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R V Donald Pendleton [2000] EWCA Crim 45 (22nd June, 2000)

Case No: 99/0783/S1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of justice
Strand, London, wc2a 2ll
Thursday 22 June 2000

Before:

LORD JUSTICE PILL
MR. JUSTICE SACHS
AND
MRS. JUSTICE STEEL

____________________
Regina
V
Donald Pendleton
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________
Mr Michael Mansfield QC & Mr Henry Blaxland Appeared on behalf of the Appellant
Mr David Waters QC & Mr Jeremy Benson Appeared for the Respondent
____________________
Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE PILL:
On 3 July 1986, in the Crown Court at Leeds before French J and a jury, Donald Pendleton ("the appellant") and a co-accused John Thorpe were convicted of the murder in 1971 of Bernard Clark. They were each sentenced to life imprisonment. On 4 February 1999, the Criminal Cases Review Commission ("the Commission") referred the conviction to this Court under section 9 of the Criminal Appeal Act 1995. A renewed application for leave to appeal against conviction had been refused by the Court on 8 June 1987.
The background
In the summary at the end of their statement of reasons, the Commission refer to evidence obtained since leave was refused from Professor G H Gudjonsson, consultant clinical psychologist, and to material contained in the Commission's interview of Mr G Sharpe, who gave evidence at the trial. We propose to deal with the reference, on the basis of written and oral submissions made to the Court by Mr Michael Mansfield QC and Mr Henry Blaxland, neither of whom appeared at the trial. Some of the matters which had initially troubled the Commission are, for good reason, not pursued. Professor Gudjonsson gave evidence before us, as did Dr R J Badcock, consultant forensic psychiatrist. Both witnesses were cross-examined on behalf of the prosecution.
Bernard Clark was killed as long ago as the night of 2/3 June 1971. The police conducted a major investigation at that time. No charge resulted from that investigation and on 19 June 1971 a "suspects elimination form" was completed with respect to the appellant. In late 1984, Sharpe approached the police to say that he had information to implicate the appellant and John Thorpe in the killing. In March 1985, Thorpe and the appellant were arrested. In long interviews, the appellant made significant admissions as to his presence at the scene of the murder. In June 1985 Mr B Gallimore made a statement in which he alleged that admissions had been made to him in prison by Thorpe and the appellant. At the time of the trial, relevant material, including a statement made by the appellant on 19 June 1971, had been mislaid. Some of the material, including the appellant's statement, has since been found. What has remained of the record of the trial is far from complete but we have the advice of trial counsel and the notes of the DPP's representative at the trial and the absence of other documents does not prejudice the conduct of this appeal.
Clark, who was a newspaper seller on the streets and was known as Nobby, was attacked at night and robbed of his watch and the contents of his money belt. His body was found on 3 June lying in a stream, known as the Beck, just off Ingleby Road, Bradford. The road crosses the stream at right angles. The stream is at the foot of steep grassy banks. Death had been caused by asphyxiation through inhalation of blood resulting from numerous injuries to the face, including a fractured nose, jaw and temporal bone. Considerable force had been used.
The trial
At the trial, the prosecution relied on the admissions made by the appellant that he was with Thorpe on the evening of 2 June and was present with him near the place at which the body was found. Sharpe's evidence was that he had seen Thorpe and the appellant at the scene. Gallimore gave evidence of admissions allegedly made to him. Thorpe gave evidence at the trial to the same effect as he had in earlier statements to the police. The appellant had been present at the scene and, according to Thorpe, had conducted the attack upon the deceased.
Upon advice from leading counsel, the appellant did not give evidence. In his proof of evidence he had denied presence at the scene. His presence was not however challenged in the course of the trial, the defence being run on the basis that he did not participate in any attack upon Clark. Once the presence of the appellant at the scene is accepted or established, it is not suggested that a conclusion on the evidence that the appellant participated in the offence was other than justified, though there was material upon which a case of non-participation could realistically be advanced.
No criticism is made at this hearing of the way the appellant's case was conducted at the trial by Mr SW Williamson QC and Mr J S Wolstenholme. An advice was received from Mr Williamson on 25 April 1996, in the course of investigations which led to the reference. The presence of the appellant at the scene had not been challenged at the trial, notwithstanding the appellant's statement that he was not there. Leading counsel states:
"However, his [the appellant's] instructions were clear enough that he was not there and did not commit the murder but his instructions as to how he came to make the lengthy interviews to the police, apparently recorded contemporaneously, though not yet on tape, following the coming into force of the Police and Criminal Evidence Act 1984, were sparse, and of themselves not likely to believed ... ."
Counsel set out parts of the appellant's proof of evidence available at the trial. Parts of it are set out later in this judgment. Counsel added:
"the central concern of me and my Junior was to try to improve on the how and why, not of an old fashioned `voluntary statement' but of quite protracted questions and answers in the post-1984 style, and bearing in mind Mr Pendleton's experience of the police, not much was produced ... Any overturn of the conviction would have to overturn the police interviews. I am not satisfied that there is or ever has been the material, even in the more forgiving era since 1984. ... Advice was tendered. It must have been that to give evidence he was not there and that what he told the police was untrue -- he did admit saying the things recorded -- was the certain road to disaster, but to leave the jury with the prosecution case subjected to cross-examination was to give him a chance on the non-involvement argument. Indeed we must have thought at the time a fighting chance. Mr Pendleton accepted that advice and I am sure understood it."
Given the material available to counsel at the trial, their approach to the case is not criticised by Mr Mansfield on behalf of the appellant, nor could it sensibly be criticised. Apparently weighty denials of participation by the appellant in his police interviews accompanied the apparently significant admissions of presence at the scene. The evidence of Gallimore supported a defence case of presence without participation. Had the appellant given evidence and denied presence, he was likely to have been disbelieved given the lack of any explanation for his admissions. A jury whose members found him to have been lying about presence would have been most unlikely to give weight to evidence that he was not a participant in the attack on Clark.
The trial note of the representative of the DPP at the trial included a note that he had been told that, after Thorpe had given evidence, the appellant had said that he wanted to give evidence but had been discouraged from asking to do so by his legal advisers. The work "asking" is no doubt used because, the appellant being first on the indictment, the Court would have been told before Thorpe had given evidence that the appellant was not giving evidence. The fundamental change in the nature of the defence case at that stage involved in calling the appellant would in any event have been extremely difficult because prosecution witnesses had been cross-examined on the basis that the appellant's presence at the scene was not contested. The safety of the verdict should, it is submitted, be considered in the context not of the case put forward at the trial but of the instructions given by the appellant that he was not present at the scene.
