England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPLICATION UNDER S76 CRIMINAL JUSTICE ACT
2003 BY THE CPS (OXFORD)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2007

Lord Phillips of Worth Matravers CJ:

Introduction

1. On 11 June 1996 in the Crown Court at Oxford before Scott Baker J the respondent was acquitted of the murder of Stephen Burton, who was also known as Stephen Peacock. The Crown Prosecution Service now applies with the consent of the Director of Public Prosecutions dated 18 August 2007 for an order that the acquittal be quashed and a new trial held. The application is made pursuant to section 76 of the Criminal Justice Act 2003 ('CJA 2003'). It is only the second such application to come before this court. It bears some similarities to the previous application, R v Dunlop [2007] 1 Cr App R 8 at 115.
2. On 11 June 1997, while serving a term of imprisonment for unrelated offences, the respondent told his prison supervisor that he had committed the murder of Mr Burton. He said that he was willing to give a statement to the police to that effect and on 3 July 1998 he did so ('the confession statement'). He was charged with perjury, pleaded guilty and on 20 August 1999 was sentenced to a concurrent term of imprisonment of 3 years. The prosecution say that these facts and the fact that the respondent confessed that he was the murderer to a number of other people after his acquittal constitute new and compelling evidence that he was guilty of the murder which justifies the quashing of his acquittal and an order for a new trial.

The murder trial.

3. The facts relied by the prosecution at the respondent's trial for murder can be summarised as follows.
4. On 5 January 1996 the respondent called the emergency services to 306 Cowley Road, Oxford, telling them that someone had been stabbed. Police attended and found Stephen Burton, in the kitchen, unconscious and suffering from stab wounds. James Rollinson, who lived at that address was present. Mr Burton died in hospital later that evening.
5. The post mortem examination revealed that he had died from a stab wound to the right side of the lower part of the chest, from a large knife. He was also found to have a stab wound to the thigh from a smaller knife, bruising to the head and an underlying skull fracture, which could have been produced by a heavy fall. A large knife blade was found in a bucket in the kitchen. The handle from that knife was found in bushes nearby.
6. The large knife was identical to a knife which was found to be missing from the home of Anna Worwood, a former girlfriend of the respondent.
7. Mr Rollinson was arrested at the scene. He told the police that the deceased had been stabbed by a third person whom he and the deceased had met in Oxford that afternoon. He did not name this person. The three of them had returned to 306 Cowley Road. He stated that he had heard the deceased being attacked in the kitchen while he (Rollinson) was in the toilet. When he emerged he saw the third man giving the deceased a drink of water. Rollinson saw the blade of the knife on the floor and threw it in the bucket. The third man left the house and Rollinson could see him first making a telephone call and then catching a bus.
8. Mr Rollinson was released on bail. Shortly after the arrest of the respondent on 8 January 1996, Mr Rollinson confessed to the murder to a sales assistant in a garage and to the desk sergeant at the police station. He later retracted these confessions, saying that he had made them because he had nowhere to live and did not wish to remain on the street because he was in fear of the murderer.
9. On his arrest, the respondent, who was 17, admitted that he had been present at 306 Cowley Road and when the deceased was stabbed. He had met the deceased and James Rollinson in central Oxford where he had gone with his then girlfriend, Karen Smith. He had accompanied the two men back to Rollinson's house. While he was listening to music in Rollinson's room he heard shouting from the kitchen. When he went to investigate he found the deceased with a knife protruding from his stomach. He removed the knife and it fell to the floor. He then called an ambulance and went back to the centre of town on the bus.
10. He there met Karen Smith. His clothes were bloodstained and he told her he had stabbed the deceased. He told the police that he had invented this to impress her. He disposed of his shirt in the public toilets and later disposed of his jeans. That evening he told a resident at the bail hostel that he had committed the murder. Later the same evening he also told two other acquaintances that he was responsible for the murder and that he had used a knife that he had taken from Anna Worwood. As to these confessions, his subsequent explanation to the police was that he was not sure Karen Smith had believed him, so he continued with the pretence that he was the murderer.
11. It was the prosecution case that the murder could only have been committed by either the respondent or Rollinson, that the confessions made by Rollinson were not true and that the confessions made by the respondent were true.
12. At the time of the trial Rollinson was detained in a psychiatric hospital. He was released to give evidence at the trial. He gave evidence of hearing the voice of an imaginary friend and of attempting to commit suicide. He adhered to the account of the murder that he had given to the police, saying that a third man had killed Mr Burton while he, Rollinson, was in the toilet. He did not allege that the murderer was the respondent, indeed he denied having any knowledge of the respondent or of the respondent's girlfriend, Karen Smith. Counsel for the respondent put it to him that he was himself the murderer. He denied this.
13. The respondent gave evidence at his trial. This accorded with the evidence that he had given to the police, namely that Rollinson had stabbed Mr Burton while the respondent was out of the room.
14. The jury returned a verdict of not guilty.

