Case Name: JONES Jonathan
Date 10/05/96
Division Criminal
Case No 95/2946/S1
Judge(s) Rose,
Dyson,
Gage,



No: 95/2946/S1

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
The Strand
London WC2

Friday 10th May 1996


B E F O R E :


LORD JUSTICE ROSE


MR JUSTICE DYSON

and

MR JUSTICE GAGE

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R E G I N A

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JONATHAN JONES

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 404 1400 Fax No: 0171 404 1424
(Official Shorthand Writers to the Court)
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MR J REES QC and MR G TAYLOR appeared on behalf of the Appellant
MR S HOPKINS (MR PITCHFORD QC) appeared on behalf of the Crown
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JUDGMENT
(As Approved by the Court)
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Crown Copyright
Friday 10th May 1996
JUDGMENT
LORD JUSTICE ROSE: At Newport Crown Court on 6th April 1995, after a trial before Mr Justice Rougier lasting 11 weeks, and after a retirement of over 12 hours, the jury by a majority of ten to two convicted this appellant on two counts of murder. He was sentenced to life imprisonment. Against that conviction he appealed by leave of the single judge. On 25th April at the conclusion of the arguments we allowed the appeal, quashed the convictions and, it not being suggested that a retrial was appropriate, discharged the appellant. We now give our reasons for taking that course.
The two deceased, Harry and Megan Tooze were the parents of the appellant's girlfriend Cheryl with whom he had lived for about ten years. The deceased who lived at Ty-ar-y-Waun Farm, Llanhary in the Vale of Glamorgan, were both shot in the head from behind at a distance of about three feet on 26th July 1993. Harry, who weighed thirteen stone, was shot just inside the cow shed door and was placed in a trough in the shed and covered with hay bales and other articles including heavy tarpaulin sheets. Megan, who was ten-and-a-half stone, was shot at the other side of house near the corner of the kitchen extension. Her body was placed in the cow shed and covered with items including a heavy carpet. There was expert evidence that the killer was likely to have been liberally splattered with blood and body tissue. No forensic link of this kind connected the appellant with the killing. He is now 35 and of previously good character. There was no evidence that he was on other than good terms with the deceased. The prosecution did not allege that Cheryl was a party to the murders. She was called as a prosecution witness.
It was the prosecution case that the appellant had travelled to south Wales from 44 Hollingbourne Towers, Orpington, where he lived with Cheryl, committed the murders about 1.30 pm and returned home shortly after 7.30 pm. No witness gave evidence of having seen him in south Wales or Orpington on that day. The Crown's case was circumstantial. It largely depended on six pieces of evidence which, at the end of his summing-up, the judge referred to as "the principal basic facts". First, on the morning of 23rd June, about a month before the murders, the appellant was identified as being in Tyle Garw Lane near the Toozes' farmhouse. The Crown said that he was doing a "dry run" planning the murders. He denied being in that road. Secondly, an alibi that, on 26th July, he had been walking around the streets of Orpington for many hours in the morning and afternoon to find office accommodation, that he had seen engineers working on the lift where he lived at about 1.30 pm and that he had seen part of the cricket test match on television, was pre-planned, adjusted to meet changing evidence and false. Thirdly, that there was an hour missing from the car journey which he made from Orpington to the farmhouse during the night of 26th July after the Toozes had been reported missing: he could have used that time to dispose of incriminating items. Fourthly, the killer must have known the layout of the farm and the Toozes' habits. The appellant was a frequent visitor and had that knowledge. Fifthly, when told by the police of the discovery of a body his reaction was inappropriate to innocence in that in particular he failed to ask the sort of questions the answers to which would have provided necessary information if, as he wished to, he was himself to communicate the news to Cheryl. Sixthly, a print of the tip of his left thumb was found on a saucer on a table in the television room at the farmhouse. The prosecution said this was because the deceased gave him a cup of tea shortly before he killed them. Although the prosecution had attempted to prove that the appellant had a financial motive for the killings, leading counsel for the Crown, in his closing speech, accepted that no motive had been proved.
There are 20 grounds of appeal. Grounds 1 to 3, 5 and 7 allege that the judge wrongly admitted certain evidence. Grounds, 1a, 4, 6, 9, 12, 13, 14, 16, 17 and 18 allege misdirections or non-directions in the summing-up, although ground 13 was abandoned in argument. Ground 8 alleges that the judge was wrong to permit the prosecution to treat Cheryl as a hostile witness in relation to parts of her evidence and to permit the prosecution to call evidence rebutting what she said. Ground 10 alleges wrongful rejection of a submission of no case to answer. Ground 11 criticises the judge in relation to where the deceaseds' family were permitted to sit in court, but this was abandoned in argument. Ground 15 relies on fresh evidence as to the movements of the lift engineers. Ground 19 invites this court to have a lurking doubt as to the safety of the conviction.
Before turning to these grounds in further detail, it is necessary to summarise the evidence which the jury heard.
The appellant and Cheryl had met at University. They both worked and had a joint income in excess of 20,000. The appellant's earnings were well below his potential. In 1989 they bought a maisonette at 74 Oakdene, Orpington which was repossessed by the building society in April 1990 because the appellant had failed to keep up the mortgage repayments. Cheryl wore the trousers in the relationship. The appellant did not tell her about the repossession. In September 1992, while the deceased were at a funeral, their farmhouse and, the same night, a neighbouring scrap yard were burgled. The only item taken was Harry Tooze's old and dangerous shotgun. There was evidence that the appellant, who may have known of the Toozes' absence from the farm was in south Wales. The prosecution conceded in their closing speech that there was no evidence that the appellant was the thief or that the missing shotgun was the murder weapon. One witness had seen a stranger, not identified as the appellant, in the vicinity of the Toozes' farm some time in September 1992.
The appellant is 6' 4" tall and slimly built with a narrow face and an obvious cleft in his chin. No identification parade was ever held. On 23rd June 1993 several people saw a man wearing a beige trenchcoat and dark glasses in Tyle Garw Lane near the Toozes' house. The police were informed. Mrs Gillian Lewis, an elderly lady, was travelling as a front seat passenger in a car driven by her daughter Claire at about 11.30 pm. She gave evidence of seeing, walking towards them in the road, a man over six feet in height, very thin with a sallow complexion, long pointed nose and chin and carrying a holdall. His hair was dark and shiny and it could have been a wig. As they drew alongside him she put her spectacles on and he pulled his collar up and turned his head away. She had not seen him before but she recognised him accompanying Cheryl at the deceaseds' funeral on 23rd September 1993. She told her husband but not the police. There were differences between her evidence and the original description she had given to the police particularly as to the man's height which at various times she had estimated at 5' 11", 5' 9" and 6' 0". When she saw Cheryl's television appeal on 27th July 1993 Mrs Lewis had not noticed the appellant who appeared beside Cheryl but she said this was because she was concentrating on Cheryl. We have seen a video of the appeal. Although the appellant was to be seen briefly walking in and out, for most of the broadcast only the lower part of his face from about mid-nose downwards was available. Mrs Lewis conceded in evidence that there had been rumours in the neighbourhood that Cheryl's boyfriend had had something to do with it, but she said she had disregarded these. The man she saw was wearing a long beige trenchcoat with wide epaulettes over a scruffy suit and dark sunglasses. Claire Lewis said in evidence that the man was about 5' 11". She initially said 5' 9" with a long boney face and hair which looked wet and was over his ears. They called the police because he looked suspicious. On 7th October, by which date both the television appeal and the deceaseds' funeral had taken place and there had been a photograph of the appellant in a local newspaper, with the help of an artist, Claire compiled a picture of the man she had seen. It resembles the appellant as to the shape of face and a cleft in the chin and it depicts a trenchcoat. Other witnesses, Mrs Stone, Mr Sharpe and Mrs Blyth described seeing a man on a date, not clearly identified as 23rd June, carrying a document case rather than a holdall. It was suggested on behalf of the defence that the man seen by the Lewises was called Mark Thornton: he lived locally, fitted the description and tended to wear a trenchcoat and sunglasses. He was not called and there was no photograph of him before the jury. The defence accepted that the appellant had been in the area of the Toozes' farm on 23rd June. He was there, he said, for the purpose of assisting in hay baling, although the baler was broken. He had not arrived until 1 pm or so and at no time had he been in Tyle Garw Lane. On 27th July he told the police that on 23rd June he had hitchhiked to and from the farm. On 5th October he said he had hitchiked from London to Pontypridd and taken a bus from Pontypridd to the farm. In evidence he said he travelled by train to Cardiff or Bridgend and then had either caught a bus or had been collected by Mr Tooze who had given him a lift to Cardiff to catch the train back. He had not arrived until the early afternoon. He left a note for Cheryl who was still asleep saying he was going for the early bus. There were three buses from Orpington around 7 am.
