England and Wales High Court (Administrative Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mills & Anor v Criminal Cases Review Commission [2001] EWHC Admin 1153 (20th December, 2001)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/1153.html
Cite as: [2001] EWHC Admin 1153, [2001] EWHC 1153 (Admin)

[New search] [Printable RTF version] [Help]

Mills & Anor v Criminal Cases Review Commission [2001] EWHC Admin 1153 (20th December, 2001)

		Neutral Citation Number: [2001] EWHC Admin 1153
		Case No: CO/825 2001

IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION (DIVISIONAL COURT)

Royal Courts of Justice
Strand,
London, WC2A 2LL

20th December 2001

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
MR JUSTICE OUSELEY
____________________

Gary Mills and Anthony Poole
Claimant

- and -

Criminal Cases Review Commission
Defendant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Nicholas Blake QC & Mr Raza Husain (instructed by Bhatt Murphy)
appeared for the Claimant
Miss Beverley Lang QC (instructed by the CCRC)
appeared for the Defendant
____________________

HTML VERSION OF JUDGMENT
(AS APPROVED BY THE COURT)

____________________

LORD CHIEF JUSTICE:

Introduction

This is a judgment of the Court.

This application for judicial review relates to a decision of the Criminal Cases Review Commission (“the Commission”) of 27^th November 2000 not to refer back to the Court of Appeal, Gary Mills’ and David Poole’s, (the claimants), conviction of the murder of Hensley Wiltshire on 26 January 1990. In April 1996 their appeal against conviction to the Court of Appeal had been dismissed and in July 1997, their further appeal to the House of Lords was also dismissed.

In January 1998, the claimants jointly applied to the Commission for a review of their convictions. After a lengthy and careful consideration, the Commission produced its Provisional Statement of Reasons in January 2000. The solicitors for the claimants then made two further sets of representations on that Provisional Statement of Reasons before, on 27 November 2000, the Commission issued its Final Statement of Reasons. It concluded that the statutory requirements which have to be met for a reference of a conviction to the Court of Appeal were not satisfied.

An important feature of the claimants’ reference was the dismissal of a defamation action by Detective Inspector Gladding, in October 1998. Inspector Gladding had been second in charge of the murder investigation and a witness at the claimants’ trial, and he brought the action against Channel Four TV and others who had accused him of perverting the course of justice and of perjury at the claimants’ trial.

The claimants were given permission to challenge the decision of the Commission on the grounds that the Commission had failed to direct itself correctly as to the fresh evidence and arguments available to show a real possibility that on a reference, the Court of Appeal would not uphold the convictions because:

i) there had been such a high degree of prosecutorial misconduct that the trial of the claimants should not have taken place at all, regardless of the effect of that misconduct on the trial itself;

ii) and because, taken as a whole, the evidence of such misconduct had significantly prejudiced the conduct of the claimants case and the trial.

On the hearing of the application for permission the claimants also relied on a further ground. The question of whether to give permission to argue this ground was adjourned to the substantive hearing. We heard brief argument on the point which was that the Commission ought to have investigated more fully the facts underlying the claimants’ allegation of apparent bias made against Lord Justice Otton who had presided and had delivered the judgment when the Court of Appeal dismissed the claimants’ appeal in 1996.

Following the decision of the House of Lords in R v Kansal 2001 UKHL 62, 29 November 2001, the claimants no longer contended that Article 6(1) of the European Convention of Human Rights should have been taken into account by the Commission when reaching their decision. The House of Lords’ decision meant that Article 6(1) would not be applied on a reference by the commission to the Court of Appeal. Mr Blake QC, who appeared on behalf of the claimants, contended that the developments in the law as to the requirements of fairness, before the coming into force of the Human Rights Act on 2 October 2000, were sufficient for the purpose of his arguments.

The Legal Framework of the Commission

The Commission was established pursuant to Part II Criminal Appeal Act 1995. Section 13 of that Act, so far as relevant provides:

“(1) A reference of a conviction, verdict, finding or sentence shall not be made… unless:

a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made;

b) the Commission so considered –

i) in the case of a conviction, verdict or finding because of an argument, or evidence not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or

ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised; and

iii) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.

(2) Nothing in subsection 1(b) (i) or (ii) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.”

The statute therefore contains a two-stage test:

(1) (a) there has to be fresh evidence or an argument, not raised in the proceedings thus far, and (b) it is that evidence or argument which causes the Commission to consider that there would be a reasonable possibility that the conviction would not be upheld. (Mr Blake submitted that the material upon which he relied passed those two stages and that the Commission conclusion to the contrary should be quashed), or

(2) there needs to be exceptional circumstances which justify a reference. (Mr Blake relies on this ground if it is necessary for him to do so)

The requirement that there exist evidence or argument not already raised in the proceedings is important, because it prevents a constitution of the Court of Appeal on a reference sitting as a Court of Appeal from an earlier decision made by a differently constituted Court of Appeal. The different material, whether in the form of evidence or argument, must justify a new decision. So far as the Commission is concerned, it must appear that such a real possibility exists as a result of the new evidence or argument.

