No: 2003/5980/B1 
Neutral Citation Number: [2004] EWCA Crim 3026
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Friday, 12 November 2004
 
B E F O R E:
 
LORD JUSTICE CLARKE 
MR JUSTICE DOUGLAS BROWN 
 
MR JUSTICE GIBBS
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R E G I N A 

-v- 

JOHN QUINN
 
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MISS M SMULLEN appeared on behalf of the APPELLANT
MR M DUTCHMAN-SMITH appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE CLARKE:  This is the judgment of the court.  
2.	The appellant is John Quinn, who is now aged 76.  This appeal comes before the court by way of a reference by the Criminal Cases Review Commission (the CCRC).  On 27th March 1957 at the Cumberland County Quarter Sessions held at Carlisle, on an indictment containing two counts, the appellant and John Smith were convicted of an alternative charge of receiving stolen goods, namely a quantity of brass fittings and eleven-and-three-quarter bars of lead, contrary to section 33(1) of the Larceny Act 1916, having been found not guilty of store-breaking and larceny contrary to section 26(1) of the Larceny Act 1916, and were each sentenced to six years' imprisonment.  On the second indictment they pleaded guilty to one count of larceny, contrary to section 8(1)(b) of the Larceny Act 1916 and were sentenced to five years' imprisonment concurrent.  The total sentence was thus six years' imprisonment.  This appeal relates only to the first indictment.  
3.	The presiding judge at the appellant's trial was Mr JM Davies, sitting as Deputy Chairman of Quarter Sessions.  Counsel for the Crown was Mr Ifor Morris Jones and counsel for the appellant was Mr Winston Guthrie-Jones, both of whom were well known in the Cumberland County Quarter Sessions at the time and were, we understand, known as the Cumbrian Cambrians.  Gibbs J and I are indebted to Douglas Brown J for this historical footnote, which is based on his personal knowledge.
4.	On 8th July 1957 the appellant was refused leave to appeal to the Court of Criminal Appeal against both conviction and sentence.  He now appeals against conviction, all these years later, upon a reference by the CCRC under section 9(1) of the Criminal Appeal Act 1995 on the basis of what is said to be fresh evidence.  By section 9(2) such a reference is to be treated for all purposes as an appeal against conviction under section 1 of the Criminal Appeal Act 1968.  
5.	Unfortunately, but unsurprisingly given the lapse of time, many of the original documents, including the trial transcripts, have been destroyed.  The Court of Appeal office file is no longer available.  The facts upon which the appeal is based are principally to be found in a police internal report dated 7th September 1957, which was written in response to a petition by the appellant's co-defendant, John Smith.  It is apparently not known what the purpose of the petition was.  The second document upon which the facts are based is a Home Office summary of evidence dated 4th September 1959.  It appears that that summary was prepared as a result of an attempt by the appellant to persuade the Home Secretary of the day to refer the matter back to the Court of Criminal Appeal.  The attempt failed at the time.
6.	The facts, based as they are principally on those documents, may be summarised in this way.  Between 16.30 on Saturday 5th January and the morning of Monday 7th January 1957 a store belonging to the Border Rural District Council was feloniously entered into and property stolen from it.  The value of the property was £234.16s.6d.  Police enquiries were commenced and as a result of information received Harry Dixon was interviewed.  Statements were obtained from Harry Dixon and his brother William Dixon.  Smith and the appellant were arrested.  
7.	Two other men were also charged with receiving.  They were Mr Jamieson and Mr Miller.  They were in due course dealt with summarily by the Cumberland Ward Magistrates Court and were found guilty of receiving the property in question.  Mr Jamieson was fined £50.  
8.	It was the prosecution case that the appellant and Mr Smith were guilty of receiving the stolen goods.  The prosecution case depended entirely on the evidence of Mr Dixon.  It was the defence case that Mr Dixon was implicated in the theft and was faced with the problem of disposal.  He tried to pass the wares to Mr Smith and the appellant who refused to receive them.  When the police became aware of the theft, Mr Dixon realised he was in trouble and decided to make up a story that Mr Smith and the appellant had given him the wares.  Mr Dixon could not have visited the appellant at the caravan at the time he claimed because to attend work the appellant travelled by a special bus which left at 6.45 am.  
