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Litchfield, R v [1997] EWCA Crim 1470 (17 June 1997)
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[1997] EWCA Crim 1470
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MARK LITCHFIELD, R v. [1997] EWCA Crim 1470 (17th June, 1997)
T960305
IN
THE CROWN COURT AT EXETER
Royal
Courts of Justice
The
Strand
London
WC2A 2LL
Tuesday,
17 June 1997
B
e f o r e:
MR
JUSTICE BUTTERFIELD
______________
R
E G I N A
-
v -
MARK
LITCHFIELD
______________
Computer
Aided Transcription by
Smith
Bernal, 180 Fleet Street, London EC4A 2HD
Telephone
0171 831 3183
Official
Shorthand Writers to the Court
_______________
MR
R LISSACK QC with MR D WESTCOTT appeared on behalf of THE CROWN.
MR
A JONES QC appeared on behalf of THE DEFENDANT.
_______________
J
U D G M E N T
(As
approved by the Judge
)
_______________
©Crown
Copyright
Tuesday,
17 June 1997
J
U D G M E N T
MR
JUSTICE BUTTERFIELD: Mr Litchfield is charged with three counts of
manslaughter. He was the owner and master of a square-rigged schooner called
The "Maria Asumpta" which foundered off the North Cornwall coast on 30 May 1995
with the tragic death of three of her crew. The prosecution allege that the
defendant is criminally responsible for those deaths by reason of his gross
negligence.
In
broad outline, the case for the prosecution is that the defendant put the
vessel on a course which was too close to the rugged coastline, especially on a
lee shore, so that he failed to sail at a safe distance from that shore.
Further, it is alleged that the defendant knew that the diesel fuel in the fuel
tanks on board the vessel was contaminated and likely to cause the engine to
fail if he had to use them to try to get out of difficulty. Finally, the
prosecution assert that when the engines did fail, in a number of respects the
defendant failed to take reasonable steps to retrieve the situation and protect
the lives of the crew, either individually or collectively. Those matters are
said to constitute gross negligence on the part of the defendant. The basis of
the prosecution case is particularised in the indictment.
Mr
Litchfield's defence is that he was not negligent in the course he set; he did
not know that the fuel in his tanks was contaminated so as to be likely to
cause engine failure; in any event, the contaminated fuel, if there was any,
was not the cause of the engine failure; and finally, when faced with the last
moments of the emergency, he did everything he could to save both his ship and
the lives of her crew.
The
evidence to be adduced by the prosecution comes principally from some of the
crew and from those involved in refuelling the vessel. However, the
prosecution also wish to call expert evidence which is critical of the
defendant's choice of route and of his handling of the final emergency.
At
committal the statements of two experts, a Captain Willoughby, a man with vast
experience at sailing square-rigged vessels, and Mr Hurst, a world authority on
sailing, were tendered to the court. The prosecution intended to rely on those
witnesses in support of their contention that the defendant's route was
dangerous and unnecessary and his handling of the emergency was wholly
inappropriate.
On
13 March 1997, Mr Lissack, leading counsel for the Crown, met those two experts
for the first time. He was concerned about the frail state of health of Mr
Hurst, who was then in his late 70s and had suffered from indifferent health
for a number of years. In the course of his consultation, Mr Lissack advised
Captain Willoughby and Mr Hurst of their duty to disclose any relevant material
in the way of working notes, correspondence and the like, which had come into
existence during their consideration of this case.
That
material was duly disclosed. It revealed extensive correspondence between the
experts, and some correspondence between at least one of the experts and junior
counsel for the Crown, Mr Sellick. The material was sent first to the Crown
Prosecution Service, who acted merely as a post box and forwarded it, unread,
to Mr Lissack. He received the correspondence disclosed by Captain Willoughby
in early April 1997. Mr Hurst took rather longer to disclose his
correspondence, finally disclosing it some weeks later. Mr Lissack, having
read the correspondence disclosed by Captain Willoughby, took the view that
Captain Willoughby, in the event, was significantly compromised by the content
of that correspondence. Through the correspondence, Captain Willoughby could
be demonstrated to be willing to change his evidence if he was told or asked to
do so either by Mr Hurst or perhaps by junior counsel for the Crown, it being
apparent that there had been extensive and undocumented contact between junior
counsel and the experts. Further, correspondence could be said to demonstrate
that Captain Willoughby might change his evidence if he thought that merging
his opinion with that of Mr Hurst would be to his personal or professional
advantage.
By
the time Mr Hurst's correspondence was disclosed, there was, in my judgment and
having considering the whole of the correspondence, clear evidence within it of
partiality and lack of independence. There was wholly inappropriate talk of
making common cause against the defence (on one occasion going as far as to
describe the defence as "the enemy"). Such an approach by experts is wholly
wrong. Even allowing for the robust approach of two old salts to the matter in
hand, the situation was seriously disturbing. Mr Hurst, in addition to the
question mark over his health, was to some extent tainted by his connection and
correspondence with Captain Willoughby.
