Neutral Citation No. [2003] EWCA Crim 27
Case No: 2001/2477/Y2
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24th January 2003

Before :

LORD JUSTICE KENNEDY
MR JUSTICE DOUGLAS BROWN
and 
MRS JUSTICE HALLETT
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	R		
	-v-		
	Anne Marie MURRAY		

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Patrick O’Connor QC for the Appellant
Patrick Thomas QC and Timothy Hannam for the Crown

Hearing date: 16th December 2002
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Justice Kennedy:

1.	On 18th April 1989 in the Crown Court at Birmingham this appellant was convicted of attempted robbery and was sentenced to two years imprisonment.
2.	On 10th August 1989 her appeal against conviction was dismissed, but the appeal against sentence was allowed.  The sentence then imposed was two years imprisonment, one year of which was suspended. 
3.	She now appeals against conviction, her case having been referred to this court by the Criminal Cases Review Commission, the cause for concern being that the case against her rested almost entirely upon the evidence of an informer Paul Jarvis who was in contact with officers of the West Midlands Serious Crime Squad who since 1989 have been discredited.  
Facts of Offences.
4.	Paul Jarvis, together with others, committed a great many offences in the Midlands in 1986, including armed robberies, burglaries and thefts.  He had previously been a police informer for DC Woodley and when arrested he was asked by DC Woodley if he wanted to become a police protected informant (or supergrass).  He agreed, and authority then had to be obtained up to Home Office level.  That authority was sought by DCI Brown (then in charge of the West Midlands Serious Crime Squad operations) and was forthcoming.  Paul Jarvis was then moved to Chelmsley Wood Police Station where, over a period of seven months, he made about 86 statements to DC Woodley and DS Owen.  From 16th November 1987 onwards DS Hornby was office manager of the Incident Room at Chelmsley Wood Police Station, which was formed to assist with the investigation of information supplied by Paul Jarvis.  Part of that information related to three offences in which Anne Marie Murray was said to have been involved.
First Offence.
5.	The first offence was an armed robbery committed at the Black Horse public house, Green Lane, Small Heath on 22nd November 1986 in which four men were said to have been involved, namely Valentine Patrick James Cooke, Anthony Jarvis (brother of Paul Jarvis), Paul Jarvis and Daniel Lynch.  A cash till containing £300 was stolen, and it was alleged that Anne Marie Murray on the day of the robbery received the till knowing that it was stolen.
Second Offence.
6.	The second offence was allegedly committed by the same four men six days later, on 28th Novemnber 1986, when they attempted to rob a woman named Patricia McGowan who had just visited a branch of the Allied Irish Bank at Sparkhill to withdraw money to pay the wages of the employees in her husband’s haulage firm.  As she was getting back into her red Mercedes motor car she was attacked, but she managed to fight off her attackers.  They went away empty-handed, but she suffered grazing all down one side and a fractured ankle.  Anne Marie Murray was said to have provided critical information which enabled the robbers to know that Mrs McGowan would be going to the bank on that day to withdraw a significant amount of money, and to recognise her car.  She was also said to have been critical of their failure.  
Third Offence.
7.	The third offence was a burglary committed on the 8th or 9th December 1986 when it was alleged that Anthony and Paul Jarvis broke into the premises of Silverdale Lighting to steal lighting equipment for which Anne Marie Murray had asked, and for which she later paid.  
The Indictment.
8.	Those offences featured in an indictment containing 18 counts, to which three of the eight defendants offered acceptable pleas of guilty.  That meant that there were seventeen counts in the indictment which the jury had to consider.  Counts 12, 13 and 14 related to the offences at the public house, and alleged respectively robbery, having a firearm with intent to commit an indictable offence, and handling stolen goods.  Cooke, Anthony Jarvis and Lynch were alleged to have committed the crimes set out in counts 12 and 13 (Paul Jarvis having been sentenced separately) and this appellant was charged with the handling set out in count 14.
9.	In count 15 the appellant was charged jointly with Cooke, Anthony Jarvis and Daniel Lynch with attempting to rob Mrs McGowan, and in count 16 she and Lynch were charged with the burglary at Silverdale Lighting.  
