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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Cundell, R. v [2009] EWCA Crim 2072 (13 August 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2072.html Cite as: [2009] EWCA Crim 2072

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13th August 2009

1. LORD JUSTICE GOLDRING: On 28th September 2006, after a seven day trial at Norwich Crown Court before His Honour Judge Jacobs, the appellant was convicted of three counts. Count 1 alleged that between 1st February 2005 and 21st September 2005 he solicited another to murder Tracey Cundell, his former wife.
2. The person whom it was said he solicited was a man called Clelland. At the time Clelland and the appellant were fellow prisoners in Norwich Prison. The appellant was serving a sentence of 5 years' imprisonment having pleaded guilty on 23rd October 2005 to a previous offence of soliciting his wife's murder.
3. The appellant was also convicted of counts 4 and 5. Those were allegations of doing acts tending and intended to pervert the course of justice. Count 4 alleged that he incited a man, Jason McCready, to commit perjury. Count 5 made an identical allegation in respect of a man called Mason. Both McCready and Mason were fellow prisoners at Norwich.

The Previous Conviction

4. The appellant and Tracey Cundell were married in 1997. Divorce proceedings were begun in 2004. The appellant approached two men in that year. He agreed to pay them £15,000 if they murdered Tracey Cundell. He made a £5,000 down payment and agreed to pay the remainder after the murder. On 22nd December 2004, believing the murder had been carried out, he agreed to meet them and pay the remaining sum. The men were in fact undercover police officers. They taped their conversations with him. He was arrested and pleaded guilty. Given the existence of the tape and its contents he had little choice.

The present indictment

Count 1

5. Clelland had a formidable record. From 1968 he had committed crimes. The offences included theft, assault and burglary. In 2000 he murdered his wife. He was serving a life sentence in respect of it. He and the appellant worked on the same landing. According to Clelland, after several weeks the appellant came to his cell. He said words to the effect: "You're a man who knows where I can get my wife killed". Clelland said that he eventually agreed to arrange the killing of the appellant's wife although he had no intention that it should be carried out. It was agreed that Clelland would recruit someone to do the job. The appellant would pay £5,000 in advance and then £10,000 to Clelland upon his release. The appellant did not set a timescale but wanted his wife strangled on a Sunday, taken to Scotland and thrown in the River Forth. He wanted her dead so that he could have his house and his daughter back. Clelland said he asked for personal information about the former wife in order to make the arrangements for her murder. The appellant gave Clelland that information, said Clelland. It included her home address, the daughter's name, details of her life-style habits, when she arrived home, details of her motorcar and its registration number. According to Clelland the appellant became ever more demanding that the job should be done as soon as possible.
6. In fact Clelland left a note for a prison officer called Wall. The note is before the court. It contained a great deal of the detail which Clelland said the appellant had given him. It included the registration number of the motor car. It stated that the appellant wanted to kill his wife. It included, in addition to that registration number, the address, the daughter's name and the colour of the motorcar.
7. The Crown alleged that this was not the sort of detail which would be picked up in a casual conversation. After Clelland had contacted Mr Wall, there was no further contact between him and the appellant. As to why he did not go along with the scheme, Clelland said he was disgusted and did not want to see another woman killed by a man.
8. In cross-examination, Clelland confirmed that he had been looking for a transfer to another prison at this time due to poor health. He was not eligible for a less rigorous regime. He had been in Norwich for some 5 years and wanted to be closer to his family. He said he regretted killing his wife and leaving his children without a mother. He said the appellant claimed he would sell the house and give him £5,000. No motive for Clelland lying was in terms suggested to him. In re-examination, he said that after he made his witness statement, he had been moved to another prison in Bristol which was a category A prison with a harder regime.
9. We have a recent email from a prison governor which, on the face of it, states that Bristol ceased to be a category A prison in around 2002 to 2003 although at a material time it could have taken recall lifers who were category B prisoners.
10. Mr Wall handed the note to the police. The Crown submitted that Clelland's evidence was confirmed in several respects. The starting point of that confirmation was said to be a witness called Raghuwan. He too was a serving prisoner. He had made a witness statement. Put shortly, in that he claimed that the appellant had requested him to act as a go between and to make the delivery of money from the appellant to the as yet unidentified hit man outside the prison.
11. When Raghuwan gave evidence, he denied any such arrangement. He said that the appellant did not say he was trying to have his wife killed. He merely said that he disliked her. The judge permitted the prosecution to treat the witness as hostile. The contents of his witness statement were put to him. He disputed that much of what it contained had ever been said. He said it had been written out by DS O'Neill, the officer in the case, who had made it up. At first he denied signing it. In that statement, among other things, this is said:

"For all the time I have known Graham he has been going on about getting his wife killed.

