The Judicial Committee of the Privy Council Decisions

Bernard v. The State (Trinidad and Tobago ) [2007] UKPC 34 (10 May 2007)

Privy Council Appeal No 118 of 2005

Wilberforce Bernard Appellant

v.

The State Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 10th May 2007

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Walker of Gestingthorpe

Lord Carswell

Sir Christopher Rose

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[Delivered by Lord Carswell]

1. The appellant Wilberforce Bernard was on 22 January 1996 convicted, after a trial at the San Fernando Assizes before John J and a jury, of the murder on 4 February 1990 of Ramnarine Saroop. The judge imposed the mandatory sentence of death. An earlier trial had commenced in March 1995, but aborted after several days and the jury was discharged. The Court of Appeal (Ibrahim, Permanand and Jones JJA) dismissed his appeal against conviction on 24 September 1997 and his petition for special leave to appeal was dismissed by the Privy Council on 22 October 1998. The President of the Republic of Trinidad and Tobago on 30 January 2004 referred the case back to the Court of Appeal, following consideration of a petition dated 3 November 1999 and a supplemental petition dated 18 June 2003. The petitions were based on allegations of unfairness in the appellant's trial, supported in part by fresh evidence. The Court of Appeal (Jones, Warner and Archie JJA) on 31 January 2005 upheld the appellant's conviction and dismissed his appeal. The Privy Council on 4 July 2005 granted him special leave to appeal as a poor person.
2. On 4 February 1990 at about 11 pm the deceased man Ramnarine Saroop and his family were in their house at 80 Poona Road, Whiteland, when there was a bang at the front door, which was a sliding door consisting of two glass panels. Mr Saroop's daughter Indra Seunath woke her father and went with him into the living room. She saw a man in a blue overall, with a gun in his hand, shouting "Open up! Open up! This is the police. We have a gun". He started kicking the door, which appeared to be about to give way. Ms Seunath ran to her bedroom and locked herself in. When she came out she found her father lying in his room, covered in blood. Post mortem examination confirmed that he died from shock and haemorrhage as a result of a shotgun injury. The sliding door had come off its track and was leaning against a wall. Ms Seunath said that she had a good view of the man at the door, as the porch light and living room light were on. The door, on which she saw what she variously described as a hand print or palm print, was dusted in her presence for fingerprints.
3. The appellant accompanied police officers to Couva police station on 22 February 1990 and was transferred to San Fernando station on 23 February. The time of his formal arrest was not established by the evidence before the Board. He was seen by Assistant Superintendent Browne on 24 February, when he was told that a fingerprint impression was traced to be his. The appellant replied after caution "I ent know nothing about that officer".
4. At an identification parade held on the morning of 25 February 1990 Indra Seunath picked out the appellant, stating, according to Inspector Missette, "This is one of them." The appellant claimed in evidence at trial that she merely said that he looked like one of the persons, though Ms Seunath denied that and said that she identified the appellant as the man who was at her home. The appellant said that there were persons on the parade who did not resemble him, that he stood out at the parade as the only man wearing shorts or a sleeveless T-shirt and that he was not told that he could have a lawyer, friend or relative present or that he could object to anyone forming part of the parade. He also said that when Indra Seunath came into the room Inspector Missette told her that the person who had attacked her home was on the parade within hearing distance. Both Inspector Missette and Ms Seunath denied that he had said that. Inspector Missette stated that prior to the commencement of the parade he had told the appellant that he was a suspect and that a report was investigated, to which the appellant replied "Boss I was there. I only push down the door". The appellant denied making this statement.
5. ASP Browne said that about 1 pm on the same day, 25 February, he was in his office when the appellant told him that he wanted to speak to him and said "I want to tell you exactly what happen". ASP Browne called in Sergeant Singh, who recorded a statement in writing from the appellant, commencing at 1.05 pm. No justice of the peace was available, but the next day the appellant was taken to the office of Mr Andrew Boodhai JP. Mr Boodhai's evidence was that the appellant identified his signature, said that the statement had been read over to him, that no promises or threats were used, that he had given the statement of his own free will and that its contents were exactly what he told the police. The appellant averred, on the other hand, that Mr Boodhai asked only if the signature on the statement was his, and that he did not say that the statement was made of his own free will. In the statement the appellant admitted being a member of the group who went to commit a robbery at the house of the deceased and seeing one of them with a gun. He said that he pushed part of the sliding door down after it had been kicked in by another of the group. He went into the house, then when he heard a gun shot he ran off with the other men.
