Case Name: CAINES Timothy Carlton

 

No: 95/4032/Z4

IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday 21st January 1997

B E F O R E :


LORD JUSTICE JUDGE


MR JUSTICE MANTELL


and


SIR PATRICK RUSSELL

- - - - - - - - - - - - -

R E G I N A


- v -


TIMOTHY CARLTON CAINES

- - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 831 3183 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -

MR J TEARE appeared on behalf of the Applicant

- - - - - - - - - - - -
JUDGMENT
(As Approved by the Court)
Crown Copyright
- - - - - - - - - - - -
Tuesday 21st January 1997
LORD JUSTICE JUDGE: On 24th May 1995, in the Crown Court at Birmingham before Ebsworth J and a jury, Timothy Caines was convicted by a majority of nine to one of murder. He was sentenced to imprisonment for life. He renews his application for leave to appeal against conviction after refusal by the single judge.
The facts of this case need some detailed recital. The victim was a man called Colin Hickman. He was a solicitor working for a firm in central Birmingham. He also practised on his own account. He was killed on 1st March 1994, the victim of a knife attack which took place in the hallway of his home in Shaftsbury Road, Coventry, at about 6.30 or 6.35 pm. Among a number of injuries, he sustained a stab wound, which penetrated the carotid artery. This caused death. The force used in the attack was sufficient to bend the blade of the knife which was used by his attacker.
No one doubted that the action of whoever was responsible was unlawful and deliberate and carried out with intent, at the very least, to cause grievous bodily harm. There was also very little doubt that the deceased had been attacked in the presence of more than one person. The applicant, who was a black man, was admittedly, and gave evidence that he had been, present when the attack on Mr Hickman started, and afterwards a white man was seen to be leaving the scene. The prosecution case was that both men committed the offence together. The injuries were all caused by the one knife, but there was evidence of restraint of the deceased while the attack with the knife was being carried out. There was also no dispute that the knife used by the attacker belonged to the applicant himself.
Mrs Griffiths was living with the deceased. She came home first that evening at about 6.15 pm. She used the telephone, and, while she was on the telephone, she heard the deceased come in. He gave her a normal salutation. He seemed to be cold and she assumed that he had walked home from the station. He went downstairs. She continued to use the telephone. At about 6.30 pm she heard a loud ring on the doorbell. She continued on the telephone, leaving the deceased to answer the front door. She heard no voices nor any talking, either then or at any stage, which was a little surprising because the hall was not carpeted and voices would have reverberated. After a short while she heard a -- it is her word -- "horrific" noise and commotion and a sound as if something had hit the house or fallen on to the deceased. Within seconds the noise became worse. She dropped the telephone and ran downstairs. She found the deceased standing near the bottom of the stairs, to the left of the bannisters, as if he were coming from the back of the house rather than the front door. He was staggering; blood was coming from his mouth. She shouted out. A figure darted past the deceased. Before running out of the house, he turned. Mrs Griffiths noticed that he was a tall man, who was white. She could not remember whether he picked anything up as he went out. She ran next door. A neighbour dialled 999. The emergency call was logged at 6.39 pm.
On the following day, behind a hedge in a driveway of the house in the immediate area, a knife, the murder weapon (exhibit 17) was found. It had the deceased's blood on it. It was an admitted fact, not only that it was the knife which had killed him, but also that the knife belonged to the applicant.
Dr Ashworth, the pathologist, gave evidence about the deceased's injuries. The injuries were all to the face and head. They were caused by the same implement, a knife with a serrated edge. There were eight slicing or slashing wounds, some of them superficial, as if the knife blade had been drawn across the deceased's skin; some went deeper. There were also six stab wounds, including the fatal stab injury. Internal examination showed a pressure injury to the voice box, an injury which was not connected with any knife wound. There was also bruising to the deceased's wrists. In the view of the pathologist -- but in cross-examination he conceded that he could not be certain -- the evidence indicated that the deceased had been held firmly, while struggling, by someone other than the person wielding the knife and this accounted for the fact that there were no defence injuries except for a small one on the hand, notwithstanding that the knife attack was concentrated on the head, leaving the arms and legs free to help the deceased in any struggle if there had only been a single attacker.
