Case No: 98/4720/W3
IN THE COURT OF APPEAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21st December 1999
B e f o r e :
LORD JUSTICE KENNEDY
MR JUSTICE DYSON
MR JUSTICE PENRY-DAVEY
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Handed down judgment of Smith Bernal Reporting Ltd
180 Fleet Street, London EC4A 2HG
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR ANTHONY SCRIVENER QC & MR JOHN HAINES appeared on
behalf of the Appellant
MR CAMDEN PRATT QC & MR A GARDNER appeared on behalf of
the Crown Prosecution)
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(As Approved by the Court)
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LORD JUSTICE KENNEDY:
1. Outline.1. Billie Jo Jenkins was born on 29th March 1983, so on 15th
February 1997 she was nearly 14 years of age when she was battered to death by an
assailant using a large tent peg, some eighteen inches long, whilst she was painting the
doors which opened onto the patio terrace of the large semi-detached house in Hastings
where she lived with the appellant, his wife Lois, and their four girls. Billie was not a
blood relative, but she had been living with the family as a foster child since 1992, and
it was expected that in due course she would be adopted.
2. At about 2.00pm on that afternoon the appellant's second daughter L,
aged 10, and her friend Ellen had a clarinet lesson. Both girls were picked up from their
music teacher's home by the appellant and his eldest daughter A, aged 12, just after 3.0
pm. The appellant and the three girls drove to Ellen's house, and she was dropped off at
between 3.15 and 3.20. from there the appellant and his two daughters drove home, a
journey time of about 4½ minutes. Mrs Jenkins and the two youngest daughters were out
shopping. At trial the appellant said that he, A and L all went inside. L rushed upstairs
to put her clarinet away. She was going to wash his MG car. He did not see Billie, but she
would have been painting the patio doors. He heard A speaking to her and recalled A saying
goodbye to her. He decided to buy some white spirit. So, together with A and L, he left
the house and drove off in the MG intending to go to Do-it-All. About 15 minutes later,
still accompanied by the 2 girls, he returned home. Billie was found to be lying on the
patio with obvious serious head injuries. At 3.38 pm the appellant telephoned for an
ambulance. As his wife was out he telephoned a friend, Denise Franklin, who lived in the
same road, and she set off to help.
3. In due course an examination of the appellant's clothing revealed
blood on his shoes, his trousers and his jacket which was identical to Billie's blood. The
prosecution case at trial was that her blood got onto his clothing when he attacked her.
His case was that it got there when he went to assist her after the Do-it-All trip when he
discovered her in her distressed state. The prosecution also relied upon other matters,
the events of that afternoon prior to the 999 call, and the appellant's conduct
thereafter, but, as prosecuting counsel said when opening the case to the jury, the blood
spattering was the crux of the prosecution case. The trial took place at Lewes, and on 2nd
July 1998 the appellant was convicted of murder. A separate indictment, containing a
charge of obtaining a pecuniary advantage by deception, was ordered to remain on the file
on the usual terms. The appellant now appeals against conviction by leave of the single
4. 2.Grounds of Appeal.
5. Although there were originally 15 grounds of appeal, many of them
subdivided, grounds 6, 8, 12, 14 and 15 have been abandoned, and there are now five
matters which remain for our consideration, namely -
6. (1) The children issue.
7. It is contended that by dealing inappropriately with the children A
and L on 20th March 1997 the prosecution deprived the defence of potential alibi
witnesses, and thus rendered a fair trial impossible, so the proceedings should have been
stayed as an abuse of process (ground 1). Alternatively the trial judge should have
required the prosecution to call those children or called them himself (ground 2). And in
any event the judge was wrong to tell the jury that it had been open to the defence to
call them (ground 3).
8. (2) Ruling in relation to D.C. Hutt.
9. It is contended that the judge was wrong to rule as he did in
relation to the admissibility of part of this witness' evidence (ground 7).
10. (3) The Confusion issue.
11. It is contended that during the hearing some confusion arose in
relation to the medical and scientific evidence, which was reflected in the summing-up.
This is coupled, in ground four, with criticism of the way in which the medical and
scientific evidence was presented in the summing-up.
12. (4) Other points in the summing-up.
13. Criticism is made of the way in which the trial judge dealt with, or
failed to deal with -
14. (a) the evidence of the appellant (ground 5);
15. (b) the evidence of the prosecution forensic scientist Mr Wain
(grounds 9 and 10);
16. (c) arguments as to motive, etc. (ground 11) and the pre-assault
position of the weapon (ground 13).
17. (5) The fresh evidence issue.
18. This centres on the evidence of Professor Denison, who was
instructed after the trial, and who has conducted experiments to show what volume and flow
in a single exhalation could have produced blood spattering as found on the clothing of
19. 3.History to date of Trial.
20. Before we turn to consider any of the issues which arise in this
appeal, it is necessary to say something more about the history of the case. As we have
said already, an examination of the clothing worn by the appellant disclosed that it was
spattered with what appeared to be the blood of the deceased. It was on his jacket, his
trousers and his shoes. The spattering, which was not readily visible, was similar to fine
spray which was observed on the front of the leggings worn by the deceased, and neither
Denise Franklin nor the ambulance crew paramedics had clothing which was similarly
affected. There was blood on the shoes of one of the paramedics, but that was all. The
nature and distribution of the blood spattering on the clothing worn by the appellant was
consistent with him being the attacker. Mr Wain, the forensic scientist called by the
prosecution, said that the marks were "typical" of what he would expect if the
wearer inflicted blows to a wet surface. The larger spots would travel forwards towards
the French windows, and the fine spray would travel backwards and upwards. Although the
appellant is right handed, Mr Wain was not troubled by the predominance of spots on the
left jacket sleeve, or by the uneven distribution on the legs, because much would depend,
he contended, on how the weapon was held, whether both hands were used, and how the
assailant was positioned at the moment of impact. Mr Russell Stockdale, another forensic
scientist called by the prosecution, gave evidence to the same effect. Mr McKirdy, a
forensic scientist called by the defence, was a little more cautious. His experience
indicated that in cases of battering there can be a considerable range in the size of
droplets, but the spattering on the deceased's leggings was consistent with her head when
wet with blood being hit by a metal spike, and the spattering on her trousers looked the
same size as that on the clothing of the appellant. Mr Webster, another forensic scientist
called by the defence, also said that the spots on the clothing of the appellant could
have been from impact spatter. He thought that they were not completely typical, but there
was nothing in the spots which was inconsistent with battering.
21. On the day of the killing it was not known that the appellant's
clothing was spattered with the blood of the deceased, but it was recognised that he was
the last known adult to have seen her alive, and the first known adult to discover her
body. If anyone else killed her they must have stepped into the garden to do so some time
after 3 pm on a February afternoon, and then disappeared quickly and virtually without
trace. There had been some talk of a prowler, and there was a suggestion that a gate at
the side of the house, which was shut when they left for Do-it-All was open when they
returned, but that was all.
22. Against that background it is instructive to see what the appellant
said on the day of the killing and thereafter about his contact with the deceased, and
what he did, and how the explanation for the spattering on his clothing evolved.
23. As we have said, the appellant called for an ambulance at 3.38 pm.
It was his first attempt to summon help, and he told the operator that he had just got
back. When the operator tried to find out when the incident had occurred the appellant
suggested that it must have occurred in the last half to three quarters of an hour. At
trial the appellant claimed to have no recollection of that conversation, but suggested
that if he said what was alleged he must have been shocked and confused. After making the
first 999 call he summoned Denise Franklin who, when she saw the deceased, encouraged the
appellant to make a second 999 call. He did so, and during that telephone conversation was
asked if he had put the injured girl on her side. He said he had, but in fact he had not.
Again he said if he spoke as alleged it was only because he was confused and shocked.
There was evidence that as soon as the ambulance arrived the appellant got briefly into
his parked MG car. He says that if he did so if was for no other reason than in his state
of shock to carry out the mundane task of putting up the roof. The prosecution suggestion
was that he got in to provide a possible explanation for any blood that might be found
later in the MG.
24. Denise Franklin and the ambulance men described the position of the
deceased as being prone, flat on the patio, with the left hand side of her face on the
floor facing the garden. There was a plastic bag, part of which was up her left nostril.
Denise Franklin had removed that plug before the ambulance team arrived and blood poured
out. Six days later, on 21st February 1997, she tried to put Detective Constable
Groombridge in the position in which she had seen the deceased. She put that officer's
chin a little off the ground in a position in which at first he was unable to relax
without letting the chin drop, but when he put his left hand under his body he found a
position where his chin could stay off the ground just a little bit, about half to one
inch, in a position which satisfied Denise Franklin and he could relax. D.S. Capon, who
was there, said that the effect may have been to raise the nose up "just
25. The police arrived soon after the ambulance, and according to PC
Bruce the appellant told him that he had gone out with the two children at 2.55 pm and had
not returned until 3.30 pm. As the prosecution pointed out at the trial, that was broadly
consistent with what was said to the operator who received the first 999 call, and it was
untrue. Furthermore the appellant said that when he and A had returned home after
collecting L from her clarinet lesson only L had gone into the house. She had returned
very quickly and the three of them had then gone off again to Do-it-All. That also was
untrue because, as the appellant later accepted, he did go into the house between the two
journeys. Furthermore the second journey was a curious one. It involved a double circle
around a large park, followed by a drive to the Do-it-All store, which the appellant said
was to purchase white spirit, something he did not need because as a later search revealed
he already had some. In fact nothing was purchased because, he said, he realised before he
entered the store that he had no money, and he simply returned home. The prosecution at
trial contended that the appellant, having murdered the deceased was simply getting the
children A and L away from the scene and giving himself time to think.
