Neutral Citation Number: [2008] EWCA Crim 879
Case No: 200702725D1 & 200702727D1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWPORT CROWN COURT
JOWITT J
T941241-1
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/04/2008
Before :

LORD JUSTICE LATHAM
MR JUSTICE TUGENDHAT
and
MR JUSTICE BLAIR
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Between:

	R		
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	JOHN RODEN 
 MICHAEL ATTWOOLL		
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(Transcript of the Handed Down Judgment of
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Michael Birnbaum, QC & Adrian Chaplin on behalf of John Roden 
Joel Bennathan Q.C. and Judith Seaborne on behalf of Michael Attwooll
Roger Thomas QC on behalf of the Crown

Hearing date : 17th March 2008
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Judgment

Lord Justice Latham  : 
Reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995
1.	On 10 June 1995, in the Crown Court at Newport, before Jowitt J, the applicants were convicted of two counts of murder and sentenced to life imprisonment on each count.  They appeal to this Court against conviction upon a Reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, and apply for leave to appeal on grounds other than those upon which the Commission has made the Reference.  Both appellants applied for leave to appeal against conviction in 1995.  Both applications were refused by Waller J on 29 February 1996.  Roden’s application was refused by the Full Court on 18 July 1996.  Attwooll never renewed his application for leave.  
2.	The grounds upon which the reference has been made, and the further grounds in respect of which there are the applications for leave to appeal, raise issues relating to the conduct of the trial and the evidence that was either adduced at trial or available at the time of trial which raise real problems for this Court when dealing with trials conducted many years ago.  Not only are there, obviously, difficulties of recollection.  Often the documentation is incomplete.  It is extremely difficult, even for those who were at the trial, to be confident about the dynamics of the trial.  By this we mean the way in which the evidence was emerging, and the relative significance within the trial of matters which, when put under a microscope, ex post facto, appear as though they might have been capable of affecting the verdict.  The exercise carried out in cases such as this which involves detailed consideration of the evidence in the trial process will inevitably throw up material capable of giving rise to questions as to the conduct of the investigation, and the conduct of the trial.  Our task is, however, to stand back at the end of the day, and in the light of our evaluation of the significance or otherwise of the criticisms, determine whether or not we consider the verdicts in this case to be safe.  That is the sole statutory question we have to answer.
The prosecution case
3.	The victims, Gerald Stevens and Christine Rees were killed some time between 12.50am and 1.30am on 6 May 1994 in the office of Western Valley Taxis in Risca, in the Ebbur Valley, South Wales.  Both died as a result of being shot in the head at close range and had also sustained cutting injuries.  
4.	Stevens and Attwooll were equal partners in the taxi firm.  Stevens, although doing some driving, dealt mainly with the administration and accounting.  The operating licence for the taxis was in his name.  Attwooll drove and was responsible for the cars and their drivers.  Rees was one of the drivers employed by the firm.  She and Stevens, who were both married, had become lovers.  Their open displays of affection at work caused some tensions in the firm; and there was resentment at the favourable treatment it was thought that Rees, as a result, received.  There was a suggestion by the prosecution, which does not ultimately appear to have been borne out by any evidence, that Attwooll was suspicious about Stevens’ financial dealings.  Attwooll’s daughter Vicky worked as a receptionist at the firm two nights a week, and as an escort on school runs.  Roden was her boyfriend and had lived with her in an address in a road called Channel View since before Christmas 1993.  He saw Attwooll, who lived nearby, regularly and knew all about the taxi firm, but he never worked there.  
5.	Part of the background which was before the jury was the fact that one of the taxi drivers had found, in the office, some sexually explicit photographs of Stevens and Rees, including some with Stevens wearing women’s underwear.  These became the subject of much common gossip within the firm.  They came into the possession of Vicky and Roden, who decided to send them to Stevens’ wife and Rees’ husband.  A witness, Carl Perkins, who was of considerable significance in the trial as we shall later describe, was approached to deliver the photographs being told, he said, that the purpose was to force them to leave the firm because Stevens was not accounting to the business for all the money.  In fact they were delivered by another witness Stephen Richards, on 22 and 23 April 1994, in other words a fortnight before the murders; he thought that the purpose was to bring the relationship to an end.  There was evidence that Attwooll had spoken to some of his regular customers about the photographs, describing Stevens as “a kinky bastard” and Rees as “a slag”.  He always seemed annoyed with them and told one customer that Stevens was lazy and he wished that he would die of some disease which would enable Attwooll to come to some arrangement enabling him to take over the business.
6.	As for the night of the murders, the prosecution case was that Attwooll left Stevens alone in the taxi office at about 12.30am on 6 May in a white Sierra car which was the taxi he always drove, and went to Vicky’s home in Channel View, where he picked up Roden.  He and Roden drove back to the taxi office, with Roden crouched down on the back seat so as not to be seen.  They had with them in the car an object like a cleaver or machete, and an air rifle which had been modified to fire point 22 bullets.  
