England and Wales Court of Appeal (Criminal Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th February 2003

Lord Justice Kennedy:

1. In February 2002 in the Crown Court at Hull these appellants were convicted of murder, and in March 2002 each was sentenced to life imprisonment. Lawson was also convicted of conspiracy to cause grievous bodily harm, and for that received a sentence of 4 years imprisonment concurrent. They now appeal against conviction by leave of the single judge.
2. The victim of the murder was Alfred Wilkins, aged 67, who on 2^nd November 2000 at Grimsby Crown Court was acquitted of indecent assault on an 8 year old girl. He lived at 6 Arundel Walk, Yarborough Estate, Grimsby, and it is clear that some of his neighbours did not agree with the verdict. He was harassed, the windows of his home were smashed, and graffiti were daubed on that building.
3. On 1^st February 2001 two intruders broke into his home and attacked him. Early on 9^th February 2001 accelerant was poured through the letterbox of his home and ignited. As a result of the smoke from that fire both Wilkins and his dog died. They were found at about 6 am.
4. A man named Gary Fairbanks and his son Dean lived near to Alfred Wilkins. The appellant Gary Lawson often visited the Fairbanks home and Chantelle Day was Gary Lawson's girlfriend. The appellant Ian Lawless was also a friend of Fairbanks. In the indictment all five were charged. Count one alleged that Lawson, Day and Dean Fairbanks, prior to 2^nd February 2001, conspired to cause grievous bodily harm to Wilkins. Lawson and Day were convicted of that offence. Dean Fairbanks was acquitted on the direction of the trial judge. Counts 2 and 3 alleged that Gary Fairbanks had incited Lawson to cause grievous bodily harm and to murder. Gary Fairbanks was acquitted of both offences. Counts 4 and 5 alleged that prior to 9^th February 2001 Chantelle Day had incited Lawson to murder Wilkins and to set fire to his home. Following a submission made during the trial she was acquitted of those offences on the direction of the trial judge. Count 6 charged Lawless and Lawson with murder. Counts 7 to 9 related only to Gary Fairbanks and concerned events some time after the fire, so we need say nothing further about those counts.

The Prosecution case.

5. The prosecution case against Lawless, who was named only in count 6, was that after the murder he admitted participation as a look-out to a large number of people, including ultimately a fellow prisoner, David Gough, and behaved in a way that was consistent with those admissions being true.
6. The case against Lawson also depended on what he was alleged to have said to others, but in his case there were, it was alleged, threats made before 9^th February as well as claims of responsibility afterwards.
7. There was no forensic evidence to link either appellant with the fire in which Wilkins died, nor did anyone purport to have seen anything relevant on the night when the fire was started.

The appeal of Lawless.