I have been concerned for sometime as I know his wife has a nine year old daughter, as I do, and any plans to kill his wife could end up in injury or death to the child and at least great trauma at her mum dying.

I have been trying during numerous conversations with him to put him off any plans to have her killed.

I was due to be released on 10th August 2005, and he had asked me prior to that to go to his Dad's address in Fulbourne Cambridgeshire where I was to pick up £20,000, and to deliver this to a guy in Stradishall on Haverhill."

12. The statement said that the appellant told him in about mid July 2005 that someone had taken up the contract. It said the appellant did not tell him who that person was but the job was to be done soon afterwards. His only role was to drop the money off when told where when he got out. The statement said that he had no intention of doing it. It is said that he had spoken to the chaplain and his solicitor about his concerns. He had asked his solicitor to contact the police. It was in fact the case that Raghuwan had contacted a solicitor and asked the solicitor to contact the police.
13. In cross-examination, he agreed with a defence suggestion that the appellant did not want his wife dead. No motive for him having lied when he made his witness statement was suggested in cross-examination.
14. Sergeant O'Neill said that Raghuwan made the statement of his own initiative. He first approached the prison chaplain and then a solicitor. The sergeant said that Raghuwan was willing to tell him what the appellant had said. He would not at first make a witness statement until he was moved from Norwich to Chelmsford Prison. Each paragraph of the statement had been written separately. When finished it had been read and signed on each page.
15. In September 2005 the appellant was arrested for solicitation to murder. On 4th December 2005 there was a plea and case management hearing.
16. It was alleged that in January 2006 the appellant recruited three fellow prisoners, McCready (count 4), Mason (count 5) and a man called Wright to give false evidence at his trial. In short, they were to give evidence that Clelland and Raghuwan knew each other and were seen speaking to each other, the implication being they had conspired falsely to implicate the appellant in count 1.
17. McCready too had a formidable record. He had committed theft from an early age. He had received a sentence in a young offender institution. There were offences of taking and driving away, driving while disqualified, going equipped for theft, attempted burglary and finally money laundering. McCready said he met the appellant in prison in July 2005. He became friendly with him. He knew why the appellant was there. The appellant told him that two people had made an allegation that he was trying to get someone to kill his former wife. McCready said the appellant had asked him to make a false statement, saying that he had met Clelland and Raghuwan together at a medical hatch. The appellant offered to pay him £500. Mason too was offered £500. McCready said he was concerned for the well being of the appellant's ex-wife and daughter. He and Mason agreed to set up a further meeting with the appellant and secretly to tape conversation.
18. A tape recorder was placed out of sight in a locker. We have a copy of the transcript of the tapes. Each of us has read it with care. It is on its face highly incriminating. The appellant describes events that had taken place between his wife and himself. He describes the offence to which he pleaded guilty. He talks about Clelland.
19. The appellant did not dispute the contents of the tape. He said that after the recorded conversation he made it clear that he did not want to take this matter any further. The tape conversation took place in January 2006. Subsequently the appellant made an appointment for 2nd February 2006 for McCready and Mason to see his solicitors. It was cancelled by McCready and Mason. That, submitted the Crown, gave the lie to the appellant's claim that there had been a subsequent conversation in which he had said that he did not want to take the matter any further.
20. In cross-examination, McCready was asked, among other things, about a previous conviction for perverting the course of justice. That related to providing false details when arrested driving a motorcar.
21. He said in cross-examination that the appellant had asked him in February 2005 to find someone to kill his former wife. He denied making the tapes to blackmail the appellant. He said, as was the case, that he had handed them over to the prison officers. It was not the case, he said, of the appellant reacting to McCready's and Mason's suggestions.
22. Mason did not make a witness statement and did not give evidence.
23. The appellant gave evidence. Among other things he denied talking to Clelland about killing his wife. The appellant denied that he pestered Clelland. He said he had made no financial arrangement with him. Clelland had a better relationship than he did with the prison officer Wall. He said he spoke to Raghuwan, who was a listener in the prison. He did not discuss in great depth with him why he, the appellant, was in prison. He did not say he had taken up a contract on his wife. He said that he thought that Raghuwan might have made up the allegations as there was bad feeling between them in the end. He denied asking McCready if he could have his wife killed. He admitted meeting McCready in the cell. Mason had agreed to provide a statement. Mason was originally going to say that the appellant had done nothing wrong but then money was mentioned and the sum of £500. The appellant said he did not have £500. He was not buying statements. When referred to parts of the transcript of his cell interview, he said he was trying to go along with suggestions being made to him in order to find out what was going on. He did not know he was being recorded. He told McCready and Mason that he did not want to take the matter any further.
24. He was asked about the detailed note which Clelland had given to Mr Wall. He said it was possible that Clelland had got the name, address and car details of his former wife from a document in the cell. The jury had the relevant documents and they did not contain the car registration number.
25. Wright gave evidence on behalf of the appellant. He said Clelland lived in a fantasy world. He had never had any money. He offered to get rid of his, Wright's, daughter's boyfriend. Wright said he had been present when Clelland had read the appellant's case papers. The appellant had shown no desire to have his wife killed.

