COURT OF APPEAL (CRIMINAL DIVISION)
On a Reference by the Criminal Cases Review Commission
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE COOKE
MRS JUSTICE SWIFT DBE
| PAUL MAXWELL AND DANIEL MANSELL
|- and -
Henry Blaxland QC and Nigel Leskin for Daniel Mansell
Ben Nolan QC and Patrick Palmer for the Crown
Hearing date: 14 October 2009
Crown Copyright ©
LORD JUSTICE HOOPER:
May the Court of Appeal order a retrial having quashed a conviction on the grounds of serious executive or prosecutorial misconduct, and, if so, in what circumstances?
The Report of the CCRC
142. In summary, North Yorkshire Police found fresh evidence that Mr Chapman and members of his family received a variety of improper benefits in the course of his assistance to the police as a prosecution witness, which were not revealed to the CPS or to prosecution or defence counsel. These benefits contravened the controls designed to preserve the integrity of his evidence and/or were inherently improper. In the Commission's view those benefits may have acted as an inducement and their non-disclosure denied the defence the opportunity to explore their possible impact on the credibility of Mr Chapman and also on the fairness of the trial.
Expenditure on Mr Chapman
245. The Investigating Officer found that from November 1994 onwards:
- Expenditure by officers looking after Mr Chapman far exceeded his entitlements as a production prisoner and contravened the guidance on the treatment of resident informants.
- The expenditure was financed by claims on a variety of police funds, including 'incidental expense' claims on the Fin20 and CID4 informant payment systems and cash advances drawn from divisional imprest accounts.
- There was no common supervision of these funds or control on the level of spending on Mr Chapman.
- The majority of the claims were made without receipts. The circumstances of the expenditure have not been accounted for and the possibility that Mr Chapman received the benefit of some of these claims in cash cannot be ruled out.
- The Fin20 and CID4 Informant payment systems were weak and open to abuse.
- Duplicate and multiple similar claims on one informant payment system, each for small amounts of money, effectively circumvented stricter regulations which would have applied to larger single payments.
- Cash advances from divisional imprest accounts were reconciled without receipts in contravention of the account operating procedures.
- Luxury items were purchased by the police for Mr Chapman during productions to police custody.
- By conclusion of the trial of Mr Maxwell and Mr Mansell in February 1998 a minimum of £5836 had been claimed in expenditure on Mr Chapman. By the time Mr Chapman was released from custody in August 1999, minimum expenditure had risen to £6040.
No record of expenditure on Mr Chapman was maintained and these benefits were not revealed at trial or appeal.
Mr Chapman's expectation of reward
425. Mr Chapman's evidence at trial was that, having already received credit in his reduced sentence, he had nothing further to gain from giving evidence against Mr Maxwell and Mr Mansell. The Court of Appeal was aware that a reward for his assistance in this case and others had subsequently been agreed by West Yorkshire Police, but was satisfied on the basis of evidence it heard that this had been decided without consultation with Mr Chapman long after the murder trial had finished.
426. The Investigating Officer found evidence suggesting that Mr Chapman expected a substantial unquantified payment for his co-operation in the Yew II investigation [the name given to the operation which investigated Chapman's allegations against a man called Ford, the two appellants and others] once he had been released from prison. The Investigating Officer concluded that:
'There is an irresistible inference from the evidence that the West Yorkshire Police intended to reward Chapman for his evidence against Ford and others subject of the 'Yew II' operation and that intention had been communicated to him prior to him giving evidence at all the trials.' 162
427. This expectation subsisted through Mr Chapman's co-operation with the murder inquiry and his evidence at the trial of Mr Maxwell and Mr Mansell. The Commission considers that although it originated in relation to an earlier case, an as yet unfulfilled expectation of reward may have been a factor affecting Mr Chapman's co-operation and evidence in the intervening trial of Mr Maxwell and Mr Mansell. As such, it should have been revealed to the CPS and disclosed to those representing Mr Maxwell and Mr Mansell. Ultimately, the failure to reveal Mr Chapman's expectation meant that both the trial and appeal courts were misled.
