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Cite as: [2002] EWCA Crim 1881

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		Neutral Citation Number: [2002] EWCA Crim 1881
		Case No: 200004276 Z1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand,
London, WC2A 2LL

31st July 2002

B e f o r e :

The Vice President of the Court of Appeal Criminal Division
LORD JUSTICE ROSE
MR JUSTICE COLMAN
and
MR JUSTICE RODERICK EVANS
____________________

Between:

	R	Appellant
	- and -
	Terry Hall	Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr A Riza QC and Mr S Mustafa (instructed by Peter Lloyd Bonner) for the Appellant
Sir John Nutting QC and Mr R Blake (instructed by the CPS) for the Respondent
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Mr Justice Roderick Evans:

On 26^th June 2000 at the Central Criminal Court following a trial before Her Honour Judge Goddard QC, the appellant was convicted by a majority of 10 to 2 of the murder of his partner and cohabitee, Lisa Pearce. He was sentenced to life imprisonment.

He now appeals against that conviction, leave having been given by the full court.

Before turning to the grounds upon which leave was given, it is necessary to briefly summarise the facts of the case and a little of its history.

Factual Background

The appellant and Lisa Pearce lived together at 9 Burford Way, New Addington, Surrey, one of the middle houses in a short terrace of four. The adjoining end house, number 11, was unoccupied. Living with the appellant and Lisa Pearce were three children; Lisa Pearce’s son by a previous relationship whom the appellant treated as his own and the couple’s two daughters, Jade, born in 1990 and Abbey, born in 1993. Lisa Pearce was a devoted mother.

In 1997 the appellant commenced an affair with Debbie White, a friend of Lisa Pearce and for a short time he left Lisa Pearce to live with Debbie White, but he returned to live with Lisa Pearce in October 1998. However, the affair continued and in March 1999 Debbie White assaulted Lisa Pearce in the street. The affair was still continuing at the time of Lisa Pearce’s murder in July 1999. Lisa Pearce and the appellant had gone on holiday with friends in June 1999 and Debbie White believed that, after his return from holiday, the appellant would leave Lisa Pearce and go to live with her.

Lisa Pearce was last seen alive by someone other than a member of her family at about 6.30pm on Sunday 11^th July 1999 when Dean Marchant, who was at his parent’s home at No. 7 Burford Way to work on a car, saw her standing in the doorway of her house.

The body of Lisa Pearce was discovered at about 6am on Thursday 15^th July 1999, lying on a grass verge in Church Lane, New Addington, a few miles from the couple’s home. The body was clothed in a tee shirt, shorts and training shoes. There were no signs of a sexual assault. She had been dead for some time and her body was in the early stages of decomposition. There were indications that the body had been moved and had lain for several hours in a different position. Death, which resulted from compression of the neck, could have been instantaneous or within a few minutes. Linear marks visible on the neck were consistent with the application of a ligature and could have been caused by a dressing gown belt, recovered later from 9 Burford Way. There were no marks on the body to suggest a prolonged assault. There were, however, marks on the back which were consistent with the body having been dragged on rough ground probably by the feet when it was either unwrapped or wrapped ineffectively.

Attached to the sole of the left training shoe, which Lisa Pearce was wearing, was a piece of brown sticky tape. It did not bear the sort of scratches which would be expected if it had been walked upon, nor was any impression of the sole pattern of the shoe present on the tape. A piece of screwed up tape was recovered from the verge opposite where the body was found. It was the prosecution’s case that the tape had been used to bind Lisa Pearce’s legs together.

Scientific examination showed that these two pieces of tape fitted with each other and that they were the last pieces of tape to be removed from a roll of tape recovered from 9 Burford Way. Moreover, the appellant’s fingerprint was found on the piece of tape recovered from the sole of the trainer.

The appellant had given explanations for Lisa Pearce’s disappearance to a number of witnesses. At about 6.30am on Monday 12^th July, the appellant told a work-mate who had called at his house that he was not going to work that day and that Lisa had left the house the night before and had not yet returned. He later told the work-mate’s wife that Lisa had gone to the home of a friend, Lisa Baverstock. He had tried to phone her there twice, but there was no answer.

At about 9am that morning, he went to the home of Lisa’s mother. He asked her whether Lisa had stayed there the previous night and told her that he had fallen asleep on the sofa and had not woken up until the morning. He had then taken Lisa a cup of tea but she was not in the house. Neighbours of the appellant had, however, seen him looking out of an upstairs window at about 12.15am on 12^th July, observing an incident involving a neighbour and police officers.

