England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
(HIS HONOUR JUDGE LAKIN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2004

Lord Justice Potter :

Introduction

1. On 14 March 2002 in the Crown Court in Manchester before His Honour Judge Lakin and a jury, upon retrial of the appellants Huckerby and Power on an indictment alleging conspiracy to rob, both appellants were convicted. On 25 April 2002 each was sentenced to a term of 14 years' imprisonment and on 20 September 2002 each was made the subject of a confiscation order in the sum of £50,000 or 15 months' imprisonment in default.
2. At the first trial, there were a number of co-accused. Anthony Wilks-Wells and Charles Knight, each of whom was acquitted on 4 October 2000 when the trial judge stayed the indictment against them, and James Hayes who was acquitted on 10 November 2000 when the trial judge stayed the indictment against him. William Goulden and Derek Wilson were acquitted by the jury on 11 July 2001.
3. Upon their applications for leave to appeal against conviction in respect of which Huckerby made application for leave to call fresh witnesses, the single judge referred such applications to this court for consideration and directions. At the same time the single judge granted Huckerby's Application for Leave to Appeal against sentence in respect of the Confiscation Order made against him, following which Power's Application for Leave to Appeal in respect of the Confiscation Order made against him was referred by the Registrar to the Full Court. Those matters are now before us following directions given by the Full Court on 11 May 2004. The statements of the fresh witnesses sought to be called on the appellants' behalf and the statements of two witnesses on which the Crown seek to rely before us are psychiatric evidence going to the state of mind of Huckerby at the time of the robbery with which he was charged. Directions were given for the agreement of a list of questions to be put to one of the psychiatric witnesses and to leading and junior counsel for Huckerby at both earlier trials relating to the consideration which they gave to calling psychiatric evidence at that stage. The questions and answers are now before us. Directions were also given for the hearing of the applications with the appeals to follow immediately if leave were granted, the parties being ordered to ensure that those witnesses required to give oral evidence were present at court on the day of the hearing.
4. In the light of the nature of the Grounds of Appeal and the issues involved, we indicated at the outset that we would hear the oral evidence sought to be called on both sides de bene esse and require the parties to make their submissions in full, so that we could reserve judgment upon the applications and the appeal to be handed down together. That judgment now follows.

The facts

5. On 3 July 1995 at a Midland Bank Sorting Office in Salford, a Securicor van driven by Huckerby, an employee of that company, was relieved of over £6.5million in cash and cheques by a gang of at least three masked men. A white Ford Transit van was used for transferring the proceeds of the robbery. Of the total amount stolen £4,251,386 was cash. The case against both appellants was almost entirely circumstantial, the Crown relying on inference against both. At the time of the robbery Huckerby failed to activate the data track device inside his van in respect of the operation of which he had received training or to raise the alarm. The Crown said it was to be inferred from his behaviour that he was an 'inside man'. His financial situation was such that it could be inferred that he had received a 'sweetener' and he had made payments into his bank from which it could be inferred that he had received money from the same source as Power. The Crown also relied upon a conversation between Huckerby and his live-in girlfriend, said to amount to a confession.
6. Power was said to have recruited Huckerby to the team of robbers and to be his handler. There had been telephone contact between Power, Huckerby and others at the time of the robbery from which the Crown said it could be inferred that Power was relaying details to and from others involved in it. He had banked money simultaneously with Huckerby which the Crown said could be inferred to have come from a common source. In addition, some six months after the robbery, he had had conversations with an undercover police officer, Barry Unknown in which the possibility of setting up other robberies was discussed.
7. Both appellants denied the allegations. It was claimed that Huckerby was being made a scapegoat. He was dismissed by Securicor on the grounds of breach of procedure and not for dishonesty. It was said there were many serious security breaches at Securicor and anyone could have been the 'inside man'. It was a genuine robbery, the frightening violence of which readily explained Huckerby's failure to activate the tracking device and the alarm. On behalf of Power it was claimed that there were many others who could have had knowledge about the sums being carried and it was not possible to infer that it was he who was controlling Huckerby. The payments into his account were insignificant and his conversations with the undercover officer were drunken and not seriously intended. No inferences could be drawn from the telephone calls as alleged.