The grounds of appeal

Grounds 1, 2 and 4

26. It is convenient to take these grounds first. Ground 1 concerns the failure of the judge to give the jury an express warning as to the need to treat the evidence of McCready and Raghuwan with caution. Ground 2 concerns the failure of the judge to give the jury an express warning to treat the evidence of Clelland with caution. Ground 4 alleges that there is fresh evidence which casts doubt on the credibility of McCready's evidence. That fresh evidence, which we have heard de bene esse, it is said provides a fresh motive for McCready to have lied.

Grounds 1 and 2

What the judge told the jury about the witnesses' previous convictions.

27. The direction was in the following terms:

"Now, you have also heard that the witnesses have previous convictions. I may deal with some of them in more detail when I turn to their evidence, but so that we have it all together, let us go through it.

Clelland; we know that from 1968 onwards, he has committed crime; theft, assault, driving whilst disqualified, burglary for which he got a nine month suspended prison sentence, and then finally he murdered his wife and he ended up with a life sentence of imprisonment in the year 2000.

The next one is Raghuwan. There is not the slightest doubt that Raghuwan is a bit of a con man. He has got a lot of convictions for theft, forgery. He got 30 months for obtaining by deception, nine months for theft, three years for obtaining by deception.

The next one is McCready. From an early age he was involved in theft. Youth custody he got for that. Taking and driving cars, driving while disqualified, going equipped for theft, attempted burglary, and then of course we know that he was involved in money laundering. He has got a lot of convictions.

Mason we did not hear from and so it is much more difficult to fully understand why we heard about Mason's convictions. He was obviously in prison in any event, but they have been referred to. In fact, he has 17 in total; shoplifting, possessing controlled drugs, harassment, possessing an imitation firearm -- 30 months -- and assault, so you have heard about Mason's convictions although he has not given evidence before you.

Finally, there is Mr Wright who was called for the defence. You will have to assess what you can of Mr Wright. Two matters emerge here. He has got two previous convictions for supply of Class A drugs on two separate occasions. He served one sentence, came out, supplied Class A drugs again, and in addition, of course, you will have to assess Mr Wright. You will have to decide whether or not there is something of the market trader about Mr Wright, whether or not he was selling you a story or not, but the main thing is the previous convictions that you have to concentrate on here.

Now, how do you deal with those? Well, the direction I give you is very similar to what I have just given you in relation to the defendant. You should not assume that just because a witness has a bad character he is not telling you the truth. The relevance of the bad character goes precisely to the issue in that case, whether or not it helps you, the jury, in deciding if that particular witness has or might have concocted the story. Obviously, a person who is of bad character is perfectly capable of being believed, but on the other hand, it is relevant fact that you remind yourselves that that particular witness does have previous convictions and that many of those previous convictions in many cases are for offences of dishonesty, and in some cases such as Mr Raghuwan's deception."