26. PC Bruce was criticised because he did not note his conversation
with the appellant or incorporate it into any statement until Tuesday 18th February 1997,
three days later. As the judge said, the jury had to disregard the officer's evidence
unless they were sure the appellant said what the officer alleged, but if they were sure
then the question arose as to whether the appellant was simply mistaken or whether he was
lying to try to distance himself from the murder.
27. On the day of the murder the appellant and his family went to stay
with their friends the Gaimsters, and there was evidence that although it was cold the
appellant was very reluctant to take the fleece jacket which was later found to be
spattered with blood.
28. On the evening of the same day the appellant told another police
officer, DC Hutt, that he had not been in the house after collecting L from her clarinet
lesson and before going to Do-it-All.
29. On the following day, Sunday 16th February 1997, Dr Hill, a very
experienced pathologist, performed an autopsy on the deceased. The cause of death was
severe head injuries. The lungs were hyper-inflated, and there was some blood in the
airways going down to the two separate branches of the lungs. That blood was regarded by
Dr Hill as the obstruction which prevented exhalation from the lungs.
30. On that same Sunday the police interviewed the two girls L and A. It
is common ground that those interviews were properly conducted, and we shall look in more
detail at the way in which the girls were treated when we turn to the children issue later
in this judgment. Nothing that they said formed any part of the evidence laid before the
31. On 22nd February the investigating officers received the preliminary
view of the forensic scientists that the spots of blood on the appellant's clothing were
typical of those to be expected following an impact on a surface that was wet with blood,
and that the blood on the clothing appeared to be the blood of the deceased, but not the
blood of the appellant. He was arrested on 24th February, interviewed in the presence of
his solicitor, and then, on 25th February, he was released on bail. On 13th March 1997 the
appellant was re-arrested, interviewed further and then charged.
32. The case was committed for trial, and the trial was due to begin on
22nd April 1998. On 9th April 1998 the defence served reports from two forensic
scientists, Mr McKirdy and Mr Webster. Plainly it was most unsatisfactory that there
should have been such late service of those two reports, which raised for the first time
the suggestion that the blood on the appellant's clothing had been exhaled by the
deceased. The appellant's solicitor said that the late service was due to the defence
awaiting confirmation from the prosecution that all evidence upon which the prosecution
intended to rely had been disclosed. We have not investigated that issue, but we note that
the trial date had to be vacated, after which a report from a neurosurgeon, Mr Sinar, was
served by the defence. The prosecution then obtained reports from Professor Southall, a
paediatrician, and Mr McAughey, an aerosol chemist, to which the defence responded with a
report from Professor Douglas, who specialises in respiratory diseases. His report was not
received until after the start of the trial, which began on 2nd June 1998.
33. 4.At the Trial.
34. The blood spattering on the clothing of the appellant clearly called
for an explanation, and the explanation which was advanced was exhalation, which,
according to the prosecution, was not acceptable in the circumstances of the case.
35. Mr McKirdy and Mr Webster had carried out experiments which showed
that a substantial exhalation of air could expel blood from the nose so as to create a
pattern of very fine blood spots on a target placed at an angle of about 45 degrees to the
nose. When he carried out the experiments Mr Webster exhaled 2.3 litres of air in 2
seconds. Mr Sinar said that where there is an open head injury the victim can go on
breathing and making efforts to clear his or her airways for some time, and if, as in this
case, there is a lot of bleeding that is some indication that the victim was alive for a
time with her heart pumping blood. Mr Sinar "felt from what he had read" that
the deceased was still alive when first seen by the appellant after his visit to
36. Professor Douglas defined some of the terms used in physiology and
pointed out that it did not matter how much air Mr Webster had expelled. What mattered was
the speed of flow. It was not necessary to breath in 2.3 litres of air to produce a peak
flow of 55 litres per minute.
37. The starting point of the prosecution response to this body of
evidence was the pathologist Dr Hill. He accepted that it is difficult to be precise as to
the time of death, which can be highly variable, but said that where, as here, the brain
injury is severe death is more likely to be instantaneous. As to the respiratory function
Dr Hill considered that any breathing by Billie after she received her injuries would have
been very mild and very slight. The blood in the airways would obstruct exhalation. Dr
Hill accepted that movement of the body could have released trapped air, but he regarded
the Webster and McKirdy experiments as wholly unrealistic. He said that an exhalation of
2.3 litres in two seconds would be a huge amount for anyone to exhale, and in the context
of this case it bore no relation to reality. Had it happened anyone present would have
seen a big breathing movement and generally from a physiological point of view Dr Hill
considered the possibility of spraying of droplets by breathing to be so remote that it
can be discounted. It is clear from the summing-up that it was suggested to Dr Hill in
cross-examination that he was not qualified to express an opinion in relation to
expectation of life after head injury, or in relation to the possibility of blood being
projected by exhalation after such an injury. In some cases it can be entirely appropriate
to examine the limits of an expert's expertise but we question whether that line of
cross-examination (which was also adopted in relation to other expert witnesses) assisted
the jury in this case, any more than it has assisted us. Dr Hill was, as we have noted, a
very experienced pathologist, and he was the only expert called as a witness who actually
examined the body of the deceased. The defence rightly obtained the services of another
pathologist, who was given access to the body, but he was not called as a witness.
38. Professor Southall was described by the trial judge as "a very
experienced paediatrician concerned with respiratory physiological research for many
years". The professor expressed the opinion that it was impossible for Billie in her
state to expel 2.3 litres of air. He doubted if she could have inhaled that amount, and
agreed with Dr Hill that if she did so anyone present would be bound to see it happen. Mr
Webster, he said, can be seen on the video to be actively exhaling air, which is not what
a dying child would do, and there would be no gasping after the heart stopped.
39. Then there was Mr McAughey, the scientist, whose response to the
experiments carried out by Webster and McKirdy was to perform some experiments of his own,
with equipment and a female volunteer. He said that to get expulsion of blood droplets by
force to hit targets 40 and 60 cm. away required a peak air flow of 55 litres per minute.
He measured that 2.7 litres of air was exhaled, and 2.7 litres would be 80% of Billie's
vital capacity, that is the total amount she could have expelled from her lungs.
40. Obviously the prosecution witnesses attached significance to the
fact that neither the appellant nor Denise Franklin nor the ambulance crew saw any sign of
life. As to that, and as to what the prosecution alleged to be lies told by the appellant
in relation to his movements, the defence relied on Professor Trimball, an expert in
psychiatric disorders following accidents, who had done work on post traumatic stress
disorders. He gave evidence as to the effect of shock, which can impair memory. There can
be flashbacks, and islands of memory, not in proper sequence. However, as he agreed in
cross-examination, different people react in different ways, and at an early stage the
appellant did prepare comprehensive notes which may suggest a clear and detailed memory of
41. We have dealt with the history up to trial, and with the evidence
given at trial, in some detail because it forms an essential background to the issues we
must now address, but we emphasise that we have restricted ourselves to those matters
which we consider to be of some significance for the purposes of this appeal. Many other
matters were explored both before and at the trial. We turn now to the first of the issues
raised in this appeal.
42. 5.The Children Issue.
43. The submission in relation to abuse of process was made without
evidence being called, but by reference to statements and other documents disclosed by the
prosecution, from which it emerged that L was interviewed by WDC Gregory and DC Cleverley
on 16 February , and A was interviewed immediately afterwards. Both interviews were video
recorded. L said that, when they returned home from her music lesson, she ran upstairs to
put her clarinet away. She did not see or hear Billie. The appellant went into the dining
room and placed his keys on the mantelpiece. She said (page 28/29 of the transcript of
interview) that she "ran down and went outside the house to wait" for her father
who was going to bring her a bucket of water so that she could wash the MG. The appellant
then came and "we were just outside so he just said "jump in" and we just
got into the car", because he was going to Do-It-All to buy some white spirit. At
pages 76/77, she said that A was waiting by the MG for the bucket and water, and that she
(L) went out of the house first, followed by her father who locked the door. In answer to
the question whether there was any time between when she and her father left the house,
she said: "No. I like came out and he came out just after me and then shut the
door". She said that she noticed that the side gate was closed when they went to buy
the white spirit, and that it was open when they returned.