The evidence

8. Louis Headon, a fellow employee at Securicor, who had done the trip (known as 'trip 2') with Huckerby on six occasions since May 1995, said that cash should not have been included on the run to the Midland Bank Centre that day which was a cheque run. However, everybody knew that there were regular breaches of procedure by the inclusion of cash which the management ignored, ignoring also his request to use the more secure three-man vehicle for that trip.
9. Headon had the means of access to the vehicle. There was an outside door which led into an airlock with an inside door leading to the inside of the van. Because the van was overloaded and the run so busy, he arranged to get a second Kaba key which enabled the doors on both sides of the vehicle to be opened at the same time and the inner airlock door to remain open during the run. That was to speed up loading and unloading; there was no alternative but to use the second key. He was supposed to sign for the second key but only did so on half the occasions he should have done. Security at Securicor was not good and corners were cut.
10. On the day of the robbery, having loaded the van with cash and cheques, they drove to the Salford Bank. Huckerby reversed the van towards the roller shutter door of the bank, releasing the door which enabled Headon to get out of the passenger side. Headon went to the entrance and into the area of the bank. He saw no-one walking about, nor any other vehicle in the area. Having produced his ID card to Linda Newnes, a bank employee, he got stuck in the bank pen because of some problem with it and was still inside the bank when the robbery occurred.
11. He said the van was equipped with a telephone on the dashboard which was in working order that morning. There was also an attack alarm in the form of a red button. On the driver's side of the vehicle there was a data track button beneath a metal housing which, if switched on, emitted a silent signal so that the vehicle could be tracked if stolen. It could and should be pressed if the vehicle came under attack. There was a quick dial on the phone for emergencies, but no set procedure for emergencies was laid down. If a gunman got into the van, the data track button could be pressed by pretending to bend down and scratch one's leg or tie one's shoe lace, but that would be impossible if the gunman instructed the driver to keep his hands on the steering wheel. He expressed the view that Huckerby would not have had time to press the data track button if a gunman had got into the van and held a gun to his head.
12. He said that both he and Huckerby were suspended by Securicor and subsequently dismissed in November 1995. He, however, was reinstated. It was his opinion that Securicor had been wrong to dismiss them, they being treated as scapegoats.
13. Linda Newnes said she saw the white van as she arrived for work. The bank had an arrangement with Securicor not to carry cash to its cheque centre and the cash had been delivered by mistake. When the Securicor van arrived, she spoke to Mr Headon in the secure area. She confirmed that, as she was signing him in, there was a problem with the pens. She then heard a colleague screaming and activated the alarm, telling Mr Headon to remain where he was. She saw the Securicor van speeding away through the security cameras.
14. Rosemarie Cartwright, a bank employee was responsible for operating the roller shutter door on the garage. After she had operated the switch to allow the roller door to open, the Securicor van reversed into the garage. When it was about a quarter of the way in, two masked men ran up to the security doors pushing at them and trying to get them open by bouncing them. They appeared to want to get into the building. The two could easily have gained access by pressing the buzzer at the side of the door. She called out for someone to get the police and suddenly the men disappeared and the van sped off. It appeared they had hijacked the driver.
15. Another witness saw two vans accelerating up the road, the Securicor van leading, followed by a white transit van. The vans drove to Hope Street, Salford, where Mr Wade and Mr Vipond were working. Mr Wade said he saw two men with masks throwing bags from the Securicor van to the white van which then pulled away and disappeared. Then he saw another man who had been chained to a railing. He went and asked if he was alright. The man (who was Huckerby) appeared agitated and nervous. He was handcuffed facing the railings and gagged with masking tape over his face and eyes. Huckerby said to him “They've got my mate”. Mr Wade got some bolt cutters and released him, ripping off the masking tape. Huckerby tried to get into the Securicor van but was unable to do so. The police arrived within seconds.
16. Mr Vipond had witnessed the arrival of the white Transit van and said five or six people wearing ski masks and dark clothing jumped out of it, two brandishing guns. He went to call the police and when he returned he saw the masked men dragging a man (Huckerby) to the fencing and manhandling him while others transferred blue bags from the Securicor van to the white Transit van. He said it was all very frightening. After the van had driven off, he went with Mr Wade to the aid of Huckerby.
17. Trevor Ridley, a security inspector for Securicor, described the cash and cheques stolen. He said some containers were left behind in the van, containing cash and cheques worth over £1million. He said that use of the second Kaba key and the driving of the van with the air lock door open were breaches of security.
18. Evidence was given that the data track system was in working order but had not been activated.
19. Dennis Blackledge, a Securicor employee was called to give evidence of a previous robbery which took place on 5 November 1994 when he was working with Huckerby and another employee. He had been violently attacked and hit on the head with a sledge hammer. Huckerby had phoned for assistance. He said, however, that in the heat of the moment procedures could go by the board, the data track button not having been used on that occasion either.
20. John Davis, the Securicor vault supervisor, on duty when the van was loaded for its trip, said that the Kaba keys should not have been taken out. He did not know that this had been done.
21. Alan Chesworth, the Securicor area inspector covering the Manchester depot, responsible for checking breaches of security and advising clients, said that he was only now aware that the vehicles were going out on trip 2 carrying a large amount of cash and cheques when they should only have been carrying cheques. It was a serious breach which should not have occurred. Similarly, the driving of the vehicle with the inner air lock door open and the taking out of the second Kaba key were breaches of security to which he would have put a stop had he known of them.
22. So far as the disciplinary proceedings against Huckerby were concerned, Philip Low, Securicor's assistant managing director had been responsible for them. He said that Huckerby had complained that he had not been properly trained. He was dismissed for permitting the second Kaba key to be taken out and the inner door left open on the run.
23. Derek Holland, a security inspector at the Manchester branch gave evidence as to the training which Huckerby had undergone, including training on the use of the data track in August 1994 and produced his training record. This showed that, in his examination, there were two questions on the data track which Huckerby had only partially completed. Huckerby had driven trip 2 on seven occasions. If a vehicle was attacked, the safest place for the driver was inside the vehicle. He might only have seconds to think. There was a fine line between acting bravely and acting foolishly.
24. Simon Bradley, the Securicor training officer, described the training course including data track training. He agreed that in the training video the driver pressed the data track button before the gunman boarded the vehicle. He said he did not suggest that a driver should activate any of the audible emergency procedures if a gun was being pressed to his head. He agreed that split-second judgment was needed in emergency situations.
25. Jill Bolton, Huckerby's ex-wife, was called to describe his manner on a visit with her to their daughter Lauren, who had been hospitalised with suspected appendicitis on the day before the robbery. She said Huckerby was agitated and restless and could not sit down. She agreed however that they had both been concerned for their daughter, particularly because the diagnosis had not yet been made. She said that Huckerby had been in arrears with his maintenance payments and, in July 1995, she had taken out a court summons which led to those arrears being paid. She said in about September and October 1995 she had been concerned at the amount of expensive clothes and other gifts Huckerby was buying for Lauren. She had phoned him to tell him to stop. However, she agreed that this was around the time of Lauren's birthday and that some of the presents could have come from Lauren's grandmother.
26. Clare Healey, Huckerby's girlfriend, said that in about May or June 1995, when she had been living with him, Huckerby had come home with a wad of cash inside his coat amounting to about £1,000. He told her 'Jim' had given him the money. She said that was not someone whom she knew. He said he did not have to repay it and it was not mentioned again. Some weeks later, Huckerby said he had something to tell her. He said he had been involved in a robbery on 3 July. He had then started laughing and said that he had been only joking. She also said that Huckerby had been upset once when they watched a TV robbery. He said he had been blindfolded and had a gun held to his head and he had wet himself. She said Huckerby was a drinking mate of Power. They would go out together several times a week. Power had sometimes come to their house and used the telephone there. In cross-examination, she said she had herself arrested for conspiracy to rob on 11 August 1999. It was very traumatic for her. She had been bullied by the police to give evidence against Mr Huckerby. She was threatened to be charged with something she had not done and was interviewed twice on 11 August and twice on 12 August, being detained overnight. Eventually she said she told the police what had happened. She had not told the full truth previously because she was scared.
27. So far as Huckerby's finances were concerned, a Mr Brierley of Barclays Bank produced records of Huckerby's bank account and transactions on it, particularly in relation to cash withdrawals. On 6 October and 6 November 1995 significant credits were made to the account and on 11 December £500 was paid in. On 12 April 1995 the arrears on his loan account, granted in October 1994 (some £1,000 plus interest) were paid off.
28. So far as Power was concerned, as already indicated, the case against him depended upon (a) linking him with Huckerby as his recruiter and handler; (b) the making of significant deposits after the robbery at a time when he was in receipt of benefits; (c) the undercover police evidence of Barry Unknown.
29. As to (a), evidence was produced of telephone contact between Huckerby, Power and others (namely Hayes and Wilks-Wells, who were originally charged as co-conspirators but were acquitted at the first trial).
30. The particular calls relied on were as follows.
31. 6 May 1995: Power called 47 Golborne Avenue, Withington, the home of Wilks-Wells. 23 and 30 May and 6 June 1995: three calls between Huckerby and Power on consecutive weeks of short duration after Huckerby had driven trip 2, the same route as the robbery the following month. 19 June 1995 (the day when Huckerby unexpectedly did not drive trip 2): at 19.07 Power phoned Huckerby. At 19.08 Huckerby made a call to 7 Fairoak Road (the home of Hayes), allegedly to explain why he had not driven trip 2 that day). 19.12 Huckerby called Power. 19.34 Power called 47 Golborne Avenue. 19.36 Huckerby called 7 Fairoak Road. 25 June 1995 there was a call from 7 Fairoak Road to Power, followed by a call from Power to Huckerby. 27 June (the day the white van was stolen in London) Power called Huckerby. 21 July 1995: Power called Huckerby shortly after the latter's final interview with the police that day.
32. As to (b) Mr Ghafoor, an employee of Halifax Building Society, gave evidence of deposits totalling £12,800 cash into Power's account between 23 August 1995 and 1 August 1996 at a time when he was in receipt of benefits. On 6 October and 6 November 1995 significant credits were made to the account and £500 was paid into his account on 12 December 1995 (the day following payment of a similar sum paid by Huckerby into his Barclay's Bank account).
33. As to (c), Barry Unknown was given a brief to obtain employment with Securicor and befriend Power and Huckerby with a view to gathering evidence concerning the robbery and to see if either would involve himself in a robbery in the future. His work began on 29 January 1996 as part of a major observation involving 19 other officers. Huckerby was only seen in the company of Power on four occasions. Unknown produced 30 tapes covering 60 to 90 hours of conversations with Huckerby of which 2 hours were adduced in evidence to the jury. The significant parts of his evidence were as follows.
34. On 29 January 1996 he exchanged pleasantries with Power in The Wilton Arms pub and heard Power say that his accountant was sorting something out for him “We're talking a lot of money”. On 2 February 1996 he saw Power in the bookmakers. He placed a £100 bet by taking notes from a large roll of cash of some £500 in tens and twenties. He placed another bet later that day.
35. In April 1996 Unknown let it be known in the pubs frequented by Power that he was applying for a job with Securicor and had been offered a position as a cash-in-transit driver. He started on 22 April 1996.
36. Thereafter he saw Power on occasions in the pub and on 12 June 1996 Power talked of buying a pub, saying that he had £55,000 tied up in the transaction.
37. On 17 July 1996 Unknown tape-recorded a conversation with Power which was produced in court. During the conversation Power said he would talk to Unknown about things when he got back from holiday. When Unknown asked what was in it for him, Power said it depended what was in it “You get so much percentage”. “If its £4million you may get £1million”.
38. On 24 July, in a conversation in The Foresters pub, Power again made reference to a meeting with his accountant. On 31 July, Power told Unknown he was skint and on 21 August talked about going on the wagon. He said he had withdrawn £7,000 out of the building society and some of the notes were forged. Bookies had refused to accept them and the bank would not take them back. On 22 and 23 August Power said that he and Unknown would have to have a word sometime and they arranged to meet at The Foresters on 25 August at Power's suggestion. In fact they went to The Grapes public house at Power's subsequent suggestion. The conversation was recorded and produced in court. Power said he did not “do” anything now, but he knew lads who did. They would have to vet Unknown for a while. He would have a word and if they thought he was alright they would take him out for a meal, but it would take about 6 months before he got anything. Unknown would have to bury it (i.e. any proceeds). Power advised Barry not to keep more than £3,000 in the building society and to get someone trusted to open the account for him. Power said he had someone bent at the dogtrack who could say he had won £10-20,000 and produce receipts.
39. On 29 August 1996, Unknown saw Huckerby and Power together in The Foresters pub and overheard amounts of £7,000 and £9,000 being mentioned along with horses.
40. On 11 September Unknown saw a man (Power's accountant) hand Power a roll of notes of about £400-£500. Power said he had to go into town next day to get more money from the accountant. He was short of money and needed it for his co-ownership deal of The Grapes pub. Later he said he needed £95,000 to buy The Grapes pub outright and could only afford half of that now. He would get the rest in a couple of years.
41. On 28 September, when Unknown saw Power in The Foresters, he was with a man called Graham Ellis who took a great interest in his work at Securicor. On 9 October, he saw them again. Power was sitting at the bar and Ellis said that by the end of the week “We will know all about you. All it will take is a phone call down the road”. On 11 October, Unknown and Power visited several pubs. Power told him that “they” were keeping an eye on him. They needed to follow him to see where he went when he left them. They were professionals and did it properly. It took time.
42. On 16 October Unknown saw Huckerby in The Foresters pub briefly whilst Power was there. Unknown left his job at Securicor on 19 October on the decision of his superiors. On 31 October he had a conversation with Power in which Power told him it was off. He could not do anything as the decision had been made that they did not want to do it. When Unknown said he was gutted and would go back north, Power suggested that he wait and see if Graham Ellis was interested and that he should come tomorrow. However, Unknown had no further involvement in the case.
43. In cross-examination for Power, Unknown said that during the operation there was mention of blaggings but no talk of the robbery of 3 July 1995 in all the conversations which they had. He agreed that he had become aware that Power was a gambler and that in the period of his dealings with him Power said that he had won and lost a lot of money. Power's life was the pubs, drinking and the bookies.
44. The appellants were arrested on 11 August 1999. Huckerby was interviewed twice on 3 July 1995 and five times on 21 July. He answered all the questions and gave a detailed account. In his statement of 3 July, he said that he saw Mr Heaton entering the bank premises. In his later interview he said he did not see him going through the doorway. Power was interviewed twice on 12 August 1999. He denied recruiting Huckerby into a robbery team or being involved in a conspiracy. He said he used to phone Huckerby up for a drink every now and then. His enterprise in The Grapes was funded by money his wife Nina borrowed from her mother. During the second interview he made no comment to a number of questions. He said he only had a Post Office savings account and denied knowing a Barry who worked for Securicor. PC Birtles interviewed Power on 12 August 1999. He confirmed to Power's solicitor that at the time of that interview the police had insufficient material on which to base any charge against Power. They had the itemised phone billing and the evidence of the undercover police officer as well as details of the Halifax account (however he was not aware of that account at the time).
45. The following admissions were made on behalf of Power [and Huckerby]:

i) The white Transit van used in the robbery was stolen from London on 27 June 1995 between 6.30pm and 6.40pm.

