England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 February 2009

1. LORD JUSTICE SCOTT BAKER: I will ask David Clarke J to give the first judgment.
2. MR JUSTICE DAVID CLARKE: The claimant, Paul Alexander Cleeland, is now some 66 years of age. He seeks judicial review of the refusal of the Criminal Cases Review Commission to refer his conviction for murder to the Court of Appeal (Criminal Division). That refusal was formally notified with reasons on 29 April 2008.
3. The claimant seeks an order quashing that refusal, and an order that the Commission make a fresh decision. A further order is sought as to the manner in which it should do its work, namely that the Commission must obtain expert evidence and legal advice on the points raised in the application.
4. The claimant was convicted on 25 June 1973 in the Crown Court at St Albans before Lane J (as he then was) and a jury of the murder of Terrence Clarke. That was a retrial, the jury at an earlier trial having failed to agree. The claimant was sentenced to life imprisonment, the judge recommending that he serve a minimum of 20 years. In the event we understand he served rather longer in custody before being released on a date in the late 90s.
5. Both throughout his period in custody and since, the claimant has left no stone unturned in his efforts to challenge his conviction. The case has a very long procedural history. The fact that it has such a long history and that he has made so many applications is not in itself a factor that I in any way take into account in assessing the merits of the present application.
6. A few key dates can be given. His first appeal against conviction was dismissed by the Court of Appeal (or rather leave was refused) on 26 February 1976. Thereafter, numerous representations were made to the Home Secretary seeking a referral back to the Court of Appeal. In 1996 a judicial review of the Home Secretary's refusal was dismissed. Following the establishment of the Commission, representations were made to the Commission to refer the case to the court. On 23 October 1998, the Commission refused to refer the case. Following judicial review proceedings, this court quashed that refusal on 21 January 2000. On 24 October 2000, the Commission, on further consideration and having obtained a report from an expert, referred the case to the Court of Appeal, giving its full reasons on 23 October 2000.
7. The Court of Appeal (Criminal Division) following a lengthy hearing, which included substantial further evidence, dismissed the claimant's appeal on 13 February 2002. The judgment ran to 39 pages and 138 paragraphs. On 6 December 2002, the claimant made a further representation to the Commission, which was rejected on 31 March 2003. On 27 February 2007, he made a third application to the Commission, supported subsequently by an expert's report from Mr Gibbs. On 6 February 2008, the Commission expressed its provisional view that it would not refer the case again to the Court of Appeal. On 7 and 10 April, further representations were made, supported by further evidence from Mr Gibbs. On 29 April, the Commission issued its final refusal letter in respect of which the present proceedings are brought.
8. It is convenient to turn to the principles of law which we must apply. The power of the Commission to refer the case to the Court of Appeal is governed by section 13 of the Criminal Appeal Act 1995. This section provides as follows so far as relevant:

"(1) A reference of a conviction ... shall not be made under any of sections 9 to 12 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 consider in the case of a conviction 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, and

(c) 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) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it."

9. The power has been considered by the court on a number of occasions. In R v CCRC ex parte Pearson [1999] 3 All ER 498, Lord Bingham CJ said at paragraph 13:

"The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else."

10. He went on at paragraph 14:

"The real possibility' test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission's judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant's prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not."

11. In the later case of R v CCRC ex parte Hunt [2001] 2 Crim App R 76 this approach was reaffirmed. It is not necessary to lengthen this judgment with citation from that case. But in Mills and Poole v CCRC [2001] EWHC Admin 1153, the Lord Chief Justice said this in paragraph 13:

"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."

12. Later in paragraph 14 he added:

"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."