429. On 1 November 1994, Mr Chapman met Detective Chief Superintendent Taylor and agreed to provide evidence about his accomplices. In a letter to prosecution counsel dated 16 October 1996, Mr Taylor stated that in return for this assistance, he had promised Mr Chapman a new identity and address for his protection, together with a text.
430. A letter from Mrs Chapman to her son written the following day suggests that financial expectations may also have played a part in this decision. Referring to her plans for relocation, Mrs Chapman commented 'I'll get what I can out of them (Leach, Daniels) and I'll make sure I get a 'phone then you'll be able to ring me'. At the end of the letter, Mrs Chapman added, 'When I see [DC] Daniels I will ask him about the money'. Although cryptic, this comment suggests that Mr Chapman may have anticipated some financial benefit flowing from his relationship with the police. Throughout his cooperation with the police, the majority of financial benefits for Mr Chapman were obtained by DC Daniels.
500. The Commission considers that the Court of Appeal was not provided with all the information relevant to its consideration of Mr Chapman's expectations at the time of Mr Maxwell and Mr Mansell's trial. The Court was led to the erroneous conclusion that Mr Chapman had no expectation of reward and that his evidence at the trial had not been ' .tainted in that regard'.
818. The fresh evidence shows that Mr Chapman received a variety of benefits in the course of his assistance to the police as a prosecution witness, which were not revealed to the CPS or prosecution counsel. These benefits contravened the controls designed to preserve the integrity of his evidence and, in the Commission's view, may have acted as an inducement to Mr Chapman to give evidence.
819. The Commission notes that some of the benefits conferred on Mr Chapman were not only inappropriate given his role as a prosecution witness, but inherently improper. These included the range of improper privileges afforded to Mr Chapman whilst in police custody. Mr Chapman was:
- allowed to smoke cannabis;
- supplied with alcohol;
- allowed unsupervised home visits and periods of freedom; and
- taken on social outings to public houses, police officer's homes and a brothel.
... really glad you enjoyed 'the night'. Truth to tell I quite enjoyed it myself. Little bit of this, little bit of that. Variety, they say, is the spice of life. What a spicey night! Let's hope there is a second leg in March. I'm demob happy now and disinclined to dip out on any good times that may be up for grabs.
I was drunk and stoned on weed, they paraded a dozen beautiful women in front of me and said take your pick.
820. The omission of these matters [set out in para. 21 above] from Mr Chapman's custody records ensured that those records offered no hint of the reality of his treatment whilst in police custody. The circumstances in which Mr Chapman provided information to the police in the murder investigation were therefore obscured.
821. The disposal of, and the actions of West Yorkshire Police as regards other offences actually or allegedly committed by Mr Chapman and his mother during the period of his assistance to the police had the effect of benefiting them. The fresh evidence suggests that these disposals, along with the failure to investigate other offences which may have been committed by Mr Chapman's relatives, were perceived by those affected as favours to ensure Mr Chapman's continued co-operation with the police.
822. The non-disclosure of these matters denied the defence the opportunity to explore their possible impact on the credibility of Mr Chapman and also on the fairness of the trial.
828. The Commission notes that from the outset of his co-operation with the police in the Ford case, Mr Chapman's relationship with the police was presented as untainted by inducement. This impression was furthered by police responses to defence requests for information in that case and confirmed by the evidence subsequently given at Mr Ford's trial. The official records of Mr Chapman's treatment, upon which both prosecution and defence counsel would expect to be able to rely, were silent of the reality of his treatment in custody.
829. The failure to reveal what could reasonably have been considered inducements surrounding Mr Chapman's evidence left the prosecution unable to assess his reliability as a witness and precluded appropriate disclosure to the court and the defence. It also caused the trials involving Mr Chapman as a prosecution witness to proceed on the incorrect basis that he had not been the recipient of favours or privileges. The Commission notes the principle, articulated in R v Brown  1 Cr. App. R. 191, that
' in our adversarial system, in which the police and prosecution control the investigatory process, an accused's right to fair disclosure is an inseparable part of his right to a fair trial.'