6. The appellant claimed, both in the voir dire and in the main trial, that he had been kept handcuffed to a railing in the CID office in San Fernando station from shortly after his arrival there until 25 February. He had only one meal between 22 and 25 February, no toilet or washing facilities and nowhere to sleep. On 25 February he was assured by Inspector Trevor Raymond that he could assist him and that he would not trick him in any way, but they had some documents that they wished him to sign, as they had nothing on which to charge him, and that if he signed them he would be free to return home. Sgt Singh then came in and produced some papers, which the appellant signed, not knowing what was in them and without reading them.
7. The appellant averred in his evidence at trial that he had been at his brother's "birthnight" party from 8 pm until 3 am on the night of 4-5 February 1990 and had not gone anywhere else that night. It is to be noted that at a later stage, when the appellant's petition was lodged, he changed his story and said that he had been drunk and went in a car to the scene with other men, thinking that they were going to another party. He was "partially drunk" and asleep in the car until after the murder had taken place. He maintained that he had not gone near the broken door or touched it.
8. One of the main pillars of the prosecution case was the fingerprint evidence. As presented at the trial in January 1996 this was straightforward. WPC Wells on 5 February 1990 dusted the glass panel of the sliding door for fingerprints and found some impressions both on the outside and on the inside. She marked a circle round certain impressions, which were photographed by PC McLean in her presence. He developed the film and produced prints of a palm impression and a finger impression. The prints which he made were given by him to WPC Wells and identified by her in court. He also gave copies to Assistant Superintendent Andrews, a fingerprint expert with the police. ASP Andrews compared these photographs with the appellant's fingerprints recorded on a fingerprint slip on 26 February 1990 by Sgt Singh. He prepared a comparison montage of enlarged photographs of a fingerprint from the door and that of the appellant's left ring finger. He identified the photographs in court and gave his opinion that one of the prints on the glass door matched in 16 ridge characteristics the print made by the appellant's left ring finger.
9. The fingerprint evidence was rather less clear at the aborted first trial. Mr Ravi Rajcoomar, an experienced advocate who was then representing the appellant, cross-examined the witnesses in some detail about the fingerprints and palm prints and the linking of the photographs produced with the taking of the prints. Their Lordships do not propose to rehearse the details of the evidence given on this occasion, as it is sufficient to say that in consequence of Mr Rajcoomar's cross-examination the trial judge directed the jury (Record, p 123) to disregard the fingerprint slip on which the appellant's fingerprints had been taken, which may have left an unbridgeable gap in the proof of the fingerprint evidence.
10. A charge of murder was originally laid against the appellant, Dexter Cox, Ronnie Edmund Richins and Clifton Wiseman. At the conclusion of the preliminary inquiry the magistrate acceded to the submission of counsel for Wiseman that an insufficient prima facie case had been made out against him and he was discharged. The trial of the other three accused commenced on 17 March 1995 and aborted on 24 March when it was discovered that a juror was disqualified and the jury was discharged. The resumed trial commenced on 4 January 1996. In the course of the trial the judge ruled Cox's confession inadmissible, as he had doubts about its voluntariness, and as this was the only evidence linking him with the crime he was acquitted by direction. At the conclusion of the trial Richins was found not guilty, but the appellant was convicted. The sole evidence linking Richins with the crime was his written confession statement, which he claimed was not made by him but was presented to him for signature by the police. It follows that the jury must have felt some doubt about the authenticity of the statement when acquitting Richins.
11. The resumed trial was due to open on 3 January 1996. The appellant had engaged Mr Subhas Panday to represent him, but on the morning of trial Mr Panday excused himself from appearing for him, on the ground that he had an affiliation with the family of the deceased. Their Lordships did not receive any details of this affiliation or the reason why Mr Panday left it so late to pull out, but his doing so placed the appellant in an unenviable situation. The judge adjourned the trial to the following day and appointed as counsel for the appellant Mr Chateram Sinanan, who received instructions on the evening of 3 January. Mr Sinanan had been qualified to practise for a mere three months at that time. When appointed the next morning he asked the judge for an adjournment to permit him to take instructions from the appellant and prepare the case, but the judge refused his request, indicating that he would have an opportunity to take instructions from his client later in the day. Counsel had to make do with obtaining instructions from the appellant during the morning adjournment each day, supplementing these by turning to him from time to time during the course of the proceedings. Mr Sinanan and counsel for the other defendants asked the judge for copies of the notes of evidence of the aborted trial, but the judge also refused this request, on the ground, according to Mr Sinanan, that the first trial had no bearing on the matter before him. Nor was counsel able to obtain them from the Registrar of the Supreme Court at San Fernando or the Director of Public Prosecutions, neither of whom replied to his request. The most he could get was some notes from Mr Rajcoomar, together with the notes of evidence from the preliminary inquiry, which reached him at some stage during the trial. He accordingly did not have the benefit of reading the cross-examination of the witnesses relating to the fingerprint evidence, which might possibly have enabled him to cast some doubt on its admissibility.