7.	The evidence as to the time at which Attwooll left the office was fixed by reference to the evidence of one of the other drivers, Michael Coughlin.  He was returning at the end of his shift and had refuelled his taxi at the Waldrons Service Station where the till record showed that this occurred at 12.14 or 12.15am.  He took his taxi to the place where firm’s taxis were kept and went into the office in order to cash up.  He said that Stevens and Attwooll were the only ones there at that time.  Cashing up took five to ten minutes.  He then left at the same time as Attwooll who was driving his white Sierra.  He decided to go to a fish and chip shop which took him past Channell View, which was only a short distance from the Birds’ Industrial Estate where the office was, and saw a white Sierra which he assumed to be Attwooll’s. 
8.	He was adamant that Rees had not come into the taxi office while he was there.  She was seen refuelling her maroon Sierra taxi at the service station where the till record showed that she paid at 12.24am.  From the evidence of her last passengers, it would appear that she picked them up after refuelling; and the trip to take them home and return to the taxi office would have been about 15 minutes.
9.	This was consistent with the evidence of Howell Evans who had a vehicle recovery business in the adjoining unit to the firm’s office.  He had been dealing with a recovered vehicle, and had indeed spoken to Coughlin when he had arrived, at some time around 12.20.  He then filled a vehicle at the service station, according to the record, at 12.23am, and went back to his premises between 12.25am and 12.30am.  He then heard voices from next door which he recognised as those of Stevens and Attwooll.  About ten minutes after entering his premises, he saw Rees driving the burgundy Sierra back to the office.  He then heard a car engine idling.  After two minutes he heard Rees shouting and then a loud bang which frightened him.  He made no enquiries of what had occurred, but left to drive home at some time between 12.50am and 1.00am.
10.	Two girls, Angharad Ash and Diana Harris purchased food at the petrol station, which was timed at 12.27am and then started walking home which took them along Mill Street, where they saw a white Sierra driving towards them with a Western Valley taxi sign in the windscreen.  It was driving towards the Birds Industrial Estate.  Both of the girls knew Attwooll; both of them recognised Attwooll as the driver as the car went past although there was no-one else apparently in the taxi at the time; and as it past, it made a little swerve towards them, which was what Attwooll was apparently in the habit of doing whenever he passed the girls.  
11.	The bodies of Stevens and Rees were found by Mr Harben, the nightshift taxi driver who had completed two trips by 1.30am and returned to the office.  Stevens was slumped back in the chair; Rees was lying on the floor.  He called the police who arrived at 1.40am.
12.	The scene was examined by a pathologist, Professor Knight, and a forensic scientist, Mrs Galbraith.  The bodies were also examined by a firearms expert.  There were signs of disturbance and the desk was askew.  Two shots had been fired at Stevens’ head from a gun capable of firing .22 bullets.  One shot had entered the skull at the inner corner of the left eye fired from at least 12 inches, the other at the left temple fired with the gun touching it or extremely close.  He had a line of bruising down the left side of the face caused by something with a straight edge, and a deep cut to the centre of his top lip.  It was not possible to say if those wounds had been sustained before or after he had been shot.  There was blood on the walls which was the result of the brandishing of the cutting weapon or the waving of a bloody hand or arm during the attack on him.  
13.	Rees had sustained a large number of wounds which would have bled heavily and extensively leaving large pools of blood on the carpet where she had bled for some time.  She had also been shot through the centre of the forehead with the muzzle of the gun touching her skin.  One blow to the head had sliced a sliver of bone from the scalp indicating that the weapon had a sharp edge and was heavy.  At least some of the wounds, including several defence wounds to the hands and arms were inflicted before she was shot.  Her attacker would have been bloodstained; and there was a good chance that anyone else present would also have been.  The same cutting weapon could have been used on both victims.  No cutting weapon was ever recovered.  Attwooll had, however, what was described as a hacker in late 1993 which was kept, certainly at one time, in the boot of the white Sierra where it was noticed by another driver Mr Cutter.  Attwooll said that he had forgotten to remove it and put it in the top of a kitchen cupboard in the taxi premises.  It has never been found.  
14.	The evidence that was adduced by the prosecution as to what could have been the firearm used to inflict the fatal wounds on Stevens and Rees, was of critical significance in the case.  In 1993, Mark O’Neill bought a .22 air rifle and gave it to his friend Duffy to convert it to fire .22 bullets.  Duffy did so, and also modified it so that a silencer could be fitted.  O’Neill tested it by firing five rounds of ammunition at a board placed against a tree.  The bullets went right into the tree.  He then acquired two packs of hollow point bullets from a friend, Vincent Price, whose sister was married to Attwooll.  He decided, however, that he did not like the gun, and gave it to Price, together with the ammunition, for Price to find a purchaser for it, as Price had, as was generally known, an interest in guns.  Price said that he wanted it for his own collection, because of its novelty and was intending to pay £40 for it but never did so.  He held a firearms certificate at the time but accepted that he would not be able to obtain a certificate for this gun.  About six weeks after he acquired it, Price said that he showed the gun to Attwooll, who displayed a keen interest in it and eventually bought it together with a silencer and bullets for £100.  Attwooll said that he wanted it for shooting rats.  A month or so later he told Price that he had cut the stock off the gun.  Price told him that it would lose its accuracy as a result, but did not ask why he had done it.  We will return to the gun when dealing with the police investigations.  