ii) The cash left on the van by the robbers could not be exactly quantified but was between £1million and £1.79million.

iii) On 17 May 1996 Power and Huckerby went to Nat West bank, Disley where Power deposited £40,000 into an account in the joint names of himself and his wife Nina.

iv) On 29 May 1996 the £40,000 was transferred into an account in the sole name of Nina Power.

v) The money came from Nina Power's parents. There was no suggestion that it was anything other than legitimate savings.

46. At the end of the prosecution case submissions of 'No case to answer' were made on behalf of both appellants. Before turning to those submissions and the ruling of the judge, it is relevant first to refer to Wilks-Wells and Hayes who were originally indicted as co-conspirators. The indictment against them was stayed in October and November 2000 respectively, i.e. prior to the first trial, as a result of advance rulings made by HH Judge Lakin in relation to certain evidence. The first trial then proceeded against the appellants and their co-accused Goulden and Wilson who were acquitted by the jury on 11 July 2001.
47. Prior to the first trial, on 24 October 2000 the judge ruled that, in the light of the acquittal of Hayes and Wilks-Wells, evidence of the telephone calls of 6 May and 19 June from Power to Wilks-Wells and from Huckerby and Power to Hayes on 19 June was inadmissible. The Crown appealed against that ruling and on 4 April 2001 this court reversed his decision. Its reasoning appears from the following passages:

“14. … Mr Steiger [for the Crown] submits that the judge fell into error in concluding that those calls were inadmissible once Wilks-Wells of Golborne Avenue and Hayes of Fairoak Road had been effectively dismissed from the case. It was not necessary, submits Mr Steiger, that the address to which the calls was made should be demonstrated as having a relevance to the conspiracy, but the fact of making those calls was, Mr Steiger submits, highly pertinent.

15. So far as the 6^th May telephone call is concerned, that, as we have said, was a few days after Huckerby's first journey on trip 2; and on 19 June, significantly, submits Mr Steiger, Huckerby did not, as would have been expected, drive trip 2. That, submits Mr Steiger, would necessarily give rise to anxiety on the part of others involved as to the extent of Huckerby's reliability as a participant in criminal conspiracy. …

17. Mr Platts [for Power] submitted that once Hayes and Wilks-Wells ceased to be defendants, there was no probative relevance because, if the telephone calls proved nothing against them, they could prove nothing against Power. There was, Mr Platts rightly submits, no evidence as to the contents of the telephone calls. All that can be inferred from them, he submits, is a wish to find a correct telephone number, and the matter goes no further than that ….

19…. the telephone calls on 19^th June are, as it seems to us, capable of supporting inferences that there was sought to be communication between the presently alleged co-conspirators as a consequence of Huckerby's failure to drive trip 2 on 19^th June, when those calls were made. In our judgment, the learned judge did fall into error because those calls were capable of having a probative impact in relation to Power, Huckerby and Goulden, despite the fact that Hayes and Wilks-Wells are no longer defendants. Accordingly, as we indicated during the course of argument, the prosecution's appeal in relation to those telephone calls succeeds.”

48. The submission to the judge at the second trial on behalf of Huckerby was that the case against him was simply based on suspicion and speculation, it not being possible to draw any safe inference that it was an inside job. It was submitted that, had there been a compliant inside man, there would have been no need to take a hostage as clearly there was an attempt to do from the evidence of Rose Cartwright. The two men could easily have gained access to the bank by pressing the button at the side of the door. That they apparently did not know that they could do so was indicative of lack of inside information. An inside man would also have been able to point out which bags contained cash and which cheques, rather than permitting the robbers to take many bags with cheques and leaving many bags containing cash. It was submitted that the observations of Mr Wade and Mr Vipond showed that the treatment of Huckerby was not a put-up act. His complicity was not the only inference that could be drawn from his failure to activate the emergency procedures. Reliance was also placed on the evidence of Bradley Heaton and Holland and the Securicor training video. It was pointed out that the Security Manager Phillips gave suspicious answers during disciplinary proceedings and was defensive in avoiding questions; it was just as possible to infer that he was the insider. Finally it was submitted that the evidence of Clare Shaw was wholly undermined by the police methods used to extract it.
49. Submissions were made for Power that the evidence against him was wholly circumstantial.
50. The judge first stated that, if the case against Huckerby were discharged, it would be necessary to discharge Power; if the case against Huckerby continued, it was necessary to consider separately whether that against Power should continue. He observed that, save in relation to the evidence of Clare Shaw, the case against Huckerby was circumstantial and that save in relation to the evidence of Barry Unknown the case against Power was also circumstantial.
51. As to Huckerby the judge ruled that it was open to the jury to conclude that whether there was a genuine or pretended attempt to take a hostage, the attack on Mrs Cartwright was to divert attention from the fact that there was an inside man involved. Using the buzzer to gain access would have given that away. The fact that some cash was left and some cheques removed was not indicative of a lack of inside help. Robbers were of necessity working quickly and they got away with £4.2million in cash. Although it was apparently a brutal attack, Huckerby was uninjured. It was open to the jury to conclude it was part of a well-planned charade. Huckerby had been trained in the use of the data track system and had used the emergency telephone in the previous robbery. It was open to the jury to conclude that he could and should have activated the data track button, either before or whilst the robber was getting in the vehicle.
52. Differences between Huckerby's statement and his interview were significant. Clare Healey was a witness capable of belief. There was sufficient evidence that the robbery involved an insider and that insider was Huckerby.
53. So far as Power was concerned, the evidence of Barry Unknown had been weakened by an inaccuracy shown in his report book. However, there were still the taped conversations of 17 July and 25 August. The Court of Appeal had described Power's reference to putting proceeds from the proposed robbery through the Halifax Building Society as potentially highly significant. There was also an untaped conversation of 11 October in which reference was made to taking the whole van. Those conversations were capable of constituting similar fact evidence. The phone contact was capable of supporting strong inferences that it was the conspirators in communication. There were further the unexplained deposits into Power's Halifax account. Overall there was sufficient evidence from which the jury could infer that Power was Huckerby's handler.
54. In his defence, Huckerby gave evidence of his background and personal circumstances and denied involvement in the robbery. He had no previous convictions. Upon divorce from his first wife he got a £10,000 settlement. The reason he had fallen into maintenance arrears was refusal rather than inability to pay because his wife had refused him access to his daughter. On 14 August 1995 his mother had lent him £600 to clear the arrears. He knew Power as a drinking friend and there was nothing sinister in telephone calls between them. He had never discussed a robbery with him.
55. He gave evidence as to the first (1994) robbery, saying he was the only one in the van at the time and saw and heard a car screech up. He saw Mr Blackledge being violently attacked and went from the back to the front of the van to call for assistance. He was so upset he was off work for a couple of months as he was unable to face going back onto the vans. In the 1995 robbery, he thought the use of the second Kaba key was part of this particular trip because of the large number of bags being transported. An extra key was needed where there was overloading. On 3 July, the internal door had been left open as was the sliding door between the back of the van and the driver's cab. This again was because of the large amount of bags. After he reversed up to the garage roller door he let Mr Heaton out of the vehicle. He saw him go up to the entrance door to the bank. As the roller door went up, he assumed Mr Heaton was inside the garage waiting to help him reverse in. He was then approached at the passenger side of the van by a man brandishing a gun and wearing a balaclava. He was ordered to open up, the man saying that they had his mate and would blow his head off. He believed the man. He had not seen from where he had come. The robbery was different from the 1994 one in which he had managed to raise the alarm by use of the telephone. As a result of the threats, he let the gunman into the van by pressing the access button. The man was immediately behind him with a gun pressed into the back of his neck. He followed instructions and drove off. He thought someone was moving in the air lock within the van and thought the gunman may have dragged Heaton on board. He followed instructions and ripped the telephone out. There was no way in which he could have got to the engine immobiliser, the audible alarm or the data track button. He was petrified and wet himself. He described the remainder of the incident.
56. In cross-examination, Huckerby said he could not remember seeing Mr Heaton go into the bank door. He did not know where Mr Heaton was and believed the gunman's threats. He had assumed they had Heaton as hostage and that was why he had not activated the data track button. He agreed that button was nearer him than the access button he used to admit the gunman to the van. He agreed that the robbers would have had no idea that the data track button had been pressed. He had had training in 1994 and the pressing of that button required minimum effort. Subsequently, he had tried to kick it whilst his foot was off the accelerator. It had not occurred to him to activate the data track button at the time when he got up to press the button to let in the gunman, nor while the gunman was climbing in the airlock and over the bags to get to his side.
57. He said that in relation to his daughter's hospitalisation he had been agitated and anxious as his daughter was in pain and upset. He was concerned for her and not about taking part in a robbery the next day. In relation to Clare Healey he said it was nonsense to say that he had showed her £1,000 cash supposed to have come from 'Jim'. At about this time his mother was giving him money.
58. Not long after the robbery he had watched a TV drama which depicted lift doors opening and masked gunmen. He was shocked and told Clare Healey that he was involved in that: in other words that that was what had happened to him during the course of the robbery. She was mistaken in saying that he was admitting actually being involved in the robbery.
59. He referred to his financial situation and denied being in financial difficulty. The £1,000 loan had fallen into arrears but payments were made good. He could not recall the source of the £500 credited to his bank account on 31 March 1995. In 1994 he had lent £3,000 to a Mr Derkin who still owed him £500-£600. On 14 August 1995 he borrowed £600 from his mother which was paid in. The £500 paid in on 6 October 1995 was possibly a part-payment from Mr Derkin and there was no significance in the fact that it was the same day as Power paid money into his Halifax account. Further credits of £500 on 6 November and 12 December were probably from Derkin also. He could not account for other credits in January and March 1996 and September 1996. He said some cash credits were possibly from door work.
60. So far as telephone calls were concerned he and Power telephoned each other whilst he was living at Merton Road. Power also visited him and used his phone on occasion. He did not know anything about 47 Goldborne Avenue or 7 Fairoak Road. He could not remember the calls from Power on 23 May, 30 May and 6 June. He might have been involved in calls on 31 May, 6 and 18 June. He could only suggest that, whilst Power was at his home on 19 June he made and received some calls. He said he had not had to explain why he had not driven on trip 2 that day. Throughout the period, he and Power were friends, going out for drinks together.
61. Ruth Huckerby, his mother, was called to say that she drew out £600 from her building society account in cash on 14 August 1995 and gave it to her son who used it to pay off maintenance arrears. She said there was also an occasion when she had paid him £1,000 to buy a three-piece suite and a bed.
62. Mr Derkin said he had borrowed £3,500 from Huckerby. He requested the loan in 1994 in order to pay off credit card and gambling debts and there remained £1300 outstanding. There was no agreement as to when the sum was to be repaid. He produced a book recording the loan, the repayments he had made in stages and his bank statements.
63. Kevin Dukes was a lorry driver who had witnessed the transfer of the money. He described the gunman taking the Securicor man from the van with a gun to his head and handcuffing him to the fence. He was interviewed by the police but had not been called as a witness. The tape recording of his interview was played in evidence. In it, he described the gunman as having been seated in the front of the Securicor van before dragging out the driver.
64. Power did not give evidence on his own behalf. He relied on his replies to the questioning by police in interview.

