England and Wales Court of Appeal (Criminal Division) Decisions

COURT OF APPEAL (CRIMINAL DIVISION)
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION
S9 CAA 95

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/12/2010

Lord Justice Toulson :

1. This is an appeal against the appellant's conviction on 30 May 1996 at Sheffield Crown Court before Jowitt J for two offences of murder. It is his second appeal against conviction and comes before the court on a reference by the Criminal Cases Review Commission ("CCRC") under s9 of the Criminal Appeal Act 1995. The reason for the reference was that fresh DNA evidence, which could not have been obtained at the time of the trial, negates the sinister effect of what the prosecution presented at the trial as an important piece of evidence implicating the appellant and led the CCRC to the view that the court in the light of this evidence may consider his convictions to be unsafe. The prosecution accept that the new evidence ought to be received by the court but dispute that it makes the appellant's convictions unsafe.
2. Mr Owen QC has also advanced a ground of appeal not considered by the CCRC. He asks the court to receive fresh psychiatric evidence about a key prosecution witness named McCann, which he submits ought to have been adduced on the appellant's behalf at the trial and which in his submission might have made a difference to the jury's verdicts. The prosecution object to the admission of that evidence on the ground that the substance of it was available to the defence at the time of the trial, and that leading counsel for the appellant, who used it in cross examining McCann, for objectively sensible reasons did not seek to call a psychiatrist to give evidence about the mental state of McCann. We use the term "objectively sensible reasons", because unsurprisingly the recollections of the various members of the defence team 14 years after the trial are limited.
3. The victims were two sisters, Aileen Dudhill and Elsie Gregory. They were both in their seventies and lived together at 364 Herringthorpe Valley Road, Rotherham. They were murdered in their home on the afternoon of Sunday 25 June 1995. Their bodies were discovered after the fire service was called by neighbours around 9 pm. They had been bludgeoned and their bodies dragged into a downstairs living room, furniture stacked above them and then set alight. Evidence from neighbours enabled the prosecution to put the time of their murder at probably after 6 pm.
4. Two men were tried for their murder. The co-accused was Lawrence Bierton. They lived in the same house at 20 Sunfield Avenue, Worksop. The appellant was the owner of a black Ford Escort mark 3 van. The distance from 20 Sunfield Avenue to 364 Herringthorpe Valley Road was about 14 miles and the journey time on a Sunday would ordinarily have been less than 30 minutes.
5. Both defendants ran alibi defences. Bierton gave evidence and called alibi witnesses. The appellant called alibi witnesses but did not give evidence himself. Both men were convicted.
6. The prosecution accepted the appellant's assertion that from shortly after 7.30 pm he was at the Miners' Welfare Club in Worksop, but disputed his alibi evidence prior to that time.
7. For the earlier period the appellant relied at the trial on the evidence of a Mr and Mrs Wynn, Mrs Carol Rushton and Mr Murray. They all live in Worksop. Mrs Rushton lives about half a mile from the Wynns and Mr Murray is her step-father. They were not precise about timings, but the general effect of the Wynns' evidence put the appellant at their house from around 5 pm until around 5.25 to 5.45 pm. The evidence of Mrs Shields and Mr Murray was that Mr Murray was at his step-daughter's house when the appellant called at the house at about 5.30 pm. He left at about 6 pm.

The case against Bierton

8. It is common ground that the case against Bierton was overwhelming. He left bloodstains on the floor, walls and various items in the property, including on the upper floor of the property, and his fingerprint was found on the inside of the front door between the lock and the handle. He also left blood on a knife found at the property. Two days after the killing Bierton attended the accident and emergency department at Bassetlaw Hospital with a healing laceration at the base of the little finger of his right hand. The tendons of the finger had been cleanly severed and the cut went down to the bone. There was medical evidence that this injury was consistent with being caused by the bloodstained knife found at the property. He gave different explanations for the cut, which were not credible.
9. Shortly before the fire service was called a Mr and Mrs Smith saw a man walking in the street not far from Herringthorpe Valley Road. Unusually for the time of year, he was wearing a three quarter length coat, like a winter coat, and one glove. He had a carrier bag. Soon afterwards they saw the man get into a black Escort van. Mrs Smith attended an identification parade. She was not able positively to identify anyone but said that no 3 (Bierton) was very similar to the man. In her evidence she said that she identified no 3 positively in her own mind, but had not made a positive identification at the parade because she had been anxious. She recalled the glove being on the man's left hand, although it was Bierton's right hand which was injured.
10. When interviewed after his arrest Bierton gave inconsistent accounts of his movements. His account in evidence differed from his final account in interview and he accepted that he had made errors about his movements when asked about them by the police.
11. There was other compelling circumstantial evidence against Bierton.

The involvement of two men

12. There was strong evidence that Bierton was not alone when the sisters were killed and that the visitors were known to the sisters. The sisters were security conscious and there was no evidence of forced entry. On a tray in the kitchen were found four teacups with milk and sugar. There was no evidence that the sisters had been expecting visitors that afternoon and no visitors came to the property between the killings and the discovery of the fire. Aileen had gone out for the afternoon and returned to the house shortly after 6 pm. The teacups suggested strongly that the sisters were intending to give tea to two people after Aileen had returned. A neighbour also gave evidence of hearing two male voices coming from the garden of the home, possibly between shortly after 5 pm and 5.30 pm, but he was not categoric about the timing.

