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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Cooper & Anor, R v [2003] EWCA Crim 2257 (31 July 2003) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2003/2257.html Cite as: [2003] EWCA Crim 2257 |
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COURT OF APPEAL (CRIMINAL DIVISION)
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE CRESSWELL
and
MR JUSTICE BENNETT
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- and - |
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David Cooper and Michael G. McMahon |
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Richard Latham QC appeared for the Crown
Hearing dates: 30th June & 1st July 2003
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Crown Copyright ©
Lord Justice Kennedy:
The case at trial.
(1) The evidence of Mrs Mathews as to his visits to Mathews' home on the 9th and 10th September:
(2) His ownership of a red Mercedes sports car, and
(3) The fact that the pillow case in which the gun was wrapped contained hair similar to the hair on Cooper's Labrador dog.
(1) He was identified by Mrs Crawley as one of the men in the bank car park when Mr Stevens was shot.
(2) Two serving prisoners, Jackson and Weyers, said that McMahon had given each of them a detailed account of the killing including, in the case of Jackson, that the gun had been obtained from the brother-in-law of a man now doing seven years for armed robbery (which seemed to be consistent with the evidence of Good).
(3) When identified by Mathews, McMahon was heard to respond aggressively, and
(4) Mr Andrews said that one of the men in the station car park was wearing a boiler suit, and Mathews said that at that stage McMahon was wearing a boiler suit.
Previous decisions of the Court of Appeal.
In accordance with the normal practice at the time the names of Seal and McNair had been supplied to the defence, but when approached prior to trial they had said that they could not help. The Court of Appeal was prepared to accept that there was therefore a reasonable explanation for the failure to adduce at trial evidence which, if heard, might have been credible, but it went on to say that the evidence did not afford any ground for allowing the appeal. At page 11F of the transcript Fenton Atkinson LJ said
"Once one assumes, as we all do, that the jury clearly must have reckoned that Mathews was very much more deeply in this than he said, and whether he was the actual driver of the van, or exactly what part he was playing, does not matter. The vital matter on which clearly the jury believed him and rejected the applicants was that they were the three men who were with him making up this party"
The only ground of appeal pursued on behalf of McMahon and Cooper was that there was no proven intention on their part to kill or to cause grievous bodily harm, and that therefore they should only have been convicted of manslaughter. That possible alternative verdict was properly left to the jury, and the evidence was plainly such as to enable the jury to draw the necessary inference as to their state of mind.
(2) November 1973: Appeal by Murphy (Widgery LCJ, Stephenson and Browne JJ). Sometime during the first half of 1971 the Murphy family found another witness, Terence Edwards, who was not a close associate of Murphy but knew him slightly. The statement of Edwards was submitted to the Secretary of State who then referred the case of Murphy to the Court of Appeal, and in 1973 Edwards gave evidence before the court that on 10th September 1969 he came home from work at about 3 p.m. It was his younger brother's birthday, so he went out at about 4 p.m. to buy a birthday card. He heard a two-tone car horn. He looked up and saw Murphy driving a red sports car with a white top. He waved to Murphy, but got no response, and the car passed by. Edwards' evidence as to the date was supported by a till receipt in relation to a sewing machine which Edwards said he bought on that day after seeing Murphy. Murphy did, it seems, at that time own a car such as Edwards described. Edwards made a favourable impression upon the court, so Murphy's appeal was allowed. The court expressly refrained from offering any view about the convictions of McMahon and Cooper.
(3) February 1975: First reference by Secretary of State ( Widgery LCJ, James LJ and Ashworth J). Predictably the Secretary of State referred the cases of McMahon and Cooper to the Court of Appeal on the basis that
"The decision to allow Mr Murphy's appeal raises an issue about the credibility of Mr Mathews' evidence against Mr Cooper and Mr McMahon which makes it desirable that the Court of Appeal should be asked to consider their cases."
A number of issues were then canvassed. The court was invited to order that Mathews be recalled for further cross-examination in the light of material which had become available since the trial, but it refused to follow that course. It did hear from two witnesses, Stephens and Lennard, who claimed to have been taken by Mathews to Luton in 1967 or early 1968 in order to carry out a reconnaissance for just such a robbery as was attempted on 10th September 1969. Their evidence was found not to be reliable and was rejected. The statements of five witnesses were considered relating to sports cars in Luton on the day of the offence. The court found that all that they showed was that, not surprisingly, there were in Luton on that day a number of red sports cars of different manufacture and models.
