England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHREWSBURY

		11/04/2018

Lord Burnett of Maldon CJ:

1. On 4 September 2015 in the Crown Court at Shrewsbury the applicant was convicted of arson, being reckless as to whether life was endangered (count 1), and doing an act tending to pervert the course of justice (count 2). She was sentenced to six years' imprisonment on Count 1 by Mr Recorder Mills, with a concurrent sentence of four months' on Count 2. The prosecution case was that she had set fire to her home in the early hours of 25 October 2014, in which her parents were asleep, and immediately maliciously blamed her boyfriend by falsely suggesting that he had threatened to kill her and her family if she did not assist him with a motor claim. We will explain the facts in more detail, but part of the prosecution case was that she was within 20 or 25 metres of the house (inferentially in it) at the time the fire was started. That was supported by agreed expert evidence relating to her mobile telephone. The applicant said she was further away but it was suggested to her, in reliance on the expert evidence, that she was lying. The essence of the case advanced before us is that the expert evidence was wrong with the result that the convictions are unsafe.
2. The application for leave to appeal against conviction on that basis was referred by the single judge to the full court together with the application to adduce fresh evidence. He extended time. We grant leave to appeal.

The facts in outline

3. In 2014 the appellant, then aged 22, lived at 29 Sunningdale, Hadley, Telford with her parents, Lakhbir Rana and Paula Simmonds, and her cat. The front door was sometimes left unlocked, particularly when the appellant was out late. The garage at the side of the house, where Mr Rana kept petrol for his lawnmower in a can, had a rear entrance which was also left unlocked.
4. On Friday 24 October 2014 the appellant went out for a long evening of drinking with friends, at the end of which she was dropped off near the house at about 02.00 on Saturday 25 October. Her friend Becky Haywood had been dropped off first and sent a text at 01.59 saying she was home. The appellant used her iPhone to call Becky once she had been deposited on the corner. That call commenced at 02.03.53 and ended ending at 02.06.12. The applicant said she smoked a cigarette at that time. She told Becky that she was "on her way home" or "nearly home". She had been dropped off on the corner of Waterloo Road and Crescent Road, a shade under 90 metres as the crow flies (a little longer by foot) from her front door.
5. At 02:15:04 the appellant's iPhone connected to the wireless router located in her bedroom at the house. That connection signified an exchange of data and was an example of a phenomenon experienced by many who have set their phones automatically to tie up with their home wifi – it does so before one enters the house. It was at that point that the prosecution said that she must have been within 25 meters of home.
6. At about that time, or very shortly thereafter, a fire was started deliberately at the base of the only staircase in the house. Petrol was used as an accelerant. The fire developed rapidly, producing a large quantity of smoke which filled the ground floor and first floor rooms. A smoke alarm on the landing was activated, waking Mr Rana and Ms Simmonds, who had been asleep in their upstairs bedroom. Mr Rana attempted to smother the fire without success. The next fixed point in the chronology is the call made by Ms Simmonds to the emergency services. She was connected at about 02.20. The details of her call were received on a printer at the fire station at 02.20. Neighbours were alerted and enabled Ms Simmonds and Mr Rana to escape unhurt from their bedroom window down a ladder.
7. At 02.21:55 the appellant again called Becky using her iPhone. She sounded hysterical and was crying, saying that her house was on fire and screaming about her parents and her cat. That call lasted until 02.27.40.
8. A fire engine arrived at about 02.25am. As fire fighters prepared to enter the house, the Watch Manager in the charge of the team, John Pritchard, saw the appellant walking across the front garden of 30 Sunningdale, the adjoining property, and approaching the front door of her house. When challenged, the appellant told Mr Pritchard that she wanted to get the cat out of the house. At the scene she said to her mother "it's him". It was the appellant's evidence that her boyfriend had threatened to do this one week before. The prosecution relied on these observations to show that the appellant knew that the fire was the result of arson.
9. The appellant went to her grandmother's house nearby, where she was interviewed by a police officer. She told the officer that her former boyfriend had threatened the previous week "to do this", and confirmed that assertion in a written statement. Later that morning, she was interviewed again and made a further written statement to the effect that she had split up with her boyfriend two months before. The threat had been made in a telephone call on the previous Tuesday, when he had stated that if the appellant did not complete forms relating to a traffic accident claim, he would kill her and her family.
10. The police seized various items of the appellant's clothing and footwear but none of them showed any sign of fire damage, smoke or any trace of petrol. The petrol can from the garage was not checked for fingerprints.
11. The boyfriend was arrested later on 25 October. He denied that he had split up with the appellant and was able to demonstrate that he had spent the night with her at an hotel on 3 October 2014. The appellant's parents did not approve of the relationship. The appellant subsequently admitted that she had lied to the police about the relationship having ended. She accepted that it was continuing on 24 October 2014. That evening she had spoken to her boyfriend on the telephone, falsely telling him she was at home and he had texted to say goodnight to her.
12. The appellant was arrested on 6 December 2014 and charged with the offences of which she was convicted in due course. She was interviewed twice and provided muddled or inconsistent accounts.