8. On behalf of Lawless Mr Michael Lawson QC, who did not appear at the trial, advances two separate but to some extent related grounds of appeal.
9. First, he points out that although Lawless did admit participation to a number of people he never admitted to being more than a look-out, and that left for consideration the extent of his participation. In particular, did he know that the others who were involved were going to do more than frighten Wilkins, because if he did not know of the more serious intent he should not have been convicted of murder, but only of manslaughter. Many of those to whom Lawless confessed regarded him as unreliable, the sort of person who might well claim responsibility for criminality in which he was not involved, and that Mr Lawson submits, is relevant when considering his first ground of appeal. But, as Mr Lawson accepts, all of the points which could be made about the reliability of the confessions made by Lawless were made at the trial, and featured in the summing-up, so they must have been considered by the jury. As to whether if the confession evidence was accepted the offence proved could be more than manslaughter the judge gave careful directions to the jury upon which Mr Milmo QC for the Crown now relies. Mr Lawson does not criticise those directions, nor could he, and, as Mr Milmo submits, they do have to be read against the factual background of this case. If Lawless was the look-out he must in reality have known that his fellow criminals were armed with the accelerant which was used to start the fire. The house of Wilkins had been attacked and was boarded up, as Lawless knew, with Wilkins inside. If Lawless knew that the fire was to be started in that dwelling, he must also have recognised and intended that the occupant would suffer serious injury, if not death. We accept that submission made on behalf of the Crown, and in our judgment there is no substance in Mr Lawson's first ground of appeal considered on its own.
10. Mr Lawson's second ground of appeal arises of what is said to have happened very soon after the conclusion of the trial at Hull. Chantelle Day, having been convicted on count 1, was sentenced to three years detention. Whilst detained in a Young Offenders Institution she is alleged to have admitted to a fellow inmate that she was worried about her boy friend Gary Lawson, because she was involved in pouring the accelerant into the home of the deceased yet he was taking all of the blame. She was so upset that the fellow inmate persuaded her to repeat what she had said to female prison officers. She did so. She was clearly admitting her own involvement, and indicating that she was not alone. She seems to have been inconsistent as to whether or not her boyfriend was there, but she did say words to the effect that there was another bloke also in prison who had been bragging about being a look-out, but who wasn't even there. He, she suggested, told people he had been involved to get some form of notoriety on the estate where they lived. The prison officers referred Chantelle Day to the psychiatric nurse, and thus she spoke first to a nurse and then to a trainee psychologist, to each of whom she is alleged to have given a similar account, save that there was no reference to Lawless. In reliance upon the admissions she is alleged to have made Chantelle Day has been charged with murder, and is now awaiting trial, a Presiding Judge having ordered that her trial take place after the conclusion of this appeal.
11. The account which we have just given as to the admissions allegedly made by Chantelle Day is derived from statements taken from those to whom she is said to have spoken. The statements have been served together with forms W indicating that the appellant Lawless seeks leave call the makers of the statements as witnesses before this court. We do have power under section 23 of the Criminal Appeal Act 1968 to receive fresh evidence in certain circumstances, and in due course we must look carefully at that power, but it is, we think, helpful to start by considering whether the evidence now sought to be relied upon could ever have been admissible in the trial from which this appeal lies. At first sight it offends the rule against the admission of hearsay evidence, and Mr Milmo has drawn our attention to the decision of the House of Lords in Blastland [1986] AC 41. In that case the appellant was charged with buggery and the murder of a twelve year old boy. He claimed that after attempting to bugger the boy he desisted. He then saw another man, Mark, nearby, and wanted to call a witness to say that before the boy's body was discovered Mark had said that the boy had been murdered. That evidence was excluded by the trial judge, and in the Court of Appeal and the House of Lords that decision was upheld. Lord Bridge at 52H said that "it is for the legislature, not the judiciary, to create new exceptions to the hearsay rule." At 54A he recognised that hearsay evidence may be potentially probative, and continued –

"The rationale of excluding it as inadmissible, rooted as it is in the system of trial by jury, is a recognition of the great difficulty, even more acute for a juror than for a trained judicial mind, of assessing what, if any, weight can properly be given to a statement by a person whom the jury have not seen or heard and which has not been subject to any test of reliability by cross-examination."

Lord Bridge then recognised at 54D that –

"Statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made."

In that case the statements sought to be relied on were held not to meet that test. Lord Bridge then said –

"The statements which it was sought to prove that Mark made, indicating his knowledge of the murder, provided no rational basis whatever on which the jury could be invited to draw an inference as to the source of that knowledge. To do so would have been mere speculation. Thus, to allow this evidence of what Mark said to be put before the jury as supporting the conclusion that he, rather than the appellant, may have been the murderer seems to me, in the light of the principles on which the inclusion of hearsay depends, to be open to still graver objections than allowing evidence that he had directly admitted the crime. If the latter is excluded as evidence to which no probative value can safely be attributed, the same objection applies a fortiori to the admission of the former."

12. However, as Mr Lawson points out, we also have the assistance of the later decision of the House of Lords in Myers [1998] AC 124. In that case the appellant, a co-defendant Quartey and a fifteen year old girl hired a mini cab the driver of which was later found fatally stabbed. Whilst in custody the appellant said in conversation that although she had the knife and did stab the driver they had only intended to rob him and not to kill him. The Crown did not seek to lead that evidence, but the judge allowed it to be adduced by counsel for Quartey to assist his defence. The appellant was convicted of murder and Quartey of manslaughter. In the Court of Appeal and in the House of Lords the decision of the trial judge was upheld, but the reasoning is not easy to follow. At 136D Lord Slynn, with whom Lords Steyn and Hutton agreed, said –

"Accepting Lord Bridge's view in R v Blastland that statements by third persons are not admissible there is a long line of authorities showing that a defendant must be allowed to cross-examine a co-defendant as to a previous inconsistent confession so long as the material is relevant to the defendant's own defence. In my opinion a defendant should also be allowed to put a co-defendant's confession to witnesses to whom the confession was made so long as the confession is relevant to the defendant's defence and so long as it appears that the confession was not obtained in a manner which would have made it inadmissible at the insistence of the Crown under section 76(2) of the Act of 1984. There may be doubt as to whether the co-defendant will be called (so that it may not be possible to put the confession to the co-defendant directly) and not to allow the defendant to introduce it by way of cross-examination of prosecution witnesses could lead to great unfairness."

