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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Barron, R. v [2010] EWCA Crim 2950 (21 December 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/2950.html Cite as: [2010] EWCA Crim 2950

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEEDS
Mr. Justice Holroyde
T20090576

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st December 2010

Lord Justice Moore-Bick :

1. At the conclusion of the hearing in this matter we dismissed the appeal and indicated that we would give our reasons for doing so at a later date. We now do so.
2. On 11^th December 2009 in the Crown Court at Leeds before Holroyde J. the appellant was convicted of murdering his former wife, Janet Barron, at her home in Sheffield in January 1994. He was sentenced to life imprisonment.
3. That was the second occasion on which the appellant had been tried for the offence, having been convicted in October 1995 at Sheffield Crown Court before Gage J. after a five day trial at which an important part of the evidence against him had been the presence on his clothing and shoes of spots of the deceased's blood. However, in March 2009 his conviction was quashed because fresh scientific evidence had by then become available relating to the creation of blood aerosols, which the court accepted could have affected the jury's verdict. A re-trial was ordered which took place before Holroyde J. over a period of twenty days in November and December 2009.
4. Many of the facts surrounding the killing were not seriously in dispute. The appellant had met the deceased in 1984. They subsequently had a daughter, Suzanne, and married in 1988. However, their relationship was not altogether smooth and they were eventually divorced in 1993. In August 1993 Janet moved to 102 Sitwell Road, Sheffield, where she lived with Suzanne and a lodger, Carolyn Ashton.
5. During December 1993 Janet had formed a relationship with a local man, Mehboob Sarangi. By the middle of January 1994 the relationship was still in its infancy, but they had been out together on a number of occasions. They had spent the evening of 19^th January together and Mr. Sarangi had returned to the deceased's house where he had stayed overnight. He left at about 7.00 am the next morning and went home. He said he had slept for a while until it had been necessary for him to take a delivery of milk to the shop run by his parents. The milk came at about 9.50 am and the delivery man was able to confirm his presence at that time.
6. At about 7.20 am Carolyn Ashton left the house to go for a driving lesson. During the two weeks before her death Janet's car had been off the road and the appellant, who worked as a taxi driver, was in the habit of calling at the house each morning to give Suzanne a lift to school and to take Janet to work. On the day in question he arrived at the house at about 8.00 am. He took Suzanne to school, but did not take Janet to work because, he said, she had not been ready when it was time for him and Suzanne to leave.
7. A witness said that just before 9.00 am he had seen a person (presumably the deceased) standing in the front room of her house and another witness said that at about 9.00 am she had seen a white taxi corresponding in appearance to that driven by the appellant parked in Sitwell Road. There was evidence from other witnesses that between 10.00 am and 10.20 am they had seen the appellant's car parked outside his flat some distance away.
8. At about 10.30 am a 999 call was received from the appellant who by then was at 102 Sitwell Road. He asked for the police and told the operator that he had found his wife on the floor with her throat cut. When asked whether he had called for an ambulance he said that he wanted an ambulance as well. Two police officers arrived at the house shortly afterwards. Each of them said that as they approached the house he saw through the net curtains a figure standing in the front room. They went along the path to the rear of the house and entered by the back door. They found the deceased on the floor of the dining room with the appellant, who was a trained paramedic, kneeling over her and apparently giving her mouth-to-mouth resuscitation. There were signs and sounds of air escaping from the wounds in her chest. The appellant was kneeling by her left side with his left hand on a towel on her neck and his right hand on her forehead. The deceased was in fact already dead, having suffered a large number of very severe stab wounds to the chest, neck and face. A large kitchen knife with a black handle lay on the floor nearby. There were few signs of disturbance and no one else was in the house.
9. The appellant was arrested and in due course charged with Janet's murder. The evidence against him was almost entirely circumstantial. The Crown's case was that, having ascertained that Carolyn Ashton would be out for some hours, he had so arranged things that Janet would not be ready to leave for work by the time he had to take Suzanne to school. Knowing that she would be alone in the house he had returned and killed her in a fit of jealous rage brought on by his knowledge of her relationship with Mr. Sarangi. He had fled the scene and gone back to his own house, but on reflection had returned to Sitwell Road in order to pretend to find her there dead. He had been watching at the window of the front room waiting for the police to arrive before returning to her body in order to be able to pretend that he was giving her mouth-to-mouth resuscitation when they entered. The prosecution case rested heavily on expert evidence that the amount, type and distribution of the blood staining on the appellant's jacket and shoes was consistent only with his having carried out the killing. The appellant denied the murder and suggested that Mr. Sarangi was responsible for it.