10.	Anthony Jarvis pleaded guilty to the five counts in the indictment in which he was named, which included counts 12, 13 and 15.  
11.	When Paul Jarvis was sentenced at Lincoln Crown Court both DCI Brown and DC Woodley gave evidence as to the assistance which he had provided.  DCI Brown in particular expressed complete confidence in the reliability of Paul Jarvis’s witness statements.  He said that the information which they provided had been checked “and virtually 100% corroborated”.  The police, he said, had found one error and it was ‘an error in terms of time rather than facts.’
At the trials.
12.	The trial with which we are concerned took place in April 1989 and resulted in the appellant being acquitted of handling (count 14), convicted of attempting to rob (count 15) and acquitted of burglary (count 16).  The jury were unable to reach verdicts in relation to Cooke and Lynch.  They were both re-tried and convicted.
13.	The prosecution called evidence from the victims of the offences, but the principle witness for the prosecution was Paul Jarvis, and in his summing up the judge said that ‘all the charges depend upon the evidence of Paul Jarvis’.  He went on to remind the jury that Paul Jarvis had said that by the time that he was finally arrested in November 1987 he had committed a vast number of offences totalling approximately 1500, but the judge continued -
“In fact you may very well accept that he did not commit quite as many as that if the dates are right because he was in prison at the time they were committed.”
The judge then went on to point out what Paul Jarvis hoped to gain from his co-operation with the police, and the risks he ran, before warning the jury in clear terms that Paul Jarvis was an accomplice on whose evidence it would be dangerous to convict unless that evidence was corroborated.  He explained what he meant by corroboration, and said that there was none in the cases against Cooke, Gall (who was charged in counts 5, 6 and 7 of the indictment) and Lynch.  There was however, the judge said, evidence which was capable of amounting to corroboration so far as this appellant and one other defendant, Thelma Wellington, were concerned.  In the case of this appellant that potential corroboration related only to count 15, the attempted robbery of Mrs McGowan.  According to Paul Jarvis the appellant and Mrs McGowan had been friends for years.  That was not in dispute, apparently they had once worked together on the buses, and thus the appellant was able to provide the robbers with important information.  She told them that Mrs McGowan drove a red Mercedes, the registration number of which contained the letters FOX.  She also told them that Mrs McGowan banked at the Allied Irish bank, and that she visited the bank regularly on a Friday morning to collect the wages for her husband’s firm.  When Mrs McGowan gave evidence she was able to confirm the accuracy of the information which, according to Paul Jarvis, he and his fellow criminals received from the appellant, and she was also able to confirm that the information would have been available to the appellant.  So the fact that Mrs McGowan was robbed outside the bank, on a Friday, after she had collected the wages, and when she was getting into her red Mercedes car by men, one of whom at least had access to the appellant, and who identified the appellant as the source of information was, as the judge said, a matter which the jury was entitled to take into account, and to decide for themselves whether it amounted to independent evidence which tended to confirm the evidence of Paul Jarvis, or whether it was just a coincidence.
14.	Although, as Mr O’Connor QC for the appellant pointed out, Paul Jarvis has been described as an impressive witness, it is clear that the jury with whom we are concerned was not over impressed and was properly cautious.  The jurors heeded the judge’s warning, because they only convicted where there was independent evidence to support what Paul Jarvis said - as there was so far as this appellant was concerned in relation to count 15.  Despite the existence of that independent evidence the appellant chose not to give evidence herself.
In the Court of Appeal.
15.	In the Court of Appeal in August 1989 counsel then acting for the appellant submitted that the verdicts returned in relation to her on counts 14, 15 and 16 were inconsistent.  That was a hopeless argument because it was clear that the jury convicted where there was independent evidence to support the testimony of Paul Jarvis and not otherwise.  
Decisions in other cases.
16.	Since 1989 there have been a number of decisions of this court, some of them featuring Paul Jarvis and/or the police officers to whom we have already referred, and Mr O’Connor places considerable reliance on the cases which he has drawn to our attention, so we turn to examine them in chronological order.  
