| JUSTICE HOME Contrary to what Lord Justice Rose said when dismissing Stone's 2nd appeal in regard to the reliability of this confession, both Daley and Stone (if he had been minded to give such a confession) would have been able to obtain the facts of the crime quite easily before and around the time of the confession. No:
200300595/B3 2nd APPEAL Neutral Citation Number: [2005] EWCA
Crim 105 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 21st January 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE MOSES MR JUSTICE WALKER R E G I N A -v- MR N SWEENEY QC appeared
on behalf of the CROWN MR E FITZGERALD QC
appeared on behalf of the APPELLANT - - - - - - - (As Approved by the Court) - - - - - - - Crown copyright© 1. THE VICE PRESIDENT: Each member of the Court has contributed to this
judgment. We give our reasons for having, on 19th January, dismissed this appeal. 2. On 4th October 2001 at
Nottingham Crown Court, following a re-trial before Poole J, the appellant was convicted
by a majority verdict of 10 to 2 of two offences of murder and one of attempted murder. He was sentenced to life imprisonment. 3. The previous trial had
been at Maidstone Crown Court before Ian Kennedy J. On
23rd October 1998 the appellant had been convicted, again by a majority verdict, on the
same three counts. On 8th February 2001, the
Court of Appeal (Criminal Division) quashed those convictions and ordered a re-trial
because, of the three prosecution witnesses who gave evidence in relation to an alleged
confession to them by the appellant, one, a man called Thompson, subsequently retracted
his evidence and was shown to be hopelessly unreliable.
A second witness, a man called Jennings, had been paid money by a national
newspaper and offered further money if the appellant were convicted. The Jennings aspect
was not dealt with in the Court of Appeal's judgment, nor did it lead to the quashing of
the convictions at the first trial. The
Court's judgment focused on the evidence of Thompson and the impact which it might have
had on the jury's assessment of the evidence of Damien Daley, the third of the witnesses
at the first trial, whose evidence is at the centre of the present appeal. Daley was the only one of the three whom the
prosecution called at the re-trial which is the subject of the present appeal. 4. The appellant appealed
against conviction by leave of the Single on one ground relating to the adequacy of the
judge's directions in summing-up in relation to the evidence of Daley. During the course of the appeal, leave was granted
on a second ground on this aspect and on grounds 3, 4, 5, 6 and 6A which arise from
further disclosure, made since the re-trial, of the full terms of an interview given by
Daley, a statement made by Annette Conway, a probation officer and the medical notes of
Daley's general practitioner. Without
objection by the prosecution, all this material was received in evidence during the
hearing of the appeal. Other fresh evidence,
from a man called Gilheaney, was proffered but we declined to receive it and refused leave
on ground 7, which was based upon it. 5. We come to the facts. On 9th July 1996 at about 4.00 pm, Dr Lin Russell, who had no
purse or handbag with her, together with her six year old daughter, Megan, and her 9 year
old daughter, Josie, left a swimming gala at Godnestone School, in Kent, to walk home with
their family dog. At about 4.25, as they
walked along Cherry Garden Lane, a quiet unmade track near Chillenden, they were attacked
by a man getting out of a car intent on robbery. He
took them into a thicket, tied them up with torn towels and shoe laces, blindfolded them
and savagely beat the head of each them with a hammer, smashing their skulls to a greater
or lesser agree. Dr Russell and Megan both
died. Josie was seriously injured but survived. The dog was killed. When they did not return home Dr Russell's husband
raised the alarm. The bodies were discovered
at 12.30 the following morning. It was the
prosecution case that the appellant was responsible for the attacks. Central to that case was the evidence of Damien
Daley, a criminal on remand, who was in a cell in the segregation unit at Canterbury
Prison. The appellant was put in an adjoining cell. Daley's
evidence was that, via a heating pipe, running between two cells, the appellant confessed
to him that he had carried out the killings. 6. The injuries which
Josie suffered caused her to have significant difficulty in expressing herself. But, 2 months after the attack, she indicated to
her father that she had some recollection of what had occurred. A speech and language therapist began a series of
sessions and she was interviewed by the police several times from September onwards. She was able to indicate that, while in Cherry
Garden Lane, she had seen a red
saloon car, to whose male driver she had waved.