The Crown's case at trial

13. The Crown's case was that the appellant came within 20 or 25 metres of the house at 02.15 when her iPhone connected with the router situated in a first-floor bedroom. She went in by the front door and straight through and into the back garden. Then she entered the garage and collected the petrol can kept there. She returned to the house, used the petrol on the stairs and set light to it. The evidence of the fire on the stairs showed that it was at its most intense a few stairs up and on the risers, rather than treads. That showed that the petrol was introduced from the bottom – effectively thrown in an upwards direction. Thereafter, she went back to the garden and garage to replace the petrol can in its correct position before leaving via the back garden and somehow making her way around to the front garden of number 30, where she then waited and watched before making the call at 02.21.55. In the meantime, the smoke alarm had been activated waking her parents, her father had attempted to put out the fire with a wet eiderdown and her mother had made the call to the emergency services. The fire must have been started a minute or two before 02.20. The appellant's motive was to frame her boyfriend and get him out of her life. Her actions were accomplished whilst she was drunk and left no forensic trace.
14. The chronology we have set out was contained in agreed facts.
15. The Crown had a report from Martin Griffiths, a cell site expert. He was not called to give evidence. A substantial part of his report was devoted to ordinary cell site evidence which showed that, in the course of the telephone calls mentioned, the phone was connected to two different sites a long way from the house. That evidence did not provide any useful information. But he considered the significance of the iPhone connecting with the router at 02.15.04. He did not conduct any tests using the phone, router (or similar pieces of equipment) whether at the site or elsewhere. His report explained how a phone would connect automatically. He was asked to consider the coverage of the router beyond the house itself. Unfortunately, the manufacturer of the router (Netgear) had not disclosed the technical specification, but Virgin media had marketed the router as having a coverage distance of 30 metres. Mr Griffiths continued:

"1.8.38 On this basis I have factored in the losses I would expect for the Wifi coverage over away from 29 Sunningdale and have given an assessment of what I believe the effective coverage distance would have been and therefore provided an estimate of where I believe a handset could have connected to the home router within 29 Sunningdale at 02.15.04 on 25^th October 2014. …

1.8.40 Map 3.4 shows an area where a handset could have been located outside 29 Sunningdale …

1.8.41 In my opinion the data is consistent with a handset being within a 20-25M radius (clear line of sight) from 29 Sunningdale … at the start of the session initiated at 02.15.04"

16. Mr Griffiths' plan had two concentric circles around the router. One at 20 metres was marked "inner margin" and the other at 25 metres "outer margin". The applicant's then advisers made their own inquiries of an expert who confirmed Mr Griffiths' assessment. As we have noted, the appellant's own case (confirmed in her evidence) was that the phone regularly connected much further away. Nonetheless, there was an agreed fact put before the jury:

"Map 3.4 shows the area where the handset could have been located to connect with the router in the bedroom. The highlighted segment [within 20 metres] shows the area most likely for the handset to have been located but it could have been located anywhere within a radius of 25 metres from the router's location but not outside that radius."