Despite what had been said in February 1971 Seal and McNair were called to give evidence. The evidence of Seal was not found to be of any significant weight but McNair was different. He had seen the driver of the green van, and had picked out as resembling that driver two photographs from 42, one of those photographs being a photograph of Mathews. He also failed to identify Murphy, Cooper or McMahon when he attended identification parades on which they were standing. The court found his evidence to be credible and therefore considered its weight. As to that the court adopted the reasoning of Fenton Atkinson LJ in 1971 that it must have been clear to the jury, without the evidence of McNair and Seal, that Mathews was far more involved than he was prepared to admit in his evidence. Counsel submitted that the combined effect of McNair's evidence, that of Seal, and that of Edwards in the Murphy appeal, was to put the credibility of Mathews so much in doubt that the conviction of the appellants ought not to be allowed to stand, but James LJ said at page 11 of the transcript
"In our judgment this fresh evidence would not have resulted in the jury arriving at a different assessment of Mathews as a witness and it does not touch the crucial question of the reliability of Mathews in respect of his evidence as to who were the members of the team which went to Luton."
Other grounds of appeal related to the evidence relied upon by the prosecution to support the evidence of Mathews, but the court like the trial judge, said that Mathews was crucial. On the same page of the transcript James LJ said
"In our judgment, if the credibility of Mathews's identification of Cooper and McMahon is so much in doubt as to make the conviction unsafe or unsatisfactory upon the basis of his evidence, then in the case of each appellant the conviction cannot be saved by reliance upon the remainder of the evidence."
At trial the defence had not known that before attending the identification parade at which he identified McMahon, Mrs Crawley had said that she would not be able to identify anyone, and was shown a large number of photographs including a photograph of McMahon. The court found no substance in the suggestion that her identification evidence was thereby undermined.
That left the narrow point which the court described as "the real nub of these appeals". At trial there was no suggestion that Mathews might be mistaken in his identification of those who were with him. Did the evidence of Edwards so undermine his credibility as to render all of the convictions unsafe? There was reference to Baksh v The Queen [1958] AC 167 and counsel for the Crown pointed out that the jury could have acquitted Murphy and convicted the two appellants without it being said that they had reached inconsistent verdicts. The court agreed, and on that basis dismissed the appeal.
(4) 1976: Further reference by Secretary of State (Roskill and Lawton LJJ and Pain J). On 8th April 1976 the Secretary of State took the unprecedented step of referring the cases of Cooper and McMahon to the Court of Appeal for a second time. There were two reasons for the second reference, namely
"(1) Fresh alibi evidence in the case of Cooper was available from two men named Slade and Firmstone which, if it were or might be true, would, in the words of Roskill LJ at page 8 of the transcript 'shed grave doubt upon Mathews' credibility, certainly in relation to Cooper and therefore inferentially in relation to McMahon'
(2) Allegations had been made by a prisoner named Humphreys as to the conduct of former Detective Chief Superintendent Drury which, if admissible, might be relevant to the consideration of the cases of the two appellants. Drury had resigned in about 1972, but in 1976 he had yet to be convicted of any offence. He was awaiting trial on charges of corruption of which he was convicted in July 1977, when he was sentenced to eight years imprisonment."
Slade did not prove to be an impressive witness. The court examined his evidence in detail because it said
"If it is, or may be, true, Mathews' credibility is obviously gravely shaken as regards Cooper, and if false as regards Cooper, clearly cannot safely be relied upon against McMahon."
In 1969 Slade and Cooper's father had been fellow directors of an office cleaning company. Slade claimed that on 10th September 1969, the day of the murder, he had tea with Cooper in Hackney between 2.30 and 5 p.m., and that he saw Cooper again that evening in the vicinity of an East End amusement arcade. Slade's evidence, if accepted, also provided some support for Cooper's assertion that on that day he visited the tailor Mr Lerman. But Cooper had never mentioned Slade as a possible alibi witness, and Slade could offer no satisfactory explanation to explain his delay in presenting himself. From the outset he knew when Cooper had been arrested, and when the murder had occurred.
Firmstone, as a witness, was found to be good and careful. He had been Mr Lerman's assistant, and recalled a rushed job for Cooper on a day which he thought was a Wednesday in 1969, but he could not give the date and, as the court observed, Mr Lerman himself had in his statement to the police given another date before saying in the witness box that it was on 10th September 1969 that Cooper called.
