England and Wales High Court (Administrative Court) Decisions

“6. The appellant had served in the Royal Army Medical Corps. He left the army in 1986. From January 1991, he worked as an auxiliary nurse at Murrayfield BUPA Hospital in the Wirral. His job was to sterilise and prepare surgical instruments for use in operations. The deceased was his second wife. They married in June 1989. She worked at the Champion Spark Plug factory in Upton. She also ran a mail order catalogue business from home. In 1991, they bought 6, Grafton Drive. It needed considerable renovation, so, for a time, they lived with the deceased's parents. In the autumn of 1991, the appellant moved into 6, Grafton Drive, in order to spend more time on the house. The deceased remained with her parents, where the appellant also stayed from time to time. On November 11, the pregnancy of the deceased was confirmed by her general practitioner. The expected date of confinement, as the appellant knew, was June 18 or 19 1992.

7. In the early summer of 1991, the appellant had started a relationship with Sandra Davies, who worked at the same hospital. At one stage she wrote a love letter to the appellant, at his request. The appellant told his wife about the relationship. He told Sandra Davies that he was separated from his wife and invited her to move into 6, Grafton Drive. The deceased moved in at the end of October or beginning of November 1991. She telephoned Sandra Davies telling her to have no more contact with the appellant and Sandra Davies broke off the relationship. However, the appellant sent Sandra Davies a birthday card on February 11 1992 and a Valentine card the same month. In April 1992, he showed her a letter which he said his wife had written to him. This was referred to at trial as the "Nigel" letter. It stated that the appellant was not the father of the child she was expecting, which was untrue, as subsequent DNA evidence showed. It said she had been having an affair for the previous 14 months with a man called Nigel: no man called Nigel existed and there was no evidence the deceased was having an affair with anyone. It said that the appellant had been tricked about the dates in relation to paternity: he had not, because he had attended the gynaecologist and knew the expected date of confinement from the beginning. The letter also asserted "I would like you to try and pick up the pieces with Sandra". After the deceased's death, other letters were found in notebooks in the house. One typed letter had been written about the end of October 1991, a day or two after the appellant had told his wife he had someone else. She referred to the coming baby "when I am at the lowest ever in my life" and to being undecided whether to bring up the baby herself or to give it for adoption. As a result of ESDA testing, another typed "suicide" letter, referred to as the "indented" letter was revealed in a notebook. A handwriting expert said that there was strong evidence that it had been written before March 1992, when some domestic accounts had been written in the same book. It contained falsehoods: in passages similar to the Nigel letter it referred to an affair which she said she had been having for the previous 16 months, it said that the father of the child that she was carrying was going away and she had nothing left to live for. Another note, of unknown date, hand-written, and addressed "To whom it may concern", was found in a footstool in the kitchen. It said "I Paula Gilfoyle am ending my life. I have taken my own life and I am doing..." In interview with the police, the appellant said his wife had told him two days before she died that her brother-in-law Peter Glover was the father of the baby. Mr Glover denied this in evidence and denied any impropriety in his relationship with the deceased. DNA testing, as we have said, established that the appellant was the father.

8. A Miss Coltman, albeit criticised for partiality because she said on June 7 1992 that she "wanted to help clear Paula's name" and also said she had hated the appellant since Paula's death, gave evidence that the appellant had told her that, in connection with his job at the BUPA hospital, he was being trained to go on a crash team to go out to cases of suicide or attempted suicide. Miss Coltman remembered the conversation because she had asked why such people would be taken to a private hospital without knowing whether or not they had a BUPA card. Another witness, Mr Mallion, also said the appellant had told him he was on a suicide course at work. In interview, the appellant accepted he had had some conversations with the deceased and Mallion about the possibility of doing a course or project which involved a consideration of suicide. It was not suggested to witnesses from the hospital who gave evidence for the prosecution that the appellant had been offered any such training. Miss Coltman also said the appellant had claimed to help at operations at the Murrayfield, but she did not believe him. In April and May 1992 the appellant told a number of witnesses that the expected baby was not his and that either his wife had left him or she was going abroad.