The forensic scientist, Mr Coates, considered that the bloodstains showed that the deceased was attacked either on the doorstep with the attack moving down the length of the hallway or in the middle of the hallway followed by an attempt to get out. He had bled with the front door open. There were smears of blood near the front door, blood on the walls through the hall to the area behind the stairs, where there was a very large area of spots and splashes of blood, and a pool of blood in the crevice of the door. It was his view that a heavily bloodstained person had slid across the door and wall. There was a heavily bloodstained plant stand which had fallen over before most of the blood had been shed. The clearest sign of activity and the most severe bloodstaining was by the door under the stairs. A baseball cap and watch (like the knife, both admittedly and undoubtedly the applicant's) were found in this area. They were photographed. The strap of the watch had given way where it joined the dial because the pin securing it was bent. The cap, according to Mr Coates, had lain in a pool of blood, at any rate as far as the top surface was concerned, and there were drips and sprays of blood inside the cap. The person who attacked the deceased from the front would have been bloodstained and so would someone restraining him from behind, but the blood on the restrainer would have been much less significant than the blood on the man wielding the knife.
In addition to all this material, the Crown asserted that the applicant had a motive for being involved in this killing. The Crown's case was that the applicant was a dishonest man - using colloquial language, a con man. He murdered the deceased, whom he knew, in order to prevent exposure of his dishonest financial activities. The precise extent and nature of the dealings between the applicant and the deceased were not entirely clear.
The prosecution asserted that during the months preceding the murder, the applicant had been obtaining large sums of money from a number of different people to be used in the form of short-term loans or investments with a very high rate of interest repayable. At first, interest was paid. That encouraged further investment or, at any rate, a degree of trust sufficient to leave the original capital invested with the applicant. The Crown asserted that what happened was that the applicant started to -- and again I used colloquial language -- 'rob Peter to pay Paul'. Therefore entire operation would inevitably collapse if too many people demanded repayment of the money due to them at the same time. That is what happened in January and February 1994. The applicant made a variety of promises that he would repay and produced a number of excuses for the delay. Eventually, in mid to late February, by which time he owed a very substantial sum of money, well into six figures, he started to tell enquirers that the deceased had the money or that he was in some way involved in the matter and in a position to ensure the safety of their investments. One of the investors, a man called Hunter, eventually spoke to the deceased, Mr Hickman. He was told by the deceased that the assertions made by the applicant were untrue.
Mr Hunter had a number of documents kept by him in connection with his dealings with the applicant. In December 1993 he asked for security for his investment. That was provided in the form of an insurance policy. The applicant went abroad in December 1993, returning in January 1994, speaking of cash-flow problems and the like. Mr Hunter undoubtedly put pressure on the applicant. The applicant started to refer to the deceased. He said that the deceased had 150,000 of his money, including 70,000 of Mr Hunter's money. He claimed that the deceased had a cheque ready, that a second signature was required and that he was making every effort to see the deceased, unsuccessfully.
By the end of February, Mr Hunter was asking that he should meet the deceased. He threatened legal action and to involve the police unless matters were resolved rapidly.
On 1st March (which was the day of Mr Hickman's murder) Mr Hunter telephoned the deceased and spoke to him in the morning. He telephoned the applicant later. The applicant said he would be collecting a cheque that afternoon. Mr Hunter described the results of his telephone call with the deceased and said that the deceased had told him that there would be no cheque and that he had none of his money. The applicant was angry. He called the deceased a liar. He invited Mr Hunter to witness his collection of the cheque at a hotel at about 5 to 5.30 pm the same day. He did not identify the hotel. But at 6.45 pm (which, it will be recollected, was within a very few minutes of the fatal attack on the deceased) the applicant telephoned Mr Hunter, saying that the deceased had failed to appear as had been arranged at a hotel in Birmingham, although the applicant had been waiting there until 6.10 pm. That story was a plain lie. At 6.10 pm, or thereabouts, he was on his way to Mr Hickman's house. He later telephoned again, saying that he needed more time and would be obtaining a cheque from the deceased on the following day. By then the applicant knew that the deceased had been attacked in his home.
On 2nd March he telephoned Mr Hunter, saying that he had telephoned the deceased's firm and had been told that he had had an account and was not in. Mr Hunter checked up on this too. He discovered the death of the deceased and that he had been murdered. He told the applicant of what he had been told. According to Mr Hunter, the applicant expressed disbelief and shock. On 4th March, in the hope of recovering his money (by now 95,000), Mr Hunter drove to Crewe with him. At a service station he said that the applicant met a man, who went over to two large men who were "hanging about". The applicant then returned to Mr Hunter, saying that there was a good chance of receiving the money to repay the debt to Mr Hunter.
Some evidence was called from the staff at the deceased's firm. According to their records, the applicant had been a client only in connection with a conveyancing matter in 1990 or 1991. He owed 296 and the firm had written that off. The deceased's secretary did not know of him having done any other work for the applicant, although he had a meeting with him on 28th February and a telephone call on 1st March. So far as the cash was concerned, according to evidence from the firm, from October 1993 no payments were received for any sums exceeding 6,000 in cash and there was no evidence of any sums going into the deceased's account or the firm's account from the applicant. There was, however, evidence from a junior office clerk to the effect that she often saw the applicant at the office. She had twice seen him with the deceased. She had the impression that they were friends. On 1st March, at 4.50 pm, she saw the applicant in a doorway looking towards the office.