830. The failure to reveal relevant matters to those prosecuting the case of Messrs Maxwell and Mansell caused counsel and the court to be misled and precluded appropriate disclosure to the defence. As a result, the defence for Mr Maxwell and Mr Mansell were deprived of significant information which would have assisted them in testing the credibility of Mr Chapman and other prosecution witnesses. They were also hindered in their interpretation of other material which had been disclosed.
831. In the Commission's view, Mr Chapman's treatment as a prosecution witness was incompatible with maintaining the integrity of the prosecution process. In contrast to the appearance of legitimacy in his treatment, the undisclosed information would have supported an argument that Mr Chapman's evidence against Mr Maxwell and Mr Mansell was tainted by a sustained catalogue of improper inducements and an ongoing expectation that he would be favourably treated in every aspect of his relationship with the police. Those representing Mr Maxwell and Mr Mansell were denied the opportunity to deploy this material in support of a tenable argument that the proceedings against them were an abuse of process and to have this issue determined by the court.
Should there be a retrial?
Where the Court of Appeal allow an appeal against conviction . . . and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.
(2) Evidence is new if it was not adduced in the proceedings in which the person was acquitted ... .
(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.
In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.
When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance ... Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted.
...the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court's process has been abused.
It may be said that a guilty accused finding himself in the circumstances predicated is not deserving of much sympathy, but the principle involved goes beyond the scope of such a pragmatic observation and even beyond the rights of those victims who are or may be innocent. It affects the proper administration of justice according to the rule of law and with respect to international law.
The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Ex p Bennett. Ex p Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Ex p Bennett conclusively establish that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.
That was understandable since that was not argued before him. If such arguments had been put before him, I am satisfied that he would still have come to the same conclusion. And I think he would have been right. The conduct of the customs officer was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed. Realistically, any criminal behaviour of the customs officer was venial compared to that of Shahzad.
10. Judges can only make decisions and counsel can only act and advise on the basis of the information with which they are provided. The integrity of our system of criminal trial depends on judges being able to rely on what they are told by counsel and on counsel being able to rely on what they are told by each other. This is particularly crucial in relation to disclosure and Pll hearings. Accordingly, Mr Gompertz QC [for the respondent], rightly, accepted that when defence counsel advised Rahul, Nilam Patel and Pearcy as to plea, they were entitled to assume that full and proper disclosure had already been made. He also rightly accepted that a defendant who pleaded guilty at an early stage should not, if adequate disclosure had not by then been made, be in a worse position than a defendant who, as the consequence of an argument to stay proceedings as an abuse, benefited from further orders for disclosure culminating in the abandonment of proceedings against him. Furthermore, in our judgment, if, in the course of a PII hearing or an abuse argument, whether on the voir dire or otherwise, prosecution witnesses lie in evidence to the judge, it is to be expected that, if the judge knows of this, or this court subsequently learns of it, an extremely serious view will be taken. It is likely that the prosecution case will be regarded as tainted beyond redemption, however strong the evidence against the defendant may otherwise be. Such an approach is consistent with the view expressed by this court, in Edwards  2 CAR 345 @ 350F where, in a different context, Beldam LJ referred to the suspicion of perjury starting to infect the evidence and permeate other similar cases in which the witnesses are involved. We approach the question of safety of these convictions, following pleas of guilty, in accordance with Mullen  2 Cr App R 143 as approved in Togher & others  1 Cr App R 457, namely a conviction is generally unsafe if a defendant has been denied a fair trial. We bear in mind, in particular, three observations by Lord Woolf CJ in Togher. First, at paragraph 30, "if it would be right to stop a prosecution on the basis that it was an abuse of process, this court would be most unlikely to conclude that, if there was a conviction despite this fact, the conviction should not be set aside". Secondly, at paragraph 33, "The circumstances where it can be said that the proceedings constitute an abuse of process are closely confined. It has to be a situation where it would be inconsistent with the due administration of justice to allow the pleas of guilty to stand". Thirdly, at paragraph 59, freely entered pleas of guilty will not be interfered with by this court unless the prosecution's misconduct is of a category which justifies this. A plea of guilty is binding unless the defendant was ignorant of evidence going to innocence or guilt. Ignorance of material which goes merely to credibility of a prosecution witness does not justify reopening a plea of guilty.