Later it stopped across their path. She
indicated that the attacker had yellow hair, was of medium build and was as tall as her
father. The appellant is several inches
shorter than her father. She gave a
description of the man's clothing and said his hair was short. He had no beard and he did
not wear spectacles. He had hurt her head
using a hammer. He had tied her hands behind
her back with a shoe lace and
had tied her mother with a blue towel
which he had torn. She had run away, but the
man had run after her, hitting her on the head, and had brought her back to the others. Later, she gave further details of the man chasing
her, and hitting and tying up her mother. Later
still, when she was able to speak, she said the man had asked for money. After the appellant's arrest, she attended an identification parade but
was unable to identify anyone. 7. Nicola Burchell
described driving home from work just before 4.45 pm and, at a junction near the scene of
the attack, a car pulled out in front of her, causing her to slow down. She followed it bumper to bumper. The male driver kept looking in his wing mirror. She later provided the police with two e-fit
pictures of the driver, whom she described as 30 to 35, with short gingery blond hair and
a fair complexion. When Josie saw the e-fits
she recognised them as being consistent with the appearance of the attacker. When, 14 months after the murders, Miss Burchell
attended an identification parade, she was unable to make a positive identification but
said the appellant "looks very
familiar. I don't know why. There is just something about him". She described the car as being light beige like an old Escort. Another witness saw what he thought was a beige Escort at about 5.10 pm parked by a tree. There was a man standing by the car whom seemed
jittery and was looking across the field towards Chillenden. He was about 40, 5 feet 6, with quite
short, close cut, light coloured hair. Later when he returned with his dog, he saw,
near the tree, a string bag with
strips of blue towelling which had been pushed into a hedge. Another witness saw a beige car, possibly a 10 year old Escort, about 4.50 pm near Rowling Court. The white male driver had short fair hair, and was
aged 30 to 40. Near a tree at Rowling Court
were found six separate strips of towel which, when fitted together, formed one complete
towel, which was identified as belonging to the Russell family. All the strips were bloodstained. A number of the bloodstains and hairs were grouped
and analysed for DNA. All were consistent
with having come from the three victims. A black boot lace 99 centimetres long and knotted tightly in three places
was found 45 metres away from the bodies. It
had on it blood from Megan and Josie. Postmortem
evidence in relation to Megan showed that there were injuries to her neck apparently
caused by the boot lace. 8. There was no forensic
evidence connecting the appellant with the attacks. But
there was other relevant evidence. He was a heroin addict who kept syringes and
a boot lace in his car. The
lace was about two or three feet long, with a knotted loop at one end and two or three knots along its length.
He was seen to use it five or six times, wrapped round his bicep to raise a vein for the
purposes of injection. There was expert
evidence that the boot lace found at the scene was in every way consistent with being a
tourniquet used by abusers of heroin. The
appellant knew the area. He had lived nearby
when younger. In the early 1990s he was
sufficiently familiar with the countryside to be able to give directions without a map,
when driving around the area. It was his habit to carry a variety of
tools, including a hammer in whichever car he was using. His aunt gave evidence that, between May and June
1996, the appellant had given her a lift in a very dirty old car, which was dirty beige inside and looked a dirty red outside. The appellant often changed his car, and they were
generally old ones. Two other witnesses
described seeing the appellant in various cars, red, green, white and beige during the
summer of 1996. Sheree Batts said that, on an
occasion two weeks before 24th July
1996, the appellant had called at her house between 11.00 am and 3.00 pm with blood
on the front part of his T-shirt, visible beneath his jogging top. He said he had been in a fight but she could see
no injury and he did not complain of any. 9. The appellant was
arrested a year after the murders, on 17th July 1997 and was interviewed several times. He
denied owning a beige car over the previous 2 years, having anything to do with the
murders, or arriving at Sheree Batts's house with blood on his T-shirt. He said she was lying. He had thrown all his old clothes away. He admitted injecting heroin and using a rubber
tourniquet and sometimes a tie but not, he said at first, a shoe lace or boot lace. Later, he said he might have used a white shoe
lace, once, and then, that he might have used it a few times. He did not remember a black shoe lace. He denied
ever going to Chillenden. He said, when Daley's statement was shown to him, that it was a pack of lies. He denied carrying a hammer in his car, and denied
knowing the areas of the murders. He had not given his aunt a lift in a red car. He asserted a comparison of his hair and any at
the scene would prove negative. 10. Damien Daley said that, in
September 1997, he was in Cell 3 in the segregation unit at Canterbury Prison. He was able
to communicate with the prisoner in the adjoining cell by means of a heating pipe. He had heard that a woman and child had been
murdered in Chillenden but he did not know the details.