15.	Attwooll was told about the discovery of the bodies at some time after 7.00am.  He went to the taxi office where the police refused entry, and then to the police station where he was told that Stevens and Rees had been shot.  At about 9.40am he went to see Price.  Price said that he was very pale and shaken and said that Stevens and Rees had been shot and there was blood everywhere in the office.  Attwooll said that he had got rid of the gun.  He asked how to remove nitro stains from the hands.  Price could only think of bleach.  It was Price’s view at that time that Attwooll had been involved in the killings, which was such a shock to him that he went upstairs to be sick.  When he came down Attwooll was washing his hands and the bleach with the cap off was on the worktop.  It should be said, however, that when later examined the only fingerprints on the bleach bottle were those of Mrs Price.  Attwooll then left.  Price saw him again that afternoon and asked if he had done the killings.  Attwooll said that he had not.  But Price was so concerned, that he got in touch with a solicitor and eventually spoke to the police.  He had a close relationship with Attwooll, whom he looked up to as a father figure.  He was so upset by the situation, that he tried to kill himself.  
16.	Returning to the gun, the three bullets recovered from the skulls of Stevens and Rees were compared with the bullets which O’Neill had test-fired from the converted air rifle.  These were recovered from the tree and examined by the firearms expert Mr Fletcher.  His conclusion was that the three bullets had been fired down a similar filed barrel and a microscopic examination showed that the rifling characteristics were the same in the case of those bullets and the bullets fired into the tree.  That pattern was found in a number of air rifles, including a Webley Vulcan air rifle, consistent with their having been fired from a .22 air rifle modified to take .22 bullets.  But Mr Fletcher could not completely rule out a weapon originally made to fire .22 bullets. In his view the evidence strongly suggested that the same gun had been used to fire all the bullets that he had examined.  
17.	In August, two parts of a gun, a Webley Vulcan air rifle were recovered from the river Ebbw.  Price identified them as parts of the gun that he had supplied to Attwooll.  They were, however, too heavily corroded to restore sufficiently for test firing, but in Mr Fletcher’s view, the general rifling of the barrel was the same as that on the bullets recovered from Stevens and Rees, so that they could have been fired from the gun in question.  The gun could not be fired rapidly.  Sometimes it was difficult to remove spent cartridges and a small screwdriver had to be used.  O’Neill said that that was one of its characteristics when he had it.  
18.	So far as the white Sierra driven by Attwooll was concerned, there was evidence that he had put it through the car wash at the service station on the morning of 6 May and had asked where he could have it hoovered.  Later that day he left it with the police for examination.  Someone asked him why the police had taken it; he said that he presumed that they wanted to carry out forensic tests.  He mentioned that if Stevens and Rees, whom he had driven in the car many times had fought or scratched themselves, there might be drops of their blood in it.  On 9 May, Mrs Galbraith, the forensic scientist, found four areas of blood staining, which could not be aged.  There were three very faint stains at the front of the driver’s door pillar which could have been transferred from a hand or clothing; there were small smears near the accelerator pedal from a foot or trouser bottom; there was one under the seat by the seat adjustor knob, from a hand or foot or trouser bottom; and three very thin smears on the roof lining behind the sunshine roof.  DNA tests were carried out on the blood stains.  The one by the accelerator gave no result.  The ones on the door pillar and by the seat knob matched the HLA factor in Rees’ DNA (one in seven people have the same HLA) and could not have come from Stevens or Attwooll.  The one on the roof lining had DNA from more than one person and could have been produced by Rees and Stevens.  
19.	On 6 May two police officers Detective Constable Rees and DC Morgan, went to Attwooll’s house to take some statements from him and his daughter.  Whilst there they received instructions to ask Attwooll to attend the murder scene to point out where various documents would be found and to describe the original position of the furniture which was now out of position.  DC Rees was the only officer who gave oral evidence, although DC Morgan’s statement was available.  His evidence was to the effect that he and DC Morgan took Attwooll to the office the in their unmarked police car and then drove him home to collect his Sierra to do a school run.  While he was at the office, he put on protective overshoes.  In order to give the information that the police wanted, he clearly had to have access to the office to some extent.  Mrs Galbraith, who was there, however, was adamant that he did not go anywhere near the bloodstained areas, although accepted that the blood on the carpet was still wet.  A Scenes of Crime Officer who was there agreed that it was unusual to allow access to the scene to somebody involved in the investigation and expressed the view that Attwooll had not come far enough into the room to step into the blood.  However under cross-examination, he conceded that there was a risk that he might have done so.  
