England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT (sitting at Chelmsford)
HHJ Ball QC
T 2015 7196

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/12/2017

Lord Justice Simon:

Introduction

1. On 19 January 2016 in the Crown Court at Chelmsford (before His Honour Judge Ball QC and a jury), the appellant was convicted of the murder of Jeff Shepherd.
2. On the same date, he was sentenced to life imprisonment with a specified minimum term of 18 years (less time spent on remand).
3. He appeals against conviction with the leave of the single judge, who granted an extension of time and a representation order for leading counsel (Mr Mulholland QC, who was not leading counsel at the trial).
4. The appellant had pleaded guilty to manslaughter at Chelmsford Crown Court on 30 September 2015. This plea was not accepted by the prosecution, although the jury were aware of the plea during the subsequent trial for murder.
5. The issue at trial was whether the prosecution had proved that, at the time of the admitted unlawful violence, the appellant intended to kill or cause really serious injury to Jeff Shepherd; and, if so, whether the prosecution had disproved the appellant's partial defence of loss of control?
6. Jeff Shepherd was 50 at the time of his death on 5 July 2015. The cause of death was multiple blunt force trauma to his head and neck, which had caused a depressed skull fracture and destruction of the neck bone. The appellant admitted inflicting the injuries with dumb bell weights, but said he had feared for his life at the time and lost his self-control.
7. The two men both lived at a hostel run by a Housing Association in Westcliff. Jeff Shepherd was described as an 'alcoholic' and the appellant as having mental health issues.
8. The manager of the hostel, its pastor and various other residents gave evidence of the appellant's aggressive behaviour and some witnesses described his threats of violence towards Jeff Shepherd shortly before the killing.
9. When the police attended, the appellant accepted that he had killed Jeff Shepherd but said, with what was perhaps a surprising familiarity with the law, that it was manslaughter rather than murder. He added that he had been harassed for days.
10. He gave 'no comment' replies to questions asked in his police interview.
11. He was seen in prison by a psychologist; and it was apparent that he had a history of mental illness, (schizophrenia, bi-polar disorder and a paranoid personality disorder) but that he was fit to plead and stand trial. This began on 4 January 2016.
12. The prosecution relied on a number of features in support of its case that Jeff Shepherd had been murdered: the accounts of witnesses, who were present in the days before the incident, describing the appellant's animosity towards Jeff Shepherd, and threats made to him; his admissions shortly afterwards that he had killed him; a possible adverse inference to be drawn from his silence in interview; and forensic evidence in relation to the killing, including the amount of force and number of blows used during the fatal assault.
13. In addition, reliance was placed on a number of strands of hearsay evidence: (1) a letter dated 29 June 2015 written by Jeff Shepherd in which he complained about the appellant; (2) evidence of his complaints to his sister-in-law about the appellant's aggressive and bullying manner; (3) evidence from the manager of the hostel (Richard Thorne) and the pastor (Julian Reddihough) about what Jeff Shepherd had told her about the appellant's conduct in the weeks before the incident.
14. The grounds of appeal focus on the Judge's direction to the jury on this hearsay evidence in the course of the summing up.
15. The defence relied on the appellant's account a trial; the bad character of Jeff Shepherd and other prosecution witnesses, and the evidence of the appellant's medical condition from a psychologist, Dr Halsey.
16. From this brief summary, we turn to the detail of the evidence and the issues that arise on the appeal.

The evidence at trial

17. Richard Thorne was the manager of the hostel. It had five bedrooms and housed, what was described as, a 'toxic mix' of individuals with various problems including drug, alcohol and mental health issues. He told the jury that Jeff Shepherd was an amiable person who fitted in well. He was an alcoholic who became more outspoken when in drink but was not particularly violent or aggressive. The appellant had arrived at the hostel on 26 March 2015 and initially appeared to be a reasonable man of some education. However, over the next month or two, there was a stark change. The appellant had experienced difficulties with his estranged wife and was prone to agitation and outbursts, during which he would 'rant' about his wife and other residents at the hostel. Mr Thorne described the appellant and Jeff Shepherd as being like 'Jekyll and Hyde', getting on one minute and 'at logger-heads' the next.
18. In June 2015, the managers held a meeting to see if the appellant could be moved elsewhere because they were concerned about his behaviour. There had been complaints about him from other residents including Jeff Shepherd, who had written a letter on 29 June 2015 (the subject of the hearsay application). The letter included the following:

It isn't my intention to ever harm anyone, but I have issues with [the appellant] for the following reasons; I've seen him and heard him shouting the most abusive and intimidating language at me and all the other residents. He's highly manipulative and controlling. I've seen him physically threatening harm to the other residents, leaving them frightened and shaken. I've intervened myself maybe half a dozen times to try to protect them and calm the situation down at risk to myself. He's impossible to live with and a danger to people.

