Case No: 2000/03088/X3
Neutral Citation Number: [2002] EWCA Crim 286
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WINCHESTER
(MR JUSTICE KEENE)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 14th February 2002
Before :

LORD JUSTICE PILL
MR JUSTICE BUCKLEY
and 
MRS JUSTICE HALLETT DBE
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Between :

	R		
	- and -		
	ROBERT THIRWELL		

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(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)
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John Aspinall QC appeared on behalf of the Applicant

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Pill: 

1.	On 18 April 2000 in the Crown Court at Winchester before Mr Justice Keene and a jury Robert Thirwell was convicted of murder and sentenced to custody for life. He was then 18 years old. A co-accused Claire Holman, aged 17 was also convicted and was ordered to be detained during Her Majesty’s Pleasure. This is a renewed application for leave to appeal against conviction following refusal by the single judge. 
2.	The deceased James Lewis was in his 60’s and lived alone in a flat in Portsmouth. He befriended local teenagers including Holman to whom he gave keys to the flat. She abused his hospitality, running up a very large telephone bill, stealing his money and using his cash card and credit card. 
3.	In March 1999 Holman and the applicant made contact by a “chatline”. He travelled to Portsmouth and stayed at the deceased’s flat a couple of times before making a longer term move to Portsmouth. He and Holman lived in the flat with the consent of the deceased. 
4.	On 29 April the deceased did not appear at a club where he was due to meet a friend of his. At about 8.00 pm, Holman telephoned a friend and said that the deceased was dead. It is accepted that he probably died in the evening of 28 April. Between 28 April and 4 May, the applicant and Holman used the deceased’s credit card 29 times. On 4 May, they took friends to the flat and showed them his body hidden in a cupboard. Two of the friends took a police officer to the house. Post-mortems revealed bruising about the left eye, a ligature mark on the neck with underlying bruising. The deceased also suffered from ischaemic heart disease.
5.	The prosecution case was that the two defendants in a joint enterprise strangled the deceased with a dressing gown cord. Both admitted in evidence being present in the flat at the time of death. The applicant’s case was that he did not plan to kill the deceased. It looked to him like a heart attack. If the deceased was killed unlawfully it was by the co-accused strangling him and his dying either from stress leading to a heart attack or vagal inhibition and without intent to kill or cause serious bodily harm. Holman’s case was that she did not plan to kill and if the deceased was killed unlawfully it was by the applicant strangling him. Holman also raised the issue of diminished responsibility.
6.	The applicant was interviewed by the police for almost 7 hours over three days. He was accompanied by a solicitor, Mr Parr. Later, while in Reading young offender institution on remand, he had conversations with a prison chaplain, Reverend Anne Bush, the Prison Governor, Mr Barber and a prison officer, Mrs Thompson.
7.	There are 3 grounds of appeal, first, that the police interview should have been excluded because the police had refused to disclose a post-mortem report to Mr Parr, second, that the conversations at Reading YOI should not have been admitted and, third, that the judge did not deal fairly in his summing-up with evidence that, at the time of death, the deceased was blue in the face.
8.	At the end of the oral hearing, the Court granted leave on the second of those grounds in relation to the conversations, to use a neutral word, at the YOI. The applicant should certainly not have high hopes as a result of this grant of leave. The Court took the view that the circumstances of and the issues arising from conversations, including one at an arranged meeting with the Prison Governor, merited the attention of the Court at a full hearing. The applicant gave at least three different accounts of the events of 28 April, if the interviews and his evidence are considered. Mr Aspinall QC, on his behalf, submitted that if an account later admitted to be untrue had been excluded, the jury may have taken a different view of the applicant’s credibility.
9.	Leave was refused on the first and third grounds with reasons to be given later in view of the lateness of the hour. The third ground can be dealt with briefly. It is submitted that the jury should have been directed that blueness of the face was as consistent with a heart attack as with strangulation. The point was properly raised by counsel at the end of the summing-up and the judge gave his reasons for summing-up as he did (pp 168 to 170). We agree with the single judge that, on the evidence, the point was dealt with correctly.
10.	As to the first point, the first post-mortem was performed by Dr Anscombe on 5 May and there was a second 5 days later. A report was submitted 3 weeks later. Dr Anscombe had still not reached a firm conclusion. The possibilities were heart attack, compression of neck by ligature causing vagal inhibition and a heart attack precipitated by use of cord. When submitting his report on 24 May, Dr Anscombe still had not reached a firm conclusion as to the cause of death so he recorded it as “unascertained”. There is no doubt that the possibility of a heart attack had been recognised by him at the time Mr Parr was asking for disclosure of evidence. 
11.	When the interviews were conducted, the officers also had statements from witnesses which contained evidence pointing towards a premeditated killing.
12.	At interview, the applicant gave an account which he subsequently agreed was false. He said that he saw a man running from the house. However, he also asserted that he thought the deceased had suffered a heart attack. The submission is that had Mr Parr known that medically the heart attack was a possibility, he could have advised the applicant upon a properly informed basis. The failure to disclose constituted misleading, unfair and oppressive conduct by the police. Had the applicant been advised that there was evidence that his assertion that the deceased had suffered a heart attack was medically possible, he might have told the truth about the entire incident. The heart attack possibility did, at least, give credence to the offence being manslaughter rather than murder.
13.	The judge gave a reasoned ruling. He noted that Mr Parr had been told that there had been a post-mortem and that no cause of death had been established. No deceit was practised on Mr Parr. The judge referred to the decision of this Court in R v Imran and Hussain [1997] CLR 754:
“It is totally wrong to submit that a defendant should be prevented from lying by being presented with the whole of the evidence against him prior to the interview.”
The Court in that case confirmed the duty of the police not actively to mislead a suspect.
14.	Having carefully considered the circumstances, the judge concluded:
“The basic fact is, and I find it to be a fact, that the police did not actively mislead the defendant or his solicitor, nor did they act in any way unfairly in respect of those interviews.”
15.	We agree with the judge. The police were entitled to question the applicant in the way they did. They were entitled in the circumstances not to disclose the provisional medical evidence they had received as to possible causes of death. There was no conduct which rendered the interviews inadmissible.