The conditions which have to be fulfilled before a reference is made are the means by which Parliament has attempted to resolve the tension between the need for justice to be done and requirement that there should be an end to litigation. Parliament was silent as to the role of judicial review. But the Commission is a public body and in reaching its decisions it is performing a public function so it is subject to judicial review.

The role of the Court hearing applications for judicial review to challenge decisions of the Commission is very much a residual one. Miss Lang QC for the Commission lays emphasis on R v CCRC exp Pearson, [1999] 3 A11 ER 498 and the judgment of Lord Bingham CJ in that case. At 171F to G Lord Bingham stated:

“Had the Commission decided to refer this case to the Court of Appeal that would (if based upon a proper direction and reasoning) have been a reasonable and lawful decision. The decision not to refer was in our view equally reasonable and lawful. The question lay fairly and squarely within the area of judgement entrusted to the Commission. If this court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its functions. The Divisional Court will ensure that the Commission acts lawfully. That is its only role. To go further would be to usurp a function which parliament has, quite deliberately, accorded to the judgment of the Commission.”

In that same judgment Lord Bingham also pointed out that it was not appropriate to subject the Commission’s reasons to a “rigorous audit” in order to establish that they were not open to legal criticism. “The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere”: (169G.) This approach was subsequently adopted in R v CCRC exp Hunt [2001] 2 WLR 319.

Mr Blake accepts the limitations upon this court which those decisions impose. This court cannot act as a court of appeal from the Court of Appeal, nor can it act as an appellate body in relation to the Commission. The standards of judicial review do not require decisions of the Commission to be quashed whenever any flaw, however minor, is revealed by a process of rigorous audit.

The suggestion of Mr Blake that this court is in a position to be less deferential towards Commission decisions than towards those of other bodies, because this court is particularly well placed to form a view as to how the Court of Appeal would react to any new evidence or argument, is not consistent with the proper approach on judicial review. It is important, that this court does not fall into the trap of forming a view as to how the Court of Appeal would react and then concluding that that is what the Commission should necessarily have concluded, since this would be to usurp the Commission’s function. Decisions of the Commission cannot be quashed merely because a court on judicial review might have or indeed would have come to a different view of the significance of the material or the prospects of success.

The Facts

At the centre of the claimants case that there should have been a reference is the decision of a libel trial in 1998. This found a detective inspector Gladding had been guilty of perjury and abuse of process and it is alleged that this is of considerable significance in relation to two alleged eye-witnesses to the offence of which the claimants were found guilty. The first witness is Mr Juke, who did not give evidence, and the second witness is Mr White who gave evidence. In order to evaluate the claimants’ complaints it is not only necessary to examine what happened at the trial of the claimants, but also what happened on their appeal to the Court of Appeal in 1996 and the proceedings before the Commission and the Commissions’ Statement of Reasons for their decision not to refer. This means that the facts that have to be considered are long and complex. Fortunately they can be taken in part from the section of the Commission’s Statement of Reasons which we will now set out;

“1. Summary of the prosecution and defence cases at trial

1.1. 120: It was the prosecution case that on 5^th January 1989, the victim, Hensley Hendricks Wiltshire had suffered multiple injuries whilst in Mr Poole’s flat at 34 Conduit Street, Gloucester. Mr Wiltshire died at Gloucester Royal Hospital the following afternoon. It was the Crown’s case that Mr Wiltshire had died as a result of injuries inflicted by Messrs. Poole and Mills, Mr Poole using a knife, Mr Mills a crowbar.

1.2. Kimberley Stadden was a key prosecution witness and had been present in the flat when the fight took place. She had arrived at the flat at approximately 11.30pm and there were four other people in the flat, Mr Mills, Mr Poole, Mr Wiltshire and a Mr Juke. Ms Stadden said she had seen Mr Poole in the dole office but did not know him, when she arrived at the flat. She asked for Tony and was subsequently introduced to Gary Mills (whom she knew as Kevin) and Ian (also known as Neville) Juke; Mr Wiltshire, she already knew. Ms Stadden gave evidence that whilst she was mixing some amphetamine in a glass, Mr Wiltshire had jogged her arm and when she looked up a fight was going on between Mr Mills and Mr Wiltshire. The incident began as a fistfight, but later Mr Mills was seen to be in possession of a crowbar. Mr Wiltshire was unarmed and was kicked by Mr Poole as well as being repeatedly hit by Mr Mills with the crowbar about the legs and head. Mr Poole then used the knife on Mr Wiltshire’s arm and Mr Wiltshire tried to get out of the window. Having failed to get out of the window, Mr Wiltshire fell back onto the sofa whereupon Mr Mills began punching him. Mr Poole started kicking him, and stabbed him in the buttocks four or five times. During part of the fight Kimberly Stadden was shielded from what was going on by Mr Juke, who put his hand in front of her face. Mr Juke later dragged Mr Wiltshire out onto the pavement where he was left. Ms Stadden walked home where she was later met by Mr Mills and Mr Poole who were both bloodstained – both men later left in a taxi.

1.3. Mr Juke was not called as a prosecution witness.

1.4. Mr Paul White, who also gave evidence for the Crown, said that he had twice been to 34 Conduit Street on the night in question. On the first occasion he arrived at 9.00pm, saw Mr Poole and then left. On returning at about 11.50pm he heard shouting from inside the flat and waited outside by his car. Mr White said that he could see Mr Poole striking downwards and heard someone shouting “no Tony no”.

