Case Name: BOWLER Sheila


No. 97/1298/W2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Thursday 24 July 1997


B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND
(Lord Bingham of Cornhill)

MR JUSTICE MANTELL

and

MR JUSTICE DYSON




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REFERENCE BY THE HOME SECRETARY

UNDER SECTION 17(1)(a)

THE CRIMINAL APPEAL ACT 1968

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R E G I N A

- v -

SHEILA BOWLER

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Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4A
Telephone No: 0171-831 3183
(Official Shorthand Writers to the Court)
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MR JEREMY ROBERTS QC and MR DAVID MARTIN-SPERRY appeared on behalf of
THE APPELLANT

MR ANTHONY GLASS QC and MR TOM KARK appeared on behalf of THE CROWN

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J U D G M E N T
(As Approved by the Court)
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Thursday 24 June 1997

THE LORD CHIEF JUSTICE: On 9 July 1993 Mrs Sheila Bowler was convicted in the Crown Court at Hove before Garland J and a jury of murdering Florence Jackson on 13 May 1992. Her appeal to this court against that conviction was dismissed on 5 May 1995. On 26 February 1997 the Secretary of State referred the case to the Court of Appeal under section 17(1)(a) of the Criminal Appeal Act 1968. The case is accordingly to be treated for all purposes as an appeal to the court by the defendant, to whom we shall henceforward refer as the appellant.
By section 2 of the 1968 Act the court must allow an appeal against conviction if it thinks that the conviction is unsafe, but must otherwise dismiss the appeal. The ground which led the Secretary of State to exercise his power was the submission of new medical evidence which raised questions about an assumption of fact which underlay the original conduct of the trial and the appellant's conviction.
At the time of the trial the appellant was aged 62. She had lived with her husband, a senior official in the Investigation Department of the Post Office, at an address in Rye until his death in January 1992. Thereafter she lived at that address on her own, supplementing her pension by part-time teaching of music, as she had done since her husband's retirement. She was in every way a respectable and responsible member of society.
The deceased was aged 89 at the time of her death. She was an aunt of the appellant's husband, and thus no blood relation of the appellant. The deceased lived with her sister in a ground floor flat in Rye from 1985. The sister died in November 1991.
The appellant had been attentive to the deceased and her sister, doing what she could to help them overcome the disabilities of old age. By the time of her sister's death the disabilities of the deceased were becoming marked. She showed clear signs of dementia; her sense of balance was disturbed and her mobility was restricted. She had several falls and was admitted to hospital. She showed signs of disorientation. In November 1991 the deceased was found in a pool of blood and was admitted to the Royal East Sussex Hospital. From the hospital she was transferred in December 1991 to Greyfriars, a residential care home in Winchelsea. She made various visits to hospital and underwent various tests and investigations, but it became clear that she could not return home and was in effect a permanent resident at Greyfriars. She was still subject to falls and had difficulty moving, making use of a zimmer frame and, on occasion, of a wheelchair. In April 1992 she fell, going with a zimmer frame from one room to another at Greyfriars. She sustained a Colles fracture of her right wrist, which was put in plaster. A fee of 250 per week was payable for the deceased's residence at Greyfriars. Arrears of these fines had built up to a sum of 3,600, overdue by the end of March 1992. The main asset of the deceased was a flat in Rye, later valued at 35,000, although eventually sold for half that sum. The evidence was that the appellant had never seen the will of the deceased and did not know who would inherit. It need not have been her, although it turned out that she was the beneficiary named in the will of the deceased.
With that brief introduction we turn to the events of 13 May 1992, confining our summary to the events not in dispute. The appellant had been teaching that day at Battle Abbey School, finishing at about seven o'clock in the evening and leaving the school a little later, at perhaps about 7.20pm. She had arranged to collect the deceased to stay with her for two nights at her home in Rye. This had originally been arranged for the week before, but had been postponed. It was the first such visit. The appellant accordingly went to Greyfriars in Winchelsea, picked up the deceased and they drove off together. There was evidence that they left Greyfriars at 8.03pm.
Instead of driving eastwards to her home in Rye, the appellant drove with the deceased to the home of Mr and Mrs Day between Bexhill and Cooden. The appellant had some discussion with Mr Day about a dietary supplement which she regularly collected from him. On this occasion the supplement had not arrived and she arranged to pick it up from a shop in Bexhill the next day. While the timings are necessarily to some extent inexact, it seems likely that the appellant arrived at the Days' house at about 8.45pm, had five to ten minutes conversation and left at about 9.00pm. There is no doubt that at that time the deceased was sitting in the front passenger seat of the appellant's car. After leaving the Days' house the appellant may have made a detour into Bexhill to identify the shop where she was to pick up the supplement the next day. There is no confirmation of her evidence to that effect, but she said that that is what she did, and there is nothing to contradict her. It was not in any event a lengthy detour.
