England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
TEESIDE CROWN COURT
MR JUSTICE EDWIN JOWITT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2016

Lady Justice Macur:

1. On 10 November 2000 the appellant was convicted of murder and sentenced to imprisonment for life with a minimum term of 15 years.
2. The appellant's co-defendants, Mark Graham and Stephen Ham were also convicted of murder. A fourth defendant, Pamela Wilkinson, who was Ham's girlfriend, had been acquitted by direction of the judge in a previous trial.
3. On 3 April 2003 the Court of Appeal dismissed the appellant's appeal against conviction.
4. The Criminal Cases Review Commission ("CCRC") now refer his conviction to this court pursuant to s.9 Criminal Appeal Act 1995 on the basis of:

"Material non-disclosure of police contact with Mrs Clark at 08.00 on 21 May 1999, prior to her statement of the same date, which could now be said to cast further doubt upon the clear assertion made by Mrs Clark that the date of Mr Embleton's visit to her home with an injured hand was 21 April 1999."

5. Further, the appellant renews his application for permission to appeal by reason of:

i) the prosecution's failure to disclose that DC Hopson was under investigation at the time of the trial for serious misconduct and perverting the course of justice;

ii) the nature of the relationship between DC Hopson and Mrs Clark and her daughter;

iii) Mrs Clark's motivation to lie in order to curry favour with DC Hopson to avoid prosecution for the offence of handling stolen goods;

iv) other disclosure issues.

Background facts

6. Mohammed Sharif was a 67-year old man who lived alone in Middlesbrough. He led a solitary existence collecting discarded electrical equipment at night which he stored in his house and back yard. At 04.00 approximately on 21 April 1999 Mr Sharif was attacked at his home address. His injuries included extensive bruising to his neck and throat, extensive bruising to his head with underlying damage to his skull, a fractured eye socket, black eye and four fractured ribs. Each of the injuries was caused by a severe blow, such as a punch, kick or stamp, although the rib fractures could have been caused by a fall against an object or onto a step. The bruising to his neck and throat caused bleeding into the tissues surrounding the windpipe, resulting in a slow asphyxiation, aggravated by the other injuries. He died several hours later.
7. The prosecution case was that Mr Sharif had disturbed the appellant and his co-accused during a burglary and was attacked by them. Graham admitted participation in the attack on Mr Sharif and offered a plea to manslaughter. He did not give evidence at the trial. Ham admitted that he was present at the scene but denied participation. The appellant denied that he was at the scene and relied on a defence of alibi.

The trial of the appellant

8. On 21 May 1999 the appellant was arrested for the murder of Mr Sharif. In interview, he admitted knowing Ham but denied that he knew or had ever met Graham. He denied involvement in the burglary and the attack on Mr Sharif. He stated that he was not there; he spent the night with his girlfriend, Tracy Wright-King at her hostel.
9. Three key pieces of evidence were relied on by the prosecution at trial.

Ham's evidence

10. Ham gave evidence at the trial that the appellant was present at the scene. He said that he and Pamela Wilkinson had gone with Graham to Mr Sharif's house to steal electrical goods from the yard. Mr Sharif had disturbed them, there was an altercation and they left.
11. Later that night, at about 12.30am, they went out again and met the appellant. Graham told him they were going "to do a job" and the appellant agreed to go with them. They returned to Mr Sharif's house but did not expect him to be there. The appellant assisted Graham to get over the wall and he then opened the gate to the yard. Mr Sharif was there. Ham saw Graham push Mr Sharif to the ground. When Mr Sharif got up, holding his left side, Graham punched him several times to the head and upper body, and he fell down. Ham did not see the appellant hit Mr Sharif but on the way home the appellant said to him "Keep it shut or you'll get hurt".
12. It was agreed that the appellant had assaulted Ham in the street ("the black eye incident") on 26 April 1999. Ham said at trial that the appellant hit him as a warning not to say anything about the events of 21 April 1999 and again told him "Just keep it shut".
13. Ham had numerous previous convictions and had made a number of contradictory statements to the police in interviews and written statements which at trial he said were untrue. Initially, he stated that he was not at Mr Sharif's house on the night of the murder and was not involved. The black eye incident was not related to the murder but concerned a dispute with the appellant about money and a dog. Subsequently, he stated that he was at the scene on 21 April 1999, with Pamela and Graham, but that he witnessed events from a distance and saw Graham assault Mr Sharif. It was not until his third statement on 23 May 1999, more than a month after the offence, that he implicated the appellant. Having been informed that Pamela had stated to police that the appellant was present at Mr Sharif's house on 21 April 1999, Ham changed his evidence and placed the appellant at the scene of the murder.