The Grounds of Appeal

65. The judge made a careful and comprehensive summing-up to the jury which is not the subject of any criticism by Huckerby save in one respect. It is submitted that the evidence in relation to the telephone calls was left to the jury on an unsatisfactory and speculative basis (see further below). The principal ground of appeal depends upon the application of Huckerby for leave to call fresh evidence to show that, at the time of the robbery, he was suffering from acute stress disorder and post-traumatic stress disorder as well as severe depressive reaction and that his actions in failing to trigger the alarm mechanisms available to him were explicable on that basis and not because he was involved in the robbery as alleged.
66. In the case of Power, the grounds of appeal assert, and the Crown concedes that if the appeal of Huckerby against conviction succeeds, then so too must that of Power. It is further asserted that the judge failed properly to direct the jury in relation to the evidence of Barry Unknown, whose evidence was evasive and prejudicial. Finally it is said that the judge erred in failing to withdraw the case from the jury at the close of the Crown case on the basis that no reasonable jury properly directed could have come to a verdict of guilty on the evidence and/or that it was dangerous and unsafe to leave the matter to the jury. The single judge referred the application of Power to the Full Court simply on the basis that the jury had been directed that they should not convict Power unless they were first sure of the case against Huckerby.

The new evidence

67. In relation to the application to adduce new evidence in support of Huckerby's main ground of appeal, the history is as follows.
68. On 27 March 2001, before the first trial, Mr Curran, who was then junior counsel to Mr Rowe QC for Huckerby, wrote an advice in which he said:

“The prosecution rely upon his conduct at the scene of the robbery and thereafter as evidence that he was involved in a robbery. The defendant, who was the subject of a previous knife-point robbery whilst working for Securicor, maintains that he responded appropriately to the serious situation he was in …

It is in my view necessary to obtain advice from a recognised psychologist or psychiatrist skilled in the field of post-traumatic stress. This may well help explain the defendant's responses at the time of the incident and also explain the possibly 'guilty' remarks as 'confessional' remarks made subsequently to Miss Healey.”

69. On 26 April 2001 at the chambers of Mr Rowe, Dr Kelly, an experienced forensic psychiatrist, interviewed Mr Huckerby and discussed the case with his solicitor and both counsel. These discussions lasted an hour and three quarters. Dr Kelly intended to interview Huckerby at greater length on a subsequent occasion, as she did on 1 May and 8 May 2001. On 26 April, Huckerby's counsel and solicitor made a visit to a Securicor van similar to that used in the robbery and tested how unobtrusive or otherwise would be any movement of the driver to operate the data track lever, concluding that it would be fairly obvious. It was their intention to elicit this from Mr Huckerby in evidence. From notes and a draft proof kept at the time Mr Rowe was in no doubt that, when the trial started, the instructions of Huckerby were that he had distinct reasons for opening the door to the gunman (namely that he had indicated that he held Huckerby's mate as a hostage) and for refraining from activating the data track lever (lack of time and the fact that a gun was held to his neck), which reasons appeared to be rational rather than simply reasons of panic. Huckerby also denied making any confession to Clare Healey.
70. Dr Kelly produced her report on 10 May 2001. She described Huckerby as sweating, tense and anxious and tearful at times when considering the possible outcome of the case. His current symptoms included insomnia and occasional 'panic attacks' which were not so frequent as they had been immediately after the robbery. He also described flash backs to the incident which started immediately after it. He had never seen a psychiatrist in the past, though since the incident he had seen a counsellor provided by Securicor with little benefit. She described Huckerby as saying that

“As a result of his experiences, he has become extremely frightened, suffers panic attacks and has sleep problems.”

She also referred to the first (1994) robbery. She said that:

“He had been involved in a hold-up with a knife in November 1994 when his then partner was stabbed whilst he remained in the locked vehicle … He feels that this was different from the current incident in that he was aware, all the time, that there was no hostage situation. He began to have some episodes of high anxiety and panic attacks.”

71. In her conclusion, Dr Kelly stated as follows:

“He experienced a frightening incident in November 1994 when his partner was stabbed in the course of a robbery. His actions, at that stage, were correct as required by his company and this was the start of his panic attacks.

The current incident appears to have reawakened this anxiety and he appears to have suffered from an increase in panic attacks and flash backs. He attempted to resolve his symptoms by drinking excessive amounts of alcohol. He felt threatened during the course of this incident and did think that his partner may have been seriously injured.