13. I now turn to the nature of the murder and the evidence and issues at the trial, which can, in my view, best be taken from paragraphs 9 and 10 of the judgment of the Court of Appeal in February 2002. They are as follows:

"9. Terrence Clarke, the deceased, had a substantial criminal record and, prior to the shooting, had been separated from his wife, Patricia Clarke, for some time. However, they had been reconciled shortly before and were living at Grace Way, Stevenage. At about 2am on 5 November 1972, together with a Mr Caldon, they returned to Grace Way by car from an evening out. Grace Way was a cul-de-sac ending in a fence containing the back gate to the Clarkes' house. Terrence Clarke drove down the cul-de-sac, past the line of garages on the right hand side, and parked with the bonnet of his car almost up to his garden fence. As he got out of the car, he was shot twice by a gunman who had apparently been lying in wait in the area of the garages to the right rear of the car. The prosecution case was that the appellant was that gunman. It relied on evidence that the appellant, who had known Terrence Clarke for some years, was harbouring a grudge against him and had previously threatened to shoot him; also upon the fact that the appellant had knowledge of the deceased's movements that night. There was evidence that, shortly before the shooting, the appellant had purchased the gun which the Crown alleged, and called forensic evidence to demonstrate, was the murder weapon; he had also attempted to obtain shotgun cartridges, which had been purchased by one Graham on his behalf. Wadding of the type used in such cartridges was found at the scene. There was evidence from police officers of incriminating conversations between Graham and the appellant when both were detained in police cells on suspicion of the murder. Evidence was also called of lead contamination, consistent with recent discharge of a shotgun on the appellant's clothing.

10. The appellant denied that he had been involved and suggested other candidates. He relied upon an alibi (as to which the Crown called contradictory witnesses). He robustly asserted that effectively all the key prosecution witnesses were lying and that the police had fabricated evidence. He attacked both the veracity and the reliability of Mr McCafferty alleging that he had never in fact carried out an examination of the gun alleged to be the murder weapon ..."

14. It is to be noted that the claimant represented himself at the trial, having evidently fallen out with his lawyers, and at the 2002 appeal, although represented Mr Fitzgerald QC and a junior, he was personally permitted to take part in cross-examining witnesses and addressing the court. As appears from the judgment of the court on that occasion, the case had been referred to the court by the Commission on a single narrow ground concerning the evidence of the prosecution's ballistics witness, Mr McCafferty. This witness had given evidence at the trial, and it is to this witness's evidence, and to the summing-up of that evidence, that the present complaint relates.
15. Mr McCafferty was a Principal Scientific Officer at the Metropolitan Police Forensic Science Laboratory, where he had been employed for many years. His evidence, and that concerning the firearm, are set out, so far as is known, in paragraphs 81 to 88 of the 2002 judgment. The single narrow ground on which the Commission had on that occasion referred the case back to the Court of Appeal arose from the expert evidence obtained by them from Mr Spencer, who was critical of the expert evidence at trial in a number of respects. But the particular ground focused on the evidence of Mr McCafferty about the gun, and in particular the firing distance, which appeared to the Commission on its review of the other evidence to be arguably inaccurate and unreliable so that, in the Commission's view, there was a reasonable possibility of this court quashing the conviction.
16. In addition to the referred ground, the claimant in the Court of Appeal widened his attack on the conviction and raised numerous other grounds, renewing in particular his assertion that all the essential prosecution witnesses at his trial had perjured themselves to create a false case against him, and in particular that Mr McCafferty had never examined the gun at all. Despite being represented by leading and junior counsel, as I have indicated the Court of Appeal permitted him to address these points directly to them. The case was considered in the closest detail and all 20 grounds of appeal were rejected.
17. The point now taken, and upon which the learned single judge granted leave for judicial review to be sought in this court, also arises from the evidence of Mr McCafferty. He had given evidence at the trial of examining clothing seized from the claimant. He examined various items for the presence of lead, since lead contamination can occur as a result of both the use and handling and discharge of a firearm. A positive reaction was obtained from a number of items, which the witness accepted might have been used in the appellant's work as a painter and decorator and were therefore of no real significance. However, a grey three-piece suit and a brown donkey jacket, which had no work stains, also gave a positive reaction for lead.
18. The defence called an expert, Mr Lyne, who agreed with those findings of Mr McCafferty. Mr Lyne added that the suit could have been contaminated by environmental factors, and that contamination could occur, as one example, if one stood near to the exhaust pipe of a car. Thus, as presented at trial, the finding of lead on clothing, and particularly on a suit not worn at work, was adduced as a factor capable of supporting the prosecution's case.
19. At the heart of the point taken is that, in the summing-up of the trial judge, the jury were misled and misdirected. The relevant passage of the summing-up appears at pages 82 to 85 of the internal pagination of that summing up and is as follows:

