SMITH BERNAL
No: 99/7533/W2
IN THE COURT OF APPEAL
CRIMINAL DIVISION

1. LORD JUSTICE KAY: On 24th November 1999, in the Crown Court at Liverpool before the Recorder of Liverpool, His Honour Judge David Clarke QC, the defendant was convicted of murder and sentenced to life imprisonment. He now renews his application for leave to appeal against conviction following refusal by the single judge.

2. At some time between 6.20 pm on 8th October and 4.30 am on 9th October 1983 Cynthia Bolshaw was murdered by manual strangulation in her own home and found naked face down in a bath of water. An investigation into her murder at that time did not establish who was responsible. The case was never closed, but it was not until 1999 that the discovery of two pieces of evidence, information from the applicant's wife and DNA evidence extracted from semen staining on the victim's nightdress, led to the applicant being charged with murder.

3. Mrs Bolshaw was aged 50. She had been married, but that marriage ended in divorce. She was an attractive woman, and, following her divorce, she lived as a single woman, who enjoyed the company of men and had an active sex life with a large number of men.

4. In 1983 the applicant worked as a window salesman in the area where Mrs Bolshaw lived. He was married but his wife was studying at Sussex University, only coming home during term time every second weekend or so. She was not at home the weekend of 8th October.

5. The defendant's evidence was that in the course of his employment he had come into contact with Mrs Bolshaw and a sexual relation between the two had developed. On the Thursday before she died, Mrs Bolshaw was seen in a public house with the applicant obviously on very friendly terms.

6. The defendant admitted in his evidence that he had visited the deceased on the night of the murder. They had undressed and then had consensual intercourse on top of the bed covers.

7. The essential issue for the jury to resolve was whether he had left after sexual intercourse leaving Mrs Bolshaw alive and perfectly well or whether, as the prosecution alleged, he had killed Mrs Bolshaw and left her dead in her bath.

8. As part of their case, the prosecution relied on the conduct of the applicant immediately following the murder. He had been interviewed by the police because an estimate from his employers was found amongst the deceased's papers, but he had denied that anyone from the company would have visited Mrs Bolshaw.

9. When the significance of this denial became apparent in 1999, the police made enquiries of other employees. One recalled seeing the name of Cynthia Bolshaw in the applicant's work diary and another recalled a brisk conversation with the applicant in which he tried to disassociate himself from the deceased.

10. By 1999, the applicant was divorced from his wife Barbara - the divorce, which was on amicable terms having occurred in 1987. The weekend after the murder, she had come home. When the police saw her in 1999, she gave them an account of what had occurred on her return. Her husband was anxious and said he had a story to tell her. In essence, he said that he had been to Mrs Bolshaw's home on the day of her murder to fit a fire place, doing the work, as he put it, as a "foreigner", ie not in the course of his employment. He said that he believed that he was the last person to see her alive and that he was terrified of being accused of her murder. He said that when he arrived to do the work, she was nursing an injury to her eye and that he had comforted her and assisted her with a cold compress. He stated that he believed that whoever had caused that injury had returned and killed her. According to Barbara Taft's account, he had said that the person was probably the man appearing in a photofit picture that was being circulated in the area. In this regard, her memory must at least be faulty because the photofit was not prepared until some weeks later. She continued her account that the applicant had told her that he had destroyed the clothing that he had been wearing at the time when he visited the house, a sweater and jeans or trousers. His wife said that she thought he had said that he had buried them in the garden. He had also said, she recalled, he had removed stripes from his car and he had removed some pages from his diary at work. He then asked her if she was interviewed by the police to provide a false alibi saying that she had been at home throughout that weekend. He explained this by saying that otherwise he might be framed for the murder.

11. The police also interviewed neighbours of the applicant and in particular his next-door neighbours, the Evans family. They recalled seeing the applicant in his garden late one night in October digging a hole with a spade and a torch. This event had left a lasting impression on Mrs Evans and her daughter. Mr Evans gave evidence that he was out but had returned home and his wife seemed upset. He thought it was most likely to have been a Saturday night. The murder was either late on the Saturday or early on a Sunday. Other evidence established in cross-examination suggested that the weekend must have been the relevant weekend.