19. Julian Reddihough (the pastor at the hostel) told the jury that, although Jeff Shepherd struggled with alcohol, he was quiet, likeable and not unintelligent. He cared about other residents and was concerned about the appellant's bullying behaviour. In his view, the appellant showed signs of mental illness. He was prone to ranting and singing senseless religious songs. He had a habit of speaking very close in your face and was intimidating.
20. About a week or two before the killing, Mr Reddihough witnessed an incident in the kitchen when the appellant was face to face with another resident (a man named, Peter Jarvis), shouting at him angrily and aggressively. Peter Jarvis appeared shocked and frightened. Later, Jeff Shepherd, who had also been present, expressed concern to Mr Reddihough, saying, 'I'm glad you saw that. Now you know what he's like when you're not here.'
21. Jeff Shepherd had also spoken to him about other similar incidents when the appellant had behaved aggressively towards other residents. He said that the appellant welcomed the prospect of being moved out of the hostel; and had been advised to go about his daily business but keep out of the way of other residents until alternative accommodation could be arranged. Things then improved for a few days, to the extent that Jeff Shepherd was considering withdrawing his complaint if the atmosphere remained settled.
22. There was another occasion when Mr Reddihough met Jeff Shepherd and asked him whether the appellant had hit him. He had replied, 'No, but he's done everything else. He's threatened and he's intimidated.' He had expressed a fear that the appellant might do more.
23. Tanya Simpson, was Jeff Shepherd's sister-in-law. She visited him at the hostel, when he had spoken about the appellant and described him as a bully and as someone that was trying to take over the house. She thought he seemed frightened although he was usually someone who was able to stand up for himself, and indeed had previous convictions for violence.
24. Terry Wilson was another resident at the hostel at the time. He described Jeff Shepherd as someone who drank too much, but as 'having a heart'. He found the appellant to be loud, controlling and disrespectful. He had become angry with his wife on an occasion when she had visited the hostel; and had continued to rant and make threats that he would kill her after she had left. He said that his manner would sometimes switch in a second, becoming intimidating and scary. On the evening of 3/4 July, Jeff Shepherd had a female visitor; and the following day they were in the garden making a noise. The appellant complained that he had been woken by the noise and that they were all being held to ransom by Jeff Shepherd who would not let them into the kitchen. The police had been called and had persuaded the woman to leave, after which Jeff Shepherd became angry, saying he was worried about the woman's welfare. Although in his witness statement Mr Wilson said Jeff Shepherd threatened to kill the appellant, he said such words were not actually spoken, it was just his impression that Jeff Shepherd was upset.
25. Jonathan Barker had moved into the hostel a few weeks before the killing, although he had known Jeff Shepherd for about five years. He described him as a good friend, and said that his drinking had calmed down. He described the appellant as aggressive in the way he spoke, although he never witnessed any physical violence from him. On Sunday 5 July, he had been out during the day. At about 7pm, he was told by Jeff Shepherd and Peter Jarvis that a visitor (TJ) had been arrested for threatening the appellant with a rock. At about 9pm, he went down to the kitchen and saw Jeff Shepherd sitting outside on a deckchair drinking a can of Special Brew. The back door was open and his left shoulder was towards the door. The appellant was also sitting outside, facing the kitchen door. They were not speaking and he assumed they had settled their differences. A few minutes after returning to his room, he heard six to eight loud thumps in the kitchen, before everything went silent. A minute or two later the appellant knocked at his door saying, 'Come with me'. He was very calm. He had drops of blood on his shirt and was wiping his hands on a towel. At the door to the kitchen, he said, 'This is the last time you'll come into the kitchen.' Inside the kitchen he saw Jeff Shepherd's body lying on the floor, face up, in a pool of blood. There was a set of dumb bells near his head. The appellant pointed at him and said, 'Look. Now call the police.' While waiting for the police to arrive, the appellant went to his room, packed his bags and removed his pictures from the wall.
26. Peter Jarvis gave evidence in chief in the form of an ABE interview. The appellant had asked him to warn Jeff Shepherd, saying, 'If he messes with me again I'm gonna kill him'. On 5 July, the appellant said he had given Jeff Shepherd three warnings, and that if he wound him up again there would be a real problem. He picked up some dumb bells. Peter Jarvis got the impression that he intended to use them against Jeff Shepherd. The appellant suggested that he (Jarvis) should not be around. He also described the earlier incident that day, when TJ had some concrete in his hand and had been arrested. He thought TJ was just protecting himself. When cross-examined about this incident, he said he did not hear Jeff Shepherd tell the appellant to 'fuck off', nor did he hear him tell the appellant that TJ would kill him when he got back. As to the appellant's threat to kill Jeff Shepherd, he said that he could not remember if the appellant used these particular words, but he knew in his heart this was what he intended to do.
27. Natalie Mason lived near the hostel. On 5 July, at about 8.45pm she heard shouting. She believed this was the appellant because she had heard his voice often before. About ten minutes later her husband said the police had arrived.
28. A number of police statements were read. These described various visits to the hostel including those on 2 and 4 July. The police had also attended on 5 July at midday in response to the appellant's 999 call about TJ. He had told them, 'Some of the residents have mental health problems, but that doesn't give them the right to raise a rock over my head and push me around in the kitchen. I could defend myself but I chose not to.' The appellant had made a statement in which he alleged that both TJ and Jeff Shepherd had been drinking, and were abusive and noisy. He said that he had politely asked them to be quiet, but a few moments later had felt TJ's hand on his shoulder and when he turned, saw that he was holding a rock above his head. The statement continued:

I found this very threatening and felt physical fear, but at the same time I felt peaceful, joy and happiness. I felt fear because I believed he was about to assault me again. I also, however, felt peaceful, joy and happiness because I know no one can harm me and get away with it.

29. The statement added, that as soon as TJ left, Jeff Shepherd charged into the kitchen and shouted really close to his face, claiming that he had saved the appellant from TJ and that he could do what he wanted in the house.
30. Dealing with the events following the killing, there was evidence from a police officer that, following his arrest on suspicion of murder, the appellant had replied:

If you want to see Jesus tonight, then you will. The man tried to threaten me. This should be self-defence, manslaughter. The knife was in the kitchen. I want my bags to come with me. I have had enough.

He added,

Murder? It should be manslaughter. They've been harassing me for days now, shouting at me, spitting at me.

When asked where the knife was, he replied,

What knife? I was in the kitchen. He was spitting at me. I used the weights. He was behind me. It was self-defence.

31. While in police custody, the appellant had spoken at length about his home life and his religion. He appeared calm; but the jury was shown film clips of him being controlling and dominating. He explained that some small cuts on his hand had occurred when he was assaulted earlier that day.
32. The forensic and toxicological evidence was summarised in agreed facts which were placed before the jury. The evidence suggested that the dumb bell had been brought down with considerable force onto an already very bloody surface. Jeff Shepherd had alcohol in his body and traces of cocaine. The appellant had no alcohol in his blood, although there was a trace in his urine of an anti-psychotic drug prescribed for the treatment of schizophrenia, mania and bi-polar disorder. Blood stains and smears on the deckchair and outside the kitchen door suggested the attack was not static, and may have begun in the garden area. A kitchen knife was recovered at the scene. The blade was bent to the right and the handle was broken at the hilt. No blood, hair, tissue or fibres were found on it. A post mortem examination indicated that death resulted from blunt force trauma to the head and neck. There were no marks to the arms or hands of the deceased that might have suggested defensive injuries.
33. The prosecution called a psychologist, Susan Van Scoyoc, who had seen the appellant in prison. She described a history of mental health issues, including feelings of paranoia and persecution. She agreed with Dr Alcock (the defence expert), that he was fit to plead and stand trial. They both considered that he suffered from schizophrenia and also (possibly) a paranoid personality disorder. Nevertheless, in her view, his most likely mental state at the time of the incident was anger and rage. He was able to exercise control and showed signs of doing so during the relevant period. For example, he had been able to call the police and make complaints about things that were troubling him, and he was able to make choices to avoid confrontation, and to exercise self-control. Even after the killing, the packing of his bags and waiting for the police indicated a high degree of self-control. His paranoid personality characteristics reduced his ability to read situations correctly, and twisted his perception. This might make him less tolerant; but he would also exercise a considerable degree of control of himself and others. If his sense of control were challenged, that might bring conflicts and create difficulties.
34. The previous convictions of a number of those involved were placed before the jury. The appellant had one conviction for assault, and a caution for criminal damage.
35. The appellant gave evidence in his defence. He first realised he had mental health issues in 2000. He spent three months in hospital which led to a diagnosis of schizophrenia. In 2012, and because he was able to live and function normally, his diagnosis was changed to bi-polar disorder. He was also told he had some anger management issues. Before he moved into the hostel in March 2015, he had lived with his wife, but had moved out and was sleeping rough due to their matrimonial difficulties.
36. In April 2015, he had referred himself to the mental health unit at Basildon hospital, because he was stressed at the hostel where there was so much violence. His GP surgery had referred him to the community mental health team for an assessment. However, he did not attend the appointment and had no contact with mental health services between May and 5 July.
37. He described the hostel as being initially 'okay'; but problems started on 8 May when he was woken by loud banging and the sound of a female shouting. He opened his door and saw Jeff Shepherd repeatedly punching a man (Kelvin) on the ground. 'Hammering a young man to death', as he put it. He intervened, held Jeff Shepherd back, and calmed the situation before ejecting Kelvin from the hostel. Later, 'Sixty armed police arrived and surrounded the hostel with tasers, riot shields and guns'. He had been arrested at gunpoint but no charges were brought against him. Thereafter things became worse. A previous resident (Meeyo) who had been involved in drug dealing, returned to the hostel and threw a brick through a window, threatening everyone. This made him fear for his safety.