1.5. At 12.22am Mr Wiltshire was collected from outside 34 Conduit Street by an ambulance and taken to Gloucester Royal Hospital where he was examined by Dr Fletcher. Mr Wiltshire was confused and semi-conscious and the doctor observed multiple wounds to his arms face and legs. A full record of all the injuries was not made and examination was made difficult by the fact that Mr Wiltshire was uncooperative and abusive. A deep laceration to the top of the head was found, although after x-ray, it was discovered that the skull was not fractured. Due to Mr Wiltshire’s demeanour, not all his wounds could be sutured and after he had refused to remain in hospital, he was discharged into police custody (Mr Wiltshire was at this stage wanted for questioning by the Metropolitan Police).

1.6. At Gloucester Central Police station, Mr Wiltshire was placed in cell no. 1 and was seen by the custody officer to be moaning and turning from side to side. Dr Chaudhuri, the police surgeon, attempted to examine Mr Wiltshire, having arrived at the station at about 4.45am but Mr Wiltshire would not allow the doctor to touch him. Dr Chaudhuri expressed the view that Mr Wiltshire should be returned to hospital and he was returned to casualty at approximately 5.35am. Mr Wiltshire was again seen by Dr Fletcher and received further treatment before being discharged again, at approximately 6.15am, back into police custody. At 7.00am Dr Chaudhuri signed a certificate stating that Mr Wiltshire was fit to be detained and he was placed in cell no.3.

1.7. Mr Wiltshire was monitored through a peephole in the cell door and was visited at various times by different officers (including DCI Bennett who was in charge of the Conduit Street investigation) – he had shouted out a number of times and appeared to be in pain. DC Geenty gave evidence that he had helped Mr Wiltshire to put on a paper suit and later to change this suit, when it became blood stained. DC Geenty gave evidence that a blood mark found on the wall of the cell had resulted from Mr Wiltshire banging his head, having slipped whilst trying to put on a replacement paper suit. DC Geenty denied hitting Mr Wiltshire – Inspector Tully (who had also visited Mr Wiltshire in the cell) also denied hitting Mr Wiltshire or seeing anyone hit him.

1.8. The duty solicitor arrived at approximately midday on 6^th January 1989 but before he could see Mr Wiltshire, Mr Wiltshire collapsed and was returned to hospital, arriving at about 1.00pm. On arrival he was seen by a consultant Mr McCabe who diagnosed cardiac arrest. Mr Wiltshire was successfully revived but suffered another cardiac arrest at 2.30pm. At 3.30pm Mr Wiltshire was certified dead.

1.9. The initial post- mortem examination as carried out by Dr Kellett, who noted a number of injuries to the head, the upper and lower parts of body, both front and back. The injuries to the legs included four ovoid wounds to the shins: - the object that caused these injuries was not known. The cause of death was considered to be fat embolism combined with high potassium resulting from the injuries sustained. Dr West carried a second post-mortem and concluded that death had been caused by a number of factors and noted that the deceased had suffered significant muscle damage, especially to the legs.

1.10. The Defence Case: The defence case on behalf of Mr Mills was as follows. Mr Mills said that he had been at Conduit Street on the night in question and Mr Wiltshire had been very aggressive, first arguing with Mr Juke, before scuffling with himself. Mr Stadden arrived and obtained some amphetamine from Mr Juke. Shortly afterwards Mr Mills had been jumped on by Wiltshire, who had a knife in his hand. Mr Mills had attempted to disarm Mr Wiltshire using a crowbar and had hit him with the crowbar on the head, legs and arms which forced Mr Wiltshire to drop the knife. Mr Wiltshire had managed to hit Mr Mills on the arm with the knife, causing scratches.

1.11. There was a further scuffle during which Mr Mills managed to get the knife away from Mr Wiltshire, who then picked up the crowbar and swung it at Mr Mills’ head. Mr Mills blocked this blow, sustaining a wrist injury in the process, and rolled onto the floor where he grappled with Mr Wiltshire. Mr Mills managed to get hold of the knife and stabbed Mr Wiltshire in the buttocks and the back of the legs. Mr Mills had deliberately avoided causing injury to Mr Wiltshire’s vital organs and was eventually able to push Mr Wiltshire off. At this point Mr Juke took Mr Wiltshire outside. Mr Mills had no idea how the avoid shin wounds were caused. Mr Mills contended that had he not acted in the way he did, Mr Wiltshire would have killed him – in short, he had acted in self defence.

1.12. The defence case on behalf of Mr Poole was that he, Poole, had taken no part in any assault on Mr Wiltshire, with either of the weapons. It was asserted by the defence that death had not resulted from the injuries inflicted at Conduit Street but instead that the fatal injuries had been inflicted by persons other than the defendants, possibly in the police cells. Mr Poole gave evidence that he had never met Ms Stadden before that evening but he had made an agreement to meet Mr Wiltshire. Mr Poole had gone to the flat with a girl called Sharon and on arrival Mr Mills was already there. Mr Juke arrived next, followed by Mr Wiltshire who was accompanied by a Mr Williams. Mr Wiltshire was very aggressive from the outset and after trying to calm him down Mr Williams left. Mr Mills and Mr Wiltshire had a brief scuffle before Ms Stadden arrived.

