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Royal Courts of Justice

The Strand

London WC2

Friday 20th February 1998

B E F O R E :

LORD JUSTICE HUTCHISON

MR JUSTICE MANCE

and

HER HONOUR JUDGE ANN GODDARD QC

(Acting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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DARREN JOHN GRAY

GARETH EVANS

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR D TOMLINSON appeared on behalf of the Appellant Gray

MR L FRENCH appeared on behalf of the Appellant Evans

MR N VAN DER BILJ appeared on behalf of the Crown

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

Friday 20th February 1998

LORD JUSTICE HUTCHISON: On 11th April 1997 in the Crown Court at Maidstone the appellants were both convicted of arson being reckless as to whether life was endangered. (That was count 1 of the indictment, which had formerly been count 2.) On 22nd May they were sentenced as follows: Gray to six years' detention in a young offender institution and Evans to six years' imprisonment. A verdict of not guilty was entered in respect of the original count 1, charging arson with intent to endanger life. No verdict was taken in respect of an alternative count of simple arson (count 2, formerly count 3). They both now appeal against conviction by leave of the single judge.

There was a co-accused, Gary Moon, who pleaded guilty to count 1, committing arson recklessly, and was sentenced to a community order of three years' probation and 100 hours of community service.

The offence occurred on Saturday 27th July 1996. The two appellants and the co-accused Moon set off for St Peter's Church in Folkstone. The appellants had a bottle of aftershave with them and Moon carried a rubbish bag. They broke a window, making a hole through which an object was thrown, almost certainly the bottle of aftershave with tissues stuffed into its nozzle as a wick and lit. A fire ensued, burning curtains and a pampas plant, which helped to draw the flames to the roof. The heat melted a gas pipe, and gas fuelled the fire. The cost of damage caused was estimated at around £400,000. The appellants and co-accused Moon were arrested the next evening.

Moon gave evidence on behalf of the Crown at the trial. The Crown sought leave to adduce his plea of guilty to count 1. The judge ruled in their favour but said that he would direct the jury as to the limited significance of the plea. He in fact gave no such direction.

The Crown alleged that the lives of those in the neighbouring vicarage, which was partly attached to the church, were put in danger by the fire. Expert evidence was called, in the shape of a fireman by the Crown and a fire expert by the defence. The latter said that it was not impossible that the fire could have spread to neighbouring properties by virtue of sparks. The defence contended that it was not obvious that the building attached to the church was a vicarage or that it was inhabited.

The prosecution evidence was to the following effect. A man named Ryan Ruellan gave evidence that, on the evening of Saturday the 27th, he went to his friend (Moon's) flat, where he overheard a conversation outside the door about burning down a church. He recognised the voices of the two appellants. He saw them at the flat the next day, when he heard Gray say to Moon, "Last night we done a church. We burnt it down." In cross-examination, he said that he could not remember the precise words of the conversation he had overheard; the appellants did not come into the flat at that time. He did not know that Moon had anything to do with the fire, and he did not tell lies to the police in order to protect him. In fact, in that connection, it is common ground between the Crown and the appellants that Ruellan and his sister Samantha had been parties to the concoction of a false alibi for Moon, and that Ruellan persisted in his account, apropos that alibi, even after Moon (as he eventually he did) had abandoned it.

Samantha Ruellan gave evidence that she was in the flat on Sunday, when she overheard the two appellants talking about what had happened in the church.

Gary Moon gave evidence. There were a number of discrepancies between what he said to the police and his account from the witness box (and of course he was handicapped by the episode of the proposed alibi), but he was clear and consistent in his evidence that the two appellants were in it together.

In interview, Evans agreed that they set out deliberately to torch a church. He was not asked what his intentions were when the bottle of aftershave which had been set alight went through the window.

Gray, admitting presence, denied that he had any involvement with committing the offence. His aim was to burst aerosols, and, out of frustration, he broke the church window. He did not know who threw whatever it was through the window after he had broken it. He described himself as a satanist.