9.	So far as can be ascertained, William Dixon's evidence was broadly to this effect.  One day early in the week beginning Saturday 6th January he was doing his milk round with a lorry in an area which formed part of milk round No 17.  Between 7.20 and 7.30 am he delivered milk at a caravan where John Smith and the appellant resided with the appellant's mother and Mr Smith's girlfriend, Mrs Mcleish.  Smith and the appellant asked him whether he would take "stuff" down to Carlisle for them as they had no means of transport and he agreed to do so.  The appellant got into his lorry and they drove down to a spot a few hundred yards away on the main road.  The appellant indicated where he should stop the lorry.  The appellant got out and climbed over the wall adjoining the road and returned to the lorry with about five sacks which he handed to Mr Dixon over the wall.  Mr Dixon did not see the contents of the sacks but the appellant told him there was brass inside them.  Mr Smith joined them having walked there.  They told Mr Dixon to "take it down to town and leave it, put it out of the road for a bit." Mr Dixon drove to his brother's house and told his brother's wife he was leaving the sacks there.  He left no message for his brother, nor did he tell them that the brass was for sale.  When he dumped the sacks one burst open and he saw the brass components inside.  He returned to his milk round.  Later in the day he was approached by his brother and his companion Mr Miller.  Mr Miller offered Mr Dixon £14 for the brass which Mr Dixon accepted.  Mr Dixon returned to the house where he helped his brother and Mr Miller to load the brass into Mr Miller's vehicle.  Between 4.15 pm and 4.30 pm Mr Smith approached Mr Dixon, who was doing his newspaper vendor job, and Mr Dixon gave him the £14 he had received from Mr Miller for the brass.  Mr Smith gave him £2 for taking the brass into town.  Only Mr Smith was present at this transaction.  
10.	Some evenings later, and on what was almost certainly Thursday 10th January, Mr Smith and the appellant approached him when he was selling newspapers.  The appellant asked him if he knew of anyone who would buy a quantity of lead.  Mr Dixon took the appellant to the Globe Tavern. They went there in the appellant's lorry.  Mr Smith did not go with them.  Mr Dixon introduced the appellant to two dealers but no price was agreed on.  They went to the Wrestler's Arms where Mr Dixon interested Mr Jamieson in the lead and said that the appellant wanted £28 for it.  Mr Jamieson came out of the public house to meet the appellant who had stayed in the lorry.  Mr Jamieson agreed to pay £25.  The lead was unloaded from the lorry in Mr Jamieson's yard.  Mr Jamieson handed the £25 to Mr Dixon.  Mr Dixon handed it immediately to the appellant and did not profit from the transaction himself.  
11.	A few nights later Mr Dixon was interviewed by a police officer.  Mr Dixon took the officer to the plantation where he said the appellant had handed him the brass over the wall.  Mr Dixon and the police officer found an overcoat button there.  We interpose to note that the button was later found to come from an overcoat subsequently found by the police in Mrs Quinn's caravan.  Mr Dixon added that he had never seen the overcoat from which the button came and did not sell it to Mrs Mcleish.  He was not sure that the visit to the caravan took place on a Sunday.  He thought it was an ordinary weekday but then he thought it must have been a Sunday because on other days he sold newspapers in the evening.  he realised that if he gave Mr Smith the £14 on the same day when he was selling papers it could not have been a Sunday, it must have been a week day.  
12.	He was cross-examined and in cross-examination said that the allegation of milk rounds was not rigid and owing to staff shortages he helped out on the No 17 round before doing his own round.  When roundsmen were helping each other they often signed for deliveries they had not made.  The figures in the milk books for the day in question were by him.  The time he reached the caravan was between 7.20 and 7.30 on a weekday.  