17. In our judgment the material now before this court shows (i) lies were told to Judge Hucker by prosecution witnesses in the course of PII hearings and on the voir dire; (ii) those lies were told by reason of a deliberate decision on the part of C & E to conceal from the judge the true status of Alfred Allington and the real nature of the relationship between C & E and LCB; (iii) the judge, in giving his rulings as to disclosure and to whether there should be a stay for abuse, was materially mislead by those lies reaching conclusions, now known to be wrong, that Alfred Allington was merely acting as a trade source and that there was no collusion between LCB and C & E to facilitate the frauds, including that in which this appellant was said to be involved; (v) had the judge known the true position it may be that his decision in refusing a stay would have been different; (v) the appellant pleaded guilty only after the abuse submission had failed.
18. It is a matter of crucial importance to the administration of justice that prosecution authorities make full relevant disclosure prior to trial and that prosecuting authorities should not be encouraged to make inadequate disclosure with a view to defendants pleading guilty. ... When inadequate disclosure is sought to be supported by dishonest prosecution evidence to a trial judge, this court is unlikely to be slow to set aside pleas of guilty following such events, however strong the prosecution case might appear to be. Lord Woolf CJ in paragraph 59 in Togher enunciated general principles with which we respectfully agree: he was not dealing with, and it seems unlikely that he had in mind, a case in which non-disclosure, accompanied by perjury, preceded a guilty plea.
19. Accordingly, M M Patel's appeal is allowed. His conviction, notwithstanding his plea of guilty, is unsafe and is quashed, as is the confiscation order made against him.
19. ... In the ordinary way we would have ordered a re-trial so that a trial judge, on the basis of honest evidence, could have had the opportunity of deciding about disclosure and about whether or not a stay should be granted. However, as the appellant [Patel] has already served his sentence and it is nearly 6 years since the offence is alleged to have taken place, we make no such order, as it would not be in the interests of justice to do so. (Emphasis added)
The documents which have now been disclosed would have provided significant cross-examination material which could have undermined that assertion. Whether or not it would have done so is not a matter about which we can speculate. The appellants were entitled to disclosure of that material which could have had an effect on the verdicts of the jury.
21. We see no escape from the conclusion that this submission is correct. The applicants were therefore denied the opportunity to deploy that material in support of the abuse of process application and were accordingly denied a fair trial. Despite their pleas of guilty their convictions were unsafe; and neither the fact that they pleaded guilty nor, as far as two of them were concerned, that they admitted the offences in the Newton hearings can affect that position. They were entitled to a proper determination of the issue as to whether or not they should be arraigned.
22. It is unnecessary for us therefore to decide whether the non-disclosure was deliberate or not. That issue may be relevant if there were to be a retrial and a renewed application to stay for abuse of process. It would accordingly be inappropriate for us to make any comment about it.
In the ordinary way we would have ordered a re-trial so that a trial judge, on the basis of honest evidence, could have had the opportunity of deciding about disclosure and about whether or not a stay should be granted.
24. ... the Board simply cannot recognise in this case, even on the assumption made, an abuse of executive power akin to that established in Bennett such as to call for a permanent stay of further proceedings. It is necessary at this stage to look at the Bennett principle and one or two of the later cases which applied it.
28. It will readily be seen that the factor common to all these cases, indeed the central consideration underlying the entire principle, is that the various situations in question all involved the defendant standing trial when, but for an abuse of executive power, he would never have been before the Court at all. In the wrongful extradition cases the defendant ought properly not to have been within the jurisdiction; only a violation of the rule of law had brought him here. Similarly, in the entrapment cases, the defendant only committed the offence because the enforcement officer wrongly incited him to do so. True, in both situations, a fair trial could take place. But, given that there should have been no trial at all, the imperative consideration became the vindication of the rule of law. As Lord Hoffmann put it in Looseley at para 40:
"The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths [in Bennett] described the jurisdiction more broadly and, I respectfully think, more accurately, as the jurisdiction to prevent abuse of executive power."