9. Three weeks before the baby was due, a party was held when the deceased left work. She was described as "radiant". Seventeen witnesses described her as being, in the spring of 1992, happy and looking forward to the birth of the child, despite misgivings about the birth itself. Her GP, who saw her regularly and last saw her a week before her death, and her gynaecologist, both described her as fit and positive about the birth. She had no history of depression. She had bought two sets of baby equipment so that one could be left with her mother, who was going to look after the baby when she returned to work. Two days before her death she went to the library and, appearing happy and normal, borrowed six books on childcare and names. She had twice asked a vicar to christen the baby. She had prepared a nursery.

10. On the morning of June 3 she was happy and normal. On the afternoon of June 3 she had a conversation with a Miss Barber about a man whom they both knew, who had recently hanged himself. The deceased said "How could someone hang themselves? How could you get so low? His wife will feel guilty for the rest of her life." On the evening of June 3 she was her usual happy self.

11. On the morning of June 4, Mrs Brannan, a market researcher, called at the house in connection with a wine survey and spoke to the appellant and the deceased. She was there for about 15 to 20 minutes. She was unclear about the time, but thought the visit was between eleven and noon. The appellant, in interview subsequently, said she had left by 11.10 to 11.15 am and he had left for work about 11.25 am. At 11.50 am Mrs Melarangi, a courier for Freemans catalogue company, called to deliver a package, but received no reply. Others called at the house between 2.00 and 2.30 pm and they obtained no reply. At 2.00 pm the deceased was due at an anti-natal appointment, none of which she had previously missed. She did not attend.

12. Meanwhile, the appellant, whose shift at work began at 12.30 pm was seen by Sandra Davies reading a paper in the works canteen from about 11.30 am to 12.20 pm. His shift was due to end at 8.30 pm, but he asked for time off and was allowed to leave at 4.30 pm. There was no evidence that he had been absent from work between 11.30 am and 4.30 pm. According to the appellant, in interview, he went home at about 4.40 pm, noticed his wife was missing and found a suicide note in the kitchen. It was typed and was before the jury. It started "I've decided to put an end to everything". It contained echoes of the October 1991 and Nigel letters and ended with an apology for causing pain and suffering by taking her own life. As a result of reading it, he said he panicked. He did not search the house but went straight to his parents house at about 4.50 pm. His mother was there. When his father returned, about 6.00 pm, the appellant and his parents went to Grafton Drive. This account of his movements was not confirmed by his mother or any other witness and was at variance with the evidence of three other witnesses. Mrs Melarangi said she visited 6, Grafton Drive to deliver a second parcel about 5.30 pm and the appellant was in the drive. He signed the delivery note and manifest in his wife's name. It was suggested to her, but she did not accept, that she was wrong about the date. It was also suggested that she was unreliable because in early June she was suffering from depression. A neighbour, Mrs Jones, said she saw the appellant in his drive at about 5.30 pm: she fixed the day and time by reference to her children's music lessons. No reason why she should be regarded as unreliable was suggested to her. A Mr Owen said he saw the appellant going into a shop in Upton at about 5.50 pm, which he fixed by reference to a timed cash withdrawal at 5.37 pm: he did not like the appellant, so it was said that his evidence might be biased.

13. Shortly before 7.00 pm, the appellant's father telephoned his son-in-law Paul Caddick, who was a police sergeant. He arrived at Grafton Drive at about 7.00 pm and searched the house. He telephoned the police and then found the garage was locked. He asked the appellant for the keys. The appellant gave him a bunch of keys from the kitchen which belonged to the deceased. None of them fitted the garage. The appellant picked up the mat in the porch and gave Mr Caddick two single keys with one of which he opened the Yale lock of the garage. Caddick and another police officer said the two keys were identical. The appellant in interview said there should have been a garage key on Paula's key ring. No other garage key was found inside the garage or elsewhere.

14. In the garage, the deceased's body was hanging by a rope from a roof beam, with an aluminium step-ladder behind. The distance from the top platform of the ladder to the underside of the beam was 7´ 4" and to the topside of the beam 7´ 10". The legs were crossed behind and bent at the knee with the feet crossed at the ankle and one foot resting on the bottom rung of the ladder. Other police officers and the coroner's officer arrived. As the coroner's officer saw no suspicious circumstances, the body was cut down. According to the coroner's officer, the rope had been wrapped round the beam three times with a knot halfway up the side of the beam. He was 6´ 1" tall. The knot was only just within his reach when standing on the platform of the ladder. Regrettably, no photographs were taken of the body before it was cut down or of the rope on the beam, and no body temperature was taken. When Dr Roberts, the police surgeon, arrived at 8.20 pm he took, for teaching purposes, three photographs of the body on the floor of the garage. He was not asked to consider the time of death until the trial. At that stage, he and Dr Burns, the pathologist who carried out a second post mortem, estimated the time of death as having been between three and eight hours before Dr Roberts had examined the body. Both acknowledged that the margin of error could be considerable.