Shortly after the trial, on 22 July 1986, Mr Wolstenholme, having discussed the case with Mr Williamson, had advised that there were no grounds for appealing against conviction. However, and putting it neutrally at this stage, it is easy to understand the appellant's sense of frustration at hearing Thorpe's evidence when his defence had been put on the basis of presence but non-participation and the statement he had given to his legal advisers claimed that he had not been present.
The appellant's case
Mr Mansfield's submission on behalf of the appellant is that there is now material to explain why the appellant made false admissions to the police as he has throughout claimed to have done. On the basis of Professor Gudjonsson's evidence, the admissions made by the appellant in interview cannot be relied upon. Had the evidence of Professor Gudjonsson and the appellant's then mislaid statement been available at the time of the trial, the presence of the appellant at the scene would be likely to have been contested. There would also have been material as to alternative suspects which could have been placed before the jury. On the material now available, the conviction is unsafe. That case could have been supported, had the 1971 statements of the appellant and other witnesses been available in 1985, with evidence of alibi. Moreover, material is now available which casts doubt on the evidence of Sharpe and Gallimore as to the appellant's presence at the scene of the murder. The conviction involved an assumption of presence and was unsafe.
The Commission requested an interview with Thorpe. He refused to co-operate with the Commission's investigation. Thorpe also gave long interviews in 1985. The jury were properly directed by the judge that the contents of those interviews could not be evidence against the appellant. In his evidence at the trial, Thorpe said that he and the appellant were present and that it was the appellant who attacked Clark. The judge took the unusual, but in the circumstances proper course, of directing the jury to ignore Thorpe's evidence against the appellant. He thought it fair to do so in the context of a case where both men on the evidence admitted presence at the scene and the one who gave evidence alleged that the one who did not was the attacker. The judge could hardly have given that direction if both defendants had given evidence.
Evidence of Professor Gudjonsson and Dr Badcock
Both witnesses provided comprehensive written reports. It was accepted that their evidence should be received by this Court. Mr Mansfield accepted that it was in the end for the Court to form its view as to the reliability of the interviews having considered the expert evidence. He, and Mr David Waters QC for the prosecution (who also did not appear at the trial), said that, unless the Court wanted the witnesses called, they proposed to allow the Court to reach its own conclusion on the basis of the written reports and the other evidence now available. The Court took the view that there were points at issue between prosecution and defence, as revealed in their written submissions, which ought to be put to the witnesses orally. The Court having given that indication, Mr Mansfield readily agreed to call the witnesses.
The Court has to consider the effect of a series of interviews conducted over a period of three days, 23, 24 and 25 March 1985. Notes were made contemporaneously. On one occasion, after the fourth interview on 23 March, the appellant gave a statement in narrative form which was taken down. After the second interview on 24 March, he was left with pencil and paper and wrote a statement himself, running to about 300 words of handwriting. A short hand-written statement was also provided after the second interview on 25 March. Detective Sergeant Light also gave evidence of answers given to him on occasions on those days, other than those where a contemporaneous note was made, including what the appellant said during a visit to the scene of the crime in the afternoon of 24 March. The notes and records are accepted as an accurate record of what the appellant said over the three day period.
The appellant told Professor Gudjonsson of his arrest (and later release) about two years before his arrest in 1985 on suspicion of murder of another man, Mr Jimmy Adams. This made him apprehensive. He also said that he had been badly beaten by the police in about 1980 when arrested for a driving offence and was fearful of them. It is not suggested by the appellant that he was threatened with violence in 1985.
At the time of trial, the psychometric tests pioneered by Professor Gudjonsson to measure psychological vulnerability relevant to the reliability of confessions were not widely known. The results of such tests have since that time often been admitted in evidence. Professor Gudjonsson has given evidence in many cases, including in six cases before this Court. His report is dated 18 January 1999. His tests showed that the appellant's verbal scale IQ was 89 which puts him at the upper end of the low average range. It had been measured as 87 in tests conducted before the trial. Intellectually, the appellant could not be viewed overall as being significantly disadvantaged. The other conclusions in the written report were as follows:
"2. The abnormally high acquiescence and inconsistency scores obtained during the present testing indicated that Mr Pendleton has problems understanding questions of moderate complexity, or that he answers questions without carefully considering their content. The results indicate that Mr Pendleton has a strong tendency to answer questions in the affirmative irrespective of content.
3. Mr Pendleton proved to be abnormally suggestible on testing. All the suggestibility scores were highly elevated and indicate that he tends to give in very readily to leading questions and interrogative pressure.
4. The very high score obtained on the compliance scale falls well outside normal limits and indicates that Mr Pendleton has a strong tendency to please others and tries hard to avoid conflict and confrontation.
5. The scores obtained on the Eysenck Personality Questionnaire (EPQ-R) indicate that Mr Pendleton is a highly anxious person with the temperament of an extrovert. Mr Pendleton claims to be far less prone to anxiety than he was previously. He attributes this to having matured in prison and to the fact that the Criminal Cases Review Commission has taken an interest in his case. He also claims that many people within the prison, including staff, believe in his innocence which has given him a great deal of confidence. When his anxiety proneness score (Neuroticism) was corrected for how he viewed himself before his arrest in 1985 and in the first 10 years after his conviction, it falls well outside normal limits. What can be concluded is that Mr Pendleton currently reports being less anxious than he used to be, which is supported by the reading from his Inmate Medical Record.
6. The very low score obtained on the Gough Socialisation Scale indicates that Mr Pendleton has personality characteristics consistent with those typically found in persons with personality disorder. It is consistent with the diagnosis made in 1983 of Mr Pendleton of `inadequate psychopathic personality disorder'.
7. I found no evidence that Mr Pendleton is mentally ill at present. He is clearly a very anxious man and this was identified by Dr Badcock when he assessed Mr Pendleton while he was on remand. His anxiety proneness is a feature of his personality and is likely to be constitutional as suggested by Dr Badcock.