On 23rd September the appellant was brought to Cell 2. Daley had no
foreknowledge of this. About 8.00 to 8.30 in
the evening several prisoners were screaming and shouting at the appellant and asking what
he was in for and he said robbery and intimidating witnesses. The shouting continued for 5
to 10 minutes. Daley told the others to leave
the appellant alone and be quiet. They were. He then heard someone talking through the wall
from Cell 2. He went to the pipe and listened. The
appellant told him he was his "mate", and thanked him for doing what he had
done. Daley told him to shut up but carried
on listening. The appellant started talking about smashing heads and breaking eggs and
inside it would be mush or something. He
said: "I'd been okay if that slag hadn't picked me out". Daley told him to be quiet and did not really know
what he was talking about. He started reading
The Mirror newspaper which mentioned the Chillenden murders. We interpose there the comment that, as is
apparent from the Daily Mirror which Daley had, the result of the identification parade
had been withheld from publication, though it had been reported that Josie had
attended such a parade. Daley said he had not realised there was a survivor. He realised the appellant was talking about that
matter, so he went back to the pipe and told the appellant to be quiet or he would tell
'the screws'. The appellant said: "They
won't believe you, and even if they do I'll be nutted off" which Daley understood to
mean he would plead insanity. The appellant
talked about tying people with towels
and a shoe lace or short lace.
He talked about wet towels and
somebody being disobedient in trying
to get away but they did not get away. They
did not have what he wanted. He referred to them as paupers, saying the dog more made more noise than
they did. The appellant talked about making
someone watch, but they closed their eyes and he hit them.
He talked about a swimming
costume, which he had sniffed and had been aroused to an orgasm, or nearly orgasm.
Daley said it was like being told a horror story. The
following morning, when prison officers came to his cell, he told them to be quiet, and
banged on the wall, shouting "Stow,
Stow". The officers pulled him from the wall, and later moved him to another
cell. The judge excluded evidence from others
about Daley's distress on that day. 11. Having been advised by his uncle
that he would not be 'grassing' by so doing, Daley made a statement to the police on 26th
September, which accorded with the evidence which he ultimately gave. In cross-examination, it was suggested that he had
fitted up the appellant and prepared himself for that purpose. He denied making up the admissions. He did not know the appellant by name or
personally, and he knew virtually
nothing about the Chillenden murders. The appellant was a scum bag, if he had
attacked a woman and children. He agreed he
had a reputation as the hardest man in prison. He
had taken every kind of drug. He had taken heroin in prison and at the first trial had
given evidence on oath denying having done so. That
was a lie. He lied when it suited him. He was a crook. He had committed crimes of
violence, robberies, thefts and burglaries, and he lied to get by in life. 12. There was evidence from prison officers
that, on the morning of 24th September, Daley had asked to speak to them about the
man in the next cell talking to him. They
checked that you could communicate along the pipe between Cells 2 and 3, without voices
being raised. Before Daley gave evidence, and
unknown to him, the jury had been on a view of the cells, to see whether and how
communication could be carried out along the pipe. 13. The appellant did not give
evidence. None was called on his behalf. Defence counsel argued that, as the appellant had asked to be put in the segregation unit
to protect himself from false stories of a confession, why should he then, hours later,
confess to the man in the next cell? Daley
was lying. He was doing so to gain credit
with his peers or with the police. 14. The prosecution made an admission that
there was nothing which Daley said, which was not either in the public domain or capable
of being inferred from material in the public domain. 15. We turn to the grounds of appeal. It is convenient to deal with them in the reverse
order to that in which they were advanced. 16. With regard to ground 7, based on proffered fresh evidence from Paul Gilheaney, we declined to admit that evidence and refused leave to appeal on this ground. Discussion of ground 7 26. It was in the light of these