In 1976 the court was plainly anxious to hear any credible and relevant evidence that the appellants might wish it to hear and to explore every arguable ground of appeal, so it re-visited the effect upon the safety of the appellants' convictions of the fact that Murphy's appeal had been allowed, and, partly in order to assist in relation to that issue, Mathews was recalled for further cross-examination. He emphatically rejected the suggestion that his identification of Murphy might be mistaken, and, as the court pointed out, Edwards had not provided Murphy with a cast iron alibi. He had merely given evidence which was apparently honest and relevant, and which the trial jury had no opportunity to evaluate. As was pointed out by Roskill LJ the evidence of Edwards "was identification evidence of the kind now known as a fleeting glance, unsupported by any other evidence." As to its impact on the cases of McMahon and Cooper Roskill LJ said at page 26 of the transcript that
"The highest that this part of the case can be put in their favour (as Mr McNeill accepted in his final speech) is that we know that there is in existence some evidence of the kind we have described inconsistent with Mathews's evidence in relation to Murphy, albeit evidence which, as Lord Widgery pointed out, is at least susceptible of being explained on the basis of honest but mistaken belief in an identification otherwise unsupported by Edwards of Murphy."
Four allegations were made about ex Detective Chief Superintendent Drury, but two were abandoned during the course of the hearing on the express instructions of the appellants. That left, first, an allegation that Drury had "leant on" Mathews to procure his confession of 25th October 1969, which led to the arrest of Murphy and the two appellants, a confession which, it was alleged Drury knew to be wholly false. The court, having examined the written material and heard oral evidence from both Mathews and Drury rejected that allegation saying
"Mathews denied it. Drury denied it. There is no evidence whatever to support it."
The second surviving allegation was that Drury, for improper reasons, refrained from putting Mathews on an identification parade, and thus prevented the possible identification by four witnesses, McNair and Seal, Isaacs and Andrews. McNair and Seal might, it was submitted, have identified Mathews as being present at the bank car park where the murder was committed. Drury said that he did not regard McNair or Seal as impressive identification witnesses, and he was anxious not to do anything which might cause Mathews to resile from his confession. As the court pointed out, if McNair and Seal had identified Mathews as the driver of the van "it would only have meant that Mathews was more deeply involved than he was prepared to admit, a consideration which the learned judge placed before the jury in his summing-up." Isaacs and Andrews were only at the station car park, so there was nothing in their evidence to disprove Mathews's denial of having been at the scene of the murder. In the result the court rejected the suggestion that there was anything sinister in the omission to put Mathews on an identification parade.
In May 1970 Mathews received a reward of £2000 from the Post Office. Michael Good and others were also rewarded. In this court in 1976 Mathews was evasive about his receipt of and use of that money, £700 of which was withdrawn from his account in cash the day after the money was received. But the criticisms of Mathews were not assisted by calling a prisoner named Wilkinson to say that in September 1979 Mathews had a red MG sports car, which was a "ringer". Wilkinson turned out to be a "most unsatisfactory, unconvincing and unreliable witness" whose evidence "bore the hall mark of recent prison manufacture designed to help a fellow prisoner in trouble."
Mathews was recognised to be unreliable in certain respects, but he was consistent as to who had been with him, and, as the court noted, if he was framing innocent men it was an odd coincidence that he picked on three men not one of whom could produce cogent evidence of alibi when arrested two months after the murder, and one of whom, McMahon
"(1) was identified by Mrs Crawley as having been at the bank car park, and
(2) was said to have confessed in prison to Weyers and to have given to Weyers 'startlingly accurate' information as to the value of the contents of the Luton Post Office safe."
(5) 1978: Secretary of State seeks opinion of Court. In April 1977 solicitors acting for McMahon obtained a statement from a man named Richard Hurn in which Hurn claimed to have seen McMahon in the East End of London twice on one day some years previously. If read together with the statement of Frederick Lawrence it could be inferred that the sightings took place of the day of the murder. The statements were forwarded to the Secretary of State who, under section 17(1)(b) of the Criminal Appeal Act 1968 asked the court to consider whether if the statements were tendered in the course of an appeal arising from a reference under section 17(1)(a) the court would regard itself as required to receive the fresh evidence by virtue of section 23(2) of the Act. The court found that Lawrence had been at court as a potential alibi witness for McMahon at the time of the trial, but had not been called. Furthermore his two statements were inconsistent with each other, and the fresh evidence to which the reference related did not justify an inference that the events referred to took place on 10th September 1969, so it could not afford any ground for allowing an appeal. Furthermore the fresh evidence described in detail events 8 years ago and, despite intensive efforts to find alibi evidence, it had not previously been forthcoming, so it was considered not likely to be credible.
