Neutral Citation Number: [2002] EWCA Crim 29 
No. 2000/07242/S3
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Monday  14  January  2002
B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)

MR  JUSTICE  MITCHELL

and

MR  JUSTICE  KEITH
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REFERENCE  BY  THE  CRIMINAL  CASES  REVIEW COMMISSION

UNDER  SECTION  9  OF

THE  CRIMINAL  APPEAL  ACT  1995
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R E G I N A

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PATRICK  IRVINE
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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
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MR C M TREACY QC and MR M BURROWS appeared on behalf of THE APPELLANT
MR N SWEENEY QC and MISS S BENNETT-JENKINS appeared on behalf of THE CROWN
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J U D G M E N T
Monday 14 January 2002
1.	THE LORD CHIEF JUSTICE: This a reference to this court by the Criminal Cases Review Commission. As often happens in cases which are sent to this court by the Commission, it deals with convictions which took place a substantial period ago. On 26 February 1982, following a 33-day trial in the Crown Court at Birmingham, the appellant was convicted of and sentenced as follows: for manslaughter, to 20 years' imprisonment, and for robbery, to 15 years' imprisonment. Those sentences were ordered to be served concurrently, and so the total sentence was 20 years' imprisonment. 
2.	On 12 December 1983, the full court presided over by May LJ refused the appellant's renewed application for leave to appeal against conviction and sentence. An application for leave to appeal against conviction of two co-accused, Twitchell and McCloy, was likewise refused. The appellant now appeals against conviction following a reference by the Criminal Cases Review Commission. The basis for the reference is that the police officers from the West Midlands Serious Crime Squad who were involved in the case have since been discredited in other cases in which the convictions have been quashed. In particular, a confession made by the co-accused Twitchell which implicated the appellant (although it was not admissible as evidence against him) has been discredited. 
3.	On 26 October 1999, this court presided over by Rose LJ, V-P, quashed the conviction of the co-accused Twitchell. The decision of this court in that case is reported at [2000] 1 Cr App R 373. The fact that that case has been reported enables this court to deal more succinctly with the facts of this case than would otherwise be appropriate. 
4.	Two co-accused, Hammond and Twitchell, like the appellant, were both convicted of manslaughter and robbery and were also sentenced to 20 years' imprisonment. Two further co-accused, Steele and McCloy, were convicted of robbery and sentenced to 15 years' imprisonment. Twitchell's conviction was quashed, as already indicated, but Steele and Hammond appealed only against sentence. 
5.	In November 1980 a team of six men were involved in a serious robbery of cash amounting to some £11,500 from a Securicor guard outside a factory in Church Street, Willenhall in the West Midlands. A Securicor van stopped on the road opposite some double glass doors which led into the factory. The loading bay was obstructed by a vehicle which had been stolen. When later examined, the van was found to have a “spy hole” bored in its side behind the driver. When the Securicor guard crossed the pavement with his bag of cash, he found that a metal bar had been placed across the double glass doors, thus impeding his access. He removed it and threw it to the ground. But before he could enter the building, someone shot him at point blank range with a sawn-off shotgun. Alas within half an hour he was dead. A Daimler car (sometimes referred to in the papers as a Jaguar), which had been stolen earlier, was parked just behind the Securicor van immediately before the shooting. Immediately after the shooting the car went up the street with its driver (a man who was never arrested) and four passengers. 
6.	There was various evidence which led to the detection of those who were involved. Two plain clothes police officers, who knew nothing about the robbery, were on patrol in the district in an unmarked car when they saw the Daimler approaching from behind. Both vehicles stopped on account of the traffic. The officers' attention was drawn to the vehicle. One of the officers took its number. Both officers saw a man who was wearing a blue boiler suit and carrying a holdall leave the vehicle. He walked over to the car park of a dog track and got into a BMW and drove away. The officers followed the BMW, having lost sight of the Daimler. A chase developed which ended with the BMW crashing while leaving Spaghetti Junction on the M6. Two men got out and were caught after running off. The driver had been Steele and his passenger had been Hammond. 