"Mr McCafferty told you that if cartridges are fired in a gun, there is not only a coating left inside the bore of the barrel but also smoke tends to exude from the front and from the back when the rounds are removed, if they are. That is obvious. What perhaps is not so obvious is the fact, as he went on to describe, that the outer part of the gun gets contaminated by the powder residue and in the present case, when he examined the gun if he ever did, there was such fouling in the barrels, and he took samples from the barrels, and also there was such fouling on the outside, because you may recollect he took swabs from the outer surfaces of the gun and those surfaces were in fact contaminated. He explained to you, you remember, the main constituent of such contamination. He said there was lead - lead salts which mainly come from the primer - and the technical scientific constituent, he said, was lead azide. He went on to say that hands can be fouled by these substances on the outside of the gun and also, if and when you take the cartridges out, you can get powder transferred also to your hands.

It is with those matters in mind that you will recollect a number of items of clothing of the defendant were taken from him and from his home and were examined in order to discover if there were any traces of this lead residue. The items which proved to be of interest, to use a negative term, were, you recollect, the grey suit, described by, I think, Mr Lyne as the blue suit, Exhibit 46, but it is the same suit, the three-piece suit; Exhibit 47, the tan trousers; 48, the mustard coloured cardigan; 49, the two-coloured cardigan, blue and brown, and 35, the donkey jacket, all admittedly the defendant's clothes.

He tested all those clothes chemically for the presence of lead deposits, and on Exhibit 46 - and on this aspect of the case there was little if any difference between the two experts, Mr McCafferty on the one hand and Mr Lyne on the other - on Exhibit 46, the suit, each of them found a positive reaction for lead over the front of the waistcoat and also on the bottom part of the jacket on the right-hand side, running down - you remember he indicated - roughly from the lower level of the point of the lapel to the bottom of the jacket. That suit was apparently not a working suit. 'A walking out suit', I suppose, would be the best expression to describe what the two scientific gentlemen told you, the importance of that being, of course, that the defendant, who, as we know, is a painter and decorator, would come into contact with lead based paints and if he did and if they left a residue, his clothing would of course give a positive reaction for lead. That is the grey or blue-grey suit."

20. The judge then referred to other items of clothing examined by Mr McCafferty, and went on:

"As I say, Mr Lyne was in substantial agreement with those findings. He, you will recollect, went on to say that you can get clothing contaminated from ordinary environmental reasons. He mentioned the petrol fumes from petrol which contains lead. He said with regard to the three-piece suit, in his evidence-in-chief, this: 'The lead on the three-piece suit would be consistent with entering an environment in which there was lead with the car coat open at the front which would expose the suit to contamination.' Then he went on to deal with Exhibit 40, which were the trousers which perhaps you need not bother about, but what he went on to say in cross-examination was this: 'So far as the suit is concerned, Exhibit 46, the ordinary petrol fumes in a street would not produce a positive reaction', and you will remember, no doubt, that he distinguished between that type of general contamination and a specific type of contamination which would happen, for instance, if you placed your leg with the trousers on it immediately behind an exhaust pipe.

The other possibility which was mooted as a reason for lead contamination was the sanding off of lead-based paint, which might produce a powder containing lead which, in its turn, might contaminate clothing. Against that, you have to balance the fact that, in the view of these two gentlemen, the blue-grey suit was not a work suit.

There it is. There is no possible explanation forthcoming that I have been able to extract from the evidence apart from the environmental possibility and also the sanding off of paint; that is to say, with regard to the best clothes. With regard to the working clothes, I have perhaps dealt with that already and there we can leave the scientific evidence."