20.	Attwooll was arrested on 9 May.  When interviewed he denied any part in the murders.  Clothing from his home was examined but no traces of blood from Stevens or Rees were found.  Fingerprints found in the taxi office mostly matched the people who had legitimate reason for being there.  Some, however, were unidentified.  
21.	Whilst on remand in Cardiff prison, Attwooll met Eaves, another remand prisoner, who had previous convictions for offences of dishonesty, violence and sexual offences.  He gave evidence that Attwooll told him that he had killed Stevens and Rees, and gave a detailed account of the events leading up to the killings and the killings themselves.  
22.	The prosecution case against Roden depended essentially on the evidence of Carl Perkins to whom we have already referred.  He was a man who had many convictions for offences of dishonesty and was a regular user of cannabis and other drugs.  There were many inconsistencies in his account and contradictions between his evidence and other evidence and indeed between his evidence and what he had told other people.  However he consistently maintained that before the killings Roden had said that he was going to take part in the killings, afterwards said that he had done so, and that Roden had brought the two pieces of the converted air gun telling him to dispose of them and that they were the pieces of gun recovered from the river by the police.  
23.	He was in prison for non-payment of fines in July 1994 and spoke to his cellmate Woodland.  He felt that he had to talk to someone.  He was very frightened for himself and his family and wanted Woodland to go to the police if anything happened to them.  Woodland alerted the police to the fact that Perkins had information about the murders.  Woodland gave evidence as to his conversations with Perkins.  
24.	The police then interviewed Perkins.  He directed them to where he had thrown the gun parts in the river.  They were recovered from there.  He said that he knew Vicky Attwooll and through her became friendly with Roden.  He used to go to their flat to buy and smoke cannabis and used to go on thieving expeditions with Roden.  Although he knew about the taxi firm, he never had any dealings with it, or Attwooll.  At the time that he was asked whether or not he would be prepared to deliver the photographs of Stevens and Rees, Roden asked Perkins if he knew of anyone with a gun.  However, he did not follow that up because two days later he told Perkins that “Mike” whom Perkins later discovered was Attwooll, had obtained the gun which had been converted from an air rifle to take bullets.  Amongst other conversations he asked Perkins whether he was capable of hurting anyone for money and said that he himself had done everything except killing but thought that he might be capable of doing that.  He told Perkins about the problems caused by Stevens and Rees and spoke of killing them.  He said that Attwooll had gone out at night to try to find them in secluded spots but without success.  He asked Perkins if he would be prepared to telephone the taxi office and make false bookings so that Stevens and Rees would be alone at the office.  On one occasion they went to a telephone box but did not have the number so telephoned Perkins’ wife who tried unsuccessfully to book a woman driver.  This was confirmed by Mrs Perkins.  Perkins said that nearly every day for two weeks before the killings, Roden spoke of going to the office to shoot Stevens and Rees and then later of not having managed it.  Perkins at the time did not take it seriously.  
25.	Perkins said that at about 9.00am on 6 May when his wife had gone out, Roden came to his house looking smarter than usual, in a new jacket and shoes and looking as if he had bathed and shaved.  He was on edge and said “We’ve done it”.  He said that it had been easy to kill Stevens, but that Rees had put up a fight and kicked him on the shin.  After he had left Perkins heard about the murders on the news.  Mrs Perkins’ evidence, however, was that Roden, looking his usual clean and tidy self, had arrived at about 7.50am while she was still there.  She left to take the children to school; and it was when she returned that Perkins told her that Stevens and Rees had been murdered.
26.	Perkins’ evidence was that over the ensuing days Roden often spoke to him about the murders.  He told Perkins that on the evening of 5 May, a friend of Vicky’s came round to provide an alibi for Roden.  She had seen him go to bed, but had not seen him creep down later when Attwooll called.  As to this, a girl, Marianne Harris gave evidence of having been at Vicky’s flat, and of Roden going to bed at about 11.00pm.  But on her account she left by midnight, which was before the time that Roden said that Attwooll called.  Returning to what Perkins was told by Roden, Roden apparently lay on the back of Attwooll’s car so as not to be seen as they drove to the taxi office.  Attwooll told him that two women had waved at him but they did not see Roden.  When they entered the taxi office one of them threw the desk against the door so that Stevens and Rees could not escape.  Attwooll had the gun and told Stevens to get down which he did and shot him through the head.  Rees panicked and put up a fight and was really hard to kill.  She kicked Roden’s shin and he attacked her with a machete and an axe.  Something flew off, he did not know if it was a piece of skin or a bit of one of the weapons.  They thought that she was still alive so ended up shooting her in the head.  Roden heard her death rattle and said that he would never forget it.  They then went back to Stevens and “hacked him up” with the machete and put another bullet through his head.  They then looked at each other and giggled, which Perkins assumed to have been the result of nerves.  Roden said that they wanted the murders to look as if there had been a lover’s tiff, rather than a robbery.  