Case against the appellant

13. The case against the appellant comprised evidence of four kinds – circumstantial evidence, forensic evidence, lies and admissions.

Circumstantial evidence

14. Two years before the killing the appellant had done work at the sisters' property with a man called Michael Rose. They had charged the sisters £180, as was shown by a receipt written by the appellant, which was found by the police after their deaths in the front downstairs of the property. The charge was exorbitant. On that occasion they had been joined in the garden by another man named Somerfield. Somerfield gave evidence that they had all been given tea in the garden by the sisters and that it had been served in teacups.
15. On Thursday 22 June 1995, i.e. three days before the killing, the appellant and Bierton travelled to the sisters' house, ostensibly to persuade them to do more work. They charged £140, which supposedly included the cost of servicing and sharpening the sisters' lawnmower, although this work was proved not to have been done. The receipt for the work was written by the appellant and found by the police on the mantelpiece in the front downstairs room of the property.
16. On the previous day, Wednesday 21 June, the appellant had borrowed a chainsaw and tools from Michael Rose. The chainsaw was returned to him on Saturday 24 June but without the tools. The tools were returned on Sunday 25 June at about 7.40 pm at the Miners' Club.
17. The prosecution's case was that a tool was left at the property in order to create an excuse for Bierton and the appellant to revisit the property on Sunday 25 June, ostensibly in order to recover the tool but in reality in order to provide the opportunity for one to steal from the property while the other distracted the sisters. As against the appellant, this suggestion was supported by the evidence of McCann about what the appellant allegedly told him.
18. After the murders there was a bonfire in the garden of the appellant's house, in which an attempt was made to burn false teeth which were proved to have belonged to Elsie and items of clothing of the type worn by Bierton at the time of his arrest. The police discovered this from debris in the garden found after the two accused were arrested on 14 July 1995. The conclusion was obvious that whoever lit the fire did so in order to destroy incriminating evidence including Elsie's false teeth, which had presumably been carried away from the house by mistake, probably with other items stolen from the property. The property had been ransacked and items taken, and common sense dictated that the ransacking must have occurred after the two sisters were killed. Mr Smith QC made the point that Bierton could not have carried out nor expected to carry out the bonfire without the appellant's knowledge, and that if the appellant had not been implicated in what had happened earlier, Bierton would have exposed himself to obvious risk in trying to get rid of Elsie's dentures and his clothing in that way. The appellant was bound to ask some questions about what he was doing and there was bound to be a police murder enquiry.
19. Bierton must have returned to 20 Sundown Avenue with a nasty hand injury. Over the next few days the appellant gave three different accounts to different people about how Bierton had injured himself.
20. A witness called Mark Espin gave evidence of a conversation with the appellant in the Miners' Club, at which Bierton was present. He said that it was on the evening of Monday 26 June, but he accepted that it could have been the following day. His evidence was that the appellant said that he had been up all night with Bierton, because Bierton had cut his finger on a glass in a fight, and that the appellant said he had taken Bierton to hospital. Espin also said that later that week he again met both defendants in a snooker club in Worksop. Bierton had a bandage on one hand and on this occasion Bierton said that he had done it on some wire.
21. On Tuesday 27 June Bierton attended Bassetlaw Hospital where he was seen first by a senior house officer and then by an orthopaedic surgeon. The history which he gave on that occasion was that he had cut his finger pulling a piece of bare wire the previous evening.
22. Michael Rose gave evidence that on the same day, 27 June, the appellant told him that Bierton had been to hospital because he had cut his hand at work when pulling a piece of wire.
23. Another witness, Mrs Lord, said that in July 2005 she had to visit the outpatients' clinic at Bassetlaw Hospital a number of times. She had known the appellant for some years and on one of her visits she saw him in the waiting area. She sat next to him and asked why he was there. He said it was not him, but his friend, who had cut his hand on a knife. She was adamant that he had said that Bierton cut his hand on a knife. Her outpatient records showed that one of her visits was on 5 July and that on the same day Bierton also attended the hand clinic.
24. When interviewed by the police, the appellant said that Bierton had flattened a piece of wire between two hammers so that the end of it was like a razorblade, that he had then tried to pull the wire and that it had slipped through his fingers cutting him.