15. Post mortem examination confirmed that the cause of death was hanging. There was a single ligature mark and, apart from two small scratches immediately above it, no other injury to the body. There was no sign of drugs or alcohol. The deceased was 5' 8½" tall. Her total reach was 7´ 2". A mortuary technician removed the ligature from around the neck and it was thrown away. He subsequently re-constructed the two knots, one on top of the other, on the ligature as he remembered them. This would have permitted the ligature to tighten under the weight of the body. The end of the rope which had been attached to the beam was preserved. There was no evidence of the length of the rope, exactly where the knot was positioned on the beam, or the exact distance of the deceased's feet from the floor, although it was later estimated that her knees were about 15 inches from the floor, so that her feet would have been on the floor had her legs not been bent. A practice knot which could form a noose was found on a rope in a drawer but there was no evidence as to who had been practising.

16. Although, as we have said, the death was not initially regarded as suspicious, on June 8 1992, three of the deceased's friends, Diane Mallion, Julie Poole and Christine Jackson, (who did not give evidence before the jury because the Crown accepted that their evidence was inadmissible) made statements to the police about conversations they had had with the deceased in April or May 1992. They said that she had told them that the appellant had asked her to write suicide notes for a project at work and had told her what to write. This had worried or frightened her. According to one of the witnesses she said that, after she had written the notes, the appellant had taken her into the garage to show her how to put up a rope. It was these statements which caused the police to re-consider their initial assumption that the death was due to suicide and to investigate the possibility of murder.

17. On the occasion of the last appeal… Beldam LJ in giving the judgment of the court summarised the statements of these three ladies and, at p.321D, commented "Paula's state of mind was one of the principal issues in the case. The defence contended that the notes evidenced a suicidal frame of mind". At p.323D Beldam LJ said:

"we were satisfied that if we considered it necessary in the interests of justice the fact that the statements were made could be proved to show that when she wrote the notes Paula was not in a suicidal frame of mind and she wrote them in the belief that she was assisting the appellant in a course at work. That the appellant said he was on a course concerned with suicide was established by other witnesses. There was no evidence to suggest that it was true. Having reached this conclusion, we did not consider it necessary to consider the further question of whether the statements were admissible to prove that the appellant had, in fact, asked Paula to write the notes and had suggested their contents".

The court concluded that it was not necessary or expedient in the interests of justice to require the three witnesses to give evidence. We reached the same conclusion after considering the impact of the fresh expert evidence which we heard.

18. The prosecution case at trial was, in summary, that the appellant had tried to make murder look like suicide. He had tricked his wife into writing a number of notes including the suicide letter which he said he had found after her death, and had persuaded her to take part in a suicide experiment. The Crown did not, in opening, seek to prove the mechanics whereby the appellant had caused the death. But, in the light of evidence given by Dr Burns in cross-examination and re-examination, their case at the end of the evidence was that the appellant had persuaded the deceased to have the rope tied around her neck or to put her head into a noose while standing on the ground. The position of the body was consistent with her having then suddenly been knocked off her feet, giving her no time to struggle, so that the ligature tightened under the weight of her body causing death quickly. Thereafter, he had dressed the scene to make it look like suicide. Dr Burns said that two small parallel scratches on the deceased's neck above the ligature were striking (a comment which, as the judge reminded the jury, he had not made in his original statement) and that, in deaths by hanging, scratches should be interpreted as attempts to release the ligature until proved otherwise. He said that in 12 years, seeing about 10 cases a year, he had seen no case of suicide in which there was a scratch mark on the neck. Most suicide victims had their feet well above the ground, though, in many suicides, the feet were on the ground and there were successful suicides when sitting, kneeling or even lying down. The coroner's officer said the body touched the floor in about half the many hanging deaths he had seen. It was the Crown's case that the deceased was not tall enough and was too heavily pregnant to put the rope round the beam several times and tie it at the side of the beam when standing on the aluminium step-ladder. Had she been set on suicide, loose timbers at about head height were far more obvious and accessible than the beam as a place from which to suspend the rope. A longer set of wooden step-ladders was kept in the storeroom and found there after the death, but if she had used them it was unlikely that she would have returned them to the storeroom before committing suicide. The appellant, however, could have used the wooden step-ladder to rig up the rope in advance and then put the ladders away. There was some imprecise evidence from neighbours of a noise from the direction of the garage at 4.00 am on June 4. It was said that the appellant, having prepared the noose in the garage, removed his wife's key from her key ring lest she go into the garage and see the noose. There was nothing in her personality or behaviour to suggest that she was about to take her own life. She had no record of depression and her approach to the birth was positive. The "suicide" letter and other letters were false, completely out of character and did not represent her true state of mind. The appellant had lied about his movements after leaving work. He had done so to avoid having to explain why he had not sought help or begun enquiries before he did.