8. As far as the police interviews and Mr Pendleton's self-incriminating admissions are concerned, I am of the view that in 1985 he was a psychologically vulnerable individual. He was an extremely anxious individual who was finding it difficult to cope with life (his medical records confirm this). The record of the police interviews gives an indication of his immense distress and agitation concerning his arrest and questioning, which appear to have been accompanied by a lack of concern or thought about the consequences of his admissions. His anxiety proneness seems less pronounced now than it was in 1985, but in spite of this he proved to be abnormally suggestible, compliant and acquiescent. These vulnerabilities are likely to have been present, and possibly more marked, in 1985. Finally, it is evident from the transcripts of the police interviews that Mr Pendleton was subjected to considerable pressure to confess, pressure he was clearly having difficulties coping with.
9. Having considered this case carefully I have serious reservations about the reliability of the self-incriminating admissions Mr Pendleton made to the police in 1985."
Summarising his opinion orally, Professor Gudjonsson said that he did not know if there had been a false confession but the appellant's personality disorder may make him particularly vulnerable to making a false confession. There was a serious question on the reliability of the confessions.
Cross-examined by Mr Waters, Professor Gudjonsson said that his report was based on an interview of 2½ hours on 20 October 1998. The witness had told the appellant that he should be as honest and helpful as he could. It was a disadvantage to attempt to evaluate the issue 15 years after the interviews but Professor Gudjonsson believed the vulnerability to be of long standing. Professor Gudjonsson agreed that the effect of the interviews was to accept presence at the scene of the crime but to deny any role in the attack on the deceased. The witness said that it was not uncommon for a line to be drawn in that way. The police did not pressure him to say that he was the principal assailant. They did not seem to put an awful lot of pressure on him to say he was the main attacker. The drawing of the line by the appellant does not contradict the suggestibility finding. They were lengthy interviews. If the police brought a great deal of pressure on him, he might have been prepared to make admissions to get out of the situation in the belief that everything would be alright. The witness was aware that the appellant had been at police stations before. (The appellant had previous convictions.) It was a common pattern to admit as much as the information available to the police required. They did not have actual evidence of participation.
Professor Gudjonsson was asked about the detailed account given by the appellant at page 22 of the bundle and set out later in this judgment. He accepted that the police questioning was restrained at that stage and did not suggest a particular account. Professor Gudjonsson accepted that the appellant's account was a spontaneous one. The question was whether it was genuine recollection or just making things up. Professor Gudjonsson said there was no way he could tell.
As to the further detailed account (p 46 and following) after the appellant's visit to the scene of the crime, Professor Gudjonsson said that it could be true but there may have been contamination (by the visit). That was all he was saying. He accepted that suggestion had not at that stage been put to the appellant. On the face of it, the account looked like a spontaneous account but the witness could not say whether the appellant was making it up. In relation to that and other detail given by the appellant, Professor Gudjonsson said that he did not know if the appellant was guessing or imagining. He might have been.
Memory of detail does deteriorate with time especially if the person was under the influence of drink or drugs. Professor Gudjonsson had no reason to doubt that statements in the police interviews as to the use of drink and drugs by the appellant at about the material time were true. The appellant had said that he was on drink and tablets.
On re-examination, the witness was asked about the appellant's reference to there being "steps" at the scene of the crime as described by him in interview. It could have been a false memory, it could have been guessing, confabulation, or the appellant could have thought that there were steps at the scene. The most likely explanations were of a false image of steps or that he was just guessing.
Dr Badcock provided two written reports for the purposes of the present appeal, the first on 23 December 1998 and the second on 29 January 1999. As a consultant forensic psychiatrist, Dr Badcock had examined the appellant, conducting a total of five interviews between April 1985 and April 1986 for the purposes of the trial. He had also seen him twice as a patient. In April 1986, Dr Badcock's opinion was:
"1. Mr Pendleton is sane and fit to plead to the charge against him.
2. He has a tense anxious, dependent personality but shows no signs of mental illness. Psychiatric supervision may help him control some of his feelings of anxiety and he has been offered this on an outpatient basis.
3. I make no specific psychiatric recommendation in this case."
In December 1998, Dr Badcock, having studied the transcripts of interviews in 1985 and having considered Professor Gudjonsson's report, concluded:
"The interviews provide many examples of Mr Pendleton appearing anxious to please the interviewing officers by answering their questions as directly and fully as he can. There are indications that he may be suggestible in some of his replies as a result of this, although no indications that this suggestibility extended to the point of declaring guilt or complicity except in moments of extreme and obvious distress. His statements at these times were not followed up by the interviewing officers who terminated interviews at these points because of his recognised distress.
There are no indications that the officers overly pressurised him in any way but there are indications of him reacting in an extremely distressed way on at least two occasions. Both of these occasions were accompanied by both agitation and apparent panic. Although the second incident was ascribed to temper, in fact a state of anxious collapse is the more likely interpretation. Although the nature of his agitation was evident to the officers its origin was less clear and they may not have taken account of such things as his expressed fear of Mr Thorpe or his reasons for breaking down at the points he did. One was precipitated by the introduction of Mr Thorpe's name and the other was accompanied by the belief that he was not himself being believed.
I agree with Dr Gudjonsson that Mr Pendleton presented as a psychologically vulnerable individual during the period of the police interviews. I also agree that in some aspects of the interviews he appears to have been suggestible. I am perhaps less confident than Dr Gudjonsson that all self-incriminating admissions were obtained as a result of pressure to confess and, in the real life situation, he seems to have steadfastly maintained his belief that he was not directly involved in the death of Mr Clark."
Dr Badcock further reported in January 1999, having seen a statement made by the appellant. Dr Badcock stated that the implications for his earlier report were:
"My analysis of the police interviews as set out in my report of 23rd December remains unaltered because it is not contingent on any information coming from outside the transcripts themselves. My conclusions from this analysis have therefore also not changed.
There is plenty of evidence that he was vulnerable in the interview situation and said things to please the police, but rather less that he was suggestible to the point of giving consciously self-incriminating admissions. One of the situations that this analysis cannot cover, however, is the one where Mr Pendleton's agreeing that he was in the vicinity is actually incriminating but he does not recognise at the time that such an admission is as incriminating as it turns out to be and therefore does not react to the risk.
Thank you for keeping me informed about the progress of the case and I look forward to hearing from you if there is anything else you would like me to consider."
