Mrs Goodman appeared and said that she had made a mistake regarding the evidence which she had given at trial. It is to be noted that she had first made a written statement to the police about the events which she said had occurred on the 28th/29th January 1977, in May 1977.
28. In the light of all these events, there were five grounds of appeal. Two of them can be shortly disposed of because Mr Emmerson QC, in his submission on behalf of the appellant this morning, made no reference to them. One of those grounds was critical of the summing-up and posed the question as to whether it had made the position clear to the jury that the burden of proof in relation to the integrity of the disputed interviews was on the Crown. This is an aspect which, to a minor extent, influenced the Criminal Cases Review Commission in making the reference to this Court. Having read the summing-up, we reject the criticisms of it. As it seems to us, from the summing-up as a whole, and particularly having regard to the passages in relation to the burden and standard of proof at pages 4 and 5 of the transcript and the passage dealing with the alleged confession at pages 13 and 14 of the transcript, the jury could have been left in no doubt that they should rely on the confession only if they were sure it was true and not the result of violence or fabrication.
29. The other ground not adverted to by Mr Emmerson today arises from the alleged doubt as to the credibility of Mrs Goodman's evidence before the jury, having regard to what she said on television in 1993. The Criminal Cases Review Commission were unimpressed by this matter, and so are we. Quite apart from other considerations, it is inherently improbable that a witness's purported recollection of events 16 years after they occurred will be more reliable than her recollection 4 months after those events.
30. The three grounds referred to by Mr Emmerson, however, are a different matter entirely. The way in which Mr Emmerson puts the matter in relation to the position of Butler is that his integrity was of crucial importance at the trial. He claimed to be the scribe of the interviews and he claimed to have been present when the confession statement was made. If the jury had known of the fact and level of Butler's corruption culminating in his criminal conviction in 1983, relating to his conduct embracing the period when the appellant was arrested, interviewed and tried, that must have had a very serious impact upon the jury's approach to his evidence.
31. Secondly, so far as the linguistic analysis of the two Professors is concerned, as encapsulated in the agreement between them in the sentence which we have already cited, that evidence would clearly, if available, have supported the defendant's account rather than the police officer's account of how the confession statement came to be made.
32. Thirdly, so far as the nondisclosure of the evidence in relation to the fibre is concerned, first, submits Mr Emmerson, the fact that such a fibre may have come from the sweater of a man identified by Margaret Jones as having been with the deceased on the afternoon prior to her death, may well have raised a doubt in the minds of the jury in relation to the guilt of the appellant. Furthermore, submits Mr Emmerson, the fibre evidence would also have been relevant to the reliability or otherwise of the confession, allegedly made by the appellant, that he had been with the deceased on the afternoon prior to her death and had walked home with her from the bingo hall outside which he was said to have met her. That was particularly so, bearing in mind that there was evidence before the jury from one witness that the deceased had arrived home alone carrying her shopping, which certainly catered for the possibility that whoever had been with her earlier in her journey had not gone into the house with her. That evidence was inconsistent with the defendant's alleged admission that he had gone all the way home with the deceased. The cumulative effect of these three matters, submits Mr Emmerson, is compelling: the jury's verdict cannot be regarded as safe.
33. On behalf of the Crown, Mr Bevan, very helpfully indicated, immediately that those submissions by Mr Emmerson had been advanced in outline, that, although the safety of this conviction is, as it undoubtedly is, a matter for this Court, the prosecution's stance was that they would be in grave difficulty in seeking to uphold the safety of the conviction. There were matters set out in the Crown's response to this appeal, dated 12th October 2002, on the basis of which it was then contended that the conviction should properly be regarded as safe.
34. But, as Mr Bevan rightly pointed out, a considerable number of events have occurred since the Crown set out their case in that response. The statement of leading counsel for the defence at trial is now in the hands of the Crown, indicating that the fibre evidence was almost certainly not disclosed to the defence at trial: indeed, if it had been, use would clearly have been made of it in the sort of way to which earlier we have referred. Furthermore, Mr Bevan has had the advantage of a consultation with Professor Hoey, which has resulted in the agreed statement of himself and Professor Coulthard. Furthermore, Mr Bevan has now had the opportunity of reading the extremely lengthy Topping Report, only some of which bears upon Butler. Further, Mr Bevan has had the opportunity of considering the written submissions on behalf of the appellant, which, for understandable reasons, (including, as we have said, the fact that the Topping Report could not be disclosed to the defence until last week), were not available until the end of last week in their final form.
35. Mr Bevan accepts that the three matters to which we have referred provide, as he puts it, "an essential foundation" for this appeal. He invites the Court's attention to the test which, it is common ground this Court must apply when deciding whether the appellant has satisfied the Court that the conviction is unsafe.
36. Lord Bingham in Pendleton [2002] 1 WLR 72, at page 83, the last part of paragraph 19 said this:

"The Court of Appeal can make its assessment of the fresh evidence that 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 those 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."

We should say, which we have not so far said expressly, that, in the exercise of the powers contained in section 23 of the Criminal Appeal Act 1968 (as amended), we have thought it fit, in the interests of justice, to admit fresh written evidence in relation to Butler, linguistic analysis and the fibre although it has not been necessary to hear oral evidence from anyone in relation to those matters.

37. Applying the approach indicated by Lord Bingham, in our judgment this verdict cannot be regarded as safe. That is so because we could not possibly be sure that the jury, had they known what we know, would have reached the same verdict. It is, put at its lowest, a possibility that they might have reached a quite different verdict. Accordingly this verdict is unsafe. It is quashed and the appeal is allowed.
38. MR EMERSON: May I say, since this case was referred back, the appellant has been legally aided. As is often the position with cases of this kind, a considerable amount of work was done unfunded by the solicitors in the case before it was referred back to the Court of Appeal. In those circumstances, I wonder whether the Court could consider it appropriate for costs out of Central Funds to be taxed, either to be specified - which I am not a position to do - or subject to an order there be taxation and for the relevant costs by the Registrar.
39. THE VICE PRESIDENT: We shall make the order that costs be paid out of Central Funds to be taxed.