England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
MAIDSTONE CROWN COURT (Wright J)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/01/2012

Lord Justice Pitchford :

1. On 9 May 1996, following a trial before Wright J at Maidstone Crown Court, the appellant, then known as Alan Steadman, was convicted by the jury, by a majority of 10-2, of the murder of Sharon Griffiths (otherwise Quine) and was unanimously convicted of the unlawful concealment, disposal or destruction of her body. The appellant now appeals against his convictions following a referral to the court by the Criminal Cases Review Commission ("CCRC") under section 9 Criminal Appeals Act 1995. The single ground in respect of which reference is made under section 14 (4A) Criminal Appeal Act 1995 is that:

"The conviction … is unsafe as a consequence of non-disclosure (or the failure to give full and proper disclosure) of information/material relating to the credibility of the witness Roy Kearney."

The appellant seeks leave to advance a further ground of appeal out of time namely that:

"The conviction … is unsafe as a consequence of the witness Roy Kearney retracting his evidence."

This is the second time the Commission has been invited to refer the appellant's convictions to the court and a summary of the history is required.

The evidence at trial

2. It was common ground at the appellant's trial that in 1994 he was in a relationship with Sharon Quine. Ms Quine lived in Kent. She claimed income support at the Margate office of the Department of Employment until 2 September 1994. At about that time, Ms Quine and the appellant moved in with Lynnis Keily, the appellant's co-accused, to Ms Keily's one bedroom flat at 1 Wynne House, Beach Street, New Cross in south east London. Ms Keily had spent several years living with the appellant's step-father, Bob Currie, until Mr Currie's death in July 1994. Ms Quine applied for her income support to be transferred to the Greenwich office. She last collected her giro from Greenwich in company with the appellant on 13 September 1994. She did not return either to Greenwich or to Margate to claim her benefit on 20 September 1994 or on any subsequent date.
3. During the week of Monday, 12 September Ms Keily had arranged for a decorator, Danny Corcoran, to carry out work at her flat. He gave evidence at the appellant's trial that he started work on Monday but decided not to work on Saturday, 17 September. Instead, he visited the flat in order to collect his week's money. When the door was opened to him he saw Ms Quine lying motionless on the floor of the bedroom. Her face was bloodied and her hair was tangled. When he told Ms Keily he would not be working that day she replied that that was just as well because there had been arguments. When Mr Corcoran returned on Monday both Ms Keily and the appellant were present but he never saw Ms Quine again.
4. Other evidence suggested that the incident described by Mr Corcoran took place on Friday, 16 September, rather than Saturday, 17 September. On Friday, 16 September, Ms Keily went to her regular public house and asked the landlord, Mr Tomlinson, if she could borrow a shovel. Mr Tomlinson lent her a shovel which was never returned. On the same day Ms Keily arranged to view a red Mark IV Ford Cortina for sale. That evening the car was viewed by Ms Keily and the appellant, who purchased it for £125.
5. The prosecution case was that on Saturday, 17 September, the appellant and Ms Keily placed the deceased's body in the car, drove to Headcorn in Kent, and buried the body in a shallow grave. At 11.22 pm the same night they were stopped in the red Ford Cortina in East India Dock Road by police officers. The appellant gave a false name, Michael Coyle, the name of an Irishman who was known to him. Ms Keily was drunk. On Tuesday, 20 September, the appellant used the same false name when leaving the car at a garage for repair.
6. In November 1994 the appellant left London and went travelling in the West Country. The car was sold for scrap to a breaker in Swindon, where the appellant was living above a restaurant. On 3 February 1995, two farmhands working in a field at Water Lane Farm, Headcorn found the remains of the deceased. A riverman reported that he also had seen a bone sticking out of the ground in the same spot during November 1994 and assumed it to be animal remains. The deceased's remains were examined by a pathologist. The skull and the humerus were visible above ground. The body was wrapped in a builder's dust sheet. The feet were bound and there was a white rope around the neck and shoulders. The cause of death was manual strangulation. The nasal bone had been fractured. The body was identified as the remains of Ms Quine from her dental records.
7. On 23 February 1995 Ms Keily was arrested. Eventually she admitted that Ms Quine had died in her flat. She admitted borrowing a shovel and assisting the appellant to remove the body to Kent in the boot of the red Ford Cortina motor car in order to bury it. She denied having any involvement in the killing. Also on 23 February, the appellant was arrested. He told the police that he had argued with Ms Quine on 14 September 1994 and she had left him. Thereafter he made no comment to questions put to him.
8. The appellant was remanded in custody to HMP Elmley to await his trial. He was detained under rule 43. While there, he was befriended by a prisoner in an adjoining cell, Sidney Patrick Ridger. Ridger was serving a sentence of 2 years 3 months for burglary. Subsequently, having given assistance to the police and prosecution, he was ordered to serve 12 months imprisonment consecutive for further offences for which he was awaiting trial. Ridger was, the jury were informed, a registered informant. He told the jury that over a period of days the appellant, having first claimed that Ms Keily was responsible, admitted the killing. The appellant told Ridger that he had punched Ms Quine in the face and strangled her with his hands. Ms Quine had threatened to expose Lynnis Keily for DSS fraud. Ridger described how the painter had seen the body. The appellant moved the body from the floor of the bedroom to the bath. The appellant described buying a car to dispose of the body. He told Ridger that the body was wrapped in a dust sheet and bound with a clothes line. The appellant and Ms Keily borrowed a shovel which was an inefficient digging tool. That explained why the grave was shallow. The appellant told Ridger that he had removed rows of tiles from the wall alongside the bath and re-painted the bathroom pink in order to conceal possible traces of blood. This last detail was unknown to the police at the time Ridger revealed it. The flat was re-visited for the purpose of inspection and taking photographs. It was possible for the jury to see the outline of the tiles which had been removed even after over-painting. Ridger also gave evidence that the appellant had drawn a sketch of the flat on Ridger's notepad. The sketch itself had been torn up but the outline was found on an underlying page using the ESDA technique.