10. At his first trial the appellant was convicted, but in March 2009 this court quashed his conviction, having considered fresh evidence that aerosols of blood could have been created by air escaping from the deceased's wounds in the course of an attempt at mouth-to-mouth resuscitation which could have caused drops of blood to be deposited on the appellant's clothing. A new trial was ordered and the appellant was again convicted.
11. The second trial lasted much longer than the first, not just because it was necessary to call the new scientific evidence, but because in the meantime Parliament had passed the Criminal Justice Act 2003, which rendered evidence of bad character admissible in circumstances in which it had previously not been. The Crown therefore made applications to put before the jury evidence from various witnesses which, it said, tended to show that the appellant had a propensity to become obsessively jealous of his former partners when they formed attachments to other men after his relationship with them had broken down and that he would take active steps to harass and even assault both them and their new partners. After hearing argument the judge acceded to most of the Crown's applications, although he declined to admit some evidence, which was said to show that the appellant had a propensity to carry and use knives, on the grounds that it was not sufficiently probative.
12. The lapse of time between the murder and the second trial had led to other unfortunate consequences. Two exhibits of prime importance, the jacket worn by the appellant on the day in question and the murder weapon itself, had been lost. It was therefore not possible for the experts instructed by the defence to examine those articles or to obtain any DNA samples from the knife for analysis. In those circumstances an application was made at the beginning of the trial to stay the proceedings as an abuse of the process. The basis for the application was that it was not possible for there to be a fair trial in the absence of the two principal exhibits and that the passage of time had rendered the recollections of important witnesses unreliable. Particular emphasis was laid on the evidence of the two officers who had gone to the house and who described the position of the appellant in relation to the body of the deceased at the time when he was apparently attempting to resuscitate her.
13. Having heard evidence from the principal scientific expert witness for the defence, Professor Schroter, whose evidence concerning aerosols had led this court to quash the earlier conviction, and other forensic experts, the judge dismissed the application in a detailed and careful ruling in which he examined and rejected the argument that the defence was seriously hampered by the absence of the appellant's jacket or the knife. It is unnecessary at this stage to consider in detail his reasons for coming to that conclusion, because the application was renewed at the end of the prosecution case when it was based not just on the absence of those exhibits but on the effect of a series of rulings made during the course of the prosecution's case which had led to the admission not only of the evidence of bad character but also a certain amount of hearsay evidence that the defence said it had been unable properly to challenge. It was argued that the cumulative effect of those rulings was to render the trial fundamentally unfair. The judge did not accept that, however, and dismissed the application.
14. The appellant now appeals against conviction by leave of the single judge. The grounds of appeal are to some extent interrelated but can conveniently be drawn together under three heads: (a) that that the judge was wrong to admit the evidence of bad character; (b) that by the close of the Crown's case the proceedings had become fundamentally unfair and an abuse of the process and therefore ought to have been stayed; and (c) that the judge made a number of errors in his summing up.
15. In the event, the first of these was not seriously pursued as an independent ground of appeal. The evidence concerned the appellant's behaviour towards three women with whom he had enjoyed long-term relationships before eventually separating from them. The first was his first wife, now Mrs. Cook, whom he married in 1973 and from whom he was separated and subsequently divorced. The second was a lady by the name of Anita Acaster, with whom he had a long-standing affair during the latter part of the 1970's and early 1980's. The third was the deceased herself, whom he married in 1988. Although they divorced in 1993, he continued to see her regularly until her death in January 1994.