17.	In John Edwards [1991] 93 Cr App R 48 the appellant was alleged to be the third of three armed robbers.  The case against him was the evidence of one of the robbers supported by oral confessions which the appellant was alleged to have made on three occasions to police officers.  On the first two occasions the officers concerned were DS Owen and DC Woodley.  The appellant denied having made any damaging admissions. By the time that the case of Edwards reached the Court of Appeal it was appreciated that - 
(1) Four officers involved in the case of Edwards (namely DCI Brown, DC Shaw, DC Woodley and DC Quinn) had also been involved in Dandy and others at Birmingham in November 1987.  In that case it appeared that interview notes had been re-written to incorporate implied admissions which did not exist in the original notes.
(2) On 12th October 1988 DCI Brown had been reprimanded, a fact not previously disclosed.
18.	In Edwards Lord Lane CJ, giving the judgment of the Court, helpfully considered the extent to which a police officer could properly be cross examined about what had happened in other cases, and at page 59 he concluded that the conviction was not safe or satisfactory because of the non-disclosure, the outcome of the trial of Dandy and the outcome of another trial.  Of course in the case of Edwards the admissions allegedly made to police officers were of critical importance, but, as Mr Patrick Thomas QC for the respondents points out, there are no such admissions in the present case.
19.	The appeal of Constantine Wellington was decided by this Court on 25th March 1991.  In that case the case for the prosecution depended entirely on admissions allegedly made in an interview, and DC Woodley was the note taker.  Subsequent expert examination revealed that critical words had been added, and the conviction was quashed.
20.	On October 1991 this Court heard the appeals of Gall and Gall and the appeal of Lynch very largely together.  The brothers Gerald and Ronald Gall together with Samuel and Theresa Corcoran had been convicted in August 1989 of assault occasioning actual bodily harm and of having a firearm with intent to commit an indictable offence.  The Corcorans had, it was alleged, enlisted Ronald Gall to find others to attack Mr and Mrs Griffin. Ronald Gall recruited Gerald Gall and Paul Jarvis.  After the attack the victims gave statements which were later said to have been lost.  In December 1987 Paul Jarvis made a statement about the attack on the Griffins, and in January 1988 fresh statements were obtained from the Griffins.  In March 1988 the Galls were arrested.  After the Griffins had given their evidence the file which contained their original statements and the crime report sheet was located and brought to court.  The last person known to have handled it was DS Hornby, and it was clear from a perusal of the file that the descriptions which the Griffins had originally given of their attackers did not fit the Galls as well as the descriptions contained in their later statements.  It was the case for the Galls that the file was ‘mislaid’ and the details in the later statements fed to the Griffins by the police so as to ensure that there was no mismatch.
21.	At his own trial Paul Jarvis had asked for 1510 offences to be taken into consideration, and by October 1991, when the Gall appeal was heard, it was clear that 203 of those offences could not have been committed by Paul Jarvis at all because he was in prison at the time.  Other offences were committed on the same day, and because, for example, they were so far apart it was unlikely that Paul Jarvis did commit them all.  These discrepancies were not dealt with at the Gall trial in any detail by the Recorder of Birmingham, and the attention of the jury was not drawn to offence 1499 of the offences taken into consideration.  That was a burglary committed on 12th February 1985 at the home of a man called Griffiths and Paul Jarvis gave a statement in which he gave details of the offence, which he said that he had committed with Gerald Gall.  In fact Paul Jarvis was in custody when that offence was committed.  Some if not all of the information in the statement made by Paul Jarvis in relation to the burglary could have come from the statement of Mr Griffiths, but DS Hornby said in evidence that it was only after Paul Jarvis had given his statement that it was checked against the police file.  
22.	However, in the Lynch re-trial on the indictment on which the present appellant had been convicted DC Woodley said that towards the end of his seven month sojourn at Chelmsley Wood Police Station Paul Jarvis was given access to about 4000 crime reports, so that he could identify the offences for which he thought that he was responsible.  Thus the jury in the Lynch case knew of the discrepancy between what Paul Jarvis had admitted, and what he could in reality be responsible for, and they also knew how the prosecution sought to explain that discrepancy.  When the appeal was heard in October 1991 this court was sceptical.  Lord Lane CJ said at 10C that -
“The account given by Jarvis contained all sorts of details which really can only have come from someone who was there or from the police.”