9. Ridger was transferred out of HMP Elmley on 19 May 1995. Following his departure, Roy Edmond Kearney, on 4 July 1995, was transferred to Elmley. Kearney was serving a sentence of 9½ years imprisonment imposed for importation of class A drugs and he was awaiting trial for a further charge of importation of cannabis and amphetamine sulphate, the value of the latter importation being some £658,000. That offence, the prosecution alleged, was committed while Kearney had been on home leave from his prison sentence. On 19 July, Kearney and the appellant shared a cell at Canterbury Crown Court. The appellant was being produced for a plea and case management hearing. Kearney was attending a hospital appointment in Canterbury. Due to the shortage of resources they had both been conveyed to the Crown Court in the same transport, probably a standard prison, rather than a cellular, van. They spent, in all, some 84 minutes together in the cell. Kearney gave evidence that the appellant made explicit admissions to him. Their conversation about the killing arose when the appellant's co-accused, Ms Keily, passed by their cell door. Steadman told him that the woman had "grassed him up". Steadman went on to tell him the story. Kearney reported that the appellant confessed to punching Ms Quine to the floor and then strangling her. He had done it, he said, because she had been running down his deceased step-father, Bob Currie, calling him a "pisshead". Steadman said that he lost his head, put his hands around her neck and strangled her. He spoke about buying the car and digging a shallow grave. On the way back to London he claimed that they had called at Plaistow to try to establish an alibi with the appellant's former girlfriend. There was no one at home. They had re-crossed the river through the Rotherhithe Tunnel when they were stopped by the police. They returned to the flat and cleaned up. Kearney reported that the appellant told him he had disposed of the car in Swindon. He also told Kearney that he had got some people to say that they had seen Ms Quine alive a month after she had been killed.
10. The appellant gave evidence at his trial. He accepted that Mr Corcoran had visited the flat. On the occasion that Mr Corcoran recalled, the appellant said that Ms Quine was not lying on the floor of the bedroom but was getting dressed. He accepted that he had removed tiles from the bathroom wall. Ms Keily, he said, had asked him to prepare the bathroom for re-painting. He had accidentally knocked some tiles from the bathroom wall. At her request he had removed them all and re-painted. He agreed that Ms Keily was with him in East India Dock Road at 11.22 pm on 17 September. At that time, he claimed, Ms Quine was at home in Ms Keily's flat. The appellant and Ms Keily had been to Canning Town to visit his ex-girlfriend and to see his daughter. He denied having been to Headcorn. The appellant said that on Monday, 19 September, he and Ms Quine were on their way to the dole office when they argued. She stormed off down the road and he had not seen her since. He denied having made any admissions to Ridger about the facts of his case. He suggested that Ridger could have gained access to his case papers from his cell. If he had spoken at all it would have been to deny the allegations made against him. He probably did tell him about re-painting the bathroom, but he did not say that he re-painted to cover up any bloodstains. The appellant accepted that he had shared a cell at Canterbury Crown Court with Kearney. He said that he was on that occasion in possession of some of his case papers which he had taken to court in a plastic bag. At court he was handed a prosecution summary of the case. The appellant said in evidence that he had made no admissions to Kearney either. The appellant was cross-examined by Mr Gale QC, for the prosecution, as to information which Kearney had apparently given to the police but which could not have come from the case summary. This included detail that the deceased used two surnames, Quine and Griffiths; that the car was crushed in Swindon; that an argument about Mr Currie preceded the killing; that Ms Quine was punched to the face; that foxes may have dug up the deceased's body; that the appellant had found witnesses who would say that they had seen Ms Quine still alive some days after the probable date of her death.
11. The appellant called a witness, Mr I C Thompson, who gave evidence that he had seen Ms Quine at his flat in Margate in October 1994. She was, he said, looking for drugs. The prosecution pointed out the similarity between the event described by Mr Thompson and another which, the appellant accepted in his own evidence, had occurred in September. Mr Phillips gave evidence that a woman calling herself Sharon or Shirley "Coin" telephoned him on 29 September asking about a flat to let in Herne Bay. He showed her the flat. When subsequently shown a photograph of the deceased he could not say whether or not it was the same person. Mr Phillips said that he had responded to a Crimewatch or Crimestoppers programme when the name Sharon Quine was mentioned. There was, however, no record of Sharon Quine or Sharon Griffiths making a claim for benefit in respect of accommodation (or any other benefit) in the Margate area following the transfer of her benefits claim to Greenwich.
12. The joint trial of the appellant and Lynnis Keily commenced on 5 February 1996. At the close of the prosecution case, on 8 February 1996, counsel for Ms Keily submitted that there was no case to answer upon Count 1 of murder in her case. She had already pleaded guilty to Count 2 of assisting in an unlawful burial. On the following day Mr Justice Sedley directed a verdict of not guilty upon Count 1. A re-trial of the appellant upon both counts was ordered. At the re-trial, which commenced on 30 April 1996, Ms Keily's plea of guilty to Count 2 was admitted in evidence as being relevant to the issue of the date and general circumstances of the deceased's death. Ridger and Kearney again gave evidence. The appellant was convicted.