28. There are two aspects of Mr McDonald's submission. First, he submits the judge was obliged to give the jury an express general warning to treat with great caution the evidence of the prosecution witnesses because of their previous characters and their records for dishonesty. He should too have explained why the caution was required. What the judge in fact told the jury was neutral. Second, Mr McDonald submits that specific warnings should have been given regarding the possibility of the evidence of each of the individual witnesses being tainted. Clelland wished to ingratiate himself with the Parole Board. He wished to ingratiate himself with the prison authorities in order to move to a more open and local prison. His custodial situation alone provided the incentive to lie. Raghuwan was on remand and yet to be sentenced when he made his witness statement. He had the incentive to lie in order to retain a lesser sentence. McCready, although sentenced by the time of the trial, had not been sentenced when he made his witness statement.
29. Mr McDonald relies in part on a series of cases which predate the Criminal Justice and Public Order Act 1994 (which by section 32 abolished the corroboration rules in respect of an alleged accomplice or a complainant in a sexual offence and the evidence of a child). He referred us to the cases of R v Beck [1982] 1 WLR 461 and R v Spencer & Ors [1987] 1 AC 128.
30. Given two more recent decisions of the Privy Council it is not necessary to refer to those passages he has cited. Neither is it necessary to refer to the Australian and Canadian authorities to which he has drawn our attention.
31. In R v Pringle [2003] UKPC 9, part of the evidence against the appellant, who had been convicted of murder, was a confession that he allegedly made to another prisoner, Simmons, in a cell at the police station, some days after being taken into custody. One of the grounds of appeal was that Simmons was a prison informer with an obvious interest to serve. When he made his witness statement to the police, he was untried and on remand. Subsequently he received a suspended sentence. The evidence was tainted, it was said. It should have been the subject of directions which were not given by the trial judge in his summing-up. The judgment of the Privy Council was delivered by Lord Hope Craighead. At paragraph 27 he said this:

" The first question is whether there was evidence in this case to suggest that Simmonds's testimony was of such a character as to require the judge to draw the jury's attention to the possibility that it was tainted."

The possibility of the evidence being tainted was not in that case fully explored in cross-examination. That was because of what the Privy Council regarded as an "unfortunate" intervention by the judge. At paragraphs 30 and 31, Lord Hope said this:

"30. The next question is what the judge should have said about this in his summing up. It is not possible to lay down any fixed rules about the directions which the judge should give to a jury about the evidence which one prisoner gives against another prisoner about things done or said while they are both together in custody. There may be cases where the correct approach will be to treat the prisoner simply as an ordinary witness about whose evidence nothing out of the usual need be said. Examples of that situation are where the prisoner is a witness to an assault on another prisoner or a prison officer or is a witness to a drugs transaction which has taken place in the place where he is being held.

31. But a judge must always be alert to the possibility that the evidence by one prisoner against another is tainted by an improper motive. The possibility that this may be so has to be regarded with particular care where, as in this case, a prisoner who has yet to face trial gives evidence that the other prisoner has confessed to the very crime for which he is being held in custody. It is common knowledge that, for various reasons, a prisoner may wish to ingratiate himself with the authorities in the hope that he will receive favourable treatment from them. Of course, as Ackner LJ indicated in R v Beck at p 469A, there must be some basis for taking this view. The indications that the evidence may be tainted by an improper motive must be found in the evidence. But this is not an exacting test, and the surrounding circumstances may provide all that is needed to justify the inference that he may have been serving his own interest in giving that evidence. Where such indications are present, the judge should draw the jury's attention to these indications and their possible significance. He should then advise them to be cautious before accepting the prisoner's evidence."

At paragraphs 33 and 34, he said this:

"33. It is true that the judge drew the jury's attention to some matters that they might like to consider when they were assessing the veracity of Simmonds's evidence. But their Lordships consider that there was a significant omission from this part of the judge's summing up. He ought to have drawn attention also to the factors which might indicate that the witness had an improper motive which tainted his evidence. These were that he was an untried prisoner, that it is not unknown for persons in his position to wish to ingratiate themselves with the police and that to give them information that the appellant had confessed to the crime for which he was being held by them in custody was a convenient and obvious way of doing so. He ought then to have given an express direction to the jury that they should be cautious before they accepted this witness's evidence.