So far as the defence cases were concerned, Gray gave evidence but Evans did not. Gray stated that he had enjoyed creating small explosions by burning aerosols wrapped in newspaper and setting them alight. He had not been a true Satanist and had given up being one. On the Saturday he and Evans met up with Moon outside the building where both Moon and Evans had flats. When in Moon's flat, he said he was going to set off some aerosol cans; he said nothing about setting fire to churches. When at the church, he decided that it was not a good place to set off anything because of the danger from flying pieces. However, he felt frustrated and decided to do some damage; and he walked to the school intending to break a window. He thought that the vicarage was part of the school; and he did not know it was occupied. In fact, he climbed through a hedge and damaged the church window. Both Evans and Moon were with him. He hit the window with a bit of brick. After he had made a hole, he saw Moon throw something through it. He clung on to a drainpipe in order to look through the hole but could not see anything going on inside the church. Fifteen minutes after the two appellants and Moon had left the church, they heard fire engines drive past and went to investigate the damage which had been caused, about which he felt "pretty sick" he said.

In cross-examination, he said that they had carried a bottle of aftershave when they left Moon's flat. Moon had a rubbish bag. They were going to "lark about". He denied any involvement in burning the church.

An expert, Magnus Hannaford, gave evidence regarding the fire and its effect. The main danger was of the roof collapsing, thereby producing more fuel for the fire. In cross-examination, he stated that the fire would not be dangerous outside the church until such time as the roof collapsed, which in fact it did not. He conceded the matters already referred to and the fact that any fire burning out of control could be dangerous.

There are essentially three grounds of appeal, two of which are common to both appellants. Those which are common are: first, that the judge's decision to admit Moon's plea to reckless arson was wrong. It is said that his admission to being reckless was of no probative value but had great prejudicial effect; and reliance is placed on the fact that, whereas the judge in the course of argument on admissibility had said that he would give the jury guidance as to its significance, he never did so.

Secondly, it is said that the judge wrongly invited the jury, on the issue of recklessness, to consider the risks to fire fighters and other rescuers, when the case had been presented and proceeded throughout on the basis that it was danger to the occupants of nearby properties, and particularly of the attached vicarage, that the defendants should have contemplated. This, it is said, put the defence at a significant disadvantage and was highly prejudicial.

The third ground involves a discrete argument relied on by Gray. It arises from the judge's decision, after Evans had elected not to give evidence, to allow the prosecution to cross-examine on passages of Evans' police interview, and, having done so, refusing to permit defence counsel in addressing the jury to rely on other passages in that interview. The passages put by the prosecution tended to show that Gray was with Evans when he recruited Moon to go and set fire to the church, and those on which defence counsel wished to rely were, it is submitted, capable of bearing the opposite construction.

It should be said of Evans that he at all times accepted that he was bound to be found guilty of simple arson. For reasons into which it is unnecessary to go, it was thought inappropriate for him to plead guilty to that offence, but the trial proceeded on the basis that it was at all times accepted that the jury would convict him of simple arson.

We therefore turn to consider these three grounds.

First of all, Moon's plea of guilty. The approach to this question at the trial was complicated by references to or assumptions as to the relevance of section 74 of the Police and Criminal Evidence Act 1984, and, indeed, such complications survive in the grounds of appeal. However, counsel for the appellants now accept that, since Moon was called as a prosecution witness, he was entitled to say that he had pleaded guilty (see in this connection the unreported decision of this Court in Gardner and Cotton , 22 April 1997).

Mr French, for Evans, began by submitting that he should have been confined to saying that he admitted that he had taken part in setting fire to the church and not allowed to say anything about the basis of his acceptance of his guilt of arson with intent. However, Mr French quickly recognised that his only real argument was that the judge failed to direct the jury that they should not assume that Moon's admission of guilt to count 1, and therefore his implicit acceptance that he had been reckless as to whether life was endangered, meant that either of the other defendants was similarly guilty.

In this connection he referred us to the case of Moore 40 Cr App R 50, where, in the course of giving the judgment of the Court, Lord Goddard CJ said this (page 53):

"When two people are indicted together for a criminal offence and one pleads guilty and the other does not, it is the commonest thing in the world to tell the jury, as was done in this case, 'You must not pay any attention to the fact that the other man has pleaded guilty.' Even if the plea has not been taken in the presence of the jury, it is very difficult to avoid telling the jury in some way that the other person has pleaded guilty, but the fact that he has pleaded guilty is no evidence against his co-prisoner."

That observation was, of course, apropos the position where a defendant had pleaded guilty and was not dealing with the specific position where he is called as a witness for the Crown.

However, Mr French submits that, without such a direction, the jury would not know what to make of Moon's plea. One could imagine them saying, he submitted: 'Well, we know Moon has admitted it, we know what was in his mind, so we can assume that the same applies to these other defendants.' He accepted that the logic of his argument compelled him to add the submission that the judge should have delivered a similar warning in relation to some answers by Gray in cross-examination, when Gray accepted that to try to burn down a building the size of this church would be extremely dangerous and that people could get hurt and their lives be in danger.