44. In her first interview, A said that on their return from L's music
lesson, she went into the house and saw Billie painting near the patio doors. She (A) was
in the hall, and thought that her father was with her as well, but she did not know (page
15). She did not know where her father went: "he could have been behind me in the
hall, he might have been outside, I'm not sure (page17). When asked again about her
father's movements, she said "I think he was with me as well, but, I don't know. I
can't rememberI don't think he went upstairs. He might have been just out, just coming up
the stairs or something" (page 26/27). She and Billie said "hello" to each
other, and then "we just all walked out" (page 15), but the appellant did not
speak to Billie (page 27). She said that she and L were standing and talking near the MG,
when their father came to them and told them to get into the car because they were going
to go "somewhere else" to get some white spirit (page 14). When asked how long
it was before her father came out to join them at the MG, she said "A few minutes.
About two minutes, one minute." At page 30, the following sequence took place:
45. Q. You were standing by the MG with L is that right?
46. A. Yeah.
47. Q. Where was Dad then?
48. A. Um, I think he was next to the Opel, next to our other car, But
I'm not sure. He, um, I don't know.
49. Q. And where was.
50. A I think he was outside as well.
51. Q. And where was he just before that?
52. A. With me, just, don't know, just (inaudible).
53. Q. Okay. Was he in the house with Billie at any time?
54. A. No. I was in the house and I saw her.
55. She stated that during the journey the appellant said that he was
willing to return home without buying the spirit, unless she (A) insisted that she wanted
to do some painting.
56. On 22 February, as we have said, investigating officers received the
preliminary view of the forensic scientists.
57. The appellant was then arrested on 24 February. He was interviewed
and then next day released on bail.
58. A was interviewed again on 25 February. She told the officers that
she had talked to the appellant about what had happened every day. She was asked further
questions about the events of 15 February. She said that on their return from the music
lesson, she went into the hall, and her father went "round the corner", and then
into the kitchen (page 25). Then the two of them and L went out of the house (page 18).
The appellant closed the door, and they walked down together and got into the car (page
13). He followed "a few seconds afterwards" (page 26). She was reminded that in
her first interview, she had said that she and L had waited outside the house a "few
minutes" for their father. She said (page 27) that it "really wasn't long, it
was like, it was really short. I think it was like an amount of time for someone to close
the door and lock it and then follow on afterwards". At page 29, however, she said
that she was not aware that he had locked the door, and she did not know where they were
going. She thought that they were going outside to wash the cars, and was unable to
explain why Billie had said good bye to them, or why her father had locked the door. The
first time she was aware that they were going to buy some white spirit was when they were
in the car (page 30/1).
59. On 25 February, the officers decided to tell Mrs Jenkins about the
bloodspots that had been found on the appellant's clothing. The relevant pocket book entry
reads: "Told them to feed into Mum". On the following day, Mrs Jenkins was
informed. The pocket book entry records that the officers spent two hours convincing her
that her husband had murdered Billie. It describes in vivid detail the distress that was
being suffered by Mrs Jenkins and the children.
60. In a statement of 3 March, Peter Gaimster, a neighbour, told the
police that A had said on 25 February: "You know, I think I was outside with L when
dad came out". On 3 March, Mrs Jenkins told the police that A had volunteered further
information. This included that it was odd that the appellant had run down the steps in a
bit of a funny mood, and had told the two girls to get into the car quickly. On 4 March,
Mrs Jenkins told the police that A had said that the appellant had been cross with Billie
for screaming at her over who should do the painting, that when she (A) had tried to get
back into the house from cleaning the car, the appellant would not let her, and that she
had formed the impression that he was trying to keep Billie and herself apart.
61. On 7 March, Mrs Jenkins made a statement to the police. She said
that the appellant had a bad temper, and had been violent towards her, and that he would
use a slipper or stick on A and L: all of them were afraid of him. The appellant was
arrested again on 13 March, and charged with obtaining a pecuniary advantage, namely his
post as a deputy head teacher, by deception. On 14 March, he was charged with murder.
62. Both charges attracted a good deal of media attention. The children
of the Jenkins family were hearing rumours at school. Mrs Jenkins had already told the
police of the appalling emotional effect the murder and the subsequent events were having
on her daughters. On 17 March, the police consulted Dr Bentovim, a consultant
psychiatrist, and Mrs Bentovim, a social worker and family therapist, about the
possibility of a further formal interview of A and L. Their advice was given orally on 17
March. They advised that Annie had had her own thoughts reconstructed by the appellant,
and now needed to have them deconstructed to allow what she knew to become evident. This
should be done in a "therapeutic rather than an evidential mode". The children,
therefore, needed a "debrief". The advice was confirmed in a report dated 21
March, at paragraph 9 of which, they said:
"As far as the future management is concerned, given that A has
made two statements which are contradictory, to carry out further interviews may very well
confuse her even more. It was felt in our meeting that it would be helpful to explain to
her the current situation, and what has led to the prosecution of her father in general
terms. It would be important for A to know that her statements that she made were not
responsible for the prosecution of her father, and she needs the opportunity to understand
something of the process which led her to make very different statements.,"
63. Agreement was reached between the officers and Ian Vinall (the
Jenkins family's social worker) as to how to proceed. They decided that the two children
would be told that, although their interviews had been helpful to their father, he had
been arrested following police tests that had been carried out on his clothing. They would
also be told that he had obtained his post as a deputy head teacher by falsifying his
qualifications, and that he had chastised them too severely. Mrs Jenkins agreed that this
approach should be adopted. She had already spoken to L about the forensic evidence, and L
was aware that blood had been found on her father's clothing.Agreement was reached between
the officers and Ian Vinall (the Jenkins family's social worker) as to how to proceed.
They decided that the two children would be told that, although their interviews had been
helpful to their father, he had been arrested following police tests that had been carried
out on his clothing. They would also be told that he had obtained his post as a deputy
head teacher by falsifying his qualifications, and that he had chastised them too
severely. Mrs Jenkins agreed that this approach should be adopted. She had already spoken
to L about the forensic evidence, and L was aware that blood had been found on her
father's clothing. Agreement was reached between the officers and Ian Vinall (the Jenkins
family's social worker) as to how to proceed. They decided that the two children would be
told that, although their interviews had been helpful to their father, he had been
arrested following police tests that had been carried out on his clothing. They would also
be told that he had obtained his post as a deputy head teacher by falsifying his
qualifications, and that he had chastised them too severely. Mrs Jenkins agreed that this
approach should be adopted. She had already spoken to L about the forensic evidence, and L
was aware that blood had been found on her father's clothing.
64. On 20 March, the officers spoke to all four daughters in the
presence of their mother. Mr Vinall was not present. As planned, they were told that their
father had not been arrested because of the interviews with A and L, but because of other
evidence. Tests had been carried out on his clothing, and there was strong evidence to
suggest that he had murdered Billie. In response to a question from one of the children,
the officer said that when a person was murdered, the police carried out a whole range of
tests. L then interrupted and said "you're talking about the blood on his clothes
aren't you?" The children were then told that there had been blood on his clothes.
65. The officers went on to tell the children that their father had not
been truthful when he got his job as a deputy head teacher. The children suggested that
perhaps he had made a mistake: they did not think that he would be untruthful on purpose.
Next, the officers raised the subject of the appellant's temper, and his excessive use of
violence on them when they were naughty. L became distressed, and defended her father,
saying that it did not even hurt them. When the police added that he used to hit their
mother, L said that this was not true, and she stormed out of the room in tears.
66. During the following four months, nothing occurred that is material
to the first three grounds of appeal. On 17 July, however, Mrs Jenkins reported to the
police the substance of a conversation that she had had the previous evening with A. She
said that A had told her that she knew that the appellant had had an argument with Billie
earlier on 15 February. A had also said that while she (A) had been cleaning the Opel car,
she had tried three times to come back into the house, and had been refused entry on each
occasion by her father; on their return from L's music lesson, she did not go into the
house at all, but was waiting by the MG when the appellant came running down the steps and
told both L and herself to get into the car; neither she nor L knew what was happening or
why. When they returned from their abortive drive, she said, the door was open; she
thought that this was because he had left in such a hurry that he did not have time to
close the door properly. She had also said that later on 15 February, her father said to
her: "we'll be alright; we were together weren't we, A?"
67. On 27 November 1997, Mrs Jenkins reported to the police that A had
told her, after the committal hearing earlier that month, that she could not recall going
into the house after returning home from the clarinet lesson, but that, if she did, it was
probably only as far as the hallway. A said she was pressured so much by the appellant
that she was unsure what to say.
68. On 22 December, there was another conversation between a police
officer and Mrs Jenkins. Mrs Jenkins reported that L had said that she could not recall
the exact details of her movements when she returned home from her clarinet lesson; her
father had tried not to give his jumper to the police the day after the murder; and that
she knew that he had killed Billie.
69. We can now turn to the three grounds of appeal.
70. The first ground of appealThe first ground of appealThe first ground
71. In support of his submission that there should be a stay of the
proceedings, Mr Scrivener QC argued before the judge as follows. The effect of L's account
in her interview was that she was with the appellant throughout the time between their
return home from the music lesson, and their departure to buy the white spirit. Likewise,
the account given by A in her two interviews substantially supported the appellant's
account that all three of them left the house together. Moreover, what the children said
in interview supported the appellant's account in a number of telling details. These
included what they said about the side gate being open, and the appellant's willingness to
abort the journey to buy the white spirit. It must, therefore, have been obvious to the
police that the two girls were important alibi witnesses for the defence.