16. Mrs. Cook described how, following her separation from the appellant, she had gone to live in a different area of Sheffield, taking with her their pedigree dog. She said did not ask the appellant for any kind of help, nor did she invite him to her new house, but he frequently called on the pretext of seeing the dog. She said that if she went to night clubs in the city he always seemed to appear. She said that one evening she invited a man who had given her and a few others a lift home into her house for coffee. No sooner had she put the kettle on than the appellant burst in through the back door, breaking the lock or the surrounding woodwork. She told her guest to leave. The appellant was ranting and raving. He was aggressive towards her and picked up a large kitchen knife and threatened her with it. The next day she left Sheffield to go and live with her parents in Hampshire. She stayed there for over two years and found work in a local bank, but she still received unwanted attention from the appellant. Although he did not come to the house, he would appear suddenly from behind trees when she was walking the dog and on one occasion he followed her as she was driving to work. On several occasions he rang her at work. Mrs. Cook said that after a time she moved back to Sheffield and again the appellant began to appear form nowhere when she was walking the dog. He also telephoned her at work and she sometimes found him waiting for her outside her place of work at lunchtime. That behaviour went on for some but eventually it petered out.
17. The appellant married Frances Askham in 1979, but that marriage came to an end, probably it seems at his instigation when he formed an attachment to Mrs. Acaster, with whom he had an affair which was to continue on and off over a period of many years. For a time she left her husband for the appellant, taking with her two of their three children. After about six months, however, she returned to her husband, causing the appellant to become very upset. Mrs. Acaster said that in the course of an argument he struck her in the face and broke her nose.
18. Mrs. Acaster's husband, Stephen, said that after his wife had returned to him the appellant started to follow him as he drove to and from work, as often as four times a week. He said that when he was at home he often saw the appellant's car passing along his street, although there was no reason for him to be driving there. Mr. Acaster said that on 6^th March 1983 he was about to leave home for work when he saw the appellant coming into his garage carrying a knife. There was a struggle and Mr. Acaster was stabbed in the shoulder, suffering a wound which required several stitches.
19. Various witnesses were able to give evidence of the appellant's behaviour towards the deceased and those with whom she struck up casual relationships. Alan Shaw said that he got on well with the appellant until he formed a relationship with the deceased following her divorce. The appellant became aggressive and threatening and would follow them after work. Another man, Robert Burns, who developed a relationship with the deceased while she was still married to the appellant, said that the appellant followed him and made threats towards him. He also described an occasion when the appellant threatened the deceased with a knife. Other witnesses had made statements describing aggressive and threatening behaviour on the part of the appellant towards the deceased.
20. Following an application by the Crown at the outset of the trial, the judge ruled that the evidence of those witnesses was relevant and admissible under section 101(1) of the Criminal Justice Act. As the judge recorded in his ruling, Mr. Atkinson accepted that evidence of the appellant's behaviour towards the deceased was admissible because it was important explanatory material within the meaning of sections 101(1)(c) and 102 of the Act. Counsel could not therefore realistically object to its being adduced. As to the evidence relating to Mrs. Cook, Mr. and Mrs. Acaster, Robert Burns and Alan Shaw, the judge ruled that it was all admissible under section 101(1)(d) as evidence of a propensity to react with obsessive jealousy when confronted with the fact that a former partner had formed a new relationship and that its admission would not have an adverse effect on the fairness of the proceedings. Mr. Atkinson accepted that the correctness of that ruling could not be challenged, if it had stood alone, and in our view he was quite to do so. The judge considered the significance of the evidence, the extent to which the appellant could be expected to be able to challenge it and its overall effect on the trial and we can see no grounds for criticising his decision.
21. The next application concerned the evidence of a witness by the name of Jane Hill. Another witness, Shane Murphy, had told the police that Jane Hill had described how the appellant had said in relation to the deceased "If I can't have her, nobody can", the implication being that he would take steps to ensure that no one else could. Miss Hill had not mentioned that remark when she gave her original statement to the police, but shortly before the trial the police approached her again to see what she had to say about what Miss Murphy had said. Jane Hill then confirmed that she had heard the appellant make the comment to which Miss Murphy had referred. Not surprisingly, the Crown indicated that it wanted to call her to give evidence of it, but the defence objected on the grounds that very little probative value could properly be attached to evidence of that kind obtained as a result of prompting by the police and that its prejudicial effect was likely to be considerable. They asked the judge to exclude the evidence in the exercise of his power under section 78 of the Police and Criminal Evidence Act 1984. The judge declined to exclude the evidence. He took the view that through cross-examination the jury could be made fully aware of how the evidence had come to be given and might well place little weight on it, if they believed it at all. However, in his view that was a matter for them.