27.	Perkins also gave some contradictory evidence about clothing.  He said that Roden, or someone else, had told him that Roden had burnt his clothing.  Roden himself had told him that there were spots of blood on his Caterpillar boots and that he had given them to his brother to wear to work.  He then said that he was told that the blood was all over the boots, and then he was told that it was only on the soles.  Those boots had in fact been examined in August 1994 when no sign of blood was found on them.  When re-examined after Perkins had given the information, a spot of human blood was found on the side of the uppers of one of them; but there was no scientific evidence to connect it with the killings.  He also said that Roden had left a belt with him saying that there was blood on it.  This belt was also examined by Mrs Galbraith, who could find no traces of blood on it.
28.	As to the pieces of the gun, he said that Roden had come to his house with something in a bin liner and asked him to “sort it out” as it was too big to put in his own dustbin.  Perkins told him to leave the bag by the back gate.  After Roden had gone, he looked inside and saw two parts of a gun which he had never seen before.  He threw them in the river at the place where he eventually took the police; and that was where, as we have already indicated, the pieces of the gun were found.  
29.	Both Attwooll and Roden gave evidence.  Attwooll described the history of the taxi business.  He said that he had a very satisfactory business relationship with Stevens and far from wanting Stevens out of the way knew the business depended upon him.  It was Stevens who had the operating licence.  He denied having had anything to do with the sending of the photographs and denied speaking disparagingly to anyone about Stevens and Rees.  He saw Roden fairly regularly and they got on well together, but they did not have much to do with each other.  
30.	As regards the night of 5/6 May, Attwooll said that he had returned to the taxi office at about 12.15am.  Rees arrived seven or eight minutes later.  She was still there with Stevens when he left with Coughlin.  He drove along Mill Street to Channel View; at no stage did he drive along Mill Street towards Birds Industrial Estate; and he did not see Miss Ash or Miss Harris that night.  He remembered a van parked in Mill Street which could have been the reason for whatever vehicle they mistook for his white Sierra and must have assumed that it was him.  He accepted that he had stopped in Channel View to speak to Vicky and then he drove home.  He made himself some coffee, put the dog out and went to bed where his wife was watching television.  The time was then about 12.50am.  His wife confirmed this and gave details of the television programme.  The prosecution did not challenge Mrs Attwooll’s evidence in this respect.
31.	His account of what happened on 6 May is significantly different from that given by Detective Constable Rees.  He agreed that the two officers had been questioning him when they were contacted by the police station asking them to get him down to the office to show the original position of the furniture.  He said that because he had to do the school run after 15.00hrs he asked if he could follow the officers in his own car so that he could go straight to the school.  Detective Constable Rees radioed the station to check if it would be alright; he apparently got approval.  He accordingly drove his car to the office and parked it near the police tapes and went into the office.  He was given a pair of protective overshoes but no other protective clothing.  On leaving the office he noticed blood on his left hand after taking off the first overshoe.  He could not remember whether he wiped it off.  He was quite firm about this evidence to the extent of suggesting that Detective Constable Rees must have been committing perjury in asserting that they had gone in the police car.
32.	He accepted that he had called on Price that morning and had told him of the murders.  He never mentioned a gun or nitro stains and did not wash his hands.  He had never seen the gun which Price spoke of and totally denied buying it from him.  He said that Price had fabricated his evidence in order to help himself.  Clearly he was holding the gun illegally and disposed of it to someone whom he was now protecting.  
33.	As far as the blood in the Sierra was concerned, he stood close to the desk which was by the bloodstained area.  When he took the left overshoe off, he saw that he had blood on his hand.  As we have said he could not remember if he had wiped it, but he then immediately drove off in the white Sierra in order to do the school run, so that any blood found in the Sierra could have been transferred as a result of his contact with blood when in the office that afternoon.  
34.	As far as Eaves was concerned, Attwooll accepted that he had told him about the allegations against him but never confessed to the murders.  Eaves invented this in order to serve his own interests.  The details which he had given must have been learnt from press coverage.  In particular, he pointed out that Eaves original statement did not mention a second man being there; but in evidence he stated that there was.  That could only be because he had learnt about that as a result of the publicity but had not known about it from Attwooll.  
35.	Roden’s account was that he had been at home all night.  Attwooll turned up at 12.35am to remind him of the next morning’s arrangements, but did not come in.  He and Vicky were awoken the next morning by Attwooll who had by then heard about the murders.  Far from going smartly dressed to Perkins that morning, he woke up late and was dressed in jeans, which was confirmed by Vicky.  He never went to Perkins that morning at all.  He never said anything to suggest that he was involved in the killings.  Perkins must have given false evidence to avoid being prosecuted for his admitted dealing with the gun, and had decided to blame Roden.  He accepted that Perkins was a regular visitor and that they went on thieving expeditions.  Nothing in their relationship changed after the murders.  He made the point that Perkins’ evidence relating to the boots and the belt were contradicted by the forensic evidence.  Such details as Perkins gave about the murders, as if they had been provided by Roden, were merely the details which he would have obtained from his visits to the flat, where certainly there had been conversations about the murders.  But all Roden and Vicky knew was what they had been told by Attwooll about the case that was presented against him.  