A second similar incident often does increase the severity of such symptoms. He still has some symptoms of post-traumatic stress disorder i.e. flash backs, but he does not appear to have avoided the stimulus totally, for example he drove cars, although he says he would never get into a security vehicle again. There have been outbursts of panic but this is fairly rare during the course of post-traumatic stress disorder …”

72. Mr Rowe saw the report of Dr Kelly, either on 10 May or shortly thereafter. After discussion with Mr Huckerby, it was decided that Dr Kelly could not give evidence which would assist him for the following reasons. She did not consider that he was unfit to be tried or to give evidence. Furthermore, as the trial progressed and the legal team spent time with Mr Huckerby it was clear he was fully in command of his faculties and his recollection of events. Third, as to any relevance of the 1994 knife-point robbery, his proof in relation to the 1995 robbery did not suggest any mental impairment or unnatural panic. He said he opened the door because there was a gunman who held his mate hostage and for that reason he did as he was told. As to failing to activate the data track, Huckerby stated that later he had a gun to his head and any hand movement towards the data track lever would have been obvious but he had tried to move it with his foot. He had said the same in a police witness statement and later in a police interview. He said the same in evidence. In evidence he stated in respect of his attempt to move the data track button with his foot “It was worth having a go”. Thus any suggestion of inability through panic or for reasons of post-traumatic stress disorder did not appear to arise.
73. As to the 'confession' alleged to have been made to Clare Healey, his instructions and evidence were clear that he never confessed at all. He had merely said of a robbery seen on television that he had been involved in an incident like it. Mr Rowe took the view that in those circumstances it would have been improper for him to suggest to Huckerby that there might be some defence of panic available on the grounds of post-traumatic stress disorder, because Huckerby had not himself suggested it and his instructions and evidence did not so indicate.
74. Following the acquittal of Goulden and Wilson at the first trial in July 2001, Huckerby had different representation at the second trial, namely Mr Conrad QC and Mr Ford.
75. In pre-trial consultations, neither Mr Huckerby nor his solicitor raised the issue of his mental condition at the time of the robbery, although Huckerby stated that he had taken time off work following the robbery because he felt distressed by his experience.
76. In conference on the morning of the trial, Huckerby informed his counsel that he had seen a psychiatrist in relation to his experience but that the psychiatrist had not diagnosed any mental disorder. Counsel discussed with him whether that would be a fruitful area of investigation but nothing he said made them consider it was worthwhile. Following that consultation, Huckerby's then girl friend, out of the presence of Huckerby, informed counsel that he had been disturbed by child experiences of abuse. He had never discussed these with anyone but her and he was not aware that she was communicating the information to counsel. She was concerned that any psychiatric investigation would bring those matters to light and prove distressing to him. This reinforced the decision earlier reached in consultation with Mr Huckerby that psychiatric evidence would not be obtained for the purposes of the trial. Counsel knew that Huckerby was in a position to give uncontradicted evidence of his distress following the earlier robbery and that he had taken time off work in consequence, but they were unaware of any suggestion of his suffering from post-traumatic stress disorder. Dr Kelly's report was never made available to them, nor indeed was her identity.
77. Following Huckerby's conviction, counsel advised that a psychiatric report be obtained and Dr Wilson, a consultant psychiatrist reported in writing on 18 April 2002.
78. In the psychiatric history which he took, the following appears:

“5.1 Graham Huckerby told me that he suffered an episode of depression anxiety and insomnia which lasted for several months in 1994. He believes that his episode was precipitated by a robbery that occurred whilst he was working as a security officer with Securicor. He alleged that he saw a man stabbed during a robbery. He said he took three months off work with his depressive symptoms, and consulted his general practitioner who prescribed him anti-depressant medication.

5.2 Mr Huckerby told me that he was also the victim of a second robbery in 1995 … He told me that he was threatened with a firearm and was convinced that he was at risk of serious harm. After this incident, his depressive and anxious symptoms returned and he began to drink more heavily.

5.3 Mr Huckerby believes that his current depressive and anxious symptoms began in 1999 after his arrest for the current offences …”

79. In his 'opinion' Dr Wilson stated:

“9.4 Mr Huckerby gives a convincing history of the development of symptoms of a post-traumatic stress disorder after being the victim of a robbery whilst working at Securicor in 1994. He spontaneously described typical symptoms of this disorder …

9.6 I have reason to believe that Mr Huckerby was suffering from post-traumatic and depressive symptoms at the time of the commission of the index offence. It is however, difficult to further assess Mr Huckerby's clinical condition at the material time. The offence occurred some years ago and there is little contemporaneous information available. Further, Mr Huckerby continues to deny having committed the offence which makes it difficult to explore his thoughts and feelings and the contribution of any psychiatric symptoms at the time of the commission of the offence.” (emphasis added)

80. Mr Conrad QC has made clear in his advice on appeal that, had he been aware that there was reason to believe the appellant was suffering from PTSD symptoms brought about by the first robbery, there would have been an application to call such evidence.
81. On 10 October 2002, the appellant obtained a report from Mr Regel, a psychotherapist and Senior Cognitive Behavioural Psychotherapist at the Centre for Trauma Studies, of the Nottinghamshire Health Care Trust. The introduction to the report states that:

“The purpose of the assessment was to prepare a Report concerning the psychological problems that have arisen as a result of an armed robbery in 1994. This Report will also deal specifically with the psychological sequelae arising from that incident and the impact of a further incident some six months later.”

82. The report set out the circumstances of the first and second robberies as recounted by Huckerby, also a number of incidents of sexual abuse which occurred in his childhood and of which Mr Regel stated that he was of the opinion that “these incidents of abuse and the feelings they gave rise to at the time were reactivated following both robberies”.
83. In his 'Summary and Opinion' Mr Regel stated:

“7.1 I am of the opinion that Mr Huckerby is suffering from Post-Traumatic Stress Disorder (PTSD) which is moderate/severe in nature and of fluctuating intensity and severity and chronic in nature …

7.2 I am also of the opinion that he is suffering from a co-morbid depressive illness and is presenting with symptoms of depression which are moderate to severe in nature and these have been consistent for some time …

7.3 I am also of the opinion that Mr Huckerby was suffering from both acute stress disorder and post-traumatic stress disorder after the first incident and that his symptoms were still present when he was subjected to the second robbery. Many of the symptoms and reactions he described, such as those outlined in the Report above, are consistent with high levels of arousal in individuals exposed to severe traumatic events.

7.4 I am of the opinion that his unresolved PTSD symptoms from the first incident were further exacerbated and reactivated at the time of the second robbery …This combined with a significant sense of subjective life threat, together with fear and helplessness, would serve to explain his behaviour at the time of the robbery, i.e. opening the doors. In addition, his belief that he should have done more to help his colleague at the first incident (though he realises objectively there is little he could do at the time) may also have influenced his actions because he believed his colleague to be at severe risk during the second robbery.” (emphasis added)

84. Further a report dated 1 November 2002 was obtained from Dr Green, consultant psychiatrist at Halton Hospital. Having set out Huckerby's medical history and his descriptions of the two robberies in 1994 and 1995 he gave his opinion as follows:

“Mr Huckerby suffered from moderate to severe post-traumatic stress disorder (PTSD) following the attack in 1994. He still had significant symptoms at the time of the second robbery six months or so later.

The symptoms he described were characteristic of PTSD according to both ICD-10 and DSM-IV psychiatric classification symptoms.

Most psychiatrists would recognise the symptoms as being diagnostic of the disorder. To summarise he had characteristic recurrent nightmares of the trauma, flash backs, intrusive thoughts, anxiety at reminder cues, foreshortening of life's expectations, detachment, reduction in significant activities, low mood, poor sleep, irritability, anxiety and startled reaction, avoidance behaviour and so on.

A feature of PTSD is dissociation – Mr Huckerby gives a good description of this feeling of numbness and surreality and being mentally 'not there' both in the first incident and in the second …

Mr Huckerby's actions in the second incident may not therefore have been immediately rational to the observer, or to someone going through the sequence of actions retrospectively …I found his account of his events and symptoms to be credible. At the time of the second incident – the incident for which he has been punished – Mr Huckerby's actions were most probably determined as much or more so by his PTSD and instincts than any logical reasoning …

I concur with Dr Wilson's diagnoses …” (emphasis added)

85. In the light of those reports, the Crown obtained a further statement from Dr Kelly dated 21 June 2004 in which she states:

“1. I was aware of the robbery in which Mr Huckerby was involved in November 1994 and that he had suffered from symptoms which were consistent with a degree of post-traumatic stress for a period of some two months subsequently. He also described similar but more severe symptoms after the incident in July 1995. I do not recall, nor do I have any written instructions, requesting that I consider whether his actions in July 1995 were affected by any post traumatic symptoms from the incident in November 1994.

2. As far as I was aware, the symptoms relating to the incident in November 1994 had resolved by July 1995 and are unlikely to have influenced his actions during the offence. The subsequent symptoms are likely to have been re-awakened after this incident and to have continued for some time …” (emphasis added)

86. The Crown also obtained a report from Dr Fraser, a Consultant Forensic Psychiatrist, limited to his observations upon the reports of doctors Kelly, Wilson, Regal and Green to which we have already referred, without the benefit of any interview with the appellant, but having had sight of the records of his general practitioner, also placed before us. These show that, following the first robbery of 5 November 1994 the appellant saw his doctor on 1 December 1994 with recorded symptoms of anxiety and depression, being prescribed medication in that respect. There is no record of any further relevant visit until October 1999 when, following his arrest, he was recorded as suffering anxiety attacks. Dr Fraser concludes:

“Having reviewed all the medical records, I remain of the view that there is a substantial lack of information in relation to Mr Huckerby's presentation between 1995 and 1999. This is somewhat at odds of his own description of suffering psychological symptoms within this time.

Given the evidence as set out in GP medical records, it would appear there is a gap of five years between 1994 and 1999 in which he did not present to his general practitioner with psychological problems. These appear to have been precipitated by his arrest for the Court case … there is certainly no evidence in the independent medical record to support a diagnosis of Post-Traumatic Stress Disorder in the time period between the assault in 1994 and the arrest subsequently for the current charges …

I cannot reach any specific conclusion in respect of the conclusions reached in the various reports, but it is significant that none of the reports, according to the Crown Prosecution Service, have dealt with the period of time between the incidents and … I am unaware of any comments relating to the GP medical records in any of these reports.”