The structure of this appeal and the law.
(1) The evidence of Michael Good.
(2) The successful appeal of Murphy in November 1973.
(3) The evidence of Seal and McNair (heard in 1975).
(4) The evidence of Mrs Mathews, - and
(5) The conviction of Drury in 1977.
Section 2 of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, requires that this court "shall allow an appeal against conviction if they think that the conviction is unsafe". There is no reference in that section to what the trial jury might have thought, or to the thoughts of any other hypothetical jury, but of course the court has to apply the statutory test against the background of a criminal justice system which involves trial by jury, and under which a jury has returned a verdict of guilty. When this case was before this court in 1976 Roskill LJ cited from the speech of Viscount Dilhorne in Stafford v DPP [1974] AC 878 at 893
"Parliament has, in terms, said that the court should only quash a conviction if, there being no error of law or material irregularity at the trial . 'they think' the verdict was unsafe (or unsatisfactory). They have to decide and Parliament has not required them or given them power to quash a verdict if they think that a jury might conceivably reach a different conclusion from that to which they have come. If the court has no reasonable doubt about the verdict, it follows that the court does not think that the jury could have one; and, conversely, if the court says that a jury might in the light of the new evidence have a reasonable doubt, that means that the court has a reasonable doubt."
In Pendleton [2002] 1 WLR 72 the House of Lords was invited to reconsider the decision in Stafford, and at page 83, paragraph 19 Lord Bingham, with whom Lords Mackay, Steyn and Hope agreed, said
"I am not persuaded that the House laid down any incorrect principle in Stafford, so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty. But the test advocated by counsel in Stafford and by Mr Mansfield in this appeal does have a dual virtue to which the speeches I have quoted perhaps give somewhat inadequate recognition. First, it reminds the Court of Appeal that it is not and never should become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe."
At page 89, paragraph 35, Lord Hobhouse, having set out the words of the statute, said
"The sole criterion which the Court of Appeal is entitled to apply is that of what it thinks is the safety of the conviction. It has to make the assessment. That is made clear by the use of the words 'if they think'. The change in the language of the statute has reinforced the reasoning in Stafford v DPP and shows that appeals are not to be allowed unless the Court of Appeal has itself made the requisite assessment and has itself concluded that the conviction is unsafe."
Since Pendleton was decided it has been frequently cited in this court, for example in Mills and Poole (No 2) [2003] EWCA Crim 1753, to which our attention was invited, and in Hakala [2002] CLR 578, where Judge LJ said at paragraph 11 of the transcript
"In Pendleton itself Lord Bingham's conclusion that it was not possible to be sure of the safety of the conviction followed an analysis of the fresh evidence in its factual context. The judgment in 'fresh evidence' cases will inevitably therefore continue to focus on the facts before the trial jury, in order to ensure that the right question the safety or otherwise, of the conviction is answered. It is integral to the process that if the fresh evidence is disputed, this court must decide whether and to what extent it should be accepted or rejected, and if it is to be accepted, to evaluate its importance, or otherwise, relative to the remaining material which was before the trial jury: hence the jury impact test."
With those authorities in mind we turn to look at the five topics we are now asked to consider.
The evidence of Michael Good.
The impact of Murphy's appeal.
"If Edwards had been called at the trial, would any judge have directed the jury that in considering whether or not Cooper and McMahon were correctly identified, they must disregard Edward's evidence? What then are the different circumstances that are to prevail when the same question is being considered by an appellate court?"
The evidence of Seal and McNair.
"His description of the movement of the van is difficult to reconcile with the statement of McNair. On his own version the opportunity for registering in his mind a reliable impression of the driver's appearance was very limited."
In 2003 we see no reason why this court should take any different view, but with McNair the position was and is different. He was a 29 year old motor dealer who was driving along Welbeck Street. As James LJ said
"McNair saw a van driven out of the bank car park into Welbeck Street. The van stopped behind him. He described the driver of the van by age, facial appearance and head-dress. He also described a person who was hanging on to the van at the driver's door and who later moved off hurriedly in the direction of High Town Road. On the 29th September he picked out from forty two photographs two photographs of persons resembling the driver of the van. One of those he picked out was a photograph of Mathews."