21. I turn to the complaint now made before us, which arises directly from the passage of summing-up which I have just read. At the heart of the complaint is the assertion that Mr McCafferty's evidence of the finding of lead on the claimant's clothing, specifically the three-piece suit (Exhibit 46) which was not part of his working clothes, was relied on to establish that the claimant had fired the gun because it was firearms discharge residue. The submission is that, on the information now known, the testing done on the clothes was in fact no more than a screening test revealing the presence of lead in some form, which could just as well have arisen innocently from environmental contamination or from contact with lead-based materials at work. The argument is that there was no purpose for adducing this evidence other than to prove, as it was put in the written arguments, that the claimant had fired the weapon.
22. The claimant draws attention, in particular, to the judge's reference to lead azide, and complains that, by what he said, he misinformed the jury that Mr McCafferty had found lead azide on the clothing and on Exhibit 46 in particular. My first observation upon that is that, if the judge had done that or had seemed to do that, it is totally inconsistent with the passages in which he repeatedly said that there was no real disagreement between Mr McCafferty and Mr Lyne.
23. The reference to information now known is that contained in the evidence of Mr Gibbs, which was submitted to the Commission in support of the representations, and supplemented by further reports after the Commission had indicated its provisional view. I have read those reports and parts have been read to us in the course of the hearing. The substance of them is evidently not challenged on behalf of the Commission. It is in essence to the following effect: Mr Gibbs, having examined the work done by Mr McCafferty, could see that he did not carry out any test which would have identified lead azide, and indeed there was no scientific evidence to support any assertion that lead azide was present. All that was tested for was lead -- no more than a screening test. There was no search for or analysis of gunshot residue particles; no attempt was made to discriminate between lead from extraneous sources and that which might have arisen from firing a gun. Thus, no one could properly say, and it could not properly have been said, that the presence of lead compounds on the clothing was a result of the firing of a gun. Accordingly, the finding of lead, quite apart from the specific issue of lead azide, was irrelevant and thus inadmissible at the trial. There was no further reference to lead azide in the course of that summing-up beyond the single reference which I have already read.
24. The point is developed in various ways in argument, but it seems to me that it is open to a number of objections. The first relates to the evidence actually given. There is no transcript now, after all these years, of the evidence of Mr McCafferty given at the trial. So far as the trial itself is concerned, the court only has the summing-up to work with. On the face of that summing-up, in my judgment it does not appear that Mr McCafferty went anything like as far as is now asserted. He said that lead was detected on various items including exhibit 46. Mr Lyne, called by the defence, agreed, and as the judge said in his summing-up, there was little difference between them.
25. We have therefore looked at and been referred to what other material may be available to assist to determine what Mr McCafferty actually said in evidence. Mr Cleeland personally expressed objection to us considering material from other sources which was not part of the evidence given in his trial, but at a later stage, prompting Mr Fitzgerald QC, who was appearing for him before us, he relied on a passage in the transcript to which I am about to refer. But first, in the pretrial statements of Mr McCafferty, there is nothing to suggest that the witness was asserting that the lead which he found was firearms discharge residue. He did not say in those statements that the deposits of lead came from the firing of a gun; still less that they must have come from the firing of a gun. On the contrary, he said in cross-examination at the old-style committal proceedings at the Magistrates' Court as follows:

"I found that it gave a positive reaction to lead on the outer surfaces generally. When I say that, there are minute traces sufficient to give a chemical reaction. It could be caused by minute traces of lead. It could have been caused, for instance, by a gun being wrapped in the coat. [And a few minutes later] I don't say it must have come from a gun, I say it could have come from a gun such as that shotgun."

26. We do have a transcript of the cross-examination of Mr McCafferty by the claimant himself at the first inconclusive trial before Thesiger J and a jury. It is clear that the cross-examination was conducted with considerable skill and mastery of detail. At page 21D of that transcript, Mr McCafferty was asked this:

"I am not an expert, but I am trying to get some answer from you explaining something. If a man fired a gun who was wearing that coat - the top coat, the suit jacket and the waistcoat, can there be any reason why he should not have lead on the trousers?"