36.	That was the general nature of the evidence given at the trial.  The verdicts were reached after 51 hours of deliberation.  
The Reference
37.	Attwooll applied to the Home Office for a review of his conviction on 12 August 1996, and his application was transferred to the Commission on 1 April 1997.  Subsequently Roden applied to the Commission for review of his conviction.  On 14 November 2001 the Commission notified Attwooll and Roden that it had decided not to refer the convictions for fresh appeals.  Mr Roden’s representative started proceedings for judicial review.  On 11 April 2002 the Commission advised Roden that it had decided to start the Review afresh using different Commissioners.  On the same date the Commission informed Attwooll that it had decided to bring his case before different Commissioners.  On 22 May 2007, Attwooll and Roden were notified that the Commission had decided to refer their convictions under section 9.  As far as Attwooll is concerned, the grounds were as follows:
i)	Failure by the defence to deploy, or deploy to full effect, material tending to enhance Mr Attwooll’s credibility and undermine an aspect of the prosecution’s case on an issue on which there was a direct conflict of evidence (namely the issue of whether Mr Attwooll used his own car to visit the murder scene at the invitation of police); and 
ii)	Failure to make the jury aware that one of the victims was apparently fearful for his safety as a result of a suspicious car’s presence in the area shortly before the murders.
38.	In relation to Roden the conviction was referred on the following ground:
i)	The Commission considers that there is a real possibility that the Court of Appeal will quash the conviction in Mr Roden’s co-defendant and that the links between the cases are such as to make it appropriate for the Court also to consider Mr Roden’s case.
Further Grounds
39.	In addition, both Attwell and Roden asked for leave to argue grounds which the Commission did not consider justified a reference.  These overlapped to the extent that the counsel of both argued that there is now material before the court, in part that which relates to the evidence as to the 9th May, which undermines the evidence of the police officers in the case, particularly those handling the witnesses, so that the integrity of the evidence given, in particular by Price and Perkins is compromised.
The first ground
40.	There was a clear conflict of evidence between DC Rees and Attwooll as to how Attwooll got to the office on the afternoon of the 6th May.  As we have already said, DC Rees gave evidence that he and DC Morgan conveyed him to the office in that unmarked police car.  DC Morgan was not called to give evidence.  He said that the two police officers had conveyed Attwooll to the office, implying at the very least, that they had taken him in their car.  Attwooll stated that he went in the white Sierra.  Solicitors acting for Attwooll at the time had said that they were told by the prosecution that DC Morgan could not remember exactly what had happened.  As a result it is said, Attwooll’s defence team decided not to require him to be called.  After the trial, Attwooll made a complaint to the Police Complaints Commission about the evidence of DC Rees alleging that he had committed perjury in this respect.  It would appear that DC Morgan was asked about the matter during the course of that investigation and supported the account given by DC Rees.  There is no doubt that there is a contemporaneous letter from the solicitors recording what they said they had been told at the time of the trial about DC Morgan’s recollection.  The prosecution has been unable to find any evidence substantiating the statement.
41.	The reference, however, concentrates on another aspect of the evidence relating to that afternoon.  In his interview with the police, Price stated that that afternoon he had seen Attwooll driving the white Sierra “out of the junction at Birds”.  He then got a lift from Attwooll who took him to the school where he picked up his child.  In his statement, he said that he saw Attwooll “Coming out of Bird’s Industrial Estate in the White Sierra”.  In his evidence in-chief he was asked where he had seen Attwooll on the Friday afternoon and said that he had seen him in Risca.  When asked where he said:
“I can’t remember the name of the street, I am sorry, but it started off on the main street in Risca and then because I was going to pick my son up from school ……”
42.	He was then asked questions which elicited the fact that he got a lift for about 200 yards up to his son’s school.
43.	In cross-examination, Mr Elias, QC did not pursue the point.  He contented himself with merely confirming that Price had been given a lift that afternoon to the school.  Counsel was more concerned with underlining the fact that Price on this occasion had asked Attwooll whether he had anything to do with the murders and received an unqualified denial.
44.	The point made by the Commission, and by Mr Bennathan on behalf of Attwooll, is that at what Price said in interview and in his statement was capable of confirming that Attwooll had indeed gone down to the office in the white Sierra.  Price’s account of seeing the white Sierra coming out of Birds Industrial Estate did not make sense unless that was the occasion on which Attwooll was leaving the industrial estate after being to the office.  He had no other reason at that time that day to go to the office.  The timings accord with his account, namely that he was anxious to go in his own car, so that he could go straight off to collect a child from school (not the same school as the school to which Price’s son attended).  The criticism accordingly is that Mr Elias QC failed to elicit a piece of evidence which was clearly helpful to Attwooll; and that is said to be an important issue for two reasons.  First, it would have supported Attwooll’s credibility, and conversely undermined the credibility of the prosecution.  Second, it gave some support to the argument that the blood stains in the car could have come from contamination at the scene that afternoon.  