At about 9.10am, the appellant telephoned Lisa Bavistock on her mobile telephone. He asked her if Lisa was with her and was told that she was not. He told Lisa Bavistock that Lisa Pearce had left home the previous night to go and see her. Lisa Bavistock said it was very unlikely Lisa Pearce would have visited her without telephoning first. She had not telephoned.

Friends and neighbours started a search for Lisa and reported her to the police as a missing person. Police officers attended at 9 Burford Way and searched the house and garden but found no signs of a disturbance or anything suspicious.

On Tuesday 13^th July, Lisa Pearce’s friends continued to search for her and produced a missing person poster, copies of which they put up around the area. At one point, before the discovery of Lisa Pearce’s body, a television news camera crew filmed the appellant attaching a missing person poster to a post with sticky tape.

Police officers attended 9 Burford Way and spoke to the appellant. He told them that Lisa had left the house about 8.30pm on the Sunday evening to go to Lisa Bavistock’s house. He stayed at home and watched television. He fell asleep and woke up at about 11pm. He realised that Lisa Pearce was not at home but assumed that she was staying with Lisa Bavistock. He had tried to telephone the Bavistock’s home in the morning but there was no answer. He told them also that he had had an affair but that that was now over.

On Wednesday 14^th July, a number of friends who were taking part in the search for Lisa Pearce, asked the defendant whether the empty house next door, number 11, had been searched. The appellant told Angela Thornhill that builders were working in number 11 and no-one could get in and he told Paul Roberts that there was no need to search number 11 as workmen had been there all week. The owner of number 11 gave evidence that no builders had been there that week. To Sally Nelson, however, he said that the police had searched number 11 although the police did not search those premises until 18^th July.

About midnight Wednesday 14^th/Thursday 15^th July 1999 or shortly afterwards, Wayne Nelson went to 9 Burford Way to speak to the appellant about missing person posters which were being produced. He stayed there about 20 minutes leaving no later than 00.50am on Thursday 15^th July.

At about the same time, Jeremy Bavistock left his home to put up more missing person posters in the area. At about 1.20am, he saw the appellant driving his car in Castlehill Avenue, a short distance from his home in an area through which the appellant would have to drive to reach Church Lane.

At about 2.30am, Wayne Nelson, who was still involved in the production of missing person posters, returned to 9 Burford Way to discuss the quality of the posters with the appellant. When he arrived there he saw the appellant’s car with its headlights on moving backwards on the hardstanding in front of the house towards the house. The headlights went off and the defendant got out of the car. After a short conversation, Nelson left and saw the appellant walking towards his house. Nelson formed the impression that the appellant was on the way out before he, Nelson, arrived.

At about the same time, a neighbour heard the sound of a door being shut, looked out of his window and saw the appellant getting into his car and driving off. These events occurred only a matter of hours before the body of Lisa Pearce was discovered.

At about 9am Thursday 15^th July, the appellant went to the local police station at the request of the police and the police took a witness statement from him.

The appellant was first arrested on 29^th July and interviewed by the police. He denied responsibility for the death of Lisa Pearce and was released on bail. Sometime after his release he was asked by Lisa Pearce’s sister, Helen, whether he had killed Lisa. He replied that he had. Helen Pearce thought that he was joking.

The appellant was rearrested on 19^th October 1999 and charged with the murder of Lisa Pearce.

The trial

It was the prosecution’s contention at trial that the appellant, having killed Lisa Pearce sometime during the night of Sunday 11^th/Monday 12^th July, stored her body in a lean-to in the unoccupied number 11 Burford Way and then transported her body to Church Lane in his car during the early hours of Thursday 15^th July. Reliance was placed on the evidence relating to the sticky tape, inconsistencies in the various accounts given by the appellant about the circumstances in which Lisa Pearce came to leave home and on a number of alleged lies contained in the witness statement made by the appellant to the police on 15^th July. Submissions on behalf of the defendant that this witness statement should not be admitted into evidence were rejected by the trial judge.