Forensic evidence

25. No trace of the appellant's blood was found inside the property. However, the prosecution said that there was physical evidence to link the appellant with the ransacking of the property in the form of an envelope with his fingerprint on it and two cigarette ends.
26. The envelope was a Halifax Building Society envelope. It contained a statement of account which had been sent out over a year before the sisters were killed. It was found by the police in a pile of ransacked materials on the kitchen floor. Nothing relevant was found on the statement of account within the envelope, but there were two prints made by the appellant on the back of the envelope. One was made by his right thumb on the flap and the other by the outer side of his left palm, suggesting that at some stage his palm had rested on the back of the envelope.
27. When questioned about these marks by the police, the appellant said that during the visit on the preceding Thursday he had sat at a table in the kitchen to write out his bill. He had not noticed whether there might have been anything else on the table. He also said that he could have moved an envelope when he washed his hands in the kitchen.
28. Mr Smith referred the court to evidence that the sisters were tidy minded people, who filed away their accounts, many of which dated back a long time. He submitted that it was unrealistic to think that they might have pulled out a stale account and left it lying around either by the kitchen sink or on the kitchen table.
29. The other item, cigarette ends, is at the centre of the appeal. There is no doubt that it formed a significant part of the prosecution's presentation of the case. The sisters did not smoke and there was evidence that they would not usually permit smoking in the house. Four cigarette stubs were recovered by the police after the murders. Two were in a wheelie-bin outside the house. A third was found in a glass of water by a vase of flowers on a table in the hall. The flowers had been placed there by a niece of the sisters on the day before the murders. She could not recall seeing the glass there at the time when she put the flowers on the table. A fourth cigarette end (given the exhibit number SB 30) was found on the upstairs landing at the foot of the stairs leading to the attic.
30. The police also received some cigarette ends from Bierton's and the appellant's police cells and from 20 Sunfield Avenue.
31. All the cigarette ends were filter tipped. At the trial there was no DNA evidence to connect either defendant with the cigarette ends found at the sisters' house but the prosecution said that they had been extinguished in the way that the appellant normally put out his cigarettes, which was different from Bierton's usual way of putting out a cigarette. The cigarette ends found in the appellant's cell had been smoked down to the filter. The cigarette ends found in Bierton's cell had been stubbed out and bent over at the end. The cigarette ends recovered from the rooms occupied by Bierton and the appellant at Sunfield Avenue showed the same difference, with the exception of one cigarette end found in Bierton's bedroom which had been smoked down to the filter. The prosecution's suggested explanation for that cigarette end was that the appellant had been in Bierton's bedroom when smoking it. The cigarette ends found at the sisters' home, in the defendants' cells and at their address were all Rothmans Royals. A Rothmans senior scientific advisor gave evidence that although smokers do not necessarily always put out their cigarettes in exactly the same way, there is a remarkable consistency in the way in which they extinguish their cigarettes. The cigarette ends found at the sisters' house had all been smoked down to the filter - or least that was how the case was presented. (We add that rider because it appears from the evidence that part of the filter of SB 30 was missing, so it may not be possible to be sure that it had been smoked down to the filter, but that point does not seem to have been explored.)
32. The wheelie-bin had been emptied on the previous Wednesday, so it was possible that the two cigarette ends found in it had been smoked during the defendants' visit on the Thursday, but the two cigarette ends found inside the property could not be accounted for in that way. The inference was obvious that they must have been left by whoever killed the sisters and ransacked the property.
33. As to the significance of the Halifax envelope and the cigarette ends in relation to the appellant, the judge in his summing up said as follows:

"Bierton said he stubs his cigarettes out; Pluck told the police he smokes his cigarettes nearly down to the filter. Both defendants say they smoke Rothmans Royals from the red packets.

Now the cigarette ends from 364 were uncharacteristic of the way Bierton smokes and stubs out his cigarette ends. They did have the appearance you would expect if they had been smoked down to the filter and not stubbed out, though they could also simply have burned down. No one of course suggests that Mr Pluck is unique in the way he smokes his cigarettes.

You are entitled to ask, members of the jury, whether the combined effect of the evidence connecting Bierton with 364, the connection between 364 and – and the connection between 364 and 20 provided by the false teeth, and the connection between the two defendants help you to assess the significance as against Pluck [of] the cigarette ends from 364 and his prints on the Halifax envelope."

34. The potential significance of evidence to connect the appellant with the ransacking of the property was obvious. It went not only to the question whether he was present at the time of the killing, contrary to his alibi evidence, but to the question of his intent. As the judge put it in his summing up:

"Ransacking the house after the sisters had been killed formed no part of the killing, as Mr Marron [counsel for the appellant at the trial] rightly said to you yesterday. Was it, though, carrying out or completing the purpose, namely to steal, for which the intrusion took place in the beginning? If you conclude that the defendant had the stomach to take part in the ransacking after he had been present when the sisters were killed, you are entitled to ask whether that throws any light on his conduct and his intention at the time of the killing… "

35. Since the trial there have been advances in scientific techniques. There is no fresh evidence about the cigarette end found in the glass of water in the hall, because any DNA traces would have been washed away, but there is now DNA evidence about the other cigarette ends found at the sisters' house.
36. Fresh tests carried out by a forensic scientist, Ms Tomlinson, whose evidence is agreed, showed that the two cigarette ends found in the wheelie-bin had DNA matching the profiles of both defendants. SB 30 bore DNA traces matching the profile of Bierton but not the appellant. From this Ms Tomlinson concluded that SB 30 had not been shared by the defendants in the same way as the cigarettes found in the wheelie-bin. She was not able to exclude the possibility that the appellant had handled or smoked it fairly briefly in such a way that detectable levels of DNA were not transferred to it, but Mr Smith rightly did not seek to build any positive case on that possibility. The only safe way now to approach the evidence is that the two cigarette ends found in the sisters' property have no evidential value against the appellant.