In addition to this material and the lies told by the applicant to Mr Hunter immediately after the death of the deceased, the prosecution also relied on extensive and systematic lies admittedly told by the applicant to the police, some of them designed to explain in advance difficult matters which connected him with the scene and all of them lies told by a witness who, if he had chosen at the outset, could have informed the police of almost exactly what had happened and how Mr Hickman had come to be murdered.
The applicant was first questioned when the police were investigating the professional contacts of the deceased. He made a witness statement on 5th March. He set out a history of how they went into business together, with a profit-sharing arrangement. He said that the applicant had paid the deceased 50,000 cash from Mr Hunter, together with other sums, and the deceased had failed to pay the interest as agreed. He set out how he had met the deceased on 28th February at his office. He promised that he would pay 30,000 by 2nd March. They agreed to meet the next day at 4.30 pm at a hotel in Birmingham. The deceased did not appear. The applicant waited for the deceased. Then he walked around Birmingham until 6.25 pm, spoke to a business centre, spoke to Mr Hunter on his mobile telephone and then he explained his movements until 7.50 pm. In other words, he had been nowhere near the scene at the time when the murder took place.
Then on 7th March, this time accompanied by his solicitor, he told the police that, under pressure and blackmail from people he described as coming from "up north", he had followed the deceased to Beechwood Avenue near Shaftsbury Road showed on 1st March. A man had taken his cap from him. He was then arrested for conspiracy to cause grievous bodily harm and a number of interviews followed in the presence of his solicitor.
At the beginning of the first interview after his arrest, he repeated that he had been in Birmingham at the material time. He gave a detailed account of his dealings with the deceased, who, he said, kept records of his own and had a file of IOUs acknowledging receipts of money from him. No such documents were ever found. He described that he was under pressure from Mr Hunter and under pressure from the men from Crewe, from whom he had received money, and said that on 22nd or 23rd February (that is, a week or so before the murder) three men had got into his car, a gun had been put to his head and the repayment of the money had been demanded. The threat extended not only to him but to his sister and girlfriend.
In his second post-arrest interview he said that he was ordered to follow the deceased and obtain his address. At this stage the applicant was asserting that he did not know the deceased's address and had never been there. He found a package in his car boot, which he was told to keep until Monday without opening it. So he did not do so. However, on 28th February (which was the Monday) he followed the deceased. He lost him at New Street station. He was told to carry out the same exercise on the following day. On 1st March the deceased failed to meet him as arranged and so he stood near the solicitor's office. He saw the deceased come out and he followed him. He still had the package with him that he had found in his car boot. He followed him to New Street station, on to a train and off it at Canley station. As he was following the deceased from the station, a man told him to stop, put down the bag and take off his gloves. His baseball cap was taken and he was searched. He obeyed. He thought the man giving these orders was carrying a gun. He was then told that he had done what was required of him. He returned to the station. He was unable to catch a train, so he took a bus back to Birmingham. That was the end of his contact with these people.
In his third post-arrest interview he expanded on the men who had threatened him. He continued to deny that he had ever been to the deceased's house or ever touched anything there. He denied harming him in any way or having handled any weapon. He was taken for fingerprinting. He said that he had opened the bag or package which he had found in the boot of his car and seen a gun and two knives in it. The man who had stopped him and made him take off his gloves and had searched him had forced him to touch one of the knives. He was then shown the murder weapon, exhibit 17. He was asked if that was the knife which he had been forced to touch. He said, "I didn't kill him". He then asked to speak to his solicitor. That facility was granted.
At the next interview, now the fourth after arrest, he said he did not know who killed the deceased and was not there when any injuries were inflicted. Reading through the record, he looks to have been asserting that the 'heavy' people might have gone to threaten the deceased. A number of details which the interviewing officer said made no sense were then put to him. There was a private conversation with his solicitor. He then gave what he said was a full and truthful account. He took up the story where he was stopped, and was told by this man to put his cap and gloves back on, to pick up the package and then continue following the deceased. The man followed him. He was then made to get into a red Sierra. Inside, there was a hooded driver and a man with a gun. He was threatened. One of the men then took the package away from him and disappeared, returning about five minutes later, saying, "I sorted out the bastard". The implication of these assertions was that the applicant was not present at the house when the attack on the deceased took place, but that this man had left the car and disappeared and carried out the fatal attack. According to this interview, the man told the applicant to hold out his hands. He did so. Blood was then smeared over his hands. However, the applicant managed to hit someone and make his escape. He went to a lady friend's house. He washed, changed, and, not insignificantly in the context of the application before us today, he said that he then dumped his clothes.