27. Mr McCafferty answered:

"No. My Lord, I am not suggesting that if one fires a gun whilst wearing a jacket, one is likely to get lead dispersed evenly over the whole of the garment concerned. The reaction I got from that coat could have been got from a gun. It could have been got from a number of other sources. If it had been got from a gun, I would have expected it to have been got from something like the gun being wrapped up in the coat or the coat being wrapped round the gun to conceal it, or something of that order. That is the sort of situation which might - and I must stress 'might', my Lord - have produced the reaction which I got on this court. It could not have been produced by someone firing a gun once and then putting the gun away. I would not have expected to find lead dispersed over the whole of the coat from that and insofar as the jacket and waistcoat are concerned, I would have expected something of that order to have occurred - the gun being held on the clothing - to have produced the results that I found by way of lead."

28. It seems to me that in this passage Mr McCafferty was distancing himself from any proposition that what he found was indicative of firearms discharge residue. Furthermore, I have no doubt, having read that cross-examination, that if he had given significantly different evidence at the subsequent retrial, not only would it have been in conflict with the evidence of Mr Lyne, but he would have been severely taken to task for it in cross-examination.
29. Mr Fitzgerald, prompted by the claimant, draws attention to the re-examination of Mr McCafferty by Mr Gardner, counsel for the prosecution, immediately after the passages of cross-examination which I have just read. It ran as follows:

"Q. You put the gun to your hip at one stage in demonstrating what could have happened to get lead on the clothing.

A. Yes.

Q. That would be firing it from the hip, presumably?

A. Yes, firing it from the hip or putting it in contact with the clothing after it had been fired.

Q. Yes, so then you would get it on the coat and waistcoat?

A. Yes.

Q. If there were a donkey jacket or something of that kind being worn, what would be the effect if that garment was being worn and the gun were fired from the hip?

A. Similar to what would happen with a jacket. One would tend to get the lead on the front of the clothing."

30. That may have been an attempt by counsel to invite Mr McCafferty to go further than he had gone previously, but it did arise from the cross-examination. He gave evidence that if the gun was fired from the hip, this could lead to lead, in the sense of firearms residue, being deposited to a limited extent on the front of the clothing. But this is quite different from saying that what he found was firearms residue; still less that he had been maintaining at trial that what he found was firearms residue. That is something which he had never previously said and which would be inconsistent with what he had just said in that long answer in cross-examination.
31. The claimant now relies on a statement made by Mr McCafferty many years later, on 22 November 1978, that his examination of the clothing was principally for firearms discharge residue. That may have been the purpose of his examination of the clothing, but there is nothing to suggest that he found any, or that he has ever said that he did; quite the contrary, as I have already indicated. Such a suggestion would be contrary to his earlier statements and evidence. It may be that by 1978, six years after he did this work, he thought that this was what he had done. But the context of the statement of 1978 must be remembered. In representations by the claimant at the trial at the first appeal, and in applications to the Home Secretary and to the courts thereafter, it was repeatedly asserted that Mr McCafferty had committed perjury and had not examined the gun at all. This was a statement prepared to deal with that assertion and with the issue of continuity, rather than as a part of a review of the detailed content of the evidence itself.
32. In this context, Mr Cleeland, in his reply after dispensing with the services of Mr Fitzgerald this afternoon, drew attention to something that Mr Fitzgerald had also drawn our attention to, but did it with great emphasis: the Commission's own description of the evidence in the 2002 referral, and compared that with the Commission's stance today. In the referral letter in which, as I have indicated, the case was referred on a narrow ground which did not relate to the lead tests, the Commission said this at paragraph 10.63 and 10.64:

"10.63. Mr Cleeland asserts that tests used to detect lead on clothing were flawed.