Forensic evidence - fibres

14. There was expert evidence, linking fibres, similar to those used to make the jumper worn by the deceased at the time he was killed, to the appellant. Seven matching fibres were found on three shirts worn by the appellant. It is likely that the fibres on at least two of the shirts originated in secondary transfer from the other shirt when all three shirts were bundled together in a bag that was left by the appellant at the house of Mrs Lindsey Clark, on 21 May 1999.
15. The expert's evidence was that there was strong evidence supporting direct contact with the deceased from matching fibres found on the clothing and furnishing of Ham, and on the furnishings at Graham's address. He stated that the findings in the appellant's case were the hardest to interpret, given the interval of four weeks between the murder and the appellant's arrest when his clothing was seized. Mr Grant identified three alternative explanations for the fibres found on the appellant's clothing, in order of probability. His preferred explanation was that the appellant was in significant contact with Mr Sharif, during which a large number of fibres was transferred, but in the intervening four weeks they were lost or transferred by washing or other transfer. A second possibility was that the fibres could have got onto the appellant's clothing by chance, but was an unlikely explanation. A third possibility was that there had been no contact with Mr Sharif and the presence of the fibres was the result of contact between the appellant and Mr Ham during the black eye incident, but that was still more unlikely. His conclusion was that the fibres provided moderate support for the view that the appellant had been in direct contact with the deceased.

Mrs Clark's evidence

16. Mrs Lindsey Clark said that the appellant turned up at her house at about 4am on 21 April 1999. His hand was bleeding and his knuckle was swollen, he was mumbling and very agitated. Her recollection was that he said: "I've just hit this lad. We've had an argument." She said she was able to identify the date of the incident as Wednesday 21 April 1999 because she collected her benefit in the morning and she recalled that she had two payment slips left in her benefits book at the time.

Defence case

17. The appellant's defence was that he was not present at Mr Sharif's house on the night of the murder and he relied on an alibi. The appellant said that he had spent the night of 20/21 April 1999 with his girlfriend, Tracy Wright-King, at her hostel. Earlier that day, the appellant went to Whitby with Tracy and another friend, Paul Mendum. The appellant crashed his car and they had to abandon it. They got a lift to the railway station but had no money for their fare, so they took a taxi back to Middlesbrough, where they ran off without paying. The appellant and Tracy changed some of their clothes at the hostel and then spent part of the evening at the house of friends, Paul and Christine Simms, before walking back to the hostel where the appellant sneaked in and spent the night. He left the hostel the next morning without being seen by any of the hostel staff.
18. The defence case was that Ham's evidence was completely unreliable, given the contradictions in his statements and changing accounts. The defence forensic expert, disputed the prosecution expert's conclusions in respect of the fibre evidence. His view was that it could not be assumed from the presence of 7 fibres at the date of examination of the clothing that transfer of a much greater number of fibres must have occurred on an earlier date. He thought the fibre transfer could have occurred from Ham's jacket, which he was wearing on the night of the murder and on 26 April 1999 during the black eye incident. The appellant denied he had visited Mrs Clark on 21 April 1999, although she did see him on a different occasion when he had injured his hand. On 29 April 1999 the appellant hit a youth called Andy Sinharoy in the face, as a result of which he injured his hand and required hospital treatment. Mr Sinharoy provided a statement to police, confirming the incident, but he was not called as a witness at trial.
19. Tracy Wright-King was called by the prosecution to give evidence at the trial. She was 16 years old at the time of the murder and was unable to read or write. In her first statement to the police on 21 May 1999 she stated that following the appellant's release from prison on 7 April 1999, she spent most of her nights with him, sleeping in cars, at her hostel or at the house of a friend, Sandra Pearson. She confirmed the details of the events on 20 April and said that she and the appellant spent that night and most of the next day at the hostel. On Wednesday night they stayed at Sandra's house and on Thursday night they stayed at the hostel, until the appellant was thrown out, at about 3am.
20. On 7 July 1999 Tracy was arrested for (i) making off without payment on 20 April 1999 and (ii) an attempt to pervert the course of justice as a result of her earlier statement made on 21 May 1999. No details are available of this latter allegation and no explanation was given by the officers during the interview which followed. She said again that she thought that she spent the night of 20 April with the appellant at the hostel, although she couldn't be sure because they also slept in cars, at Sandra Pearson's and at Lindsey Clark's during that period. She stated that she always slept with the appellant, save for one occasion when he was caught at the hostel and thrown out a few days after the crash (confirmed by the hostel records as 3am on Friday 23 April 1999). When informed that Mrs Clark said that the appellant arrived at Mrs Clark's house at 4am on 21 April 1999 with an injured hand, she responded that the only times that the appellant had cut his hand were the assault on Andrew Sinharoy and a subsequent car crash. She stated:

"…me and Embo and Lindsey sat outside talking about his hand when he went to hospital about cutting his hand when he hit Andrew Simmerton[ Sinarhoy] but he told the … hospital that … he went to punch a lad but he punched a wall instead…"

She was told that Ham said that the appellant was at the scene of the murder and there was forensic evidence to confirm this. Although she initially denied this could be so she became upset and started to cry and agreed with a suggestion that she couldn't say that he was with her on the night of the murder.

21. Following the interview, she made a second statement to this effect.
22. She gave evidence at trial that she could not recall whether the appellant had been with her on the night of 20/21 April 1999.

New information disclosed

23. On 20 May 1999 Mrs Clark contacted the police. She spoke to DC Todd and reported her concern that items left at her home by the appellant might be stolen. On 21 May 1999 Mrs Clark was contacted by DC Todd by telephone. She was informed that the appellant had been arrested and the reason for the arrest. DC Todd's report records that in response, Mrs Clark stated that the appellant had visited her some 2-3 weeks before at 3-4am and said that:

"he hit someone and had bust his right hand. His r/hand was swollen and his knuckles grazed. He stated that he was going to hospital to have his injuries checked. He had stated [that] Tracy was with him when he had hit the man."

24. Mrs Clark was asked to make a statement later that day to DC Hopson. She did so but it did not include the words in bold above.
25. The potential significance of her initial statement was recognised by police because a year later, on 30 May 2000, Mrs Clark was seen by DC Hopson and asked to clarify the information she gave. DC Hopson recorded that Mrs Clark stated:

"DC Todd is wrong in that Tracy Wright-King, although Embleton's girlfriend at that time, was not with Embleton when the assault took place."

26. On 5 June 2000 DC Todd recorded in a memo that:

"I may have been mistaken when associating Wright-King being present at the scene of the crime, when she may have been present when Embleton was in attendance to Clark's home."

27. The report was not disclosed to the defence. Mrs Clark's evidence at trial did not include the matters referred to in bold above.

Submissions for the Appellant

28. Mr Atkinson QC, now acting on behalf of the appellant, submits that the report and associated recorded actions should have been disclosed to the defence prior or during the appellant's trial. It was patently relevant because it had the potential to undermine Mrs Clark's assertion that the appellant's visit had taken place on 21 April 1999.
29. That is:

i) explicit reference to the visit occurring at 3-4 am suggests that it is the same incident in respect of which Mrs Clark gave evidence at the trial;

ii) Mrs Clark first said that the appellant's visit occurred some 2-3 weeks before, which would place the timing of the visit between 29 April 1999 and 5 May 1999;

iii) Mrs Clark said that the appellant told her he was going to hospital to have his injuries checked. The only recorded hospital visit by the appellant took place on 29 April 1999 when he was treated for an injured hand. The appellant's case was that he sustained an injury to his hand for which he required hospital treatment as a result of his assault on Andy Sinharoy on 29 April 1999. Medical records indicate that the appellant attended Middlesbrough General Hospital at 11.01 on Thursday 29 April 1999. He had a swollen right little finger knuckle, which was tender, and two small lacerations with an abrasion over the same knuckle. Although the appellant insisted that he had caused the injury by punching a wall, the treating doctor believed that he had punched someone in the teeth. In his opinion this was a new injury as he placed an iodine dressing on it.

iv) Mrs Clark first said that Tracy was present when the appellant assaulted the lad. No one has suggested that Tracy was present at the burglary or assault on Mr Sharif but she was with the appellant when he assaulted Mr Sinharoy.