On any view this was not a full and truthful account. There was no explanation for the use of his knife, nor the finding of his cap and watch in the deceased's home. He was shown a picture of his watch. He said it looked like his watch, but he had lost his watch two weeks previously. He then said that the watch was already damaged and had fallen off in the red Sierra. It had, he said, been picked up by the man he thought was called Mick.
His solicitor then advised him that if he had been in the deceased's house, it was in his best interests to give a detailed account of what he had seen and heard. He then said that, after his watch had fallen off in the car, he was forced to walk to the deceased's house. The deceased's answered the door and the man Mick pushed him, the applicant, aside and went in, swearing at the deceased and hitting him. The applicant ran away. Then, he said, under threats and pressure, and wearing his cap, gloves and watch, and carrying a package, he went to the deceased's house and rang the bell. When the deceased opened the door, Mick pushed the applicant aside and darted in, grabbing hold of the deceased. He threatened the deceased, talking about the money that was owed. The applicant put the bag down outside and went into the hallway by the stairs. He saw Mick stab the deceased. He jumped on Mick, trying to pull him off. All three (that is he, Mick and the deceased) fell over. He removed the knife from Mick's hands and then dropped it in order to pick up his mobile telephone. He ran away, picking up the bag which he had put down outside the front door as he went. He discovered that the red car had disappeared. He took the police to where he said he had buried the bag and the gun, which was in another direction to the place where the knife was found, but they were unable to find anything there.
Pausing in this lengthy narrative, the evidence produced by the Crown against the applicant was very powerful evidence indeed. There was no doubt that he was present in the deceased's house when the murderous attack on the deceased began. That was, after all, his own final account to the police. The deceased was subjected to a prolonged knife attack, which culminated in his death by stabbing, and the knife used to carry out that attack was the applicant's own knife. It was open to the jury to conclude that, even allowing for the pathologist's concession that he could not be certain, that is to say, speaking as a pathologist, that there had been two men involved in the attack, it was indeed the work of two men, one using the applicant's knife, the other restraining him. That conclusion seems to be fairly obvious from the evidence of the injuries and the absence of defensive injuries. The applicant then left the scene. He lied to Mr Hunter about his movements. When enquiries led the police to him, he lied repeatedly to them, rather than tell them that he was a witness, indeed the most obvious witness, to what had happened to the deceased.
So his own evidence was plainly of crucial importance to the verdict. In reality, the only prospect of an acquittal depended on whether the jury thought his evidence was or might be true. He explained in evidence that he had not killed the deceased, and, although he had been there when the attack began, he was not there at the time when the deceased died. He had only been to the house under pressure. He was not expecting, nor intending, that any harm should befall the deceased.
The applicant explained his dealings with the deceased. He said that he had placed a total of 165,000 with him in late 1993, which included 50,000 of Mr Hunter's money. He said he had no records of any of these transactions, but that the deceased should have had the appropriate records. He pointed out, as was an agreed fact, that at the date of his death the deceased was substantially in debt. As to the deceased's behaviour, when he failed to repay the sums of money when he was asked to do so, this led to the applicant coming under increasing pressure from a number of people, including the heavies from the north. He said that eventually the pressure took the form of significant threats of personal harm. It was accepted by the Crown that, on occasions during this time, he had approached the police, explaining that he was under pressure to settle an account and was concerned for his own safety. He also gave two names, but the police said that he had given them insufficient detail for them to make any enquiries and he had been advised to see a solicitor. He said that, on 23rd February, three men had entered his car while he was in a car park, held a gun to his head and made it clear they knew the whereabouts of his sister and girlfriend. From then on, he said, he was panicking. Eventually, in order to prove to them that the deceased had their money and that he was not at fault, he decided that he would make arrangements to follow the deceased, as he had been directed. He said that a brother and a friend accompanied him on one occasion, in case anything happened to him.