There was a good deal of evidence about the appellant wearing a beige trenchcoat. Darren Sterry, who moved to Hollingbourne Towers in December 1992 said the appellant wore it summer and winter but he could not say when he last saw him in it. Teresa Shaw first saw the appellant after she had been made redundant in September 1992 and he wore it in the summer of 1993, in particular in May when it was her birthday. David Nutt described the appellant as wearing a below the knee beige mackintosh on over 50 occasions, the last of them in March or April 1993. Shirley Fawcett had seen the appellant and Cheryl many times and the appellant was mostly in a beige trenchcoat. The last occasion was in July 1993, though in her statement she had said May. There was a danger of cross pollination in these witnesses because they had all come together on a bus from Orpington. David Pyne, the manager of a local wine store in Orpington recognised the appellant as a regular customer with a slight Welsh accent whom he knew as Jonathan. He wore a beige trenchcoat below the knee. He had last seen him in the trenchcoat between one month and six weeks before the beginning of August 1993. He saw him after this but he was not then wearing the trenchcoat. The appellant's colleagues at work saw him in an anorak but not a trenchcoat. 24 neighbours did not recall seeing him in a trenchcoat. Cheryl said in evidence that the appellant had five coats and had last worn the trenchcoat when working for Accountants on Call in London. That was a job which ceased in the summer of 1991. She had initially told the police that she believed he still had the coat and that it was in the Orpington premises, but in evidence in chief she said that she did not know where the coat was on 26th July. In cross-examination she referred to sending clothes to Oxfam in September 1992 and in re-examination she gave answers which the judge regarded as showing she was not willing to tell the truth about the trenchcoat so he permitted her to be treated as hostile on this aspect. The defendant in evidence said he could not remember what had happened to the trenchcoat but he had last worn it in May 1992 and he believed it had been disposed of by September 1992. It could have been given to Oxfam. Mr Pyne must have seen him in a different raincoat on an occasion when it had rained in the month leading up to 26th July. On 5th August he told the police he had three coats of which he identified a red and black anorak and a green wax jacket.
The was also evidence from a number of witnesses who had seen a man in dark glasses and trenchcoat at Pontyclun Railway Station at 2.00 to 2.30 pm on the day of the murders. The prosecution had claimed that this was the appellant making his way back to London. The witnesses, when they saw the appellant at court, positively asserted that this man was not the appellant.
The alibi evidence, as we have indicated, related to walks around Orpington, a conversation with a lift engineer and watching cricket on television. Evidence from the appellant's colleagues at work was that on Friday 23rd July he said he felt unwell and he was minded to take Monday off as sick leave in order to look for office premises to rent for himself and Cheryl. Cheryl's evidence was that she persuaded him to go and look for office premises during an argument on the Sunday. The appellant said he spent five hours away from the flat in the morning and four-and-a-half in the afternoon. Police officers who endeavoured to follow his route took two hours ten minutes on the morning journey and, on different occasions, 3 hours 10 minutes and 4 hours 48 minutes on the afternoon journey. There was no evidence from anyone who could recall him making enquiries for offices that day. He did not return a video tape which they watched over the weekend, although the shop from which it came was along his route. In his witness statements in July and August the appellant claimed to have left the flat at about 8.30 am and he was quite sure he returned there at 1.00 to 1.30 pm. On his return he spoke to a lift engineer in the basement and he recalled a second man in an Otis uniform sitting in front of the lift. He said that when he returned to his flat the music was on for the beginning of "Neighbours" on television which would have been about 1.30 pm. He watched cricket on television until about 3 pm. He recalled them stopping for lunch. He described seeing a conversation between commentators and he mentioned Lewis, Boycott and Benaud. On 5th October he said there was a break for lunch or for rain. In fact lunch was taken at 1 pm and there was no break for rain on the afternoon of the 26th although there was on Sunday 25th. However, reference was made during the broadcast on the 26th at 13.40 to two breaks for rain having occurred earlier that day. At 14.35 Lewis was on screen and a discussion followed between Boycott Benaud and Illingworth. On the 25th there were no commentators on screen. The three lift engineers (Lippett, Bell and Horstead) when interviewed by the police on the weekend of 31st July/1st August 1993 did not recall the appellant or any conversation with him, although they confirmed that they were regularly asked when the lift would be ready. They said that on the 26th they had been absent from Hollingbourne Towers for lunch between about 12.30 pm and 1.45 pm. In an interview under caution on 5th October the defendant said for the first time that, in the lift on the way to his flat, he had been accompanied by a child. Cheryl gave evidence that she had been told by a police officer in early August that the appellant had been seen in the lift with a child. The prosecution alleged that the appellant opportunistically elaborated his alibi with this information. On 5th October the appellant claimed to recognise, from six photographs shown to him by the police, Bell as the engineer to whom he had spoken in the basement at about 1.30 pm, but he said he had not seen Horstead.
The evidence from the lift engineers was as follows. They had been working on the lift at Hollingbourne Towers since April. Usually the men had a snack lunch on site. On 26th July, which was the only day they ever worked in the basement, they went out for lunch. Lippett said he arrived at the building at about 12.30 pm in his car and called for Bell and Horstead who were working outside and they went straight off for lunch. He thought they returned between 1.30 and 1.45 pm. In cross-examination he said that the times he gave were approximate. He might have arrived at about midday and they might have returned between 1.15 and 1.45 pm. He had no recollection of speaking to the appellant or seeing him that afternoon.
Bell's account in chief was that Lippett arrived at about 12.30 pm and they went off immediately. In cross-examination he said it might have been 12.15 pm followed by a little chat and departure at 12.30. On their return he spent five or ten minutes in the basement before going up with Lippett to the lift motor room leaving Horstead in the basement on his haunches mixing sand and cement. He said he was pretty sure that they returned to the building not before 1.30 pm and that it was more likely to have been about 1.45 pm. He did not speak to or see the appellant that day and had no recollection of ever having seen him before.
Horstead said that he thought the three of them had left the building to go for lunch at about 12 o'clock. In his statement to the police in December 1993 he had said that they had gone for an early lunch by 11 am, but in evidence he said Lippett was there for about an hour before they went for lunch at 12. His evidence was that they returned between 1.15 and 1.45 pm. His estimate as to the time of their return was based on his recollection of the time of leaving the building to go for lunch. He thought that he did not start mixing the cement until 3 or 4 o'clock, but he was not sure.
The murders took place shortly after 1.30 pm. Neighbours heard two shots about 30 seconds apart between 1.30 and 1.40. There was cooked food on the stove which had been turned off. The deceaseds' stomach contents contained a well digested meal but no evidence of a recent meal. Although there was some evidence about a Land Rover similar to Mr Tooze's being seen about 2.30 pm this was vague and inconclusive. A relative who telephoned the house about 3 pm got no reply. Rigor mortis was beginning to wear off when Dr Claydon examined the bodies and this was an indication against death having occurred in the late afternoon or evening. There was a white shirt laid out on the bed as if Harry Tooze had intended to go out dressed smartly. No murder weapon nor any cartridges attributable to the murder were ever found. The shot fired at the deceased was No.7 shot which Harry Tooze did not use. There was expert evidence that, although the killing looked professional, skill was not required, only determination. The appellant had handled a gun, not a shotgun, once as a schoolboy. The entrance to the cow shed was out of sight of the neighbours. In order to put the bodies in the cow shed the killer would have had to move tools near the doorway out of the way and these had then been replaced. There was a single drag mark along the front of the house which might have indicated that Mrs Tooze had been dragged though her clothing showed no evidence of this. There was no sign that Mr Tooze's body had been dragged. There was money and jewellery in the house which had not been taken and 75 on Harry Tooze himself. A neighbour, Mrs Davies, gave evidence that, eight weeks before the murders, Harry had had a "furious barney" with someone outside the farm. In 1985, at an isolated farmhouse, a brother and sister had been shot in the head for no apparent reason and the killer never found. In 1989 a Mr and Mrs Dickson had been shot dead on a coastal path. There had been some evidence of theft. The matter was unsolved. In May 1993 Mr and Mrs Tooze had walked into a local solicitor's office with a grey haired professional man who was never traced. On 20th July a Japanese four-wheel-drive was seen being driven towards the Toozes' by someone who could not have been the appellant because he was at work, but who so resembled the artist's drawing that the witness communicated with the police. On 23rd July Harry Tooze was seen with a 40 to 50 year old respectable middle-aged gentlemen who was never traced. At about 12.30 pm, on 26th July, a Suzuki vehicle had clattered over the cattlegrid at the bottom of the lane leaving the Toozes' farm. It was not traced. On the garden gate leading to open fields at the rear of the farm and on the main door frame, finger or palm prints were found which could not be matched to either of the deceased or to over 400 other people, including the appellant. Harry kept a loaded luger pistol in the farmhouse though it was no longer, as it had been at one time, kept under his bed.
