Pinfold (Terence Joseph) and MacKenney (Henry Jeremiah) v R
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE AIKENS,MR JUSTICE DAVIS,The Lord Chief Justice |
| Judgment Date | 15 December 2003 |
| Neutral Citation | [2003] EWCA Crim 3951,[2003] EWCA Crim 3643,[2003] EWCA Crim 2252 |
| Docket Number | No: 01/43244325/D2,No. 2001/04324/S3 2001/04325/S3,Case No: 2001/04324/D2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 December 2003 |
[2003] EWCA Crim 2252
The Lord Chief Justice Of England and Wales
(The Lord Woolf Of Barnes)
Mr Justice Aikens and
Mr Justice Davis
No. 2001/04324/S3 2001/04325/S3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand London
WC2A 2LL
MR E FITZGERALD QC and MR P R TAYLOR appeared on behalf of THE APPELLANT HARRY MACKENNEY
MR R TANSEY QC and MR T MOLONEY appeared on behalf of THE APPELLANT TERENCE PINFOLD
MISS Y COHEN QC appeared on behalf of THE CROWN
Monday 14 July 2003
We are very grateful to counsel for the help they have given us. We are bound to say, as counsel acknowledge and accept, it is very regrettable that, through apparently no fault of anyone, this matter which was due to be heard cannot proceed. That is our conclusion. It seems to us important, therefore, that we ensure that when the matter comes back before this court it comes back in a form which will enable the court to deal satisfactorily with the issues that then arise.
The first matter on which we should like further assistance from counsel is whether or not there should be in this case a further directions hearing after the inquiries which have yet to take place are made?
MR FITZGERALD:My Lord, I respectfully agree with your Lordship's suggestion, if we could have perhaps in September a review —or whatever date your Lordship suggests.
Speaking for myself, it will be most unlikely that I will be able to preside in September, but that is not essential. You could come before a single judge. Perhaps we can investigate that matter. But being realistic, looking at the matter, are we going to be in a position to have a hearing in October?
My Lord, I would anticipate so. I would anticipate we could have a hearing by the end of October. We can get the stuff ready.
One of my Lords could hear an application for directions at the end of September. He is sitting at that time. It may be that the whole court could make itself available then, but we will leave that open. Shall we preliminarily consider a further directions hearing at the end of September? We thought about whether it is desirable for this court to rule today on whether the Williamson evidence should be regarded as being admissible. The conclusion that we have come to is that it is probably preferable to defer any decision on that. We appreciate that that means that the prosecution will have to take action which may prove ultimately unnecessary, but we do feel that it is very difficult to come to a final conclusion on whether or not we should admit the evidence until we see the nature and degree of dispute between the Crown and the appellants in regard to the scientific evidence which you would like to call. We note the time limit which Miss Cohen said would be necessary to obtain that evidence. It may be that if we have a directions hearing at the end of September, that would enable the Crown to provide material which the appellants would need in order to assess just where we get to with regard the scientific evidence.
The further matter that arises is the estimate for the length of the hearing. Is three days enough for this case?
My Lord, it might be safer to allow four days —it might be safer —because there are a number of issues.
Yes.
My Lord, can I just flag one of them? The question of Childs being called we have sought to address in the skeleton and also in the note for your Lordships. It appears that it is impractical for him to be called because there is a medical report which my learned friend has saying that his memory is such —he has had a stroke and his memory is such that he is not able to give useful evidence. My Lord, that I think may make a difference because your Lordships know that our case is that he does not need to be called and that the evidence is admissible simply as evidence of the fact that he made these statements and the court may reach a conclusion. It has been flagged up by my learned friend the case of Conway, in which it was suggested —and we have dealt with it in our further note —that you have to call the witness and put to them their inconsistent statements. We say that that only applies to subsequent inconsistent statements and it does not apply to materials in writing and certainly to affidavits, but, my Lord —
I think each case must depend very much on its facts. I cannot recall precisely what is said about Conway.
My Lord, certainly there have been cases where this court has not required the prosecution witness to be recalled and have the subsequent retractions put to them. Given what happened in Hickey in relation to Sinton and Ritter, we would say that one can see why. It is almost inevitable that the court will say that Mr Childs says virtually the first thing that comes into his head and the real question is: can one still rely on his trial testimony? My Lord, my learned friend, Yvonne Cohen, has shown us the report on his health and so maybe the issue is academic, that the Crown would not even be saying he should be called. That will shorten matters to some extent, but it still might be safer, given the very extensive matters raised by both appellants —
I was thinking largely about the scientific evidence. How are we going to end up on that evidence? It is very difficult to assess without knowing what the position of the Crown is.
My Lord, I would think three to four days, and I think my learned friend, Mr Tansey, agrees with that. Perhaps it is safer to say four days. My Lord, unless I can assist you further? My Lord, we have put in submissions and there is the fact that a number of authorities which say that even if you do not have a reasonable explanation, if it is significant and it goes to the safeness of the conviction it should be admitted. So we do not accept that it will all hinge on arguing about reasonable explanation at trial. It is just one factor that the court has to take into consideration. Certainly we would not be proposing to call endless counsel and solicitors to explain. They have given a simple explanation. They were looking at the pathologist aspect of things and they did not get the fire report. There is no criticism whatsoever of that course. We simply say that when the evidence then does come to light the court considers how cogent it is and whether it might underline the safeness of the conviction and only as one of the fabrics whether there is a reasonable explanation. There is certainly no rule that you cannot have new expert evidence on an issue that was looked at at trial. So we would submit that it would depend on whether the Crown expert agrees with some part of it and whether in the light of that it goes to the safeness of the conviction. My Lord, those are the matters.
Thank you very much.
My Lord, your Lordship has seen that we have disclosed a report which does not help us —that is to say the report of Hill —so that the court can have the full picture.
Yes.
It is an issue that crops up quite often in these CCRC cases what the duty of counsel is. We have taken the view in this case that it is right to show the court everything that we had in the history so that the way in which Williamson came to light is before the court. My Lord, I am not inviting a ruling, I am just indicating to your Lordships the position.
Certainly that is a course that could not possibly be criticised, Mr Fitzgerald. Mr Tansey, anything you wish to add?
My Lord, not to those matters. I was going to raise the question of bail at a suitable and convenient moment.
Well, your client has been on bail.
My Lord, yes.
I would have thought that it follows, unless Miss Cohen has anything to the contrary to say, that bail continues.
My Lord, on that topic I have nothing to say. My Lord, so far as estimate is concerned, I would not disagree with an estimate of four days, erring on the side of caution. It would seem clear from discussions with my learned friends that certainly as far as counsel are concerned, nobody proposes to call Childs and it may be that Sandra Watson is not necessary either. The fact of the writing of the letter no doubt can be admitted. My Lord, knowing that there may be an issue as to whether the court may wish to call Childs if that may be helpful in any way, I caused last week inquiries to be made of the prison where he is currently serving his sentence, and that indicates that he is in a poor state of health and certainly as at today's date is not fit to give evidence or to travel. It must be said that in view of what is set out about him having suffered a stroke a few years ago, he is suffering significant memory deficiency and that condition is unlikely to be better by October, if my Lords were thinking of calling him.
I am not sure that was in the forefront of our minds.
I did not think it would be, my Lords, but that is the position so far as Childs is concerned.
Do you agree that we have a directions hearing at the end of September?
Yes, that is very sensible.
With a view to a hearing, if possible, at the end of October?
Yes, my Lord.
What about revised skeleton arguments and matters of that sort? Will those be available for the September hearing?
My Lord, we will undertake to do that, yes.
And...
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Subject Index
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