As to 1st March, he said that he was aware that Mr Hunter had been in touch with the deceased. He said that the deceased had lied. When the applicant told Mr Hunter that he had arranged to meet the deceased and would be obtaining a cheque, it was true.
There was one agreed fact of significance in relation to 1st March, which was that, at 12 noon on this fateful day, he went to a police station and made a witness statement about a matter wholly unconnected with the present application. He was wearing the watch which was subsequently found in the deceased's house. Of greater significance, however, is that, during the course of this interview, he made no mention of any threat or threats to him.
He went on in his evidence that, as a result of pressure, on 1st March he followed the deceased, this time unaccompanied. He had a bag. Inside the bag were rice flails and two knives but no gun. He carried them for his own protection. As he followed the deceased from the station, he was stopped by a man, who put a gun to his head and frisked him. The man looked into the bag. He made him pick up, and then put back, one of the knives. There were two other men in the background. He was forced to continue on his journey. He was made to get into the Sierra, the man with a gun close behind him. One of the men in the Sierra said that he, the applicant, was to go to the deceased's house to help sort out the matter. He took that to mean a discussion about money. He left the bag in the car. Mick had taken a knife out of the bag. He carried that to the deceased's house, together with the gun. The applicant rang the doorbell. The deceased answered. Mick pushed the applicant aside and went in, and he followed 2-4 seconds later. By then, Mick was holding the deceased by the throat, pointing the knife at his face, saying, "You've got to get the fucking money sorted". The applicant grabbed Mick round the neck to try to prevent the attack on the deceased. He pulled him away. He noticed that there was already blood on the face of the deceased. The three of them fell to the ground and at this stage his cap and watch came off. As they got up, Mick pointed the gun at the applicant and told him to keep out of it. The deceased gestured to him to leave, and so he did. He ran towards the car. He saw the bag thrown from the car into some bushes. He went and recovered the bag and removed his rice flails. He handled the gun and then left that and the knife under some bushes. He ran to the station. He eventually returned to Birmingham by bus. He telephoned Mr Hunter (he explained this as panic and distress) and told him that the deceased had not turned up and he had been waiting for him. There was some blood on his coat sleeve and shirt cuff. He got rid of them. The trousers he had worn had no blood on them. They were taken by the police.
He described his trip to Crewe with Mr Hunter. He agreed that he had lied to the police. Instead of telling them that the part he played in this murderous attack was to try to prevent it, he had told the many lies he did through fear. He had received a threatening telephone call and, in panic, he wanted to distance himself from these dreadful events. Eventually he became trapped by his own lies.
That, in summary, was his account to the jury. If they thought that it was or may have been true, then, as the judge directed them, the applicant would be acquitted. The fact that they convicted him demonstrates that they wholly rejected his evidence.
Following conviction, voluminous grounds of appeal were prepared by the applicant himself. On 13th November 1995, after spending the best part of two days considering all that material, the single judge observed to him that he could not possibly deal with each point raised in writing, but that the summing-up could not be faulted; there was no justification for the criticisms made of solicitors and counsel who had acted for him at the trial; and that any additional evidence referred to in the grounds would make no difference to the result. The single judge commented that the circumstantial case against him was very strong; that his case "sunk or swum on the basis of whether the jury believed your evidence as to what happened when you called on the deceased"; and that he could see nothing unsafe or unsatisfactory about the conviction.
The application for leave to appeal was renewed. On 7th June 1996 a directions hearing was conducted. I was presiding over the Court as it was then constituted. The application was adjourned on the understanding that counsel was instructed and would settle perfected grounds of appeal and that the applicant intended to brief leading counsel of his choice to conduct the renewed application. We ordered that the case was to be relisted on the first available date after 1st October. The case was not ready on that date. Eventually the case came on before the Court, again with me presiding but differently constituted, for the hearing of what we understood was to be the renewed application. In fact the case was not ready. An application was made for an adjournment and for legal aid. In fairness to the applicant, the application was granted and a number of directions were given. It is unnecessary, in the course of this judgment, to set out details of all the directions which followed, because fortunately the applicant instructed Mr Jonathan Teare of counsel to assist him.
Mr Teare had not been involved either at the trial or in any of these protracted steps to bring the renewed application before the Court. We are very grateful to him and to those who have instructed him, not only for keeping the Court informed of progress and his own investigation into this application, but also for the detailed care and attention which he has given to the case. We now feel in a position to consider the only possibly arguable grounds which in Mr Teare's judgment are available to the applicant.