Confessions to committing the murder.

15. In September 1997 the respondent was convicted of multiple offences of robbery and burglary and sentenced to 7 years' imprisonment. While he was in Aylesbury Young Offenders Institution he was referred to the Psychology Unit and started a counselling course with Barry Richardson. He also started to receive visits from a Jehovah's Witness, Brian Powell.
16. In his sixth session of counselling with Mr Richardson, on 28 November 1997, the respondent admitted that he had murdered the deceased. He said that he wanted to clear his conscience so that he could be baptised into the faith. Mr Richardson told his supervisor, Zoe Ashmore, and in May 1998 she informed the prison governor. The police were approached and the respondent readily agreed to meet the Police Liaison Officer, D C Nicholl.
17. On 26 June 1998 the respondent made an informal statement to DC Nicholl in the presence of Mr Powell. He was told that any admissions would have to be made under caution and that, although he could not be prosecuted again for murder, there were other offences that could be charged such as perjury and perverting the course of justice. He was advised to consult a solicitor but he elected instead to be formally interviewed, not in the presence of his solicitor, but of Mr Powell. Mr Powell has since stated that the respondent confessed his responsibility for the murder to him before the police became involved.
18. The confession statement was given at an interview that took place on 3 July 1998. The respondent stated that he was admitting the offence because he was now studying with the Jehovah's Witnesses and needed to clear his conscience before he could be baptised. His statement can be summarised as follows.
19. Karen Smith was the dominant force in their relationship and had urged him to behave like her former violent boyfriend. She had told him on 3 or 4 January that she had been the victim of an attempted rape by the deceased and James Rollinson and it was clear that she expected him to do something about it. They chanced to meet the two men in Oxford on 5 January 1996. Karen Smith told the respondent to take them into an alleyway by Dolly's pub to sort them out. The respondent pretended to have heroin for sale and persuaded them to go into the alleyway, but when he raised the topic of the alleged rape he was threatened by the deceased who was waving a bottle and the respondent walked away. His girlfriend was unimpressed and he therefore approached the two men again and offered to supply them with heroin. He got on a bus out of Cowley, with the deceased and Rollinson, stopping at a number of houses pretending to try to obtain heroin. One of those houses was that of Anna Worwood, from whose house he took a large knife while he was getting a glass of water, in order to have 'something to show or to use in self defence'.
20. They arrived at 306 Cowley Road. Rollinson went into the toilet and the deceased went into the kitchen to find some food. The respondent was in Rollinson's room, listening to music, when he decided to attack the deceased with a bottle that was lying in the room. He entered the kitchen and hit the deceased on the head with the bottle from behind. He was not sure whether the bottle smashed on his head or whether it smashed on the floor. A scuffle followed. The respondent then heard Rollinson outside the kitchen. Worried about facing two men, he pulled out the knife and stabbed the deceased in the abdomen on the right hand side. While the knife was still in him the respondent threw him into a chair and started to bang his head against the window sill. He saw that Rollinson had entered the kitchen so he pulled the knife out and threatened him. The deceased began to get out of the chair, so he stabbed him again the thigh of his right leg with the same knife. It snapped and the blade fell to the floor. At that point he came out of his rage and tried to comfort the deceased. He called for an ambulance and threw the knife handle away in a flower bush. He returned to the house, said that an ambulance was coming, collected his umbrella and then went to the bus stop.
21. The respondent was charged with perjury on 25^th March 1999.
22. Shortly after this the respondent was moved Highdown prison. There he admitted having committed the murder to Keith Lodge, a Jehovah's Witness who was a prison visitor.
23. From Highdown the appellant was moved to Downview prison. There once more he admitted the murder to Jehovah's Witness prison visitors, this time David and Fiona Soulsby.
24. On 20 August 1999 the respondent pleaded guilty to perjury at Oxford Crown Court. He was sentenced to 3 years imprisonment to be served concurrently with the sentences that he was already serving for robberies and burglaries. In the following year he was baptised as a Jehovah's Witness.
25. In October 2000 the respondent met a woman when on day release. He began a relationship with her. He told her that he had "once hurt a man very badly and nearly killed him". He repeated this with further details on a number of occasions. On his release from prison he went to live with her at her mother's address. She there discovered a newspaper cutting amongst his papers indicating that he had admitted the murder. When she taxed him with this he admitted that it was true. Thereafter he repeated this admission on occasions – sometimes in the presence of his father. He married her, but the marriage did not last. Her name is Georgina Miell.
26. On 29 September 2005 the appellant made a statutory declaration whereby he relinquished the name Rick Andrew Miell and adopted instead the name Ricky San-Juliano.