The appellant then drove along the A259 road towards Winchelsea and Rye. There comes a point when, for a car travelling east, the road drops down Ferry Hill, makes a hairpin bend to the right and then continues on towards Rye. At some time (maybe at about 9.50pm, maybe a bit later) the appellant stopped her car just round the hairpin bend and parked it on the main A259 road on the nearside, with the lights on and the hazard lights flashing. The appellant got out of the car and walked along the main road onwards in the direction in which she had been driving towards Tan Yard Cottages. One of those houses was occupied by Mr and Mrs Soan. The appellant called at their house and asked if she could use the telephone to call a recovery service. It turned out that the appellant was acquainted with Mr Soan, but this was pure coincidence. They had some conversation, and the appellant used their telephone to call the recovery service, her call being recorded as having been made at 10.21pm. She asked for help because one of her tyres had deflated so as seriously to affect the steering of the car.
Having made her report to the recovery service, the appellant returned to the car. The deceased was not inside. With the assistance of the Soans the appellant looked for the deceased but did not find her. The police were called. A breakdown van arrived at about 10.50pm and found the front nearside tyre of the appellant's car to be deflated but not flat. The police arrived at about 11.00pm and conducted a further search for the deceased, without result.
The appellant and her car were later taken home by the recovery vehicle. The deceased was found drowned in the River Brede the following morning at 9.45am.
That recital of agreed facts omits one important geographical fact. From the apex of the hairpin bend already referred to, close to where the appellant parked her car, a side road called Station Road ran off at first to the north and then for a distance to the west. This road passed a caravan site and some houses, crossed a bridge over the River Brede and then, some 500 metres or so from the main road, passed a pumping station. This pumping station stood just off Station Road at a turn in the road on a small concrete apron. Just beyond the apron was the river, below a short but steep grassy bank. Built in the bank was a concrete culvert, where the pumped water flowed into the river. A slipper of the deceased was found just above the culvert and her body was found a short distance downstream of that point.
So much, in brief summary, for the common ground between the prosecution and the defence at the trial. The crucial issue between them concerned the appellant's movements after leaving Bexhill at about nine o'clock or so and reaching the Soans' house shortly before making the telephone call to the recovery service at 10.21pm. The prosecution case was that the appellant devised and executed a carefully planned scheme to do away with the deceased. Her visit to Bexhill was a means of filling in time before darkness fell. On returning from Bexhill to Winchelsea, the appellant drove the deceased to the pumping station on Station Road. There she caused the deceased to enter the river and drown, probably at or near the concrete culvert where the deceased's slipper was afterwards found. She then returned to the main road and parked just beyond the mouth of Station Road and just round the hairpin bend. There she let air out of the front nearside tyre to give colour to her proposed report of steering problems. Then, leaving the car empty, she went to the Soans' house to make her spurious report to the recovery service. On returning to the car it was empty, as she knew it would be, for the deceased was by that time (as the appellant well knew) drowned in the river, and the ensuing search was a charade.
The defence rejected all these sinister suggestions. The evidence called for the appellant was to the effect that she had made a genuine visit to Bexhill and that she had experienced genuine problems with the steering. She had accordingly gone to seek help, had left the deceased alive and well in the car, and had been surprised and upset to find her gone when she returned.
Thus the crucial issue at the trial was how, and by what means, the deceased came to end up in the river. One theoretical possibility which immediately springs to mind is that the deceased, left on her own in the car, on the main road, in the dark, in unfamiliar surroundings, got out of the car, wandered off down Station Road, and accidentally fell into the river. That was a hypothesis which for convenience we shall call the "accident hypothesis", which was effectively ruled out at the trial. In giving his reasons for rejecting a submission of no case to answer the trial judge said:

"Florence Jackson was 89, frail and incapable of moving without assistance. There was no question of her being able to wander off on her own to fall in."