34. The Crown's case against the appellant was based mainly on Simmonds's evidence about the appellant's conversation with Montgomery when they were all together as prisoners in the police cell. It was crucial, if the appellant was to receive a fair trial, that the jury should be told that they should be cautious before they accepted this evidence in view of the possibility that it was tainted. As this was not done, their Lordships have concluded that on this ground also the appellant's conviction must be held to be unsafe..."

32. Benedetto and Labrador v The Queen [2003] 1 WLR 64 was another Privy Council case, this time on appeal from the British Virgin Islands. The charge was murder. The case against one of the appellants depended almost entirely on the evidence of a fellow remand prisoner of admitted bad character, who claimed the appellant had confessed to him. In the course of the judgment, again given by Lord Hope of Craighead, he observed that it would be hard to imagine a witness who was less deserving of belief than the witness relied upon by the prosecution in that case. Having referred to Pringle, he said this at paragraph 35:

" It should be noted that there are two steps which the judge must follow when undertaking this exercise, and that they are both equally important. The first is to draw the jury's attention to the indications that may justify the inference that the prisoner's evidence is tainted. The second is to advise the jury to be cautious before accepting his evidence."

33. Mr McDonald submits that had the judge approached the case in the way suggested by Lord Hope in those cases, both a general warning and specific warnings regarding each witness would have been given. It is part of his submission that in each case, with facts such as the present, such a warning is necessary. The judge had no discretion in that regard. The failure to give the warnings rendered the conviction on count 1 unsafe.

Our Conclusion

34. We express no view as to whether in every case, with facts such as the present, a general warning must invariably be given. Suffice to say each of us would, in the circumstances of this case, have given a general warning. In our view, the judge should have done so. Moreover, again, as was made clear by the judgments of the Privy Council, the judge must always be alert to the possibility that in a particular instance the evidence is tainted by an improper motive. We would anticipate that would involve discussion between counsel and the judge before summing-up.
35. Whether, of course, in a particular case the failure to give a general and/or specific warnings renders a conviction unsafe depends upon the facts of that case.
36. As far as Clelland was concerned, the only improper motives suggested by the defence concerned the Parole Board, and, primarily, his wish to move prisons. Although the judge did not mention those to the jury, he did remind them of what the witness said about his wish to move prisons. No doubt too, if thought to be a good point, this was a matter raised by defence counsel in his final speech, albeit, as Lord Hope made clear, that is not enough. The problem, as far as the appellant and Clelland was concerned, was not, as it seems to us, the absence of any warning by the judge, but the several discreet pieces of evidence which provided cogent support to his account; in particular the detailed note containing the appellant's former wife's car registration number. At the end of this part of the judgment, we shall refer to the evidence which went to support the prosecution witnesses in the round.
37. We do not think that any failure to warn the jury that Clelland might have been telling lies about the appellant because he might have thought that that would help him move prisons could begin to affect the safety of the conviction on count 1. The fact that Clelland said in re-examination that he had been moved to a category A prison when there was some evidence that Bristol was not at the material time such a prison does not seem to us to affect the position. We are of the same view regarding parole.
38. As to Raghuwan, it is the case that at the time he made his witness statement he was yet to be sentenced. However, in evidence he said the statement was untrue. He gave explanations as to how it came to be made. He did not suggest that when he saw DS O'Neill he was influenced by the possibility of a lighter sentence in the future. It would, in his case, not have been easy to devise an appropriate direction to the jury likely to help the appellant. As his evidence did not implicate the appellant, any warning would of course have had to be directed to his state of mind at the time he made his witness statement. In any event the judge gave a very careful direction regarding him and his evidence (see page 26B of the summing-up). Again, it does not seem to us that the failure to give any warning in his case could conceivably have affected the safety of the conviction on count 1.
39. As to McCready, it seems to us that there is a fundamental problem which the appellant has to face: the tape in which he took part effectively amounted to the commission of the offences on counts 4 and 5. There is no question of the evidence with respect to the tape having been tainted. That is why Mr McDonald makes no submissions on those counts.
40. With regard to count 1, Mr McDonald puts it in this way. In cross-examination, McCready said, for the first time, that the appellant spoke of an attempt to solicit him to murder the appellant's former wife. That, submits Mr McDonald, is evidence which went to support Clelland on count 1. The jury might have given less weight to it had they been given a general warning. (He makes further submissions regarding McCready and that aspect of the case in ground 4).
41. We cannot accept that McCready's evidence in that regard had the importance on count 1 ascribed to it by Mr McDonald. The fact that such a thing had never been before said by him was well before the jury. We cannot imagine that the failure to give the general warning could have made any difference to the jury's consideration of McCready's evidence on count 1.
42. Although each of us, as we have said, would have given at least the general warning, neither that or the specific warnings with respect to individual witnesses would have been of unalloyed benefit to the appellant. As Mr Farmer, on behalf of the respondent points out, the judge would also have had to indicate to the jury what evidence there was which supported the accounts that they had given. On tape and in evidence the appellant admitted that he did in fact discuss murdering his wife. The main difference as between the appellant and Clelland was whether the appellant asked Clelland to carry out the murder or Clelland merely offered the opportunity of having his wife murdered. On the tape the appellant conceded that as far as count 1 was concerned he would be "fucked" if Clelland had recorded the conversation between him and Clelland. On the tape, he said he assumed at the plea and case management hearing there had been full disclosure; that, in other words, there was no tape recording of his conversation with Clelland. That was cogent evidence of a conversation with Clelland.
43. The appellant accepted that he had had discussions with Clelland on the topic of the murder of the appellant's wife. On tape he discussed with McCready and Mason the methods by which his former wife could be murdered. That bears a similarity to the methods that Clelland said were discussed with him. The appellant agreed that he provided Clelland with an accurate and precise description of his wife; her height, hairstyle, the make, colour and registration number of her motorcar, her precise address, the name of the club which she regularly visited, some 20 or so miles from her home and the time in the early hours when it would be virtually certain she would be at home. Clelland said that he was given this information in order to help him arrange the murder.
44. Both Clelland and the appellant were in custody at the time of the alleged arrangement between them. The question, said the Crown, arose as to how the murderer might be paid. Clelland suggested that credit could be arranged until the appellant was released. Clelland did not know that money had been borrowed by the appellant when he had previously solicited his wife's murder. That, suggested the Crown, was unusual.
45. We have concluded, having considered the evidence as a whole that any failure by the judge to give the appropriate warnings does not begin to affect the safety of the conviction on count 1. We reject therefore grounds 1 and 2.