10.64. At trial, Mr Cleeland called his own expert to refute the findings of Mr McCafferty in relation to the lead tests carried out on Mr Cleeland's clothing. Both experts found lead on some of the clothing but Mr McCafferty linked this to lead contamination from firing and/or handling firearms and the Defence expert linked this to environmental contamination or contact with lead based paint. This matter was therefore before the jury at trial."

33. I would make two observations on that submission. Firstly, Mr Cleeland is giving only a partial reading of the paragraph because the phrase is "firing and/or handling firearms". Secondly, it does not, in my judgment, assist us in our task of ascertaining and making findings from all the evidence actually available as to what the evidence at the trial was.
34. Turning to the summing-up, it seems to me that the relevant passage of the summing-up which I have read cannot fairly be read as a statement, let alone a direction, that Mr McCafferty said that he found lead azide on the clothing which he examined. The pattern of this section of the summing-up, read as a whole, is that the judge was reminding the jury that Mr McCafferty first told them what can happen and what can be found, and then went on to say what he did find in this case. In that latter passage there is no reference to lead azide, which was only mentioned once in the first part.
35. I do not overlook the point that it is now known that the test actually done could not have detected lead azide, but it does not follow from that that the witness said that lead azide was found on the guns. Looking at the available evidence, including his earlier statements, and this passage of the summing-up, he did not.
36. Thirdly, there is, in my judgment, no basis for arguing that the evidence of Mr McCafferty on the clothing issue was inadmissible. The argument in essence is that because the evidence was presented as probative of the gun being fired, and because it proved no such thing, it ought not to have been admitted at all, even though no objection was made at the trial, and indeed none has ever been made until the present representations leading to the hearing before us to the effect that the evidence should not have been admitted at all. Quite apart from that, the argument that it was inadmissible does not seem to me to be correct. The question for the jury, just one of many issues of fact before them, was whether the presence of lead on these items of clothing was a piece of evidence which they could properly take into account as supportive of the prosecution's case that the claimant had been in contact with a gun, or whether it was explicable in some other way. Such a state of affairs is commonplace in a criminal trial, where a number of separate items of circumstantial evidence are relied on in combination to establish a case, and if the jury so find, to found a conviction. The fact that more sophisticated and discriminatory evidence could have been obtained, or the fact that more sophisticated testing procedures become available many years later, does not justify the view that the actual evidence at trial was inadmissible, even by the application of hindsight. In trials for offences of personal violence, for example, the presence of bloodstains has been relied on for many years as relevant evidence to support the case against a defendant on trial. Before the days of DNA testing, the only discriminatory test was blood grouping. Thus, the presence of blood of a particular group was relied on against a defendant who was of that group. Had DNA testing been available, the defendant might have been able to say he was excluded; alternatively the Crown case might have become immeasurably stronger. But it does not follow that the evidence, because it was not diagnostic or conclusive, was thereby inadmissible.
37. I have not found it necessary to deal with all the different ways in which the argument has been advanced on the claimant's behalf, but it seems to me that they are all sufficiently answered by the Commission in a way which cannot possibly be regarded as clearly wrong or outside the ambit of their proper judgment as discussed in the decisions of the court.
38. Furthermore, it seems to me that the claimant's case before this court faces yet further hurdles. Firstly, the point is not wholly new. Many aspects of the evidence of Mr McCafferty have been repeatedly criticised in the earlier representations. In the early 90s, there was a long course of representations to the Home Office (Division C3) seeking a Home Secretary's referral. In the course of that, an inaccurate paraphrase of the relevant passage of the summing-up was prepared within C3, a matter which led to extensive judicial review proceedings, eventually concluded on 2 October 1991, the leading judgment being given by Potts J and a second judgment by Nolan LJ, who presided. The corrected position, as made clear by Potts J, was that the scientific evidence of the findings of lead was inconclusive. That is quite different from saying it was inadmissible.
39. In subsequent proceedings, on 28 November 1991, Simon Brown J commented that it was not claimed that the lead found on the claimant's clothing, particularly the suit, must have come from the gun.
40. The Commission eventually did refer the case to the Court of Appeal. They did so on the single limited ground which we have indicated. The appeal was widened to 20 grounds in all, including ground 12, which did concern that evidence. That ground is set out in full in the bundle before us. It was summarised by the court at paragraph 67 of its judgment as follows:

"This ground criticises the method and evidence employed by Mr McCafferty in relation to testing the appellant's clothes for lead contamination by asserting that, by the date of his test, there was available a more sophisticated test than that applied which could differentiate between lead caused by firearms and lead caused by environmental contamination. It is said this casts serious doubt on the reliability of all the evidence based on the presence of lead."