12. It is necessary to record various aspects of the 1983 enquiry. First, Mrs Bolshaw's car was missing from her drive where it had been seen parked as late as 11.30 pm that night. It was found on the verge of the A540 Chester Road at 5.45 am the following morning. There was evidence from a witness who saw a similar car at that place at some time between 4 and 4.30 am. By the car was a man. The witness gave a description and later pointed out someone who he said was similar to the man he had seen; but both the description and the man pointed out were very different from the applicant.

13. The following day a stocking-mask containing items belonging to Mrs Bolshaw was found in a telephone box some considerable distance away at Romilly near Manchester. The prosecution asserted that was a significant place because the applicant could be shown to have worked in the area and to have knowledge of the Romilly area.

14. Forensic examination revealed brown cotton fibres in a number of significant places: on a stool, the pillows, the sheet and the negligee in the bedroom where Mrs Bolshaw died, on the seat of her car and on the stocking wrapping her stolen jewellery. The forensic scientist thought those fibres most likely came from brown corduroy trousers. The stocking also had a purple fibre that matched the bed cover in the deceased's bedroom.

15. The prosecution case in relation to the taking of the jewellery and the car was that it was an attempt by the murderer to make the killing look as if it had happened as part of a robbery and to suggest that the killer was not a local man.

16. The final aspect of the prosecution case to which reference should be made are the interviews of the applicant by the police. These lasted a total of 4 hours and 45 minutes. During these, he denied killing Mrs Bolshaw, burning or burying his clothes or his ever having seen the deceased's diary. His answer to all other questions in which the detail of the prosecution case was put to him was to say "no comment". He was without doubt an intelligent man and the prosecution contended that his "no comment" responses were designed to discover first the prosecution case before adapting his own story to fit.

17. The applicant gave evidence at his trial. As indicated, he admitted sexual intercourse with Mrs Bolshaw in her bedroom on the night of the murder but claimed that he had left her alive and well, and indeed happy. He said that he had arrived home at about 10.45 pm. He said that if he had been seen in his garden late that night that would have resulted from his interest in local wildlife and that he was in all probability putting out scraps for the hedgehogs and other wildlife. He explained this further by saying that after arriving home from visiting Mrs Bolshaw he had made for himself bacon sandwiches. Before grilling the bacon, he had cut the rind off, and, after his meal, he had gone out to put the rinds down for the wildlife. He denied the evidence of the neighbours that he had with him a spade or a torch.

18. In his evidence he agreed that he had spoken to his wife after he had learnt of the murder and that he had asked her to provide a false alibi, although he suggested that this was not in the definite terms suggested by Barbara Taft. He had lied to his wife and others at the time because he did not wish his infidelity to be found out. He had asked for the false alibi because he was fearful of being falsely accused of the murder.

19. With the admission of his presence at Mrs Bolshaw's home up until nearly 11.30 pm, it was clearly of importance to the defence to raise doubts about the possibility that the applicant could have been the person who moved Mrs Bolshaw's car from her drive to the place where it was found. To this end they suggested that if Mrs Evans and her daughter, the next-door neighbours, had seen the applicant in his garden on the night of the murder then they effectively provided an alibi for the applicant for part of the time when the murderer must have been at Mrs Bolshaw's house or removing her car or walking home from the place where he abandoned her car, a considerable walk.

20. The evidence of Mrs Evans and her daughter did not establish which night they had seen the applicant digging in his garden, but put the time as best they could recollect it at 11.30 to 11.45 pm. The other evidence from Mr Evans certainly suggested a probability that it was the relevant night.

21. It is convenient against that background to turn next to the sole ground upon which leave is sought to appeal. It reads:

"The ground of appeal against conviction is that after closing speeches and later, during the course of the summing-up, the learned judge introduced a novel inferential basis upon which the defendant could be convicted of murder. The basis had not been raised by the prosecution at any stage and had not formed any part of their case, nor had it been addressed by the defence during the course of the trial, either in evidence or in clothing speech. On the contrary, evidence had been adduced by the defence for the sole purpose of disproving the particular factual basis upon which conviction was sought by the prosecution. The evidence adduced by the defence to meet the prosecution case was being used to support a new theoretical possibility on the learned judge's initiative. The defendant had never been examined on the matter and there was other evidence which could have been emphasised by the defence which went to disprove the inference being raised by the learned judge. In all the circumstances the conviction is unsafe."