It was then suggested by the respondent that Paul Jarvis may have burgled the house on another occasion, but there was no evidence of any other burglary, and Lynch in his re-trial was convicted on the uncorroborated evidence of Paul Jarvis.  But what Lord Lane CJ described as “the crux of the problem” in the Lynch case was the strange history of the machete-type knife used at the Black Horse public house and at a previous robbery.  It was allegedly found in Lynch’s bedroom at the time of his arrest.  It then disappeared and was not exhibited at the trial.  Counsel for the appellant Lynch submitted that it was ‘lost’ because it did not match the weapon two feet long which the victims of the offences had described.  Six months after the end of the trial the weapon taken from Lynch’s house reappeared.  It was a butcher’s knife about 15 inches long and it was put through the letter box at the home of DC Shaw.  The trial judge told the jury to disregard the evidence in relation to the knife, but both appeals were allowed.  
23.	In the Gall appeal the disappearance of the file deprived the jury of the opportunity of hearing the Griffins’ explanation of the discrepancies between their descriptions of the attackers.  Similarly the jury were not assisted as much as they might have been in relation to Paul Jarvis’s admissions of offences he did not commit, and in particular offence 1499, so that far from the evidence of Paul Jarvis being corroborated it was actually weakened in relation to the Galls.
24.	In the Lynch re-trial counsel did explore with the police the incorrect admissions made by Paul Jarvis, and the jury was told to ignore the evidence about the knife, but Lord Lane said at 16 F that “the jury may nevertheless have regarded the evidence about the knife as in some way being corroborative or confirming the story told by Paul Jarvis.”  After some further observations about the history of the knife the Lord Chief Justice said at 17F “if Jarvis was lying in the case of Gall, that in itself undermines the case so far as Lynch is concerned.”  He went on to say that the court had had difficulty in coming to a conclusion so far as the Lynch case was concerned, but decided in the end that the conviction could not stand.  Of course the distinction which can be drawn between the case of Lynch and that of the present appellant is that in her case, in relation to count 15, there was independent evidence, and it was the existence of independent evidence in one case and not in the other which persuaded this court on 14th January 1992 to allow the appeal of Cooke (convicted when re-tried on the indictment with which we are concerned) and to dismiss the appeal of Samuel Corcoran.  Mr O’Connor submits that in the case of Samuel Corcoran there was very powerful other evidence to support the evidence of Paul Jarvis, but Mr Thomas relies on the case of Corcoran as showing that where independent evidence does exist a conviction based primarily on the evidence of Paul Jarvis can properly be allowed to stand.  The other evidence in Corcoran’s case was the relationship between the Griffins and the Corcorans, and the build up of tension between them, as well as the purported ability of Paul Jarvis to recognise a photograph of the Griffins recovered from the home of Corcoran.  There was also an opening remark made to Griffin at the time of the assault “you know what this is for”, and the fact that Ronald Gall did hear in the Wheatsheaf public house that someone was required to attack the Griffins. 
25.	On 17th July 1989 this Court allowed the appeal of Parchment on the basis of ESDA evidence which showed that documents had been altered.  It was the first case of its kind concerning the West Midlands Police.  On 26th July 1989 a man named Brommell made a formal complaint that he too had been the victim of fabricated evidence.  Two days later DC Woodley and DC Clifford at Warwick Crown Court, obtained unsupervised access to Brommell’s file, and thereafter interview notes were found to be missing from that file.  The officers denied having taken anything, and for six months they were suspended, but they were then reinstated.  The appeal of Brommell was allowed.  