30. If Mrs Clark was wrong about the date on which she saw the appellant with an injured hand caused by assaulting a man, this would remove a substantial plank from the prosecution's case. The remaining evidence, that of Ham and the 7 fibres, was unreliable and weak. Considering the evidence as a whole, the conviction would be unsafe.

Submissions for the Crown

31. Mr. Brooke, who appears on behalf of the respondent and was junior prosecution counsel at trial, accepts that the material which has now been disclosed should have been disclosed to the defence at the time of appellant's trial. In our view this concession is clearly correct. However, he submits that the undisclosed report, on proper analysis, does not in any material degree affect the credibility of Mrs Clark's evidence. That is:

i) Mrs Clark's first recollection that the appellant's early morning visit was "2-3 weeks before" the 21 May 1999 is of relatively little value. This appears to be a casual expression rather than an inconsistency in her evidence. When Mrs Clark made her witness statement the following day, she identified a particular date, namely, 21 April 1999, by reference to her benefit book;

ii) the appellant's stated intention to seek hospital treatment is not inconsistent with the suggestion that the visit occurred on 21 April 1999. The assault on Sinharoy took place around 9.20 am on 29 April which would not explain the appellant turning up at Mrs Clark's house at 3-4 am. Sinharoy stated that the punch did not hurt much and the appellant did not appear to be bleeding. The defence did not call Andrew Sinharoy to give evidence at the trial. The appellant's account was that following the assault on Sinharoy and prior to attending hospital, he went to the John Paul Centre, where he was treated by Father Frank, which is inconsistent with a bleeding wound cleansed by Mrs Clark at 4 am;

iii) Mrs Clark not only dated the week from her benefit book but also the date of the week, i.e. Wednesday (21 April) as opposed to Thursday (29 April), because that was the day of the week on which she collected her benefits;

iv) the appellant admitted that he had on one occasion accompanied Mrs Clark to collect her benefits albeit he claimed it was a different occasion;

v) the reference to Tracy's presence at the assault was simply a mistake on the part of DC Todd and was not repeated in Mrs Clark's witness statement.

32. The conviction is safe having regard to all of the evidence in the case. Ham's unreliability has been overstated; the trial judge gave careful and appropriate directions to the jury and it was a matter for the jury to determine. The fibre evidence is now considered to be stronger, in that re-examination of the fibres has shown a more distinct colouration than was appreciated at the time of the trial. This increases the probability that the fibres found on the appellant's clothing are a match for the deceased's jumper. The prosecution expert remains of the view that they provide moderate support for the proposition that the appellant was in direct contact with the deceased. Taking into consideration all of the evidence in the case, the matters relied on by the appellant do not provide any material support for the argument that the conviction is unsafe.

The renewed application for permission to appeal.

33. The renewed application for permission to appeal relies upon grounds which emanate from the appellant's submissions to the CCRC on 11 November 2010. Annex C of the "Statement of Reasons for a Reference to the Court of Appeals" dated 30 July, 2015 contains a detailed and comprehensive analysis of these matters. We have no doubt that the CCRC have given anxious and detailed consideration to all submissions made by the appellant or on his behalf. Nevertheless, we have considered them independently. Having done so, we dismiss the renewed application for permission to appeal on these grounds. We are not satisfied that, separately or cumulatively, they undermine the safety of the conviction.
34. In summary, the discipline and complaints records for DC Hopson do not relate to the appellant's case; he was in any event cross examined to the effect that he had 'planted' key information – that is the date of the appellant's visit to Mrs Clark's home and had been dishonest in relation to evidence which he claimed to have seen in a benefit book; his other direct involvement in the collection of evidence related to seizing the appellant's clothing which, when subject to scientific examination revealed weak supporting evidence to associate the appellant with the deceased.
35. There is no evidence to suggest the relationship between DC Hopson and Mrs Clark was central to the information she gave to the police initially and subsequently in witness statements, nor led her to falsify the same. Mrs Clark's initial information, and that subject to the reference as relevant and not previously disclosed, was made to another officer, not DC Hopson. The information recorded then and which now is disclosed is, as indicated in this judgment, of significant benefit to the appellant's case on appeal.
36. Other disclosure issues have been thoroughly investigated and subject to the review of the full Court of Appeal on 25 November 2015 when giving directions in this case. There is nothing of assistance to the appellant.