In summing up to the jury the judge said at page 5A of the transcript:
"She [the deceased] could not have got out of the car by herself. At best she could only have walked slowly for a very short distance with somebody helping her."


At page 7B he said:



"The Crown case is that the defendant pushed Mrs Florence Jackson into the river and caused her death by drowning, but of course you have to be sure that it was this defendant who pushed her into the river, that she was alive when it happened and that she died as a result of the drowning. The issue in the case really is, was it this defendant or somebody else?"



Then just before the conclusion of his direction to the jury, the judge said:

"I come finally, members of the jury -- and I have nearly finished -- to what you might perhaps concentrate on particularly. We know, and there really is no dispute about it, that Florence Jackson was unlawfully killed by drowning. Somebody murdered her by putting her in the river."



In ruling out the accident hypothesis there was from an early stage of the trial effective agreement between the prosecution and the defence. The reason for that is not hard to understand. The evidence of those responsible for the care of the deceased at Greyfriars was that she had great difficulty in moving, needed human or mechanical assistance, shuffled slowly along when she wished to move, and was nervous and liable to fall. That appeared to be the opinion of her general practitioner, Dr Jeelani. The appellant herself was of the clear opinion that the deceased could not have walked from the place where the car was parked to the pumping station on Station Road. So the only realistic alternative to the explanation advanced by the Crown was the hypothesis that the deceased might have been abducted by some other person or persons unknown. There was, however, no evidence at all to support that alternative hypothesis. The body of the deceased when recovered showed no signs of serious physical injury and no sign of sexual violation. Such an abduction would have been entirely motiveless. Perhaps not surprisingly, the majority of the jury felt able confidently to reject this fanciful and far-fetched possibility and the appellant was convicted.
The appellant's conviction received considerable press and television coverage. Fresh thought was given to the exclusion of the accident hypothesis. A number of members of the public wrote letters recording incidents in which elderly relatives suffering incipient dementia and believed to be incapable of significant movement had performed physical feats of which even those who knew them best believed them to be incapable. More significantly, medical opinions were obtained to the effect that the accident hypothesis, although unlikely, was not impossible nor so unlikely that it could in the doctors' opinion be ruled out as an explanation of the death of the deceased.
We have heard oral evidence given by Professor Young and Dr Denham called on behalf of the appellant, which we received de bene esse. Both these witnesses are highly respected experts in the field of geriatric medicine. Both considered the accident hypothesis in detail and concluded that, while this was an unlikely explanation of the deceased's death, it was one which they could not in their opinion rule out. When we say that they considered the accident hypothesis in detail, we mean that they considered the sequence of actions which would be involved in it for the deceased, which would include undoing the seat-belt, opening the door of the car, moving her legs from the front passenger floor well to outside the car, moving her body out of the car, possibly taking a walking stick out of the car (if, as the appellant said, there was a walking stick in it), possibly mounting the kerb, closing the door of the car, making her way down Station Road, following the road over the bridge and round to the pumping station, leaving the road at the pumping station and somehow falling or rolling down the bank and into the river. The accomplishment of that sequence of actions by the deceased was what Professor Young and Dr Denham felt unable to exclude as a practical possibility.
The first decision we have to make is whether, having heard that evidence de bene esse, we should receive it. The relevant statutory provision is found in section 23 of the Criminal Appeal Act 1968 as amended which, so far as relevant, provides:

"(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice --

....

(c) receive any evidence which was not adduced in the proceedings from which the appeal lies."



We draw attention to the fact that the overriding requirement to which we should have regard is the necessity or expediency of receiving new evidence in the interests of justice.
Subsection (2) provides:
"The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to --

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."