matters that we declined to admit Gilheaney's evidence and refused leave to appeal on
ground 7. 27. We turn to grounds 3 to 6A which
rely on fresh evidence, not known to the defence at the trial which, it is contended,
would have provided powerful material for cross-examination of Daley, which was likely to
have affected the verdict. The evidence falls
into three categories: 1. Evidence
as to drug abuse and heroin addiction; 2. Evidence
as to bizarre behaviour and mental instability; and 3. Evidence
of subsequent misconduct indicating that he was prepared to lie on oath. 28. Grounds 3 to 5 relate to distinct
sources for the material. Ground 3 refers to
a police interview on 22nd May 1998, following arrest the day before for criminal damage. The interview demonstrates serious mental problems
and bizarre thinking. Ground 4 relates to
fresh evidence of heroin abuse and addiction, in particular emerging from admissions Daley
made to a probation officer in 2003. Ground 5 relates to further evidence of drug abuse in
medical records. Grounds 6 and 6A are
compendious grounds drawing together the material obtained from the sources identified in
grounds 3 to 5. Ground 6 contends that the
overall history of Daley demonstrates his potential unreliability. Ground 6A,
alternatively, contends that the conviction was vitiated by unfairness because, in the
absence of that material, Daley was permitted to lie on an important issue that went to
his credibility. 29. In support of these grounds the
essential submission by Mr Fitzgerald QC, who did not appear at either trial, was that,
absent the material which has now emerged, it is apparent that counsel for the defendant
was unfairly deprived of a much greater opportunity to demonstrate the bad character and
unreliability of the key witness, Daley. The
new material demonstrates, so it was contended, to a far greater extent than hitherto had
been possible, the extent of Daley's lies in evidence and his unreliability due to heroin
addiction and instability. This submission
must be considered in the context of the obligation of the Crown fully to research the
character and antecedents of the prisoner, before deciding to call him to give evidence
against a fellow prisoner (see R
v Molloy & Hickey (Court
of Appeal (Criminal Division) transcript of 30th July 1997 at page 383E and R v Causley [2003] EWCA Crim
1840 at paragraph 91). Mr Fitzgerald did not suggest that the Crown deliberately failed to
undertake proper research. But he did contend
that, inadvertently, material which ought to have been forthcoming did not emerge. 30. The starting point, contended Mr
Fitzgerald, was Daley's deliberate concealment, during the course of the second trial of
the extent to which he took drugs. At the
first trial, he had said he had never taken heroin in prison. At the second trial, he made, so it was said, only
limited admissions as to taking pills, which showed up as opiates during a drug test. 31. It was submitted that Daley was a
drug addict and this is significant because first it demonstrates, to a far greater
extent, that he was lying at the second trial; secondly it is strong evidence of lack of
reliability; and, thirdly, it provides a motive for him to concoct a false confession, in
order to leave the segregation unit and reach a part of the prison where drugs were more
readily available. 32. In order to analyse the effect of
the new material, it is first necessary to identify with precision what Daley said at the
second trial. Mr Clegg, in cross-examination
put to him the two occasions when he was found guilty of taking opiates by the prison
governor at Elmley. He had pleaded not guilty on one occasion and changed his plea on the
second. Daley asserted that the test had shown positive when he had not taken heroin. But when it was put to him he was saying he was a
victim of a miscarriage of justice, he replied: "I
have tried every drug. I
have tried every drug." When asked
why he had lied to the jury during the first trial, saying that he had never taken heroin
in prison he replied: "Because
I did not see my drug misadventures had any relevance at all on what I was doing at the
time." Mr Clegg
continued: "Q.
You were quite happy to lie to that jury on oath, were you not? A. I did
not see my drug taking had any bearing on the situation at hand Q. You are
somebody who lies when it suits you? A. I am a
crook." Later he
said: "I lie
to get by in life" and again: "I am
a crook. That is what crooks do. They beg, borrow, steal and lie, however they can, to get
by in life. Whether I thought that question
was directed to me about the trial, then I would say 'No'.