26.	Roy Meads was alleged to be one of the gang which robbed a post office van in 1984.  McGuire, who was a member of the gang, pleaded guilty and gave evidence for the prosecution.  There were also confessions allegedly made by Meads, and his hairs were found on a balaclava which was discovered near to the scene.  He said that he had lent the balaclava to McGuire, and the evidence of McGuire was so unsatisfactory that the trial judge told the jury to ignore it.  That meant that the conviction could only be regarded as safe if the confessions were reliable, but six of the officers who obtained those confessions could have been subject to damaging cross-examination, and their evidence spanned all of the interviews, so the appeal was allowed, even though, as Mr O’Connor points out, the hair on the balaclava and some items found in the robber’s car did leave a case to answer.  
27.	The appeal of Treadaway reached this court on 18th November 1996.  He had been convicted of robbery at Leicester in 1983.  The case against him depended on the evidence of two supergrass accomplices, Morgan and McKay, a written confession said by him to have been extracted by police abuse, and some expenditure of cash by him.  In 1994 he brought civil proceedings against the officers who, he said, had assaulted him, and in those proceedings he was successful.  The officer in charge was Detective Inspector Brown, and he failed to respond to a witness summons requiring him to attend at the Court of Appeal.  DS Hornby was also involved, in that he had accompanied Morgan back to the United Kingdom from Gibraltar, and obtained statements from him.  Rose LJ referred to his handling of Paul Jarvis, and his alleged involvement in the disappearance of a file, matters to which we have already referred.  The conclusion reached by this court was that not only could the confession no longer be relied on, but also the evidence of the two supergrasses was manifestly tainted, in the sense that it could not be above suspicion because of the close involvement of Morgan with DS Hornby, and of McKay with Detective Inspector Brown and another officer.
28.	In Twitchell [2000] 1 Cr App R 373 the appellant had been convicted of manslaughter and robbery.  He too alleged that he had been forced to make a confession by physical abuse.  Mr Brown was again said to be involved, and there were also allegations about DS Hornby, but at 385D Rose LJ records the submission made on behalf of the Crown that the criticisms of Hornby made in Treadaway and Meads “would not have been expressed in the way in which they were had further material now to hand been before the courts on those occasions”.  As to that, the court in Twitchell did not find it necessary to reach a conclusion.  It was sufficient to rely on the findings of McKinnon J in Treadaway and the admissions now made by the Crown, from which it followed that there could have been devastating cross-examination of Brown and three other officers (not including Hornby).  That factor, taken together with the concessions made by the Crown, led the court to conclude that the conviction was unsafe.
29.	In Dunne and others 29th January 2001 this Court considered the cases of four appellants who were originally jointly indicted with others.  After severance of the indictment the appellant brothers Brown were convicted, together with a man named Johnston, and, after a separate trial the appellants Dunne and Gaughan were convicted, together with Treadaway and Langdell.  The evidence of the supergrass Morgan was “of fundamental importance to the prosecution case against all four of these appellants”, and of course Morgan had flown back from Gibraltar with DS Hornby and had then made 57 witness statements to or in the presence of DS Hornby.  Morgan’s interview and the statement which he made when first arrested in August 1980 had not been disclosed to the defence and, as this court found, it “would have provided rich material for cross-examining him because it was in several important respects strikingly different from the evidence” which in due course he gave at the trials.  The other supergrass McKay was also a witness, and he was handled by DS Brown and DC Price.  The Crown in Dunne did not seek to rely on DS Hornby as a credible witness, and conceded that the evidence of Morgan was tainted by his association with DS Hornby.  That was an important factor, leading this court to conclude that the convictions were unsafe.  At paragraphs 83 to 84 of the judgment of the court Rose LJ said -
“The evidence of Morgan and the evidence of McKay was, in our judgment, clearly tainted by reason of the close contact between each of those participating supergrasses and the officers who can no longer be regarded as credible.
The general impact upon this enquiry of the findings of McKinnon J in the civil proceedings in Treadaway, and the decisions of this Court, quashing the convictions of Twitchell and Treadaway, is such as to reinforce the lack of safety of these convictions. ”
30.	Mr O’Connor submits that there has been similar tainting in the present case, and he reminds us that in Maxine Edwards [1996] 2 Cr App R 345, which was not a West Midlands case, Beldam LJ said at 350F -
“Once the suspicion of perjury starts to infect the evidence and permeate cases in which the witnesses have been involved, and which are closely similar, the evidence on which such convictions are based becomes as questionable as it was in the cases in which the appeals have already been allowed.”