It is plain from that subsection that the court retains a discretion to receive evidence, even if those four conditions are not satisfied, but it is obliged to consider those four conditions and the court is more likely to consider it necessary or expedient in the interests of justice to receive the evidence if the conditions are fulfilled than if they are not. We therefore consider, first:

"(a) whether the evidence appears to the Court to be capable of belief;"



We apply that test to the evidence of Professor Young and Dr Denham. These are expert opinions from authoritative professional sources, limited to the authors' expertise and based on relevant materials relating to the deceased, taking account of much, if not all, of the relevant evidence, including the doctors' experience of extraordinary things done by those thought to be immobile. In our judgment this evidence appears to be capable of belief.

Secondly, we consider:

"(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;"



Taken at its highest the evidence suggests that the deceased could have met her death by accident and not through the deliberate action of the appellant. If the evidence were accepted, and that possibility were found to have existed, that would afford a ground for allowing the appeal. It is clear that the evidence would have been admissible in the trial in the Crown Court.
Thirdly, we consider:

"(d) whether there is a reasonable explanation for the failure to adduce the evidence in [the] proceedings."



It is plain that the defence did not at the trial have the benefit of medical opinions to the effect of those now provided by Professor Young and Dr Denham. Such evidence was no doubt available, if sought, at the time. The defence did not seek it. The reason why the defence did not seek it is quite clear. The evidence of the appellant and of the Greyfriars' witnesses was thought to exclude the accident hypothesis. It may ultimately prove that such decision was correct and that the accident hypothesis was not sustainable on all the facts here. It was, in our judgment, a fully intelligible decision.
Having regard to all those matters we think it is necessary or expedient in the interests of justice to receive this evidence, and we rule accordingly.
We also heard the evidence of Dr Jeelani, the deceased's general practitioner, who had treated her over a long period of years. His evidence suggested that the deceased was more active and better able to walk than the evidence at the trial suggested. This evidence was not adduced at the trial because the accident hypothesis was not being advanced. We rule that we should receive this evidence also.
Further, we have read the written evidence of Professor MacLennan, Professor Pitt, Mr Porter and Mrs Rees. We should add for completeness that we have also read the reports of Dr Lewis, who was called by the Crown and gave oral evidence in this court on which he was cross-examined. It was thoughtful, compelling, careful and objective expert evidence. He regarded it as extraordinary that a woman of 89 in the condition of the deceased, suffering a marked degree of dementia, having suffered minor strokes, having sustained a number of falls, having become largely immobile for a period of months at least, wearing large, ill-fitting slippers on deformed feet, should have performed some of the acts involved in the sequence of events involved in the accident hypothesis. He regarded her successful accomplishment of the entire sequence of events as implausible.
In resisting this appeal counsel for the Crown naturally relied on the evidence of Dr Lewis. He relied also on features of the evidence which, he suggested, pointed inexorably towards the correctness of the verdict which the jury returned. He made a number of detailed submissions on the evidence to which counsel for the appellant gave answers. Thus, relying on the evidence as a whole, the evidence of Dr Lewis, and the extreme unlikelihood of the accident hypothesis being the true explanation of what happened, the Crown invited us to regard this conviction as safe. Counsel for the appellant urged that it was unsafe, submitting that we should be slow to regard a conviction as safe when the accident hypothesis, which might properly have left the jury in doubt of the appellant's guilt, had never been the subject of consideration by the jury at all.
With some considerable hesitation we have concluded that we should accede to this submission for the appellant. We are conscious that we have heard only a small part of the evidence in this case. We are also conscious that the witnesses at trial were not asked all the questions which they would have been asked had the accident hypothesis been before the jury. Our system provides for trial by jury, and a jury has not been asked to consider whether, in the light of all the evidence in the case, including the evidence for and against the accident hypothesis, it is sure of the appellant's guilt. In those circumstances we conclude that the appellant's conviction is unsafe. We accordingly allow the appeal and quash the conviction.
In the light of that decision it is inappropriate to discuss the detailed evidential issues canvassed before us, and we should not be understood to hold or express any view one way or the other on the correct determination of those issues. We also wish to make it plain that our decision involves no criticism of the trial judge, the Court of Appeal who dismissed this appeal in 1995, or those who conducted the appellant's defence at the trial. The judge summed up very clearly and fairly the case for and against the appellant as presented at the trial. The Court of Appeal did not have the benefit of all the evidence which has been before us. The appellant's advisers presented her defence in accordance with her instructions and on the basis of the evidence as it appeared to be at the time.
It appears to us that the interests of justice require that the appellant be retried, and we so order. A fresh indictment should be preferred within one month, and the appellant should be arraigned on that indictment within two months of today. We grant legal aid for solicitors and two counsel for the retrial. We invite submissions on the location of the retrial, and on whether the appellant should be detained in custody or released on bail.
We conclude by emphasising that, while our decision today may of course be reported, we would specifically draw the attention of all concerned to the overriding legal need to avoid any publication relating to this matter which might in any way prejudice or interfere with the fair conduct of the retrial.