During the evening of 26th July Cheryl was unable to contact her parents by telephone. The appellant agreed to drive down to Wales to investigate. The evidence was that he set off some time between 10 pm and 11 pm. He made a timed purchase of petrol at Membury Service Station at 12.22 am. It was 94 miles from there to the farmhouse. All but the last six or seven miles were on motorway. The appellant did not arrive at the farm until 3 am. He told the police the weather was so foul that it slowed him down to 50 miles per hour. In evidence he said he had spent 20 minutes at Leigh Delamere Services from where he twice telephoned Cheryl, the second time at 12.59 am when Cheryl had asked him to make haste as the police had broken into the farm. He left the service station about 1.20 am. He then spent a few minutes fixing his windscreen which had started to leak near the Severn Bridge. It was 66 miles from Leigh Delamere to the farm. Meteorological evidence suggested that the rainfall along his route was never more than a moderate drizzle, although police officers at the farm described it as a nasty night with rain belting down. The prosecution said that there was an unexplained period of at least an hour during which the appellant could have moved the weapon and soiled clothing from a temporary to a more permanent hiding place. There was, however, no forensic link between the inside of his car and the killings. When the appellant arrived at the farm the police were making a search. When they told the appellant a body had been found he asked very few questions and none as to how death had occurred. There was conflicting police evidence as to precisely what he had been told about the body. Some police officers thought his reactions seemed appropriate and some that he seemed very shaken and his voice quivered. On any view, he must have been very tired.
On the table in the television room was a cup and saucer which would normally only have been used for visitors. It was the Crown's case that the arrival of the killer caused lunch to be postponed and a cup of tea to be offered. There was some tea but no sugar in the cup. The appellant did not take sugar. On the top of the saucer was a print from the tip of the appellant's left thumb. The saucer also bore the prints of both deceased, that of Megan being in virtually the same place as the appellant's print, and the related cup bore a print of Harry. It is clear that, after his 3 am arrival on the 27th, the appellant could have touched the saucer, for he was in the television room unobserved by the police from time to time. He did not however claim to have touched it at that time, although he had picked up a mis-shaped tomato on the same table. According to Cheryl, the appellant would have been given a mug and not treated to the best china. He could have used the best china at a family funeral two years previously but it would have been washed after the funeral. Although there was evidence both from the police and from others who cleaned up afterwards that every surface and object in the room had been dusted for fingerprints, so far as the best china was concerned, liftable prints were found only on the saucer and its related cup. It could not be said in what order the prints of the appellant and the two deceased had been placed on the saucer.
The appellant gave evidence. He denied murdering the deceased and advanced the alibi to which we have referred. It was suggested on his behalf that there must have been two killers because of the weight of Harry's body, because there had been no indication that it had been dragged and because of the weight of the tarpaulin and carpet with which the bodies had been covered.
Before this court, Mr Pitchford QC for the Crown puts the thumb print in the forefront of the prosecution case. Bearing in mind that he concedes, albeit only as a theoretical possibility, that the print could have been put on the saucer in innocent circumstances between 3 am and 4 am on 27th or two years before at the funeral tea, this in our judgment demonstrates that the prosecution case was far from strong. From our summary of the evidence before the jury six matters are apparent which are of particular relevance to this appeal.
First, if the appellant was the killer there were several extremely perplexing features. In particular, a man of good character with no experience of shotguns had, for weeks, meticulously planned the execution of his girlfriend's parents towards whom for over a decade he had shown no sign of hostility. No motive was shown for those executions. They were carried out at close range yet no trace of blood or tissue was found on the appellant's thick lensed spectacles, clothing or footwear, or in his car, which the prosecution claimed he later used when disposing of incriminating evidence.
Secondly, Cheryl, although called for the prosecution, was a very important witness for the defence.
Thirdly, the case against the appellant depended, to a substantial extent, on proving that he was lying, particularly in relation to his movements on 23rd June and 26th July. The extent to which, if lies were proved, they were capable of establishing the prosecution case was crucial.
Fourthly, there was a powerful body of evidence suggesting that the appellant and Cheryl had both lied about his possessing and wearing a beige trenchcoat in the summer of 1993.
Fifthly, if the appellant's alibi was false it was remarkable that he was able to describe two lift engineers working in the basement and aspects of television coverage of the test match which, in both cases, occurred only on 26th July.
Sixthly, there were substantial question marks over the reliability of the 23rd June identification evidence.
We turn to the grounds of appeal and the submissions made in support of them.
Mr Rees QC, who appeared for the defence at the trial, submits, first, that the judge was wrong to admit evidence as to the purchase by the appellant and Cheryl, in 1989, of the maisonette at 74 Oakdene, Orpington and its repossession by the building society in 1990, because it portrayed the appellant as deceitful and placed a financial reason for the murders before the jury when no such reason existed. The judge ruled that the evidence was admissible on the basis that mystery surrounded the murders and the fact that the appellant had not told Cheryl about the repossession gave rise to financial pressure on him in relation to the acquisition of either office premises or a new Barratt home in Wales. Mr Rees submits that, as the joint income of the appellant and Cheryl was in excess of 20,000, Cheryl had savings of 6,000, they already owned appropriate office equipment, the rent of their flat was very modest, there was no realistic possibility of a house being bought in Wales and there was manifestly no equity in Oakdene (a 98% mortgage advance having been made at the height of the property boom in 1989), there was neither financial pressure on the appellant nor any evidence that Cheryl had any financial expectations in relation to Oakdene which might increase such pressure on the appellant. Furthermore, the evidence prejudicially portrayed the appellant as deceitful in a manner outweighing any possible probative value in providing a superficially attractive reason for the killing.
In our judgment, there is no substance in this ground. It was not until after the judge had made his ruling that Cheryl first made a statement and subsequently gave evidence which cast the finances in a favourable light. At the time of the ruling the evidence was that the appellant and his girlfriend were living in extremely modest accommodation, he was earning substantially below his potential and he had concealed the repossession of Oakdene from Cheryl. It would, in our judgment, have been open to the jury to infer a financial motive from this evidence and the judge was entitled to conclude that the probative weight of the evidence exceeded its prejudicial value. Subsequent developments in the evidence and the prosecution's ultimate concession that no financial motive had been proved do not invalidate the judge's ruling. Ground 1 fails.
Mr Rees makes a related submission in support of an additonal ground of appeal 1a, by way of amendment for which the court granted leave, that the judge materially misdirected the jury as to motive. He submits that, the prosecution having conceded that no motive was proved, the judge wrongly directed the jury first that the prosecution suggested that the appellant was "jealous and resentful of the close bond between Cheryl and her parents" of which there was no evidence, secondly, that Cheryl was minded to move to south Wales to support her parents after he father's hernia operation when the evidence was that the visit to Barratt homes was made before the operation, thirdly, that proceeds from the repossessed maisonette might have been expected by Cheryl to provide a downpayment for a Welsh property when the Barratt evidence was that no down payment was necessary; and fourthly, that the Toozes' estate "would come in handy if he could persuade Cheryl to marry him", when the evidence was that matrimony was not contemplated and they were happy as they were. Mr Pitchford submits that, although the prosecution conceded no motive was proved, it was not conceded that the murders were motiveless. In the passage complained of, read as a whole, the judge was not advancing a new case for the prosecution but exposing the inadequacy of the evidence on motive. There was no material factual misdirection since Harry Tooze had not worked, through illness, since about 1988 and, in 1993, discussions within the family about the future would have been inevitable. We shall come later to the evidence about the visit to Barratt homes. We are doubtful whether there was a material misdirection on this aspect, but, in view of our conclusions on other grounds, it is unnecessary to analyse this ground further.