That principle simply has no application here. This appellant has, quite rightly, had his conviction quashed. A fortiori that would have been the appropriate result had he established not merely apparent bias but, consequent on government pressure to convict, actual bias. But the quashing of his conviction restores the appellant to the position he was in before the unfair trial. Why should his success gain him immunity from what is conceded to be the position he now faces under the Court of Appeal's order: a fair trial upon charges properly brought?
52. Acts done by the police, in the course of an investigation which leads in due course to the institution of criminal proceedings, with a view to eavesdropping upon communications of suspected persons which are subject to legal professional privilege are categorically unlawful and at the very least capable of infecting the proceedings as abusive of the court's process. So much seems to us to be plain and obvious and no authority is needed to make it good. The only question that requires examination is whether such proceedings ought to be characterised as an abuse of the process, and the prosecution stopped, if the defendant or defendants have suffered no prejudice in consequence of the relevant unlawful acts.
55. ... True it is that nothing gained from the interception of solicitors' communications was used as, or (however indirectly) gave rise to evidence relied on by the Crown at the trial. Nor, as we understand it, did the intercepts yield any material which the Crown might deploy to undermine the defence case. But we are in no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person's right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court. In R v Derby Magistrates Court ex p. B Lord Taylor CJ said:
"Legal professional privilege is much more than an ordinary rule of evidence, limited in its application to the facts of the particular case. It is a fundamental condition on which the administration of justice as a whole rests."
It is unnecessary to multiply authority to demonstrate the importance which the law attaches to legal professional privilege. It is enough to say that in this area the jurisprudence of the European Court of Human Rights marches with the common law: see Lanz v Austria, S v Switzerland, Niemitz v Germany, Brennan v UK. The reasoning in this last case shows[ that a breach of Article 6 of the European Convention on Human Rights may be constituted by an infringement of the right to confidential legal advice even though it is not shown that in consequence the accused cannot have a fair trial.
55. Now, it is not in general the function of criminal courts to discipline the police. Not every misdemeanour by police officers in the course of an investigation will justify a stay on grounds of abuse. And plainly there are cases where prejudice or detriment to the defendant must be shown; indeed the case where the defendant is denied a fair trial by the prosecutor's act or omission may be thought a paradigm of abuse of process. Where a fair trial remains possible, faced with an application for a stay on grounds of abuse the court has a balance to strike. On the one hand public confidence in the criminal justice system has to be maintained; and where misconduct by the police or prosecution is shown, that will favour a stay of the proceedings. On the other hand, it is the court's duty to protect the public from crime, especially serious crime; that consideration may militate in favour of refusal of a stay.
56. Where the court is faced with illegal conduct by police or State prosecutors which is so grave as to threaten or undermine the rule of law itself, the court may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case. ...
57. We are quite clear that the deliberate interference with a detained suspect's right to the confidence of privileged communications with his solicitor, such as we have found was done here, seriously undermines the rule of law and justifies a stay on grounds of abuse of process, notwithstanding the absence of prejudice consisting in evidence gathered by the Crown as the fruit of police officers' unlawful conduct. ... As for prejudice, it is a particular vice of the police conduct in such circumstances as these ... that the court cannot know whether the police misconduct has in fact yielded fruit in the form of evidence, whether directly or indirectly, without enquiry as to what the covert surveillance revealed; but that would further violate the suspect's right of legal professional privilege. ...
58. In all these circumstances, we conclude that there was abuse of the process here and [the trial judge] should have stayed the proceedings in consequence. We understand it to be accepted that if the court reaches this conclusion, the conviction falls to be treated as unsafe. In those circumstances the appeal will be allowed.