1.13. Mr Juke supplied Ms Stadden with some amphetamine and Mr Wiltshire then attacked Mr Mills with a crowbar, hitting him a few times. Mr Mills disarmed him, whereupon Mr Wiltshire produced a knife and attempted to stab Mr Mills with it. Mr Mills hit Mr Wiltshire with the crowbar and managed to get the knife off him. They then rolled about on the floor and at one stage Mr Wiltshire was on top with the crowbar, whilst Mr Mills was stabbing him in the buttocks about ten times. Mr Wiltshire jumped up at the window and later Mr Juke restrained him and took him outside.

1.14. Mr Poole and Mr Mills left together, Mr Mills throwing the crowbar over a hedge. They then went to Ms Stadden’s house before going to Cheltenham. Mr Poole’s case was that Ms Stadden was lying and had made a deal with the police to avoid being prosecuted for a series of cheque frauds. Mr White was also lying and the police had beaten up Mr Wiltshire in the cells.

In 1992, two inquiries were conducted. The first was by the Police Complaints Authority into the circumstances of Mr Wiltshire’s death. This inquiry was necessary because Mr. Wiltshire died while in police custody. The second inquiry was conducted by Assistant Chief Constable Hedges of the Thames Valley Police. It was into complaints about the way the police investigated the murder. No criminal or disciplinary proceedings followed. However, the claimants’ solicitors obtained the supporting documents from each inquiry, though not the reports themselves.

The claimants’ appeal against conviction, followed the grant of a considerable extension of time in which to appeal and was heard by Otton LJ and Ian Kennedy and Keene JJ. On 16 April 1996 the court dismissed the appeal. While the claimants, at their trial at Bristol Crown Court, before Swinton-Thomas J, and a jury, were both represented by Ian Macdonald QC, on the appeal, they were separately represented; Mr Mills by Mr Mansfield QC and Mr Poole by Mr Stewart. Mr Jenkins who had prosecuted them at the trial was junior Counsel for the crown on the appeal.

A number of grounds were raised on the appeal. They included arguments about the unreliability of the evidence given by another eyewitness, Miss Stadden. They also related to the fresh medical evidence as to the cause of death which was called at the appeal. While these arguments are not directly involved in the present application, they are not irrelevant because Mr Blake relies strongly on the cumulative effect of his clients’ complaints.

On the appeal to the Court of Appeal, allegations of misconduct by the police were also raised. Mr Poole, in particular, relied on fresh evidence which cast doubt on the reliability of the witness Paul White. Both claimants advanced arguments alleging there had been material irregularities or abuses of process due to the Crown’s failure to disclose pre-trial statements made by Mr Juke, the fact that D.I. Gladding had warned Mr Juke not to attend the old style committal which had taken place, had not disclosed that warning, and, indeed, had given a misleading answer at the trial about whether he had in fact warned Mr Juke not to attend. The non-disclosure of another witness statement, that of Mr Armstrong, who described events relevant to the claimant’s contention that Mr Wiltshire’s death was caused by the police assaulting him in custody, was also relied on.

The Evidence of Mr Juke: non-disclosure of his statements

The history of events relating to Mr Jukes is as follows: on 6 January 1989, the day after the assault and the day of Mr Wiltshire’s death, Mr Juke provided a witness statement voluntarily to the police. In this first statement, Mr Juke gave a version of events which tallied with what Mr Mills and Mr Poole were to say, namely that the former acted in self-defence and the latter was not involved in the assault. Miss Stadden having phoned the Crime Line implicating Mr Poole, gave a second witness statement to that effect, and Mr Juke then also made a second statement to the police on 10 January 1989. In it, he stated that his first statement had been incomplete, he had not wished to involve his friend, Tony Poole, who did not play a major role in the events. In this later statement he said that Tony Poole had stabbed Mr Wiltshire in the buttocks two to three times, and that he, Mr Juke, had then turned his head away. He also averted Miss Stadden’s eyes so that she would not see the stabbing of Mr Wiltshire by Tony Poole, while Gary Mills was fighting Mr Wiltshire on the floor. This meant that Mr Juke lost sight of the three other men. He said that Gary Mills had given Mr Wiltshire “a severe beating”. The second statement also shows Mr Juke to be in some anxiety because he had been accused by friends of Mr Wiltshire of failing to help him. He informed the 1992 Hedges inquiry that the second statement had been made under pressure because of threats to involve him in a possible murder charge, as he had been the last one to see Mr Wiltshire before he arrived at the hospital. He now denied seeing certain injuries inflicted in the flat that Mr Wiltshire undoubtedly sustained at some stage.