First appeal

13. The appellant was granted leave to appeal against conviction on the ground that the evidence of Ms Keily's conviction should not have been admitted. The appeal was dismissed on 11 July 1997. In the meantime, in or about November 1996, Kearney wrote a letter to the appellant in the following terms:

"Alan,

if you wish to appeal I will tell your solicitor I lied in court to convict you, due to pressure from the police. I am willing to attend court if you need me. Ask your brief to contact me. I will need to be traced from Elmley. Good luck."

The date stamped on the letter, as the date upon which it was received by the appellant's then solicitors, was 19 February 1997.

Kearney's retraction

14. On 10 April 1997 the appellant's solicitors interviewed Kearney at HMP Maidstone. From their notes of that interview the solicitors prepared a statement for Kearney's signature. On 19 June 1997 the solicitors revisited Kearney and revisions were made to the statement. We have been provided with a typewritten copy of the composite statement. In it, Kearney said that, having been "promised" a sentence of 18 months - 2 years imprisonment by his barrister, the judge and the prosecution, he had appeared for sentence at Canterbury Crown Court on 22 July 1996 and was sentenced to 5 years imprisonment consecutive to his existing sentence. The sentence of 5 years was subsequently reduced to 4 years imprisonment on appeal. Kearney said that he had shared a cell with the appellant at Canterbury Crown Court for a short time in July 1995. Steadman was a rule 43 prisoner with whom Kearney should not have been required to share a cell. Kearney said that before he left for the hospital he had a brief chat with Steadman, who told him that he was going to be arraigned. When Kearney returned from hospital they continued their chat for about an hour before being returned to Elmley. Kearney continued:

"5.1 No more than a few days after the trip to Canterbury – it may even have been the same day – I was called to an office by security prisoner office Trotter. He explained to me the position of the court case concerning Alan Steadman and he asked me if I would like to be a witness in the case. I wanted an explanation from him and he then went into some detail. He told me that the case involved a "43" inmate and what he was in for. He told me the nature of the case, mentioning murder and, I think also, rape. Officer Trotter pointed out to me that I had a Crown court case coming up – the matter ultimately dealt with at Canterbury in July 1996 – and my parole was coming up, and if I would like to give evidence in the case of Steadman, it would be made easy for me – perhaps the word "beneficial" was used. …Having given the officer's proposal some consideration, I said words to the effect, "yea, OK, I'll do it"."

15. Kearney said that he received an A4 brown envelope containing two sheets of A4 paper. He assumed it was from P.O. Trotter. On them, in small writing, was written an account which Kearney subsequently incorporated within his statement to the police. He believed that Trotter was friendly with a senior police officer called Newman. Kearney said that he wrote to the police at the Maidstone incident room. On Trotter's instructions Kearney memorised the detail of the A4 sheets, tore them into pieces and flushed them down the toilet in his cell. Kearney said that he was then visited by two police officers to whom he dictated his false statement. He continued:

"9. After the statement had been taken as described above, I was visited a few times by police officer Newman. This officer was not one of the 2 officers to which my statement was made. Police officer Newman's visits were, I think, basically to check that I would go to court voluntarily without a witness summons, to give evidence within Alan Steadman's trial. References also were made to little promises, including my being told that I would "get a leg-up" at court on my importation matter. By that I took it to mean a reduced sentence. I believe that there were 3 times when police officer Newman visited me."

According to Kearney, he was intending to plead not guilty to the allegation of importation. Reports of Steadman's trial referring to Kearney as a convicted drug smuggler appeared in a local newspaper. DC Newman told Kearney not to worry. Kearney was, however, annoyed. At Canterbury Crown Court on 22 July 1996 Kearney pleaded guilty to the outstanding charge of drugs importation. He had been told to expect that a letter from the police to the judge would assist him with sentence. However, he had no evidence, he said, that any such letter was placed before the judge. Kearney said that during the first trial, when he was part way through his evidence, he refused to return to court in the morning. Having been informed that he would be summonsed to attend, he eventually went to court and concluded his evidence. Kearney concluded his statement by saying that he believed "the whole thing was a conspiracy from start to finish to get Steadman convicted". Kearney reiterated that none of the detail provided by him to the police came from Steadman; it all came from the document supplied to him by P.O. Trotter. In his unsigned statement Kearney acknowledged that his reference in his letter to Steadman to "pressure from the police" was not entirely accurate. He explained that the pressure from the police arose from the promise of "a leg-up" in his drug importation case. If he did not assist then the police would not assist him. Furthermore, Kearney claimed that had he not assisted life would have been made difficult for him within the prison. On 14 October 1996, with no prior warning, he was indeed transferred from HMP Elmley to HMP Long Lartin in Worcestershire. He claimed to have believed that his move was directly linked to his participation in the Steadman trial. P.O. Trotter had been promoted to governor. Kearney had not, however, received a sentence as light as that which he had been led to expect.