(i) the nature and scale of the prosecutorial misconduct;
(ii) the fact that the misconduct infected both the trial and the first appeal;
(iii) the fact that the prosecution case was based more or less entirely on the evidence of Chapman and the appellants would not have been charged or tried in its absence;
(iv) the strong possibility that the trial would not have proceeded (being either aborted by the prosecution or stayed by the judge) if the circumstances of Chapman's treatment by the police had been made known to the prosecuting team;
(v) the circumstances in which Maxwell's admissions were made, namely:
(a) the first admission (to his solicitor) would not have been made had it not been for the conviction obtained by prosecutorial misconduct. Having been made, it would never have come to light had it not been for the fact that, due to prosecutorial misconduct, the appeal failed and a subsequent investigation by the CCRC was necessary, in the course of which Maxwell waived privilege;
(b) the admissions made subsequently would not have been made had it not been for the unsuccessful appeal and (in the case of the admissions to the North Yorkshire Police) the CCRC investigation necessitated by the prosecutorial misconduct;
(vi) both appellants have served 12.5 years in prison, a longer term than they would receive if they were found guilty of manslaughter, the offence which Maxwell is admitting.
i) Admissions to his then legal representative Mr. Simon McKay 1998- 99;
ii) Admissions to Home Office Research Project in 2000;
iii) Admissions to the Prison and Probation Services 1999 -2004;
iv) Admissions to North Yorkshire Police 2003 -2005.
I explained to Paul that I would take his case on and advised about the jurisdiction of the Criminal Cases Review Commission and about "fresh evidence".... I emphasised that if he was guilty it would be a waste of his time and mine if he allowed me to pursue the case on the basis that he was not guilty. To my great surprise Paul confessed that he and his brother did do the murder.
I went on to discuss the matter at greater length with the client who I felt appreciated the opportunity to get it off his chest. He explained that at no stage did he ever anticipate any injury would be caused to Mr Smales. At the time of the murder, he was in fact inside the house, whilst his brother carried it out in the garden. In short, Paul was neither privy to any knowledge of his brother's intentions, nor proximate (relatively speaking) to where the killing took place. I told Paul that on the basis of what he had told me, I felt that he could have a possible appeal on the authority or R-v-English and R-v-Powell.
1.9 With regards to the June offence Mr. Maxwell describes how he and his brother, Mr. Mansell had attended at the Smales address with the intent to distract the occupants, enter and search the premises with intent to steal.
1.10 On approaching the address they were met with suspicion by Bert Smales and Mr. Maxwell had to barge into the house, punching Mr. Smales in the face. Mr. Mansell searched the house and stole property, money in a tin.
1.11 As they prepared to flee the scene Joe Smales entered the room and Mr. Mansell restrained him by threatening him with a pair of scissors.
1.12. Mr. Maxwell and Mr. Mansell fled the house locking the door behind them from the outside as they did so. They shared the spoils which totalled about £2,000.
1.13 Mr. Maxwell related the event to a third party [presumably Chapman] who in turn informed him that they had missed the main amount of money. This was discussed with Mr. Mansell and both men made the decision to return to the Moor Road address and commit a further offence.
1.14 Mr. Maxwell's account is that he and Mr. Mansell returned to the Moor Road address to commit a further robbery. The plan was to knock on the door and when it was answered overpower the occupants and tie them up. However the plan became dislocated when Joe Smales was seen to be in the garden. Mr. Mansell was directed to go and speak to the old man and keep him talking.
1.15 As Joe Smales was distracted, Mr. Maxwell kicked open the door only to be confronted by Bert Smales. Mr. Maxwell took hold of Bert Smales and dragged him into the hall, punching him to the face breaking his nose. Bert Smales was then dragged into another room by Mr. Maxwell and he then proceeded to search the room, before moving onto search another downstairs room.
1.16 Mr. Mansell re-joined Mr. Maxwell saying that Joe Smales, "... was out there ..." Mr. Mansell kept guard over Bert Smales and proceeded to search the upstairs of the house where he found a quantity of bank notes in a coat. Mr. Maxwell went back downstairs and Mr. Mansell was standing near the back door with a biscuit tin in his hands.