22. In our view the judge's decision was plainly correct. There were undoubtedly many unsatisfactory aspects of that part of Miss Hill's evidence, but if it were accepted as reliable, it was obviously of importance. Whether it was reliable was a matter for the jury, but there was plenty of material available to counsel to test her evidence and to demonstrate its possible shortcomings.
23. It is necessary next to mention a witness whose evidence was potentially of considerable importance, namely, Carolyn Ashton. She had been a lodger at 102 Sitwell Road for some time and was well placed to give evidence about the behaviour of the appellant when he called at the house and also about the more recent attachment between the deceased and Mr. Sarangi. She also said that she had heard the appellant make a remark about the deceased to the effect that "If I can't have her, nobody can". Unfortunately, Miss Ashton could not be called to give evidence in person because she was medically unfit to do so and was likely to remain in that condition for the foreseeable future. Her statement was therefore admitted in evidence under section 116(2)(b) of the Criminal Justice Act 2003. Mr. Atkinson did not suggest that the judge was wrong to allow her evidence to be adduced in that way, but he pointed to the fact that it deprived the defence of the opportunity of questioning a central witness about matters that might have supported the appellant's case. As such it was an important matter to be taken into consideration when judging the overall fairness of the proceedings.
24. Before we come to the renewed application to stay the proceedings it is necessary to mention two further matters which Mr. Atkinson submitted fell to be taken into account. The first concerns an application made by the defence at the beginning of the trial to exclude evidence of the existence of cuts in the lining of the left sleeve of the jacket that the appellant was wearing on the day of the murder. The jacket had been examined by a forensic scientist, Mr. Christopher Handoll, who had made careful and detailed notes of his findings as well as taking a number of photographs. He had noted the presence of the cuts, but had not included a reference to them in the report he prepared for the first trial. Mr. Handoll could say no more than that the cuts had been caused by a sharp-bladed instrument, possibly a screwdriver or a knife. The Crown contended that they were consistent with carrying a knife hidden up the sleeve. The defence sought to exclude that part of Mr. Handoll's evidence, but the judge refused to do so on the grounds that the defence expert had examined the jacket before the first trial and had himself noticed the cuts. No report from him had been served, however, so the fact of their existence remained dormant at that stage.
25. Given that the defence had known about the cuts all along, Mr. Atkinson recognised that it was difficult for him to criticise the judge's decision not to exclude that part of Mr. Handoll's evidence, but he did criticise the judge's decision to allow one of its expert witnesses, Mrs. Leak, to add to her evidence at a late stage in the trial by expressing the opinion that the cuts had been caused by a sharp single-bladed instrument, possibly a knife of the kind found at the scene of the crime. In our view, however, her evidence added little, if anything, to what Mr. Handoll had already said. If the appearance of the cuts was consistent with their having been caused by a sharp instrument such as a knife (as he had said), it was little more than a matter of common sense that they could have been caused by the murder weapon.
26. The second matter concerns the police investigation into Mr. Sarangi's movements on the morning of the murder. The appellant's case at trial (as it had been at the first trial) was that the murder had been committed by someone else, probably Mr. Sarangi. He did not need to prove that, of course; all he had to do was to create enough doubt in the minds of the jury to prevent their being sure that he was the killer. Any evidence which either implicated Mr. Sarangi, or that even allowed for the possibility that he might have been the murderer, would assist his case. The police did arrest and question Mr. Sarangi and they seized his clothes for forensic examination, but they found nothing to link him with the crime and appear to have discounted him as a suspect at quite an early stage. Mr. Atkinson pointed out that they did not take steps to check one important aspect of his alibi, namely, that he had been to the local post office during the morning of the murder to cash his giro; nor did they carry out a forensic examination of the car which he had borrowed later the same morning ostensibly to do some shopping, but perhaps, the defence suggested, to dispose of his blood-stained clothes.