But, as Mr Thomas contends, each case has to be considered on its own facts, and we return now to the facts of this case.
Agreed facts and concessions.
31.	In the early part of this judgment we have incorporated into the narrative those agreed facts to which Mr O’Connor invited us to have regard.  On behalf of the respondent Mr Thomas conceded that it would not be right to advance DS Hornby as a credible individual, and that DC Woodley and DCI Brown could properly have been cross-examined on an Edwards basis in relation to matters now raised by the appellant, but only as to matters relevant to the appellant’s trial.  
32.	It is also agreed that it was on 30th November 1987 that Paul Jarvis made a statement implicating the appellant.  There is no evidence to suggest that she was at that time a target criminal, and the statement made by Mrs McGowan on the day of the attempted robbery had made no reference to the appellant.  It had not even suggested that the visit of Mrs McGowan to the bank on 28th November 1986 was in any way routine.  The appellant was arrested on 2nd March 1988, and on that day a second statement was obtained from Mrs McGowan in which she explained her bank routine, and her relationship with the appellant.  She said that at the time of the robbery she was visiting the appellant regularly at her home for a coffee and a chat, and that because she trusted the appellant the appellant knew her bank routine.  She could not think of anyone else other than her own family, and those in the business, who had that knowledge.  So, as Mr O’Connor concedes, in this case there is no basis for suggesting that in November 1987 the police fed to Paul Jarvis the information he put into his statement when he implicated the appellant.  At that time the police had no knowledge of any connection between Mrs McGowan and the appellant, and of course it follows that they did not know that, according to Mrs McGowan, the appellant did in fact have the vital information which, according to Paul Jarvis, she fed to the robbers.  
Submissions and conclusions.
33.	It is an important feature of this case that there has never been any assertion of any critical admission made by the appellant to anybody.  When interviewed she accepted she knew Mrs McGowan and had the knowledge attributed to her.  She also accepted that she knew Paul Jarvis, but denied passing information to him, and was unable to say why he should have said otherwise.  
34.	Against that background we turn to examine Mr O’Connor’s submission that the robbers may not have needed information from anyone.  The crime may have been opportunistic, or if information was provided it could have come from prior observations, or from someone in the McGowan business, or a member of the McGowan family, even though there was no known contact between Paul Jarvis and any business associate of Mrs McGowan or any member of her family.  That was all available for consideration by the jury at the trial and as to those possibilities we have no difficulty in understanding the conclusion of the jury.  This attempted robbery bore all the hallmarks of an operation that had been planned, and in order to plan it the robbers needed information as to the target, information which the appellant, who knew at least one of the robbers, was undoubtedly in a position to provide.
35.	The jury knew that Paul Jarvis was a witness on whom it was dangerous to rely unless there was independent evidence to support what he said, and the verdicts which they returned showed their application of that approach.  It is difficult to see how their attitude to Paul Jarvis would have changed to any significant degree if they had known as much as we know about him.  Even a tarnished supergrass who admits offences he did not commit, and tells lies about the participation of others, is not incapable of telling the truth.  And although in November 1987 Paul Jarvis was giving his statement to an officer who was vulnerable to cross-examination, there was in this case no reason for that officer or DS Hornby or DCI Brown to be cross-examined.  Putting the matter another way, there is still no reason to doubt that in November 1987, without prompting, Paul Jarvis did tell DC Woodley and DS Owen what he later told the jury as to the involvement of the appellant in the robbery of Mrs McGowan, and thus nothing turns on the credibility of the officers with whom he was involved.  Their shortcomings in relation to other matters do not taint the evidence of Paul Jarvis in relation to count 15.  As indicated by the House of Lords in Pendleton [2002] 1 WLR 72 we have to ask ourselves whether in the light of what has happened since the verdict was returned this conviction remains safe.  Because the jury was rightly reluctant to act upon the unsupported evidence of Paul Jarvis, and because the relevant part of his evidence and the independent support for that evidence remains unimpugned, we are satisfied that the conviction is still safe, and this appeal is therefore dismissed.