Ground 4: the fresh evidence

46. It is agreed that before McCready gave evidence DS O'Neill, the officer in the case, saw him when he was at court. There is a complaint that no note was taken; also that the defence was not told. During cross-examination by Mr Brown, counsel then representing the appellant, Mr Brown suggested to McCready that the assertion that the appellant had sought to solicit him was untrue. He suggested it was "an invention [made] on the hoof." McCready disagreed. More than once he said he had no benefit from giving evidence. He asked rhetorically what motive he had to give evidence. He said: "I haven't done this to help the police. Let me make myself abundantly clear. I'm not doing this for the police I'm doing this for the benefit of his ex-wife and daughter. Listen, I will say it for the benefit of the court. I don't even want my parole."
47. On 13th December 2007, a little over a year after the trial, McCready wrote to the Crown Prosecution Service asking for details of the appellant's defence counsel. In that letter he first raised a number of allegations concerning DS O'Neill, which formed the basis of the fresh evidence that we have heard, as we say, de bene esse. The content of the letters is encapsulated in the witness statement he made to the Criminal Cases Review Commission on 30th December 2008, and which in broad terms he confirmed in evidence before us. In short he said that he had told DS O'Neill that he was only providing the tapes for intelligence purposes. When DS O'Neill saw him in prison, he had a prepared witness statement ready. He, McCready, signed it because DS O'Neill said there was a strong prima facie case and the appellant would plead guilty. He, McCready, was not willing to go to court and said so. When finally persuaded to go to court, he was seen there by DS O'Neill, who told him that if he wanted parole he had to give evidence, to which he said he did not want parole. He said too that when he gave the evidence he did, he told the truth. He said that what he said about not wanting parole was also the truth. He said he subsequently changed his mind. He then found out that Sergeant O'Neill had not provided the help which had been promised. He also complained of a delay of moving him from one prison to another; again, something which had been promised.
48. McCready also gave to the Criminal Cases Review Commission a letter said to be from his former wife. The letter states that McCready rang DS O'Neill regarding the parole application (presumably in 2007), as DS O'Neill had stated he would put in a letter for her husband in return for his help with the Cundell case. The letter goes on to state that DS O'Neill had said he would do that. It speaks of DS O'Neill having blackmailed McCready into giving evidence. She, of course, was not present when any conversation between DS O'Neill and McCready took place.
49. McCready has refused to provide Mrs McCready's present name and address. She did not give evidence before us. We can place little reliance on what the letter says.
50. Mr McDonald submits the fresh evidence indicates McCready had a motive to lie regarding the piece of evidence he gave concerning count 1 and to which we have already referred. Whatever he may now say about parole, it is evidence which would, had it been known about, have required a warning. It is a further basis that calls into question the safety of the conviction.