19. In interviews, over many hours, the appellant denied murdering his wife and maintained that she had committed suicide or killed herself accidentally in the course of a grand gesture. His case was that she had not been herself for several days before her death and was petrified of the impending birth. Suicide was on her mind, as evidenced by the fact that she had raised the topic with others in the week or so before she died. She may have written the Nigel letter in order to gain the appellant's affection or increase it and she may have told him she was having an affair with Peter Glover for the same reason. The position of the body was consistent with suicide. It was not uncommon in suicide to find the feet within reach of the ground. There was no indication of any struggle in the garage and the two scratches could have been explained as the automatic movements of the hands as the ligature tightened. It was ridiculous to suggest that the appellant had persuaded his wife to go into the garage and let him tie a rope round her neck. There were bound to have been signs of a struggle. It was possible she had tied the rope to the beam with no intention of taking her own life but something had gone wrong and she had died by accident. The appellant was looking forward to the birth of the child. He did not have the opportunity to kill his wife between Mrs Brannan's departure and going to work. Mrs Melarangi was mistaken about the date and time she saw the appellant. Her evidence was unreliable. Mrs Jones and Mr Owen were also mistaken about seeing the appellant that afternoon.”

“36. …Mr Mansfield identified two areas of evidence, as to what the appellant said about a suicide course and as to the appellant's movements on the afternoon of June 4, which, he suggested, need re-evaluation and resolution of issues which can only properly be carried out by a jury in the light of the new expert evidence. Assessment of credibility is, of course, a jury function. But, in the absence of any evidence from the defence, there were and are, in our judgment, no factual issues which required resolution in the present case. Despite Mr Mansfield's legitimate criticisms of Miss Coltman and Mr Mallion, the appellant in interview admitted saying to Mallion that he was probably going to do a project on heart or suicide and that he had spoken to the deceased about doing a course involving suicide. Therefore, the conclusion was and is inescapable that the appellant had discussed the possibility of a suicide course with more than one person. Equally, so far as the appellant's movements on the afternoon of the June 4 are concerned, although Mr Mansfield challenged the reliability of Mrs Melarangi and Mr Owen, he ventured no criticism of Mrs Jones. These three witnesses did not know each other, so collusion can be excluded and it is in the highest degree unlikely, quite apart from the extrinsic confirmation of day and time in the case of both Mrs Jones and Mr Owen, that they were all three mistaken, or malicious, in putting the appellant at or near Grafton Drive when he claimed to be at his parents. The inevitable corollary is that the appellant lied about his movements.