1.17 Mr. Maxwell looked into the room where Bert Smales was and noted that there was a lot more blood on his face than previously.
1.18 Mr. Maxwell and Mr. Mansell left via the rear door and Mr. Maxwell noticed that Joe Smales was lying in the garden. He made no note of his condition but was "frightened" on seeing him and quickly left with his brother.
1.19 Mr. Mansell took the tin away with him and opened it as they travelled from the scene saying it was full of coins.
1.20 The two men stopped at a nearby service station to buy cigarettes and a drink. Mr. Maxwell asked Mr. Mansell what had happened to Joe Smales in the garden. At this Mr. Mansell replied that he had to hit him as the old man kept trying to look at his face. Mr. Mansell denied doing anything further to Bert Smales in the house, though Mr. Maxwell did not believe this due to the extent of the injuries he noted on leaving the house.
1.21 Mr. Maxwell and Mr. Mansell returned to Mr. Mansell's home address and they shared out the proceeds of their crime which came to £3,000. They then disposed of their clothing and the tin stolen from the house.
I have told my solicitor the truth and I have asked him to inform the appeals Court that I wish to appeal against the murder only -and guilty of the robbery. He is coming to see me in two weeks and I have agreed to give him a sworn affidavit. I know you will be angry Danny but I know we will not get out by maintaining our innocence when all the evidence points to us -so that leaves us both serving life for part of the crime that only you committed.
2.5 The notes of Mr. Maxwell's meeting with officers on 2nd March 2000 refer to him admitting the robbery offences committed against the Smales' brothers in both June and October 1996. Within the notes Mr. Maxwell explains how he became aware of the vulnerability and location of the Moor Road address and the Smales.
2.6 In connection with the "Smales offences" it is recorded:
"These were committed with his brother. The address was that of a 'flyer' supplied by [Chapman.] Maxwell knew the address had been attacked previously in a bogus official offence. He travelled with his brother from the Manchester area to the Smales address on two separate occasions. The first time, Maxwell had a clipboard with him. (Didn't expand on what 'official' he was supposed to be.) The door was answered and they immediately barged in. Joe was slightly injured in the struggle. Money was found in the bedroom. Maxwell and his brother again visited the Smales address. On arrival Joe was found in the rear garden. Maxwell told his brother to keep Joe talking whilst he went into the house and stole the money; Maxwell 'boots' the door in and is confronted by Bert. Maxwell punches Bert in the face and recalls hearing his nose break. Maxwell's brother comes in from the garden and Maxwell goes upstairs to get the money from the cupboard. Both leave the house and Maxwell sees that Joe is lying in the garden. Maxwell's brother explains that he punched Joe in the face as he was struggling to get away. Joe subsequently died from his injuries. Both were eventually convicted.
He accepts the guilty part he played but states that the deceased did not die at his hands and indeed admits that he used as much violence on the victim who survived as his brother did on the victim who died.
Later reports show that he continued to make similar admissions.
I now admit the robberies of the Smales brothers in June and October of 1996. My brother was with me on both occasions. No one else was present. I was not involved in the death of Joe Smales and had had no intention to cause serious injury to either of the brothers.
It got harder and harder for me to lie to the Operation Douglas team. I have tried in the past to get Danny to admit his part, eventually it was obvious from the amount of information Operation Douglas had uncovered that I should tell the truth. I never believed my admissions to the prison service would be obtained by the police and I didn't feel disloyalty to my brother. I have thought long and hard about admitting this offence but it's not that easy but I'm relieved I have now.
I would like a retrial and I would plead guilty to robbery and manslaughter.
20. In our judgment, section 114(1)(d) is to be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented. As Scott Baker LJ said in O'Hare  EWCA Crim 2512 at paragraph 30:
"We think it important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory."
24. ... Cases must be rare indeed in which such significant potentially prejudicial evidence as that of D should be admitted as hearsay where the maker of the statement is alive and well and able, although reluctant, to testify, and her reluctance is not due to fear (i.e., the condition in section 116(2)(e) is not satisfied).