In a case such as the present, we have no doubt that an appropriate direction would be to tell the jury that they must not assume that merely because another defendant admitted recklessness they should find that the defendant whose case they were considering was reckless and that they must assess the state of mind of each defendant quite separately in the light of all the circumstances as disclosed by the evidence.

The judge did not give a direction along those lines, though it seems that it had been his intention to do so; and the question for us is whether that omission (alone or in conjunction with other defects) is such as to make the conviction of these two appellants on count 1 unsafe. That depends, we consider, on whether there is any reason to believe that the jury might have given inappropriate weight to the express and implied admissions of recklessness by Moon and, in the case of Evans, by Gray.

In this connection, we should quote some of the things that the judge did say. At page 4 of the transcript of the summing-up one finds him saying this:

"You must also consider each defendant quite separately. We have no question of guilt by mere association in this country. Guilt or innocence is a very personal thing. It is perfectly open to you to say, well, although they may have been there together, we feel that one of them was guilty and whereas the other we have doubts about."

Later, the judge told the jury that if, and only if, they concluded that it had been proved that an ordinary prudent bystander would have perceived that there was an obvious risk that life as well as property would be endangered by what that defendant was doing could they convict. He was there dealing with what has been called the 'objective test'. If they were satisfied of that, he said, they must go on to apply the 'subjective test'. He continued as follows (page 9):

"If you come to the conclusion that that degree of perception does exist, and you were sure that it does, then you must go one step further and ask yourselves the subjective test now, and now we are looking at the mind of the man who was doing the deed, you ask yourselves whether he gave no thought at all to such risk, indeed the young man Moon says he gave no thought at all to the risk, or once again that having recognised that the risk existed nevertheless went on to do what he was doing regardless as to the nature of that risk."

Mr French submitted that the reference to Moon in that passage makes matters worse because it impliedly invites the jury to regard his admission of recklessness as determinative or at least important.

However, we do not accept this, since we think that the terms of the reference of Moon tend, if anything, to accentuate the fact that "the individual whose case you are considering" -- a phrase the judge uses in the next paragraph of his summing-up -- is the person with whose state of mind the jury are concerned.

Then (at pages 11-12) the judge reminded the jury that Evans' case was that, while he could not escape a verdict of guilty to simple arson (count 2) the Crown had failed to prove the element of recklessness as to endangering life, whereas Gray's position was that he had never been a party to the agreement to start the fire.

Finally, there is the fact that the judge reminded the jury (page 31) of the evidence of Gray (already mentioned) to the effect that he had agreed that to burn the church would endanger life, and he made no particular comment on that.

Having considered these references and the arguments that have been addressed to us, we have concluded that, despite the absence of a specific direction, it is simply inconceivable that the jury, who had been trying this case for some days, had heard counsel's submissions and knew very well what the issues were, could have been under the impression that what Moon had admitted as to his state of mind effectively determined what they should conclude about Evans' or Gray's states of mind. It is, in the light of his answers in cross-examination, difficult to see how Gray can sensibly assert that his conviction is unsafe on this ground. But in the case of Evans also, we cannot think that the jury can have failed to understand that they must approach the question of whether recklessness as to life being endangered had been proved by having regard to the whole of the evidence, which of course included what Moon and Gray had said, but which involved principally a consideration of the individual defendant's state of mind. We are satisfied that the judge's omission to give the sort of direction we have discussed, unfortunate though it was and inadvertent though it plainly was, does not in this case make the convictions unsafe.

We turn then to the second common ground, the inclusion of the risk to fire fighters and others. When explaining the objective test, the judge, who plainly had in mind the passage at page 94 in the case of Sangha 87 Cr App R 88, said this:

"You have to examine that and ask yourselves this question: has it been proved so that we are sure that any ordinary prudent bystanders, not invested with expert knowledge about the construction of the property, not even having the benefit of hindsight, which has come up to some extent in this particular case, would have perceived at that time that there was an obvious risk, not only that property would be damaged, but also that life would thereby be endangered?' The word 'would' comes in there - 'would thereby by endangered' -- but the word 'would' in this context of recklessness goes to the expectation of that bystander.