It seems that Mr Griffiths' evidence was interpreted as excluding the possibility that the phone could have connected more than 25 metres from the router. We do not read his evidence in that way. He used the language of "consistent with" having earlier said (1.8.8) that he was asked "to consider where the handset … could have been when attaching to this network." His conclusion was based on no tests, nor even technical data relating to the router in question. It is true that in its marketing material Virgin media suggested a range of 30 metres but that could not be taken as a maximum. Rather, it might be thought, that such material would indicate a consistent reliable range on which customers could rely.

17. Given the timings and the appellant's presence at the scene, the prosecution suggested that she had the opportunity to set the fire, and access to both accelerant and means of ignition. She admitted that she regularly went into the garage where there was petrol. She had been smoking so had a means of ignition and she knew that the front door to the house and the back door of the garage would both be unlocked.
18. Moreover, the appellant had lied to the police in two written statements in the context of attempting to blame her boyfriend. She had also incorrectly stated when interviewed that she had been dropped off by her house by a taxi and that she had only telephoned Becky on one occasion. It was clear, and not in fact controversial, that she was dropped at the corner of Waterloo Road by friends at or shortly before 02.00. She accepted that she had lied about ending the relationship but not about the threats her boyfriend had made. She had been drunk and confused at the time of the incident which, she said, accounted for the inaccuracies in her chronology.
19. The prosecution also adduced evidence that the appellant had made a false complaint to the police in August 2013 (which she later withdrew) that she had been robbed of her handbag and punched, when she had in fact been involved in a fight in a pub.

The defence case at trial

20. The appellant's case was that she had a normal loving relationship with her parents and she also loved her home and her cat. She had no conceivable reason to wish to put them in danger.
21. She gave evidence that she had been dropped at the junction of Waterloo Road and Crescent Road from where she had called Becky and smoked a cigarette, which took some time. Her parents did not know that she smoked and that was why she lingered after she was dropped off. She could not account for what she had been doing between 02.06 and 02.21, beyond smoking a cigarette, but she had not been setting fire to her house. She had walked past the mouth of Sunningdale, when she became aware of the fire from noise she heard. She did not remember seeing the fire engine arrive, although it would have driven along the road where she says she was standing or walking. Her evidence about the fire engine and its arrival was confused. She saw it outside the house, together with ladders.
22. Despite the agreed expert evidence, she did not accept that she was within 25 metres of house at 02.15.04. The appellant said that she had often been able to connect to her wireless signal from much further away, including the corner of Waterloo Road and at her grandmother's house nearby.
23. The appellant said that at her grandmother's house she had been asked by the police officer who might have done this, and the first person who came to mind was her boyfriend. She had lied to the police about her relationship with him because her family disliked him and she did not want her grandmother to hear that they were still together. Although no family member was present when she was further interviewed for another witness statement later that day, she had repeated the lie in case what she said to the police was reported back to her father. She later accepted that her relationship with her boyfriend had continued up to 24 October but repeated her account of his threat to kill her and her family the Tuesday before the fire, although she said she had not then taken it seriously.
24. She did not accept having lied about arriving in a taxi or making only one phone call, saying that she had had a lot to drink and was upset. But she did admit having lied to the police in claiming that she had been robbed in August 2013. She denied she was prone to doing silly things when drunk and said that the August 2013 incident was an isolated mistake. The appellant agreed that she had seen nobody else around before the commotion surrounding the fire but that it would have been possible for someone to leave by the back garden and over a field.
25. The appellant was convicted of both counts by unanimous verdict of the jury.