Having
reflected on the situation and sought independent advice from other counsel, Mr
Lissack advised that the whole of the correspondence should be disclosed to the
defence. In my judgment, he acted entirely properly by so doing. But in my
judgment, at least in hindsight, in so doing the consequence was that the Crown
could not, in reality, rely upon either expert. The gravity of the situation
is demonstrated by the fact that junior counsel, Mr Sellick, considered himself
to be so compromised that he withdrew from the case.
Urgent
efforts were made to find an untainted expert who would be able to express a
detached professional view on the matters hitherto dealt with by Captain
Willoughby and Mr Hurst. A Mr Scott was identified. He is a highly
experienced sailor with considerable knowledge of square-rigged sailing. He
was instructed to consider all the material in the case,
except
the statements, records, letters, charts and exhibits of Captain Willoughby and
Mr Hurst. In addition, he was not shown the report of the defence expert,
Captain Briggs. Mr Scott produced a statement dated 20 May 1997, which was
served on the defence by a notice of additional evidence dated 30 May 1997,
together with a letter informing the defence that the prosecution did not
intend to rely on the evidence of Mr Hurst or Captain Willoughby. However, the
Crown are prepared to tender Captain Willoughby for cross-examination and to
tender Mr Hurst unless his health prevents his giving evidence.
I
have no hesitation in concluding that this is a highly disturbing and very
regrettable state of affairs. The trial is due to start in two weeks' time.
Mr Jones, on behalf of the defendant, submits that I should not permit the
prosecution to lead the evidence of Mr Scott. It is said that the service of
the proposed evidence amounts to a manipulation of the court processes and is
an abuse of process. It is said that, in effect, when the prosecution realised
that the correspondence would provide no doubt welcome ammunition for the
defence to fire at the prosecution experts, they sought to obtain a further
expert and, having found him, abandoned their initial experts.
I
am invited to exclude the evidence of Mr Scott, either under the court's
inherent powers or under s 78 of the Police and Criminal Evidence Act.
Undoubtedly I have the power so to direct. In exercising that power, I must
have at the centre of my consideration the question of fairness. Of course
fairness must extend to the defendant, but fairness is not a one-way street.
It has to be seen and considered in the context of the prosecution process as a
whole, which requires fairness not only to the defendant but to the victim, to
the families of the victims, to the state and to justice generally.
Applying
those principles, I am left in no doubt that fairness requires me to permit the
prosecution to lead the evidence of Mr Scott. His conclusions on the essential
elements of the prosecution case are identical to those reached by Captain
Willoughby and Mr Hurst, though (it should be said) expressed in rather more
moderate and detached language. Thus the defence are not, in my judgment,
prejudiced in any way by the change in personality of the expert.
If
I declined to admit the evidence of Mr Scott, the prosecution would be severely
hampered and considerably prejudiced. Mr Jones submits that they have brought
that situation on themselves by the way in which the experts and perhaps junior
counsel have behaved and so should be penalised by not being permitted to seek
to remedy the situation. I do not accept that submission. The defendant is
entitled to a fair trial, but so are the prosecution.
Mr
Scott makes certain criticisms of the defendant which were not made by the
earlier experts and which find no resonance in the particularised indictment. I
do not propose to allow the prosecution to lead evidence of any criticisms
which have not already been made by either Mr Hurst or Captain Willoughby. Mr
Jones submits that Mr Scott will not be able to deal in cross-examination with
suggestions put to him without recourse to some of those hitherto unexpressed
criticisms. That depends on the line of cross-examination, which I cannot and
do not seek to predict. It is to be hoped that Mr Scott will be able to avoid
reference to those criticisms which seem to me to be peripheral to the central
matters in this case. If Mr Jones chooses to cross-examine so as to expose
those other matters, that will be for him to decide. It is not a ground for
excluding his evidence.
The
second matter raised concerns the other witnesses whom the prosecution propose
to call at trial. At the committal proceedings the prosecution relied on the
evidence of four members of the crew: Mr Purser, the second mate; Mr Howells,
the helmsman; and Mr Ludlow and Mr. Maunder, both carpenters working on the
refit of the vessel. Statements were taken from a number of other members of
the crew, in particular a Mr Bennett, the mate, and Mr Campbell, the chief
engineer. Statements were also taken from Mr Chatfield, a deckhand, Mr Croome,
a boatman, Mr McLaughlan, a bosun, and Mr Bowen, an assistant cook. Mr Jones
submits that the prosecution should be required to call each of those witnesses
to give evidence at trial. He draws my attention particularly to the potential
evidence of Mr Bennett who may be able to give. Mr Bennett, in the course of a
statement made to the police, expressed the view that the defendant had shown
sound seamanship and that the vessel was in extremely good condition with
adequate equipment. He made no criticism of the course taken by the defendant
on the afternoon of the disaster, nor of his handling of the final emergency.