The retraction of the confessions

27. On 10 July 2007 the respondent was arrested on suspicion of murder and interviewed under caution. The police thought it appropriate to carry out this interview in the presence of an 'appropriate adult'. In the course of this interview the respondent retracted the confessions that he had made ('the retraction statement'). He said that initially the confessions were a game and designed to show that he had normal feelings like other people. It was a way of getting recognition from other prisoners. He added that he had been diagnosed as a 'sociopath'.
28. Asked about the Jehovah's Witnesses he said that he had hoped that there might be something in it for him, but went on to describe how, on the very day of his release:

"the two people that had visited me weekly for around a year, that had adopted me as their spiritual mum and dad, whom had offered for me to stay with them, who had brought a car for me – I got him to give me a lift into the nearest town and I never saw them again"

He had known that after making his voluntary confession they would pay him increased attention but in the last six months of his imprisonment he had shown a total disregard for the Jehovah's Witnesses.

29. Later he said:

"…it was all one very very complex game which I hate to say, ended the way I wanted it to end, I got my parole early, I didn't get any other consequences from, going to court, admitting to a confession I knew there would, you know I knew there may be extra years on top but I was so confident in my conviction and the game I was playing and the power and manipulation I had that I was actually right in the sense that I didn't receive any further time to my sentence."

30. He then went on to add:

"I was very careful in that I spoke to the counsellor, I spoke to the Jehovah Witness, I was very careful in how I handled it and made sure that my statement was believable, I had to, I had to do that, however, because it was a game I did give indications throughout that statement that it was a lie that I was saying because I wanted to see how much power I had and wanted to see if anyone at any point would say well actually these are the given facts of the case, you're contradicting those, but no-one picked up on it, it was a power play and it worked for me, and it was, you know, I thought long and hard and planned what I was going to say and made sure there was many details that sounded believable, some unbelievable in the sense that, I see your colleague frown, the fact is that, the forensic evidence says unequivocally that it was 2 separate knives used to stab Stephen, I went in and give a voluntary confession saying that I used the same knife, that it was the same knife that committed (laughs) both injuries, one is true and one is false I mean, I beg to differ (laughs) with the forensic evidence that it, that that is wrong and I was right, so it was all planned out and carefully thought through before I gave the statement."