22. The reference to what happened after closing speeches arose in this way. The judge had, following the close of evidence, discussed those matters of law which might give rise to difficult directions. Included amongst these was the direction upon the defendant's failure to mention matters in interview upon which he relied in evidence. There were stark examples of that failure. The applicant had not mentioned that he was at the house, that he had sexual intercourse with Mrs Bolshaw and that he left her safe and happy after intercourse.

23. At the conclusion of speeches, Mr Edis QC on behalf of the Crown suggested that there needed to be added to that list the applicant's evidence about being in the garden immediately after his return from Mrs Bolshaw's house. This was opposed and the learned judge agreed with the defence, but he then went on to add:

"It is really the other side of the same coin, Mr Blunt, because obviously you will not be surprised that I have given careful thought to the matters that you argued in your final speech and I think that I should warn both of you what I plan to say about it, which is along these lines: 'You will clearly need to give careful thought to this: if the murderer did drive the car away immediately after leaving her house, and if the night on which Mr Taft was seen in his garden was indeed the night of the murder, then the argument has considerable force, you may think. If it was a different night then it has no force, but in that case the sighting of him in his garden would be of little significance anyway. Furthermore, though the prosecution have suggested that the murderer took her car away after committing the offence, you may think this was itself speculation on the prosecution's part. There is no evidence whether this was done straightaway or whether he might have taken his own car home first before coming back and removing hers. These are, no doubt, all matters which you will wish to consider when evaluating the argument which Mr Blunt advanced to you."

24. The judge then added:

"I do not think you can have any objection either of you to that, can you?"

25. Counsel for the Crown said he had not. Then Mr Blunt QC, on behalf of the applicant, said:

"My Lord, no."

26. The Recorder added:

"nevertheless, it is a very important point in the case and I felt it right to tell you what I was intending to say about it."

27. After some further discussion, Mr Blunt returned to the subject and said this:

"My Lord, in the context of the point that your Lordship raised with me, the passage in the summing-up about the possibility of returning and removing the vehicle, I anticipate in the context of that chapter of evidence your Lordship will have in mind the evidence of Mr Dawson."

28. Mr Dawson, it should be added, was the witness who had seen somebody by the car between 4 and 4.30 in the morning.

29. The Recorder responded:

"Certainly. I certainly had in mind Mr Dawson's evidence I shall be referring to. In that section of the summing-up I shall have just reviewed the evidence of the finding of the car, the evidence of Mr Dawson, the evidence of Mrs Elliott, the next-door neighbour, and the evidence of the Evans family. That is in one section, which then leads to that comment."

30. The summing-up was, it is acknowledged, a model of fairness, and, apart from this one aspect, no complaint is made, nor indeed could it be made, about the very high quality summing-up which must have assisted the jury considerably to see what the issues were.

31. When he came to deal with the matter he said as follows:

"Members of the jury, pausing there after the reviewing the evidence of those witnesses, you will remember the amount of emphasis placed by Mr Blunt on that section of the evidence. He maintained that this evidence, when looked at together as a whole, shows that Mr Taft could not have committed the murder. If the murderer was the person who took the car, as you may think must be so, what with the fibre evidence and so on, and if the car was still at Mrs Bolshaw's house at 11.30, as Mrs Elliott said, and if Mr Taft was in his garden shortly before midnight on the same night, doing no matter what, then he could not be the murderer. That is the way the argument is put.

You will clearly need to give careful thought to this. If the murderer did drive the car away immediately after leaving her house, and if the night on which Mr Taft was seen in his garden was indeed the night of the murder, then you may think the argument has considerable force. If it was a different night, then it has no force. But in that case the sighting of him in his garden would be of little significance anyway.

Furthermore, though the prosecution have suggested that the murderer took her car away after committing the offence, you may think that this was itself speculation on the prosecution's part. There is no evidence whether this was done straightaway or whether he might have taken his own car home first before coming back and removing hers. These are all, no doubt, matters that you will wish to consider when evaluating the argument Mr Blunt has advanced to you on Friday."