45.	As to the latter point, Attwooll’s account was that, as we have said, he was provided with protective clothing, namely overshoes.  He noticed, however, that when he removed them on leaving the scene, there was some blood on one of the overshoes which got onto his hand.  He said that he did not clean his hand.  By implication, he was therefore saying that an explanation for the blood in the white Sierra could have been the blood which he has picked up on the overshoe.  The prosecution said that that could not provide any sensible explanation for that blood staining.  Leave aside for the moment the evidence as to how Attwooll was taken to the scene, the evidence of the forensic scientist and the Scene of Crime officer was clearly to the effect that Attwooll never went near the areas of blood staining.  The concession by the Scenes of Crime Officer in cross-examination cannot be elevated to an admission that there was a real possibility, as opposed to a theoretical possibility, of contamination.  He himself made it clear that if there had been any blood on the overshoes, he would have noticed it and noted it.  Further, if indeed Attwooll had got blood on his hand as a result, it is unlikely in the extreme that he would not have wiped it or washed it off.  The blood staining in fact found, in particular the blood staining on the interior roof simply could not be explained by Attwooll’s evidence. 
46.	In our view, it is surprising if this is a point of real significance in the context of the trial overall, that Mr Elias QC did not at least obtain confirmation from Price that he had seen Attwooll coming out of Birds Industrial Estate.  Mr Elias, QC, when asked by the Commission for his recollection, said that the point seemed to have been sufficiently made in the evidence without the need for him to underline it, and he was sure he would have mentioned it in his speech.  It will, however, be noted that the passages in the evidence to which we have referred make no mention of Birds Industrial Estate.  It is not entirely clear how the point could have been effectively made unless that evidence had been adduced.  We therefore have doubts as to whether or not this point was indeed made clearly to the jury. 
47.	Turning to the second ground, that relates to evidence that was available in the papers about a blue Sierra which was seen in the vicinity on the evening before the murders.  Roger Rowland who had known Stevens for 12 years, met Stevens at about 8.45pm on the 5th May while he was walking his dog.  Stevens was outside Myrtle Grove Public House in Risca.  A light blue Ford Sierra drove past with two men in the front and possibly another in the back.  Stevens said words to the effect “If that car comes back here, go away”.  Stevens appeared to be very agitated and nervous.  Rowland also told the police that in relation to an attack on one of the firm’s drivers by two men with knives, Stevens said that he believed that it had been meant for him.  A Miss Siman stated that she had seen a shiny blue metallic Ford car in the area at the relevant time.  Another potential witness, Christopher Francis made a statement to the police in which he mentioned a blue saloon being in the filling station at the time he was filling up his own car.  The records show that that was at 00.41hrs on the 6th May.
48.	The defence lawyers have been unable to give a clear explanation for not utilising this material.  It is suggested that the jury might have concluded that they had in fact seen Attwooll’s white Sierra, and misidentified it.  As counsel for Attwooll before us says, that would be surprising, bearing in mind that Rowland knew Attwooll and would have been able to recognise his as the driver of the car.
49.	It seems to us, therefore, that both of the matters raised by the Commission are matters which require us to look with care at the other evidence to determine the extent to which the safety of the conviction has been undermined.  In doing so, we shall refer to the other grounds advanced by the appellants for which no leave to appeal has yet been given.
50.	As to the events of the night in question, the evidence of the girls was clearly  of considerably significance.  The judge, however, warned the jury to be careful about their evidence, as it is apparent that they had not been able to identify precisely where it was that they had seen Attwooll’s white Sierra.  But they identified it both by its colour and by recognising Attwooll as the driver.  In addition, they said that the taxi sign was visible.  The point is made and was made at trial, that when the white Sierra was seen by the police, the sign was down by the side of the seat.  It was submitted to us, and was submitted to the jury at trial, that it was surprising that if Attwooll was intent on murder that night, he was nonetheless willing to be identified by the girls driving towards the scene of the crime.  It was accordingly submitted that this does not provide strong support for the jury’s verdict.
51.	Critical to the prosecution case was the evidence relating to the gun.  But it is pointed out that there are some curious features about that evidence.  First, the gun was first tried out not by McNeill, but by Duffy who said that he had fired bullets into the ground when testing it.  He took the police to the site where he thought that had carried out that test; and bullets were indeed recovered.  But they were not consistent with having been fired from the gun that was recovered.  The evidence relating to the bullets recovered from the tree was to some extent equivocal; and a ballistic reports from a firearms expert who was an instructed for the purposes of appeal but who had died before his report had been completed, cast some doubt on the extent to which it could be established that the bullets found in the tree had been fired from the same gun as those found in the bodies of Stephens and Rees.  Further, the account given by Perkins as to how the gun came into his possession and how he disposed of it is said to be incredible.