Our conclusion on this aspect of this case.

51. By section 23(1) of the Criminal Appeal Act 1968:

"... the Court of Appeal may, if they think it necessary or expedient in the interests of justice...

(c) receive any evidence which was not adduced in the proceedings from which the appeal lies."

By section 23(2) the Court of Appeal.

"... shall, in considering whether to receive any evidence, have regard in particular to-

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal."

52. In our view, the fresh evidence would not afford any ground for allowing the appeal. We have already said that we cannot accept that McCready's evidence, which touched upon count 1, had the importance ascribed to it by Mr McDonald. In short, even assuming that what Mr McCready said about DS O'Neill's conduct is true, it could not, in our view, affect the safety of the conviction. What the defence was or was not told by DS O'Neill, after seeing McCready is in these circumstances of no relevance. That, as it seems to us, is sufficient to dispose of ground 4. It is unnecessary further to refer to the evidence we have heard.

Ground 3: the direction regarding the appellant's previous conviction

53. The previous conviction was admitted by consent under section 101(a) of the Criminal Justice Act 2003. It was agreed to be relevant to the background of the allegations. They could not be explained without reference to it. It would have been admissible as "important explanatory evidence" under section 101(c).
54. Mr McDonald's submission was that the judge was wrong to direct the jury that the conviction was relevant to propensity. The judge said this:

"We know that in 2005 he pleaded guilty to a similar offence to that alleged in count one. In fact, the details of that offence which have not been disputed have been read out to you. The prosecution submit it is highly relevant and submit that it may help you to resolve an issue that has arisen between the defendant and the prosecution, and the prosecution say that the defendant has a propensity to commit this offence, namely seeking to have his wife killed.

It will be for you to decide whether based on that evidence, the defendant has a propensity to commit such an offence, and then go on to consider count one against the background of the prosecution submission that this is a continuing pattern of behaviour.

If you decide there is such a propensity, you may use it in deciding count one. Obviously, you should not conclude that the defendant is guilty of count one simply because he has committed a similar offence in the past, and you must not convict him only because he has a bad character."

55. Mr McDonald's submission can shortly be summarised. He accepts that the judge had the discretion to admit the evidence of the previous conviction as going to propensity (see R v Highton & Others [2006] 1 Cr App R 7 at paragraph 10). The judge never heard proper argument about it because counsel then instructed did not appreciate that the judge had a discretion as to whether or not to admit the evidence as going to propensity. To admit the evidence was highly prejudicial. Because it consisted merely of one conviction, it was, submits Mr McDonald, of little probative value.
56. With respect to Mr McDonald it seems to us that this submission is hopeless. The appellant was charged with soliciting the murder of his wife (our emphasis). The previous conviction concerned soliciting the murder of his wife (again our emphasis). It seems to us hard to imagine a case in which the previous conviction could be more relevant to "an important matter in issue between the prosecution and the defence." There is nothing in ground 3.
57. In the result, therefore, and for the reasons we have set out, this appeal against conviction is dismissed.
58. MR JUSTICE GOLDRING: May we thank you very much, Mr McDonald, for your helpful submissions and in particular your speaking note and the clear way in which you put your case forward.
59. McDONALD: Thank you.