38. Following the incident in May, things became confrontational with Jeff Shepherd. He felt depressed because people were, 'taking the Lord's name in vain', and threatening him every day. Jeff Shepherd was angry that he had stopped the fight in May, and told the appellant to 'get his act together or he would have him sorted out'. He took this as a personal threat against his safety. All the residents were threatening him and he did not even feel safe in his room.
39. On 3/4 July, he was woken at 3.00 am by the sound of a woman who was with Jeff Shepherd and Peter Jarvis. The following day he took exception to the noise they were making in the garden, particularly Jeff Shepherd who was drunk; and so he called the police. He told them that no one felt safe, that Jeff Shepherd was taking over the house and had threatened to kill him. The police told the woman to leave but said they could do nothing more, so he felt that they could not protect him.
40. On 5 July, just after midday, there were loud noises in the garden again. Peter Jarvis was cooking in the kitchen, and TJ (the visitor) and Jeff Shepherd were in the garden. He asked them to keep the noise down. Jeff Shepherd told him to 'eff off'. As he went back into the kitchen, TJ grabbed his shoulder and turned him around. He (TJ) was holding a rock above his head and said, 'these are my friends. I can do what I like'. He told the jury that he froze with fear because he has a weak skull and could die if hit over the head. Jeff Shepherd told him he was lucky. He claimed to have saved him from TJ, whom, he said, should have killed him. He returned to his room and called the police. TJ was taken away, but Peter Jarvis and Jeff Shepherd both denied what had happened and refused to make statements. Jeff Shepherd was making threats in front of the police that he would kill him. The Judge reminded the jury that the police witnesses denied that any such threats were made in their presence.
41. The appellant told the jury that he had intended to use the kitchen that evening to prepare some food. He waited until about 8.40pm, when John Barker told him it was free. He started using the kitchen knife to peel some onions. After a few minutes, Jeff Shepherd spoke to him from behind, saying, 'you wait till TJ gets back; we're going to 'effing kill you.' He knew they were capable of anything: he had seen him assault Kelvin. He knew they were all drugs dealers and 'off their heads'. In panic, he took the knife and lashed out at Jeff Shepherd in fear and anger, because he was threatening to kill him. The knife made contact with his shoulder and neck area. Jeff Shepherd grabbed his hand and the knife broke. They started to fight. Jeff Shepherd was pushing him so he threw a punch, and Jeff Shepherd started punching back. They were both screaming at each other, and he was telling Jeff Shepherd to leave him alone.
42. Jeff Shepherd fell over near the washing machine, face up and he (the appellant) was half kneeling next to him. The dumb bell was right there. so he took hold of it and struck him. He did not know how many times he hit him but the incident was very quick. He hit him because he had threatened to kill him. When he stopped there was blood everywhere and he was in a daze. He threw the knife outside and ran to tell Jonathan Barker to call an ambulance so that Jeff Shepherd could be resuscitated if possible. He was still in shock when the police interviewed him, so he heeded the advice of his solicitor to make no comment.
43. In cross-examination, he denied attacking or being in the garden with Jeff Shepherd just before 9pm. He said that Jonathan Barker must have been confused about this. The deckchair was close to the door and this is why there was blood on it. The reason why he had not mentioned any threats from Jeff Shepherd when he made the statement about the incident with TJ earlier that day was because the police told him to concentrate on what TJ had said and done. He accepted that he blamed Jeff Shepherd when he was arrested for the incident with Kelvin. He did not accept that he had problems controlling his anger, although it sometimes got the better of him. He insisted that his anger did not get the better of him whilst he was living at the hostel. He agreed that he had warned Jeff Shepherd several times and that he had also asked Peter Jarvis to warn him; but he denied asking Peter Jarvis to leave the dumb bells in the kitchen. Nor had he ever demonstrated how he might use them to assault Jeff Shepherd. In describing the assault, he said he could not recall whether he had used one or two dumb bells, nor whether he raised it over his head. He had tried to block the images from his mind. He said he was panicking and lost control out of fear for his life. Dealing with his previous conviction for battery, he explained that he had hit his previous partner on the buttocks and hips because fidelity issues had arisen and he had lost control. His other matter was a caution for criminal damage when he threw a brick through a window to recover his property during his divorce.
44. The defence psychologist (Dr Halsey) explained to the jury that if the appellant stopped taking his medication, his paranoia would increase, whether that was as a result of schizophrenia or bi-polar disorder. He experienced paranoia in the form of persecution by others, and the hostility and anger that he exhibited on the surface was an indication of fear underneath. Fear, rather than anger, was the central element that drove his behaviour.
45. We return to Dr Halsey's evidence later in this judgment.