If you was to say it to me now, are you lying, I would say 'no I am not
lying.'" Later Mr
Clegg suggested that his lies were designed to cover up his drug taking. Daley denied this
and repeated: "I
told the jury as well, also that I had taken every single drug there is." 33. Before us, Mr Fitzgerald
specifically relied upon Mr Sweeney's re-examination, when Daley said he had taken heroin
in the form of tablets which were painkillers. Mr
Sweeney continued: "Q.
Did you ever take it in the form of injecting yourself or in the form of snorting it or in
the form of smoking it or any other ways a drug addict would take heroin as we would all
understand it? A. You
don't snort heroin, you just inject it or smoke or take it through the mouth or whatever. I have never heard of anyone snorting heroin. It would
be cocaine or other things you snort like amphetamines. Them drugs aren't really used in
jail because who wants to be awake all night basically?
No, I've never stuck a needle in me and no I've never done any of
that." The judge,
twice, accurately summarised that evidence, first in his summing-up at pages 84 to 85 and
again, in response to a jury question, at pages 161 to 162. The judge in summing-up added
this comment: "Members
of the jury, it is entirely for you to decide whether these questions and answers and his
drug taking and his admissions or denials of it at various times assist you in assessing
his credibility. The defence submit to you
that they do affect his credibility as a witness. The prosecution submit that they do not
affect it at all, that his account fits the facts and that he has no improper motives. It is for you to decide." 34. There has now been obtained and is
before us evidence which goes to show that far from taking heroin in prison in the form of
pills on isolated occasions, Daley
was a drug addict and had been so for 5 years prior to the second trial. The evidence is contained in a probation report
dated 11th April 2003, which was not therefore available at the time of either trial. In that report, the probation officer states that:
"Mr
Daley has a long-established drug habit. He
informs me he had begun to inhale
solvents at the age of 9 years and then went on to smoke cannabis. By the age of 13
years he was taking LSD and
ecstasy plus smoking cannabis. At the age of 14 he tried cocaine and then would take anything
that was available. He first experimented with heroin when aged
20 years but developed a habit when in prison in 1996. It was at this time he
suffered the devastating loss of his parents and he said heroin deadened his pain. The four months prior to this remand in custody
(21st March 2003) he was injecting heroin intravenously." There is
further material which confirms Daley's abuse of drugs and addiction. Medical records
which were not obtained for trial, either by the Crown or by the defence, confirm drug
abuse. On 12th March 1998, clinical records
show that Daley was very demanding and wanted his drugs. The following day a temporary
medical assessment records him as a known drug addict with daily prescriptions of diazepam
and temazepam. It described him as "very aggressive and very demanding, tending to
deceive doctors into prescribing." 35. From 1st March 1999, Daley
reported himself, on newly joining a local surgery, as suffering from drug abuse as a
current medical problem. On 25th October 1999
clinical notes recorded that Daley had been asked by his wife to visit the surgery because
of a long-term problem with drugs. On 28th February 2000 consultation notes recorded
"drug addiction - opioids" and
Daley used heroin to relieve his pain from an upper respiratory tract infection. Post trial reports of 22nd April 2002, also
referred to drug addiction and that Daley was fed up with it. On 27th June 2002 current
medication was recorded as methadone. On 5th July he was recorded as being dependent on
benzodiazepine and wished to reduce such dependency. 36. It was submitted that, had counsel
for the appellant been armed with this material at trial, the jury would have better
appreciated the extent to which Daley was lying, not only because of his lies, but also
because of the unreliability stemming from his drug addiction. 37. The material now obtained
undoubtedly provides powerful evidence that Daley concealed an addiction to heroin. Further, it supports the suggestion of a
dependency on benzodiazepine in the form of diazepam and temazepam. In the absence of the documents to which we have
referred, Mr Clegg at trial was unable to suggest such an addiction and the jury remained
ignorant of it. If Mr Sweeney had known of
this material, as he frankly accepted, he would not have asked the question in
re-examination, which we have quoted, designed to distinguish Daley's use of drugs from
the methods of abuse to be expected of an addict. 38. But the crucial question is: what
extent does the new material cast greater doubt upon the veracity of Daley's evidence as
to the confession than was cast in the second trial?