A decision was made by the prosecution team that Mr Juke was a wholly unreliable witness and they would not call him. In accordance with the practice, the Crown told the defence of that intention but refused to disclose the two statements Mr Juke had made although they had no objection to the defence interviewing him. The Court of Appeal commented:

“Counsel for the prosecution decided that Juke was not a credible witness because it was believed that he would depart from the combined effect of his statements, and give evidence to support the cases of the two defendants, in the one case self-defence and in the other no involvement. Since that is precisely what he did when he gave evidence before us, counsel’s apprehension can hardly be assailed. Juke’s evidence was in total conflict with the evidence of the hospital doctor about the injuries he found the deceased to have sustained, and found long before any police officers might have made any contribution to the total found at autopsy. There was no suggested that any injuries were inflicted by anyone else after the deceased had left Conduit Street and before he arrived at hospital. It has not been suggested that counsel was moved by oblique considerations, but this circumstance alone would have made any such suggestion untenable.”

Mr Price, a CPS Senior Crown Prosecutor, nonetheless agreed with the defence solicitor Mr Gadd that he would warn Mr Juke to attend the committal hearing.

Mr Price was called to give evidence at the claimant’s appeal before the Court of Appeal. When he was asked about an internal memorandum instructing arrangements to be made for Mr Juke’s attendance, he said that this was the best he could do for the claimants’ solicitor, Mr Gadd, in view of the prosecution decision that the statements of Mr Juke would not be disclosed. This would enable Mr Gadd to have the opportunity to interview Mr Juke. He was later to agree, as a witness in D.I. Gladding’s libel action, that he ought to have added in answer to the Court of Appeal that it was also his intention to have Mr Juke at the committal hearing in case there were problems with Miss Stadden and Mr White from a Crown point of view. Mr Gadd said in evidence at the libel trial that he had wanted to call Mr Juke as a witness for the defence at the old style committal, so that he could see how Mr Juke performed in the witness box. This, it was thought, might also “flush out” the two undisclosed prosecution statements if the Crown cross-examined him. Mr Juke’s evidence was seen as probably more helpful to Mr Poole, though it was recognised that the outcome of Mr Juke’s evidence at the committal could mean that the two defendants would require thereafter separate representation.

There was an issue at the libel trial as to whether Mr Gadd in fact did seek an adjournment of the committal for the purpose of obtaining the attendance of Mr Juke as opposed to Mr White. Mr Gadd applied for Mr White to be brought to the committal proceedings and even though Mr White was next door in the police station, that application was refused by the magistrates.

In circumstances to which we shall return, D.I. Gladding warned Mr Juke not to attend the committal hearing and did not disclose either to the defence or to the prosecution teams that he had issued that warning, and at the claimants’ trial he specifically denied that he had had any such contact with Mr Juke.

Nonetheless on 2 June 1989, (the date of 2 May 1989 is a mistake as Mr Gadd stated in evidence at the libel trial), a few days before the committal hearing on 12 and 13 June 1989, Mr Gadd had the opportunity to interview Mr Juke. This was when he came to his office in connection with criminal proceedings in which Mr Gadd had been, but was no longer, representing Mr Juke. The interview was recorded by Mr Gadd as Mr Juke knew. Mr Gadd asked him what he had said in his statements to the police: Mr Juke said that he had told them exactly what happened and that he had not seen how certain injuries near Mr Wiltshire’s kneecaps had been caused (the defence was pursuing evidence that serious injuries had been inflicted by the police upon Mr Wiltshire when he was in their custody between 5 and 6 January 1989). Mr Juke told Mr Gadd that Mr Mills had acted in self-defence: he also he had turned Miss Stadden’s head away during the fight. He was reminded that the tape might be used and that the solicitor did not want him to say anything which he would not be prepared to say truthfully in court. Mr Juke referred to police pressure on him and was asked again about his statements which he again said described exactly what had happened. Mr Gadd asked him some very pertinent questions: why did Mr Juke have to shout “stop” as he had described if Gary Mills had only been acting in self-defence? What did he see Tony Poole do – “was he part and parcel of the assault?” The transcript of the interview continued:

“Duke: Not as far as I can see.

CG: Right. Now the girl says that he was. She says that he was involved in cutting him, kicking him, stabbing him in the arse when he was on his knees. Do you remember that?

Duke: I think that was then I turned her head around. I saw Tony just get up and then I turned back when I had turned her head around. I thought she’d come down to see Tony not Willie.

CG: Did he actually have part and parcel of that assault? Did he stab him? Did he kick him?

Duke: Tony?

CG: Did he hit him? Tony yes. You’re shaking your head.

Duke: No

CG: You’re happy to say No.

Duke: I am happy to say I didn’t see Tony do anything to him, right. I saw Tony move but I turned my head away. "

Mr Gadd returned again to the question of what Mr Juke had told the police.

“CG: Now. What have you told the police that would implicate Gary and Tony? Because we will see that soon.

Duke: They bought me a whole load of statements, right and they brought me some tools, weapons, right. … they brought in statements and they stuck them down and said “Look they are statements of people saying that Tony was involved in saying this and that and the other. They asked me a question “Did I see Tony move?” I said “yes I saw Tony move”, right. They asked did I see Tony’s stabbing. I said “No I didn’t see Tony’s stabbing”. Now this is not on tape, this is all written down on paper, but the bits that we actually talked about in between are not on the paper. I was saying things like “Look, he’s got stab wounds up his bum, how did they get there is [if] Gary was in front of him. I told them that I wasn’t looking at the time. I didn’t want to see what was happening and I didn’t want the girl to see what was happening, so I looked away. So how come the stab wounds are there? Tony must have done this Tony must have done that. I said “look, I didn’t see him do anything”. They went on for a long time, they were on that subject for nearly eight hours.”