Lies

37. It was the prosecution's case that as part of a concerted cover up the appellant and Bierton both told lies to the police and others about how Bierton injured his hand. We have summarised the evidence on that subject. It was also the prosecution's case that the appellant put forward false accounts of his movements. His various accounts to the police were succinctly summarised by the CCRC as follows:

"Mr Pluck's alibis

36. Mr Pluck gave a number of versions of his alibi to the police during interview.

Version 1

37. He said that he had gone to his mother's house where he and his father (who lives elsewhere) had lunch with his mother. He later took his mother to a public house and then returned with her to her home. Having left her there he went to his home arriving at about 4.40 pm. He then went to the home of friends, the Roses, with some ironing. He said Mrs Rose regularly did his ironing.

38. He was at their home until [6.30] to 6.45 pm. He returned to his mother's and got her some tea before returning home. From there Bierton gave him a lift to the Miners' Welfare Club where he arrived at about 7.20 pm.

Version 2

39. In a later interview Mr Pluck gave the same account as above with one exception in that he said that he had walked to the club rather than that he was given a lift by Bierton.

Version 3

40. Enquires by the police revealed that the Roses did not confirm Mr Pluck's account. Mrs Rose said that she had not done any ironing for him on that day. Confronted with this information Mr Pluck said that he had remembered to the best of his ability.

41. In the next interview Mr Pluck offered a different alibi, saying that in previous interviews he had been confused. He told the police that he had followed his usual routine of having lunch with his mother and sometime in the afternoon he had taken David Wynn and another man named Paul to Sheffield to look at a motorbike.

42. He had returned home at about 6.50 pm having dropped off Wynn and Paul. He went to the miner's welfare club as he had previously stated having been given a lift there by Bierton."

38. The alibi evidence called on behalf of the appellant at the trial (summarised in paragraph 7) was significantly different from any of the accounts which he had given to the police.
39. None of the appellant's accounts to the police made any mention of him visiting Carol Shields' house or seeing Mr Murray there. Mr Murray gave a written statement to the police on 19 July 1995 in which he said that he last saw the appellant on Saturday 24 June. In his evidence he said that he had then forgotten about seeing the appellant on the Sunday.
40. The appellant made no mention of seeing Mr Wynn on the day of the murders until his seventh interview, when he said that he had collected Mr Wynn by arrangement and driven him with Paul in his van to Sheffield.
41. Mr Wynn's evidence at the trial was that he never went to Sheffield with the appellant on 25 June to see about a motorcycle. According to the Wynns, the appellant visited them at their home while they were watching television and the appellant remained for between 5 and 20 minutes after the programme ended before he left.
42. The prosecution were not able to explore with the appellant the reasons for the differences in his accounts of Bierton's injury and his own movements on the day of the murders because he did not give evidence.