In oral evidence, Dr Badcock said that the appellant was being very accommodating at interview. At times he was agreeing without necessarily making a statement on his own account. There was a limit to the extent he would do that. When something more incriminating was mentioned, he was not slow to say in effect "hang on" or "that's not what I said".
Cross-examined, Dr Badcock said that it was to him strange and surprising that if the appellant had lied to the police during the interviews he did not refer to that when interviewed by him [Dr Badcock]. Except for one reference at the end of the interviews, the appellant was very consistent in saying that he was not directly involved. Dr Badcock said that he had more misgivings about the last confessions. The statements made after the appellant's visit to the scene of the crime could be as straightforward as they appeared but Dr Badcock had a niggle that they did not ring true.
Having given that answer, however, Dr Badcock later stated that the accounts given by the appellant were not only spontaneous but had an authentic flow to them, though it was easier to make a judgment in that respect with a taped record, rather than, as in this case, a contemporaneous note. The accounts appeared informed, natural and genuine. They did not flow on from what had been said before but included new information. When the appellant could see something coming, he was quick to assert himself. Underlining the second sentence in the second paragraph of the conclusions expressed in January 1999, Dr Badcock said that the admissions may be more significant in retrospect than the appellant thought they were at the time. He may have had difficulty in establishing their forensic relevance. The appellant appeared to deal straightforwardly with questions and gave answers which were not forensically expedient but honest.
The Law
By virtue of section 2 of the Criminal Appeal Act 1968, the Court of Appeal shall allow an appeal against conviction if they think that the conviction is unsafe and shall dismiss such an appeal in any other case. Mr Mansfield referred to the citation by this Court in McNamee (Transcript 17 December 1998) of a statement made by Carswell LCJ in the Northern Ireland Court of Appeal in Clegg (transcript 27 February 1998) in which the speech of Lord Cross in Stafford and Luvaglio [1974] AC 878 had been considered. Carswell LCJ stated:
"It [the Court] may conclude that the impact of the fresh evidence upon 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."
In McNamee, the Court considered the case to be in that category and quashed the conviction.
Mr Mansfield also referred to the last paragraph of the judgment of this Court in O'Brien & Ors (transcript 25 January 2000). Roch LJ stated:
"The evidence both factual and expert which has been placed before us has satisfied us that this is a case in which such evidence would now be admissible, and that a jury having heard such evidence may well have reached different verdicts."
The convictions were quashed.
In Steven Jones [1997] 1 C App R 86, Lord Bingham CJ cited the judgment of the Court in Callaghan (1989) 88 C App R 40, 47 where the speech of Viscount Dilhorne in Stafford and Luvaglio was cited. Viscount Dilhorne had stated:
"Mr Hawser strongly urged that the Court should recognise that reasonable men can come to different conclusions on the contested issues of fact and that, although the court came to the conclusion that the fresh evidence raised no reasonable doubt as to the guilt of the accused, they should nonetheless quash the conviction if they thought that a jury might reasonably take a different view. I do not agree. It would, in my opinion, be wrong for the court to say: `In our view this evidence does not give rise to any reasonable doubt about the guilt of the accused. We do not ourselves consider that an unsafe or unsatisfactory verdict was returned but as the jury who heard the case might conceivably have taken a different view from ours, we quash the conviction' for Parliament has, in terms, said that the court should only quash a conviction if, there being no error of law or material irregularity at the trial, `they think' the verdict was unsafe or unsatisfactory. They have to decide and Parliament has not required them or given them power to quash a verdict if they think that a jury might conceivably reach a different conclusion from that to which they have come. If the Court has no reasonable doubt about the verdict, it follows that the Court does not think that the jury could have one; and, conversely, if the Court says that a jury might in the light of the new evidence have a reasonable doubt, that means that the Court has a reasonable doubt."
Having cited that passage, Lord Lane CJ in Callaghan, at p 47, stated:
"Although the court may choose to test its views by asking itself what the original jury might have concluded, the question which in the end we have to decide is whether in our judgment, in all the circumstances of the case including both the verdict of the jury at the trial upon the evidence they heard and the fresh evidence before this court that we have heard, the convictions were safe and satisfactory. If so the convictions must stand. If not the convictions must be quashed."
Having cited that passage from the judgment of Lord Lane CJ, Lord Bingham CJ stated in Steven Jones (p 94E):
"It seems plain on the language of the statute and on authority that the court is obliged to exercise its own judgment in deciding whether, in the light of the new evidence, the conviction is unsafe."
We respectfully adopt that approach.
The Interviews
The Court has considered the lengthy interviews of the appellant by police officers in the light of the reports and evidence of Professor Gudjonsson and Dr Badcock. We consider whether doubt is cast upon the credibility of admissions of presence at the scene when the crime was committed. We consider the question in the light of Professor Gudjonsson's assessment of the appellant's personality. The question is whether the admissions are credible.
Submissions
In addressing the Court upon the detail in the interviews, Mr Mansfield submitted that at times even the police appeared to be in consternation about their difficulty in getting explanations. The previous murder inquiry and the treatment the appellant said he had received in 1980, when detained for a driving offence, had given the appellant an obsessive fear of the police. Some of the questioning had put the appellant under extreme pressure. Because it had been mislaid, the appellant was not alerted to the contents of his 1971 statement, though he was told that he had made one at that time. At one point in the interviews (p 38) the appellant told the officers that they were trying to put ideas in his head. His "moaning and wailing" (p 40) demonstrate the pressure under which he felt himself to be. The appellant's statements as to how he met Thorpe are inconsistent with the account given by Thorpe. The appellant's frequent reference to "the steps", when there were no steps at the scene of the crime, demonstrated the unreliability of his account, though eventually he said he was wrong about the steps and was "getting mixed up".
Mr Mansfield also refers to the repeated use by the appellant of the device, when reference was made to a statement by another party, of saying "if he says so it must be right". Reliance is placed upon the upset felt and expressed by the appellant at being questioned when he had previously been questioned for very many hours in another case. Professor Gudjonsson, in his analysis of the interviews, says that by presenting the appellant with the strength of their case, the police were placing him under pressure to make self-incriminating admissions. On one occasion, the appellant asked to be left alone when, in the opinion of Professor Gudjonsson, the officer kept pressuring him.
Inconsistencies between the account given by the appellant and that given by Sharpe are also relied on. If Sharpe's account is accurate, the appellant's account in interview of the watch and money belt are not.