52.	The evidence of Price and Perkins, it is said, is dependent upon the jury accepting that these two witnesses where giving accounts which were not in anyway influenced by the police investigators.  One of the officers in the case, DC Sutton, is now known to have been the subject of criticism in a case involving the Frayne brothers.  But those criticisms did not result in any prosecution of DC Sutton, and the Police Complaints Commission rejected a complaint made in relation to his behaviour in that case.  There is no doubt that the accounts given by Price and Perkins contained inconsistencies, but those were apparent at the time of the trial and would undoubtedly have been fully exploited by Mr Elias QC and Mr Pitchford QC (who appeared for Roden).
53.	The evidence given by Eaves, the fellow prisoner, had to be approached with great caution, as with any evidence given in such circumstances.  And the judge gave appropriate warnings to the jury.  As to the evidence itself, Eaves did not mention that Attwooll had said anything about a second man until trial, by which time it was common knowledge, for obvious reasons.  It is therefore suggested that no weight can properly be attached to this evidence, particularly bearing in mind that DC Sutton was one of his handlers.  Finally, it is submitted, the evidence called by the appellants was objectively compelling.  As far as the evidence of Mrs Attwooll was concerned, which was not challenged by the prosecution, the time frame within which the prosecution case had to be shoehorned was wholly unrealistic.  Attwooll’s evidence substantially undermined the evidence of Perkins.  And the appellant’s own accounts were not shown to be unreliable.
54.	Like the Commission, we consider that the issues raised other than the two issues on which the reference was based do not provide any substantial basis in themselves for allowing the appeal.  In particular in relation to Roden, they essentially amount to a request to rerun the criticisms made in particular as to Perkins evidence, which were fully rehearsed before the jury when Roden was represented by extremely experienced Counsel, who has confirmed that virtually all the material before us was before him when he made his decision as to the way in which to present the case to the jury.  In so far as there are other criticisms, they were available to made at the time if counsel had considered that they were of any significance.
55.	As to the grounds which are the subject of the reference, the first seems to us to be one which does not, in truth, amount to a matter which could have had significance in relation to the verdict.  Whilst accepting that one aspect was credibility, the more important point to which the evidence was relevant was the chances of contamination when Attwooll was at the scene.  In our judgment, the contamination hypothesis advanced by Attwooll in seeking to explain how the blood got into his car does not bear scrutiny.  And as far as the sighting of the blue Sierra is concerned, whilst it might have had forensic value in causing a jury to pause, we do not consider that it would ultimately have made any difference to the jury’s verdict, when set against the substantial evidence linking Attwooll and Roden to these murders.
56.	Despite the industry of those advising the appellants and of the Commission, the case at the end of the day was one which depended on the evidence of Price and Perkins.  The evidence of Price placed the gun in the hands of Attwooll.  The evidence of Perkins clearly, if believed, established the guilt of Roden.  No credible explanation has been given as to why they should have lied.  That is particularly so in the case of Price, who clearly respected, indeed looked up to, Attwooll.  In the material before us it is plain that Price suffered real psychological problems during the period before the trial because of guilt feelings as a result of the fact he was to give evidence against Attwooll.  As far as Perkins is concerned, the suggestion that in some way his evidence was affected by any of the police officers, in particular, DC Sutton when his statements were taken is negated by the fact that at the time when the question arose as to whether or not he himself should be prosecuted for his part in disposing of the gun, DC Sutton was of the view that he was not only at risk of taking his own life at that time, but that he would not in fact give evidence in any trial.  In other words, he was not a witness whom the police would be likely to seek to influence, even if they had been minded to do so.
57.	We return to what we have said in paragraph 2 of this judgment.  There will not be many cases in which, with hindsight, no criticism can be made of the way in which the matter was dealt with by a defendant’s legal advisor.  That is particularly so in a complex case where counsel may well not decide to deal with a particular point, or to emphasise it, because in the context of the case as it has proceeded before the jury, it is a matter which has not assumed the sort of importance it appears to be capable of having merely looking at the transcript or may carry dangers not readily discovered on the transcript.  An example in the present case is the way in which the evidence of Price was dealt with by counsel.  Counsel’s present recollection, namely that he considered that the point was adequately made in his questions may not appear to be borne out by the transcript.   But to emphasise the point could have drawn attention to the fact that Attwooll’s explanation as to the presence of the blood stain was not one which bore examination, in the light of the way in which the forensic scientist and the scenes of crime officer gave their evidence.  We are not saying that that was in fact the reason why matters were dealt with as they were.  But it provides an example of the difficulties of dealing with complaints about the conduct of a trial when counsel are asked to give their explanation many years after the event.
58.	In the present case, the important point is that no evidence or other material has been put before us which could undermine the evidence given by Price and Perkins.  For the reasons we have given, their evidence was critical.  The jury clearly believed them.  We do not consider that anything we have heard undermines the safety of the verdict.  We dismiss the appeal.