The evidence of McCann

43. McCann's evidence enabled the prosecution to place before the jury a coherent narrative of the murders.
44. McCann met the appellant in Doncaster prison in September 1995 when they were both on remand. The appellant was awaiting trial for the murders of the sisters. McCann was awaiting trial on charges of indecent assault on a child and indecency with a child. McCann was then aged 56. In 1982 he had received sentences totalling 10 years imprisonment for serious sexual offences towards children. He also had over 20 previous convictions for offences of dishonesty. If convicted of a further indecent assault on a child, he was clearly facing the prospect of a lengthy prison sentence. In February 1996 McCann made contact with the police to tell them that he wanted to speak to them regarding the murders of the sisters. He was visited by the police in prison and gave an account of conversations with the appellant about which he was called to give evidence at the trial.
45. McCann said in his witness statement that during his many terms of imprisonment he had read up on law and become recognised in prison as a barrack room lawyer. Reading between the lines, he was saying in effect that he would help prisoners to prepare and rehearse their defences in a way that could not be done by a defence lawyer with integrity. McCann said that he first met the appellant in the "association area" where prisoners were allowed to go for part of the day. After that they spent nearly all their association times together. McCann would also visit the appellant in his cell. Prisoners were not allowed to enter another prisoner's cell, but McCann would stand in the doorway while the appellant would sit on his bed with the case papers beside him. The appellant told McCann what the prosecution evidence was and what he had to say about his movements. For a long time the appellant maintained that he had not been to the sisters' house on the day that they were killed, but there were inconsistencies in his accounts of his movements. In order to try to straighten matters out, they developed a system by which the appellant would dictate his story onto a tape in stages. He would then give the tape to McCann who would play it back to himself in his own cell. McCann would then give the tape back to the appellant, who would dictate the next part of what he had to say, wiping off what had previously been on the tape.
46. After some weeks, according to McCann, the time came when he told the appellant that he could not help him unless the appellant told him exactly what had happened, and that appellant must make up his mind whether to trust McCann or not. Next day the appellant came to the door of McCann's cell. They returned to the appellant's cell. The appellant asked McCann whether he would promise, if the appellant told him the truth, not to let other inmates on the wing know because they would kill him if they found out. McCann promised not to tell anyone. The appellant then gave a different story.
47. The appellant's account of the truth, according to McCann, was that on the previous Thursday he and Bierton went to the sisters' house to steal. The appellant told Bierton that he had been there before and that it was "easy pickings". The idea was that the appellant would distract the sisters while Bierton slipped into the kitchen to see what he could find. However, it did not work out and Bierton complained about this on their way home. The appellant told him not to worry because he had deliberately left a spanner for the chainsaw at the property in order to provide a reason for a return visit. This was the background to the visit on Sunday 25 June.
48. When they arrived, they knocked at the house. Only Elsie was in. He took her into the garden to look for the tool while Bierton searched the house. While they were in the garden, Elsie heard noises from the house and realised that Bierton was not with them. She went in to investigate. She found Bierton in the dining room and said that she was going to call the police. Bierton then attacked her by punching and hitting her. At this point Aileen came into the house through the kitchen door and screamed at Bierton to leave her sister alone. Bierton told the appellant to "get her" but the appellant did nothing. Bierton hit Elsie again and she collapsed to the floor. Bierton then pushed the appellant out of the way and went after Aileen, who the appellant could see had a knife. Bierton returned and said "I've killed her". Bierton was covered in blood. He repeated "I've killed that old bitch" or "old cow", to which the appellant said, referring to Elsie, "Yes, but that one's not dead. She's still breathing". With that, Bierton picked up a cushion and put it over Elsie's face. They then went to the kitchen and Bierton tried to clean himself up. The appellant said that he was getting out of there. Bierton's reply was that he was not taking "all this shit" and getting nothing. The appellant said that he was terrified of Bierton but went with him. They got some bags from the kitchen and went to the front room, where they started putting stuff in the bags. The appellant made mention of smoking a cigarette but said nothing about going upstairs.
49. After they arrived back at 20 Sunfield Avenue the appellant told Bierton to change his clothes. At 7.15 pm the appellant made a phone call to Sheffield asking for Bierton in order to be able to pretend that he was not with Bierton and had not seen him. The appellant then went out for the evening. Bierton took him to the Miners' Club. When he returned Bierton was watching television. Bierton had said that it had been on the news about "the old ladies", but he told the appellant not to worry because he had been back and set fire to the house. McCann said that the appellant also talked about the false teeth belonging to one of the old ladies. He did not understand why Bierton had them, but he must have picked them up with some other things. He said that the stuff was burned in the garden.
50. McCann's evidence was that this account was given to him over the course of several days. The appellant wrote an account on paper which he gave to McCann, but the account was vague and only in outline. The full account was given on tape. McCann did not keep any of the paper and he returned the tape.
51. McCann was first seen by the police on 28 February 1996. He first stated that he would not tell them anything unless they had the charge of indecent assault against him withdrawn. He was told that there would be no deals. His principal witness statement was taken on 1 and 2 April 1996. Supplemental statements were taken on 4 and 9 April 1996.
52. McCann's statements were served promptly on the defence, but by then the trial was only about a month away. Because the ground of appeal in relation to McCann involves consideration of the handling of the trial by the lawyers then acting for him, there has been a waiver of privilege. It is clear that the appellant's instructions about McCann's evidence changed more than once. His initial instructions were that he had not discussed the case at all with McCann, but this would have been hard to maintain in view of McCann's obvious detailed knowledge of the case. He later accepted that he had spoken extensively to McCann about the case and his defence of alibi. He also accepted that he had recorded many events onto a tape, to which McCann listened and about which he subsequently commented. However, he denied ever departing from his defence that he did not visit the property on the day of the murders.
53. For the purposes of this appeal statements have been taken from leading and junior counsel at the trial, Mr Aidan Marron QC (now HHJ Marron QC) and Mr David de Jehan, and from the member of the firm of solicitors who instructed them, Mr Martin Anthony. Not surprisingly they have difficulty in recalling details of their thoughts at the time of the trial 14 years ago. At the appellant's request and without the prosecution's objection, we have read their statements. It has not been necessary for them to give oral evidence, which in the circumstances would have been unlikely to have added anything of real value.
54. It is common ground that the cross examination of McCann was based on the appellant's then most recent instructions. It was not an easy task, given the nature of those instructions and the totality of the evidence in the case, and it was made no easier by the fact that Mr Marron did not know whether the appellant would be giving evidence.
55. The prosecution had given disclosure to the defence of reports on McCann by a psychiatrist, Dr Peter Wood, and a psychologist, Mr Eric Wright. The material in Dr Wood's report was used extensively by Mr Marron in his cross examination.
56. In a recent statement Mr Marron has said:

"The cross examination was designed to show that McCann was manipulative, dishonest, self interested and that much of his conduct in relation to his evidence was inconsistent and inherently unlikely."