In his analysis of the interviews, Mr Waters submits that the police were careful to restrict their suggestions wherever possible. In the course of the interviews there were spontaneous replies from the appellant which provide considerable detail which cannot have been prompted by the police. The detail as to the kicking and the victim rolling down the embankment came from the appellant and was consistent with the medical evidence from post-mortem examination. The appellant's statement "I seem to recall the guy having a piss when Thorpie kicked him" is consistent with the position of the victim's jeans when the body was found (flies partly open but with jeans pulled up). The appellant's reference to and impression about "the steps" was not surprising having regard to the topography and the passage of time.
We do not accept that the appellant was put under unfair pressure by the interviewing officers. From the opening remark of Detective Inspector King onwards the interviews were conducted fairly. DI King began by stating:
"As you heard me say at the charge desk, Don this murder was committed 14 years ago, I've no doubt that it's been quite a shock for you to be arrested for something so long ago in the past. I don't propose at this stage to ask you any questions because I don't think it would be fair to you. What I will say is that we're acting on some information that has come to us quite recently. We consider it is accurate information and it puts you at the scene of the murder."
The persistence in questions about "the steps" was understandable and fair to the appellant. An interview was terminated when the "moaning and wailing" occurred. The appellant spoke convincingly of his fear of Thorpe and his reluctance to inform on him (p 51).
At the first interview on 24 March, the opening conversation was:
"QDI OK Donald you've had a night to sleep on this. Have you thought of anything else you should be telling us about?
R. I haven't slept.
QDI That's understandable but you should try to get some sleep.
R. Every time I close my eyes all I see is Thorpe and Ingleby Road and it all comes back."
Reference is made to the fact that the nearest the appellant came to a full confession was the statement in the presence of his solicitor on 25 March at 8.15 pm (p 99). No solicitor had been present at the earlier interviews. Having been asked if there was anything to say before he was charged, he replied: "No, except these two fellows have been fair with me". DI King then explained that he had outlined the circumstances of the case to the appellant's solicitor "and in particular the fact that Pendleton was blaming Thorpe and vice versa, Thorpe was blaming Pendleton". The appellant replied:
"Yeah, it's just vice versa, I'm not just 100% sure whether I hit him or not".
The manner in which the officers put to the appellant the information they had was fair. There were breaks when he became upset or distraught. The appellant reacted badly to the mention of Thorpe's name, saying:
"Go on then you've got what you want now. I admit it. I kicked his fucking head in are you satisfied now that's what you wanted isn't it."
The officer replied by saying:
"Just calm down Don. No that isn't it. That's not what we want. We want the truth."
Soon afterwards there was a short break in the interview to allow the appellant to regain his composure. It was then that he gave a detailed account of events, an account which had in no way been suggested to him by the police officers.
"DS Light: Down the corridor there you just said to me that you had calmed down and wanted to try sort this out. You told me you had remembered about that night a bit more clearly. Will you tell me again with Mr King here?
R. I remember clearly I was on these steps like. I was about half way up. Thorps went right up I don't know if he was going to mug him or just bray him. I waited. I just sat down. He came running back down the steps, fast as he could. He shouted something like `Come on, let's fuck off.' I said, `What's happened' or something but he didn't say and we both ran off. We ran a fair way, then stopped and walked. He said he'd given him a right hiding or gone too far or something like that.
Q. DSL Who was he talking about?
R. I didn't see anybody else but it must have been Nobby.
Q. DSL Had Thorpe got anything with him?
R. I can't remember honestly I'm trying to remember what he got and I can't be sure. He might have got some money because we were both skint and he bought me a cup of tea and he played on the fruit machine at that cafe.
Q. DI. Which cafe?
R. When we stopped running, we walked up Girlington to that cafe that used to open all night. I think they called it Hideaway. When we got there he bought two cups of tea and went to play on fruit machine. He talked to somebody and I sat down and talked to somebody else.
Q. DS Who?
R. I can't remember, I can't remember for sure that he got money, but I think he got his wallet with some money.
Q DSL. You seem to remember very clearly this bit about going in the cafe, getting the cups of tea and playing the machine. Try going over the incident earlier again.
R. That's what I'm saying. I can't remember it all. I know I didn't mug Nobby. I was sat on the steps. Thorpe went up to do it. He's like that he does everything right fast. He shot up and then came running back out of breath and said `Let's fuck off.'
Q DSL What did you think he was going to do when the went up the steps?
R. I didn't know if he was going to bray him or rob him. He was like that, he'd just bray somebody for no reason.
Q DSL. Did you know Nobby Clark was there?
R. I've known Nobby Clark for years from town.
Q DSL. Yes but when Thorps went up the steps and you decided to wait, who did you think Thorpe was going to see?
R. I didn't know. I didn't know who it was and I didn't know what he was going to do with him, but when he came flying back I knew he'd gone too far because of the way he said `let's fuck off'.
QDI Did you see anybody else.
R. No I never saw anyone. I just saw him go up the steps and then run back. He said he'd give him a right hiding or gone too far or something like that. He was like that he'd just bray somebody for nothing and then brag about it.
QDI Are you sure you took no part.
R. No I'd never do owt like that."
Shortly afterwards, the appellant gave a narrative account of events which was recorded in writing. On the following day, the appellant wrote an account of events in his own hand. That was followed by a further detailed account in interviews of the events at the scene of the crime. It included a detailed account of a meeting with Sharpe though Sharpe's name had first been mentioned by the police officers. When asked about why he did not come forward when he read in the newspaper of Clark's death he said: "Cos I was frightened of the outcome, with me being sorta with him. Plus I'd have had my head kicked for grassing". We have considered the entire record. It is unnecessary, and it would be inappropriate, to set out in full in this judgment, the lengthy interviews given and the written statements made by the appellant.
Dr Fieldhouse
On 24 March 1985, the appellant was examined by another doctor, Dr D C Fieldhouse. Dr Fieldhouse, who is not a psychiatrist, expressed the opinion that the "shivering, shaking, wailing and claims of memory loss were almost certainly part of an act which he produced to avoid answering questions". Dr Fieldhouse was asked to assess the appellant's "physical and mental states". He had the advantage, not enjoyed by the other experts, of examining the appellant at the time of the interviews which are now challenged. We do not attach significance to Dr Fieldhouse's opinion as expressed above, and it may have been beyond Dr Fieldhouse's brief to express it. We do however note one answer which the appellant gave to Dr Fieldhouse:
"He said that he had lost his memory for much of the past and that whenever he went back to his cell all he could do was remember and think about the events of `Ingleby Road' and `Thorpie'".