13.	The defence called Mr Messenger, a milk roundsman.  He said, among other things, that the entry in the milk delivery book was in his and Mr Underwood's handwriting.  Mr Underwood, the foreman of the Carlisle Milk Distributors, for whom Mr Dixon worked, gave evidence.  He said that Mr Dixon should have been on the No 5 round, not the No 17 round.  He had no business delivering milk to the caravan, nor to be there with a company vehicle.  The entries in the milk delivery book showed that Mr Dixon had not delivered milk to the caravan that week.  The relevant entry in the book was in his and Mr Messenger's handwriting.  
14.	Mrs Quinn and Mrs Mcleish corroborated Mr Smith and the appellant's account that Mr Dixon came to the caravan early on the Wednesday morning with the brass and the lead on the lorry.  Mr Dixon could not persuade Mr Smith or the appellant to accept the metals, but he persuaded Mrs Mcleish to buy an overcoat from him.  This was the overcoat to which the button found at the plantation was matched.  
15.	It is clear from the evidence which we have summarised that the prosecution case against the appellant depended entirely on the evidence of Mr Dixon.
16.	The grounds of appeal are that the conviction is unsafe for these reasons:  first, that the appellant and Mr Smith should have been tried jointly with Mr Jamieson and Mr Miller; secondly, that there was insufficient independent evidence to support a conviction; and thirdly, that the evidence of Mr Jamieson.  
17.	In this last regard the appellant applies to call fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968.  The fresh evidence consists of a statement from Mr Jamieson dated 14th July 2003, which may shortly be summarised in this way.  Some time between 1973 and 1981 a man named John Quinn came to his house and asked him if he would say that he was not the man with Mr Dixon when Mr Jamieson purchased the lead from Mr Dixon in January 1957.  Mr Jamieson was sure he was not the man who had been with Mr Dixon.  The difference in size between John Quinn and the man with Mr Dixon was such that they could not possibly have been the same person.
18.	In our judgment this appeal essentially depends upon the evidence of Mr Jamieson.  Section 23 of the Criminal Appeal Act 1968, in its present form, provides so far as relevant:
"(1) For purposes of this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice-
							...  
	
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.  
 (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to- 
 (a) whether the evidence appears to the court to be capable of belief; 
 (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; 
 (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is subject of the appeal; and 
 (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings." 
It is important to note that section 23(2) does not lay down conditions which must be satisfied before the evidence is received by the court.  It simply provides that the court must have particular regard to the factors identified in paragraphs (a) (b) (c) and (d) of section 23(2).  
19.	As to those factors, Mr Dutchman-Smith accepts on behalf of the Crown:
(a) that Mr Jamieson's evidence is capable of belief; 
(b) that his evidence may afford a ground for allowing the appeal; and 
(c) that the evidence would have been admissible at the original trial.  
20.	However, Mr Dutchman-Smith submits that there is no reasonable explanation for not adducing the evidence of Mr Jamieson at the original trial.  His submissions can be summarised in this way, which is substantially as he put it in his skeleton argument: 
1.  The appellant was aware of the potential significance of this evidence prior to his trial.  He submitted a petition to the Home Secretary dated 18th February 1957 that he [that is the appellant] be produced at the hearing of Mr Jamieson's trial in the Magistrates Court, and in his statement to the CCRC dated 14th July 2003 the appellant concedes that: "I knew that Mr Jamieson was important to my case" and that "I knew that Mr Jamieson would be able to say that I was not with Dixon when he sold him the lead." 
2.  It is inconceivable that at trial the appellant did not acquaint his solicitor and counsel of this information.  There is information to suggest that the appellant's solicitor was already aware of the proceedings against Mr Jamieson and that counsel was also aware of them.  
3.  At the date of the appellant's trial, namely 26th March 1957, the trial of Mr Jamieson in the Magistrates Court had been concluded and he had been sentenced.  At the date of the appellant's trial Mr Jamieson was a compellable witness for the defence and there is no reason to believe he was unavailable.  
4.  In these circumstances the test in Beresford 56 Cr.App.R 146 is not satisfied as "the evidence could with reasonable diligence have been obtained and used at the trial."  