31. The respondent explained that some parts of his confession statement were true and some parts were not true. The parts that were not true included "my admission that I killed Stephen".
32. Later in the interview the police read the confession statement to the respondent, asking him which parts were true and which were false. The respondent said that large parts of the statement dealing with the period before Mr Burton was stabbed were untrue, including the allegation that Karen had accused Mr Rollinson and Mr Burton of raping her, that he had persuaded the two men to go down an alley on the pretext that he had heroin to sell and that he had called at Anna Worwood's house to collect a knife.
33. As to the circumstances in which Mr Burton was killed, the respondent adhered to the account that he had given at his original trial, which attributed the murder to Mr Rollinson..

The statutory requirements

34. The relevant sections of the CJA 2003 provide as follows:

"76. Application to Court of Appeal

(1) A prosecutor may apply to the Court of Appeal for an order-

(a) quashing a person's acquittal in proceedings within section 75(1), and

(b) ordering him to be retried for the qualifying offence.

77. Determination by the Court of Appeal

(1) On an application under section 76(1), the Court of Appeal-

(a) if satisfied that the requirements of sections 78 and 79 are met, must make the order applied for;

(b) otherwise, must dismiss the application.

78. New and compelling evidence

(1) The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence.

(2) Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).

(3) Evidence is compelling if-

(a) it is reliable,

(b) it is substantial, and

(c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.

(4) The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.

(5) For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.

79. Interests of justice

(1) The requirements of this section are met if in all the circumstances it is in the interests of justice for the court to make order under section 77.

(2) That question is to be determined having regard in particular to-

(a) whether existing circumstances make a fair trial unlikely;

(b) for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed;

(c) whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition;

(d) whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition."

35. Murder is a qualifiying offence. The relevant issue in the present case is whether it was the respondent who killed Mr Burton.

The issues

36. It is common ground that the respondent's confessions, including that implicit in his plea of guilty to perjury, constitute new evidence. The prosecution submits that the new evidence is reliable, substantial and highly probative of the case against the respondent. The prosecution further submits that it is in the interests of justice that the court should make the order sought.
37. It is submitted on behalf of the respondent that the new evidence is not reliable and therefore not compelling. It is further submitted that it would not be in accordance with the interests of justice to accede to the prosecution's application.