37. Accordingly, the decision as to whether the deceased's death was and is proved to be murder depends not on the resolution of factual issues but on the inferences to be drawn from proved facts. The most significant of those facts are these. The deceased was taking all obvious steps to prepare for the imminent birth of a child, for which, on the lay and medical evidence, she was physically fit and to which her attitude was positive. She was behaving happily and normally in the weeks immediately preceding, and up to and including a few minutes before, her death. The study of suicide was in the appellant's mind for some months before the death. Much of the content of the alleged suicide notes was demonstrably false. The deceased's garage key had been removed from her keyring and was not in the garage where she was found. From the top of the aluminium ladder it would have been impossible for her, save by standing on tip-toe, even to touch the underside of the beam. It would have been impossible for her to tie the knot where it was found. It would have been only with the greatest difficulty that, 8½ months pregnant and unaided, she would have been able both to maintain her balance and to pass the rope over the beam not once but three times. If she was bent on suicide, there was a readily visible and accessible alternative from which to suspend the rope in the three loose timbers which were 5´ 6" above the top step of the ladder, that is at her eye-level. The appellant had ample opportunity and the physical means to obtain the "suicide" note and to position the rope before Mrs Brannan's visit and there was some evidence of noise from the direction of the garage at 4.00 am. He had ample time, following Mrs Brannan's departure and before going to work, and even more before he needed to go to work, to carry out the killing which, as the evidence from Professor Knight and Dr West before us emphasised, could have been achieved very quickly and without the need for a running noose. The appellant had claimed that after finding the "suicide" note he made no attempt to find his wife and clearly lied about his movements on the afternoon of June 4.

38. In our judgment, these facts and the inferences to be drawn from them are wholly unaffected by the evidence which we have heard, which did not, overall, assist the appellant's case. Mr Ide's expressed opinion was that the knot and rope evidence is slightly more supportive of murder than suicide. Granted that the new pathological evidence is neutral, in that it indicates that suicide is as equally likely as homicide, the decision as to which was the cause of death, now as at trial, depends on the non-pathological evidence. If that evidence proves, as in our judgment it plainly does, because that is the inevitable inference, that the appellant killed the deceased, it is immaterial precisely how he killed her.”

“30. We also heard evidence, on behalf of the appellant, from Mr Ide a forensic scientist for 30 years and a specialist in knots and ligatures. He prepared a report for the CCRC dated May 9 1998 and he made further statements on June 12 1998 and December 4 2000. His conclusion was that the deceased could not have been standing on the floor when the noose was put round her neck. She would have needed, initially, to be at a higher level in order to finish with her knees 15 inches above the floor, because the rope would have stretched and individual knots and the noose would have tightened. His conclusion was that she would have had to be standing on the ladder somewhere near the top. If sitting she would not have been high enough. His conclusion, in his report of June 12 1998, was that the knots and rope did not provide unambiguous evidence to indicate either murder or suicide but "this evidence provides slightly more to support the hypothesis that Mrs Gilfoyle had been murdered rather than that she had killed herself". That conclusion was not subsequently qualified. He said it would have been difficult if not impossible for the deceased to tie the knot in the position found at the side of the beam. It would have been technically possible, but considerably difficult for the deceased to wrap the rope several times round the beam. If a knot had been tied after wrapping round it would have had to be higher than it was found.”

i)                   Diaries written by Paula that were never disclosed to the defence;

ii)                 Prescription charts showing the claimant’s medication was not assigned to him throughout the trial;

iii)               Details of the scale of Merseyside Police’s mismanagement of the initial scene and investigation;

iv)               New expert evidence regarding:

a)                  The rope with which Paula was hanged, demonstrating it would have been possible for her to have passed the rope over the beam and tied it in the manner in which it was found;

b)                 Current understanding of ante-natal depression and suicide in pregnant women.

The challenge as originally formulated

Ground 1: that the Final Decision was irrational in:

i)                   Dismissing the fresh evidence of Paula’s diaries and the expert evidence of Dr Oates and Dr McDonald regarding depression and suicide in pregnant women;

ii)                 Finding that the claimant had access to medication throughout his trial.

Ground 2: The Commission made an error of fact amounting to an error of law in its review of the expert evidence of Mr Pawson regarding the cord. In the alternative, the Commission’s dismissal of Mr Pawson’s evidence was irrational.

Ground 3: The Commission took into account irrelevant factors in relying extensively on the opinion of original defence counsel Mr Turner QC, in matters where it was inappropriate to do so, including in its assessment of the claimant’s mental state at the original trial.

Ground 4: The Commission misapplied the statutory test for referring the case to the Court of Appeal, in particular, using ‘proven facts’ from a previous Court of Appeal judgment as a starting point in deciding whether there was a ‘real possibility’ of the Court of Appeal finding the conviction unsafe.

The claimant’s change of position

The legal framework

“(1) A reference of a conviction, verdict, finding or sentence shall not be made under any of [sections 9 to 12B] 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 – (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  (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)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.”