The fresh evidence

26. The appellant obtained a report from Gregory Robinson, a cell site engineer and experienced expert witness. He and Mr Griffiths have exchanged a series of reports and gave oral evidence before us. Mr Robinson does not dispute Mr Griffith's evidence that the appellant's iPhone connected to the Virgin router at the house at 02:15:04 on 25 October 2014, but is critical of the untested assumption that the range of the router was no more than 20-25 metres. Mr Robinson conducted his own tests from his commercial premises with the identical model of router (the actual router no longer being available, apparently having been disposed of by the insurance company) but a different model mobile phone. His tests produced a "reasonably solid service" up to 72 metres from the router and several areas up to 160m away where the test handset logged onto the network and exchanged data.
27. Ms Arshad, who has appeared today for the appellant, but did not appear at trial, submits that Mr Robinson's evidence satisfies the requirements of section 23 of the Criminal Appeals Act 1968 (as amended) in that (a) it is capable of belief (b) it may afford a ground for allowing the Applicant's appeal (c) it would have been admissible at trial on the question in issue and (d) there is a reasonable explanation for the failure to adduce it. Mr Hamer for the prosecution does not suggest otherwise.
28. In further exchanges of reports, Mr Griffiths accepted certain of Mr Robinson's criticism of his original evidence, but voiced his own concerns about Mr Robinson's methodology. He suggested that the use of a different handset in a different environment calls into question whether Mr Robinson's results properly reflect what would have been the position on 25 October 2014 in Sunningdale. In turn, Mr Griffiths has now undertaken his own practical tests. Albeit in a different urban area, they have confirmed that the range of the router is considerably more than the 20 to 25 metres he had previously indicated. He found that a phone connected at up to 45 metres but did not do so at 50. He therefore went no further. Mr Robinson's tests, conducted from his office in a more open area, not only showed connection at up to 160 metres but also that the distance from the router is not the determining factor whether there is a connection. He walked a convoluted route in the vicinity of the router. There was no connection in many places close by and a good connection at considerable distances.
29. The experts are agreed that the record in the handset at 02.15.04 does not show when the appellant walked into range of the router in her house. That is because the system keeps a record only of the last connection made. It does not keep a record of earlier connections, nor does it make a record of the length of the connection. The fact that there was a connection at 02.15 does not preclude the possibility of an earlier connection at any time during the period from about 02.00 when the appellant was dropped off at the corner.
30. That Mr Griffiths was able to make a connection up to 45 metres from the router does not provide the outer limit of connectivity, as Mr Robinson's tests demonstrated and as Mr Griffiths agreed. The result is that the connection between the home router and the appellant's iPhone at 02.15.04 could have occurred at any point between the corner of Waterloo Road and Crescent Road and the appellant's house. The distances involved were not great. It would take only a minute or two to walk from the corner to the house. But the prosecution case required the appellant to accomplish a good deal in the relatively small time frame between 02.15, when her phone last connected to the router and 02.20 when the results of the 999 call were sent through to the fire station. If, rather than covering 20 to 25 metres before entering the house, the appellant had to walk two or three times that distance the timing became more difficult. Additionally, the prosecution relied upon her insistence that the phone could connect at some distance from the home as another lie.

The submissions

31. Ms Arshad submits that the evidence of the appellant's close proximity to the house at 02.15.04 was at the heart of the prosecution case and was relied upon not only to place her in the house when the fire was started but also as a significant attack upon her credibility. The conviction is unsafe.
32. Mr Hamer accepts that the expert evidence "was an important component of the prosecution case" in what was a circumstantial but strong case. He submits that the conviction is safe having regard to the other evidence. He relies upon a combination of the following features:

The availability of petrol in the garage;

The appellant's knowledge that both the front door of the house and the back door of the garage were unlocked;

The appellant's possession of a means of ignition;

Her knowledge or belief that the fire had been set deliberately;

The lies told to the police about her relationship, and the earlier false allegation in 2013;

The fact that the second call to Becky was made at 02.21.55 so soon after the fire started.

Discussion

33. At the end of his cross-examination, Mr Hamer put squarely to the appellant that she had set fire to the house on the spur of the moment whilst drunk with the aim of getting her boyfriend out of her life. The prosecution case was built on the appellant's presence in the vicinity of the house and the fact that she had lied about various things, some of which she accepted. The appellant accepted that she had lied to the police about the relationship with her boyfriend having come to an end. She accepted in cross-examination that she had lied to him earlier that evening when she told him on the telephone that she was at home, rather than out with her friends. She explained that he disapproved of her going out with her friends. She accepted that she had made up the allegation in 2013. She maintained that her boyfriend had indeed threatened her and her family a week before the fire. She was cross-examined appropriately and hard over the issue arising from her iPhone connecting at 02.15.04 but maintained that her experience, despite the expert evidence, was that the phone connected and could be used from the corner at which she was dropped off. She gave detail of how the iPhone would connect, the signal strength and also that it did so at her grandmother's house, both at well over 25 metres. She said that these experiences were shared by her mother. That was in answer to questions which included "couldn't have been beyond 25 metres; you can't challenge that can you?" In the end, Mr Hamer said:

"Well, I'm simply putting to you that according to the evidence that's just not possible."