That statement, including the use of the word "remember", is hardly consistent with a man who had been pressured by the police into making false admissions about events.
Appellant's proof of evidence for trial
The Court has been supplied with the proof of evidence which the appellant gave for the purposes of the trial. It includes a firm denial of guilt and of presence at the scene of the crime. The appellant said that his voluntary statement was "totally incorrect". He added:
"It can therefore be appreciated that it came as a terrible shock to be arrested on the morning Saturday 23rd March 1985 and taken to the Police Headquarters, Bradford, on suspicion of Murder. I was so upset and distressed that I could not stop shaking. I was questioned repeatedly about the murder and initially I denied any knowledge. However I was disbelieved by the police officers and put under constant pressure. After a while I was so bad that I was prepared to say anything in order to `get the police off my back' The interviewing officers kept painting a picture of what they said had happened and implicated Thorpe. When I came to make the statement I tried to recite what the police had said, albeit it was a complete pack of lies. However, it enabled me to at least calm down but I have since regretted making the statement because it is inaccurate".
Both the expression "constant pressure" and the statement that the appellant "tried to recite what the police had said" we regard as inconsistent with an interview record the accuracy of which is not challenged and which we have considered in detail with the help of counsels' submissions.
Other alleged inconsistencies
Account to wife
Reliance is placed on the inconsistency between the appellant saying more than once in interview that in 1971 he had told his wife about the incident and her evidence, when questioned in 1985, that he did not tell her. She said that "Nothing specific comes to mind about Donald's behaviour or anything he said at the time". We find nothing surprising about that inconsistency in the context of those interviews. When interviewed in 1985, he plainly had an interest in attempting to give credibility to his account of non-participation in the attack by saying that told his wife about Thorpe's attack. He must also have been well aware that by reason of the lapse of time his wife would be unlikely to have a clear recollection.
The watch and money belt
The evidence about those objects was confusing and there were inconsistencies. The watch was never found, the empty money bag was found near Clark's body. An expandable watch strap was also found in the beck. The appellant said in interview that he knew nothing about the money belt and that he and Thorpe had tried to sell the watch. Sharpe claimed that reference was made to the money belt in his presence.
We do not consider that the inconsistencies throw significant light on the central question whether the appellant's accounts in interview of being at the scene of the crime were reliable. It is not at all surprising that recollections differ, or that memory as to detail fades. The appellant's statement that he could not remember "owt about a money belt", when asked about it, far from supports the case that he was ready to adopt suggestions put to him.
Conclusions on interviews
Professor Gudjonsson's evidence that the appellant was vulnerable in the manner described is unchallenged but the Court must make an assessment whether that vulnerability did, or may have, led the appellant, in the interview and statements given, to have made false admissions. Professor Gudjonsson could not definitively answer that question, as he frankly and fairly admitted. He expressed his open-mindedness as to whether the accounts given were true or were mere guesswork. Dr Badcock's "niggle" about the truth of the appellant's accounts was narrowly expressed and followed by evidence that the appellant's accounts appeared informed, natural and genuine. We bear in mind Professor Gudjonsson's analysis, and that of Dr Badcock, along with submissions made by counsel on each side and the other material.
Given the contents of the appellant's statements to the police, and the manner in which they were elicited, we have no doubt as to the reliability of the admissions made by the appellant as to his presence at the scene of the murder. None of the vulnerabilities described by Professor Gudjonsson can, upon a consideration of the interviews as a whole, put a flavour of falsity upon the admissions made. We find it inconceivable that his accounts were imagined or invented. Unless there is material, extraneous to the interviews and the issues surrounding them, which otherwise cast doubt upon the admissions, they provide a sound and sufficient basis for the safety of the conviction. Moreover upon being satisfied as to the appellant's presence, the jury were entitled to convict him and it was not and could not reasonably be argued otherwise either in 1985 or now.
Other material
We go on to consider other material in support of the case against the appellant and in particular his presence at the scene. It is sought to cast doubt upon the value of the other evidence. To demonstrate that it is of less value does not by itself cast doubt upon the safety of a conviction soundly based on reliable admissions of guilt. We scrutinise the additional material to consider not only its significance as supporting evidence but also whether it may cast doubt, from an outside source, upon the reliability of the appellant's admissions. It is also submitted that Sharpe may himself have played some part in the murder of Clark.
Gordon Sharpe
We have noted that it was Sharpe's approach to the police which led to the re-opening of the murder investigation and the questioning of the appellant and Thorpe. Sharpe's evidence at the trial was that he was in Ingleby Road and had overheard the appellant and Thorpe. One said "What shall we do if anyone comes?" and the other replied "We'll beat their fucking heads in". Sharpe said he was grabbed by Thorpe. He indicated that he was out burgling like them. The appellant said it was much more serious than that and he would be reading about it in the papers. Sharpe was asked where his brick was and Thorpe wanted to put the brick over Sharpe's head. Thorpe, who was agitated, took Sharpe's UB 40 card. He asked the appellant if he had the watch and the appellant asked Thorpe if he had the belt. One of them said that they would bury the belt with Sharpe's card to implicate him. The UB 40 card was later returned to Sharpe by a third party, Taylor. Sharpe had not said anything at the time because he was fearful of repercussions. He met Thorpe in prison in 1983 and Thorpe needled him about keeping his mouth shut. That caused Sharpe to remember the incident.
On behalf of the appellant, reliance is placed on further statements made by Sharpe when interviewed by the Commission. It emerged that Sharpe believed that the appellant had once attacked his father and that he had a grudge against the appellant. It emerged that Sharpe had a history of mental instability and had had psychiatric treatment. Sharpe's antecedent history demonstrated, it is submitted, that he is dangerous, unpredictable and dishonest. His earlier statement that he had forgotten about the incident until meeting Thorpe was untrue in that it emerged that he had vivid, continuing and disturbing memories of the incident, strongly suggestive of his having played some part in it himself. Sharpe was cross-examined at the trial about his previous convictions but further evidence of his bad character is now available. He has a very bad record, including convictions for robbery. His criminal conduct has continued, culminating in a conviction for attempted murder in 1999. Had the further material been available and had the appellant's case been that he was not at the scene of the murder, Sharpe could, it is submitted, have been cross-examined more effectively.