Ground 2 is that the judge should have excluded evidence of the burglary on 21st September 1992 when the shotgun was stolen. The prosecution conceded that there was no evidence that the appellant was the burglar or that the shotgun had been used for the murders. The judge admitted the evidence on the basis that it could support the inference that the appellant was the thief. Mr Pitchford does not seek before us to uphold the ruling on this basis. He submits that the evidence, like that in relation to the time of available buses between Orpington and South Wales, merely and properly went to the appellant's opportunity to use, in one case, the gun and, in the other, the buses. We cannot agree. Since it was conceded that it could not be proved that the stolen shotgun was the murder weapon, the fact that the appellant may have had the opportunity to steal it proved nothing. The analogy with the timetable evidence is false. In our judgment unless there was evidence linking the appellant with the burglary, which there was not, its occurrence could prove nothing against him, particularly as there was no evidence to suggest that he was plotting the murders ten months before they occurred. It is true he was in South Wales at the time of the burglary staying, it seems, with his parents in Caerphilly, some 18 miles from the farm. But it also appears, contrary to a suggestion made at one stage in the trial, that, so far from concealing this from Cheryl, she knew he was in Caerphilly and may indeed have telephoned him to tell him about the burglary. In any event, as we have said, the 21st September burglary had no probative value whatever in relation to the appellant. It was irrelevant and inadmissible as a matter of law. Ground 2 is substantiated.
Ground 3 is that the judge should have excluded the alleged sightings of the appellant on 23rd June 1993 because of the inconsistencies both within the evidence of Mrs Lewis and Claire Lewis and when that evidence was compared with the evidence of other witnesses and because the appellant was not asked to go on an identification parade. We regard this ground as unarguable. Mr Rees's submissions go to weight not admissibility. Ground 3 fails.
Ground 4 alleges inadequacies in the judge's directions as to the identification evidence. It is unnecessary to rehearse all the criticisms which Mr Rees makes in this respect. It suffices to say that, despite Mr Pitchford's submission to the contrary, we are satisfied that, in a case in which many witnesses had seen a man in a trenchcoat in Tyle Garw Lane, but only Mrs Lewis claimed to identify the appellant, when no identification parade had been held, when the evidence of Mrs Lewis showed signs of contamination by her daughter's account, and when the railway witnesses who had seen a man in a trenchcoat at Pontyclun station on the 26th positively asserted that the appellant was not that man, a careful rehearsal of the weaknesses in the identification evidence was essential in the summing-up as was guidance as to the evidence which was capable of supporting the identification. The judge should have drawn specific attention to a number of matters. On Mrs Lewis's own account the man she saw was disguised in dark glasses and a wig and was attempting to hide his face. Her original description of the man she saw differed from the appellant not only as to height but as to hair. She needed spectacles for long as well as short distances and had only donned them for part of the period of her observation. No identification parade had been held. She might have been identifying the appellant from his appearance on television. Her account of the man's hair became progressively similar to Claire's account as to length, colour and parting and she referred to 5 o'clock shadow for the first time at the trial, Claire having referred to 5 o'clock shadow at an early stage and the appellant having exhibited 5 o'clock shadow on the television. The judge gave a direction in accordance with Turnbull (1987) 63 Cr App R 132 in relation to Mrs Lewis which was appropriate so far as it went and he referred to the discrepancies in her account of height and to some of the discrepancies in relation to hair. He rehearsed Mrs Lewis's evidence about not discussing her funeral idendification with her daughter, not seeing newspaper photographs and concentrating on Cheryl during the television appeal. He also invited the jury to consider the risk of cross-pollination from Claire's evidence and he referred to the failure to hold an identification parade. But in our judgment he should have gone further. Mr Pitchford concedes that, in some respects, the requirements of Turnbull were not met: the judge did not refer to weaknesses in the evidence as such; he reminded the jury that Mrs Lewis had spoken of having the man in view for 180 yards but he did not remind them that Claire said it was for 30 yards; he did not refer the jury to the evidence which was capable of supporting the identification, nor did he deal with the possible importance of the railway witnesses' evidence about the man at Pontyclun station in relation to Mrs Lewis's purported identification of the appellant. Furthermore he should, in our judgment, have drawn specific attention to the appearance (as distinct from mere risk), of cross pollination between Mrs Lewis and her daughter in relation to hair and 5 o'clock shadow, and to the possible prejudice to the appellant because no identification parade had been held. Because no guidance was given as to what evidence was capable of supporting the identification, the jury may have thought, for example, that the evidence of other witnesses about a man in Tyle Garw Lane in a trenchcoat supported Mrs Lewis, when two of those witnesses were not necessarily speaking of the same day and when the defence relied on that evidence to criticise the Lewises. In our judgment, the omission of these matters significantly flaws the judge's directions on identification, whereby the jury may have been mislead into according greater weight than was appropriate to Mrs Lewis's evidence. Accordingly, ground 4 succeeds.
There is, in our judgment, no substance in ground 5 (that the judge should not have admitted evidence about the appellant's ownership of a beige trenchcoat in 1993), ground 6 (that a Turnbull direction was necessary in relation to the Orpington trenchcoat evidence), ground 7 (that evidence of Cheryl's visit with her mother to Barratt homes should not have been admitted), ground 10 (that the judge should have ruled that there was no case to answer), ground 12 (that the judge's directions on inferences were inadequate) or ground 18 (that the jury were wrongly invited to act as experts in relation to the thumb print). It is, however, unnecessary to rehearse the arguments on these grounds in the light of the conclusions which we have already expressed in relation to grounds 2 and 4 and the conclusions to which we now turn in relation to the treatment of Cheryl's evidence and the alibi evidence.
Ground 7 relates to a visit by Cheryl and her mother, in May 1993, to an estate in Lanharran where some new houses costing about 90,000 had been built by Barratts. They had been shown round three houses. In December 1993, police officers found, at the flat occupied by Cheryl and the appellant in Orpington, brochures relating to the houses. On some of the brochures were found the appellant's fingerprints. In addition, there was handwriting on the brochures which was identified in evidence by Cheryl as being that of the appellant. As we indicated when dealing with ground 1, the prosecution initially alleged that a possible motive for these killings was to finance Cheryl's wish to acquire one of the Barratt houses. Mr Rees submits that this evidence was peripheral to the issues in the case and distracted the jury from its main task. For the reasons which we have expressed in relation to ground 1 and the repossession of Oakdene, our view is that this evidence was relevant and admissible. In any event, no objection was made at the trial to the admission of the Barratt house evidence. In the circumstances there can be no substance in this ground.
Ground 8 raises several matters. During the course of the trial the prosecution applied to treat Cheryl as a hostile witness and to cross-examine her in respect of two specific matters. The judge granted those applications. We shall refer to those in greater detail in a moment. In addition, some days after Cheryl had given evidence, the Crown applied to call evidence to rebut what she had said about the Barratt homes. The judge granted that application. In this ground, the defence complain that the judge wrongly exercised his discretion both in allowing Cheryl to be treated as hostile and in allowing rebuttal evidence to be called.
It is necessary for us to set out in a little more detail the course which Cheryl's evidence took. It is clear that both prosecution and defence relied on Cheryl to prove certain facts. It is equally clear from reading her evidence that at times she went out of her way to assist the defence. In his summing-up the judge invited the jury to consider whether or not "...in some respects she has not been truthful but she has thrown out one or two life jackets as it were to the Defendant;..." By his rulings in relation to Cheryl's evidence the judge made it clear that he himself regarded her as untruthful in seeking to assist the defence and mislead the jury in certain respects. It is against that background that the criticisms made in this ground must be viewed.
The first specific matter upon which the Crown was permitted to cross-examine Cheryl related to her evidence about the flat being tidy when she returned to it on the evening of 26th July 1993. The importance of this evidence was that it enabled her to go further and say that, since she had left the flat in an untidy state in the morning, the appellant must have returned during the day and tidied it up. Accordingly, it was evidence which was vitally important in assisting the appellant's alibi. In her evidence-in-chief, as we said, Cheryl purported to recall that the flat was tidier when she returned than when she left. She claimed that she had told the police this about one week after 26th July. She had been interviewed by DS Cowlin between 24th July and 4th August 1993. During the course of that interview the police officer made notes and compiled a hand written statement which was signed by Cheryl. In that statement she is recorded as saying:
"When I got home John was not at home. I can't tell whether John had been home during the day or not."