72. The report of Valerie Mellor, a consultant clinical psychologist,
was relied on by the appellant in support of the application. She criticised the conduct
of the meeting of 20 March in a number of respects. She thought that it was inappropriate
to tell the children about the details of the tests that had been carried out on their
father's clothing; the police should not have said anything about his head teacher job,
about the fact that he had not been truthful about his education, or about his violence
towards them or their mother. Dr Mellor wrote that the effect of this would be to
influence the children's perceptions of their father:
" This could in fact work in one of two ways. The children may well
have been influenced to think in a negative way about their father or they may have
reacted by feeling overprotective towards him.
In either event, the effect of their evidence is very likely to be
detrimental, i.e., to change their perception and view of their father. This in turn is
likely to affect their recollection of the events of the day in question, i.e., would
adversely affect the reliability of their recollections when they came to give evidence in
73. Mr Scrivener submitted that the police embarked on a plan to
influence the two children to give evidence that was hostile to the appellant. This they
did indirectly by seeking on 26 February to persuade Mrs Jenkins of the appellant's guilt,
and then directly by the manner in which they conducted the debriefing session on 20
March. This was bound to taint the evidence of the children. It amounted to improper
conduct on the part of the police.
74. Reference was made to R v Horseferry Road Magistrates' Court ex
parte Bennett  1 AC 42, and in particular the passage at page 74G, where Lord
"a court has a discretion to stay any criminal proceedings on the
ground that to try those proceedings will amount to an abuse of its own process either (1)
because it will be impossible (usually by reason of delay) to give the accused a fair
trial or (2) because it offends the court's sense of justice and propriety to be asked to
try the accused in the circumstances of a particular case. I agree that prima facie it is
the duty of a court to try a person who is charged before it with an offence which the
court has power to try and therefore that the jurisdiction to stay must be exercised
carefully and sparingly and only for very compelling reasons."
75. Mr Scrivener submits that it was the inevitable result of the police
conduct on 20 March 1997 that the evidence of A and L would be undermined. This conduct
amounted to an interference with the administration of justice, such as to bring the case
within the second of Lord Lowry's two categories of abuse of process.
76. Alternatively, the conduct of the police deprived the appellant of
two crucial alibi witnesses, so that it was not possible for him to have a fair trial: the
first of Lord Lowry's categories. The prosecution did not intend to call the girls as
witnesses. If they were called as defence witnesses, the prosecution would be able to
cross-examine them, in the knowledge that the police officers had influenced them against
77. In a careful and detailed judgment, the judge dismissed the
application to stay the proceedings. He rejected the submission that the officers' conduct
at the meeting of 20 March so offended the court's sense of justice and propriety that the
proceedings should not be allowed to continue. Even allowing for Dr Mellor's criticisms,
the conduct of the police came nowhere near the sort of conduct that fell within the first
of Lord Lowry's two categories. There was no evidence of bad faith, and all that was done
was disclosed to the defence.
78. The judge next turned to the question whether the appellant had been
deprived of the evidence of two crucial witnesses, so as to lose the right to a fair
trial. He said that he was not satisfied on the balance of probabilities that it was the
session of 20 March that caused the girls to turn against their father. First, he noted
that the three memoranda which recorded what A said all dated from the period between 25
February and 20 March. They showed that A was already becoming more hostile to her father
before the meeting of 20 March. The judge refused to infer that this was because the
police had "brainwashed" Mrs Jenkins into believing that her husband had
committed the murder.
79. Secondly, he said that the fact that there was an interval of four
months between the meeting of 20 March and A's conversation with her mother on 16 July
showed that it was not the debriefing session which caused the girls to change their
evidence. On the contrary, in the case of L, it was clear that at the meeting of 20 March
she took her father's side.
80. Thirdly, he dealt with Mr Scrivener's point that the report of Dr
Mellor showed that the effect of the session on 20 March would be to make the evidence of
the children unreliable. He said that he did not know what evidence they would give if
they were called. Even if he were to assume that they would give evidence that was hostile
to the appellant, then, notwithstanding the evidence of Dr Mellor, he was not satisfied
that the evidence would be untruthful, or that if it was untruthful this would be because
of the conduct of the police officers.
81. Has the court's sense of justice been offended?Has the court's sense
of justice been offended?Has the court's sense of justice been offended?
82. Before this court, Mr Scrivener has substantially repeated the
submissions that he made to the judge. He argues that the judge was wrong to hold that the
conduct of the police fell short of the type of conduct referred to in Lord Lowry's first
category. We do not agree. The essence of Lord Lowry's first category is that there has
been a serious abuse of executive power, such that, although a fair trial is possible, it
is an affront to the public conscience to allow the trial to proceed: see, for example,
per Lord Griffiths in ex parte Bennett at page 61H-62C. It has been said many times
that the jurisdiction to stay proceedings an abuse of process should be exercised very
sparingly indeed. As Lord Lane CJ said in Attorney-General's Reference (No 1 of 1990)
95 Cr App Rep 296, 302:
"Stays imposed on the grounds of delay, or for any other reason,
should only be employed in exceptional circumstances. If they were to become a matter of
routine, it would only be a short time before the public, understandably, viewed the whole
process with suspicion and mistrust."
83. In our judgment, even greater caution needs to be exercised before
the court stops proceedings on the grounds of abuse of process where the conduct of which
complaint is made has not prevented the defendant from having a fair trial. In such a
case, it is most unlikely that an application for a stay of proceedings will succeed if
the conduct complained of was both lawful and in good faith. In the present case, the good
faith of the police has not been challenged, and their conduct was not unlawful. There was
nothing unworthy or shameful about the conduct of the police. The decision to have a
debriefing session has not been criticised.
84. The judge said that it might have been better if the police officers
themselves had not conducted the session of 20 March, and if matters such as the
appellant's alleged deception to obtain his teaching post, and violence towards the
children and their mother had not been mentioned. We agree, and would be inclined to
express our concerns about this aspect of the investigation rather less circumspectly.
85. However, we have no hesitation in rejecting the suggestion that the
police embarked on a deliberate campaign to influence the children and taint their
evidence so as to damage the defence of the appellant. They were entitled to seek to
persuade Mrs Jenkins that her husband was the killer. On the basis of the findings of
Billie's blood on his clothing, the case reasonably appeared to them to be overwhelming.
They knew that she had further information to give them about the appellant. We can find
nothing to criticise in the manner in which the police conducted their inquiries of Mrs
86. We reject the suggestion that the objective of the police on 20
March was to persuade the children that their father was the murderer. The reason for the
debriefing session of 20 March was to carry into effect the advice of Dr and Mrs Bentovim.
As we have already said, there is no criticism of the decision to have a debriefing
87. We have no hesitation in agreeing with the judge that case does not
fall into the first of Lord Lowry's categories. On the assumption that the 20 March
session did not make it impossible for the appellant to have a fair trial, we are quite
satisfied that to allow this trial to proceed was not an affront to the public conscience.
88. Was a fair trial impossible?Was a fair trial impossible?Was a fair
89. The remaining submissions of Mr Scrivener under the first ground of
appeal are all directed to establishing that the judge was in error in concluding that the
session of 20 March did not make a fair trial impossible.
90. First, he challenges the judge's finding that the session of 20
March did not cause the girls to change their evidence. In our judgment, there was ample
material to justify this finding of fact by the judge. Of particular significance is the
statement on 4 March that A tried to get into the house from cleaning the car, and the
appellant would not let her in. But as we have seen, the judge also relied on the fact
that there was an interval of four months between 20 March and 16 July to negative any
causal link between what was said to A on 20 March and the hostility to her father as
evidenced by what she said on 16 July. In our judgment, he was entitled to do so. It is
true that there is far less material as to L's state of mind. But the judge took into
account the fact that (a) her reaction at the meeting of 20 March was to protect her
father, and (b) nine months elapsed between 20 March and the date when, on the evidence,
she first indicated a position that was hostile to her father. In our judgment, this was a
conclusion that he was entitled to reach on the evidence, and we see no reason to disagree
91. Mr Scrivener's second complaint is that the judge erred in holding
that the evidence of Dr Mellor was inadmissible on the issue of the reliability of the
children's evidence following the session of 20 March. But even if Mr Scrivener is right
about that, it does not avail the appellant. This is because, as we have already said, the
judge went on in any event to decide the issue on the assumption that it was right to take
Dr Mellor's evidence into account.
92. The next criticism is of the statement by the judge (Tr 18D) that
this was not a case where a witness was prevented from giving evidence. It is submitted
that the defence were put in an impossible position as a result of the conduct of the
police. They could not be expected to call young witnesses who had been subjected to
pressure by the police, where there was a serious risk that they had been influenced
against their father. The short answer to this is that, for the reasons already given, the
judge was entitled to find that, if the children had given evidence which was adverse to
their father, this would not have been brought about by the conduct of the police.