If relevance is the only test in relation to a confession properly obtained it is difficult in a situation such as that which arose in Myers, to see what is left of the hearsay rule, as explained and applied in Blastland, and if in order to avoid unfairness a co-defendant's confession has to be admitted even when he does not give evidence, why is such unfairness acceptable if the co-defendant is tried separately, or not tried at all?

13. Lord Hope, with whom Lord Mustill agreed, recognised the relevance of the hearsay rule, saying at 140E –

"The hearsay rule … has to be considered because the contents of the statement made to the police by a third party are hearsay evidence as to the truth of those contents. If the evidence is admissible, it must be by way of an exception to the hearsay rule."

As to Blastland Lord Hope said at 142A –

"The situation in the present case is however not the same as that in R v Blastland. The statements which counsel for the appellant's co-defendant was allowed to lead in evidence from the police witnesses were statements by his co-defendant, not by a person who could properly be described as a third party because he was not a party to the trial. There was no other way of eliciting this evidence because the maker of the statements was not a compellable witness for the co-defendant."

So clearly if the evidence is to be admitted it is critical that the person alleged to have spoken is a co-defendant, and a justification for admitting the evidence seems to be that otherwise there is no other way to elicit it. Lord Hope says at 143C that in Scotland one of the reasons commonly given for admitting such evidence is that it is relevant to the defence of a co-defendant "where only one of them could have committed the crime."

14. Mr Lawson submits that we should proceed upon the basis that if the evidence from the statements had been available at the time of the trial it would have formed part of the prosecution case against Chantelle Day, and Lawless would then have been able to rely on it. But that, as it seems to us, is to postulate an event which has yet to take place, namely the trial of Chantelle Day on a count of murder. In the context of the trial which did take place, and from which this appeal lies, the evidence from the statements, other than that which refers directly to the conviction of the appellant Lawless, has no real part to play. It all relates to Chantelle Day's own position. As Mr Milmo points out, this is not a case where the crime must have been committed by one of two people. If Chantelle Day was involved in the arson that fact does not of itself cast doubt upon the conviction of either of the present appellants. That can be contrasted with the situation in Myers where, in reality, it seemed that only one of two people could have stabbed the driver of the mini cab. As to what Chantelle Day is alleged to have said about the appellant Lawless that could only be adduced, as Mr Lawson recognises, if the evidence were to come directly from Chantelle Day. Otherwise it falls foul of the rule in relation to hearsay, and even if she were to give that evidence she would be unlikely to be regarded as a witness whose testimony would carry much weight.
15. With those considerations in mind we turn to our powers under section 23 of the 1968 Act. We may, if we think it necessary or expedient in the interests of justice, receive any evidence which was not adduced in the proceedings from which the appeal lies, but in considering whether to receive any evidence we must have regard in particular to –

"(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."

For present purposes we are prepared to accept that the information in the statements is capable of belief in so far that it reports what Chantelle Day is alleged to have said, but save for the passages which bear directly upon the conviction of the appellant Lawless that information does not appear to us to afford any ground for allowing the appeal. The limited information which we regard as relevant would have been admissible in the proceedings from which the appeal lies, in that Chantelle Day could have said in those proceedings that Lawless played no part and, so far as Lawless is concerned, there is a reasonable explanation for his failure to adduce that evidence in those proceedings because it was not then available to him, but he is still in no position to adduce it in a acceptable form, that is to say directly from Chantelle Day. Accordingly there is no fresh evidence for us to receive and without fresh evidence Mr Lawson's second ground of appeal fails. This Court can only exercise its powers under section 2 of the 1968 Act on the basis of material properly laid before it, either coming from the court below or coming direct to this court by way of fresh evidence, agreement or concession.

16. There was briefly canvassed in argument before us the possibility of using the provisions of sections 24 to 26 of the Criminal Justice Act 1988 to introduce into evidence before this court the statements to which we have referred, but the statements were not admissible by that route because they did not meet the requirements of section 24(4).

The Appeal of Lawson.