The prosecution applied to cross-examine on that part of the statement. Before ruling, the judge heard evidence from DS Cowlin. During his ruling, the judge made it clear that he regarded Cheryl's evidence on this point as being diametrically opposite to that of her statement. He added that he regarded it as an instance of the hostility of Cheryl to the prosecution which he had perceived during the course of her evidence. Accordingly, in the exercise of his discretion, he granted the prosecution's application to treat her as hostile on this point.
Mr Rees submits that it was unfair to treat Cheryl as hostile. There was no sufficient evidence for the judge to conclude that she had displayed a hostile mind to the prosecution and she ought to have been given a chance to explain the discrepancy between her evidence and the statement before being treated as hostile.
We do not accept Mr Rees's submissions on this point. In our judgment there was sufficient material before the judge for him to conclude that Cheryl was hostile to the prosecution. The question of whether or not she should be treated as hostile was one for the exercise of his discretion. We see no reason to criticise his exercise of discretion.
The next matter upon which the judge ruled that Cheryl could be treated as hostile related to her evidence of the trenchcoat. As we have already indicated, the appellant did not deny that, at some stage, he had possessed a beige trenchcoat. In particular, during the course of his interview on 5th October he stated that he thought the trenchcoat had been "chucked out" some time before the killings. At that stage in the interview, Cheryl was brought into the room and asked about the trenchcoat. At one stage she was asked the following questions:
"DCI: Has he still got that coat?