We shall deal with each ground in turn, although not in the precise order in which Mr Teare argued them. We should deal first with the criticisms of the summing-up. No error or misdirection of law is asserted. In a detailed, careful and balanced summing-up, covering 128 pages of transcript, three criticisms relating to factual matters are advanced. The first two concerned the applicant's cap and watch, both of which he was wearing when he went to the deceased's house and both of which were found at the scene and were photographed in the position in which they were found, in an area behind the stairs where the fatal attack took place. The third concerns one observation in the summing-up based on one of the interviews.
The essential criticism is that the judge suggested to the jury that the cap and watch must have come off in the place in which they were found. There is no doubt that the learned judge did so. It was consistent with what the defendant had said in one of his interviews. But in his evidence, as she reminded the jury, he said they had come off as the three of them, that is he, Mick and the deceased, had fallen to the ground when he was trying to assist the deceased after the attack with the knife had begun.
We have considered the observations by the judge. We do not regard her comments or her recital in summary form of a single question and answer from the protracted interview as constituting any sort of usurpation of the jury's function in relation to the evidence. She made the issue entirely clear.
It is also suggested that she did not accurately summarise the evidence given by Mr Coates on the topic of how the cap belonging to the applicant became bloodstained.
We can see no misdirection based on the evidence which he gave.
These submissions by Mr Teare reflect his own detailed work and analysis of the summing-up. If at the end of a summing-up which covers 128 pages of transcript the worst that can be said of it is the sort of criticisms advanced by Mr Teare, it suggests that the summing-up has been virtually a model of its kind.
The next ground to be dealt with is related to an application to admit fresh evidence relating to a footwear print found at the scene.
This evidence is not fresh evidence, however one defines the word "fresh". The statement made by the witness was available at the trial. It was not used. We are not particularly surprised, because the evidence did not, in reality, assist either side. What was said was that there was one main footwear impression at the scene which could not be accounted for, not, as is implied in the ground, that the footwear findings demonstrated that only one person had been present at the scene. It is true that the footwear which made this main footprint did not coincide with the shoes seized by the police from the applicant, but -- and he said this in one of his interviews -- there had been ample time for him to change his shoes after the killing and before the police took hold of them. In any event, however, there was considerable support for the Crown's case that two men, and not one, were involved in the murderous attack and the applicant's own case was that he was present after the murderous attack had begun. We refuse to admit this so-called fresh evidence.
We can now turn to two grounds which relate to the jury. The trial began on 1st May. The case proceeded in the usual way. On 16th May (which was the sixth working day) it emerged that one member of the jury was the next-door neighbour of a prison officer at Winson Green prison, where the appellant was on remand awaiting trial, and on that day, for the first time, he had put in a brief appearance in the dock. Some sign of recognition was exchanged between him and a member of the jury. That sign was observed and the facts were drawn to the attention of the judge. She carefully investigated them. Both the prison officer and the juror were questioned separately and in the absence of each other.
The following facts emerged. The juror and the prison officer were neighbours and their families were friends, realistically, one would say, good and close friends. The prison officer worked in the Punishment Landing at Winson Green, and, apart from seeing the applicant about the prison, he had had no contact with him at all. He did not even know the charge faced by the applicant until 15th May, when he had come to court and found out from someone else, that is someone other than his neighbour. He knew that his neighbour was on jury service at the Crown Court, but he did not know what case she was trying. He recognised her when he went into the dock for the first time. There had been no communication between him and the juror about the case at any time, nor had the juror discussed with her fellow jurors that she had a neighbour who worked as a prison officer at Winson Green prison.
The learned judge was reminded of the principles to be applied in the situation which confronted her. Attention was drawn to Gough [1993] 2 WLR 893, a decision of the House of Lords, Wilson and Sprayson (CA, unreported, 16th February 1995), an extreme case, with only the slightest superficial similarity with the facts of this case, and Blackwell and others [1995] 2 Cr App R 625. In that case the judge failed to conduct a proper investigation into the facts, and, accordingly, his decision not to discharge the entire jury was held to have been an improper exercise of his discretion. We have taken note of the passage in the judgment of Morland J, drawn to our attention by Mr Teare:
"First, he [the judge] should have made inquiries into contamination or possible contamination, first of the one juror who was discharged, and secondly of the 11 jurors who remained."