57. This comes across clearly from reading the transcript, which shows that the cross examination was carefully prepared and well structured. Mr Marron began by showing that McCann had a strong motive for currying favour with the prosecution and that his offer to give evidence was driven by that motive, as demonstrated by the deal which he attempted to do with the police. He was then taken in detail through his psychiatric history. The thrust of the cross examination was that he pretended to mental difficulties when it suited him to do so. When things were awkward for him in one way or another, he would have himself voluntarily admitted to a mental hospital. He would then discharge himself when it suited his purposes. He had a history of recorded attempted suicides, but it was suggested that these were examples of manipulative attempts to obtain sympathy.
58. It was also suggested to him that in order escape being tried for indecent assault he had attempted to persuade psychiatrists that he was unfit to plead and that his perception of reality was distorted by mental illness involving intense misogyny, whereas in truth he was not a misogynist at all. He was cross examined about past relationships to demonstrate that his misogyny was no more than a mask. It was put to him that when he failed to persuade doctors that he was unfit to plead, he tried next to bargain his way out of a trial for indecent assault by providing evidence against the appellant.
59. Mr Marron also cross examined McCann on detailed parts of his evidence and in doing so scored some hits. For example, according to McCann there were two bags containing incriminating property which the appellant wanted to have destroyed. Shortly after McCann gave his first statement to the police it was arranged for McCann to visit the appellant, pretending to have been given bail, and to get the appellant to provide directions where the property was hidden. McCann came back from the staged visit with a scrappy map and some written instructions, which he said came from the appellant. They were inadequate for the purpose but the police sent the document for handwriting analysis, because they clearly understood McCann to be saying that the directions were written by the appellant. It transpired that they were not, and the directions were in McCann's hand. This enabled Mr Marron to put it to McCann that he had been trying an ingenious hoax to obtain bail for himself, which failed, and then he had misled the police into thinking that a document which he created had come from the appellant. The judge in due course reminded the jury about this in his summing up. McCann's evidence was that he thought that the directions had been written by the appellant, but that he was obviously wrong, and that he must have written them from what he was told by the appellant. (The appellant's supplemental proofs of evidence to his solicitors dated 15 April 1996 and 1 May 1996 show that he was then telling his solicitors that he did in fact draw a plan for McCann, which McCann took away, but he said that this was obtained by a trick, because McCann was wanting a place where he, McCann, could hide stolen property. That material was not before the jury.)
60. Mr Marron describes his recollection now of what he thought at the end of McCann's evidence as follows:

"I recall that after he gave his evidence, Mr Pluck, Mr Anthony, Mr Jehan and I all thought we had achieved a great deal. However our enduring collective worry was the fact that McCann appeared to know more than the prosecution papers revealed. Notwithstanding the fact that, in our collective view, Mr McCann had been shown to be manipulative, dishonest, unreliable and some of his actions inherently unlikely, that concern survived the cross examination."

61. We have no reason to doubt that this was the defence team's "collective worry" at the end of McCann's evidence, but in answer to further questions Mr Marron has made it clear that he cannot now put his finger on what led him to fear that McCann was privy to information which could only have come from someone who was present at the scene, and he describes his recollection on the point as vague. Having listened to the arguments, we do not think that it is possible for this court to reach any view as to the strength of any grounds which there may have been for supposing that the parts of McCann's story which were disputed could not have been a product of what he had gleaned from the prosecution papers and his own powers of invention. That is not to suggest that Mr Marron's memory plays him false when he recalls a sense of anxiety on that subject. The view was clearly shared by Mr de Jehan, who in an Advice written shortly after the verdicts emphasised in particular the account given by McCann as to which sister had been attacked and how (they differed in size, and his account was consistent with the prosecution case), and that a cushion had been held over her face. This latter was only subsequently confirmed as a possibility by forensic evidence.
62. Mr Owen applies under s23 of the Criminal Appeal Act 1968 for permission to adduce fresh evidence in the form of psychiatric reports on McCann by Dr David Somekh and Dr J H Kent. The core of their evidence is that McCann suffers from a severe personality disorder of anti-social type, evidenced by his long history of criminality stemming back to conduct disorder in childhood, lying and manipulativeness, an inability to meet the demands of adult life in terms of social functioning and a persistent pattern of dysfunctional relationships; he is therefore someone whose testimony could not be relied upon unless there was substantial corroborative evidence that something he alleged was true; and his unreliability would not necessarily be detected by a lay person. In reaching that opinion Dr Somekh and Dr Kent drew particularly on the lengthy history set out in Dr Wood's report and Dr Wood's own formulation that McCann suffered from a personality disorder.
63. Mr Smith does not dispute that the fresh evidence would have been admissible at the trial, nor that it is credible, but he submits that the court should not admit it at this stage because in essence it echoes what Dr Wood said and Dr Wood's evidence was available to the appellant at the time of his trial.
64. Mr Owen began his submissions by saying that he made no criticism of Mr Marron's conduct of the trial; but he went on to submit that there was no good reason for not having called Dr Wood, or at least explored the possibility of seeing whether Dr Wood or another psychiatrist would give evidence to the effect that somebody with McCann's personality disorder could not be relied upon as truthful in the absence of corroborative evidence, and that this unreliability would not necessarily be detected by a lay person. There was, Mr Owen submitted, no downside to having called such evidence, and those who were responsible for the conduct of the appellant's defence have now no clear recollection why this was not done. In the circumstances, he submitted that it is in the interests of justice that the evidence of Dr Somekh and Dr Kent should be admitted. In support of his submission he relied in particular on Cairns CACD (Kennedy LJ and Smedley and Goldring JJ), unreported 24 February 2000, where the court admitted fresh expert evidence although there was no reasonable explanation for the failure to have adduced it at the trial.
65. As was observed by Lord Judge CJ giving the judgment of this court in Erskine and Williams [2009] EWCA Crim 1425, [2009] 2 Cr App R 29, the decision whether to admit fresh evidence under s23 is case and fact specific. However, despite the fact specific nature of the exercise, it is an area which had become bedevilled by copious citations of authorities by the time that Erskine and Williams was decided. The court deprecated this trend and at [39] made the following observations about the discretion to receive fresh evidence, which are of broad and general application:

"The discretion to receive fresh evidence is a wide one focusing on the interests of justice. The considerations listed in subs (2)(a) to (d) are neither exhaustive nor conclusive, but they require specific attention. The fact that the issue to which the fresh evidence relates was not raised at trial does not automatically preclude its reception. However it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence would could and should have been but were not put before the jury, our trial process would be subverted. Therefore if they were not deployed when they were available to deployed, or the issues could have been but were not raised at trial, it is clear from the statutory structure, as explained in the authorities, that unless a reasonable and persuasive explanation for one or other of these omissions is offered, it is highly unlikely that the "interests of justice" test will be satisfied."

66. We are not persuaded that in the present case it would be in the interests of justice to receive the evidence of Dr Somekh and Dr Kent. We do not regard this as a case where such evidence could and should have been placed before the jury at the trial. Mr Marron deployed the evidence which was available from Dr Wood's report in a manner which was skilful. Having read in full his cross examination of McCann, we are not persuaded that there would have been anything material to be gained from calling Dr Wood and, contrary to Mr Owen's submissions, it could have in our view carried possible risks.
67. It was the collective professional judgment of the defence team that McCann had been shown to have been manipulative, dishonest, self interested and that much of his conduct was inconsistent and inherently unlikely. However they could not seek to portray him as a fantasist, since a large part of his evidence was accepted. Instead, they sought to show him as evil and manipulative of doctors (among others), rather than mentally disturbed. Psychiatric evidence could not help to sustain that attack. To go from the general to the specific, part of the attack made on McCann was that he had tried to deceive Dr Wood into expressing the opinion that he was unfit to plead. The questioning went as follows:

"Q. Here we are in fact remanded in custody and you are still facing these serious charges?

A. That is right, sir.

Q. And you got to thinking of ways of avoiding being convicted of the indecent assault, did you not?

A. No, sir.

Q. You decided, did you not, to try and make it look as though you were insane, mad?

A. No, sir.

Q. Not fit to plead.

A. No, that was not the reason at all, sir.

…

Q. You, in fact I suggest were trying to get the doctor to say you were unfit to plead so that you could go off to a hospital and within a few months or a year you would just come back and say you were OK.

A. No, all my solicitors I have had in this case have all told me straight if I carried on the way I was, that I was unfit to plead, that I would go to a place like Rampton. They made that quite clear to me.

Q. And you did not manage to persuade the psychiatrist because the psychiatrist thought that you were fit to plead, only just. Correct?

A. I believe so, yes.

Q. And so that particular ruse I suggest failed and so you turned your mind to others, did you not?"

It would not have advanced this attack to have called Dr Wood, for he said in his report that "it was plain that Mr McCann did not accept that he was unfit to plead".

The significance of the fresh DNA evidence.

68. We have already concluded that the only safe way now to approach the evidence about the two cigarette ends found in the sisters' property is that they have no evidential value against the appellant. At the trial they were relied on by the prosecution as significant evidence. The question therefore is whether the appellant's convictions should be judged unsafe. Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides that the Court of Appeal shall allow an appeal against conviction if they think that the conviction is unsafe and shall dismiss such an appeal in any other case.
69. The leading case on the exercise of that judgment in a case where the court has received fresh evidence is the decision of the House of Lords in Pendleton [2001] UKHL 66, [2002] 1 WLR 72. In that case Mr Mansfield QC submitted as follows [12]:

"The Court of Appeal is a court of review, not a court of trial. It may not usurp the role of the jury as the body charged by law to resolve issues of fact and determine guilt. Where the Court of Appeal receives fresh evidence under section 23 of the 1968 Act it must assess the quality of the evidence and allow the appeal if it judges that the fresh evidence combined with the original evidence might have caused the jury, or a reasonable jury properly directed, to acquit. The test is what impact the evidence, if called at the trial, might have had on the jury. It is not permissible for appellate judges, who have not heard any of the rest of the evidence, to make their own decision on the significance or credibility of the fresh evidence. "

70. After reviewing the authorities, Lord Bingham said:

"17. My Lords, Mr Mansfield is right to emphasise the central role of the jury in a trial on indictment. This is an important and greatly-prised feature of our constitution. Trial by judges does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second. The Court of Appeal is entrusted with a power of review to guard against the possibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury's deliberations and must not intrude into territory which properly belongs to the jury.

…

19. It is undesirable that exercise of the important judgment entrusted to the Court of Appeal by section 2(1) of the 1968 Act should be constrained by particular words not to be found in the statute and that adherence to a particular thought process should be required by judicial decision…But the test advocated…by Mr Mansfield in this appeal does have a dual virtue…First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe."