Mr Juke continued in the interview to complain about the way the police had treated him, although describing the police as saying that they could not put words into his mouth, but that if Tony had been behind Wiltshire then Tony must have stabbed him. The transcript of the interview between Mr Juke and Mr Gadd continues:

“I said “No, nothing like that, there was nothing like that but they just write down what they feel like writing down and at the end of the day they read it out, give me a quick look through it and that’s it.” “You wanna go man, come on let’s get through it and then we can drop you home, you know, them kind of style, the stupid pressure, alright.”

Towards the end of the interview after Mr Juke had repeated that the defendants did not murder Mr Wiltshire, Mr Gadd asks him about turning up at court.

“CG: OK well let’s move on from that. I am grateful for your help and for speaking to me in the way you did. As I say, what you’ve said may or may not be used. It is very important from my point of view that you turn up in court.

Duke: I will turn up. At the beginning I was told by people saying “Oh, you had best not turn up, best not turn up “but I’m gonna be there no matter what, I’m going to be there because …. .”

At the libel trial Mr Gadd said that he was expecting Mr Juke to turn up at the committal both because of this conversation and because of the arrangement which he had made with Mr Price. He could not remember however (day 9 p 1180) whether he had actually said to Mr Juke to be there “a week on Monday” as it would have been. The discussion later on in the taped interview about court hearing dates related to an ABH case in which Mr Juke himself was the defendant, which Mr Gadd had been handling but which was now being dealt with by another firm.

At the trial, neither the Crown nor the defendants called Mr Juke. He could have been called because he regularly attended the trial, so much so that the jury specifically sent a note to the judge asking why Mr Juke had not been called in view of his regular presence, and his position as an eyewitness. The trial judge, Swinton-Thomas J, told them and repeated in his summing up that “no doubt there is a good reason why neither the Crown nor the defence have called Juke as a witness. As I said to you please do not speculate as to why a witness has not been called in a case; you must decide the case on the basis of the evidence that you have heard”.

A decision on whether or not the defence should call Mr Juke, without sight of his previous statements, was an obviously tricky one. Much of what he had told Mr Gadd was helpful to both defendants but even on that interview alone he was casting doubt on the factual basis for the assertion by Mr Mills that he had acted in self-defence and he was also implicating Mr Poole in the assault by the stabbing from which he then averted his and Miss Stadden’s eyes. It was reasonably clear that Mr Juke’s second statement to the police had implicated Mr Poole in the stabbing, and Mr Mills in administering a severe beating with a weapon to Mr Wiltshire. This latter statement highlighted what the defence knew of the problematic and large disproportion between the injuries suffered by Mr Wiltshire and the scratches suffered by Mr Mills, and also between Mr Wiltshire’s injuries and the description of the fight which the defendants were giving of essentially one man acting in self-defence. The only explanation for that problematic disproportion was that much of Mr Wiltshire’s injuries could be attributed to police violence when he was in custody. (This was an issue which the trial judge and the Court of Appeal carefully considered, the latter with fresh medical evidence. The Commission also considered this carefully and its conclusions on that matter are not challenged on this application).

Mr Gadd at the libel trial, said in evidence in chief that Mr Juke had not been called by the defendants because he had not seen Mr Juke’s statements to the police and therefore he did not know what real damage they could do. He also agreed (day 9 p1205) that by the time Mr Macdonald was cross-examining D.I. Gladding, the gist of what Mr Macdonald was doing “was putting Juke in the frame by asking about blood stained jeans and blood on the landing and the hallway”. The defence may have felt that they had little choice at that stage as to how to approach Mr Juke. Mr Macdonald’s undated statement for the Hedges’ inquiry said that the Gadd interview in essence supported the version of Mr Mills and Mr Poole, self-defence for the former and non-participation for the latter, and that Mr Juke had changed his story from that to one incriminating Mr Poole because of police pressure implying that he too was vulnerable to a murder charge. Those statements when seen supported that version of events, but without sight of the witness statements it was too dangerous to call Mr Juke because of the pressure he was under, his bad character, his inconsistent statements, and the fact that Mr Macdonald did not know if Mr Juke had told Mr Gadd the truth as to what he had said to the police and so he did not know what could be put in cross-examination of Mr Juke were he to be called. We add the observation that these were risks even after the disclosure of the witness statements but at least disclosure would have removed an area of doubt.

At the Court of Appeal it was recorded that “Mr Ian McDonald QC, then leading counsel for both defendants, has since said that had he known of the actual contents of Juke’s two statements, he would have called him, for Juke would have said that the contents of his second statement were untrue and only procured by police misinformation”. The Court of Appeal whilst not questioning that belief, expressed reservations about the value of such “reconstructions”.

At the trial, the defendants had what the Crown was later to say at the Court of Appeal and at the House of Lords, were clear indications as to the contents of the witness statements from the way in which they, and in particular Mr Mills, were questioned by the police in the taped interviews. This arose because the House of Lords ruled on the defendants’ further appeal, that although by the standards of 1990, disclosure was not required of the statements of a witness whom the prosecution regarded as wholly unreliable, such disclosure was required by the now current standards. Accordingly the effect of the non-disclosure of the two statements which Mr Juke had made to the police, had to be considered in relation to the safety of their conviction.