5.  Similarly, as the evidence related to facts of which the appellant was aware at the time of the trial, it cannot constitute fresh or new evidence.  
6.  The application of that test in the particular circumstances of this case is appropriate bearing in mind the reality of the situation that it is not practicable to test this evidence so long after the events.
21.	We shall return to these submissions in a moment.  However, before doing so we should note the Crown's approach to the safety of the conviction if we admit the evidence of Mr Jamieson.  In that event it is the position of the Crown that at this time so long after the events it would not seek to challenge the assertion by Mr Jamieson that the appellant was not the person who accompanied Mr Dixon.  In coming to this conclusion the following factors have been taken into consideration by the Crown: 
1.  The events with which the identification or non- identification are concerned occurred more than 40 years ago.  2.  The witness is now a man aged 75 years.  Apart from his conviction in this matter in 1957, he was a man of good character, at any rate for very many years, although we have been informed of a recent conviction in April 2002 relating to the fraudulent use of a vehicle excise licence and the like.  It is not however suggested that that is significant in the context of this appeal.  
3.  The new evidence is not inconsistent with the statement Mr Jamieson made under caution to the police on 10th January 1957.  It is not now possible to establish why the matter was not dealt with, at least in terms of a description, in that police statement.  
4.  It is clear from the papers considered by the CCRC that Mr Jamieson has been asserting since approximately the 1970s that the person concerned was not the appellant.  
5.  His description of the height and build of the person does not conform to the height and build of the appellant at the relevant time.  
22.	In his skeleton argument Mr Dutchman-Smith submits that the conviction cannot be said to be unsafe on the basis of the evidence that was given at the trial.  We agree.  There is no reason to think that the matter was not properly summed up and the question of guilt was essentially a matter for the jury.  Mr Dutchman-Smith put the point in this way in paragraph 11 of his skeleton argument:  
"Whilst the experienced criminal lawyer may find it surprising that the appellant and his co-accused were convicted there was evidence from which the jury could quite properly convict them. The jury had the advantage of seeing and hearing the various witnesses as they then were. The fact that Dixon was dishonestly involved in the matter and may have lied to minimise his own involvement or been mistaken about certain aspects does not lead inevitably to the total rejection of all of his evidence. The jury clearly came to the conclusion that he was telling the truth with regard to the fact that the appellant was involved in the dishonest receiving of the property and the verdict is one which they were entitled to reach and is not one which cannot be supported by a logical chain of reasoning."
It was no doubt for those reasons that the Court of Appeal refused leave to appeal. We would certainly not be willing to allow this appeal on the basis of material before the court at the time of the trial. 
23.	However, Mr Dutchman-Smith makes what is in our judgment an important concession, if the evidence of Mr Jamieson is admitted by this court.  He recognises that if that evidence is admitted and is considered by the court to be credible, it would in a very significant way further undermine Dixon's evidence.  For that reason he has told us that the Crown would not in those circumstances seek to argue that the conviction should be upheld.  If Jamieson's evidence is admitted we see no reason not to regard it as credible.  He has never expressed any view which implicates the appellant.  There is no reason to think that he would not have said the same in 1957 if he had been asked in 1957, which he was not either by the police or by and on behalf of the appellant.  We agree with Mr Dutchman-Smith that if Mr Jamieson's evidence were admitted, it would have the effect that the court would reach the conclusion that the conviction was unsafe with the result that the appeal should be allowed.  
24.	The crucial question in this appeal is therefore, in our view, whether the court should receive Jamieson's evidence under section 23 of the Criminal Appeal Act 1968.  We therefore return to the submission that there is no reasonable explanation for the failure to adduce the evidence at the original trial.  