The appellant was represented at trial by leading and junior counsel instructed by Royston Davis, his solicitor. As the evidence against the appellant was largely circumstantial, the defence strategy was to seek to demonstrate that there was not enough evidence to drive the jury to the conclusion that the appellant was the murderer and to leave as an issue for the jury to consider the possibility that someone else, possibly Debbie White, Lisa Pearce’s rival in love may, acting alone, have been responsible for the death of Lisa Pearce. Despite the prosecution’s contention as to how the appellant had stored and transported the deceased’s body, there was no forensic evidence linking the deceased’s body either to the lean-to of number 11 Burford Way or to the appellant’s car and this was an important feature of the defence effort to undermine the Crown’s case.

Royston Davis, in preparing the appellant’s case, had assembled a number of potential defence witnesses. Some he had traced himself; others were available from the unused material disclosed by the Crown. Also amongst the disclosed unused material were documents upon which cross-examination of prosecution witnesses might be based. Into this category fell diaries kept by Debbie White, who was a prosecution witness, in which she recorded her love for the appellant and hatred of the deceased. In the event, leading counsel called no defence witnesses apart from the appellant and did not cross-examine Debbie White on the content of her diaries.

Events after trial

Following the appellant’s conviction, Mr Davis, in the light of the fact that the trial had not proceeded as he had expected, felt that the appellant had not had a fair trial. He rang leading counsel’s clerk to express his concern that leading counsel had not put up the type of fight that he was expecting and had not called any of the witnesses from whom he had taken statements. The following day, leading counsel’s clerk informed Mr Davis that, in the days after the trial, leading counsel had been diagnosed as suffering from inoperable, terminal, liver cancer.

Junior counsel, having consulted leading counsel, settled an application for leave to appeal against conviction. The sole ground of appeal was the trial judge’s ruling admitting into evidence the witness statement which the appellant had made to the police on 15^th July 1999. The single judge refused leave.

On 17^th October, when the appellant’s application for leave was awaiting the decision of the single judge, Mr Davis wrote to leading counsel in the following terms:

“I am extremely concerned about the following points:-

1. Your health was clearly extremely poor during the trial, and I am concerned that your representation of Mr Hall was detrimentally affected. What is of particular concern is that you failed to mention during the trial of Mr Hall that you in any way felt unwell. Mr Hall upon discovering that you felt unwell, should have had the opportunity to instruct fresh Queen’s Counsel.

2. I believe the appeal against Mr Hall’s conviction for murder should be centred on the fact that his representation by Queen’s Counsel was not competent.

3. … I would though ask you to consider whether you feel that bearing in mind your illness you did actually represent Mr Hall to your usual high standard.”

On 31^st October 2000, Mr Davis wrote a long letter to the Registrar of this court setting out his numerous complaints and anxieties about leading counsel’s conduct of the appellant’s trial and renewing the application for leave to appeal. Fresh counsel, Mr Riza QC and Mr Mustafa who have appeared for the appellant in this appeal, were instructed and their application for leave to the full court on 30^th April 2002 was successful. The basis of the renewed application was the content of the letter of 31^st October 2000 and the grounds upon which leave was given can be conveniently summarised as follows:

1. The incompetence of leading counsel in the decisions she made as to the lines of cross-examination she did not follow and the potential defence witnesses she did not call.

2. An appearance of unfairness because leading counsel was diagnosed with a serious illness shortly after the trial and the possibility that the decisions made by leading counsel might have been influenced by her illness.

3. An error of law by the trial judge in allowing into evidence the appellant’s witness statement.

The appeal

During the hearing of this appeal we have heard evidence from Mr Davis, the solicitor, and from junior counsel who appeared at the trial. Leading counsel died a few days before this hearing. In addition to not responding to Mr Davis’ letter of 17^th October 2000, leading counsel did not respond to a letter from Mr Riza QC seeking her comments on the complaints made against her. Junior counsel has told us that leading counsel treated the complaints with contempt. Whatever the reasons for her not responding to these letters may have been, it is regrettable she did not respond. We do not have the benefit of her comments on the complaints. We have to proceed therefore on the available evidence.

Mr Davis is a young solicitor who approached the task of representing the appellant with diligence. His practice is mainly in the Magistrates’ Court and this was the first murder case in which he had been involved and the first trial in which he had instructed a Queen’s Counsel. He did not know leading counsel before this case and attended court for about half of the trial.