17. On behalf of the appellant Lawson Mr Bury drew attention to the notebook or diary entry apparently made by Chantelle Day after the first attack on the home of Alfred Wilkins and before the fire. It read –

"Everytime I hear Alf's name (that's the nonce on the Yarbrer who lives in the flat's next door to Owen) I just want to brake into his flat and sallertape his hands behind his back, sallertape his legs together, put some sock's in his mouth with some sallaertape over it, take all of his money, pour petrol allover his flat and allover him then set him on fire then his flat to make sour it all blows up with him in it…."

That entry was used by Mr Milmo when opening the case for the Crown. He referred to it as a blue print for what was to occur. It was suggested that it must have been shown to Gary Lawson, but Lawson denied ever seeing it.

18. When the judge ruled that there must be verdicts of not guilty returned in relation to Chantelle Day on counts 4 and 5, leading counsel for Gary Lawson submitted that because of the prejudicial effect of the diary entry the jury should be discharged and Chantelle Day should be tried separately on count 1. The judge rejected that submission, and Mr Bury's first ground of appeal is that he was wrong to do so. In our judgment that decision of the trial judge is unassailable. It was a matter for his discretion, and the discretion was properly exercised. A jury properly directed was perfectly well able to deal with the prejudicial effect. Furthermore, when telling the jury what their verdicts must be on counts 4 and 5 the judge said of the diary entry –

"The Crown, as you know, relied upon the entry in her diary. The entry itself is entirely personal, and so far as Gary Lawson is referred to it is simply incidentally. There is not the slightest evidence that she ever showed it to him, not the slightest evidence that he was incited one way or the other, so that is why those counts have to go."

The diary entry was left with the jury because although it was made after the break-in which was the subject matter of count1, it was evidence of a hostile animus on the part of Chantelle Day, and that was relevant in relation to count 1 so far as she was concerned. Clearly the judge intended to give the jury careful and specific directions about the limited way in which the diary could be used, but by an oversight he omitted to include such directions in the main body of the summing-up, and a curious feature of the case is that when the point was raised as a result of a question from the jury after they had retired the judge and all counsel were satisfied that the directions had been given. In the course of his careful summing-up the judge did give other directions which were relevant. He said at 7B of the transcript –

"Chantelle Day did not give evidence. What she said in interview was not in the presence of other defendants, they did not have the opportunity to cross-examine her about what she had said, and in those circumstances what she says in interview is evidence for or against her, and only her. It is not to be taken into account when you consider any other defendant's case."

On the next page, when dealing with lies, the judge said –

You may reject Chantelle Day's explanation for her diary entry relating to Mr Wilkins."

Much later on, when dealing with the evidence of Gary Lawson, the judge said at 105G -

"He had never seen Channie's notebook, there had never been an occasion when she was writing in it in his presence during a conversation, to his recollection."

Then, after the jury had retired, they asked for samples of each defendant's handwriting. That request was, of course, refused, the evidence having been concluded, but the judge went on to say to the jury –

"Can I just remind you, there are two matters really. One is that the only document in manuscript that you have got is Miss Day's diary, and the undisputed evidence is that she wrote the whole of that, and again, as I directed you, that is only evidence for or against her.

The only other handwriting that we have been able to identify is the writing on the boards or doors at Mr Wilkins flat. Again there is no evidence that that is attributable to any of the defendants. There was a suggestion that Johnson had been responsible, but he denied it, so that is as far as we can take that."

19. Mr Bury's second ground of appeal is that the Judge's direction as to the diary entry being evidence only for or against Chantelle Day was too little and it came too late. We disagree. It is certainly regrettable that the diary entry was not dealt with earlier, but in the end the jury did receive the direction that was required, and it can even be argued that a direction given at a very late stage will certainly be memorable. Mr Bury submits that more needed to be said about the limited relevance of the diary in relation to count 1, but again we do not agree. By the end of the case the relevance of the diary in relation to that count was clear. It came into existence after the attack on 1^st February 2001. It was plainly in Chantelle Day's handwriting, and there was no evidence that it was shown to Gary Lawson who denied seeing it. It could therefore only be relevant in relation to her state of mind.
20. That conclusion in relation to the directions which the jury received makes it unnecessary for us to consider the strength of the case against Gary Lawson because, as Mr Bury accepts, there plainly was evidence upon which a jury properly directed could convict on both counts. The witnesses on whom the Crown relied were vulnerable, but their weaknesses were fully explored, and there was no evidence of collaboration.

Conclusion.

21. For those reasons both appeals against conviction are dismissed.