Reliability of the new evidence

38. If there were no discrepancies between the prosecution's evidence and the respondent's confessions the latter would be overwhelmingly compelling that that respondent was the man who murdered Mr Burton. The confessions were made to a variety of people over a period of five years and they were formally made to the police in circumstances where the respondent was aware that they could result in further criminal proceedings being brought against him. When he was charged with perjury he pleaded 'guilty', rather than giving the account of his confessions that he now proffers.
39. Mr Moore for the prosecution submitted that the respondent's admissions, and in particular his confession statement, were the more credible because they were motivated by his desire to embrace the faith of the Jehovah's Witnesses.
40. Whether the respondent was genuinely converted to the faith of the Jehovah's Witnesses must be open to question. Such conversion is not readily reconcilable with the respondent's behaviour in abandoning Mr and Mrs Soulsby and going off to cohabit with a woman in breach of the tenets of the faith that he professed to adopt. Shortly after this he was expelled from the fellowship on account of his behaviour. It is at least possible that the respondent was motivated in making his confession by a calculated risk that his apparent honesty would count in his favour. If so taking that risk would seem to have paid off, for after his confession the respondent was moved from a category B to a category C prison where he was permitted in due course to work on day release prior to his release on licence. His conviction and sentence for perjury did not extend the time that he had to serve in prison. It does not follow from this, however, that his confession statement was not true.
41. In short and cogent submissions Mr Price for the respondent demolished the proposition that the confession statement was reliable. He pointed out the fact that it was, in a number of significant respects manifestly untruthful
42. First and foremost the respondent admitted to inflicting both the fatal wound to Mr Burton's chest and the wound to his thigh with the same knife. The forensic evidence established that each wound had been inflicted by a different knife.
43. In the second place, he said that the knife snapped off when he inflicted the wound to the thigh, although the wound to the thigh was a soft tissue wound.
44. In the third place he appears to have said that he hit the victim over the head with a bottle that broke, either on his head or on the floor, but there is no record of a broken bottle having been found at the scene of the crime.
45. In the fourth place, some of the background detail given by the respondent of events before the murder were not substantiated by those who were said to have been involved in them. When called by the Crown at the original trial, Karen Smith made no reference to any attempted rape and categorically denied being attracted to violent partners. She was interviewed again in July 2007 but said nothing to corroborate the details given by the respondent in the confession statement.
46. In the retraction statement, as we have demonstrated by quotations from it, the respondent showed that he was well aware that details in his confession statement were incompatible with the forensic evidence. He had sat through the trial and must have been aware when he made his confession statement that parts of it were demonstrably untrue.
47. We have found it very difficult to know what to make of all this and, were there a retrial, we think that the jury would be in the same position. The fact that parts of the confession statement are manifestly untrue would be likely to leave the jury in doubt as to whether the respondent was telling the truth when he said that he had murdered Mr Burton. The admissions that the jury heard that the respondent had made after the murder to Karen Smith and to two other witnesses were more credible than his confession statement, for they did not include demonstrable untruths, yet at the first trial the jury were in doubt as to his guilt. We think it likely that they would be in the same doubt if they received the new evidence of the respondent's confessions and retraction.
48. It will be apparent from these comments that we have not found the new evidence compelling, reliable and highly probative of the case against the respondent. The evidence suggests that either the respondent or James Rollinson or both stabbed Mr Burton, but the new evidence has not left us persuaded that the respondent was wrongly acquitted. Cases where the truth of a voluntary confession against interest is successfully challenged are rare, but they can occur – see R v Judith Ward (1993) 96 Cr App R 1 at 58. In this case there are grounds to doubt the veracity of the confessions that the respondent has made. In this respect this case differs from that of Dunlop, where the respondent had never gainsaid the truth of the confession that resulted in his conviction for perjury.
49. For these reasons the requirements of section 78 of the 2003 Act are not satisfied and this application must be dismissed for that reason.
50. We should mention one matter that caused us, initially, some concern. Section 74 of the Police and Criminal Evidence Act 1984 provides:

"(3) In any proceedings where evidence is admissible of the fact that the accused has committed an offence…if the accused is proved to have been convicted of the offence…he shall be taken to have committed the offence unless the contrary is proved"

51. The effect of this would seem to be that the respondent's conviction of perjury would, on any retrial, establish that he did in fact commit perjury unless he proved to the contrary. Thus it might be said that the statute makes the conviction of perjury reliable, substantial and highly probative of the fact that he committed perjury when he denied killing Mr Burton and thus compelling evidence of the fact that he was the murderer.
52. While this might be the consequence of adducing the fact of the respondent's conviction for perjury at any re-trial, we concluded that section 78 of the 2003 Act required us to form our own view of whether the respondent's conviction of perjury on a plea of guilty was, in fact, compelling, reliable and highly probative evidence that he was the murderer. For the reasons that we have given, we concluded that it was not. Were we not required to form our own view on the confession, we would have held it contrary to the interests of justice to order the respondent to stand trial again having regard to (i) our doubts as to whether in fact he committed perjury at his first trial and (ii) the fact that section 74 of the Police and Criminal Evidence Act would, on the facts of this case, appear at any re-trial effectively to shift the burden of proof onto the respondent.
53. For the reasons that we have given this application is dismissed.