41. The claimant's representations to the Commission have been wider in scope, but they dealt with the points relating to the examination of the clothing in the way that we have already referred.
42. In the argument before the full court, and in the judgment, it is clear that there was no submission based upon the terms of the summing-up, and particularly the reference by the learned judge to lead azide. It might be thought that if the claimant, who clearly has the closest personal grasp of all the issues in the case, thought there was anything wrong or misleading in the reference to lead azide, or that the judge misled the jury in that way, the issue would have arisen then if not long before. As I have indicated, the thrust of the ground of appeal was that there was another form of test available at the time, and that, supported by the evidence of Mr Gibbs, grounds a further argument in the present proceedings, because he says that two further forms of scientific testing were available at the trial but were not used, namely Atomic Absorption Spectroscopy and Neutron Activation Analysis. From this it is argued, even though the defence had their own experts at trial, that the 2002 proceedings in the Court of Appeal were unfair because of the failure of the experts called by the Crown to disclose the existence of those tests.
43. As to that, it seems to me that the Court of Appeal in 2002 was dealing with the grounds of appeal as presented to them, and the fresh evidence called in the form of expert evidence before the court was limited to the matters with which the witnesses were called to deal. In any event, the issue of the availability of another form of test was adjudicated upon in 2002 in the part of the judgment dismissing ground 12. The fact that yet further forms of test are said to be available does not seem to me to raise a fresh point justifying a further reference.
44. Finally, I turn to the Commission's task of considering whether there was a reasonable possibility that the Court of Appeal would allow the appeal and quash the conviction. This necessarily involves a consideration of the evidence as a whole, and the entire course of the trial. So far as we are concerned, that consideration is assisted by reviewing the long and detailed judgment of the Court of Appeal itself in 2002, itself given some 29 years after the trial. There was a number of strands of highly incriminating evidence, properly considered by the jury, and on which they came to conclusions adverse to the claimant. These are challenged in the submissions. It is pointed out that the claimant denied having formed a grudge, denied the threats to shoot, denied having bought the murder weapon and the cartridges. All these issues were clearly and squarely before the jury, and cannot be put on one side when focusing only on the matter before us.
45. Even if I were wrong in holding that the reference to lead azide was not a misdirection in the particular context, I consider that that error on the judge's part was quite insufficient to require the Commission to refer the case to the Court of Appeal once again, and quite insufficient to justify this court quashing their refusal to do so.

A final point made in the complaint to this court is that the Commission made its decision by one Commissioner rather than three. That point was answered as a matter of law in the Commission's acknowledgment of service, and it is not contended now that it was unlawful. It is contended only that, as a matter of discretion, the Commission should, in the circumstances of this case, have referred the matter to three Commissioners for determination. I do not accept that submission, and I find no grounds for upholding any part of the application.

46. Accordingly, I would refuse the application.
47. LORD JUSTICE SCOTT BAKER: Permission to apply for judicial review was granted on the papers in this case on all grounds save one, despite the view of the Deputy High Court Judge that not all of the grounds were arguable. He took the view that the case deserved consideration at a full hearing, although the authorities presented considerable hurdles.
48. I would wish to emphasise the very high threshold that has to be crossed to persuade this court that a decision by the Criminal Cases Review Commission not to refer a case to the Court of Appeal (Criminal Division) is unlawful. A grant of permission to apply for judicial review in a case of an alleged wrongful conviction, especially in a case with as long a history as the present one, is liable to raise the hopes and expectations of the convicted person. An alternative to granting permission on paper would have been to adjourn the permission application for an oral hearing on notice to the CCRC. Had that been done in this case, the CCRC could have been able to expand upon and explain the grounds for resistance in the acknowledgment of service, and it may very well have been that permission would not then have been given.
49. Accordingly, the application is refused.
50. MR FITZGERALD: My Lords, there is just one other matter, and I think I had better just read it out because it may be difficult for your Lordships to decipher it, but this is what I say, acting on instructions:

"Mr Cleeland instructs Queen's Counsel to apply for leave to appeal to the House of Lords on a point of law of public importance, namely that he has a matter of law he wishes to raise which he was presented from doing having decided to represent himself but been unfairly excluded from court."

51. It is signed by the claimant, and then under the heading "Article 6 of the European Convention on Human Rights", there is this point:

"Point of law. Where a person elects to dispense with counsel and exercise his right to represent himself, whether he should be restricted in his submissions by those already made by counsel. Specifically, whether he should be permitted to address the court on the merits of his case as a whole."

52. My Lords, I do not think it would be appropriate for me to elaborate. Although it is a Doughty Street letterhead, I assure you this is the applicant's own application.
53. LORD JUSTICE SCOTT BAKER: Thank you. We decline to certify, and in doing so, make clear that Mr Fitzgerald made full submissions on Mr Cleeland's behalf. We then asked for the assistance of Mr Christie on limited grounds which we specified. At the point where Mr Fitzgerald was given an opportunity to reply, Mr Cleeland terminated his services and sought to address us afresh. It was made clear by the court to Mr Cleeland that he could address us, but only in reply to the matters that had been argued by Mr Christie. Despite being warned that he had to abide by this limitation, on several occasions Mr Cleeland declined to do so, and in the light in particular of an earlier outburst during the course of the proceedings this morning, we took the view that he should be excluded from court for the remainder of the case.
54. It seemed to us that, having had the benefit of leading counsel to argue his case, what was not appropriate was to allow him to start all over again on whatever grounds he sought to put to us. We can see no point of law here to certify.
55. MR CHRISTIE: My Lord, the only other matter is the question of costs.
56. LORD JUSTICE SCOTT BAKER: Yes.
57. MR CHRISTIE: It is right to say that the claimant is legally aided, but nonetheless we would ask that there be an order for costs, albeit on the usual terms, with this one rider: that at an earlier hearing in this matter there were a number of occasions in which there were problems with the listing of this matter. I do not know whether your Lordships know anything about that.
58. LORD JUSTICE SCOTT BAKER: I do not know anything about that.
59. MR CHRISTIE: But there were difficulties in relation to my attendance, and indeed I think at one point my learned friend's, but principally mine, and a hearing was held at the end of January, and at the end of January Mr Cleeland was successful in insisting that this case remain listed for today, and the court made an order (Elias J) that he receive £50 by way of costs in respect of representation at that hearing. So we would ask for an order for costs not to be enforced, save in respect of that £50 effectively set-off. I appreciate it is a small sum. I do not want to be thought to be petty, but the Commission is under great financial pressure and so would obviously object to having to pay those costs when we have been successful today.
60. LORD JUSTICE SCOTT BAKER: Mr Fitzgerald, do you want to say anything?
61. MR FITZGERALD: My Lord, all I can say is Mr Cleeland is a pensioner. As I understand it, all he was doing at that other hearing was trying to see that the matter came on as soon as possible without reference to convenience of either counsel -- either myself or my learned friend.
62. LORD JUSTICE SCOTT BAKER: Yes, and I noticed that there had been an order for an expedited hearing.
63. MR FITZGERALD: Yes, I think he was just trying to get that order honoured, and he was basically saying he did not care, putting it bluntly, whether either myself or Mr Christie was there; he just wanted the case on.
64. LORD JUSTICE SCOTT BAKER: We think that the reality of the case is that no order as to costs is going to be effective. In the circumstances we are inclined not to make an order in favour of the Commission. We think that, in the circumstances, the £50 ought to stand.