Mr Campbell was below deck in the vicinity of the engines when they failed, and
in statements to the police he spoke of the condition of the ship's fuel
system, the quality of the fuel and his views on the probable cause of the
engine failure.
Neither
Mr Bennett nor Mr Campbell, nor indeed any other member of the crew which I
have identified, gave evidence at committal, nor were their statements served
as part of the prosecution case.
Another
area of the case concerns a prosecution witness, Mr Borman, who is a marine
engineer. His statement did form part of the committal documents. Its
conclusion as to the cause of the engine failure was that the probabilities
were that the fuel filters became clogged with contaminated fuel but he would
not positively confirm that opinion. His opinion appears to have been based,
if not entirely, certainly to a very large and overwhelming extent, on the
content of the earlier witness statements made by Mr Campbell. The Crown have
indicated that they no longer seek to rely on Mr Borman but will tender him for
cross-examination.
Mr
Jones submits that I should require, or at least request, the Crown to call all
these witnesses. He submits that the law is that the prosecution must call all
witnesses who can give material evidence as to the primary facts of the case
unless, for good reason, the prosecution regards their evidence as unnecessary,
unreliable, repetitive or tainted. It is not a good reason, he submits, that
the witness gives a version of events which is unhelpful to the prosecution or
inconsistent with the evidence of other witnesses. It is the duty of the
prosecution to place all the evidence before the jury, submits Mr Jones, from
whatever source and however inconsistent with the allegations made by the
prosecution. That should be done unless there is some particular reason to
regard that witness with reserve. The mere fact that a witness contradicts the
evidence of others is not, without more, sufficient justification for not
calling him.
In
my judgment, the law on this topic is clear. I take it from
R
v Kenneth Russell-Jones
[1995] 1 Cr App R 538, as illustrated by
R
v Haringey Justices
[1996] QB 351 and
R
v Richardson
[1994] 98 Cr App R 174. It is unnecessary in this judgment to rehearse the
judgments of those decisions. In my judgment, it is plain beyond peradventure
that the prosecution have an unfettered discretion in deciding which statement
to serve for the purpose of committal. There is no obligation upon them to
serve at committal all those persons who are able to give evidence of the
primary facts. Of course, if they choose not to do so, certain consequences
may follow. Comment may be made -- and perhaps strong comment -- on the
absence of the witness from the prosecution case. The defence may themselves
choose to call the witness. Of particular relevance in this case is the
evidential rule that the relevant facts upon which an expert opinion is based
must be proved before that expert opinion can have any weight in the context of
the case. All these circumstances may ultimately redound to the disadvantage
of the prosecution. But that is their problem, and they exercise their clear
and unfettered discretion in that knowledge. Thus there is no duty upon the
prosecution to call or to tender either Mr Bennett, Mr. Campbell or any other
member of the crew who is not presently proposed to be called by the Crown. As
to Mr Borman, the wide discretion granted to the prosecution fully entitles
them to tender this witness rather than to lead his evidence.
I
therefore reject the submissions made to me by Mr Jones on this issue. I note,
however, that Mr Lissack has undertaken to use the resources available to the
Crown to seek to have at court such witnesses as can be found who were members
of the crew so that, if required, they may be called on behalf of the defence.
Mr
Jones reminds the prosecution, through his submissions to me, of the
responsibility of prosecuting counsel to act fairly and impartially, and in
particular not to seek to inflame the jury in his opening remarks by the use of
emotive or sensational language. I am confident that Mr. Lissack is fully
conscious of that responsibility, and I have every expectation that he will
discharge it properly. In the particular circumstances of this case, I think
it appropriate to direct, and I do so direct, that the prosecution should
provide a note of their opening to the jury. That can, of course, be in note
form and I do not, by that direction, require Mr Lissack to produce a script of
every word he proposes to say. It should, however, make plain what evidential
matters are to be relied on by the Crown in their opening.
May
I, with some diffidence, end this short extempore judgment with this
observation. Emotions about cases of this nature can run high, not only
amongst those who are sadly caught up in them but at the Bar as well. Passions
are easily aroused when there has been an unfortunate sequence of events such
as that surrounding the evidence of Captain Willoughby and Mr Hurst. I am
confident that, with counsel of such eminence representing the defendant and
the prosecution, they will both remember at all times that emotion can be the
enemy of justice and that their respective causes may not be best served by
personalising the issues to be resolved.
Yes,
Mr Jones?
MR
JONES: My Lord, I hope I can make one further observation. It has occurred to
me overnight to apply to the Court to be allowed to make, at the conclusion of
my learned friend's opening, a short opening of my own.