Tooze: I believe so, yes.

DCI: Do you know where it is now?

Tooze: Well, I think it's in Orpington."

Later, during the course of the interview, she agreed with the appellant when he said that he thought it had been chucked out. She said that that might have been so. Subsequently, on 12th October, Cheryl made a further statement to police officers in which she said she believed she had been confused about the trenchcoat and now thought that the last time she had seen the appellant wearing the coat was when he worked for Accountants on Call; the last such date was agreed to be in June 1991.
Initially, the judge refused an application by the prosecution to cross-examine Cheryl on that part of the interview. Subsequently he altered this ruling and permitted cross-examination. The circumstances in which he altered the ruling were that Cheryl, having agreed in cross-examination that a parcel of clothes had been sent by her and the appellant to Oxfam some time in September 1992 but before the weekend of the burglary, during re-examination denied that she had any realisation of the significance of that evidence. The judge in his ruling stated:
"...This witness has given evidence and it is to me, at any rate, quite clear that she is fully alive to the significance of the issue of the trenchcoat and is not willing to tell the truth about it."


Again, Mr Rees challenges this ruling on the ground that it was unfair to the witness to rule that she was hostile. He submits that the Crown had conceded that, at the time of the interview of 5th October, she was not hostile. He further relies upon the fact that, in her statement of 12th October, she had said that she had earlier been confused about the last time when the appellant had worn the trenchcoat. We reject these submissions. On this point, as with the last one, in our view there was ample material for the judge to conclude that Cheryl was hostile and, in the exercise of his discretion, to permit the prosecution to cross-examine her upon the matters disclosed at the interview of 5th October.
We turn to the rebuttal evidence. On 25th February, the date on which Cheryl started to give evidence, she made a statement about her visit to the Barratt homes. That statement made no reference to the appellant. It did not refer to the brochures upon which his fingerprints had been found nor to a visit by him to the Barratt homes. In her evidence-in-chief Cheryl identified his handwriting on the brochures but made no reference to such a visit by him. However, during the course of cross-examination she agreed that he had visited the Barratt homes at her request to endeavour to repair some damage which she said she had caused accidentally on her visit. Following that evidence, she was re-examined on this topic by Mr Pitchford. Mr Pitchford accepts that this re-examination took the form of cross-examination. At that stage there was no application to treat Cheryl as hostile nor did Mr Rees object to the form of the questions. We were told by Mr Pitchford that, as a result of that evidence, enquiries led to a statement being made by PC Jennings which contradicted Cheryl's evidence about damage. Accordingly, on 15th March, the prosecution sought leave to call this evidence in rebuttal. In the course of the ruling in which he gave leave the judge said:
"The new evidence which the prosecution seek to adduce, if it is accepted, would lead to the very strong, though not inevitable inference, that in this respect Cheryl Tooze was lying.
If that were all, I would not allow this evidence to be given, for three reasons basically. First of all, it is decidedly peripheral. Secondly, the purpose would be to discredit one of the prosecution's own witnesses, or at any rate if not the purpose, an inevitable corollary; and thirdly there would be possible prejudice to the Defendant if Cheryl Tooze, who does not appear to me to be greatly in sympathy with this prosecution had turned out to be acting off her own bat from a foolish desire to influence the outcome of this trial."


He went on, however, to rule in favour of the prosecution on the basis that there was evidence that, on this particular matter, Cheryl and the appellant had colluded to mislead the jury. He said that to permit such a tactic to succeed would "abnegate the prime purpose of any court of justice, which must be to arrive at the truth and not to allow itself, or any jury sitting in it to be decieved."
Mr Rees submits that that decision was wrong. At the very least Cheryl should have been re-called and the new material in PC Jennings' statement put to her before any decision was made to allow rebuttal evidence. The appellant's case was severely prejudiced by the calling of this evidence.
Mr Pitchford submits that the judge had a discretion to admit such evidence, even though it was called by the prosecution and had the effect of discrediting one up its own witnesses. He refers to R v Thompson (1977) 64 Cr App R 96 to support his proposition that a judge has a wide discretion to permit a course of action which best serves the purpose of justice.
We are prepared to assume that the judge had the wide discretion for which Mr Pitchford contends. However, in our judgment, in the circumstances of this case, the judge was plainly wrong to exercise it in the way he did. We have the greatest sympathy for him in the situation as he saw it. He clearly believed that Cheryl and the appellant were attempting to mislead the jury. However, the evidence not only dealt with a very peripheral issue, it also had a fundamentally damaging effect on the evidence of Cheryl on which the defence placed considerable reliance. The course proposed by the prosecution was highly unusual, if not unique. Mr Pitchford was unable to recall any other instance of the prosecution being permitted to call evidence to rebut evidence of one of its own witnesses. That experience accords with the experience of each member of this court. In our judgment, any probative value of the rebutting evidence on any issue in the case was minimal and the prejudice to the appellant's case substantial. Accordingly we have no doubt that the prosecution ought not have to been permitted to call rebuttal evidence. Ground 8 succeeds to this extent.
By ground 9, Mr Rees criticises the treatment by the judge of Cheryl's evidence during the course of his summing-up. He submits that the judge ought to have directed the jury along the lines of the second limb of the direction set out in the standard direction provided by the Judicial Studies Board. That is, the jury should have been told to consider whether it was able to accept any evidence given by Cheryl. Mr Rees submits that, by pointing solely to the dangers that arose out of those parts of her evidence upon which Cheryl had been treated as hostile, the judge discredited Cheryl's evidence in the eyes of the jury on matters vital to the defence, whilst leaving intact other parts of her evidence which were necessary to assist the prosecution case.
We have carefully considered this submission. As Mr Pitchford points out, the position of Cheryl's evidence was a delicate one. If the judge had given the direction for which Mr Rees contends, it might well have had the effect of discrediting all those parts of her evidence which supported the defence. The judge sought to hold a balance between prosecution and defence over Cheryl's evidence. In our judgment, he succeeded in this endeavour and we do not think that Mr Rees's criticism is valid one. Ground 9 fails.
We next turn to the four grounds of appeal relating to the appellant's alibi. Ground 14 is that the judge failed to deal with the alibi evidence fully and fairly. The judge correctly told the jury that what was really important was the timing of the lift engineers' lunch break. It is submitted, however, that he did not summarise their evidence as to timings adequately and should have told the jury that they could not be sure that the engineers had not returned to Hollingbourne Towers at a time consistent with the appellant's evidence. The summing-up is also criticised on the ground that insufficient emphasis was given to the unique features of what the engineers were doing on 26th July, which the appellant described and which he could not have known about if he had not been at the building at lunchtime that day.
We have already related, in outline, the evidence as to the timings that was given to the jury by the three engineers. It was summarised at pages 56 to 60 of the summing-up. At page 60C the judge said:
"So we have in summary the general feeling amongst these men that they would not have got back by 1.30, but it did fall short of certainty. Bell seems to have been the most positive, Horstead the least".