93. The second ground of appeal
94. Mr Scrivener applied to the judge for an order that the prosecution
be directed or invited to call A and L at the trial. The judge refused the application.
Reference was made to the principles stated by this court in R v Russell-Jones
 1 Cr App R 538. At page 544, the fourth principle is stated in these terms:
"The next principle is that the prosecution ought normally to call
or offer to call all the witnesses who give direct evidence of the primary facts of the
case, unless for good reason, in any instance, the prosecutor regards the witness's
evidence as unworthy of belief. In most cases the jury should have available all of that
evidence as to what actually happened, which the prosecution, when serving statements,
considered to be material, even if there are inconsistencies between one witness and
95. The video recordings of the interviews of A and L were not served by
the prosecution on the defence as part of the committal bundle. They were served as part
of the unused material. The judge ruled that for that reason he should not invite
the prosecution to call the two girls. He went on to say that, even if he was wrong in
drawing a distinction between cases where statements were served as part of the committal
bundle, and cases where they were not, he would not have invited the prosecution to call
the two girls. Mr Camden Pratt QC had made it clear to the judge that the prosecution had
taken the view that "in so far as the video evidence supported the defence case, it
was not credible, not because the girls were dishonest, but because they were simply wrong
or confused". The judge concluded that the decision taken by the prosecution not to
call the two girls was one which it was entitled to take. It was an exercise of discretion
with which he was not prepared to interfere.
96. Mr Scrivener puts his argument in two ways. First, he submits that
the judge misdirected himself by failing to take into account the fact that it was conduct
on the part of the police that made it impossible for the defence to call the girls at the
trial. Secondly, and in any event, he submits that the judge's decision was plainly wrong,
because A and L were crucial witnesses, and it was essential, if there was to be a fair
trial, that their evidence be heard by the jury. Since it was impossible for the defence
to call them, there was no alternative: they had to be called by the prosecution or by the
97. As was pointed out by this court in R v Brown  1 Cr App
R, 112, 113A, this is a difficult ground of appeal to sustain, because what the court is
being asked to review is the exercise of a discretion by the trial judge, where the trial
judge himself is reviewing the discretion of the prosecutor.
98. Mr Scrivener's first submission founders on the rock of the judge's
finding that the conduct of the police did not cause the girls to change their evidence.
Mr Scrivener makes the point that this finding was made in the ruling on the application
to stay the proceedings. But in our view that is a barren point: the two rulings were made
on the same day. The finding completely undermines Mr Scrivener's first submission.
99. As for his second submission, Mr Scrivener has come nowhere near
satisfying us that the judge was plainly wrong in the view that he took of the
prosecutor's exercise of discretion. The prosecutor was entitled to regard the accounts
given by the children in video interview as confused or wrong, and therefore unbelievable
in so far as they supported the appellant's alibi. It is worth recalling that it was Dr
and Mrs Bentovim who advised the police that there should be a debriefing because A had
had her own thoughts reconstructed by the appellant, and that her thoughts should be
reconstructed in a "therapeutic" rather than "evidential" mode. The
subsequent shifts in the accounts of the girls did nothing to make them any more credible
as witnesses in the eyes of the prosecution. In our judgment, the judge was quite right to
decide that this was a case which fell within the fourth of the principles stated in Russell-Jones.
100. As regards the suggestion that the judge should have called the
girls himself, there was, in our judgment, no basis for adopting what would have been a
wholly exceptional course in this case. There was nothing to prevent the defence from
calling the girls themselves, nor, if it was thought appropriate, from cross-examining the
officers who conducted the session of 20 March 1997. Once it is accepted that the
hostility of the girls to their father was not brought about by any improper conduct by
the police, there was no justification for treating them differently from any other
witness. We reject the second ground of appeal.
101. The third ground of appeal
102. Neither A nor L gave evidence at the trial. The judge, quite
properly, directed the jury that they should not speculate as to the reasons why they were
not called. He added:
"There is no evidence from them and that is an end of it. I can
tell you this, that under our law no one side has the exclusive right to call a particular
witness, either side may call a witness. Mr Scrivener is, of course, right to point out
that the burden of proof lies upon the prosecution, but equally it is right that I tell
you that the defence as well as the prosecution have a right to call a witness".
103. Mr Scrivener submits that it was a misdirection and unfair to the
appellant to add these words, since the conduct of the prosecution had made it impossible
for the defence to call the girls. We have already rejected the argument that the conduct
of the police made it impossible for the defence to call the girls. In any event, the
judge was right to make the position clear to the jury. They might have wondered why the
children were not called, and what significance there was in the failure of either side to
call them. They might have thought that only the appellant (as their father), or only the
prosecution could have called them, or they might have thought, in the unusual
circumstances of this case, that neither side could call them. It was important that the
jury should be told the true position. This the judge did in a clear, and balanced manner,
reminding the jury that the burden of proof remained on the prosecution. In our view,
there is no substance in this ground of appeal.
104. 6.Ruling in relation to DC Hutt.
105. The appellant takes issue with the judge's decision to admit in
evidence part of an interview with the appellant on 24 February 1997, during the course of
which reference was made to what the appellant was alleged to have said to D.C. Hutt on 15
February 1997. Earlier in the trial, the judge had ruled inadmissible D.C. Hutt's evidence
of what the appellant had said to him on that earlier occasion, after submissions that
D.C. Hutt's contemporaneous notes of what the appellant had said to him did not purport to
be a recollection of the actual words of the appellant but had been altered to some extent
by the officer when, as the officer put it "I placed them in condensed note fashion
in a logical order of events". They were notes in fact prepared for the purposes of a
long witness statement which was subsequently made and signed by the appellant. The
judge's ruling was as follows: "Not without a certain amount of hesitation I have
concluded that it would be wrong to admit this evidence. I base myself on section 78 of
the Police and Criminal Evidence Act. It seems to me that where the officer is saying that
he is using his own words for the purpose subsequently of making a witness statement for
the defendant to sign, it would not be right for that matter to go before the jury; a
witness statement was subsequently made" (transcript of ruling 8 June 1998 page 18E -
F ). Additionally the judge indicated at a later stage that one of the reasons for his
ruling was that it would have been unfair for the notes to be admitted in evidence when
the appellant might reasonably have expected to have had the opportunity of reading them
through to see if they were accurate before signing them, something he had not been asked
to do (transcript of ruling 17 June 1998 page 1D - F).
106. On 24 February 1997 the appellant was interviewed at length in the
presence of his solicitor. He was asked whether he had told D.C. Hutt on 15 February that
he had not gone into the house on his return from collecting L from her clarinet lesson
and he agreed that that was what he had said. It was the prosecution case that the
appellant's remark that he had not gone into the house at that time was a significant lie
to distance himself from the murder. During the course of the summing up, the judge gave a
careful direction about lies which is not criticised and reminded the jury of the
appellant's evidence that he had been into the house at the material time. The jury were
also reminded of the appellant's explanation that if he had said to D.C. Hutt that he had
not been in the house, either he or the Detective Constable had made a mistake or had been
107. The judge's decision to exclude the earlier evidence appears to
have been based on unfairness, first because the wording of the note was not the
appellant's and secondly because he was given no opportunity to confirm its accuracy.
108. It is clear that on the later occasion the appellant was given the
opportunity that he had earlier been denied to confirm the accuracy of D.C. Hutt's
evidence. He confirmed that the evidence was accurate. It has further been submitted in
argument that one reason for the judge's earlier ruling was that the notes were of
conversations preparatory to the making of a formal witness statement. It is not clear
whether that was one of the judge's reasons for excluding the evidence but in our judgment
such a reason would provide no basis for exclusion. As for the later interview, there was
no possible unfairness to the appellant in admitting the evidence and there was equally no
basis for excluding it.
109. Before we turn to the Confusion Issue it is convenient to deal with
the fourth issue we have identified.
110. 7.Other points in the Summing-Up.
111. The judge is criticised for failing to remind the jury in the
summing up of one aspect of the appellant's evidence, namely his suggestion that he had
pulled and subsequently pushed the deceased's shoulder when he went to her, causing her
head to move. It is submitted that it was important to remind the jury of this evidence as
it increased the likelihood of expiration of blood onto the appellant's clothing. During
the summing up, the judge reviewed at length the appellant's witness statement, interviews
and evidence. At page 105A he said this: "In his evidence he explained how he saw
Billie Jo and when he saw her he said his world collapsed. At one stage he bent down to
her, at one stage he went back to the children and at another stage he made a telephone
call, the 999 call. On one occasion he pulled her by the right shoulder from the dining
room side. He said in evidence that was the first thing he had done when he saw her. At
another, he pushed her standing from the garden side or kneeling from the garden side. He
said in evidence he had no recollection of Billie Jo breathing. He saw a bubble in her
nostril but never saw the piece of the bin liner up her noise. He agreed that what he said
in his statement was true, that is the witness statement, exhibit 77, but he said he could
not remember the chronological order that the events had occurred. He accepted that at no
stage has he ever said that Billie Jo was lying on her back breathing, nor has he any
recollection of her exhaling." In our judgment the way in which the Judge dealt with
the appellant's statement, interviews and evidence was full, balanced and fair and there
is no basis whatever for this particular criticism.