MR ROBERTS: My Lord, may I just first say this? I hope your Lordships will not think it impertinent if I invite your Lordships briefly to reconsider, in the light of two considerations that I did not mention yesterday, the question of whether there should be a retrial. My Lord, one is the length of time. By the time any retrial can take place, five-and-a-half years will have gone by. This is a case where the determination of the issues involves some fairly precise details -- times, conversations and other matters. My Lord, because the accident hypothesis was not considered or investigated at the time, some of these matters will involve asking witnesses five- and-a-half years later about matters they were not asked about at the time. I do venture to express concern as to whether it is possible to have a satisfactory retrial.

My Lord, the second matter is really humanitarian. This is a lady aged 67 who has had to endure one trial and two appeal hearings. It was not her fault that the original trial proceeded on what may be a false basis. Nor was it her fault that last time the appeal was not successful. I have mentioned to my learned friend that I was proposing to raise those matters, and if he has anything to submit he will do so.

THE LORD CHIEF JUSTICE: No. We have reached a very clear conclusion on this matter, Mr Roberts.

MR GLASS: My Lord, as for venue, my learned friend and I have had some words about this. The original trial and the subsequent proceedings, whether by television or in the Court of Appeal, have attracted a fair amount of publicity, and it is publicity on both sides. The Crown are of the view -- and I believe my learned friend agrees with me -- that your Lordship should direct that the retrial take place at the Central Criminal Court.

MR ROBERTS: My Lord, we respectfully support that. We are aware that there are many people on the south coast who have heard about this case and have views about it. It would be safer if the trial takes place in London.

THE LORD CHIEF JUSTICE: Yes. That seems an appropriate suggestion, Mr Glass.

MR GLASS: My Lord, as for bail, there is no objection expressed by the Crown. Mrs Bowler was on bail prior to her trial. I believe she did have one surety. A replacement has been mentioned to the Crown, and we have no objection to the replacement if the court is minded to grant bail.

MR ROBERTS: There was a surety, I think, of 2,000. I wonder whether in the circumstances your Lordships feel that a surety is necessary at all? This is a lady who would like to go home and will not be going anywhere else until the retrial takes place.

THE LORD CHIEF JUSTICE: We shall grant bail, Mr Roberts. We do not see any need to order a surety.

MR ROBERTS: My Lord, there is one other matter. Could I invite your Lordship to make a defendant's costs order as we have succeeded in relation to the safety of the conviction? The appellant is legally aided, but I believe there were some costs incurred before the legal aid certificate was granted. If your Lordships were to make a defendant's costs order, insofar as there were any they would be covered.

THE LORD CHIEF JUSTICE: You are asking for any costs not covered by legal aid to be paid out of central funds?

MR ROBERTS: My Lord, yes.

THE LORD CHIEF JUSTICE: Yes, very well. We shall make that order. Mr Glass, we are very grateful for your assistance in this matter, and also, Mr Roberts, for yours. Thank you very much.

The Associate raises the question of residence for the purposes of bail. Will she be living at her own address?

MR ROBERTS: She will, yes.

THE LORD CHIEF JUSTICE: Could you make sure that the Associate knows what that is?

MR ROBERTS: We will indeed.

THE LORD CHIEF JUSTICE: Thank you very much.



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