The "grudge" material arose from a Commission interview:
"Suggestion put to Sharpe that he may have had a grudge against Pendleton due to the alleged thrashing he had had from Pendleton as a result of the above assault -- he denied this saying he had never had a fight with Pendleton. Sharpe stated that his father had once been pushed through a window and he believed that Thorpe and Pendleton were responsible".
Sharpe's father was charged with being drunk and disorderly.
As to mental instability, the Commission's record of interview included this passage:
"I remember I was taken in a taxi to where Pendleton was living. Little Cross Street. About six months after it had happened. I was taken to this drugs party, we had all sorts, LSD soup -- when I went into the house I had a coat over my head. They were crazy. Pendleton was part of a gang `The Sons of Satan'. They were weird doing things like reciting the Lord's prayer backwards whilst looking into a mirror by candlelight. All these satanic rituals were going on. It really freaked me. I went to get psychiatric treatment. I was diagnosed as a paranoid schizophrenic, which was a pretty normal diagnosis at that time, if you were known to be a drug user".
Sharpe has understandably been questioned in detail as to why he said he had forgotten about the incident and as to why he came forward so many years later. In his statement of 18 February 1985, he stated:
"The reason why I did not say anything immediately after the murder was that I was frightened of repercussions on myself and family by the members of the gang that Thorpe and Pendleton associated with."
He also stated, in relation to the time of the conversation with Thorpe in 1983:
"The experience with Thorpe brought the memory of the murder back. I had forgotten all about it, this was due to the fact that following this I had been heavily involved in drugs through both Don Pendleton and Carl Taylor."
In the statement of 15 February 1985, Sharpe stated:
"I did not realise what Thorpe was on about at the time but when I was in my cell later that day I got to thinking what Thorpe had said. I then realised he [Thorpe] had been referring to the murder of Nobby Clark."
It was many months later that Sharpe first spoke to DS Cheshire. He stated that "It had been on my mind. The whole thing troubled me. I'd talked to a priest. At the end of the day it flooded out it was a relief".
A statement was also taken from Sharpe's father, Mr Samuel Sharpe. He stated:
"The next time he spoke about this was about six months ago (September/October 1984) when Gordon visited us after being released from prison. It was obviously preying on his mind. I asked him what was the matter and he told me the full story. He told me about the night Nobby Clark was murdered."
Sharpe also told his father about the form UB 40 being taken. The prosecution make the point that the reference to the UB 40 being taken by Thorpe near the scene of the murder, if a lie, was a remarkably sophisticated lie because his obtaining a duplicate card and his claiming to have received the original card back from Carl Taylor in the Gondola cafe was liable to be disproved if untrue. When questioned 14 years later, Taylor could not remember the incident but stated "All I can say is that I would have been in the Gondola coffee bar that morning or afternoon, if Don had given it to me I would have given it to Gordon. It is the type of thing I would do, this is 14 years ago and I just can't remember".
The prosecution also make the point that if Sharpe wished falsely to implicate the appellant in the killing, he could have done so in much clearer terms. He did not claim to have seen Clark or to have seen the appellant at the precise scene of the crime. If he had been involved in the murder, it is surprising that he came forward at all. The incident between the appellant and Thorpe and Sharpe's father does not begin to explain the concoction of a false story.
In his advice, leading counsel Mr S W Williamson acknowledges the importance of Sharpe's evidence as putting Pendleton at the scene. Sharpe's evidence had to be viewed with caution and the judge gave a suitable warning to the jury. They were aware of his previous convictions and he was cross-examined accordingly. Sharpe's account must still be viewed with caution. The further enquiries, however, far from supporting any suggestion of a false account, provide a fuller explanation of why he came forward as he did. We do not consider it possible that a jury would have viewed his evidence, as to the appellant's presence at the scene, differently had the further material been available to them. In the circumstances, neither the alleged grudge nor the statement that he had forgotten are likely to have been treated as significant given the circumstances as a whole. What is more, there is nothing in the fresh material involving Sharpe which casts any doubts upon the reliability of the admissions the appellant himself made.
Barry Gallimore
Reliance is placed on the fact that it has emerged that Gallimore was told by police officers that they would provide him with a letter for the purposes of mitigation indicating the assistance he had provided by giving evidence in this case. Gallimore made two statements on 7 June 1985. A day later he was granted bail for offences of conspiracy to utter counterfeit currency and conspiracy to defraud. In the first statement he said that he shared a cell with the appellant and Thorpe and that they had each admitted presence at the scene of the attack on Clark. Thorpe had stated that he, and not the appellant was responsible for the attack. In the second statement, he said that the appellant had made arrangement that a fellow prisoner Pemberton would give evidence discrediting Sharpe. Pemberton's statement was available at trial and Mr Wilkinson, in his advice, refers to the dangers involved in calling him. It is now known that Pemberton told Gallimore that it was a "put up job".
The appellant's instructions at trial were that Gallimore was untruthful in both statements. Gallimore's credibility as a witness, it is submitted, could have been undermined had it been known that he may have been influenced in making his statements by the prospect of gaining personal advantage.
Gallimore had numerous convictions for dishonesty. On the defence run at trial, his evidence was helpful to the appellant. As noted by the DPP's representative at trial, Gallimore said "I felt I could give valuable evidence to acquit one man -- Pendleton, from my assumption that Pendleton was not guilty". That being his assumption, it is extremely difficult to find as a real possibility that, in hope of gaining personal advantage, Gallimore made a false statement as to what the appellant had said to him while they were in custody.
There is no evidence that Gallimore was in contact with Sharpe. It is significant, as the prosecution point out, that Gallimore, like Sharpe, says that he was told that the victim was "having a piss". The two witnesses are consistent with each other, as well as with the appellant's account in interview.
Fresh evidence to support a defence of alibi
A statement made to the police by the appellant on 19 June 1971 was not available at the trial and is available now. The same applied to statements of Mr John Davis. It is submitted that the absence of such material at the trial seriously prejudiced the presentation of the appellant's case. Had it been available, a defence of alibi, which accorded with the appellant's instructions, might have been run.