MR
JUSTICE BUTTERFIELD: Identifying the issues?
MR
JONES: Identifying the issues, and saying what our defence is going to be and
how we are going to proceed in cross-examination.
MR
JUSTICE BUTTERFIELD: Mr Lissack?
MR
LISSACK: I think that is a very good idea, and we have no objection.
MR
JUSTICE BUTTERFIELD: Good. Hopefully this new spirit of amity will continue
to prevail. Yes, I think that is a very good idea, Mr Jones, and I approve of
it. You will no doubt be providing a copy of your opening note to Mr Lissack,
again obviously in note form.
MR
JONES: Yes, I shall.
MR
JUSTICE BUTTERFIELD: Now, Mr Lissack, you wanted to deal with certain
housekeeping matters?
MR
LISSACK: Yes, they are tedious matters to detain your Lordship with, but it
was just really this. Would it be more convenient, does your Lordship think,
for the Crown to begin the opening on the Tuesday?
JUDGE
BUTTERFIELD: I think it might. Presumably the case estimate remains the same,
does it? It is difficult to know.
MR
LISSACK: It is.
MR
JUSTICE BUTTERFIELD: If Mr Jones chooses to pursue one particular line of his
case, which he may, and he now has the material to do it, one can imagine the
cross-examination of Captain Willoughby, for example, extending over a while?
MR
LISSACK: Yes.
MR
JUSTICE BUTTERFIELD: I do not know, but I do not want to hold anyone to
ransom. It is certainly going to finish by the end of August, is it?
MR
JONES: My Lord, I would have thought it is at most a
six-week
-- so far as the -----
MR
JUSTICE BUTTERFIELD: Yes, I am grateful. What I am anxious to do is to give
the prospective jurors, all of whom gladly volunteer on day one, the
opportunity to go home and for their wives or husbands to say: "What on earth
are you doing, agreeing to sit for six weeks? Have you not remembered we are
going on holiday," and for the juror to say: "Yes, that is why I volunteered!"
And also, there may be administrative matters to deal with, or evidential
matters.
MR
LISSACK: Yes, exactly. My Lord, thank you. That is all I
need
-----
MR
JUSTICE BUTTERFIELD: I did raise, I think, at the last pre-trial review, the
question of any questions to the jury.
MR
LISSACK: Which I have done nothing about, and I have to confess that.
MR
JUSTICE BUTTERFIELD: Well, I simply remind you both of that, and whether you
wish me to consider whether it is appropriate to ask any question of them. It
was also, I think, proposed to have available a list of the names of the
witnesses on whom the prosecution propose to rely with sufficient
identification to enable the jury to see that list and understand it, so that
they may consider it before coming into court, rather than in court. It has
certainly been my experience that when lists are read out, people are in such a
state of apprehension about what is going to happen to them that they cannot
really apply their mind. May I suggest, Mr Lissack, that you, or your junior,
perhaps, construct such a list, but please agree it with the defence before it
is shown to the potential jurors.
MR
LISSACK: Would it be appropriate to limit it to live witnesses, or would your
Lordship think all the witnesses in the case?
MR
JUSTICE BUTTERFIELD: If there is no dispute as to any witness' evidence, it
does not matter if that witness is the next-door neighbour of a juror, does it?
I should think live witnesses would be sufficient.
MR
LISSACK: Thank you.
MR
JUSTICE BUTTERFIELD: Is there anything further I can deal with, Mr Jones?
MR
JONES: No, thank you, my Lord.
MR
JUSTICE BUTTERFIELD: You have no application to make? Your solicitor is -----
MR
JONES: Yes, my Lord, I want to consider the question of costs.
MR
JUSTICE BUTTERFIELD: Yes, I thought you might.
MR
JONES: I am sure that is what he wants.
MR
JUSTICE BUTTERFIELD: You do not want to do that now?
MR
JONES: My Lord, the argument would come under the costs in criminal cases
regulations in the current edition of Archbold at para 3, page 742.
MR
JUSTICE BUTTERFIELD: Yes. Do you want us to look at it or -- if you are
simply saying that you want to reserve your position on it -----
MR
JONES: I would like to reserve it, my Lord.
MR
JUSTICE BUTTERFIELD: That is fine.
MR
JONES: And also to try to make calculations. Perhaps it could be raised at
some moment in the trial. I expect there will be some, when we have a break
with the jury.
MR
JUSTICE BUTTERFIELD: Yes. Mr Jones, as you will understand from the
intervention that I made, I am not unsympathetic to such an application,
depending on how it is made and for what.
MR
JONES: Yes, my Lord.
MR
JUSTICE BUTTERFIELD: And to what matters it goes. Yes, we will deal with it
at some stage in the course of the trial. Thank you very much.
-----------------------------
© 1997 Crown Copyright