Junior counsel knew leading counsel professionally, had been led by her before and was familiar with her method of working. He worked with her on the preparation of the case in the month before the trial, worked with her before and after court during the trial and in preparation for this appeal has been through her case papers. They reveal that she had taken a good note of the evidence in the case and that she had annotated, indexed and cross-referenced her papers and in particular her copy of the diaries of Debbie White.

We turn now to deal with the grounds of appeal.

Ground 1

It is not necessary in this judgment to examine individually each of the decisions taken by leading counsel about which complaint was made in the letter of 31^st October 2000, as Mr Riza conceded during argument that each of those decisions was within the range of decisions which competent counsel could have taken and none of the decisions could therefore be said to be one which no reasonable counsel could have reached (Rv Ullah [2000] 1Cr App R 351). It is, however, instructive to look briefly at some of the decisions to gauge how leading counsel approached her task as this is relevant to the second ground dealt with in more detail below.

The cross-examination of Debbie White

Mr Davis expected the idea that Debbie White was a potential murderer to be planted in the jury’s mind in two main ways. Firstly, by establishing in cross-examination and calling evidence for the defence to prove that Debbie White had violently assaulted Lisa Pearce in February or March 1999 while two men stood by in apparent support. This, in our judgment, was adequately established in cross-examination and, therefore, there was no need to call evidence on the point. The second method was by cross-examining Debbie White on her diaries so that the jury could see for themselves expressions of her hatred for Lisa Pearce. The diaries, however, contained matters which would have been damaging to the appellant had they been cross-examined into evidence. For example, there were, in the diaries, expressions of regret at Lisa Pearce’s death and that Debbie White’s relationship with the appellant might have brought about her death. Debbie White speculated that the appellant had killed Lisa Pearce and recorded in her diary that the appellant had told her that in the past he had given Lisa Pearce sleeping tablets and poison. Mr Davis himself had recorded in a file note dated 7^th May 2000, after reading the diaries, “there can be no doubt that the writings are not the writings of her killer”. Had these diaries been before the jury they would not only have damaged the attempt to portray Debbie White as a potential murderer but also might have raised in the jury’s mind the thought that Debbie White was an accomplice to the killing by the appellant of Lisa Pearce. In the event, due to the course adopted by leading counsel, the jury heard evidence helpful to the appellant relating, inter alia, to Debbie White’s love for the appellant, her doubts at the time of Lisa Pearce’s disappearance that the appellant would leave Lisa Pearce for her and her willingness to use violence on Lisa Pearce while men stood nearby potentially available to interfere if necessary but did not hear information from the diaries which would have seriously damaged the appellant’s case.

Kevin Taylor

Kevin Taylor was the appellant’s best friend. Mr Davis had taken a witness statement from him in which Kevin Taylor said:

a. that Debbie White had told him that she would have loved to kill Lisa Pearce and

b. that on the Monday or Tuesday of the week when Lisa Pearce went missing he had gone into number 11 Burford Way to search for Lisa Pearce. He had been into the lean-to but Lisa Pearce was not there. However he had not told the appellant that he had looked into number 11.

Mr Davis was very keen that Kevin Taylor be called to give evidence and was upset that he was not. He said in evidence before us that he believed that it is inconceivable that the appellant would have been convicted had Kevin Taylor been called to give evidence as his evidence highlighted what Mr Davis regarded as the substantial and fatal weakness of the prosecution case, namely, the absence of forensic evidence linking the body of Lisa Pearce with number 11.

There were, however, obvious dangers in calling Kevin Taylor. If the jury rejected his evidence and concluded that he was lying, such a conclusion might adversely affect their view of the defence case. That there were grounds upon which a jury could have concluded that the evidence of Kevin Taylor was not to be believed is beyond doubt. He had in the past been convicted of an offence of armed robbery for which he had served a lengthy term of imprisonment and other offences of dishonesty. He had pleaded not guilty to the offence of robbery and his evidence at that trial had clearly been disbelieved by the jury which tried him. It is possible, however, that this latter fact was not known to defence counsel at the time of the trial. A police “action form” dated 10^th August 1999, disclosed with the unused material, recorded that, when seen by the police during the investigation of the murder, Kevin Taylor had said that he could not shed any light on the inquiry and declined to make a statement to the police out of loyalty to the appellant. Moreover, the jury might have wondered why it was that Kevin Taylor did not tell the appellant that he had looked in the lean-to when the appellant was in number 9 Burford Way on the day when Kevin Taylor said he had been into number 11 and why it was that Debbie White had entrusted Kevin Taylor with knowledge of her desire to kill Lisa Pearce when no such desire was recorded in her diary.