87. The application for Huckerby is for leave to adduce fresh evidence in the form of the reports and oral evidence of Mr Regel and Dr Green. In considering the application we heard oral evidence from both those doctors as well as Dr Fraser. Neither doctors Kelly nor Wilson were called to give evidence; however, it was agreed that the contents of their reports were to be treated at face value and taken into account in arriving at our decision.
88. Mr Stephen Kamlish QC for Huckerby submits that the fresh evidence goes to the central issue in the case, namely why the applicant behaved as he did during the robbery itself. While it is accepted that this court has consistently emphasised the need for any available relevant evidence, including expert evidence, to be advanced at trial, nonetheless the fresh evidence in this case meets the requirements of s.23 Criminal Appeal Act 1968. The potential effects of PTSD were relevant in rebutting the Crown's allegation that the only inference to be drawn from Huckerby's behaviour during the robbery was that he was a knowing participant in it. The jury could not be expected to appreciate the after-effects of the earlier robbery on the appellant without the assistance of the expert witnesses. Trial counsel at the second trial was not aware of the matters raised by the fresh evidence. Had they been so, they would have sought to use them in the defence of the appellant. It is submitted that the main test under s.23 i.e. whether it is in the interests of justice that the fresh evidence be admitted and whether it casts doubt on the safety of the conviction is satisfied and should be answered in the affirmative.
89. The Crown on the other hand vigorously oppose the adducing of the fresh evidence on two particular grounds.
90. First it is submitted that, unusually, this is not a case where expert evidence is sought to impugn the credibility of a witness or the genuineness or propriety of some aspect of the prosecution case, c.f. the recent consideration of such matters in R v Pinfold and MacKenney [2003] EWCA Crim 3643. In this case the experts are sought to be called to support the truth of the applicants evidence as to his state of mind. It is submitted that such evidence amounts to 'oath helping' which has always been regarded as inadmissible and remains the law despite advances in modern psychiatry and psychology, see R v Robinson [1994] 98 Crim App R (S) 370 and R v Deakin [1995] 1 Crim App R (S) 471. The argument that the expert evidence may help to support the applicant's version of events because it may explain why he behaved as he did, is in reality no more than an invitation to the jury to take a favourable view of his credibility.
91. Although it was undisputed that the applicant had allowed a robber into his cab and had failed to activate any of the emergency devices inside it, there were factual disputes about what exactly had happened before and during the robbery and a further dispute with regard to the evidence of Clare Healey. The appellant gave a positive account of what he sought to do and what he failed to do, giving reasons for those actions or failures. The central question was whether or not he was telling the truth when giving those explanations. Plainly the jury did not believe him.
92. Second, the fresh psychiatric evidence sought to be adduced relies on an account of the appellant's mental state and symptoms apparently based on an uncritical acceptance of his statements made years after the relevant events. Mr Regel saw Dr Wilson's report of 16 February 2002 and the prosecution case summary. Dr Green saw the same material and in addition read Mr Conrad's advice on appeal dated 2 May 2002 and prison medical records. Neither saw Dr Kelly's report of 10 May 2001, the depositions, or any medical notes from Mr Huckerby's general practitioner. Those notes show that Huckerby only consulted his doctor with stress-related complaints on one occasion prior to the robbery on 1 December 1994. The next relevant consultation was not until 4 October 1999 (i.e. almost 5 years later) when Mr Huckerby complained of anxiety attacks apparently brought on by five weeks in custody. It is significant that the applicant seeks to rely on the evidence of two witnesses who examined him more than seven years after the event, rather than Dr Kelly who produced her report during the first trial and Dr Wilson who examined him just after his conviction and referred to the difficulty of assessing his clinical condition at the material time.
93. Third, it is clear from the chronology and from the statement of Huckerby that both legal teams were aware of the possibility that expert evidence might be called to assist the case, but that both made a conscious decision not to rely on such evidence, at a time when it could have been obtained. It is submitted that it is now too late for Huckerby to ask for the verdict in this case to be set aside on the basis of assertions as to his state of mind when he twice made an informed choice not to call psychiatric evidence.
94. Finally on this aspect, it is submitted that the grounds of appeal relied on are similar to those put forward in R v Andrews [2003] EWCA Crim 2750 and the court ought to adopt the approach taken in that case and summarised at paragraph 44 where the court emphasised the need for any available relevant evidence to be advanced at trial. It added:

“The same applies to expert evidence sought to be relied upon in support of defences which are advanced at trial. In (Ahluwalia [1993] 96 Crim App R(S) 133) Lord Taylor CJ said that this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism. So we do, at the same time acknowledging the expertise of those professionals who have only come into contact with the appellant since her conviction. We do not exclude the possibility that a professional who comes late into the field in support of a defence which was advanced at trial may have something to say which requires this court to exercise its powers under section 23, but … Here, as in almost every case, there was room for only one trial, at which the appellant had a full and proper opportunity to put forward her defence.”

The telephone conversations

95. So far as the presentation of the telephone evidence was concerned, it is submitted for Huckerby that the interlocutory ruling of this court on 4 April 2001 (see paragraph 47 above) was succinct and unsatisfactory for the following reasons. It is submitted that the decision of the court that the phone calls were “capable of supporting inferences that there were sought to be communication between the presently alleged co-conspirators [i.e. Huckerby, Power and Goulden] as a consequence of Huckerby's failure to drive trip 2 on 19 June when those calls were made”, appeared to presume that the occupants of Fairoak Road and Goldborne Avenue were themselves involved in the offence. It is submitted that only thus could calls to unidentified persons at those two places have any relevance to the build-up to the robbery. Contact between Huckerby and Power on 19 June could be demonstrated by direct calls between them at 19.07 and 19.12. However, the calls to Fairoak Road and Goldborne Avenue did not prove any contact between Huckerby and Power, or Goulden who was not associated with either place. Without evidence linking the occupants of those two addresses to the conspiracy being tried, it was pure speculation years after the event, rather than inference from known data, that calls by Huckerby and Power to someone at those addresses were an attempt at communication as a consequence of Huckerby's failure to drive trip 2 on 19 June when the calls were made. Once Hayes and Wilks-Wells were dismissed from the case, it is submitted that evidence of calls between their address and Huckerby and Power was of no or minimal probative value, but of obvious potential prejudicial effect, in that its admission, and the lengthy cross-examination on behalf of the Crown to which it gave rise, was liable to encourage speculation that the prosecution knew something about, and adverse to, the occupants of those two addresses which had not been placed before the jury.
96. It is submitted that, this court should not consider its own earlier interlocutory ruling as definitive in that respect and that, in any event, the judge was at liberty to reconsider the position when, at trial, further submissions were made as to whether the evidence was admissible.

The New Evidence

97. We deal first with the objection of the Crown that, as a matter of principle, the evidence now sought to be adduced is inadmissible, as it would have been inadmissible at trial, on the ground that it is no more than 'oath helping' on an issue of credibility.
98. The position as to the admissibility of psychiatric evidence in relation to the reliability or credibility of a particular witness was clearly set out by this court in Robinson (supra), a case concerned with the admissibility of such evidence in relation to a mentally retarded complainant in respect of a sexual offence. Lord Taylor CJ set out the position as follows:

“The locus classicus as to the admissibility of expert evidence to deal with a witness's state of mind or reliability is Turner (1975) 60 Crim App R(S) 80, 83 [1975] QB 834, 841. Laughton LJ said:

'An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary … Jurors do not need psychiatrics to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life … The same reasoning applies to … admissibility on the issue of credibility. The jury had to decide what reliance they could put upon the appellant's evidence. He had to be judged as someone who is not mentally disordered. This is what juries are empanelled to do. And the law assumes that they can perform their duties properly. The jury in this case did not need, and should not have been offered, the evidence of the psychiatrist to help them decide whether the applellant's evidence was truthful.'

That medical evidence ought not to be to be admitted to deal with the state of mind of a defendant who is entirely normal was re-affirmed in Chard (1971) 56 Crim App R(S) 268, where the issue was as to the defendant's intent.

There have been cases where medical evidence has been ruled admissible to attack the reliability of a prosecution witness (Toohey v Metropolitan Police Commissioner (1965) 49 Crim App R(S) 148, [1965] AC 595) or to cast doubt on the reliability of confessions by the defendant (Raghip and others, The Times December 9 1991 and Ward (1993) 96 Crim App R(S) 1, [1993] 1 WLR 619).

In Mackenney and Pinfold (1983) 76 Crim App R(S) 271, it was held that a psychologist with no medical qualifications could not be called to give evidence as to whether a defendant was suffering from any disease, defect or abnormality of the mind, but that psychiatric evidence might, in a proper case, be permissible to show that a witness was incapable of giving reliable evidence.

Evidence, in both Raghip and Ward, this court accepted that psychological evidence could be deployed to show that a confession was unreliable …

Thus, in a proper case, evidence from a psychiatrist or psychologist may be admissible to show that a witness is unreliable or a confession is unreliable. But Mr Jouens points out that there is no case in which psychiatric or psychological evidence has been admitted to boost, bolster or enhance the evidence of a witness for the Crown or indeed of any witness. He submits that it is for the jury to assess the reliability and persuasive of witnesses and it cannot be right to allow evidence, however expert, to suggest to the jury that they should believe a witness of fact.