The admission of hearsay evidence

46. At the start of the trial the prosecution made an application under s.116 (1) & (2)(a) of the Criminal Justice Act 2003 to adduce hearsay evidence. This was evidence that came from Jeff Shepherd which dealt with his relationship with the appellant.
47. The prosecution sought to rely on: (i) comments he had made to Richard Thorne; (ii) and (iii) entries in a log (exhibit JDR /1) that had been kept by Julian Reddihough; (iv) the typed letter of 29 June 2015, written and signed by Jeff Shepherd; (v) an entry in the incident log of events compiled by Mr Reddihough, when Jeff Shepherd said that the atmosphere had improved and that if it continued to do so he might withdraw his complaint; and (vi) evidence from Tanya Simson of what he told her about the appellant shortly before his death.
48. It is unnecessary to set out the arguments in relation to the admission of this evidence, because it is rightly accepted by Mr Mulholland that there are no proper grounds for criticising the decision to admit the evidence: the statement of someone who is dead is admissible under s.116(1) and (2)(a) of the 2003 Act. He does however, draws attention to the concluding sentence of the prosecution's written application at §(viii):

The jury will be given a carefully worded direction as to the weight to be attached to the statements bearing in mind that the maker cannot be challenged.

49. In his ruling, the Judge set out his view that the atmosphere in the hostel and the relationship between the various occupants was central to an understanding of the events that ultimately led to the appellant being brought before the court. He also accepted the defence submission that the hearsay application had the appearance of a bad character application because the evidential material provided examples of reprehensible conduct by the appellant.