32. Thus it is without doubt that the Recorder did that which he had specifically drawn to the attention of counsel and invited counsel to say whether he had any objection to that course. More to the point, in the first part of the passage to which reference has just been made, he put the matter very much in the context of the rest of the evidence.

33. Mr Blunt submits that, notwithstanding that he had no objection other than that which he raised in relation to the evidence of the witness who saw the car and the man between 4 and 4.30, nonetheless it was unfair and deprived the defence of an opportunity of considering other matters and of addressing the jury upon those matters.

34. We have to consider whether there was such an unfairness that as a result the conviction has to be thought to be unsafe. It seems to us that the possibility voiced by the judge was one that inevitably any jury would consider for themselves. The inference - because it was no more than an inference - that the car had been driven away immediately after the murder was one that the jury had to decide whether it was proper to draw. They had to consider other possibilities. Mr Blunt contends that the possibility suggested by the judge was one that could never safely be drawn. He submits that no murderer could possibly go back to the scene of the crime in the way that this scenario would suggest that the applicant had done.

35. With respect to Mr Blunt's argument, we do not begin to see how that can be right in the context of a case such as this. The Crown's contention was that the taking of the car and the disposal of the jewellery in Manchester was all a cover-up for what had gone on in the murder. The applicant had been at the house. He would know - as indeed is apparent from what he said to his wife - that there was a possibility that his presence could be traced. What he needed to do, if he was the murderer, was to cover his tracks. The whole of the Crown's case was that effectively he was doing that, hiding clothing or burying clothing, asking his wife to provide a false alibi and so on. In such circumstances, if he had his car with him (which is at least a possibility) he would want to remove that as quickly as possible from the scene. He was then going to embark upon a cover-up, nobody being likely to have discovered the body by that time. It required him to go back the short distance and remove the car. We cannot see that the inference that the judge said was a possibility that had to be considered was one which could remotely be characterised as not being a possibility, even having regard to the totality of the evidence, as we have been invited to do.

36. The next issue that we have to decide is whether, having decided that that was a consideration that the jury must properly make, the judge was right to deal with the matter in the way that he did.

37. Again, we think the answer must undoubtedly be 'yes'. He realised that there were differences from the way in which the case had been put until that stage and he invited defence counsel to object if proper objection would be taken. Judges frequently do that. They are entitled to expect defence counsel to respond if at that stage it seemed to them to be unfair. No response was forthcoming. Mr Blunt now believes that he may have been at fault in that regard. None of us think that he was at fault. We think that his response then was the proper response to the situation in which he found himself and that he was right to say so when he reflected slightly later on it. He added a request. The judge complied with that request and dealt with the evidence immediately before he came to deal with these points, and indeed invited the jury to look at this point in the context of the whole of the evidence. We can see nothing remotely unfair in that. We do not believe that the applicant's case was prejudiced by it. This was obviously a consideration the jury needed to make in order to reach their conclusion.

38. The single judge who considered this matter said as follows:

"I have considered the papers in your case and your grounds of appeal. The passage to which objection is taken is unexceptionable. I note that leading counsel for the applicant was invited by the Recorder to say whether he had any objection to the then proposed passage, and he said he had none. No doubt, all the points made in the advice on appeal as to the weaknesses in the prosecution case were made to the jury by counsel, and no complaint is made about the accuracy or fairness of the summing-up. The question of the precise time when the killer drove the car away from the scene was always going to be a matter of speculation. It is difficult to see in what material respect the trial would have taken a different course if the prosecution had suggested that the applicant had driven the car away some time after the murder."

39. We find that our approach to this case is entirely the same as the single judge's. We have carefully considered the safeness of this conviction. The matter was fairly left to the jury in a way that they would have readily understood the issues that they had to decide. They clearly took a lot of time and a lot of trouble to arrive at their conclusion, but the conclusion they reached was that the applicant was guilty. We, at the end of the day, having looked at the matter, can see nothing that suggests to us that that verdict was unsafe. In those circumstances, we refuse this renewed application.