It is not limited to the vicar's daughter or the occupants of the vicarage, although that is the case, one that has been placed in evidence before you. It extends also to embrace anyone who might come to the rescue or seek to help, which would include a fireman who was there trying his best to put out the fire."

There is no doubt that the Crown had put the case as to recklessness on the basis that it was the occupants of the vicarage who were in contemplation. In the light of the expert evidence, the Crown later extended the case to encompass nearby dwellings, in particular a block of flats which might be ignited by sparks. However, at no time prior to the judge speaking the words just quoted was any mention made of rescuers or fireman. To introduce them at that late stage, it is submitted, was seriously prejudicial to the defence, who had neither questioned witnesses, adduced evidence, nor addressed the jury about such persons. An entirely new dimension had thus been introduced into the case at far too late a stage. The real case was all to do with the supposed occupants of the vicarage.

Mr van der Bijl, for the Crown, argued that the judge was, as a matter of law, obliged to give a direction to this effect. But we cannot accept that. It would have been open to him, in recognition of the fact that the case had been presented as it had, to invite the jury, even when applying the objective test, to envisage potential risk only to the persons who had been canvassed as being potentially at risk.

While it seems likely that the jury in convicting the appellants did so on the basis of the possible occupants of the vicarage, if only because of the brevity of the judge's reference to rescuers and firemen, it is not possible to be confident that this is so. Accordingly, the important question that we have to address is whether the late introduction of this new category of potential victims did cause significant prejudice to the appellants. The mere fact that the field was widened cannot by itself constitute prejudice. The sort of questions that need to be considered are whether or not further or different evidence might have been adduced or (the point which Mr French particularly relied on) different arguments presented on behalf of the defendants to the jury.

That those who started the fire must have contemplated that firemen would have come to the scene cannot be doubted. Counsel argued that, had they known about fireman, they would have asked questions of the experts to elicit their views as to what the firemen would have done and the extent of the dangers to which they would or might have been exposed. That may be, though we are doubtful as to the likelihood of any successful questioning on those lines. However, as we say, the important point made by Mr French is that the jury would have heard a very different speech from counsel if firemen had been in the frame, as it were, as persons potentially affected.

Mr van der Bijl, in dealing with this point, made not only the submission we have already dealt with and rejected, but pointed to how strong the case was and invited us to say that this was not a point which could make the conviction unsafe. He emphasised the extremely strong evidence on participation and recklessness and took us to the judge's summary of the evidence of Mr Hannaford, the defendant's expert, and to Gray's admissions. He also emphasised that this was a residential area and that there was plainly a risk of the fire spreading to adjoining buildings. Accordingly, he submitted, even if it was inappropriate to introduce firemen in the way the judge did, there was nothing significantly prejudicial to the appellants in his having done so.

Our conclusion in relation to that particular submission is that the appellants' case is well-founded. It may be that the possibility of obtaining useful answers from the experts was very limited. But Mr French, in his submissions this morning in response to Mr van der Bijl's argument, has satisfied us that his client's case was significantly prejudiced by his inability to address the question of firemen as potential victims. It is of some significance in this context, as Mr van der Bijl conceded, that it is not the normal practice to launch a prosecution based on a charge of arson with intent to endanger life simply on the basis that firemen will or may be injured if they come to the scene of a house fire.

In all the circumstances, we can envisage that Mr French and Mr Tomlinson could have made significant submissions which might have appealed to the jury and led them to reject the notion that this particular fire was one which objectively gave rise to a danger of life or limb to firemen and also made submissions on the basis of the subjective test. We find it impossible to say that the conviction is safe, and we would allow the appeal on that basis.

We turn then to the third ground, which has been conceded on all sides to be the most important. It does indeed, though it affects Gray only, involve an important point of principle. It should be remembered that Evans, who was first on the indictment, had elected not to give evidence. His interview was before the jury and was evidence in his case; but by the time Gray went into the witness box, it was known that the contents of the interview were not going to be confirmed by evidence.

The main complaint on which this ground is based relates to the fact that, and the way in which, counsel for the Crown cross-examined Gray on Evans' interview, a document inadmissible in Gray's case. We have had the advantage of seeing a transcript of Gray's evidence, the thrust of which has already been rehearsed. There were marked differences between his account in evidence (and earlier in his interview) and that of Evans in his interview. It should also be said that the officers who interviewed Gray put to him a number of passages from Evans' interview, perfectly legitimately, and that the version of Gray's interview put before the jury had been, by agreement, edited to exclude all those questions relating to what Evans had said other than those bearing on what happened at the scene; that is to say, in particular, to exclude the question based on the Evans' account of the planning of the fire.