7.	The prosecution case against the appellant was that he was stopped on 9 January 1982 on a motorway and breathalysed. He was released after passing the test. He gave a false name and had grown a beard. On 10 January he called on a Mr Millard who found him unrecognisable for a few seconds. Millard enquired what had happened at the robbery. The appellant explained what had gone wrong. He said that he was in the back of the van and had “tried the gun” before getting out but the safety catch was on. He tried the two barrels and they both clicked. He explained that he had gone up to the security guard, “poked” him with the gun and told him to put the money down. The guard turned round and laughed. The appellant was taken aback and “poked” at him with the gun again, and it went off. He was shocked. They all ran back to the van or car. The appellant then explained that he had been picked up on the motorway for drinking and that he been taken to the station. He was arrested on 23 January 1982. 
8.	Five days later, Millard, a man with convictions for theft, received a sum of £255 with which to pay certain fines. The money was part of the reward offered by Securicor arising from the death of the guard. The full amount offered was £25,000. Millard later lied in his evidence when he said that the £255 was the money he sought. 
9.	In due course the appellant was arrested as being involved in the murder. He was placed in a police car and he was alleged to have made the following remark, “I suppose it's Brendon that's bubbled me”. He was alleged to have said that he was glad it was all over. Asked where he had been since he did the job. He said, “You have to keep moving all the time, haven't you?” He was asked if he had seen any of the others, he said that the last time he saw Brendon was the day the job was done. He had not seen McCloy since the job. He repeatedly asked who had put the call to the police and he said that it did not make any difference now. He was told that the finger had been pointed at him for shooting the guard. He was asked if that was right and what had happened. He replied, “It makes no different in the end who pulled the trigger -- we were all there and have to stand it in the end”. 
10.	Later at 5.35pm he was interviewed by senior officers. His attitude then was one of denial and reliance on his rights. 
11.	The appellant did not give evidence, but made a statement from the dock. In that statement he took the line that he was not involved in the crimes; he had said nothing to Millard; he did not tell the police that he was glad it was all over; he did not later say that it did not matter who pulled the trigger. In other words, the whole of the conversation alleged by the prosecution to have taken place in the police car was a fabrication. He said that he went on the run because he was afraid the police might “verbal” him. 
12.	Twitchell was arrested on the day of the incident. The police impounded the vehicle with him. The two officers who had been in the vehicle which had originally chased the Daimler said that they had recognised him as the man in the nearside rear passenger seat of the Daimler. He was interviewed and made various statements. He gave evidence and set up an alibi. On 12 November, the day before the robbery, he said that he had been at a club with a lady whom he named; that he got there about 8.30 - 8.45pm and did not get home until 2am; and that the following day he was in bed until 10.30am. He called the lady concerned to give evidence on his behalf. He also called other witnesses. 
13.	Were it not for what happened subsequently, the decision of this court not to interfere with the convictions would have been all too understandable. If there had not been the misconduct on behalf of the officers to which we referred at the outset of our judgment which discredited the police evidence, there would have been no reason for interfering with the conviction. However, in support of referring the conviction of this appellant to this court, the Commission refer to the discrediting of the police evidence and the impact of the quashing of the conviction of Twitchell. They also refer to the admission of Twitchell's confession implicating the appellant, though inadmissible against him. 
14.	The fact of the matter is that the only real evidence against this appellant is the evidence of admissions which he was alleged to have made after his arrest in the police car -- admissions which were not subsequently repeated but in fact subsequently denied. 
15.	Other grounds were relied upon by the appellant in support of his reference to the Commission, but they are not supported by the Commission. 
16.	The prosecution, having considered the case put forward by the Commission in support of this appeal, have come to the conclusion that this is a case where the conviction is unsafe largely for the reasons indicated by the Commission in its reference. We have considered carefully the grounds which are set out in the case and we agree. We have come to the conclusion that there is no basis for upholding this conviction, having regard to the evidence which is now before this court. 
17.	The evidence of Millard is seriously undermined. We have already expressed our views about the alleged admissions in the police car. In those circumstances we set aside these convictions. The appeal will now be allowed and the convictions quashed.