We do not accept that this material bears the weight suggested on behalf of
the appellant. It must be viewed in the
context of what Daley admitted about himself at trial.
In our judgment, while the new material shows a dependency on drugs and
brings into sharper focus the lies Daley told, it makes no material difference. We say this for the following reasons: 39. First, it must have been obvious
to the jury that Daley was deeply flawed. He
was a hardened criminal, who lied when it suited him and he had, on his own admission,
taken every type of drug. He had lied specifically about taking heroin at his first trial,
because he thought it had no relevance to the evidence which he gave. 40. Secondly, it must be recalled that there was,
and is no evidence whatever that Daley was suffering withdrawal symptoms when he was
placed in the segregation unit on 9th September 1997, or in the following weeks. On the contrary, medical records from Canterbury
prison, where Daley was in custody until 10th October 1997 were disclosed to the defence
and gave no indication that Daley was suffering from any such symptoms. A statement from the Canterbury senior medical
officer, Dr Whiting, which dealt with evidence of Daley's distress post confession
excluded by the trial judge, says that Daley was in good health on his arrival at
Canterbury; and Daley's statement that he was not taking any medication, seems to have
been confirmed by the doctor on examination. An
assessment sheet on 15th September, after Daley was placed on segregation, but a week
before the alleged confession, recorded that there was no history of drug abuse, which is
inconceivable had he been showing withdrawal symptoms at the time. 41. In reality, the only evidence of
drug abuse, at or around the time when Daley said he heard the appellant confess, was that
contained in disciplinary adjudications and reports, some weeks later, at Elmley Prison,
which were disclosed to the defence and related to possible drug abuse, in October and
December 1997. 42. Thirdly, in the light of Daley's
admissions of lying, and about taking heroin, which we have already rehearsed, evidence
that he lied to a greater extent than was apparent at the time of the second trial, does
not, in our judgment, significantly affect the quality of his evidence. The jury was well aware that he was not
only prepared to lie, but to do so on oath. The
judge, on two occasions, reminded the jury of Daley's attitude to the truth. 43. In those circumstances, the
additional material showing addiction, in our judgment, added little of significance and
certainly lacks such sufficient weight to affect the safety of the jury's conclusion that
Daley was telling the truth about the confession. Nor
does the new material provide any evidence of motive for concocting a confession, in order
to get out of the segregation wing so as to obtain drugs. The evidence of his medical
condition at the time provides no basis for any such suggestion, which has no substance. 44. The second category of material on which the appellant now relies relates to what is said to be evidence of bizarre behaviour and mental instability. The primary source referred to, in ground 3, is the terms of an interview on 22nd May 1998, following Daley's arrest the previous day for criminal damage. The defence, at the second trial, were unaware of this evidence, although there was a reference to his activities leading to his arrest and a brief reference to his behaviour and condition in material disclosed, in March 2001, before the second trial. It is argued that Daley's admissions reveal bizarre and unstable behaviour. He is recorded as saying:
"My head is not my head, sort of thing. 45. It is clear, not only from what
Daley himself said but also from statements from a paramedic and custody officer, that
Daley had been drinking heavily for two or three days before his arrest on 21st May 1998.
The occasion was an anniversary of his father's death which had occurred while Daley was
in custody. Daley's actions, in biting a head
rest in the ambulance, dialling the telephone number of his deceased mother and smashing
the telephone, are evidence that he was drunk. But,
in our judgment, they provide no material of mental instability, such as to cast doubt on
the truth of his evidence. 46. The other material, which it is
said demonstrates mental instability emerges from the medical records. A letter from his general practitioner, dated 4th
March 1998, referred him to a psychiatrist, Dr Safraz.