A little later in the judgment James LJ said
"We see no reason to regard McNair as other than a credible witness and therefore the question is what weight should be given to his evidence? If it is accorded the fullest weight in favour of the appellants and fed into the evidence which was before the jury the maximum effect it could have is that the jury would believe that Mathews played a part in the offence as the driver of the van on its journey from the bank car park, and that Mathews' evidence to the part he played was false. But, as was pointed out in the passage already cited from the judgment of Lord Justice Fenton Atkinson on the hearing of the application, it must have been clear to the jury, without the evidence of McNair and Seal, that Mathews was far more involved than he was prepared to admit in his evidence."
Mr Emmerson submits that it was not enough for the court to say in effect that the jury must have been alive to the possibility that Mathews was more deeply involved than he admitted, because if he was the driver of the van as it left the car park, significant parts of his evidence cannot have been reliable. For example, he would not have only learnt of the shooting as a result of hearing a conversation between Murphy and McMahon. Only three men were seen to run away from the victim's car after he was murdered, and if Mathews was one of those men the Crown would never knowingly have discontinued criminal proceedings against him and allowed him to give evidence against his co-accused.
The evidence of Mrs Mathews.
"Although Alf had been ill for sometime, he looked very white and ill when he came in. He asked me to make a cup of tea but this was what he usually did. He seemed very depressed on this evening.
I don't know if he went out again that night. He may have gone to his, brother Reg, but I don't know, I'm not sure.
I remember hearing something on the news about the murder at Luton. This was the 10pm news. I'm not sure if Alf was here or not. I remember either saying or thinking how terrible it was.
There was thus no mention of the crucial visit on the evening of 10th September during which Cooper was alleged to have admitted being present at the murder "right at the back".
"...Where a witness whom the prosecution call or tender gives evidence in the box on a material issue, and the prosecution have in their possession an earlier statement from that witness substantially conflicting with such evidence, the prosecution should, at any rate, inform the defence of that fact: Rex v Howes (unreported), 27 March 1950, C.C.A...In certain cases, particularly where the discrepancy involves detail, as in identification by description, it may be difficult effectively to give such information to the defence without handing to them a copy of the earlier statement: Rex v Clarke (1930) 22 Cr. App. R. 58; see also Baksh v The Queen [1958] AC 167."
The conviction of Drury.
"There is no evidence available to dispute what he has said about his not being present at the actual scene of the murder."
That does not seem to be right, having regard to the statements of Seal and McNair. Those statements are referred to elsewhere in the report, but their significance may not have been immediately apparent to anyone reading that report. We have already referred to the decision not to put Mathews on an identification parade to see if he could be identified by Seal or McNair, and remain of the view that despite the conviction of Drury nothing sinister should be read into that. Mr Emmerson points out that Mathews was treated as a potential prosecution witness from a very early stage. He identified Cooper, Murphy and McMahon on identification parades held in early November 1969, and on 3rd December 1969 he made a witness statement which was not under caution. He was also permitted to have contact with his wife while in custody, and prior to his first statement.
Conclusion.
(1) Good knew which weapon had been used at such an early stage that if not himself involved he must have been very well informed, yet when he began to name suspects he did not at first name the appellants, and he could not satisfactorily account for his disposal of the gun in a way which others who were said to be involved were prepared to support. None of that information was available to the court at trial because the evidence of Good was presented so as to mislead.
(2) The evidence of Edwards in relation to Murphy does, if accepted as reliable, call into question the credibility of Mathews not only in relation to Murphy but also in relation to others he said were with him, namely the appellants. If Murphy could have been re-tried, and on re-trial had been convicted, Edwards would have become irrelevant so far as the present appellants were concerned but because of the passage of time no re-trial was possible.
(3) The trial jury had no opportunity to evaluate the evidence of McNair and Seal, which if accepted indicated that Mathews, or at least a man older than those he said were with him, was present at the scene of the murder. The account given by Mathews did not allow for the presence of himself or any older man, so again his credibility is called into question.
(4) The inadequate disclosure made in relation to the statements of Mrs Mathews meant that her inconsistencies, which were of particular relevance to Cooper, were never fully exposed.
(5) The subsequent conviction of the officer in charge of the investigation on charges of corruption adds to the sense of unease when considering
(a) the relationship between that officer and Mathews, and
(b) the recommendation in relation to payments of reward money and the destination of the money when paid.