The grounds of appeal

50. Mr Mulholland submitted first that the prosecution reliance on hearsay evidence required careful directions by the Judge; and that he failed to give any, or any sufficient direction in relation to the evidence. In R v. Horncastle and another [2010] 2 AC 373 at [38], Lord Phillips of Worth Matravers PSC (giving the judgment of the Supreme Court) had described the requirement that a judge direct the jury on the dangers of relying on hearsay evidence as 'one of the principal safeguards designed to protect a defendant against unfair prejudice as a result of the admission of hearsay evidence.' Mr Mulholland submitted that it was important to give the warning in the present case because the appellant's evidence was that Jeff Shepherd's statements made to third parties were untrue.
51. Secondly, Mr Mulholland submitted that the omission was particularly significant, since the hearsay evidence related to reprehensible conduct and the jury should therefore have been directed that they must be sure that the allegations were true before taking them into account, see for example R v. Z [2009] EWCA Crim 20 at [26].

Discussion and conclusion

52. In the normal course we would expect that an initial direction would be given to the jury before they heard hearsay evidence, warning them of three limitations to hearsay evidence: (1) the lack of opportunity to observe the demeanour of the person making the statement; (2) the fact that the statement was not made on oath; and (3) the lack of opportunity to see the witness's statement tested on oath, see Horncastle (above) at [38] and the Crown Court Compendium, referred to in Blackstone's Criminal Practice 2018 at F17.96. In the present case, it seems that no such initial direction was given.
53. The direction should normally be repeated in the summing up (as the prosecution had envisaged in its written application to adduce the evidence at §(viii), referred to [48] above), and where it relates to the bad character of the defendant it should be tailored accordingly. In particular, we would expect the Judge to refer to the three limitations of the evidence referred to in Horncastle and why the evidence was material to the issues they had to decide.
54. Again, in the present case, no such further direction was given; and it is striking that nothing was said about this either by the Judge or by the very experienced leading counsel when the Judge, on three occasions, asked whether there was anything counsel wished him to add to the summing up.
55. Mr Mulholland was critical of trial counsel, while acknowledging that issues may become plainer with the benefit of a transcript and the clarity of retrospection. We accept that a written record of a summing up may throw light on issues which are less clear at the time. On the other hand, neither new counsel nor this court can have a complete feel for the dynamics of a trial as it develops.
56. In the present case, the appellant gave evidence over two days and it is significant that the impression he made in court was such that the Judge felt the need to direct the jury to guard against paying too much regard to what it might think was his objectionable manner.
57. Later, the Judge said this:

Now a lot of early evidence was spent painting a picture of [the appellant], the sort of character he was. It may be now, having heard all of that and seen him for a couple of days, you've got a pretty clear picture of the sort of chap he was, how easy or otherwise he might have been to get on with. So I'm not going to dwell too much upon those parts of the evidence that paint a picture about his character, because it's likely that to be that you've got a pretty good idea of that.

58. When it came to the Judge's summary of Dr Halsey's evidence, it becomes clear that the thrust of the defence had changed. It was not being said that the appellant was a man whose character had been unfairly traduced by the prosecution, much of whose evidence came, not from hearsay evidence, but from those whose evidence the jury had seen and heard. Rather the defence was now focussed on the point that his aggression was a response to fear: a proposition that was consistent with a loss of control defence.
59. We note that no complaint is, or could be, made of the Judge's summing up on the loss of control defence.
60. The Judge summarised the position of Dr Halsey (the defence expert psychologist) and, presumably, the defence:

Hostility and anger. 'His hostility and anger is a response to fear. Fear drives hostility and anger.'

61. Later the Judge added:

There are indications … that [the appellant] experiences a relatively high degree of anger and, given his interpersonal difficulties, it may well be that others experience him as hostile. However, given his high levels of paranoia in which fear is the main emotion, it may well be that his behavioural expression of anger and hostility is underpinned by predominant feelings of fear.

62. It is clear the dynamics of the trial changed when the appellant gave evidence; and the hearsay evidence from Jeff Shepherd became far less significant in the context of the issue the jury had to determine. The jury was in a good position to assess the character and disposition of the appellant from the way he presented in the witness box and the jury also had the evidence of Dr Halsey which was relied on by the defence. In these circumstances, although we wish to make clear that in normal circumstances it is very important for a trial judge to explain to the jury the utility and limits of hearsay evidence, in this case the fact the judge omitted to do so was not a material misdirection such as to undermine the safety of the conviction.
63. We should add that the single judge drew to the attention of counsel the possibility that self-defence should have been left to the jury. Mr Mulholland has carefully considered this point and concluded that it was not arguable. We agree.
64. For the above reasons, the appeal is dismissed.