The letter says that Daley was seen in prison by the psychiatrist, but, on
investigation, there is no evidence that that in fact happened. The letter continues by recording that: "He
was prescribed diazepam and temazepam to control his agitation. Is quite depressed with a
lot of anxiety. According to him he has a lot of anger as he lost both his parents within
the last six months." There is no
evidence as to whether he saw the psychiatrist or had any further diagnosis or treatment. 47. This material, in our view, does
not significantly advance the appellant's case. It is not evidence of mental instability
let alone such instability as to cast doubt on Daley's veracity or the safety of the
appellant's convictions. 48. Finally, the appellant relies upon
the fact that, on 13th April 2004, Daley was convicted of possessing heroin with intent to
supply. He had denied his guilt, relying on
the fact of his addiction. Intelligence
material shows the extent to which Daley's denials were false, as the jury obviously
found. For the reasons which we have already
given, we do not think the fact that
there now exists a further example of Daley's willingness to lie on oath diminishes
the quality of Daley's evidence to any greater degree than must have been apparent to the
jury. It is, as Mr Sweeney remarked, merely
"more of the same". 49. Looking at the new material as a
whole, in the context of what took place at trial, we are unpersuaded that it
significantly devalues Daley's evidence so as to cast doubt on the safety of the verdicts.
This was not a case of a witness who appeared to the jury to be of impeccable status, but
is subsequently shown to have been discredited. The contrast with cases such as R v
Twitchell [2000] 1 Cr App R 373, relating to police officers, is stark. The jury knew
the nature of the source of the key evidence in the case. Daley was dishonest, a criminal, with an
ability to lie when it suited him, even on oath, and had taken every kind of drug.
The new material merely confirms what must have been obvious to the jury. We reject grounds 3 to 6A. 50. We turn to grounds 1 and 2. Ground 1 is that the judge failed to give the jury
an express and strong warning that they must be very careful before relying on the
evidence of Daley because of his bad character, his admission of past lies and his
potential motives to lie and because of the general dangers of placing reliance on alleged
oral confessions to fellow prisoners. 94. We add that, if the judge had
thought it necessary to give further directions of a cautionary nature, or had given
directions of the kind which Mr Fitzgerald submits he ought to have given, he would also
have had to remind the jury of the other evidence which implicated the appellant. This showed that the attack was carried
out by a car driver with access to a hammer, who was also a drug addict, who used a long
knotted shoe lace to raise a vein for drug injection and had short blond hair. The
appellant had all these characteristics. In addition, he was familiar with the area, and he also
bore sufficient resemblance to the attacker for Miss Burchell to prepare an e-fit which
the surviving daughter, Josie, said was consistent with the appearance of the attacker
and, at an identification parade, many months later, albeit not making positive
identification, Miss Burchell was
able to pick out the appellant as looking "very familiar". There was also the evidence of blood on the appellant's T-shirt,
that he had destroyed his clothing
and that, in interview, he had told many lies, in particular about his knowledge of the
area, carrying a hammer and blood on his shirt. It
is also to be noted that there was no evidence from the appellant to contradict what Daley
claimed he had said. Grounds 1 and 2
therefore fail. 95. As a footnote, the appellant has a
number of previous convictions which were not known to either of the juries which
convicted him. If he were being tried today,
in the light of the provisions of section 101 of the Criminal Justice Act 2003, some of
those convictions, in particular those in 1981, for using a hammer to rob and cause grievous
bodily harm, might be admitted in evidence against him (see R v Bradley
[2005] EWCA Crim 20 (The Times, 17th January 2005). 96. As we have sought to explain,
there is no reason to regard the appellant's convictions as unsafe. It was for these
reasons that, on Wednesday, we dismissed this appeal. 97. THE VICE PRESIDENT: Yes, Mr Fitzgerald? 98. MR FITZGERALD: My Lord, the only further matter is whether your
Lordships would be minded to certify a point of law of public importance for the House of
Lords? 99. THE VICE PRESIDENT: What might that be? 100. MR FITZGERALD:
Obviously I have not had a full opportunity to consider the implication of
your Lordships' judgment, but doing the best I can the two points which I can identify
would be in relation, firstly, to the question whether there is an obligation in these
circumstances to give a warning as to bad character, and my Lord, my first formulation of
it at this stage would be this: "Whether
a judge is under a duty to warn the jury of the need to be cautious before convicting on