The Reference

37. We remind ourselves that in the case of non-disclosure, the first question for this court is whether the material withheld from the defence was material which ought to have been disclosed. If the answer is yes, the second question is whether, in the light of such non-disclosure, the appellate court considers that the conviction is unsafe. (See R v Pendleton [2001] UKHL 66; Mushtaq Ahmed v The Queen [2010] EWCA Crim 2899; R v Burridge [2010] EWCA Crim 2847; R v Jason Garland [2016] EWCA Crim 1743.)
38. The single ground on which the reference is made relates to information recorded by DC Todd as provided on 21 May 1999 by Mrs Clark, with whom the appellant had deposited stolen property for safe keeping, and after she had been informed by DC Todd that the appellant had been arrested on suspicion of murder. See paragraph 23 above. DC Todd described the information he recorded on the report as "significant".
39. This evidence is admissible in the appeal pursuant to section 23 of the Criminal Appeal Act 1968. That is, (i) the evidence appears capable of belief; (ii) it may afford ground for allowing appeal; (iii) it would have been admissible in proceedings on issue subject to appeal; and, (iv) the prior non-disclosure provides a reasonable explanation for failure to adduce it at trial.
40. Mrs Clark gave evidence at trial concerning the visit and said she was certain as to the date of the visit by reference to a benefits book. In her statement of 21 May she said that the first payment of her new book was cashed on 5 May and she was clearly able to remember one full page covering two payments left in old book. On this basis, she stated that the appellant's visit with an injured hand had been during the early hours of 21 April 1999, and at a time which would otherwise have provided the appellant with an alibi to the murderous attack upon Mr Sharif.
41. With all due exception to the point of timing of the visit, which leading defence counsel understandably deployed to undermine the prosecution case against the appellant, the fact of the appellant's appearance with an injured hand and reference to assault on a date which Mrs Clark settled upon and was the day of the murder was obviously significant and compelling evidence, probative of guilt.
42. In summing up her evidence to the jury, the trial judge said: "Now the important question is, when did this visit take place?"
43. The first appeal against conviction had been launched on the basis of "a lurking doubt", it being argued that the jury must have rejected Mrs Clark's evidence as to the visit, which gave the appellant an alibi, since the timing of the murderous assault would not have enabled his presence some distance away at 3 – 4 am. On 3 April 2003 the Court of Appeal rejected the submission saying: "..we do not accept these submissions. Mrs Clark's evidence was capable of supporting both sides cases if she got the date right. If she had got the time slightly wrong it supported the Crown. If she had got it right it destroyed the appellant's alibi but gave him another one. The judge directed the jury as to these possibilities…."
44. Clearly, the issue and nature of the non-disclosure had not then emerged. The Court of Appeal reasonably considered the possibility of the jury accepting Mrs Clark's evidence regarding date but accepting an error of timing. In these circumstances, her evidence was corroborative of other strands in the prosecution case which were admissible against the appellant.
45. We accept, without hesitation, that the fact that the appellant injured his hand on the 29 April 1999 does not preclude an earlier injury on the 21 April. The appellant was not averse to settling his disputes with his fists, and commented during interviews that an old injury over his knuckles had the tendency to open up. The fact that he said he was intent on going to the hospital did not mean that he did. Apparently, he had mentioned a similar intent in relation to the injuries he and Tracy sustained during the car accident on 20 April to another individual earlier on that day, although this did not involve an injury to the hand, and which was not followed through. We accept that Mrs Clark was convinced of her dates by reference to an extraneous source associated with what she said was the habit and custom of the appellant, and that several unsatisfactory factors implicit in her, and DC Hopson's, dependence on the same were investigated at trial. We observe that DC Todd questioned his own record when, one year after the event Mrs Clark challenged the accuracy of the contact note. We are aware of the vagueness of expression which refers to 2-3 weeks and which should not necessarily be endowed with precision of an actual date and that details concerning the assault on the 29 April were not explored at trial, and the appellant's denial of any similar visit to Mrs Clark as recalled by her young daughter, albeit on a different date would not necessarily have carried the day. However, we are not persuaded that these submissions of Mr Brooke, ameliorate the impact of the newly disclosed material, adequately or at all, when considering the safety of the conviction.