27. The police were also criticised for having failed to take a statement from a woman by the name of Lisa Jones, a former partner of Mr. Sarangi. In June 1993 she had told the police that he was an evil man, who had twice broken her hand, had broken her nose, had put cigarettes out on her body, and had twice broken an injunction by assaulting her. In August 1993 she alleged he had assaulted her. She was interviewed on the day after the murder and on that occasion had told the police that in the past Mr. Sarangi had carried a knife, including a long-bladed chef's knife with a black handle. That, of course, was a good description of the murder weapon and might well have prompted the police to take a statement, but some of the allegations that Lisa Jones had made were found to be demonstrably false, so the police did not regard her as a reliable witness.
28. Mr. Atkinson submitted that the failure to make a full investigations into Mr. Sarangi, while not by itself sufficient to render the trial unfair, provided yet another difficulty for the defence.
29. At the close of the prosecution case Mr. Atkinson renewed his application for a stay of the proceedings on the grounds that they were, or had become, unfair and an abuse of the process. The judge dismissed the application and the principal ground of appeal is that he was wrong to do so. Mr. Atkinson's submissions can be summarised as follows: although none of the judge's rulings can be criticised individually, the sheer volume of bad character evidence and the multiplicity of issues to which it gave rise, together with the admission of Miss Hill's evidence, overwhelmed the real issue in the case, namely, whether the appellant was responsible for the death of the deceased. Added to that were the disadvantages to the defence of not being able to examine the appellant's jacket or the murder weapon, of having to deal at the last minute with additional forensic evidence, of being unable to cross-examine Miss Ashton and of the failure of the police to pursue with sufficient vigour their investigations into Mr. Sarangi's movements on the day in question. All those factors combined to render the trial fundamentally unfair.
30. The judge explained in his first ruling on abuse of process why the loss of the two exhibits did not prevent the appellant from receiving a fair trial. He pointed out that at the time of the first trial they had been examined by experts for the defence who had been able to make notes and take photographs of them. Moreover, although the forensic scientists who were asked to give evidence at the second trial would quite understandably have preferred to examine the exhibits for themselves, they accepted that Mr. Handoll had carried out a thorough examination using techniques and equipment which differed little, if at all, from those that were currently in use and had made full and detailed notes of his findings. He took the view that the raw data which would form the basis for any expert opinion had therefore been preserved.
31. We agree with the judge's view. In one respect only could it be said that new techniques were available that could have been applied to the exhibits, namely, the collection and analysis of samples of DNA. However, the loss was not as serious as might at first sight appear. There would have been little point in taking DNA samples from the jacket and there is no reason to think that any samples that could have been recovered from the handle of the knife are likely to have assisted the defence. The origin of the knife was not established; it was of a common type and could have been brought to the house by the killer or taken from the kitchen. If the appellant's DNA had been found on the handle that would not have assisted his case and traces of Mr. Sarangi's DNA could have been explained by his presence in the house on a number of previous occasions. No doubt other people had also been there in the past. The outcome of any such testing is therefore speculative at best. The prospect that fibres clinging to the blade of the knife might provide a reliable link to clothing worn by Mr. Sarangi so as to implicate him had always been remote, given the fact that the knife was found on the floor, that Mr. Sarangi had been in the house recently and that the knife had been used to stab the deceased many times though her clothing.
32. Once one puts aside as of comparatively little importance the loss of the exhibits the full difficulties facing Mr. Atkinson's submissions emerge. His argument comes to this: that the trial process was rendered unfair as a result of a series of decisions, each of which was beyond criticism, to allow the prosecution to adduce evidence that was properly admissible and probative in one respect or another of the appellant's guilt. It is quite true that the question for the jury was whether the appellant had killed the deceased, but the evidence against him was circumstantial and came in a variety of forms from a number of different sources. The evidence of bad character, although it came from a variety of witnesses, was all directed to one question, namely, whether the appellant had a propensity to become obsessively jealous of women with whom he had been in a long-term relationship and to express his jealousy by keeping watch on them and threatening with violence both them and any men with whom they formed new relationships. If the jury accepted that the appellant was given to behaviour of that kind, it provided them with one piece of information to assess together with the other evidence, such as the blood spots on his clothing and the evidence of his movements and those of others on the morning in question. Provided the judge made it clear in his summing up how all that evidence fitted into the larger picture, we can see no reason to think that it needed to dominate everything else.