12. On 11 January 1996, the fifth hearing day, Mr Sinanan was taken ill during the course of his cross-examination of Indra Seunath and the trial was adjourned to the next day. On 12 January Mr Sinanan was still unwell and Mr Rajcoomar attended in his place to continue the trial. The appellant stated that he did not wish Mr Rajcoomar to appear for him and maintained this refusal following consultation with counsel. In an affidavit sworn by the appellant on 17 January 2005 he gave as his reason for rejecting Mr Rajcoomar's services that he wanted to wait for his counsel Mr Sinanan. The judge informed him that he intended to proceed with the trial and carried on with the proceedings.
13. The appellant did not ask Ms Seunath any further questions. Two other witnesses gave evidence, then Inspector Carlyle Missette was called. He gave evidence about the conduct of the identification parade and the verbal statement attributed to the appellant. The appellant said that he did not wish to ask any questions, but the judge offered him the opportunity to defer cross-examination until his counsel returned. The court then adjourned for the day at 10.45 am.
14. On 15 January Mr Sinanan reappeared and applied to cross-examine Ms Seunath further, which he was permitted to do. He was asked if he wished to cross-examine Inspector Missette, but declined to do so, considering that he was in no position to cross-examine a witness on evidence which he had not heard.
15. Mr Sinanan did not adduce evidence of the appellant's good character, and accordingly he did not have the advantage of a good character direction from the judge. The appellant stated in his affidavit that he had no previous convictions, but that his counsel did not enquire of him about this. Mr Sinanan told Mr Richard Hamilton (in the circumstances to which their Lordships will refer) that the appellant had indicated that he "had had difficulties with the police". He did not advance the question of a good character reference because, as he said, he did not want to run the risk of inviting prejudicial evidence to be brought before the court should his claim to a good character be unfounded. He does not appear to have made any enquiries of the prosecution or the police about previous convictions of the appellant.
16. In the course of his summing-up the judge said that Inspector Missette's evidence was of extreme importance (Record, p 260). He described him as detached from the investigation and as coming to court as an independent person. In the absence of cross-examination his evidence had gone unchallenged and the appellant's denial that he had made an incriminating verbal statement was not put to him and the inspector's evidence on this point was described as an "unchallenged statement".
17. When the matter went to the Court of Appeal in 1997 on the appellant's application for leave to appeal against conviction, several grounds were argued and rejected by the court. Among them was the absence of a good character direction, but in the absence of evidence of good character there was no basis for the argument presented to the court. No submission was advanced about the fairness of the trial in the light of the inexperience of the appointed counsel or the actions of the judge in forcing on the trial. The court declined to accept the arguments advanced about the fingerprint evidence, Ms Seunath's opportunity to see the appellant or her identification of him at the parade. The court also rejected a submission concerning the operation of the felony-murder rule, which was not raised before the Board.
18. In early 1999 Mr Richard Hamilton, a young solicitor with Messrs Allen & Overy, the firm which represented the appellant in his appeal to the Board, visited Trinidad to gather fresh evidence on behalf of the appellant. With admirable tenacity he obtained material which formed the basis of a petition dated 3 November 1999 which was sent to the President of the Republic of Trinidad and Tobago. In addition to notes of the two trials he propounded a statement made by Wiseman, which had been withheld from the defence, and exhibits from the trials. He also obtained an affidavit from Mr Rajcoomar and evidence from Mr Sinanan, which, although Mr Sinanan did not make an affidavit himself, was set out in an affidavit sworn by Mr Hamilton. The basis of the petition was that doubt had been cast upon the fingerprint evidence and the admissibility of the appellant's written statement and that the identification parade was incorrectly conducted.
19. This petition was followed by a supplementary petition dated 18 June 2003, in which the President was informed that the prosecution had failed to disclose that before the second trial Inspector Missette had been charged with attempting to pervert the course of justice by attempting to procure another officer to give false evidence against one Boodrum Seepaul. Inspector Missette died shortly before the case was to be heard in February 2002. The supplementary petition also raised the question of the absence of a good character direction and counsel's failure to inquire into the question.
20. The President referred the case to the Court of Appeal under the provisions of section 64 of the Supreme Court of Judicature Act. Pursuant to the reference two grounds of appeal were filed on behalf of the appellant:

"1. A miscarriage of justice occurred and the Appellant was deprived of a fair trial and/or the due process of law when:

(a) His Counsel at trial failed to recall Police Inspector Carlyle Missette to be cross-examined when the Inspector had given evidence at a time when the Appellant was unrepresented; and/or

(b) his Counsel failed to lead evidence of the Appellant's good character; and/or

(c) the Court appointed Counsel of some 3 months call to defend the Appellant at his second trial on the charge of Murder; and/or

(d) the Court did not grant an adjournment to facilitate Counsel's access to transcripts of the Appellant's first trial and to take adequate instructions in all the circumstances; and/or

(e) Counsel's visits to the Appellant for the purpose of taking instructions were limited to visits to the Court on the days of trial.

2. Inspector Missette, a main prosecution witness, at the time he gave evidence at the trial of the appellant was charged with attempting to pervert the course of justice jointly with PC Earle Skeete and was committed to stand trial in the High Court. Inspector Missette died before the charge against him came to trial which commenced on the 27th February, 2002. PC Skeete was found guilty of the charge and sentenced to 10 years hard labour. The existence of this new fact if known to the defence at a retria1 would have negatively affected the credibility of Inspector Missette."

The court proceeded to hear the matter as in the case of an appeal, although it entertained some reservations about the procedure adopted. It gave a written judgment dated 31 January 2005, in which it held that there had been no miscarriage of justice and dismissed the appeal.

21. In the course of its judgment, given by Jones JA, the court disregarded the second ground, treating it as abandoned, though it appears quite clearly from the transcript of the argument (Record, pp 346-8) that counsel did rely upon it and presented a brief argument on the point. Mr Sinanan attended before the court and gave viva voce evidence concerning the second trial and his part in it. Founded upon this, counsel for the appellant submitted that there had been a lack of due process in the trial. After considering the comments of de la Bastide CJ in Bethel v The State (No 2) (2000) 59 WIR 451 and summarising the facts of that case, the court went on:

"These were far more extreme circumstances than exist in the present case. In so saying we wish not to be taken as approving the decision of the trial judge to appoint him. Counsel was at the time admitted to practice only three (3) months before and should not have been appointed to conduct a capital case. While we agree with this criticism, this in itself we feel is not sufficient to establish denial of due process. We feel that the proper approach is to consider what impact this had on the case of the appellant. We do so in the context of the matters complained of in his conduct of the case."