112. It is further submitted on behalf of the appellant that the judge
failed to deal adequately with the evidence relating to the suggestion that blood had been
found on the steering wheel of the MG, and with the fibre evidence. As to the first, the
judge said (at transcript page 59F of the summing up) "The MG car : there was no
blood, save the inside rubbing with tissue produced a chemical reaction which could have
been blood, but there was no visible sign of blood and even if this was blood, he could
not say when it got there. It could be from some other time and something else." It
is suggested on the appellant's behalf that reference should have been made to Mr. Wain's
evidence that he had been unable to repeat any test because the first test had removed the
substance. In our judgment the judge's brief summary of the evidence was accurate and
adequate. As to the fibre evidence, the judge summarised the position in a few lines at
transcript 59D - F. Again in our judgment the summary was accurate and dealt adequately
with the evidence on this subject.
113. It is further submitted on behalf of the appellant that against the
background of prosecuting counsel describing (both in cross examination and in his final
speech) the appellant's relationship with the deceased as "a complex
relationship", it was incumbent on the judge to remind the jury that there was no
evidence of misconduct by the appellant towards the deceased. The judge did remind the
jury of tensions in the family involving the deceased and the appellant and his wife on
the one hand and the deceased and the natural children on the other. Equally he reminded
them of the evidence that the deceased had not been sexually assaulted and was not
sexually active. In our judgment there is no basis for the criticism that is made.
114. It is also suggested that the judge failed to remind the jury of a
point made on the appellant's behalf that the tent peg used as the murder weapon must have
been taken from the top of the coal bunker some way away from the position in which the
deceased had been painting, and that in order to get there the appellant would have had to
pass tools and potential weapons which were on the table next to the deceased. Apart from
his careful review of the evidence in the case, the judge (at pages 109B -110G) summarised
the essence of counsels' submissions for the prosecution and for the defence. He said that
it was difficult to summarise the arguments of counsel and indicated to the jury that they
should have them all in mind. He concluded with these words: "As I say, those are
only some of the very many arguments that were put before you and which you will no doubt
wish to consider and consider very carefully when arriving at your verdict." It is
not incumbent upon a judge in summing up to remind the jury of every point made. In our
judgment the judge's approach was sensible, balanced and fair and there is equally no
basis for this final criticism.
115. 8.The Confusion Issue.
116. Mr Scrivener QC, for the appellant, submits that when Mr McAughey
and Professor Douglas gave evidence at the trial there was some confusion in the use of
medical terms and figures. It was not satisfactorily resolved, and was carried forward
into the summing-up.
117. In order to explain this point it is necessary to state what may be
described as the textbook position. It is conveniently set out in a part of Professor
Denison's report of 3rd June 1999 which part is now agreed to be correct. At rest an adult
male takes about 12 half litre breaths per minute, so he processes about 6 litres of air
per minute. That is known as minute volume. As each breath is both inhaled
and exhaled the average flow of air is twice the minute volume (i.e. 12 LPM) and the rate
of flow is not even. It rises to a peak flow which is about three times the minute
volume, and that relationship of peak flow to minute volume applies at all levels of
regular breathing. On mild exertion the minute volume rises two or three fold, and on
maximum exertion it can rise twenty fold, so, for example, it would only require mild
exertion (3 x 6 litres minute volume) to produce a peak flow of 54 LPM.
118. We now turn to the evidence. When giving evidence in chief Mr
McAughey said that to expel blood to spatter targets set 40 and 60 cm away it was
necessary to have an air flow (i.e. peak flow) of 55 LPM. He then volunteered that peak
flow for ordinary breathing would be typically of the order of 30 LPM for each of the five
half litres breaths per minute which he envisaged (transcript 10D). In fact if the minute
volume of 5 litres was multiplied by three the peak flow would be only 15 LPM but, as we
have indicated, the peak flow could easily rise to 30 LPM without the breathing becoming
in any way extraordinary. Mr McAughey was then asked questions about exercise, and he said
that above 35 LPM "you will find that the air will split so that more of the air
comes in and out through the mouth ..... because the nostrils are fairly small there is a
limit to the amount that will comfortably come in, and so you start to make up the air
from the mouth." That was a potentially confusing way in which to adduce the
evidence, because there was a shift from peak flow (30 LPM) to minute volume (35 LPM)
without it being made clear that different types of measurement were being considered. In
due course the evidence of Mr McAughey was put to Professor Douglas by the judge, and he
agreed with Mr McAughey.
119. 'Q. At 55 LPM are you into the area of exercise or is that not
120. A. I think you are; and of course you could then move over to this
nose to mouth breathing.
121. Q. Well, that is the next thing I wanted to ask you about, because
he (Mr McAughey) went on to say: "when you are breathing at 35(sic) litres a minute
you start to breath through your mouth to make up for the air that is required to breath
at that rate"?
122. A. Yes. It is really a matter of overcoming the nasal air-flow
123. Leading counsel for the defence was then permitted to ask further
questions, but did not address the confusion which is now put in the forefront of the
case. Mr Camden Pratt QC, for the Crown, submits that was because this was not really
regarded as an important aspect of the case.
124. When he came to sum-up, the judge, as is now conceded, accurately
set out what the witnesses had said. At 88G he said -
"I think during the course of his address to you Mr Scrivener said
that the professor had said that 55 litres per minute was equal to normal breathing. In
fact the professor said that 55 litres per minute was about twice the speed of normal
breathing, which he accepted was 30 litres per minute. At 35 litres per minute you start,
as I have told you, he said, to use your mouth. He agreed with Mr McAughey on this."
125. At 93G, when reviewing the evidence of Mr McAughey, the judge said
"To produce the exhalation of droplets to 60 cm distance requires
55 litres per minute of peak flow. 30 litres is the norm. 35 litres per minute of peak
flow requires the mouth to be used to inhale and exhale as well as the nose. His tests
showed that 2.7 litres is required to be exhaled in 2 seconds to get the equivalent blood
spatter in this case, and that is in the region of 80% of Billie Jo's vital
126. At the end of the summing-up Mr Scrivener questioned whether the
judge was right in his recollection of the evidence of Professor Douglas. As the judge was
right no correction was made, but Mr Scrivener now contends that on an issue which
"went to the heart of the case" there was some confusion.
127. In reality of course the underlying complaint is that two the
expert witnesses did not say what it is now contended that they should have said, so this
is really, if anything, a fresh evidence point. The witnesses were allowed to say what
they wanted, and what they did say was accurately reproduced in the summing-up, so there
was no confusion in the legal process, but they both now say that they were wrong, or at
least what they said was capable of being misunderstood. Mr McAughey now accepts that
nasal breathing through a single nostril can allow a peak flow of 55 LPM without an
obligatory switch to mouth breathing, and that a degree of confusion has been caused by
comparing a minute volume of 35 LPM with a peak flow from a single breath of 55 LPM.
Evidentially the position is, to say the least, unusual. Although we have an affidavit
from Professor Douglas dated 18th November 1999 we were not asked to hear him, and so far
as we know there is no agreement that we should, if so minded, receive his evidence on
affidavit and treat it as part of the evidence in this case. Mr McAughey was called before
us as a witness, but in order to deal with other matters, and so technically it can be
said that we have no proper evidential basis on which to proceed in relation to this
point. But as the factual position seems now to be clear, and not to be in dispute. In our
judgment it is unfortunate that the two relevant expert witnesses did not when giving
evidence maintain at all times the sharp distinction between peak flow and minute volume.
Their failure to do so may have misled the jury, as it misled the judge, on the question
of whether or not, in the opinion of the experts, in order to obtain a peak flow of 55 LPM
it would be necessary to breathe by both nose and mouth. Mr Scrivener, in his skeleton
argument, puts it this way, that the jury may have been led to believe that the only way
the victim could have produced blood spots was if she had been breathing so hard that she
would have been breathing through the mouth and nose. But, as Mr Scrivener himself pointed
out, Professor Douglas made the point time and time again that what mattered was not the
volume but the peak flow from a single breath. He said that 55 LPM was a "relatively
low peak flow" which was "closer possibly to normal breathing." He regarded
the 2.3 litres of air exhaled by Mr Webster as a "red herring". All of that was
brought to the attention of the jury, and it is therefore at least possible that the
mistakes made by the experts which we have identified did not have any real effect at all.
The defence did demonstrate that a peak flow of 55 LPM could project onto a target blood
spattering broadly similar to that found on the appellant's clothing, but at the trial
save for what was said initially by Professor Douglas no serious attempt seems to have
been made to explain how a peak flow of 55 LPM could be obtained without at least one
substantial inhalation and exhalation of breath, and nothing of that sort was observed.