CCRC investigation

16. The appellant's solicitors judged that Kearney's retraction evidence could not be used at the appellant's first appeal because he refused to sign his statement unless he received immunity from prosecution for perjury. On 30 September 1997 the appellant's solicitors invited the CCRC to investigate Kearney's retraction. Kearney was interviewed on behalf of the Commission. This time he was offered immunity. Kearney repeated the assertions made in his unsigned statement. However, Kearney never has signed the statement he made in April and June 1997. The Commission requested an investigation by the Metropolitan Police into Kearney's allegations. The report which followed that investigation was received by the Commission on 1 November 2001. The Commission addressed the issue whether Kearney's new account was capable of belief, and concluded that it was not. The appellant applied for judicial review of that decision but permission to proceed was refused at an oral hearing on 30 October 2002. A further written application was made to the Commission on 22 July 2005. Following representations by counsel, made on 1 March 2010, the Commission resolved to refer the convictions to the court on the ground that disclosure should have been made, but was not made, of Kearney's status as a police informant. The sequence of events which led to non-disclosure was as follows.

Kearney's genesis as a witness

17. On 20 July 1995, the day after his cell conversation with the appellant at Canterbury Crown Court, Kearney wrote a letter from HMP Elmley addressed to the Maidstone incident room, in the following terms:

"Dr Sir/Madam

Yesterday at Canterbury Crown Court I spoke to a man I know as Mr Stedman [sic]. He was up in court for murder.

Within 2 hours he told me the whole story. How he killed her and why he killed her. I do believe this information will convict this man along with his co-defendant. I think these sort of people who kill young girls need locking up for a long time.

If you need to visit me with regards to this matter then please be disgreat [sic].

1. I know where she was murdered.

2. I know where she was buried.

3. I know why she was killed.

4. I know the car she was moved in.

5. I know how she was killed.

6. I know he had the car cut up.

Should I go on?

He seems very confident that he will walk from court.

Kind regards

Roy Kearney

The girl was Sharon Griffish [sic] from Herne Bay, Kent."

The letter was opened in the mail room by P.O. Sargent, who handed it to P.O. Richard Trotter. Mr Trotter was principal officer in the security department at the prison. The letter was handed by P.O. Trotter to D.C. Wellard at HMP Elmley at 8.45 am on 26 July. In the meantime the letter was sent by facsimile transmission from the prison to the incident room at Maidstone and arrangements were made to interview Kearney at the prison on 26 July. DC Wellard took Kearney's prosecution witness statement at Kearney's dictation. It is not known for certain whether any other officer accompanied DC Wellard. DC Newman who, in circumstances which we shall describe, gave evidence to the court, does not believe he was present. Had he been present he would have expected to have endorsed the statement with his own signature.

Non-disclosure

18. Before the first trial commenced, junior counsel for the appellant made a written request for information from the prosecution. She required knowledge whether Ridger had acted as a police informant before the present occasion and, if so, on how many occasions and for what reward. She was informed that Ridger had been an informant without financial reward; favourable information had been given to courts before which Ridger had appeared as a defendant. In the case of Kearney, the question was asked:

"Has Kearney requested, or has he been promised, any favourable consideration in respect of his current sentence as a result of information given by him to the police in this case."

The answer to the question was "No".

At the time the reply was given it was accurate. However, during the second trial when, on 2 May 1996, Roy Kearney was being asked questions by Mr Gale on behalf of the prosecution, Kearney was asked:

"Mr Kearney, if you do not want to answer this question you have no need to do so, but I am asking you, have you ever been a police informant?"

Kearney answered "No" .

That answer, to use a neutral term, was inaccurate. As a matter of fact Kearney had been registered as an informant by the Kent Police on 21 March 1996 in circumstances which we shall describe shortly.

19. In cross-examination by Mr Patience QC on behalf of the appellant, Kearney was asked:

"Did you see some advantage to yourself in writing to the police in the way which you did to talk about this alleged conversation at Canterbury Crown Court?"

Kearney replied:

"No, I cannot get no advantage off it at all."

In fact, Kearney had, recently before the second trial, on 16 February, 27 March and 29 April 1996 been visited at the prison by DC Newman. Kearney was correct when he stated to the appellant's solicitors in 1997 that he had been visited on three occasions by DC Newman. On the first occasion DC Newman was accompanied to the prison by DC Wellard. We have received the evidence of Mr David Clapperton, then Detective Superintendent and Senior Investigating Officer ("SIO") in the investigation into Ms Quine's murder. Mr Clapperton told us that he received information that Kearney wanted to see DC Wellard, the officer to whom Kearney had made his statement. Mr Clapperton instructed that Kearney should be seen by an officer who was a regular handler of informants. The officer chosen was DC Newman. In consequence of his visit to see Kearney with DC Wellard on 16 February 1996, DC Newman wrote the following report to Mr Clapperton:

"Kearney is due to appear at Canterbury Crown Court for offences of being concerned in the importation of 30 kilos of cannabis and 3 kilos of amphetamine sulphate. The case is in the list week commencing 19 February 1996. This offence took place whilst he was out on a "town visit" from Elmley. It is a Customs and Excise prosecution. The case officer is Mr John Gregory from the London Investigation Unit. [Kearney] has requested should he be convicted of the offence a letter be submitted to the trial judge from the Detective Chief Superintendant informing the court of the fact that he has given evidence in respect of a murder trial and he is willing to do so again.

In view of the above outline circumstances I respectfully request that consideration be given to submitting a letter to the trial judge should he be convicted of the offence as described.

I would add that Kearney is a professional criminal who appears to be well connected within the criminal fraternity. He has indicated to me he is willing to give information whilst as a serving prisoner, and also after his earliest date of release, August 1997, if he does not receive any additional custodial sentence. I intend to register him as an informant and will complete contact forms covering all my dealings with him commencing from the 16 February 1996 visit."