The court examined the questions of the identification parade, the lack of a good character direction and, at some length, the fingerprint evidence. It concluded that the integrity of the fingerprint evidence was maintained and that no real challenge could have been made to it by trial counsel. It affirmed the view expressed by the Court of Appeal in the 1997 appeal that a good character direction was not required on the facts of the case and so its absence did not prejudice the appellant. It did not deal at all with the fresh evidence about the charge against Inspector Missette. It expressed the final view that, having considered the impact of trial counsel's conduct of the case, its conclusion was that the appellant was not in any way prejudiced.

22. Before the Board Mr Dingemans QC based most of his argument upon the lack of fairness in the trial, founded upon the appointment of inexperienced counsel, the court's failure to give him sufficient opportunity to give the appellant effective representation in all respects and the effect which that had upon the trial. He advanced grounds based on the lack of a good character direction, the non-disclosure of the charges against Inspector Missette and the fresh evidence about the conviction of the officer charged along with him. The lack of a good character direction, although argued as a freestanding ground, was in their Lordships' opinion relevant in demonstrating the adverse effect which counsel's lack of experience had in the representation of the appellant.
23. A defendant in a criminal trial is entitled to a fair trial at common law, and the constitutional right to due process of law and the protection of the law under section 4 of the Constitution of Trinidad and Tobago will, if infringed, also entitle a citizen to a remedy: cf Boodram v The State [2001] UKPC 20; [2002] 1 Cr App R 103. In a case like that under appeal, the danger which may arise from inadequate representation is that in the absence of effective conduct of the defence, the conviction may be unsafe and there may be a miscarriage of justice. Their Lordships will return later to this point, but they must first examine the effect which the matters complained of may have had on the trial.
24. Their Lordships do not consider that it could ever be justifiable to appoint counsel of three months' standing to defend a client on his own in a capital murder trial. Even when one cannot readily point to specific matters with which he failed to deal effectively, it cannot be supposed that he has the maturity of judgment and experience of tactics, handling of evidence and presentation to be able to make correctly the myriad of necessary decisions in the course of a major trial, many of which require instant and sure reaction for which experience alone fits an advocate. One may add to this an unhappy litany of handicaps placed upon counsel in the present case:

(a) the refusal of an adjournment and the forcing on of the trial when he had had a far from adequate opportunity to make himself familiar with the case and the evidence;

(b) the refusal to furnish him with the notes of evidence of the preliminary inquiry and the aborted first trial;

(c) the judge's decision to proceed with the evidence when Mr Sinanan was absent through illness and the appellant was left unrepresented.