The particular passage in the interview of Mr Mills upon which the prosecution had placed reliance, to support its argument that there had been disclosure of the substance of Mr Juke’s statements, and on which the claimants now rely because of its inaccuracies, was as follows:

“But it is alleged by witness that were in the room and have made statements to us. That when Willie bounced off the window that they gained the impression that you thought he was attacking you again. That you put him to the floor and started to have a rough and tumble with him. It was at this point that Mr Poole came up behind him and stabbed him in the buttocks on a number of occasions and that you then got the better of Willie, became hot as they call it or lost your cool for the first in reality because they are basically saying that you have been quite restrained with the antics of Mr Wiltshire up until now. But that you then get the crowbar and in their view, you go over the top and decide to teach him a lesson and that you rain a vast number of blows aimed at the calves and thighs of Wiltshire and that it is quite clear to the one person in particular, that you meant to make him learn a lesson and that that he gained the impression that you were intending to break his legs in order to settle the matter once and for all and that you intention was to teach a lesson for all the trouble he had caused that night I mean that is couched in with the fact that up until then, you had held back in reality but at that stage you had finally lost your cool and you gave him a lesson he would not forget. That is what the people are saying they saw in the room, again you don’t have to make any comment if you don’t want to but if you wish to deny that or say anything to it you can.

A: No, as I said that’s not how I remember the incident. I am not denying that I hit his legs several times with that bar but that was with a knife in his hand”.

“They are saying that he had been overpowered by this stage. That he was completely lying on the floor on his side and that you laid about him in a ferocious manner which they could only envisage the only outcome would be broken legs, and that during the assault to end it he was actually physically dragged away from you and put outside into the hallway.”

At the libel trial D.I. Gladding agreed in cross-examination by Mr Carman QC that the words highlighted above did not appear in Mr Juke’s or Miss Stadden’s statements. The underlined passages do not appear in the statements and were not put in cross-examination by Mr Carman; they appear to repeat points which Mr Carman had already established were inaccurate. The questions put to Mr Mills in the interview were actually being asked by Detective Sergeant Jeynes, under D.I. Gladding’s supervision.

Mr Blake submitted that the references to teaching Mr Wiltshire a lesson, intending to break his legs and to settle matters were so wholly inconsistent with self-defence that they highlighted the risk which the defendants thought they would face were they to call Mr Juke. In cross-examination he might adopt such statements as being true, albeit inconsistent with any helpful things which he might have said in evidence in chief. Calling Mr Juke without the statements would lead to the risk that separate counsel would be needed, depending upon how his evidence turned out. The fact that they could not take the risk of calling Mr Juke also meant, so it was thought, that the tape recording of the conversation between Mr Juke and D.I. Gladding, in which the latter warned Mr Juke not to attend the committal proceedings, could not be used against D.I. Gladding. The defence had already been provided with that tape recording by Mr Juke. Accordingly, non-disclosure of the statements had the further effect, to which we shall return, that the defence was unable to challenge D.I. Gladding and show yet more serious prosecutorial misconduct, all of which would have been of assistance in mounting a case against the police by way of defence.

At trial, the defendants knew that the Crown thought Mr Juke was wholly unreliable and therefore that there probably were inconsistent statements. This would have been borne out in some measure by the interview between Mr Juke and Mr Gadd. Mr Macdonald did not seek to exclude the questions asked of Mr Mills, which have been set out above, though he could successfully have done so.

However and for whatever reason, when each defendant was separately represented and was represented by fresh counsel in the Court of Appeal, and were seeking to produce fresh evidence on a range of issues, no application was made by either defendant to call Mr Juke even though by that stage they had had disclosure of the two statements, via the inquiries into the police investigation and into Mr Wiltshire’s death in custody. They could see how Mr Juke’s statements would affect the evidence in chief and cross examination and indeed they could see the discrepancy between his statements and the questions put to Mr Mills in his police interview, but nonetheless they each chose not to call him. It was on the initiative of the Court of Appeal itself that Mr Juke was called and gave evidence in answer to questions asked by the court, to the effect that Mr Mills had not used any real force, that he had acted in self-defence and that Mr Poole had done nothing but separate Mr Mills and Mr Wiltshire. The defendants had no questions for Mr Juke but the Crown did. He was cross-examined about the transcript of his interview with Mr Gadd, about whether he had been in fear from anybody, about any reaction he had experienced from either the defendants’ or the deceased’s factions, and about whether he had been asked to go to the committal hearing and had also been asked not to go.

The Court of Appeal considered the effect of Mr Juke’s evidence on the question whether, if the non-disclosure of his statements had been a material regularity, that would have affected the safety of the convictions. The Court of Appeal concluded as follows:

“ If our conclusion had been that there was a material irregularity in the non-disclosure of Juke’s statement, we would have had to consider whether for that reason either conviction was unsafe. Having heard Juke in the witness box we are sure that his evidence would not have raised doubts in the jury’s minds as to the guilt of either defendant. We have already referred to the conflict between the injuries spoken of by Juke and the casualty doctor’s findings. It was Juke who took the deceased from the front room in which the incident happened and left him on the street outside. He was thus well placed to know in general terms what injuries the deceased had sustained.