In our view this was a perfectly fair distillation of their evidence.
The unique features which Mr Rees submits were not sufficiently emphasised were the fact that 26th July was the only day on which any lift engineering work was done in the basement, the only day on which Bell would have entered the building from the car park into the basement and the only day on which Horstead was mixing sand and cement (for which purposes he was on his haunches in the basement).
The judge mentioned the fact that the engineers usually had a snack lunch on site. He said the occasion was unique in another way because it was the only day on which some work was going on in the basement and also referred to the mixing of the cement by Horstead as a one-off affair. Finally, at page 62F the said judge said:
"Now, there are one or two details which you are asked by Mr Rees particularly to note about the defendant's account of this. First, this was the only day of work in the basement. Second this was the week that the work was to finish, and at some time one of the men would have been squatting mixing the cement, Mr Horstead, so that the point is made that for the defendant to get all three right he must surely have been there. No other day would be right."

In our view, the judge made sufficient reference to these important features of the case. We are not persuaded by ground 14.
Ground 15 alleges that the convictions were unsafe by reason of fresh evidence which we admitted, without objection from the Crown. This evidence showed that, on the morning of 26th July, Lippett left the premises of Maplin Electronics in Forest Hill at 10.10 am and travelled from there by car to the offices of his solicitors where he remained for about five minutes. From there he proceeded to Hollingbourne Towers. There was evidence of reconstructions of those journeys which showed that he would have arrived at Hollingbourne Towers between 11.00 and 11.30 am.
Mr Rees submits that this evidence assumes particular significance because, at the trial, Lippett, Bell and Horstead each agreed, although with different degrees of certainty, that their estimates of the time at which they returned from lunch depended on their recollection of the time at which they left for lunch. If this material had been available at the trial, he argues, it would have given him powerful ammunition with which to cross-examine Lippett on his recollection that they left the building at about 12.30 pm. Mr Pitchford counters this by pointing out that it is a striking feature of Lippett's affidavit before us to that he does not say that, in the light of the new material, he now believes that they left the building at some time before 12.30. Moreover, if the fresh evidence proves that Lippett arrived between 11.00 and 11.30, so they would have returned from lunch an hour or so earlier than previously indicated, this would be inconsistent with the account given by the appellant that he saw two men in the basement at about 1.30 because all three engineers said that within a few minutes of their return to the building Horstead was working alone in the basement.
In our judgment, the fresh evidence would have been very useful cross-examination material in the hands of Mr Rees. We also accept that the timing of the departure and return of the engineers was important in relation to the appellant's alibi and that the truth or falsity of his alibi was a central issue in the case. It is impossible to assess what effect, if any, the fresh material would have had if it had been available at the trial. In itself the fresh evidence alone would not, in our view, render the verdicts unsafe. But it is a matter which has to be taken into account together with the other successful grounds of appeal.
Ground 16 alleges that the judge misdirected the jury in relation to the evidence about a television transmission of the test match which ended in defeat for England at 2.21 pm on 26th July. The appellant said, both in interview and in evidence, that, on his return to the flat, he watched television until he went out again at about 3 pm. He was not interested in cricket but he recalled seeing the fall of two wickets, the players going off the pitch for lunch or for rain or something like that and seeing commentators speaking while the players were off the pitch. As we have said he named Benaud, Boycott and Lewis. The agreed evidence was that the players came back from lunch at 1.37 pm, a wicket fell at 1.38 pm and the last wicket fell at 2.21 pm. At 2.35 pm Tony Lewis appeared on the screen and introduced Messrs Benaud, Boycott and Illingworth. The transmission ended at 2.45 pm. At 1.40 pm the commentator told the viewers that there had been two stoppages for rain before lunch. The passage in the summing-up which is criticised by Mr Rees is at page 75B where the judge said:
"What Mr Pitchford invites you to do is to compare what the defendant said in the interviews about what was on the screen while he was watching and what did in fact occur. There are, so far as I can gather, three matters in particular. First, it seems to have escaped the defendant's attention that England suffered yet another ignominious defeat by an innings, which he did not mention; second, the commentators that he mentioned do not appear to have been visible on the box at any time when he would have been watching; and thirdly, there would have been no stoppage for rain."