25. These faults in the trial may be said to speak for themselves and need no elaboration, but their relevance to the fairness of the trial, as evidenced by the course which it took and that which it might have taken, may readily be demonstrated. Mr Sinanan undoubtedly did his best in the circumstances in which he was placed, and may fairly be said to have done very creditable work in representing the appellant, but it is apparent that in some important respects his inexperience, allied to the constraints under which he was placed, deprived the appellant of the effective representation to which he was entitled. In the first place, if he had had the benefit of the notes of evidence of the first trial, he might have been able to cross-examine more effectively the witnesses who gave evidence relating to the fingerprint. As it was, that evidence was virtually unchallenged, whereas there were features which had been brought into prominence by Mr Rajcoomar and which could have been explored to advantage. One cannot escape the feeling that an older hand would have made more of a protest about the judge's refusal of the notes (though it does not appear whether counsel for the other defendants pressed the matter) and possibly cited Flowers v The Queen [2000] 1 WLR 2396 to effect. Secondly, it was quite unjustifiable for the judge to proceed with the trial when the appellant was left unrepresented for a day in which essential evidence was given which directly incriminated him. Mr Sinanan was in a difficult position when he returned, but their Lordships consider that a more experienced advocate would have taken some steps to remedy the situation, possibly by insisting that Inspector Missette's evidence in chief be repeated, and, failing that, at least putting his client's case to him, knowing from the depositions what he was likely to have said. Thirdly, a stronger attack could have been made on the circumstances in which the appellant's written statement was taken and the oppressive effect of the conditions in which he had been held. In particular, counsel might have exploited the failure of the prosecution to call Inspector Raymond, which was a serious gap in the necessary proof of voluntariness of the statement, in the light of the appellant's allegations about the inducement made to him and the way in which he claims he was deceived into signing the statement. Fourthly, counsel should have explored the question of the appellant's character in order to obtain the appropriate direction if it was justified.
26. Mr Dingemans placed some emphasis on the failure to disclose the charge brought against Inspector Missette. It was directly material to his credibility, for it concerned an attempt, by procuring a police officer to give false evidence and the planting of drugs, to secure the conviction of an innocent man because he was having an affair with another man's wife. Skilled counsel could have made something of this to challenge his integrity and to suggest that the appellant had been "verballed" by him in the attribution of the remark at the time of the identification parade. It should be pointed out, however, that as it was a matter of credit, counsel would have been bound by his answer if it had been put to him in cross-examination and it is hardly to be supposed that he would have made any damaging admissions. The fact that Inspector Missette's co-accused was convicted after Missette's death and after the conclusion of the appellant's trial goes to the question of creating a doubt about the safety of the conviction, but not to that of the effect on the fairness of the trial.
27. Their Lordships are quite satisfied that the matters which they have rehearsed constituted a significant departure from proper practice in the conduct of the trial. It is necessary, however, to consider them in the context of the trial as a whole and the strength of the case against the appellant. It does not inevitably follow that a conviction will be set aside on the ground of unfairness if there have been some errors in the conduct of the trial. It is a matter of degree, but factors which may affect one's conclusion are the seriousness of the defects, bearing in mind the gravity of the charges faced by the defendant, and on the other hand the weight of the prosecution case against him. Lord Bingham of Cornhill expressed the principle in Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237, 2251, para 28:

"While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."

28. The evidence against the appellant was at first sight very damning. It consisted of four main elements, the fingerprint, the identification by Indra Seunath, the appellant's oral admission and his written confession. On closer examination it may be seen, however, that some inroads could have been made into each of these by experienced counsel furnished with reasonable material and given a proper amount of time and opportunity for preparation. Although the prosecution case may still be described as fairly formidable, it is not as overwhelming as might have appeared at first sight, contrary to the view which the Court of Appeal which heard the reference appears to have adopted. It follows that their Lordships cannot agree that the inexperience of the appellant's counsel can be disregarded as having had no causative effect.
29. There are statements in the Australian case of Wilde v The Queen (1988) 164 CLR 365 which, if taken out of context, could give support to a proposition that where the evidence against a defendant is overwhelmingly strong, the defects in procedure required for setting the verdict aside on the ground that the trial was unfair have to be such that there has scarcely been a trial at all. The Board applied the decision in Wilde v The Queen in the New Zealand appeal of Howse v The Queen [2005] UKPC 30, but it is not to be taken to have approved this formulation as the universally necessary criterion for proof of unfairness of a trial. In the context of the incorrect admission of evidence, the strength of the rest of the evidence will be material, but in a case of procedural unfairness their Lordships would regard the statement which they have quoted from Randall v The Queen as the appropriate approach. Determination of such an issue involves weighing the seriousness of the irregularities. If the defects were relatively minor, the trial may still be regarded as fair. Conversely, if they were sufficiently serious it cannot be accepted as fair, no matter how strong the evidence of guilt. In such a case it may also be said that the defendant was deprived of his constitutional right of due process.
30. When they come to apply these principles to the present case, their Lordships are left in no doubt that the conviction must be set aside. The appellant was deprived of the proper protection by the appointment of inexperienced counsel and the failure on the part of the court to afford him the necessary materials and opportunity to prepare himself properly. It may be seen from the Board's analysis in this judgment that the impact which this had on the proper presentation of the appellant's case is likely to have been serious. It may also be seen that the prosecution case was not so overwhelmingly strong that even effective advocacy could not have been of real avail to the appellant. Their Lordships can only conclude that the appellant did not receive a fair trial.
31. They will therefore allow the appeal and quash the conviction and sentence. Bearing in mind the lapse of time since the killing of Mr Saroop in February 1990, they do not regard it appropriate that there should be a retrial.