To which the appellant replied:

"Yeah, I can't argue with that but I'm just saying what my opinion is."

34. Much of the appellant's evidence was confused, indeed contradictory. For example, she said in her evidence in chief that her boyfriend, who lived 10 minutes' walk away, knew that the doors were often unlocked, then agreed in cross-examination that only she knew. She was cross-examined on the detail of the statements she had made to the police, which were inconsistent on matters such as when she first became aware of the fire engines and precisely where she was at the that time. She was unclear whether the fire brigade had arrived before she called Becky at 02.21.55 (as we had seen they had not). She gave unclear evidence about where she was when she made that call and also about what she did thereafter. The appellant had agreed with Mr Hamer that she was nearer paralytic than sober and the evidence of Becky was that she was hysterical during the second phone call.
35. In his summing up, the recorder reminded the jury about the uncontroversial evidence of the appellant's parents that the family was a close, loving one with nothing to foreshadow behaviour of the sort alleged on the night in question. The appellant was also devoted to her cat, which was rescued by the fire brigade. Some of those with whom the appellant had spent the evening gave evidence of her demeanour. They explained she was quite drunk but not legless. She had been in a good mood all evening and was fine when she was dropped off at about 02.00. There was nothing in her first three-minute call to Becky at 02.03 to cause any concern. She was distraught when she made the second call at 02.21. He reminded the jury that proof of a motive is not a necessary ingredient of an offence, but also that the prosecution case, reflected in count 2, was that the motive was to get her boyfriend out of her life. The jury was reminded about the absence of forensic evidence linking the appellant to the fire.
36. The recorder had allowed the evidence of the earlier false allegation into evidence but directed the jury to be cautious about both that and the admitted lies about whether the relationship with the boyfriend was continuing. The case hinged on the chronology of events from 02.00, the appellant's inability to account for what she doing after her first call to Becky (beyond smoking a cigarette) and her belief that the fire was non-accidental.
37. In that chronology the evidence that the appellant was either in (or very close to) the house at 02.15.04 was, as Mr Hamer accepts, important. It was important because it contradicted the appellant's account that she was still at the corner at that time. It was important because it was agreed expert evidence and it was important because it suggested that the appellant was lying about something at the heart of the events of the night, rather than unrelated matters. The recorder, whilst reminding the jury that the evidence about 25 metres was agreed, also directed the jury to consider her account that the expert evidence must be wrong.
38. We now know that the expert evidence was wrong and that the appellant's account on that aspect of the case was credible. Yet in a prosecution which relied so heavily on her admitted and alleged lies, we consider that this expert evidence was a powerful and damning part of the Crown's case. We accept that, even in the absence of this evidence, there was a case to answer. Our task is not to speculate about what the jury might have done if the agreed evidence had not been before them, but rather to ask ourselves whether, in the light of the fresh evidence, the conviction remains safe, or is unsafe: Section 2 of the Criminal Appeal Act 1968.
39. We took time to consider our judgment at the conclusion of the hearing because we wished to re-read the evidence and summing up to enable that question to be answered. The prosecution case rested upon the premise that the appellant's evidence that her boyfriend had threatened violence was a pretence; there was no doubt that he could be excluded as responsible. It would be too much of a coincidence for him to have been in the vicinity unseen at the same time as the appellant was dropped off and made her way home.
40. We have noted that there was no forensic connection between the appellant and either petrol or fire, or the petrol can. The timing postulated by the prosecution required the appellant to accomplish a good deal whilst drunk in a very short time after her phone connected to the wifi. The prosecution case required her to have gone from being entirely equable, through having fixed upon the plan to set fire to her house and executed it in less than 15 minutes, whilst for much of that time she was smoking a cigarette. It also suggests that her distress in the second call to Becky may well have been contrived. We accept all that is entirely possible. Not without some hesitation, we have concluded that the fresh evidence, undermining as it does an important part of the prosecution case both on timing and also the potency of the appellant's lies, renders the conviction unsafe. In the circumstances we allow the appeal and quash the convictions.