20. Mr Hawes QC, counsel representing the appellant in this appeal, invites the inference that this information had not been passed on to the Crown Prosecution Service or to counsel representing the prosecution in the appellant's second trial. We have no difficulty in accepting Mr Hawes' proposition. Prosecuting counsel were plainly unaware, either that Kearney was to be registered as a police informant, or that he had been registered, or that he had been given a specific indication that a "text" would be sought by DC Newman from the Detective Chief Superintendant. We cannot imagine Mr Gale framing his question as he did if he had expected any other answer, nor can we imagine Mr Gale failing to disclose the true position upon Kearney's denial that he expected any advantage from his evidence. Mr Hawes correctly, in our view, submits that the jury was deprived of information relevant to their consideration of the reliability of Kearney's evidence. Sedley J, as he then was, had already ordered that Ridgers' informant status should be disclosed to the defence. It is highly improbable that the prosecution would have been permitted to rely on Kearney's evidence unless similar disclosure was made in his case.
21. DC Newman accepted in his evidence to this court that his further visits to Kearney on 27 March and 29 April 1996 may well have been concerned with the need to ensure that Kearney would attend the second trial to give evidence. We add that it would not be unusual for an officer in DC Newman's position to visit a witness such as Kearney to ascertain the witness's continuing intentions as to giving evidence. DC Newman insists, and we accept, that he prepared contact sheets recording his conversations with Kearney. They would have been placed in Kearney's informant file whose contents have since, by reason of the passage of time, been destroyed.

Kearney's appeal against sentence

22. On 2 May 1996 Ridger and Kearney gave evidence in the appellant's second trial, and on 9 May the appellant was convicted. On 22 July 1996 Kearney changed his plea to guilty of the further drugs importation offence. He was sentenced to 5 years imprisonment consecutive to his current sentence of 9½ years. Kearney appealed against his sentence but he was refused leave by the single judge. It is to be noted that it was at about this time and following Kearney's removal from HMP Elmley that he wrote his handwritten letter to the appellant. We have heard evidence from Mr Trotter. The increase in Kearney's sentence would have rendered him a category A prisoner who required removal to a more secure establishment. Having made his first statement to the appellant's then solicitors on 10 April 1997, the Court of Appeal heard, on 8 May 1997, the oral renewal of Kearney's application for leave to appeal against his sentence. The court granted leave and indicated a willingness to reduce the sentence from 5 years to 4 years imprisonment. The terms of the court's judgment are explicit in giving credit "to reflect the courage and co-operation this applicant showed on another occasion in the interest of justice". The court indicated that this was the order which would be made unless within 14 days Kearney made an application to the contrary. No such application was made. Kearney says that he was unaware of the reduction in his sentence and believed that he was still serving 14½ years imprisonment. It is unknown whether the court received only submissions from counsel or received a confirmatory text from the police. Mr Clapperton informed us that the "text" would have come from his Detective Chief Superintendent. Had a text been provided, he, Mr Clapperton, would have been notified. He cannot remember receiving any such notification. There is no doubt that Kearney felt a burning sentence of grievance. He had been led by someone, so he says, to expect a sentence of 18 months - 2 years imprisonment, perhaps concurrent to his existing sentence.
23. On 19 June 1997 the appellant was again visited by his then solicitors and made revisions to his statement which, as we have said, Kearney refused to sign. In interview with the CCRC he maintained the truth of that retraction. In a handwritten statement of 3 May 2011, taken by the appellant's present solicitors, Kearney repeated that his retraction was true.

Ground 2 - Kearney's 'fresh evidence'

24. We received the oral evidence of Roy Kearney, upon the application of the appellant, with a view to making a decision whether to admit his evidence under section 23 Criminal Appeal Act 1968 in support of the appellant's second ground of appeal. We have also received the evidence of DC Newman, Mr Clapperton and Mr Trotter, called on behalf of the respondent by Mr Dennis QC. In essence Mr Kearney repeated the account he had given in his unsigned retraction statement subject to changes in detail which, no doubt, can be explained by the passage of time. His evidence was that prison officer Trotter made a proposition to him that he should give false evidence against the appellant at his trial. He was provided with a script by Mr Trotter, inserted that night under the door of his cell, which he read, memorised and destroyed. He then wrote to the Maidstone incident room. As a result, DC Wellard came to take his statement which he dictated to him.
25. We have no hesitation in rejecting Roy Kearney's evidence as to the corrupt proposition from Mr Trotter as manifestly untrue. First, we note that Kearney has never suggested that it was proposed to him that he would be "planted" in a cell with the appellant; only that, having been placed in a cell with the appellant, Mr Trotter afterwards told him what to do if he wanted to gain an advantage for himself. We have examined the terms of the letter written by Kearney on 20 July 1995. Its purpose was clearly to tantalise the investigation by his knowledge of Steadman's guilt. It betrays no sign that the writer was making contact in consequence of any pre-arrangement between the police and Mr Trotter, or even on the advice of Mr Trotter. Kearney was explicit in his evidence that the letter was of his own composition.
26. Secondly, the witness statement made on 26 July 1995 to DC Wellard is so packed with circumstantial detail that we find it impossible to accept that the account then given by Kearney was contained on two sheets of A4 which he memorised overnight before destroying the evidence.
27. Thirdly, as Kearney himself proposed to the CCRC investigator, the only sensible source of Mr Trotter's information, if Kearney's account was true, can have been Ridger or the police or both. However, the account given by Kearney in his witness statement is redolent with detail which was not contained in Ridger's witness statement. There are, furthermore, details which were not otherwise available to the investigators, and which in some respects differed from the account given by Ridger. We need refer only to the principal features revealed:

(1) Kearney said in his statement that he was told that the argument which led to Ms Quine's death erupted upon Ms Quine's insults towards Steadman's deceased step-father, Bob Currie; Ridger, on the other hand, had told the police that the argument which led to Ms Quine's death was her threat to expose Lynnis Keily for a DSS fraud;

(2) Kearney referred to the deceased as Sharon Quine in his witness statement; Ridger referred to her as Sharon Griffiths;

(3) Ridger gave an account of Ms Keily's involvement in the killing as described to him by Steadman; Kearney gave no such account;

(4) Kearney said in his statement that Steadman complained that he had been "stitched up" over some blood allegedly found on the bed. The bed, he said, was not present at the time; Ridger gave no such account;

(5) Kearney said that Steadman told him that he and Ms Keily decided to bury the body near Ms Quine's home town so as to place distance between her body and the place where she was killed in New Cross; Ridger made no reference to Steadman's purpose;

(6) Kearney described in his statement how Steadman had driven from Headcorn to Plaistow in search of an alibi; having received no reply from his ex-girlfriend's address, they returned south of the river via the Rotherhithe tunnel where they were stopped by the police. None of this was mentioned by Ridger. In his evidence at trial, the appellant accepted that he had indeed visited his former girlfriend. He claimed that was in order to see his daughter;

(7) According to Kearney, Steadman claimed there would be no forensic evidence under Ms Quine's fingernails because he had knocked her out first; Ridger made no reference to such a claim by Steadman;

(8) Kearney said that Steadman claimed to have found the witnesses to say that Ms Quine was still alive several days after the probable date of death; no such report was made by Ridger;

We find the idea that this information was fed to Mr Kearney by Mr Trotter to be wholly implausible. The SIO, former Detective Superintendant Clapperton, informed us that several of the details provided by Kearney came from no other source, specifically that the argument which led to Ms Quine's death was over Steadman's step-father; that Steadman was claiming to have been "stitched up" as a result of what Kearney reported was blood found on the bed; that a deliberate decision was made to bury the body in Ms Quine's home town so as to avoid a connection with New Cross; that before Steadman and Keily were stopped in East India Dock Road, they had been north of the river in an attempt to collect an alibi; that Steadman believed there would be no forensic evidence under Ms Quine's fingernails; that Steadman was claiming to have found the witnesses who would say Ms Quine was still alive after the probable date of death. Mr Clapperton informed us that the deceased was indeed known by two names. The blood to which Kearney was apparently referring was not on the bed but under the bed, indicating a misunderstanding rather than an invention. It was true that Ms Quine had been convicted of cheque offences using the name of Griffiths. For present purposes, the issue is not whether Kearney told the truth at trial as to Steadman's comments and confession but whether Kearney, realistically, could have acquired this information from PO Trotter. We are quite satisfied that he did not.

28. Fourthly, upon Kearney's account, he met Mr Trotter on one occasion only for a period of about 20 minutes after he had been returned to HMP Elmley from Canterbury Crown Court. Roy Kearney and Mr Trotter both gave evidence that there had been no meetings or dealings between them before that meeting, nor did Mr Trotter have any meetings or dealings with Kearney afterwards. Kearney was, at the time, sharing a cell with another inmate. As Mr Dennis QC has argued, it is simply not credible that Mr Trotter would have taken the risk of exposure by propositioning a man he did not know, of whose reliability he was unaware, and who had not before acted as an informant. Mr Kearney's explanation in evidence was that any risk of Mr Trotter's exposure was eliminated by Kearney's knowledge that, as between himself and Trotter, he would never be believed. That may be a reason why Mr Kearney would not have sought to expose Mr Trotter, if propositioned, but that is not the point. The question is whether it is remotely credible that Mr Trotter would take such a risk with a man he did not know. We are quite sure that it is not.
29. Fifth, had Mr Trotter propositioned Kearney as Kearney claims, we have no doubt that there would have been further communication between them. Mr Trotter would have had, on Kearney's account, the closest possible interest in ensuring that the man he had propositioned remained willing to proceed with his undertaking. Throughout the period between 20 July 1995 and Kearney's appearance in the second trial on 2 May 1996, Mr Trotter was, if Kearney was telling the truth, at risk of exposure, yet Kearney accepted that there was no attempt by Mr Trotter to engage with him. Further, according to Kearney's statement to the appellant's then solicitors, he saw DC Newman three times. The evidence is that DC Newman became personally involved on the dates identified, shortly before the second trial. On Kearney's account, no-one else appears to have been nurturing Mr Kearney either.
30. Sixth, we have heard the evidence of Mr Clapperton, Mr Trotter and DC Newman. We are quite satisfied that they were telling us the truth. The impetus for Kearney's information came from Kearney himself and no-one else. There was no envelope under the door of the cell and there was no proposition from either Trotter or Newman. That finding, we consider, has implications for the underlying truth of Kearney's evidence at trial, an issue to which we shall return later in this judgment.
31. Seventh, on 17 July 1999 Kearney wrote to DC Newman from HMP The Mount in the following terms:

"Dr Mr Newman

Just a quite [sic] note to let you know I'm still in prison and have failed to obtain parole. Even got a knock back due to helping your murder case! I thought you should know this. I was removed from HMP Maidstone because I was seen by another inmate who knew Steadman and the knock back on my parole reason said "was moved from HMP Maidstone due to threats from other inmates". Maybe you could contact the parole board and tell them the reason why I was moved and that it was not my own doing. Why I'm writing to you, I thought you may be interested in a matter regarding Lyn and Megan Russell. Having spent 5 weeks at HMP [redacted] two names came to light regarding this murder. Both of these people were at the scene [redacted]. Maybe you should seek advice from Michael Stone. Good luck

R Kearney"

According to Kearney's unsigned witness statement of 1997, and his evidence to this court, he was an embittered man who believed he had been corruptly used to convict an innocent man and then abandoned. We find the contents of Kearney's letter to DC Newman utterly inconsistent with such a belief. We entirely accept that Kearney believed that he had been let down by the police, but we reject his assertion that his original evidence was fabricated. His letter of 17 July 1999 is, in our view, explained by the fact that two years after Steadman's trial, as he was approaching his release date, Kearney had regained a sense of proportion and was again offering his services to DC Newman in his capacity of informant. He was again seeking advantage by enlisting DC Newman's support. The difficulty for Mr Kearney is that having, in pique, in the meantime committed himself to a wholly fanciful retraction story, he has had to maintain it because he has been pursued not only by the appellant's solicitors but also by the CCRC. Having secured his immunity from prosecution for perjury at the original trial Kearney feels safe giving his present account. Mr Hawes argued that Kearney runs the risk of being prosecuted for perjured evidence in the Court of Appeal, a risk he would have been unlikely to take. In our judgment the truth is more prosaic. As Mr Kearney acknowledged in his evidence he had already failed to answer two requests to attend hearings in the Court of Appeal.. He was undoubtedly a reluctant witness. He claims that he felt intimidated by the police. We have no doubt that, for Mr Kearney, it was simpler to stick to the false retraction than to disavow it. We conclude that the evidence given by Roy Kearney as to the truth of his retraction is not capable of belief and, for that reason, does not afford the appellant any ground of appeal. We therefore refuse leave to appeal upon Ground 2.

Ground 1 – non-disclosure

32. We turn therefore to ground 1. Having accepted that a meeting did take place between DC Newman and Roy Kearney on 16 February 1996 (which may or may not have included DC Wellard), and having also accepted that the subject of discussion was the provision of a letter from the police to Kearney's trial judge and DC Newman's intention to seek Kearney's registration as an informant, we also accept that the jury in the appellant's trial was misled as to the true position regarding Kearney's motivation. In particular, at the time he gave evidence in the second trial, Kearney had a specific interest to serve in giving evidence in the appellant's trial in accordance with his witness statement which he expressly disowned. The issue which arises is whether, by reason of non-disclosure, the fairness of the appellant's trial was affected so as to render the verdicts of the jury unsafe.
33. We have already concluded that Kearney's retraction statement was false. It seems to us that there is little or no room for a half-way house in which Kearney's claim of pressure from the police and Mr Trotter was false, but his claim to have lied at Steadman's trial was true. Kearney has never suggested that he exaggerated and has always resolutely denied that he obtained any of his information from the appellant's case papers. As we have said, there was material in Kearney's witness statement which could not have come from the case papers. Steadman did not claim that he had provided any detail of his case to Kearney which Kearney could afterwards have manipulated. The two men were not lodged in the same block at HMP Elmley and they never saw one another again until Steadman's trial. The detail of Kearney's description of his conversation with Steadman at Canterbury Crown Court was such that, in our view, the underlying truth of Kearney's account at trial is transparent. The possibility cannot, of course, be excluded that discrete parts of his evidence at trial were exaggerated or inaccurate. These were, however, matters which the jury considered before returning their verdicts of guilty.
34. What then would the jury have learned if full disclosure had been made before the appellant's second trial? The jury would have been told that Kearney had not before acted as an informant; that he had volunteered his assistance to the police; that he had agreed in principle to become a registered informant; that he had recently been registered; that he had sought from the police an assurance that the court by which he might shortly be sentenced for drug trafficking would be informed of the assistance he had given; that Kearney reasonably expected a reduction in his sentence for his assistance. Mr Hawes submits that although the jury was warned of the need for caution it might be that the jury drew a distinction between the evidence of Ridger (who was a registered informant) and Kearney (who they understood was not). We therefore turn to the terms of the judge's direction at page 58E of the transcript of his summing up:

"Obviously, ladies and gentleman, you will scrutinise the evidence of Mr Ridger and Mr Kearney with the greatest possible anxiety and care. They are both criminals. They both have substantial criminal records. They both would have – and certainly Mr Ridger would have – very good reason for wishing to, as it were, ingratiate themselves with the police with enquiries into serious crime in the hope and expectation that if they were, or purported to be, helpful then they might expect to have that information passed confidentially, as it is on suitable and proper occasions, to the judge of trial which the judge may be prepared to, if he thinks it appropriate to do so, to take into account when passing sentence on the person who has given such assistance to the police."

It must have been obvious to the jury, despite Kearney's claim that he had nothing to gain by giving evidence, that there was a real possibility that he thought he did; hence, the terms of the judge's direction. The judge proceeded to direct the jury to concentrate on the question whether it was possible that either Ridger or Kearney had gleaned information about the case from anyone other than Steadman himself and utilised that information to his own possible advantage. In our judgment, that is exactly what the jury would have done. We have already drawn attention to some of the circumstantial detail to which Kearney descended in his witness statement and evidence. We do not consider that if the jury had been given full information about Kearney's status and probable motivation, the nature of their task would have been significantly different from that which they undertook following the judge's directions.