Indeed it is at the heart of Professor Denison's thesis that the experts who gave evidence
at the trial failed to recognise the significance of the hyper-inflated lungs and
"did not ask themselves the essential question, namely, what is the smallest size
nasal valve that should be taken into account, and thus what is the smallest volume and
flow, of a single exhalation, needed to generate blood droplets and project them 50 cms or
more". We therefore doubt whether, even in isolation, the mistakes made by the
experts rendered the conviction unsafe. It is not, however, necessary to decide this issue
since we have now heard a good deal of fresh evidence, and our function must now be to
decide whether in all the circumstances (which include the fresh evidence) we think that
the conviction is unsafe. The exhalation theory has been developed by the defence in a
much more detailed and sophisticated way than it was at the trial. It is to that evidence
that we now turn.
128. 9.The Fresh Evidence Issue.
129. The power of this court to receive fresh evidence is limited, and
is to be found in section 23(1) of the Criminal Appeal Act 1968. We may receive any
evidence which was not adduced in the proceedings from which the appeal lies if we think
it necessary or expedient to do so in the interests of justice. That wide discretionary
power is subject to section 23(2) which 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
grounds 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."
130. We were invited by Mr Scrivener to receive evidence from Professor
Denison, who was not instructed until March 1999, long after the conclusion of the trial,
and who then began to carry out the series of experiments to which his two reports refer.
Mr Camden Pratt submitted that we should not even hear the evidence, because it represents
no new break-through in scientific knowledge. It is simply fine tuning of a defence which
was run unsuccessfully at trial, and in reality the evidence of Professor Denison could
have been obtained just as easily before trial as after it. In our judgment there is
considerable force in that submission, which focuses on section 23(2)(d) of the 1968 Act.
We recognise that in a case such as this lawyers acting for the defendant within a tight
time scale and with a lot of material to consider may have considerable difficulty in
identifying the nature of the expertise required, obtaining authority to instruct
appropriate experts, locating appropriate experts who can make themselves available, and
then obtaining reports which can be disclosed, but, as Edmund Davies LJ said in Stafford
(1968) 3 All E R 752 -
"Public mischief would ensue and legal process could become
indefinitely prolonged were it the case that evidence produced at any time will generally
be admitted by this court when verdicts are being reviewed."
131. We concluded that as Professor Denison does not simply echo the
evidence given at trial but has done a lot of work of his own, as his reports indicate,
his evidence should be heard. We heard his evidence initially de bene esse, and on
the same basis heard evidence in response from Dr Hill, Mr Wain, Mr McAughey and Professor
Widdicombe, to which the appellant responded with further evidence from Mr Sinar, Mr
Campbell and Professor Denison. Having heard that body of evidence from reputable experts
we were satisfied as to paragraphs (a), (b) and (c) of section 23(2). We were not, and are
not, satisfied that there is a reasonable explanation for the failure to adduce the
evidence of Professor Denison (and if considered necessary that of Mr Campbell) at the
trial. Nevertheless we have decided that in this particular case it would be expedient in
the interests of justice for all of the evidence to be received.
132. In Stafford v D.P.P.(1974) AC 878 the House of Lords
considered the approach to be adopted by this Court where fresh evidence is admitted. At
907 E Lord Cross said -
"It is to be remembered that in many fresh evidence cases the court
does not commit itself to any view of its own as to the effect of the fresh evidence. At
one end of the scale there are cases where the court will say:
'this fresh evidence puts such an entirely new complexion on the case
that we are sure that a verdict of guilty would not be safe. So we will quash the
conviction and not order a new trial.'
At the other end of the scale there will be cases where the court will
say, as it said in effect in this case:
'the fresh evidence though relevant and credible adds so little to the
weight of the defence case as compared with the weight of the prosecution's case that a
doubt induced by the fresh evidence would not be a reasonable doubt. So, we will leave the
But in many cases the attitude of the court will be:
'We do not feel at this stage sure one way or the other. If this fresh
evidence was given together with the original evidence and any further evidence which the
Crown might adduce then it may be that the jury - or we, if we constituted the jury -
would return a verdict of guilty but on the other hand it might properly acquit. So we
will order a retrial.'"
133. Mr Scrivener has made no secret of the fact that a retrial is the
remedy which he seeks.
134. In R v McIlkenny (1991) 93 Cr App R 287 Lloyd LJ, giving the
judgment of the court, emphasised the primacy of the jury in our criminal justice system,
and said at 311 that this court "is perhaps more accurately described as a court of
135. In the recent unreported case of Clegg Carswell LCJ, giving
the judgment of the Court of Appeal in Northern Ireland, considered the authorities to
which we have just referred and then said at page 22 of the transcript -
"It is not for an appellate court to attempt to resolve conflicting
issues of fact or opinion, which remain the province of the criminal court at first
instance, to be determined by the jury or, in a scheduled case, the judge. The Court of
Appeal may reach one of several possible conclusions:
(1) it may consider that the fresh evidence is not, after testing, such
as to be reliable and capable of belief (this would more usually apply in cases of a
conflict of factual rather than expert evidence). In such case the conviction would be
regarded as safe and the appeal would be dismissed.
(2) The court may regard the fresh evidence as conclusive in the
appellant's favour, in which case it will simply quash the conviction.
(3) It may conclude that the impact of the fresh evidence on the case is
not conclusive but is such that, taking all the evidence given both at trial and on appeal
together, it cannot resolve one or more conflicts of fact or opinion. If it considers that
a reasonable tribunal of fact might properly resolve the conflict in favour of the
appellant, and so be left with a reasonable doubt about his guilt, the court should then
allow the appeal and quash the conviction, giving consideration to the question whether to
order a new trial."
136. That formulation does, on first reading, suggest that once fresh
evidence is found to be reliable and capable of belief an appeal must be allowed, but that
would be inconsistent with Lord Cross, and was plainly not what the Lord Chief Justice
intended because in the next paragraph of his judgment he said -
"We consider that we should look at the whole of the evidence
given, both at trial and on appeal, and determine whether it leaves us with matters which
cannot be resolved by the court and which if they were to be resolved in the appellant's
favour could give rise to a reasonable doubt about his guilt. If so, the conviction should
be regarded as unsafe and should be quashed. If, on the other hand, as the Crown
contended, there is no reasonable doubt about the safety of the conviction after
consideration of all the evidence, then it should stand."
137. Bearing in mind the words of section 2 of the Criminal Appeal Act
1968, as amended, which require us to allow an appeal if, and only if, we think that the
conviction is unsafe we turn now to look at the fresh evidence and to consider its effect.
Does this case come within the second or the third of the three categories identified by
Lord Cross? No one seriously contends that it falls within the first of his categories.
138. Professor Denison built, or had built for him, a model which is
well illustrated in his reports, and which consists in essence of a three litre syringe
feeding into a tube which leads to a small nozzle. The syringe is intended to represent
the lungs of the deceased, and the nozzle her nasal valve. With that equipment Professor
Denison performed 85 experiments initially which showed that when three drops of fresh
blood were placed behind the exit opening a brief (1 tenth of a second) pulse of low
pressure (15 mm. Hg) displacing 63 ml. of air (about half a wine glass) was sufficient to
fragment the drops of blood and propel them over 1 metre distant. If the nozzle was angled
30 degrees upwards the droplets reached a height of 85 centimetres above ground level at a
distance of half a metre.
139. Experiments were also conducted on female volunteers of the
deceased's build, lying on a firm examination couch. They were picked up by the shoulders
and then released. The result was the passive expulsion of about half a litre of air from
140. Professor Denison initially interpreted the reference to
hyper-inflation in Dr Hill's post mortem report as an indication that the lungs were a
little over three quarters full, with a volume of 3½ litres (out of a total of 4.2 litres) and a recoil pressure 15mm Hg. His
conclusion was that transient release of an upper airway obstruction sufficient to release
50 to 65 ml of air via a bloody nostril could generate the blood spatter pattern found on
the appellant's clothing. Although when making submissions to us Mr Scrivener contended
that the site of the obstruction was immaterial, that was not what Professor Denison said
in the witness box. In answer to Mr Camden Pratt he said that he envisaged a block at the
level of the nasal valve because if the blockage was far down the pressure would have
dissipated, and at the very end of his evidence, in answer to a question from Mr Justice
Penry-Davey, the professor said that all of his experiments were postulated on a blockage
and release at nasal valve level. The exhalation which he envisaged would be passive,
brief, inaudible and invisible, and it could have occurred even after death.
141. The equipment used by Professor Denison was criticised on the basis
that it did not sufficiently represent the respiratory organs of the deceased, so he made
modifications, and then conducted further tests, principally to allow for the effect of
the nose. Those tests showed that with the nozzle at 20 centimetres above the ground, and
a small amount of blood introduced close to the nasal valve, a brief 15 mm Hg pulse of air
could project 150 droplets of blood onto a vertical screen 50 to 55 centimetres away,
rising to a height of 47.3 centimetres (when the nozzle was tilted at 30 degrees) and to a
height of 62.3 centimetres (when the nozzle was tilted at 45 degrees). Professor Denison's
overall conclusion was and is that the blood spattering found on the clothing could have
been caused by a brief passive or transiently active expiration. Further tests which he
and Professor Widdicombe performed when they visited Mr McAughey's laboratory at Harwell
are said by Professor Denison to confirm that the results that he achieved by use of his
model "are seen in real life". Those tests included measurement of the angle at
which air leaves the nose (between 30 degrees and 45 degrees to the line of the body), and
measurement of the height of the upper nostril when a model head is laid on one side
parallel to the ground (10 centimetres).