At quite an early stage in his cross-examination of Gray, counsel for the Crown began to prepare the way for the introduction of a series of questions on Evans' statement. The questions he addressed to the witness "were he and Evans the best of mates at the time" and "had there been any falling out between them", Mr Tomlinson suggests, were asked for the purpose of establishing that Evans had no reason to tell lies about Gray. Mr van der Bijl sought to suggest, in argument this morning, that those questions were addressed in Gray's interest, in order to allow him to disclose the existence of any ground that he might have for attributing to Evans a desire to lie about him. But we are disposed to accept Mr Tomlinson's submission, as I think, in the end, Mr van der Bijl really was, when we discussed the matter in the course of his submissions, that what he was doing was preparing the witness in the way that a cross-examiner does for the questions that he was about to ask.

Mr van der Bijl then put a copy of Evans' interview before the witness (the jury already had it in front of them) and asked him a series of questions, some of which we must quote. We begin with a passage on page 31:

"Q. Let us just look at page 2 of Mr Evans'

interview, because this was an

interview given to the police when

you were not available. Now you are

available. Let us see what you can

say about it. At the bottom of page 2

you see Mr Evans says: 'Well, last

night I decided that I wanted to do

something.' Did he tell you that he

wanted to do something?

A. No.

Q. He did not?

A. No.

Q. You are his best friend?

A. Yes. But he does not tell me

everything.

Q. 'But I just did and it probably is

not what there was. There was me

best mate Darren in the flat at

Folkstone.' So your best mate. Yes?

A. Mm.

Q. 'Then we both decided to set fire to

the church.' Is that true, or is it a

lie?

A. Well, I didn't decide to burn a church.

Q. Is it true, or is it a lie, you both

decided to set fire to a church?

A. As far as I am concerned that is a

lie.

Q. Can I ask you then was there

anything that happened between the

time of your being involved in

something to do with a church and

your arrest that may have caused him

to want to lie about you? Anything

that you can tell this jury?

A. Not that I can recall.

Q. No. At the bottom you will see it

says: 'It was a mutual decision.'

Again, is that true or a lie?

A. It's a lie.

Q. Anything happened to make him want to

lie about you?

A. No.

Q. Then if you turn over to page 3, you

see at the bottom, towards the bottom,

about just up over halfway, Mr Leahy,

Detective Sergeant, is saying: 'All

three of you decided you were going

to do something.' Do you read that,

second Leahy from the bottom?

A. Yes.

Q. 'All three of you decided that you

were going to do something"?

At this point Mr Tomlinson intervened and suggested that this cross-examination was inappropriate in the circumstances, but the Judge merely said that the Crown were bound by the witness's answers. To Mr Tomlinson's suggestion that the jury would find it difficult to adopt the direction which the judge would give them on the evidential value of Evans' interview, the judge said that the jury would understand the situation and the direction he had already indicated he was going to give. He was plainly not disposed to accept Mr Tomlinson's submissions. He characterised the questions as "perfectly legitimate". Crown counsel then returned to the attack, saying this:

"Q. Yes. Mr Gray, you may under

cross-examination by me change your

mind about what you said to the jury.

Are you still persisting in telling

the jury you had nothing to do with

the fire?

A. Yes.

Q. Then I am going to carry on. ...."

Mr Tomlinson submits that, so far from carrying on, that was the point at which to desist from what was in any event an impermissible line of cross-examination. However, the questioning continued along the same lines for another page.

In support of his contention that the witness should not have been cross-examined in this way because the effect of the questions was to seem to confer on the interview of Evans a status which it did not enjoy, Mr Tomlinson relied on observations in two cases in this Court: the recent judgment of the Court in the Bridgewater Farm case, Hickey and others (CA Transcript July 30, 1997, pp 276-290), and the case drawn to his attention by Mance J in the course of the hearing of Windass 89 Cr App R 258. The passages in Hickey and others are directed to the cross-examination of the defendant Robinson on the statement made by Molloy (another defendant), the statement ultimately impugned in this Court. There were in that case grounds for some questioning. It is unnecessary to go into them. We shall content ourselves with one or two citations from the judgment. At page 276 Roch LJ said this:

"For questions in cross-examination to create the impression (even inadvertently) that a particular piece of evidence is evidence relevant to the case against the defendant when it is not, is unfortunate, and it misrepresents the position."