Miss Stadden said that Juke had for a period covered her eyes so that she would not see what was happening. Juke agreed that he had done so, and that in doing so he had turned his head away from the incident and towards Miss Stadden. But, he insisted, he had covered her eyes only for a moment, and only turned his head for that moment. Thus it was not possible to explain his not having seen the infliction of the injuries to the deceased’s buttocks and below his knee caps on that account.

In our judgment, Juke’s evidence would only have served to underscore the disproportion between the extensive injuries to Wiltshire seen at casualty and the minor injury to Mills. Any question of who began the violence aside, the distribution of those injuries to the deceased that were seen pre-arrest told most strongly against primarily Mills, but Poole also.

Moreover, it is likely the jury would have connected these two pieces of evidence and drawn the inference, (as we unhesitatingly do) that Juke covered her eyes to spare her witnessing the savagery of the attack on the helpless Wiltshire – a visitor from the London drug scene who was to be taught a lesson for attempting to muscle in on the Gloucester drug scene on which Poole and Mills were obvious key players.

We are fully satisfied that had Mr MacDonald called Juke at the trial his evidence would not have assisted either appellant in any way.

It is perhaps not without significance that having obtained possession of the statements neither defendant applied to call Juke as fresh evidence. The initiative came from the court who (with the consent of the appellants) required Juke to give evidence and then permitted cross-examination by all three interested parties.”

This was a conclusion which the House of Lords said the Court of Appeal had been fully entitled to reach: [1998] AC382 at p406.

We turn now to the significance of the inaccuracy of the questions put to Mr Mills in his police interview about what was said in Mr Juke’s statements, and the materiality of the non-disclosure of those statements, as assessed by the Court of Appeal and the House of Lords. We have already referred to the possible effect of non-disclosure upon the judgement as to whether or not to call Mr Juke, and the effect which that may have had on the playing of the taped conversation between Mr Juke and D.I. Gladding in cross-examination of the latter.

D.I. Gladding gave evidence to the Court of Appeal. However it was not suggested to him by anyone that those questions as put by D.S. Jeynes to Mr Mills in the interview were inaccurate, although all the material for such questioning was there. The differences were first explored during Mr Carman’s cross-examination of D.I. Gladding and D.S. Jeynes, as he was in 1989, during the 1998 libel trial. D.I. Gladding agreed that the differences existed and that the questions were inaccurate, while saying that D.S. Jeynes had been trying to summarise the statements as best he could. D.S. Jeynes said that he was giving a broad summary of what Mr Juke and Miss Stadden had said in interview and in their statements, including references to legs having been broken, and to what Mr Juke said to D.S. Jeynes while there were together. He agreed that it was important not to misrepresent a statement so as to get admissions. No admissions in fact were made in response to those questions.

The Court of Appeal said of the interview:

“Moreover it was an accurate summary of the substance of Juke’s second statement and was inconsistent with Mills’s defence of self-defence and Poole’s denial of any involvement.”

As we have said, the defence made no attempt to exclude this part of the interview. More to the point the defence cannot justifiably claim that they were wholly unaware of what Juke had told the police because of his interview with Mr Gadd. In the House of Lords it was held that although the failure by the prosecution to disclose Mr Juke’s statements had constituted a material irregularity at the trial, the Court of Appeal had been entitled to conclude that if Mr Juke had given evidence for the offence, the defendants would still have been convicted and that accordingly the convictions were not unsafe. Lord Hutton set out the essential parts of the first and second statements which Mr Juke had made to the police, as well as parts of what Mr Juke said to Mr Gadd, followed by the relevant extract from the interview with Mr Mills. At page 405, Lord Hutton said:

“Therefore the final question for decision is whether this material irregularity made either of the convictions unsafe. In my opinion it did not for two reasons. First, although the non-disclosure of Juke’s two statements meant that the defence did not have precise knowledge of what Juke had told the police in those statements about the actions of the two defendants, nevertheless the information which Juke gave to Mr Gadd, the solicitor for the defendants, in the detailed interview which the latter conducted with him, together with the substance of Juke’s second statement which was put to Mills by the police when they questioned him, meant that the defence were aware of the general nature of the information which Juke had given to the police and were alerted to the risks which would be involved in calling him as a defence witness. Accordingly I am in agreement with the view of the Court of Appeal that any prejudice from the non-disclosure was thereby largely eliminated.”

Lord Hutton’s second reason related to the Court of Appeal’s conclusion that it was sure that Mr Juke’s evidence would not raise doubts in a jury’s mind, having called him and seen him give evidence.

As Mr Blake submits, even though the relevant material was available, read and indeed set out, no one, whether advocate, or member of the Court of Appeal or House of Lords picked up that the questioning at the interview involved the putting of an account which was inaccurate and that this could be due to misconduct by the prosecutor. Mr Blake submits that that was a separate issue from whether the misleading question had caused Mr Mills to make an admission, which it had not, and from whether the question could have been excluded, which it could have been but was not.

Order: Application refused; legal services funding of applicant's costs; permission to appeal refused.

(Order does not form part of the approved judgment)