Whether that means or is intended to mean that the judge should have made a separate enquiry of the single juror and then conducted a second and separate enquiry of the eleven jurors is not entirely clear. But in the present case the learned judge conducted an appropriate investigation and satisfied herself about the facts. Faced with what she accepted was a truthful account of these matters from the juror who had been questioned, in our judgment it was not necessary, as a matter of law, for her then to conduct a questioning session of the remaining jurors as a whole or, indeed, each and every remaining member of the jury separately. She decided, having established to her satisfaction what the facts were, that she should discharge the individual juror but not the whole jury. She directed herself:
"It is clearly undesirable that the individual juror should continue to serve. Whilst there is no clear evidence upon which I could say that there is a specific risk of bias, there is obviously an appearance of bias and it may well be that even insidiously there is a risk of a particular viewpoint disseminating into the mind of the individual juror in the course of ordinary casual contact with her neighbour and obviously friend."


She then turned to consider the application that the whole of the jury should be discharged. She said:
"The question is whether there is a risk of the dissemination of that to the rest of the jury. The test that I have to apply is, first of all, there is a possibility of bias being communicated to the balance of the jury? Is there simply an appearance of bias and to apply the test, in effect, of whether or not a fair-minded and reasonable observer, fully informed of the relevant facts, would have had a reasonable suspicion that a fair trial was not possible. A fair trial will not be possible of course if there is a possibility of bias or an appearance of bias."