These considerations and the danger that the defence point on the negative forensic evidence might be spoilt if Kevin Taylor were thought by the jury to be lying to embellish the defence case were clearly, on the evidence we have heard, in counsel’s mind at trial. After the appellant had completed his evidence, counsel had time to discuss with him the advantages and disadvantages of calling Taylor to give evidence. Mr Davis says he formed the opinion that the appellant was left in no doubt that leading counsel did not want this witness called. If leading counsel gave the appellant strong advice, she was entitled to do so. The appellant was left to consider the position over lunch. He decided that Taylor should not be called and endorsed junior counsel’s brief accordingly.

The children

The deceased’s children were interviewed by the police on video during the course of the investigation. Those videos and transcripts of the taped interviews were disclosed as unused material. Each of the children said that they had neither heard nor seen any violence in the house. Mr Davis is convinced that, if the appellant had strangled Lisa Pearce at the time the prosecution alleged, the children, who were in the house at that time, would have heard the incident. The appellant did not want the children called to give evidence. But Mr Davis states that leading counsel should have advised him strenuously that the video taped interviews should have been played to the jury as part of the defence case, even if this opened the children to cross-examination by the Crown. The fact that the jury did not hear these interviews, Mr Davis thinks, was fatal to the appellant’s case.

Had the video-recorded interviews been relied upon by the appellant, it is inevitable that the children would have been open to cross-examination. The appellant’s case was that, on the Sunday night, Lisa Pearce had had a shower and afterwards changed into the clothes which she was wearing when her body was found; that Lisa Pearce had left home to go to Lisa Bavistock’s by about 8.30pm and certainly no later than 8.50pm when a programme he was watching finished; and that, on the Monday morning, he telephoned Lisa Bavistock’s home but got no answer.

On video tape, Jade had said that her mother had changed into a dressing gown after her shower and there was forensic evidence that blood, hair and bodily fluids had been found on a dressing gown recovered from number 9 Burford Way, all of which, scientific evidence strongly suggested, came from Lisa Pearce. Jade had also said that she went downstairs at a time which could be demonstrated on the evidence to be after 9.15pm on the Sunday evening to complain about her sister’s singing keeping her awake. At that time both the appellant and Lisa Pearce were present. Another child said that the defendant did not ring Lisa Bavistock on the Monday morning. It is apparent that calling the children would have been fraught with danger for the defence.

The concession made by Mr Riza was properly made.

Other complaints and anxieties contained in the 31^st October letter, which are not directly linked to decisions of leading counsel, are equally insubstantial. For example, Mr Davis’ view that leading counsel’s closing speech did not place sufficient weight on the absence of scientific evidence linking the body with number 11 and the appellant’s car is gainsaid not only be the evidence of junior counsel but also by the summing up, in which at page 5D the judge said:

“The defence say there are too many gaps [in the evidence] and they point particularly to the absence of any forensic evidence from the house, the lean-to or the car.”

Similarly, Mr Davis’ contention that leading counsel may not have been familiar with the appellant’s proof of evidence is untenable. Mr Davis thought that, at the conclusion of the appellant’s evidence, leading counsel expressed surprise that the appellant had said during his evidence that he believed he may have been framed for this murder. Such a view was set out in the appellant’s proof. The appellant had no explanation for the presence of the pieces of sticky tape on the deceased’s trainer and on the grass verge in Church Lane. Mr Davis, however, having seen a news broadcast of the film of the appellant attaching a missing persons poster to a post with sticky tape, thought it a possibility that someone had removed that tape and left it at the scene to incriminate the appellant. This theory formed part of the appellant’s evidence. A still from the news broadcast however indicated that the tapes were different in size. A further explanation given by the appellant was that he had discarded a piece of tape from the roll which someone had picked up and planted on and near the body. Junior counsel’s evidence about the work leading counsel had done on her brief is determinative of this issue adversely to Mr Davis’ contention. We note junior counsel’s suggestion in evidence that any comment made by leading counsel on this part of the evidence was likely to have been an expression of her view that this was a bad explanation badly given by the appellant.