25.	In considering this question we must have regard to circumstances as they were in 1957.  To modern eyes it is perhaps surprising that Mr Jamieson was tried in the Magistrates Court, whereas the appellant and Smith were tried at Quarter Sessions.  Miss Smullen submits that the failure to try both together affords the appellant a separate ground of appeal.  In response Mr Dutchman-Smith says this in his skeleton argument: 
"... Whilst it is conceded that the proceedings involving the appellant, his co-accused, Mr Jamieson and Mr Miller could properly have been joined on the same indictment and tried together.  This might have been to the marked prejudice of the appellant had Mr Jamieson exercised his right not to give evidence.  The procedure adopted whereby lesser involved defendants are dealt with separately in the magistrates court is still, on occasions, followed today.  It is a legitimate practice and it is submitted did not, in the circumstances of this case lead to unfairness, as Mr Jamieson's case had been dealt with so that he was a compellable witness by the time of the appellant's trial."  
We agree that this does not afford the appellant a good ground of appeal. However, although we cannot be sure what would have happened if all potential defendants had been tried together, the fact that they were tried separately undoubtedly put the appellant in some difficulty.  
26.	The appellant at least attempted to do something about it.  While on remand in custody at Durham prison he petitioned the Home Office to be permitted to attend Jamieson's trial.  We have seen the petition which is a very coherent document.  It includes this passage, being addressed to the Home Secretary:  
"Sir it has come to my notice, that two men named Jamieson and Miller are appearing on the 21st of this month and are pleading guilty to the receiving of the lead and brass in the case as mentioned against me, and that these men made a transaction through a deal with a man called Dixon, these men Jamieson and Miller are supposed to pay Dixon £14 for brass and £20 for lead, the money being paid personally to Dixon by these man, there is no mention in the case on depositions that these men paid me money or were in fact contacted by me to sell them the stolen property?  It is the verbal evidence of Dixon that has connected me in this matter of which I am ignorant, I am pleading not guilty.  Sir in your own judgment do you think I could receive the property and yet two men are about to plead guilty to receiving the stolen lead or brass off the man Dixon.  On the whole, Sir, if I'm found guilty of breaking and entering I would be stealing 'not receiving' and yet these men are pleading 'Guilty' through a contact by Dixon and they actually paid Dixon for the stolen property.  
Sir as mentioned in the statement of proof I ask you humbly to have permission to be able to attend this hearing of Jamieson and Miller on 21st March 1957..." 
The petition was refused by the Home Office on 20th February 1957.  It was said that the Secretary of State had considered the petition but was not prepared to authorise the appellant's production at the proceedings and that he had no authority to grant bail.  The refusal added that if Mr Quinn considered that the proceedings to be held on 21st February had a bearing on his case it would be open to him to bring the matter to the notice of the court at his trial.
27.	It is submitted by Mr Dutchman-Smith that it is almost certain, in the light of the appellant's state of mind as indicated in that petition, that he would have raised the importance of Mr Jamieson as a witness with his solicitor and counsel before the trial.  We accept that in principle that seems likely.  However, it is right to say that there is evidence, which we see no reason to doubt, that the appellant did not see his solicitor or counsel until the morning of the trial.  He had not, it appears, been in contact with them whilst he was in prison before the trial.  
28.	Although Mr Jamieson was a compellable witness at the trial, and it is more likely than not that the appellant's solicitors and counsel considered calling Mr Jamieson, it is far from clear how practical it was for them to take a statement from Mr Jamieson.  First, Mr Jamieson was not convicted until some eight days before the date of the appellant's trial.  He was convicted, as we understand it, on 19th March 1957, since we understand he did not plead guilty as had originally been contemplated.  The appellant's trial took place on 27th March.  Even if solicitors and counsel had been aware of those facts it is not clear to us how easy it would have been to take a statement from Mr Jamieson in time for the trial and, if they only learned of Jamieson's importance on the day of the trial, it may well have been decided that it was not worth applying for the adjournment which might well have been required.  We think it most unlikely that solicitors and counsel would have advised the appellant to call Mr Jamieson blind by serving a witness summons but without having a proof of evidence from him.
29.	In considering this part of the case, the CCRC said this in paragraph 43 of their report:
"The Commission has considered a number of reasons for the failure to pursue Mr Jamieson as a potential witness including the following 
• Mr Jamieson's statement (if disclosed) provided no indication that he could assist with the identification of the driver.  