142. The fresh evidence from Mr Sinar and from the other neuro-surgeon
Mr Campbell, in so far as it relates to expectation of life after injury, adds nothing to
what was said by Mr Sinar at the trial, but there was some amplification of Mr Sinar's
original evidence that even the seriously injured and unconscious have a desire to live,
and will snort, sneeze or cough in an attempt to clear airways. This, said Mr Campbell,
may progress, (as Mr Sinar said at the trial) to Cheyne Stokes respiration, where a period
of deep harsh respiration gradually diminishes in frequency and depth and then, after a
pause, the process is repeated. Mr Campbell asserts that when so afflicted the patient
could easily expel 2.3 litres of air. The neuro-surgeons also dealt with the possibility
that it may become impossible to breathe by mouth. Patients with serious head injuries
often have clenched teeth, and the tongue can become so positioned as to seal off the
airway. Mr Sinar submits that may have happened in this case, but until the ambulance crew
arrived the deceased was never on her back, and when he was summoning for assistance by
means of a 999 call the appellant spoke of blood coming from Billie's mouth, which does
suggest that at that stage the mouth was open.
143. Dr Hill found no evidence of any obstruction of the upper airways
of the deceased, and nothing to suggest a sudden removal of a blockage so as to allow a
brief exhalation, which was then terminated by a further blockage. At higher levels the
size of the blockage would have to be significant. To block the trachea would require an
obstruction approximately the size of a cork to a wine bottle. He attributed the
hyper-inflation of the lungs to the obstruction by blood of the small lower airways. This,
he said, was not an uncommon finding.
144. Mr Wain pointed out that when he had a female volunteer on the
floor with her body laid out in the position in which Billie was found (as illustrated in
the photographs AW/5) pushing and pulling the shoulder did not raise the head of the
volunteer significantly above the floor, even when considerable effort was applied. The
head being heavy it tended to stay on the floor, with the shoulders rotating at the neck.
The distance between the nose of the volunteer and the ground was measured and found to be
no more that 10 centimetres, half of the height at which the nozzle was placed by
Professor Denison for the purposes of his experiments. Even if one adds an inch, to allow
for the position in which Denise Franklin placed the head of D.C. Groombridge the result
is still only 12.5 cm. Again by reference to his own experiments, Mr Wain saw no reason to
postulate the nostril being tipped up at an angle of 30 to 45 degrees to the horizontal.
The nostril of D.C. Groombridge was certainly not tipped at anything like that angle.
Squatting beside the volunteer Mr Wain measured the distance between the nape of his neck
and the floor. That distance was 84 centimetres, significantly higher than any blood
spattering height achieved by Professor Denison. Mr Wain's build is roughly the same as
that of the appellant, and the highest marks on the appellant's clothing were at neck
level. Mr Wain emphasised, as he did at the trial, that the fine spattering which he found
on the appellant's clothing was what he would expect to find if the appellant were the
attacker, but on some at least of Professor Denison's target sheets there were blood spots
which were significantly larger.
145. Mr McAughey's early attempts to get results similar to those of
Professor Denison when using human volunteers, and even when using his equipment, were
unsuccessful. As he says, the choices of experimental volumes of 62.5 ml and a pulse time
of 0.1 second are not explained in terms of human breathing. The former is simply a level
below which Professor Denison did not choose to go, and the latter one which he says is
not critical, but of course the "escape" of air must be swiftly terminated if
the lungs are to remain hyper-inflated. As Mr McAughey points out, Professor Denison's
model pre-supposes that only one nostril is available for use, the other nostril and the
mouth being firmly shut. His own experiments, he conceded, were not designed to replicate
the release of pre-existing pressure in the respiratory system.
146. Professor Widdicombe, Emeritus Professor of Physiology in the
University of London, was a witness for whom Professor Denison had considerable respect,
and we too found him to be impressive. Initially he was dismissive of Professor Denison's
model. He said in his first report -
"The pressures, flows and gas velocities used by Denison in his
model are all considerably greater than those in quiet breathing, and correspond far more
closely to those that would be found with a deep sigh or gasp. The resistance of his model
valve is also far greater than in the real nose. The model lungs and valve resemble a
bicycle pump attached to a pea shooter, more than the real respiratory system."
147. Thereafter Professor Denison altered his model, but in the opinion
of Professor Widdicombe it still could not, and cannot, be regarded as accurately
representing the reactions of a human being for a number of reasons. In the first place it
makes no allowance for air escaping through the mouth. In his second report Professor
Widdicombe says -
"If one puts oneself in Billie Jo's body position one will find
that no possible maximal positioning or distortion of the head on the trunk will block the
148. Having heard the evidence of the neuro-surgeons Professor
Widdicombe was still of the same opinion. He pointed out that with the head positioned as
it was the tongue could be used to block the passage of air through the mouth, but only by
means of a positive movement controlled by the brain, which could not be undertaken by an
unconscious girl. Air passage through the mouth could be blocked by a very large blood
clot, but that would also block the nose, and in reality the blockage which maintained the
hyper-inflated lungs had to be, as Dr Hill found it to be, close to the lungs. Secondly
Professor Denison's model necessarily postulates a blockage and a high degree of pressure
at a high level, where no evidence of any blockage was found, because if the air had to
travel from the air sacs via the bronchi and bronchioli it would lose speed to a
significant extent, and Professor Denison's model makes no allowance for that. Thirdly the
pressure envisaged, 15 mm Hg, is above that to be expected in the body of a girl such as
Billie breathing normally. In a small adult it would take 2½ litres of air above functional reserve capacity to produce such a pressure, and
if there was air trapped between the supposed high level blockage which disappeared
without trace and the low level blockage found by Dr Hill it is difficult to see how that
trapped air was subject to any significant pressure at all. In his first report Professor
Widdicombe said at page 19 -
"I find the idea that a lung hyper-inflated due to internal
obstruction can exert a pressure in the nose to cause a blood spray both mechanistically
and numerically untenable, unless the lung were to collapse completely."
149. If it did collapse completely, how then did it re-inflate?
151. We have already expressed our conclusions in relation to the first
four issues which we identified at the beginning of this judgment. Even if we had decided
in relation to the Confusion Issue that, standing alone, without reference to further
evidence, the mistakes which we there identified could be said to render the conviction
unsafe, the fact is that at the request of the appellant we have now received fresh
evidence, and in our judgment each ground of appeal does now fall to be determined in the
light of all of the evidence. Mr Scrivener submitted otherwise, but we reject that
submission which, as he concedes, is devoid of authoritative support. The fresh evidence
has left no room for doubt as to the distinction between minute volume and peak flow, and
as to the positions occupied by each of the experts, but it has gone far further than
that. We do not question for one moment the integrity of Professor Denison, or the
validity of the experiments which he has conducted for what they are.But his exhalation
theory does not fit the facts of this case, since it depends on the existence of an
obstruction of blood in the nasal valve. We are satisfied from the evidence of Dr Hill
that the only obstruction was in the lower airways. It is now possible to say, that
looking at the case as a whole, including the evidence which was before the jury -
152. (1) the appellant was the last known adult to see the deceased
alive, and the first known adult to see her dead.
153. (2) his clothing was found upon examination to be spattered with
blood in a way which was consistent with him being her attacker.
154. (3) the clothing of others who went to the aid of the deceased was
not similarly spattered.
155. (4) the spattering on his clothing matched precisely the spattering
on the leggings of the deceased, which latter spattering was undoubtedly caused by her
156. (5) during the initial stages of the police enquiry the appellant
repeatedly failed to reveal that he had been into his house about 15 minutes before the
body was discovered, and indeed stated that he had been away for much longer than that.
157. (6) the appellant's explanation for his absence from the home
during the 15 minutes or so immediately prior to discovery of the deceased was itself
unusual in that he went without money by a circuitous route to buy an item that he did not
158. (7) although it may be possible for an injured person to exhale a
fine spray of blood onto the clothing of someone nearby -
159. (a) no one claims to have seen any signs of the deceased breathing.
160. (b) in order to spatter the appellant with the blood which was
found upon him the deceased would, whilst unconscious and in the prone position, flat on
the ground, have had to have her head in such a position that one nostril was about 20
centimetre above the ground, and angled upwards to the extent of 30 to 45 degrees towards
the appellant, at a time when he was crouched down beside her. At that moment she would
then have to have released about 62.5 ml. of breath at a pressure of 15 mm Hg for 0.1
second. The amount of breath released and the period of release might have been greater,
but not so great as to render her lungs when her airways became re-obstructed less than
161. (c) even if all of that were achieved, blood spattering would not,
it seems, reach the height on the appellant's clothing at which spattering was found.
162. Returning to the words of Lord Cross, we conclude that the fresh
evidence though relevant and credible adds so little to the weight of the defence case as
compared with the prosecution's case that a doubt induced by the fresh evidence would not
be a reasonable doubt. We therefore dismiss this appeal against conviction.