Ground 2

Despite the concession made in respect of ground 1, Mr Riza complained about the appearance of unfairness created by leading counsel’s illness. During argument he formulated his second ground of appeal in this way:

“Where after a trial in which the defendant was convicted it becomes known that defence counsel was suffering from a serious illness, the presence of that serious illness gives the trial an appearance of unfairness which should result in a finding that the conviction is unsafe. This should be the case even where the decisions made by counsel during the trial are within the range of decisions open to competent counsel because the court could not be sure that a motivating factor in reaching the decisions was not the presence of the serious illness.”

If there be force in that submission, it is difficult to understand why it should be limited to serious illnesses. What of a non-serious but debilitating condition such as a migraine, a hangover or a heavy cold? And what of events in the personal life of counsel, such as separation from a spouse or partner, a divorce or the death of a family member each of which might in retrospect be thought capable of having adversely affected the performance of counsel?

In this case, junior counsel had no concerns about leading counsel until after the last weekend of the case, when the jury was in retirement. She complained about having felt tired over the weekend. While he, as a layman, accepts that common-sense dictates that the condition from which she was diagnosed to be suffering must have been present during the case, there was, he says, no objective evidence of that. She never sought to shorten the case in any way and was not at a disadvantage vis á vis her opponent. Mr Riza concedes that there is no evidence before this court that the decisions made by leading counsel during the case and her conduct of the case were in any way influenced by her illness save, he suggests, the fact that she failed to take the opportunity to respond to requests for her comments on the complaints made against her. From this failure, Mr Riza asks us to infer that leading counsel suffered symptoms from her condition during the case and that her conduct of the case was adversely affected by them. Neither is, in our judgment, a proper inference from that failure.

Mr Riza also invites this court to offer guidance to the Bar on whether or not counsel should, if he or she is feeling unwell during a case, inform the client of that fact or soldier on. We decline to do so. Such matters are best left to the professional bodies which represent advocates and to the common-sense of individual practitioners.

We reject Mr Riza’s submission. The question for this court is not whether counsel was unwell during the whole or any part of a trial, but whether the conduct of the defendant’s case, for whatever reason, fell below the proper standard so that the defendant did not receive a fair trial. Nothing has been placed before us either by way of evidence or submission which causes us to believe or suspect that this appellant’s case may have been conducted incompetently or that leading counsel’s illness may in any way have interfered with the fairness of his trial.

Ground 3

The appellant commenced his witness statement some 3 hours after Lisa Pearce’s body had been discovered. At the conclusion of the statement the appellant checked its contents and signed it. The statement taking was completed by about 2.30pm. While the appellant was checking his statement the officers with the appellant were informed that a body had been found and that it was believed to be the body of Lisa Pearce. No identification had by then been made of the body and the cause of death was not known until the post-mortem which took place between 3pm and 4.45pm that afternoon.

Other police officers who had been more closely involved in matters relating to the discovery of the body had been aware from earlier in the day that the body was wearing clothes similar to the clothing that Lisa Pearce had been described as wearing and that jewellery on the body was similar to the jewellery of Lisa Pearce. They were also aware that the body had been placed at the roadside after death but the time of death was not then known.

On behalf of the appellant, it was submitted to the trial judge that the appellant should have been treated as a suspect and cautioned in accordance with Code C10.1 of the Codes of Practice made under the Police and Criminal Evidence Act 1984. Such a caution would have triggered other protections afforded to suspects by the codes, for example the offer of legal advice, and the presence of an appropriate adult. Accordingly, the defence submitted that the witness statement should be excluded from evidence.

The judge gave a long ruling on the submissions she had heard. She carefully set out the factual background and the state of knowledge of the police. She applied a two-stage approach. Firstly, she asked were there, at the time the witness statement was being taken, reasonable grounds for suspecting that an offence had been committed? She concluded that there were no such reasonable grounds until the result of the post-mortem was known. However, if she were wrong about that, on the assumption that reasonable grounds for suspecting an offence had been committed once the body had been found, she posed the question whether there were reasonable grounds for suspecting that the appellant had committed an offence. She again concluded that there were not.

The conclusions that the judge came to were justified on the evidence before her which she set out in detail in her ruling.

Finally, the judge considered the exercise of her discretion to exclude the witness statement from evidence under section 78 of the Police and Criminal Evidence Act 1984. The matters she bore in mind in exercising her discretion were entirely proper and her conclusion to admit the witness statement cannot be criticised.

The court is left in no doubt about the fairness of the appellant’s trial or the safety of his conviction and this appeal is dismissed.