We accept the submission that the statement that the commentators mentioned by the appellant did not appear on screen at any time when he would have been watching was a misdirection. Mr Pitchford submits that the judge was mistakenly recording the prosecution argument and not reminding the jury of the evidence. In our judgment, however, the jury would have understood the three matters mentioned by the judge as three facts established by the agreed evidence, and not three contentions of the prosecution which the jury could accept or reject. The evidence as to the television transmission was crucial, in that, if the appellant was telling the truth about what he said he saw, he could not have committed the murders. The effect of the misdirection was aggravated by two further points. First, the judge reminded the jury that there was no stoppage for rain during the afternoon. This had the effect of undermining the appellant's evidence. The judge did not, however, remind the jury that those viewing when the appellant claimed that he was were told of the two stoppages for rain in the morning. If so reminded the jury might have thought that, if he was not wholly concentrating on the programme, his recollection was confused as to the reason why the players came off the pitch in the afternoon. Secondly, the judge failed to remind the jury that two wickets did fall that afternoon just as the appellant had said.
Having regard to the importance of the cricket evidence in relation to the alibi we accept that ground 16 is substantiated.
Ground 17 is that the judge failed to give the jury a proper alibi direction. It is submitted that he did not tell the jury that if they concluded that the alibi was false this would not on its own entitle them to convict. Properly analysed, the challenge is to the lies direction given by the judge but with specific reference to the allegedly false alibi. It is not in dispute that, where lies are relied on by the prosecution, as they were in this case in relation to the appellant's alibi, a jury should be told that if lies are proved to have been told through a consciousness of guilt they may support the prosecution case but on their own they cannot establish guilt: see Broadhurst v The Queen (1964) AC 441 at 457 and R v Strudwick and Merry (1994) 99 Cr App R 326 at 331.
Mr Pitchford submits that, on a fair reading of the summing-up, the judge did give a proper direction. The judge told the jury that they must not automatically and without more assume that, merely because he had lied, the appellant must be guilty and he gave the standard reasons for that warning. He said that it was only if they were satisfied that there was no innocent reason for the lie were they entitled to regard it "as evidence, maybe very telling evidence, of guilt."
In our judgment there was nothing in these passages to indicate to the jury that they could not treat the lies as more than support for other evidence of guilt. On the contrary, the judge expressly directed the jury that a lie for no innocent reason could be "very telling evidence of guilt" and this was a misdirection. Mr Pitchford submits that, if it was a misdirection, it was immaterial since the allegedly false alibi was only one of six main planks on which the prosecution case rested. We cannot accept this. It is true that there were other strands to the prosecution case but, as the judge observed to the jury, the alibi issue probably occupied more time than any other at the trial and it was clearly a most important element of a prosecution case which was by no means strong. It is distinctly possible that the jury convicted only because they were sure that the appellant had given a false alibi. Accordingly, we uphold ground 17.
This was an unusual and difficult case to sum up. The summing-up came at the end of almost ten weeks of evidence and a week of speeches and was, in many respects, a tour de force in relation both to the law and the numerous and detailed factual issues. It was admirably succinct, scrupulously fair and, save for the very few blemishes to which we have referred, entirely accurate.
We are, however, of the clear view that the combined effects of (a) the wrongly admitted evidence both as to the September 1992 burglary and in rebuttal of Cheryl, (b) the nature of the directions as to identification and alibi, and (c) the fresh evidence in relation to the timing of the movements of the lift engineers is to render these convictions unsafe.
Although we do not make this a ground for our decision, we add this. On reviewing the whole of the evidence it seems to us that there was only one matter on which, in isolation, there was strong evidence against the appellant, namely his possession and wearing of a beige trenchcoat in the summer of 1993. If, as they may well have done, the jury concluded that the appellant and Cheryl had lied about this, it seems to us that there is a very real danger that they may in consequence have concluded that the appellant was lying about his alibi for the day of the murder, when this may not have been so.
We must mention one final matter, namely the judge's comments on the verdict disclosed to defence counsel. Whether or not a person is proved to be guilty of a serious criminal offence is, in this country, decided by a jury. In our criminal process it is not the job of any one judge either to decide guilt or to cast doubt on a jury's finding of guilt. The limited function of the trial judge in relation to the question of guilt is to decide whether there is, in law, sufficient evidence for the jury to consider, that is whether the evidence is such that a reasonable jury, properly directed, could convict.
This trial judge, rightly in our view, decided that there was such evidence. His role on this aspect of the case was thereby discharged. The question of whether he would himself have convicted the defendant did not and does not arise. His view was, and is, of no more relevance or materiality than that of an intelligent bystander in the public gallery who saw all the witnesses, heard all the evidence and understood the issues in the case. Inevitably there are occasions, although in the experience of the members of this court they are very rare, when a trial judge feels that he would not have found a defendant guilty or not guilty as the jury did. But that does not provide any proper basis for questioning the verdict of the jury whatever it was.
Of course, when, as in the present case, an appeal comes before this court and three judges review the evidence afresh, they have to consider whether they think the conviction is unsafe. But they reach their conclusion by reference to the evidence in the case and "the general feel of the case as the court experiences it" (Cooper 53 Cr App R 72). It is no more appropriate for them to consider the trial judge's view, to which he happens to have given expression, than it would be to consider the views of either the majority of the jurors or of dissenting jurors, for reasons which, as jurors, they are not permitted to express.
In each case where a mandatory life sentence is passed, the trial judge reports on the trial to the Home Secretary, giving his view as to the minimum term which should be served for the purposes of retribution and deterrence.
In the present case, the trial judge chose to disclose part of this report to leading counsel for the defence. Leading counsel sought to use the judge's comments on the verdict (there expressed) in support of his grounds of appeal. For the reasons which we have given, the trial judge's views are irrelevant to this court's determination, on appeal, of whether the verdict was unsafe. The judge's views, in so far as they bear on sentence, are, however, central to his sentencing role. Historically, when murder carried a mandatory death sentence, the trial judge's view on the safety of the verdict was, presumably, material to the Home secretary's consideration of whether the death sentence should be commuted to life imprisonment. Similarly, today, when the mandatory sentence for murder is life imprisonment and the penalty for manslaughter is within the discretion of the trial judge, the trial judge's views about the verdict, when a jury which could have convicted of manslaughter convicts of murder, may be relevant to assessment of the term to be served for retribution and deterrence. However, we very much doubt whether the trial judge's views about the verdict have any relevance for that purpose in a case, such as the present, when no question of a manslaughter verdict arose and when the only question was whether it was proved that it was the defendant who had committed the murders. That said, the content of a trial judge's report to the Home Secretary is not susceptible to the jurisdiction of this court. What appears in such a report is, subject to any guidance which may from time to time be given by the Lord Chief Justice, entirely a matter for the trial judge. It is for these reasons that the appeal was allowed.
MR TAYLOR: My Lord we seek to make an application that your Lordships consider making a defence costs order in favour of the appellant to be determined in the usual way by the determining officer.
LORD JUSTICE ROSE: What would be the point of that? He is on legal aid, is he?
MR TAYLOR: He has been legally aided, my Lord. There are certain transcripts which we prepared and provided for the court during the course of the appeal. These were not allowed by the Registrar so far as legal aid is concerned, but we seek to argue before the determining officer they should be allowed.
LORD JUSTICE ROSE: Were they transcripts which have played any part in the judgment of the court?
MR TAYLOR: My lord, yes, they are. I am not in a position at this stage to tell your Lordships exactly which they were. It is fairly complicated and can be argued if your Lordship directs that it should be considered by the determining officer on whether they should be allowed or not.
LORD JUSTICE ROSE: Would that follow if the court made a defendant's costs order?
MR TAYLOR: My Lord, yes, that would.
LORD JUSTICE ROSE: Yes, we shall make a defendant's costs order.
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