Roch LJ then quoted a series of questions and answers, the last of which, together with his comments, we cite the last question:

"Q. You see Mr Robinson, just pause and see where we have got so far. Helen Johnston, whom you trusted, referred to the conversation she said she heard. Vincent Hickey, who you did not know, put you in for it. We will leave Michael Hickey out just for the moment. Pat Molloy, and you were his best friend, also put you in for this. Is that all just a coincidence?"

And Roch LJ said this:

"Although it was entirely proper for counsel to explore the relationship between Robinson and each of the Hickeys, and whether Robinson himself was the source of what they had been saying Robinson was not answerable for anything either of them had said to the police or to anyone else. The fact that Vincent's and Molloy's versions coincided was irrelevant to the case against Robinson, and he should not have been invited to comment upon it. The last question was particularly unfortunate because first it was 'comment', and second, by linking the claims of Helen Johnston (a prosecution witness) Vincent Hickey and Molloy at the very least counsel would have appeared to the jury to be affording to those two defendants the status of prosecution witnesses and, more significantly, affording to what those defendants had said to the police the status of prosecution evidence which was admissible against Robinson. Counsel adopted this approach more than once."

At page 280 the Lord Justice quotes two questions:

"Q. Molloy said in a statement that he

heard you say words to the effect

that the gun had gone off by accident.

Was Molloy inventing that?

A. Yes.

Q. Helen Johnston gave evidence to the

same effect that she heard Molloy

telling you to say it had gone off by

accident and she is wrong, is she?"

Roch LJ commented on that:

"Once again in that first question, at the very least counsel would have appeared to the jury to be presenting to Robinson for his comment evidence which was admissible against him."

Then, after quoting another series of questions about what other defendants had said, Roch LJ made the following observation (page 282):

"Once again the impression created by these questions is that the prosecution are relying upon exhibit 54 (as against Robinson) by equating its evidential status with that of evidence given by prosecution witnesses. There can have been no other purpose in the last three questions than to underpin the truth of exhibit 54 as against Robinson."

We need not refer to other passages in this judgment which were relied upon by Mr Tomlinson.

Windass is a case which may or may not have been cited to the Court in Robinson; we are not aware whether it was. It is very much in point. The defendant and his girlfriend had been charged with, inter alia, conspiring to steal; alternatively, to handle stolen goods. Police, on searching his girlfriend's flat, had found a diary containing entries which tended to incriminate her and (subject to the admissibility) the defendant, against whom, however, it was not evidence. The trial judge allowed him to be cross-examined at length on the entries and what they meant. Allowing the defendants's appeal on the grounds that this was a material irregularity, Lord Lane CJ said this (page 262):

"It seems to us that there are two objections which should properly be made to that line of cross-examination. First of all it is quite improper to ask a witness to explain what a third party means by a document written by that third party. No doubt if this witness had been more experienced, he would have said that that was impossible, but then he would have run the risk of being thought to be too clever. As it was, he found himself in the position of trying to explain to the jury what a third party meant by a document written by that third party without his collaboration."

We pause to say that there is no suggestion in this case that that is what occurred. But Lord Lane continued:

"Secondly, perhaps more importantly, it is, in our judgment, quite improper for counsel to take in his hand a statement which is inadmissible vis-a-vis the witness whom he is cross-examining, let alone allowing the jury to have a copy of the statement in their hands whilst he is doing that, and then to ask the witness to explain, almost sentence by sentence, the highly damaging statements, inadmissible against him, which the maker of the document had written.

It is of course perfectly possible and perfectly proper for questions to be put in cross-examination such as 'were you in such and such a public house on such and such a day? Were you with such and such a person?' But to link it, as was done here, with the contents of a document inadmissible against the witness being cross-examined was, in our judgment, a matter which should not have occurred."

The judge in the present case made only two references to the status of interviews, the first occurred when he was reviewing the evidence of Moon (page 19):

"He says, does he not, inter alia, that as far as he was concerned with the first defendant Evans that they set out deliberately to torch a church. If you look at Mr Evans' interview, which is only evidence against him, as I have emphasised several times before, he agrees that was so. There is some confirmation which perhaps might assist you as to whether in fact on that aspect of the matter Moon is telling the truth or not."

There is a brief reference at page 32 where, dealing with the evidence of the appellant Gray, he said this:

"He maintained what he said in his interview with the police, which was the reason that counsel was putting it to him, that he in fact if his friend Evans said in interview that he had a part to play in it, it just was not true."