35. Furthermore, had Mr Patience utilised the information with which he should have been provided, it must have emerged before the jury that Kearney's motivation for giving evidence had been revealed shortly before the second trial began. That information would, however, have left untouched the circumstances in which Kearney came to make his offer to give evidence in the first place. The prosecution would have been entitled to demonstrate, through Kearney's letter of 20 July and his statement of 26 July 1995, that the offer was made to the incident room on the day after the meeting between Kearney and Steadman at Canterbury Crown Court, and that he had then given a full and detailed account. Indeed the terms of Mr Patience's question to Kearney in cross examination (see paragraph 19 above) suggests that the jury knew at least in general terms of the letter and its circumstances. At that stage there can have been no question in Kearney's mind that he might be registered as a police informant, nor that he had any guarantee of assistance from the police. The evidence of DC Newman's conversation with Kearney on 16 February 1996 would undoubtedly have revealed that by the time of the second trial Kearney had an expectation of advantage should he repeat the evidence he had given during the first trial. However, for the reasons we have given we do not take the view that cross-examination of Kearney with the benefit of full disclosure would have undermined the credibility of his account of his conversation with the appellant.
36. We do not accept Mr Hawes' submission that there would have been available to the defence a realistic suggestion of complicity between Ridger, Kearney and the police. We do not accept that cross-examination of the relevant police officers had any real prospect of exposing what Mr Hawes' suggests may have been a deliberate decision not to make disclosure. We accept the evidence of Mr Clapperton that the individual whose responsibility it would have been to raise these matters with the Crown Prosecution Service and prosecuting counsel would have been Detective Inspector Townsend, the disclosure officer. We have not heard from DI Townsend. However, Kearney himself gave evidence to this court that he was surprised to hear that he had been registered as an informant in March 1996. He did not regard his reply to Mr Gale as an untruth at the time he gave it. DC Newman confirmed that he could not himself have registered Kearney as an informant. He could and did make a recommendation which would be submitted to his superiors who would make the decision. Ridger's informant status had already been notified to the CPS and prosecuting counsel for the purpose of making a PII application to Sedley J. Ridger was a comparatively long-standing informant. Kearney had not before his offer to give evidence in Steadman's trial acted as an informant on any occasion. The solicitor for HM Customs and Excise prosecuting Kearney for his further drugs importation was informed of the assistance Kearney was giving in the Steadman prosecution in February 1996. We conclude that the failure of disclosure to the prosecution and the appellant's solicitors was a product of a combination of circumstances: first, that Kearney had only recently been in conversation about a text and the possibility of becoming an informant, second, that DC Newman was not a permanent member of the investigating team, third, that having made his report DC Newman properly left the matter to his superiors, fourth, that the disclosure officer did not give proper attention to DC Newman's report to Detective Superintendent Clapperton. The cause of non-disclosure was lack of care and not deliberation. We can find no basis upon which to conclude that the defence could advance a realistic argument that the prosecution team was deliberately kept in the dark. On the contrary, as it seems to us, the overwhelming interest of the prosecution would have been to make disclosure and to rely on the sequence of events which led to Kearney's appearance in the witness box. Kearney's recent status as informant, arising as it did from his offer to give evidence in the trial, if anything, supported his credibility.
37. We turn to the evidence of Ridger. The judge pointed out to the jury that Ridger had given details to the police which could not have come from the evidence gathered in the investigation. First, it was Ridger who, for the first time, said that Steadman had admitted removing tiles above the bath for re-painting. That was confirmed. Second, Ridger said that Steadman described the cord used to tie up the deceased's body as washing line, not flex as appeared in the witness statements. The cord was exhibited. It was not electric flex; it was washing line. Although the officers in the case would have known that the exhibited cord was not electric flex, it has never been suggested by Ridger, either on enquiry by the CCRC or by the appellant's solicitors, that he was complicit in receiving information from the officers. On the contrary, he has stoutly denied any such suggestion. Third, the fact was that the cloth in which the body was found wrapped was a builder's dust sheet. That fact was deliberately not published. Ridger's knowledge of the wrapping was confirmed by the painter, Mr Corcoran, who said in evidence that one of his dust sheets had indeed gone missing from Ms Keily's flat. He arrived with four to commence his work and left, finally, with three.
38. Just as the circumstantial detail of Kearney's evidence was impressive so also, in our view, was Ridger's. Such differences as there were between the two accounts could not be explained by the undue influence of the police or anyone else, but they could be explained by variations in the details of the appellant's unwary remarks on two completely separate occasions, spaced some time apart, to two different listeners.

Conclusion

39. We have well in mind the need not to substitute our own view of the evidence for that of the jury. The conclusion we have reached is that with full and proper disclosure the task of assessing Kearney's reliability would have changed little either the landscape of the trial or the jury's deliberations upon the evidence. The judge invited the jury to treat with caution Kearney's assertion that he had nothing to gain from giving evidence. Had Kearney's actual motive been exposed the jury would have been directed to exercise the same caution. Their judgement of Kearney's evidence would, in the end, have rested where the learned trial suggested it would, in their examination of the question whether the evidence given by Kearney could have come from any other source than the appellant. As our examination of the relevant events demonstrates, there was nothing capable of disturbing the jury's conclusion that it did not. In our judgment, the circumstantial case was compelling, the verdict is safe, and the appeal must be dismissed.