• While the prosecution had no property in Mr Jamieson as a witness, if he were pending (or thought to be pending) trial for his own role in the handling of the lead he would have had the privilege against self-incrimination and might have been perceived as an unhelpful witness.  
• It is possible that difficulties of communication between solicitors and client (especially if compounded by uncertainty about the sequence of trials) affected the solicitors' preparations for trial.  Mr Quinn's unorthodox attempts to short circuit the channels of communication by petitioning to attend Mr Jamieson's  trial may possibly provide support for that conclusion." 
30.	It appears that there was some confusion as to the date of Mr Jamieson's trial.  A police report to the Home Office, dated 7th September 1957, which was after the appellant's trial, included the following:
"Jamieson and Miller were dealt with by the Cumberland Ward Magistrates' Court on charges of receiving and both were found guilty and fined.  In view of the fact that proceedings were pending against them, on 26th March, 1957, when Smith was dealt with, neither of these two men were called to give evidence for the prosecution." 
So there appears to have been some confusion as to the position at the time. In the result, on this point the Commission concluded as follows in paragraph 44:
"The Commission recognises that these are matters of speculation.  Nevertheless, it considers that these matters, taken together, provide potentially reasonable explanation for the failure to adduce Mr Jamieson's evidence at Mr Quinn's trial." 
31.	We agree with those conclusions.  We are not able to conclude that there is a reasonable explanation for not calling Mr Jamieson to give evidence at the appellant's trial.  We can put it no higher than to say that there was a potentially reasonable explanation in the factors identified by the CCRC.  
32.	We recognise the principle in R v Ditch (1969) 53 Cr.App.R 627, which is referred to by the CCRC, where O'Connor J said in this court:
"... in the ordinary course of events this Court will be very careful before it will admit a confession of guilty by one of two people who have been convicted by a jury of a joint offence.  It will be too easy for criminals to seek to share out responsibility so as to get one of them off.  On the other hand, there is nothing in the decided cases which in any way affects this Court in receiving such evidence in a proper case." 
In the event the court in Ditch, which is a very different case on the facts, admitted the evidence of the co-accused and allowed the appeal.  Thus each case depends upon its own facts.
33.	However, let it be assumed that it cannot be shown that there were reasonable grounds for not adducing the evidence of Mr Jamieson at the appellant's trial.  The question remains whether we should receive the evidence.  We have reached the conclusion that, when all the circumstances of the case are taken into consideration, we should receive the evidence.  The circumstances here were most unusual.  We have regard to the fact that, although reasonable grounds have on this hypothesis not been shown, when we set that fact against all the other circumstances of the case which we have described, we should indeed receive the evidence.  Most importantly, we set it against the fact that the other criteria in section 23(2) are satisfied and against the concession, which in our judgment is correctly made, that, if the evidence is received, it is credible and leads to the conclusion that the conviction is unsafe.  
34.	In our judgment, this is indeed one of those very rare cases in which there are strong reasons for thinking that the appellant was not guilty of receiving.  If we were to dismiss this appeal it would in our judgment be to compound what in our view was a miscarriage of justice.  It follows that we receive the evidence and allow the appeal.  
35.	We add only this.  When we first considered the papers in this case we were surprised that the CCRC should have referred to this court such an old case which is concerned with nothing more serious than receiving stolen goods.  We noted that the CCRC had refused to refer it on at least one previous occasion.  We certainly do not encourage the CCRC to refer historic cases to this court.  Nevertheless, the CCRC itself had this principle well in mind.  It said in paragraph 53:
"The Commission is mindful of its duty carefully to examine the exercise of its discretion in historic cases.  The Commission considers that it should not exercise its discretion against referral in this case having regard to the fact that Mr Quinn is still alive and has a real interest in the outcome of an appeal.  Further the issue of Mr Jamieson's evidence is a matter that Mr Quinn has been pursuing since his Petition to the Home Office when he was on remand before the trial."  
Having considered all the circumstances of the case, for the reasons we have given we allow this appeal and quash this now somewhat historic conviction.