She then went on to direct herself that there was no specific connection between any juror and any witness, and no connection between any juror and a prison officer with regular contact with this defendant and:
"...where the evidence actually before me is that there has been no communication in relation to the facts of this case between the prison officer and his neighbour, who happens to be serving as a jury, I am firmly of the view that there is in this case no basis upon which I could say that there is either a possibility of the dissemination of bias to the jury as a whole, nor is there, in my judgment, any appearance of such bias.

These are, quite clearly, sensible people and I have no basis for believing that Mrs Jenkins is likely to have said anything to the balance of the jury that would affect the minds of this jury adverse to the defendant."

It is unnecessary for us to say what conclusion the judge would or might have reached if she had felt that the juror had discussed with the other members of the jury that she was a neighbour of a prison officer at Winson Green. It is by no means certain that, if that information had come to light, a jury should necessarily have been discharged. Every single question in these cases depends on an assessment of the facts of the case after the appropriate careful investigation, which was carried out here by the judge. Her conclusion is not open to justified criticism. She approached the problem with great care. She investigated it as fully as was necessary. She reminded herself of the relevant principles. She exercised her discretion in accordance with those principles. We do not believe that the principles vary because of the nature of the charge, an argument in the written grounds of argument, but inevitably the judge in a murder case will have in mind the seriousness of the allegation. Be that as it may, no possible ground for interfering with the judge's decision has been shown; the point is not even arguable.
As to the second ground relating to the jury, it is a fact that this trial lasted for a total of twelve working days. At 11.55 am on the last day the learned judge concluded her lengthy summing-up. The jury retired. At some time after two hours had elapsed the jury sent the judge a note. Unfortunately this note and the note sent by the jury later have been lost somewhere between Birmingham Crown Court and the Criminal Appeal Office. It is, however, fortunately fairly obvious that, as the judge was not prepared to disclose the contents of the first note, it set out, as she said in open court, "the present state" of the jury's deliberations. That is not information which is ever disclosed in open court. Having indicated that, she said that she concluded that, as the two hour statutory period had elapsed, it would be appropriate to give a direction in relation to verdicts which were not unanimous. She invited counsel to say anything that they wished. Neither counsel for the Crown nor junior counsel for the applicant (his leader being absent with the permission of the client) had anything to say to the contrary. The jury came into court at 2.32 pm. They had been deliberating for 2 hours and 37 minutes. The judge then reminded them, first, of the desirability of reaching a unanimous verdict, and second, emphasised that this was perhaps the more important as they had been reduced to only ten jurors. She then gave the appropriate directions and asked the jury to retire to see if they could return a unanimous verdict.
At 2.34 pm (wrongly noted as 3.34 in the transcript) the jury retired. They then sent in another note. Again, the content of the note is apparent because the judge said in open court:
"It is obvious that it is appropriate to ask them if they have reached a verdict and to take the verdict from them."

At 3.09 pm the jury returned to court and returned their majority verdict. By nine to one the applicant was found guilty.
We do not mean to be discourteous to Mr Teare, but we are unable to comprehend the criticism of the way in which the judge approached this problem. There was no breach of the statutory requirement, nor of the Practice Direction relating to majority verdicts. The judge was faced with a note from the jury which led her to give what is described as the majority direction. Neither counsel objected, nor could they with propriety have done so. Thereafter, when the jury was ready, they informed the judge that they had a verdict and they returned it. Given that all the appropriate procedures had been complied with, for the judge to have refused to respond to the note from the jury in any way other than she did would have been absurd. In our judgment there is nothing in that point, nor in any of the others carefully advanced by Mr Teare worthy of the attention of the full Court. The application, in summary, is unarguable. Accordingly, it will be refused.