Mr Jones drew our attention to a Canadian case Kyselk and others (1962) 133 CCC 103. The headnote reads:

'In a rape trial, where the complainant was mentally retarded, the Crown called a psychiatrist who testified that a person of her mental classification, which was a mental age of 10-11 years, was likely to be a truthful witness because such a person would lack the imagination to fabricate. Held, that such evidence was inadmissible. While the credit of a witness may be impeached by the opposite party, a party cannot call witnesses to testify to the credibility or truth of his own witnesses'

…

In our view, the Crown cannot call a witness of fact and then, without more, call a psychologist or psychiatrist to give reasons why the jury should regard the witness as reliable …

… here Mr Jones emphasises that no specific case was put in cross-examination that the complainant was peculiarly suggestible or given to phantasise as a result of her mental impairment. There was evidence of questioning by the mother and by the policewoman Constable of the complainant and the limited extent of the cross-examination about that has been summarised above. No evidence was to be called for the defence impugning the complainant's reliability. In those circumstances, we consider that [the psychiatrist's] evidence should not have been admitted.”

99. Mr Kamlish QC for the appellant accepts that statement of the law and that, hitherto, there is no authority directly in point which assists him. However, he submits that what can be derived from the authorities is first that an expert's opinion is admissible to furnish the jury with scientific information which is likely to be outside their experience and knowledge but which it is necessary for them to have if they are to form a conclusion upon a central issue in the case going to the guilt or innocence of the defendant. It follows that a psychiatrist's evidence is inadmissible where its purpose is, in effect, to tell a jury how an 'ordinary' person, which for this purpose is a person who is not suffering from mental illness, is likely to react to the strains and stresses of life. Judgments of that kind are the essence of a jury's task: see Weightman 92 Crim App R (S) 291. In an appropriate case, such a central issue may be the inference properly to be drawn from the acts or omissions of the defendant as to his state of mind or intention in relation to such acts. Thus, in relation to a defence of duress by threats, expert evidence is admissible provided that the mental condition or abnormality which it is suggested rendered the defendant susceptible to threats is outside the experience of a layman: see Hegerty [1994] Crim LR 353 and Bowen [1996] 2 Crim App R(s) 157 in which this court stated at paragraph 11:

“Psychiatric evidence may be admissible to show that the accused is suffering from some mental illness, mental impairment or recognised psychiatric condition, provided persons generally suffering from such conditions may be more susceptible to pressure and threats, and thus to assist the jury in deciding whether a reasonable person suffering from such a condition might have been impelled to act as the defendant did. It is not admissible simply to show that in the doctor's opinion a defendant who is not suffering from such illness or condition is especially timid, suggestible or vulnerable to pressure or threats. Nor is medical opinion admissible to bolster or support the credibility of the accused.”

100. In that case, the court was concerned with the borderline between that which was properly to be viewed as admissible and that which was inadmissible on the grounds that it was merely called to bolster or support the credibility of the accused. The court decided that the evidence of the psychiatrist was admissible because:

“The condition that she was describing in the appellant was not a usual condition to be found in ordinary people. She spoke in terms of the way this particular appellant with his condition might react and such a reaction in our judgment would be outside the range of normal responses that one might anticipate from an ordinary person. In those circumstances it seems to us that it was material that the defence could legitimately deploy in order to show that the appellant had behaved in a way that he did because of the effect of the threats that were imposed upon him. What effect that might then have had upon the jury we cannot say but he was deprived of a piece of evidence that might have had a bearing on the outcome of this case and having been so deprived we do not think that this conviction can now be viewed as being a safe conviction.”

Mr Kamlish submits that those words are applicable to this case.