the basis of such an alleged confession of a fellow prisoner [leaving out the such for
this moment] where the allegation of an oral confession is made by a person of bad
character who admits to lying to get by in life, or who admits dishonesty?" may give it
more general...That is to say, is there a duty, particularly in the case of a prison
confession being alleged, to give a warning as to the bad character, drawing on the then Spencer
line of authority? 101. My Lord, I appreciate your Lordships have
given detailed reasons why there is not such a duty but a discretion in the light of the Makanjuola
decision and the analogy with other cases in which the duty to give a full corroboration
warning has gone. But I would respectfully
submit that that does raise a point of law of public importance. 102. THE VICE PRESIDENT: But our judgment is very fact specific, Mr
Fitzgerald, in relation to what we described as "the special circumstances" of
this case. 103. MR FITZGERALD:
My Lord, yes. Can I try to put
it this way. If it were an universal rule, as
I respectfully submit it is, then there would not be an exception to it. Subject to your Lordships finding that there was
in fact some form of a warning because of the reasoning that to approach it with care must
have been because of the bad character, I would submit that, if it is right that there is
an universal obligation, then the facts of a particular case would not justify the
dispensing with that obligation in relation to bad character. My Lord, that is the first
point I would respectfully make. 104. My Lord, I appreciate that there may be
powerful grounds for saying that given your Lordships' reasoning your Lordships would
refuse leave. But I do respectfully submit that that is a point of law of general public
importance that does arise in this case, that is to say is there, following Spencer,
and my submissions as to how the common law goes, a universal obligation, or is it, in the
light of Makanjuola and Muncaster a more flexible discretion? My Lord, that is the first matter. 105. The second matter is in relation to the issue
of motive, that is to say whether a trial judge is under a duty to warn the jury to be
cautious before convicting on the basis of an alleged confession to a fellow prisoner
simply on the basis that the said prisoner/informer is an untried prisoner facing charges
and the defendant is alleged to have made an oral confession to the crime of which he is
suspected. Again, I do not want to rehearse all the arguments that I put to your Lordships
but the essential submission there is: do
those bare circumstances form material justifying the obligation or is there need for
additional evidence elicited either by cross-examination or from some statement made by
the witness himself? It is our submission
that the bare fact that he was an untried prisoner, giving evidence of an oral confession
was of itself sufficient to trigger the duty and your Lordships saw that one of the
indications identified by Lord Hope in Pringle as attributing the duty in that case
was the bare fact that the witness was a prisoner on remand. My Lords, we say that
therefore there is a question: does the mere
fact that someone is a prisoner on remand and therefore has at least the temptation to
make an allegation of an oral confession, does that of itself trigger the duty? 106. Again I appreciate your Lordships have taken a
view on the merit of that submission in any event, but I would submit that the question of
whether that bare fact does trigger the duty is a point of law of public importance. In other words: is it sufficient? Therefore are we in a situation which is truly
analogous to the identification type warning where it is mandatory from the very nature of
the situation and the type of evidence an allegation of an oral confession that is being
made. Or is it, as your Lordships found, to be treated as something which must be
triggered by the particular facts of the case and covered by the need to pass a freshhold
of something in addition to those bare facts. My Lord, that is what I would submit is a
point of law of public importance which I invite your Lordships to certify subject to,
obviously, in relation to the issue of whether leave should be granted. With your Lordships' views on the merits it is
obviously likely lead to your Lordships refusing leave.
I would submit that at least that gateway to the House of Lords should
remain open by the certification of those two points.
My Lord, I do submit that there is a bedrock of conflicting legal principle
potentially there, between the approach, particularly the approach in Labrador and
the approach generally taken in decisions such as Makanjuola and Muncaster. 107. My Lord, it is on those bases that I invite
your Lordships to certify points of law. That
may not be the best formulation, but I think it sufficiently identifies the point for your
Lordships to decide whether there is a point of law of public importance. 108. THE VICE PRESIDENT: Thank you. (The Bench Conferred) 109. THE VICE PRESIDENT: No, Mr Fitzgerald, we decline to certify either
of those questions as being a point of law of general public importance arising from this
case. Thank you. |