Mr van der Bijl, in his submissions to us this morning, accepted that it was fundamental that where a defendant has said something in interview that is evidence in his case alone. However, he argued, a defendant can adopt what is said in the interview of another defendant either when it is put by the police in the course of interviewing the defendant, or where in evidence he accepts the truth of what the other defendant has said. Mr van der Bijl submits -- and he tells us it is a familiar practice -- that it is legitimate to cross-examine on the basis of the interview of one defendant to endeavour to obtain admissions from the other. He says that the crucial matter is that the evidence is before the jury and that the witness is able to say that he does not accept the matter that is put to him, and that, if he does reject it, that is an end of it, because the prosecution are bound by his answers. He submits that, in reality, that was what was occurring in this case.

We have to say that we are unable to accept those submissions. As we have already sufficiently indicated, we think that the cross-examination cannot have been undertaken with any expectation that the witness might admit or adopt those parts of Evans' interview. The general effect of it (whatever the intention) seems to us to have been to deploy what Evans had said in interview as thought it were evidence and thus to denigrate or otherwise undermine the witness's own account. This was not a cross-examination which, as Mr van der Bijl suggested at another stage of his argument, was a necessary prelude to his asserting that the jury should reject parts of the evidence of the appellant Gray; it was, to borrow the words used by Roch LJ, a cross-examination which created the impression that the prosecution were relying on Evans' interview against Gray "by equating its evidential status with that of evidence given by prosecution witnesses" when in truth it was no evidence at all against Gray.

Mr van der Bijl, as we have indicated, tells us that this is a not infrequent practice. If it is so, (and our experience does not suggest that it is) we wish to state emphatically that it should not be so. Of course we are not saying that it is never appropriate to ask a witness a question about what appears in the interview of a co-defendant; there may be particular circumstances in which that is permissible. What is certainly inappropriate, as the case of Windass and the observations of Roch LJ in Hickey and others show, is to use the interview, or statement, or whatever other inadmissible document may be in question, as though it were evidence in the case against the defendant being cross-examined. Certainly in a case such as the present, where, as we have indicated, there can have been no sensible expectation that Gray was going to adopt what Evans had said, such cross-examination should be strictly avoided. If it is not avoided, the judge's task in making the jury understand the evidential status of the interview or statement or whatever it may be is made very much harder, and real prejudice may be caused to the case of the defendant against whom it is inadmissible.

Incidently, we would observe that the learned judge's direction as to the evidential status of the interviews was, so far as the summing-up goes, very sparse and was certainly not the forthright and meticulous direction that might have done something to cure the unfortunate effects that the cross-examination may have had. We recognise, however, as counsel accepted and as the judge's observations in the passage we have quoted show, that the judge had at some earlier stage in the trial made reference to the evidential status of interviews.

Mr van der Bijl then argued that, even if the cross-examination in question was inappropriate and should not have taken place and there had therefore been an irregularity, the conviction was not unsafe. He referred to the strength of the case against Gray. Undoubtedly it was a very strong case, particularly when regard is had to his presence at the scene and the fact that he broke the window. There was also the evidence of three witnesses implicating him in planning or knowledge of the offence. But, having said that, we are receptive to the submissions made by Mr Tomlinson that the Crown plainly, and rightly, regarded the planning aspect of the whole episode as a very important part of their case, and it was to that part of the case that this cross-examination was directed.

We shall not lengthen this judgment by rehearsing the other submissions that Mr Tomlinson makes in this connection, but undoubtedly he is correct in saying that this was an important aspect of the case and the cross-examination may have had a significant effect by leading the jury erroneously to conclude that they could in some way set what Evans said in interview against what the defendant Gray had said in evidence, when that was the very thing that they should not have done.

In all the circumstances we cannot accept that the conviction remains safe despite what occurred. In our judgment there is a real risk that it may have been decisive in the jury's decision. Accordingly, on that ground also we would allow the appeal.