101. Mr Garside for the Crown submits that, to date at least, the admission of such evidence has been limited to cases where a specific defence in law such as diminished responsibility, provocation, or duress has been raised by a defendant or where an out-of-court confession is under consideration, particularly in relation to questions of susceptibility. Mr Kamlish, on the other hand, submits that the principle of admissibility is not so limited. He relies upon the fact that modern expositions of the position do not so state (see Bowen supra); also upon the statement of this court in Strudwick and Merry (1994) Crim App R 332 at 326 to the effect that the law is in a state of development and that there may well be mental conditions other than mental illness about which the jury may require expert assistance in order to understand and evaluate their effect. Finally, he submits that the position is as set out in Toner 93 Crim App R(S) 382, namely that, while medical evidence is inappropriate where the task of the jury is to determine the intent of an ordinary man who is not afflicted by any mental condition, physical or mental, permanent or transient, if the defendant is subject to a condition which comes within that description (in Toner, it was a mild attack of hypoglycaemia), evidence as to the effect of a medical abnormality on the mental processes of a person suffering from such a condition is admissible. Such evidence is, of course, confined to evidence as to the characteristics of the condition in general and its likely effects; it should not be permitted to stray into the province of the jury which is to consider the state of mind of the defendant on the occasion in question.
102. So far as the principle of potential admissibility is concerned, we accept the submissions of Mr Kamlish.
103. In most of the cases to which we have been referred, the circumstances in which psychiatric evidence has been held admissible to assist the jury in the inferences to be drawn from the actions or reactions of the defendant have been confined to situations where the defence raised directly invokes the issue of the mental health of the defendant. However, this court has long recognised an exception in the case of 'out of court' confessions where there is evidence of a disorder of a type properly to be regarded as a mental illness or condition such as might render the defendant peculiarly vulnerable to pressure or suggestibility. Similarly, in the case of the defence of duress. The rationale justifying such a course has been articulated in terms which are not restricted to those circumstances, although usually accompanied by re-affirmation of the principle that juries are well able to assess, and should properly be left to assess without assistance, the variety of conditions and characteristics encountered in human beings in ordinary life. Nonetheless, it has been made clear that, where a defendant is suffering from a recognised mental condition or illness which requires exposition by an expert for the jury properly to understand and evaluate its effects, such expert evidence is admissible where, in relation to an issue clearly raised as to whether particular actions of the defendant are explicable only on the basis of intent or willing assistance, or whether they may be lacking in any such intent by reason of such mental condition or illness.
104. In this case, leaving aside the terms in which much of the evidence is couched (it expresses opinion as to whether or not the appellant's actions were in fact the product of his condition), we consider that the evidence now sought to be adduced to the effect that the appellant was in fact suffering from PTSD at the time of the robbery is, if taken at face value, evidence which is potentially admissible. It falls within the category of a recognised mental condition with which the jury would not be expected to be familiar and is relevant to an essential issue bearing upon the appellant's guilt or innocence. The prosecution case was propounded and conducted throughout upon the basis that the actions of the defendant in letting the gunman into his cab and thereafter following his instructions without activating the alarms was, in the light of his previous instruction and awareness of the proper procedures, explicable only upon the basis that the defendant was an 'insider' who, in truth, was co-operating with the robbers as part of a plan in which he was a willing participant. If the jury had been aware that his condition of PTSD was operative at the time and may have caused him to panic and co-operate in circumstances where he would otherwise not have done so, then his evidence as to his innocent motivation (which ex hypothesi the jury disbelieved) might have been accepted.
105. Huckerby was not raising a defence of duress; as such he did not seek to 'confess and avoid' participation in the crime. Nonetheless, the absence of a satisfactory explanation for his behaviour having been erected into a main plank of the prosecution case, the situation was analogous to a plea of duress, in the sense that the jury were invited by the prosecution to investigate the mind and motivation of the defendant and to conclude that he willingly followed the instruction of the robbers, as opposed to having his will overcome by fear.
106. That said, however, we have found much more difficult the question whether the evidence should be admitted on this appeal. Although it is our view that, had evidence to the effect now proffered by Mr Regel and Dr Green been available and sought to be adduced at trial, it would have been admissible, the evidence comes before us years after the event when the reliability of the appellant as to the continuing presence in July 1995 of PTSD symptoms derived from the 1994 robbery is seriously in question.
107. In this respect it is, as the Crown contends, apparent that at the first trial the possibility of advancing a defence that PTSD was operative was considered, but not pursued, because the appellant's panic attacks appeared to have ceased by the time of the second robbery. His account that he opened the door of the van because a gunman held his mate hostage, appeared to be a logical and credible explanation. It is also clear from the recent statement of Dr Kelly that she considered that residual PTSD symptoms from the first robbery were unlikely to have influenced the appellant's actions during the offence. It seems that was because the appellant himself stated that the second robbery 'revived' the panic and depression he had earlier experienced.
108. Nonetheless, there are certain features which concern us. First, Dr Kelly has made clear that, whatever the intentions of Mr Curran as expressed in his advice of 27 March 2001 (see para 68 above), she does not recall receiving instructions that she consider whether the appellant's actions in July 1995 were affected by post-traumatic symptoms from the first robbery. In her statement in June 2004, she states that so far as she was aware, the symptoms from the first robbery had resolved by July 1995 and were unlikely to have influenced the actions of the appellant during the offence. However, in her report at the time she did not expressly direct herself to that question; she merely recording that panic attacks had started after the robbery in November 1994 and that the current incident appeared to have ' reawakened' the appellant's anxieties and caused 'an increase in panic attacks and flash backs'.
109. Our principle concern is that we lack any statement or opinion from Dr Kelly on the position made clear to us in evidence by Dr Green and Mr Regel, namely that the violent incident of the second robbery could itself have acted as an immediate trigger to PTSD, causing an immediate exaggerated feeling of fear at the time which might not otherwise have been experienced. Dr Green described the appellant's recollection of feeling helpless and frightened, trapped inside the van and 'useless' to assist his colleague whom he believed to be held hostage, as being a classic account of PTSD symptoms. Dr Green stated that the stress of seeing a robber outside the van and a colleague under threat could well have inspired in Huckerby a sense of being overwhelmed by feelings of fright and threat which he might not otherwise feel. Mr Regel's evidence was to similar effect. Unfortunately, we lack any comment from Dr Kelly upon these matters, but we see no reason to doubt them. We have the advantage of Dr Kelly's full notes which appear to indicate that the appellant's anxiety and panic attacks started in November 1994, without any note as to when they stopped. The notes record the appellant's return to work in February 1993 and record him as having 'panic attacks not as frequent'. However, there are no detailed notes of the appellant's description of the robbery or his feelings or reactions during it save “Threatened him with gun. Thought got … ?” [The word at the query mark is illegible, but it appears to relate to Huckerby's colleague]. In those circumstances it is not apparent that Dr Kelly bent her attention to the detail or precise feelings of the appellant in the admittedly frightening circumstances which he faced, as opposed simply to recording the position that his anxiety and panic attacks had started in November 1994 (query when they ceased) and resumed after the attack, which the notes make clear was immediately thereafter.
110. We accept the submission of Mr Kamlish that it is no surprise that, without interrogation by an expert as to the precise nature of his feelings of fear at the time, it is unlikely that the defendant would have done other than he did when instructing his counsel and giving evidence at trial, namely stating without adornment or analysis that he admitted the robber to the van because of fear for his colleague, and that thereafter he did as he was told because he had a gun to his head. It is also small surprise that the first defence team considered that such evidence would be sufficient to persuade a jury that the appellant acted as he did out of the kind of fear which any normal person might feel. Equally, however, had there been evidence of the likely influence of PTSD, no doubt Mr Rowe would have sought to call it.
111. Whether or not that be so, the application of Mr Kamlish is grounded in the circumstances of the second trial, when the new defence team were unaware of the content of Dr Kelly's report, in relation to which Mr Conrad has made clear that the suggestion of the possibility of PTSD would have been further pursued by him, had he known of it. It may be that, had Dr Kelly been asked to report further on the matter, her view would have remained that set out in her further statement of 21 June 2004. However, Mr Kamlish submits that we should assume that, had she interrogated Huckerby more closely about his feelings at the time of the attack, the position would have been as stated by Dr Green and Mr Regel. Mr Kamlish acknowledges that the failure of the appellant to make clear the position to his advisers, coupled with the intervention of his girlfriend were the principle reasons for the non-availability of such evidence. However, he submits that in the overall interests of justice that evidence should be admitted now.
112. After careful thought we accede to that submission in the particular circumstances of the case, namely that we have overall doubts as to the safety of the conviction.
113. This was a case of great difficulty for the prosecution, in which the seven persons originally charged in the conspiracy had been whittled away until only the two appellants and Goulden remained to be tried, on a retrial following disagreement by the jury at their original trial. Apart from the somewhat ambivalent 'confession' to Clare Shaw relied on in the case of Huckerby, the evidence against him was entirely circumstantial. It consisted of (1) the appellant's letting the leading robber into the van and failing to set off the security systems despite his knowledge of their existence; (2) telephone calls to Powers' address; (3) the allegedly suspicious telephone calls on 19 June after the trip on which the appellant had been expected to go but did not in fact do so; (4) cash deposits after the robbery; (5) evidence from the appellant's ex-wife of his restless demeanour the day before the robbery; (6) evidence from Clare Shaw as to his possession of £1000 in cash two months before the robbery and his later 'confession'. We leave aside for a moment (1) and (3). As to (2), the appellant and Power were friends and drinking companions. As to (4), in relation to a robbery of approximately £4.5million, the cash deposits relied on by the Crown totalled approximately £2,500 over a period of a year following the robbery. The largest, £600 was explained and ultimately accepted to be a gift from the appellant's mother who gave evidence. The bulk of the other payments were accounted for as being repayments of a loan made by Huckerby to a friend called Durkin who was a man of good character and gave evidence to that effect. As to (5) the evidence of the appellant's demeanour was in the context of a hospital visit to his young daughter with his former wife, the child having suddenly been taken seriously ill. (6) The evidence of Clare Shaw was obtained following her arrest in August 1999 at the same time as the other alleged conspirators, she accepting in evidence that the police had no evidence against her and that it appeared to be a device to try to obtain information against the appellant. Interviewed at length, she denied that the appellant had ever said or done anything incriminating and first made the statements relied on by the Crown after being kept in custody overnight. Her evidence on these matters was left to the jury with a qualified warning from the judge as to how to approach it.
114. Returning to (1), the question of the appellant's actions on the day of the robbery, there was evidence supportive of Huckerby as to the use of weapons at the time of the robbery; also that of the independent bystander who witnessed his rough handling and evident distress when bundled out of the van. Nonetheless, the Crown case was that his actions were explicable not on the basis of genuine fear but only upon the basis of 'inside' participation. The jury must have accepted this aspect of the prosecution case. In those circumstances, we consider that evidence of the likely presence and effect of PTSD would have been important and significant evidence going to this question.

The Telephone Calls

115. As to (3), we have already referred to the ruling of this court on the interlocutory appeal in relation to telephone calls made by Huckerby and Power. The significant calls for the purposes of this appeal are those of 19 June. The position is that, at a time when the Crown was presenting the case of conspiracy against Wilks-Wells who lived at 47 Golborne Avenue and Hayes who lived at 7 Fairoak Road as well as Power and Huckerby, a chart was prepared which included a number of calls on 19 June (see para 31 above), which the Crown suggested represented a flurry of explanations required as between conspirators when Huckerby failed to drive a van on trip 2, two weeks before the robbery. When Wilks-Wells and Hayes were acquitted of involvement, the Crown nonetheless continued to rely upon the chart previously prepared and to propound the calls of 19 June, which were made to unidentified persons and the contents of which were unknown, as nonetheless probative in some way of the conspiracy.
116. Mr Huckerby was the subject of lengthy and vigorous cross-examination on the pattern of calls, even though he stated that he could not remember making the calls given the number of years which had elapsed. Both defence counsel and the trial judge intervened during the line of questioning on the basis that the Crown was asking questions which Huckerby could not be expected to answer and was articulating the putative reasons for such calls and seeking answers in a way which amounted to inappropriate comment rather than proper questioning, based on the assumption that the occupants of 7 Fairoak Road were involved in the offence. In summing up, the judge neither directed the jury to ignore the questions and answers, nor gave them any assistance in the approach they should adopt to them, in the light of the emphasis which the Crown had given to the topic. Instead, he dealt with the matter as follows:

“The chart does not indicate who made a particular call, who received a particular call or what the call was about. There is no evidence, members of the jury, of who lives at 7 Fairoak Road and 47 Goldburne Avenue. There is no evidence that anyone has been or will be convicted of this offence living at or associated with those two addresses. The prosecution invite you to draw inferences from the telephone evidence. You will have to bear in mind the points that I have just made when you consider what inference, if any, you can draw from the telephone evidence.

Let me state this, members of the jury, when you consider the telephone evidence it will not be possible or appropriate for you to consider whether any pattern of telephone contact emerges, or what any such pattern proves. Do not consider pattern at all. You must look at the telephone contact on individual days and decide what if anything that contact proves. Before you can take any particular telephone call into account in relation to either defendant you must be sure of the prosecution inference that the defendant made or received a particular call. If you are not sure, disregard it because it has no evidential value. It is only in relation to calls about which you are sure, that you may go on to consider whether you are sure in drawing the inference in relation to what the call was about as suggested by the prosecution.”

117. We do not know how this matter was argued before the Court of Appeal when it overturned the judge's original decision that once Wilks-Wells and Hayes had disappeared from the picture, the telephone calls of 19 June were inadmissible. Certainly, we would have benefited from more extensive reasoning than appears in paragraph 19 of the judgment quoted at paragraph 47 above. We are however clear that the summing-up of the judge would better have instructed the jury to ignore the telephone calls altogether than to have left to them the opportunity to draw inferences along the lines articulated by the prosecution in cross-examination, but regarded as improperly argumentative by the judge at that time.

Conclusion

118. We consider it necessary in the interests of justice to admit the evidence of Dr Green and Mr Regel for the purposes of this appeal. Having done so, we are not satisfied as to the safety of the conviction of Huckerby and his appeal against conviction will be allowed. In the light of the concession of the Crown (see paragraph 66 above), it follows that the appeal of Power will also be allowed. It is therefore unnecessary to consider Huckerby's appeal and Power's application for leave to appeal in respect of the Confiscation Orders which must be set aside. The court will consider the question of a retrial following the handing down of this judgment.