71. Mr Owen's argument was simple and well presented. He said that the only direct evidence of the appellant's presence at the property on the day of the murders was the evidence of the Halifax envelope and the cigarette ends, if interpreted as the prosecution invited the jury to interpret that evidence, and the evidence of McCann. McCann was plainly an untrustworthy witness and the presence of the appellant's prints on the Halifax envelope was a slender piece of evidence in itself. The jury may well have attached significance to the evidence about the cigarette ends in two ways; first, as direct evidence that the appellant had been upstairs in the property while it was ransacked; and secondly, as evidence to corroborate the account given by McCann. It was not for the court to form its own view about the strength of the rest of the case against the appellant, because that would be to usurp the role of the jury. That would be a matter for proper evaluation by a jury on any retrial.
72. Mr Owen's argument reflected the reasons given by the CCRC for referring the case to the court.
73. The fact that at the trial the prosecution placed significant reliance on an item of evidence which, in the light of fresh evidence, should be regarded as neutral is a good reason for this court to be asked to conduct a careful review of the safety of the conviction, but it does not necessarily compel a conclusion that the conviction is unsafe. To hold otherwise would be to constrain the judgment entrusted to this court in a way that Lord Bingham indicated should not be done. On the other hand, it is clearly a matter for anxious consideration whether a jury might, not would, have decided the case differently if it had known that the cigarette end found at the foot of the attic stairs had the DNA of Bierton but not the appellant.
74. The jury must obviously have rejected the appellant's alibi evidence as false, and in our judgment no reasonable jury could have reached a different conclusion, regardless of the evidence about the cigarette ends. The appellant must have learned of the murders of the sisters at a time when his knowledge of his own movements would have been fresh in his mind. He must have been aware of a risk that he would be questioned, not least because he and Bierton had done work at the house on Thursday and he had left a receipt for work supposedly done. He also knew of Bierton's serious hand injury. Yet when questioned by the police two weeks after the murders he gave a series of inconsistent and false accounts of his movements. The version put forward by alibi witnesses on his behalf at the trial was totally different from any of the versions which he had previously advanced. No longer was there any mention of him having driven to Sheffield, and witnesses came forward to say that he had been with them whom he had never previously mentioned. These twists and turns called out for an explanation from the appellant, if he had one, but he gave no evidence.
75. There was therefore strong independent cause to make credible McCann's evidence on the central point of the appellant's admission to him that his attempts to create an alibi were false attempts to cover up the fact that he had indeed been present at the time of the killings.
76. There was also much else to connect the appellant with Bierton in the events of 25 June. There was strong ground to believe that the visit on 25 June had its roots in the visit by Bierton and the appellant three days earlier. There was the evidence of Rose that the chainsaw taken by the appellant on the Thursday was returned to him on the Saturday, but the chainsaw tools were not returned until the Sunday evening. There was the evidence of a bonfire of items including Elsie's false teeth at 20 Sunfield Avenue. It would be hard to believe that the bonfire could have taken place in the garden of the appellant's house without his knowledge. The appellant gave a variety of false explanations for Bierton's hand injury. Again, there was no evidence from the appellant to refute the obvious inference that he knew how Bierton had injured himself and was co-operating with Bierton in attempting to put forward an innocent explanation.
77. In our judgment no reasonable jury could have failed to conclude that the appellant was present at the time of the murders, regardless of the evidence about the cigarette ends or for that matter the Halifax Building Society envelope.
78. Mr Owen's strongest argument was that the jury had to be sure not only that the appellant was present at the time of the murders, but that the appellant was a party to them. He submitted that the evidence of the cigarette ends may have been significant in satisfying the jury that the appellant was involved in the ransacking of the property and was a party to the murders, following the line of reasoning suggested in the passage from the summing up set out at paragraph 34 above.
79. However, the evidence went not merely to show that the appellant was present at the time of the murders. Leaving aside the evidence about the cigarette ends, in our judgment the jury could not reasonably have been left in doubt that the appellant and Bierton went to the property in order to commit a burglary; that the two sisters were murdered in the course of the burglary; that after their deaths property belonging to them was stolen; that the two defendants left together, taking the stolen property, in the appellant's van; and that the two defendants conspired to cover up what had happened. In such circumstances the natural conclusion for any jury to draw would be that both were guilty of the murders, either by blows struck or by one providing, by his presence, assistance and/or encouragement as the other used violence in pursuance of the burglary, unless the jury had some evidence for doubting whether one or other defendant was a party to the murders. In this context the absence of evidence from the appellant to contradict or explain features of the case which would otherwise lead to legitimate inferences being drawn against him was highly significant. McCann's evidence no doubt placed him in a dilemma. The appellant might have given evidence that he was present but that Bierton alone was responsible for the killings. It is impossible to speculate what decision the jury might have reached if he had given such evidence and been cross examined. But the jury had no such evidence from him. They had McCann's account of the appellant saying that his role was limited, but even on that self-serving account the appellant pointed out that Elsie was not dead and stood by while Bierton smothered her, in circumstances where he explained his very presence by a joint decision to steal from the house, and the jury had no evidence from the appellant that he remained to complete the burglary because he was in fear of Bierton.
80. In the light of the fresh DNA evidence, it was right that the court should conduct a thorough review of the case. Having done so, we do not consider the appellant's convictions to be unsafe and this appeal is dismissed.