“(1) For the purposes of an appeal, or an application for leave to appeal, under this part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice –…(c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to – (a) whether the evidence appears to the Court to be capable of belief;  (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in these proceedings.”

“…the Commission’s power to refer under section 9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal. 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. Save in exceptional circumstances, the judgment must be made by the Commission, in a conviction case, on the ground of an argument or evidence which has not been before the court before, whether at trial, on application for leave to appeal or on appeal. In the absence of such exceptional circumstances, the Commission cannot therefore invite the court to review issues or evidence upon which there has already been a ruling. Resort to the Commission must ordinarily follow and not precede resort to the Court of Appeal. 

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. 

The judgment required of the Commission is a very unusual one, because it inevitably involves a prediction of the view which another body (the Court of Appeal) may take. In a case which is likely to turn on the willingness of the Court of Appeal to receive fresh evidence, the Commission must also make a judgment how, on all the facts of a given case, the Court of Appeal is likely to resolve an application to adduce that evidence under section 23, because there could in such a case be no real possibility that the conviction would not be upheld were the reference to be made unless there were also a real possibility that the Court of Appeal would receive the evidence in question. Thus, in a conviction case of this kind, the first task of the Commission is to judge whether there is a real possibility that the Court of Appeal would receive the evidence. The Commission has, in effect, to predict how the Court of Appeal is likely to answer the question which arises under section 23 [of ‘the 1968 Act’], as formulated above. In a conviction case depending on the reception of fresh evidence, the Commission must ask itself a double question: Do we consider that if the reference is made there is a real possibility that the Court of Appeal will receive the fresh evidence? If so, do we consider that there is a real possibility that the Court of Appeal will not uphold the conviction? The Commission would not in such a case refer unless it gave an affirmative answer to both questions. The parties are agreed, and we accept, that the test of “real possibility” is the appropriate test in asking both questions and not only the question arising under section 13(1)(a).” 

“That is not in our judgment, a fair criticism. The Commission had, bearing in mind the statutory threshold, to try to predict the response of the Court of Appeal if the case were referred and application to adduce the evidence were made. It could only make that prediction by paying attention to what the Court of Appeal had said and done in similar cases on earlier occasions. It could not rationally predict the response of the Court of Appeal without making its own assessment, with specific reference to the materials in this case, of the considerations to which the Court of Appeal would be obliged to have regard and of how it would be likely to exercise its discretion. If one wants to predict what a reasonable person, on given facts and subject to a measure of guidance, would decide, there is no rational way to approach that task otherwise than by considering what, on the same facts and subject to the same guidance, one would decide oneself. That is not to usurp the decision of that other person but to set about predicting his decision in a rational way. In our view the Commission stated and also applied the right test, fully conscious of the respective roles of the Commission and the Court of Appeal.”

“…though the decisions of the CCRC whether or not to refer cases to the CACD, clearly are subject to judicial review…(1) the CCRC should not be vexed with inappropriate applications impacting on scarce resources; the court’s scrutiny at the permission stage is thus of importance; and (2) on a judicial review, CCRC reasons should not be subjected to a “rigorous audit” to establish they were not open to legal criticism”.

Ground 1 i): The Diaries

i)                   The positive picture of Paula’s state of mind in the weeks before her death (paras 163 to 164);

ii)                 The picture painted of her by the defence at trial (paras 165 to 166);

iii)               The evidence adduced from Paula’s GP (paras 169 to 170). Thus the jury at the claimant’s trial knew for example that Paula had been in a relationship with Roberts in her teens; that he had been convicted of murder, and that she had been treated for anxiety arising out of these events by her GP;

iv)               The relevant parts of the summing-up re Paula’s state of mind (paras 167 to 169);

v)                 The evidence of Professor Canter and the conclusions he reached (paras 173 to 176);

vi)               The significance of the diaries when seen in conjunction with other evidence such as Dr McDonald’s report; and

vii)             The fact that the diaries related to times more distant than those recorded in the diary which had been available, and not used at trial.

Ground 2: The Rope and Knot Evidence

The further submissions by Mr Emmerson

Ground 1ii): Medication and the failure to give evidence:

Conclusion

Mr Justice Sweeney

Appendix

Fig 1

Fig 2