46. We are satisfied that Mrs Clark's evidence as to the date of the visit is undermined significantly by the information now disclosed. Although there were three confirmed incidents when the appellant assaulted different individuals proximate to the date of the murder, only on one of those occasions, namely on the 29th April 1999, was there an assault which it is accepted was witnessed by 'Tracy'and which did result in a hospital visit on that day. These two associated factors entirely preclude the visit reported by Mrs Clark to be the assault upon Mr Sharif. As it is, but not bearing the same weight for the reasons indicated above, the visit to the hospital on 29 April, actually does fall within the time frame suggested by Mrs Clark. We consider Mrs Clark's first recorded recollections to be entirely consistent with this particular assault on 29 April, but for the timing of the visit. Since that timing was dubious whether on the prosecution or defence case, we assess the import of her account to be the description of the wounds, that the appellant was said to have reported that Tracy was present at the time of the relevant assault, and the stated intention of the appellant to obtain medical treatment for it.
47. We are entirely dismissive of the validity of the subsequent investigation into this report some 12 month later and the resultant claim of Mrs Clark that she was misquoted or of Mr Todd that he may have been mistaken. It is not suggested that, on 21 May 1999, DC Todd had independent knowledge of the assault which took place on 29 April in the presence of Tracy and did result in a hospital visit. He would not have been in a position to elide two visits into one. Mrs Clark may have done, as is clear from an examination of the transcripts of her evidence. That is, she did indicate that the appellant had visited on days other than a Wednesday. She did refer to a visit on another occasion at an unusual time in which to deposit stolen goods.
48. We are satisfied, however, that the fact of the investigation into the detail of this log recognised rightly the significance of the information contained within it. This detail was unknown to the jury. Speculation as to whether defence counsel actually would have made use of the material does not inform this court's determination.
49. We have considered the strength of the other admissible evidence which the prosecution relied upon against the appellant, namely Ham's evidence and the fibres found on his clothing, independently of Mrs Clark's evidence.
50. In his summing up the trial judge described Ham's evidence as "obviously highly controversial, virtually in its entirety" and to be treated "with great care". The Court of Appeal in 2003 thought that there were "obviously good reasons for saying [Ham's] evidence was wholly unreliable". Having regard to the chronology of his many and differing accounts, including in oral evidence, we agree. We bear in mind, however, as did the Court of Appeal in 2003, that Ham "stuck to his account" in oral evidence at trial.
51. As to the fibres, despite the re-examination of the same which was able to make more positive attribution of origin to Mr Sharif's jumper, the prosecution expert did not change his opinion that the number of fibres only provided "moderate support" of his presence at the scene. That is level 5 on a 7 tier scale, with 7 as the weakest.
52. Whilst the appellant's predisposition to violence and admitted lies concerning other matters are unattractive in the scope of a murder trial, we do not consider that they strengthen the prosecution case. The failure of Tracy to provide evidence of a certain alibi is irrelevant for our consideration, the more particularly so by reason of an unsatisfactory mode of interview and the absence of any intervention on behalf of a vulnerable minor, as she was, by her solicitor, appropriate adult or representative of the Youth Justice Service. That factor aside, Tracy did not absolutely refute the alibi.
53. We conclude that Mrs Clark's evidence was pivotal to the prosecution case against the appellant, in shoring up the otherwise weak case against him. The new disclosure throws her evidence into doubt on a crucial point. The remaining evidence is dubious as indicated above. We are not satisfied that the conviction is safe.
54. We allow the appeal and quash the conviction. Any application for retrial and associated directions as to bail to be made in writing.