We need not, in the circumstances, deal in any detail with Mr Tomlinson's subsidiary argument based on the judge's refusal to allow him in his speech to the jury to make points as to those parts of Evans' interview (and there are some) which tend to suggest that Gray was not present at the conversation when Moon was recruited to the venture. We are unimpressed with Mr Tomlinson's contention that it should have been allowed because the relevant passages, being exclusively statements against Evans' interest, had become admissible. However -- and this is a good illustration of the sort of problems that arise when proper procedures are not followed -- we cannot escape the conclusion that, once this sustained and damaging cross-examination on the basis of an inadmissible document had been allowed, fairness and justice required that Mr Tomlinson should have been enabled one way or another to draw the jury's attention to the equally inadmissible passages which pointed to the truth of his client's account. However, for the reasons we have given earlier, the appeals will be allowed and the convictions quashed.

(Submissions re question of a retrial followed.)

LORD JUSTICE HUTCHISON: Having considered the matter, we have concluded that there ought to be a retrial in relation to both defendants.

MR VAN DER BIJL: Much obliged.

LORD JUSTICE HUTCHISON: We so direct. There are various matters to consider.

MR VAN DER BIJL: Yes.

LORD JUSTICE HUTCHISON: We have already quashed the convictions. We direct the preferment of a fresh indictment. How long do you want, Mr van der Bijl?

MR VAN DER BIJL: I would have thought a matter of 28 days to prefer.

LORD JUSTICE HUTCHISON: To prefer the indictment; and you appreciate you have to have arraignment within two months?

MR VAN DER BIJL: I thought two months, yes.

LORD JUSTICE HUTCHISON: The question of custody or bail arises; have you a position to take on that?

(Submissions re bail application on behalf of the Appellant Gray only followed.)

LORD JUSTICE HUTCHISON: Mr Tomlinson, we are prepared to grant bail in the case of Gray. We shall do so on the following conditions:

that he lives at 8 Boscombe Road, Folkstone;

that he reports weekly on Saturdays at Folkstone police station, at times to be arranged with the officers there;

that he does not in any way communicate or attempt to communicate, whether in person or in writing or by telephone or by any other means, with any of the persons who were witnesses for the Crown in this case.

MR FRENCH: May I take, my Lord, the Court's order is therefore that there is no substitution of an alternative verdict in relation to the principal count against Evans?

LORD JUSTICE HUTCHISON: We have not quite concluded the discussions on that. I understood you to be saying that you were inviting us to substitute a verdict.

MR FRENCH: My Lord, I am certainly happy with that; it is just to clarify it. Because as far as I can see, we are happy, as it were, to run the retrial on the basis that there is in existence a conviction. So I am certainly not unhappy, if that is what the court orders.

LORD JUSTICE HUTCHISON: And if we do not order that, your stance will be exactly the same, presumably, because you will be effectively doing what you did last time.

MR FRENCH: I will be back to where I was in July 1993; but I do not mind either way.

LORD JUSTICE HUTCHISON: If we do substitute a conviction, then you will want to address us on sentence?

MR FRENCH: I think that therefore follows.

LORD JUSTICE HUTCHISON: Yes.

(Discussion amongst members of the Bench.)

LORD JUSTICE HUTCHISON: Mr French, we have certain misgivings about substituting a conviction, not -- let me hasten to say -- that we in any way doubt what you have told us about what might be, but because the legal position may not be entirely clear and there might conceivably be difficulties. Have you any application to make in relation to that?

MR FRENCH: No. If that is the Court's view then --

LORD JUSTICE HUTCHISON: We have to deal with bail or custody.

MR FRENCH: In that respect, I have no application.

LORD JUSTICE HUTCHISON: You are content for him to remain in custody?

MR FRENCH: My Lord, I think so. He is not here. May I say, I have no direct instructions today. But looking generally at it, to have that young man now granted bail when it may be that, even if he were convicted of simple arson, it would be a cruelty to him. So I do not make the application.

LORD JUSTICE HUTCHISON: I see what is in your mind. I quite follow that.

In that case, we simply quash the conviction and we do not substitute a conviction.

What about the venue of the retrial? Are you content with Maidstone or do you want it moved to another?

MR TOMLINSON: I would certainly make an application. I have in mind Croydon, where many Kent cases are remitted. If this Court has the power to order a retrial at Croydon Crown Court then I certainly make that application.

LORD JUSTICE HUTCHISON: Mr French?

MR FRENCH: A change of venue. I am pretty neutral about Croydon, but away from Kent please, my Lord.

LORD JUSTICE HUTCHISON: Mr van der Bijl, do you have any submissions to make?

MR VAN DER BIJL: That should not cause any difficulties. It is common practice for some Kent cases to go to Croydon because of spillage.

LORD JUSTICE HUTCHISON: We direct the retrial takes place at Croydon.