In his statement of 19 June 1971, the appellant said that:
"I honestly cannot remember what I was doing. I think I went to the rink [the ice rink] with a Geordie lad called John Davis, he is a half-caste or something like that. I can't remember what time it was, anyway I got into the rink for nothing. John couldn't get in so he had to stay outside. I never saw John again that night, and I have no idea where he went to."
After referring to "a lad called Danny Smith", the appellant continued:
"I think I might have got home about twenty past eleven. My wife would be in and she would verify the time I arrived home. John Davis did not stay at my home that night. He had stayed there for about a week prior to this Wednesday but my wife had wanted him to leave. That night I was never anywhere near Ingleby Road."
In his statements in 1971, Davis, then aged 15 years, said that he spent the night of 2/3 June 1971 at the appellant's house, with the appellant, and stayed there until 12.30 pm on 3 June. In a fuller statement given on 23 March 1985, Davis said that he had absconded from a local authority home in Newcastle. He confirmed that he had stayed at the appellant's house on the night he was being asked about during the earlier interview. It was the first time he had stayed there. It stuck in his mind because of an argument the following morning in which the appellant's wife had told the appellant not to bring Davis there again. The investigating officer in 1971 concluded that both the appellant and Davis were genuinely confused about their movements on the night in question and were not deliberately being evasive.
The police failed to trace Danny Smith. The appellant's wife could not remember if the appellant had come home that night. His marriage was in difficulties at the time and he often stayed the night at another address, 7 Wellbury Drive. One of the occupants of 7 Wellbury Drive was able to remember the night in question. It was the day after his birthday. He had no memory of the appellant being there. The police searched the appellant's home address and his clothing, with negative results. The appellant was "very vague as to his movements".
We find the submission that the fresh material could have formed the basis for a successful alibi defence to be without weight. In his contemporaneous statement, the appellant said he "Never saw John again that night". He said that Davis had stayed at his home but it was prior to the night in question. His wife had wanted Davis to leave. Both the appellant and Davis say that there was an occasion when Davis did stay and that it was followed by an argument involving the appellant's wife. The appellant's own contemporaneous statement is in stark contrast with Davis's statement that the occasion was on the night in question. Moreover, the appellant's wife told a police officer that Davis had not stayed that night. When he made his first statement, Davis, as an offender on the run, had a motive for seeking an alibi of his own, and a stay at the appellant's house might have appeared to provide one. In the circumstances, his evidence as alibi evidence is most unpromising.
We do not consider that the fact that the appellant was eliminated as a possible suspect in 1971 can have any bearing upon the issues now before the Court. All it establishes is at that at that time no evidence against him had come to light. It is right to say that the defence did not have the opportunity in 1971 or 1985 to pursue Danny Smith. In the context of the case as a whole, that lost opportunity cannot be considered significant.
We do not find substance in the suggestion that the additional material might have provided a successful alibi defence or has any impact upon the safety of the verdict.
Alternative suspects for the crime
Since the trial, previously undisclosed statements have become available. On 6 June 1971 a witness made a statement that on 29 May 1971 he had seen the deceased in Bradford town centre with a bleeding nose and mouth. Three men walked past and one said: "That's for snitching and you'll get some more". A fourteen year old schoolboy said in a statement of 5 June 1971 that on the afternoon of the day of the murder he saw the deceased arguing with another man, who could not have been the appellant. The man said to the deceased: "If you do that again I'll have you".
Under the heading of "Overall unfairness of the trial", reference is also made on behalf of the appellant to a suspect WH who was questioned by the police. Material about him was available at the trial. The police concluded, by letter dated 29 July 1971, that there was nothing more than suspicion against WH. There was no sufficient evidence to justify charging him with murder.
We do not consider it possible, in the circumstances of this murder of a news vendor well known on the streets of Bradford, where extensive enquiries were likely to be and were in fact made, that there is a real possibility that introducing material such as this could have had any effect upon the verdict of the jury. A clear motive was present and that was robbery, probably unplanned. The evidence against the appellant was the determining factor. The fact that the police followed other lines of enquiry does not in the circumstances of this case create any doubt as to the safety of the verdict.
Conclusion
A feature of the present appeal is the fact that the appellant wants the strength of the case against him assessed on the basis of a defence which he did not, but could have, put forward at the trial. Since his account that he was not present at the scene of the murder has been consistent, albeit not put forward at the trial, he is entitled to do that. The Court must assess the evidence at the trial, and the further material which has since become available, on the basis of his case that not only did the appellant not participate in the attack on Clark but that he was not present at the scene. We bear in mind the lapse of time between the murder and the trial. In our judgment there is no basis upon which an abuse of process submission could have succeeded at the trial, either on the law as it was in 1985 or as it is now, and making full allowance for subsequent events.
We assess the reliability of the admissions made in interview on their own merits and also having regard to the additional material. If, notwithstanding a provisional view as to their reliability, there was additional extraneous material which cast doubt on their reliability, that could affect the safety of the verdict. Nothing in the additional material, in our judgment, casts doubt upon the admissions made. Moreover, while the interviews of Thorpe are not evidence against the appellant, and the judge directed the jury that his oral evidence was not evidence against him either, we would accept that there could be material emanating from him which, while not evidence against the appellant, could be used in his favour to cast doubt upon the reliability of his admissions. There is some doubt as to the circumstances in which the appellant and Thorpe met on 2 June 1971. That is not surprising and does not create a doubt about the reliability of admissions or as to what occurred when they had met. There is nothing in the material emanating from Thorpe which supports a submission that the appellant's admissions were unreliable.
The reliability of the appellant's admissions in interview are, in the present context, sufficient to ensure the safety of the verdict against him. Not only does the material canvassed at the trial and the additional material canvassed upon the hearing of this appeal fail to cast doubt upon the reliability of the admissions, it provides other substantial evidence of the guilt of the appellant. Notwithstanding thorough investigation on behalf of the appellant, there is in our judgment substantial additional evidence of his guilt in the evidence of Sharpe and Gallimore. We approach the case upon the basis of the law laid down in Stafford and Luvaglio, Callaghan and Steven Jones. We have no doubt that the conviction was safe. We add that if Carswell LCJ, in Clegg, had in mind a different test , which we doubt, we do not consider that a reasonable tribunal of fact might in the present case properly be left with a reasonable doubt about the safety of the conviction.