33. Finally, we turn to the criticisms of the summing up. Mr. Atkinson drew our attention to the large amount of time the judge had devoted to reminding the jury of the character evidence. Certainly, it does occupy many pages of the transcript, but it was important evidence and the judge was at pains to remind the jury of what the appellant had to say about the various incidents of which the witnesses had spoken. We do not think that he can be criticised for doing so and, despite what we have just said, Mr. Atkinson did not submit that the judge had failed to direct the jury properly as to the significance to be attached to that part of the evidence. He pointed out that the judge did not make a great deal of the fact that Lisa Jones had told the police the day after the murder that Mr. Sarangi had in the past carried a chef's knife with a black handle, but had made rather more of Jane Hill's rather late recollection of the appellant's damaging remark. That may be a fair comment, but we have no doubt that Mr. Atkinson ensured that the potential significance of Lisa Jones's statement was not lost on the jury.
34. Three other criticisms are, in our view, of even less significance. The first is that the judge failed to remind the jury of evidence from Suzanne and Carolyn Ashton that the deceased was behaving in an unusual way on the morning of her death. The evidence is said to have been important because it tended to undermine the prosecution case that the deceased was happy in her new relationship with Mr. Sarangi who had no motive to kill her. The evidence, however, went no further than to suggest that the deceased had been a little distracted or on edge. There was nothing to suggest that she had fallen out with Mr. Sarangi, a matter of which both witnesses would probably have been aware.
35. The next criticism was that the judge had told the jury that Prof. Schroter could not comment on the fact that the spots of blood found on the wall were of similar size to those found on the appellant's jacket, whereas he had actually said that he did not think that there was anything significant in it. What the judge actually said, however, was that Professor Schroter had agreed that he was speaking purely as a scientist and was not concerned with other circumstantial evidence and that therefore comparisons between the size of the blood spots on the jacket and the size of the blood spots on the wall were of no interest to him. Since he had no evidence whether the spots were created and deposited at the same time, he did not need to take into account what was found on the wall.
36. We are unable to accept that there was anything seriously wrong with the judge's summary of that part of Prof. Schroter's evidence, and certainly nothing that could render the conviction unsafe.
37. The next complaint was that the judge had failed to remind the jury that Mrs. Leak had said in one of her reports that the absence of any disturbance of blood on the lips of the deceased meant that there could not have been an attempt at mouth-to-mouth resuscitation. However, she was forced to withdraw that opinion in the face of the evidence given by the two officers who went to the house. Mr. Atkinson submitted that this was extremely important evidence because might have affected Mrs. Leak's credibility in the eyes of the jury. However, the judge is not bound to remind the jury of every piece of evidence given in the course of the trial and it must be borne in mind that Mrs. Leak could express an opinion only by reference to the photographs. It seems to us very unlikely that the omission of a reference to that part of Mrs. Leak's evidence had any effect on the jury's view of the case as a whole and therefore we do not think that it casts any doubt on the safety of the conviction. Overall the summing up in this case was careful, thorough and fair to both prosecution and defence.
38. It is important to bear in mind when considering the significance to be attached to these matters that, although Prof. Schroter was able to give evidence that blood aerosols might have been created during an attempt at mouth-to-mouth resuscitation, his evidence could not, in our view, adequately explain the distribution of the blood spots found on the appellant's jacket and shoes. The majority of the spots were toward the right hand side of the jacket and under the right arm. A few spots were found on his shoes. The officers who attended the house said that they had found the appellant kneeling by the deceased's left side and leaning over her body at right angles, with his left hand on a towel round her neck and his right hand on her head. In that position the left side of his jacket and the area below the left sleeve would be more exposed to any aerosols that might emerge from the wounds in her chest than the right and his body and thighs would be likely to prevent any spots of blood reaching his shoes.
39. Taking all these matters into account we are satisfied that the appellant received a fair trial and that there are no grounds for considering the conviction to be unsafe. The appeal must therefore be dismissed.