Pope v R
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales |
| Judgment Date | 01 November 2012 |
| Neutral Citation | [2012] EWCA Crim 2241 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2011/04525C2 |
| Date | 01 November 2012 |
[2012] EWCA Crim 2241
The Lord Chief Justice of England and Wales
Mr Justice Wilkie
and
Mr Justice Singh
Case No: 2011/04525C2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWPORT CROWN COURT
Mr Justice Roderick Evans
T20117001
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Mark Evans QC for the Appellant
Mr Ian Murphy QC for the Crown
Hearing dates: 16 th October 2012
Introduction
On 10 th March 1996 Karen Skipper was murdered. She was attacked in the early hours of the morning while walking her two dogs along a river bank in an area of open land off Birdies Lane, sometimes known as Birdies Field, between Ely and Fairwater in Cardiff. Her lower clothing was removed and her hands were tightly tied behind her back with the leads and chains of her dogs. Naked from the waist down, she was thrown into the river where she drowned. Her body was discovered the following morning.
There was no evidence of penetrative sexual assault. She had defecated while wearing her pants and jeans, and there was bruising with bleeding below each nipple which may have been caused at the time of the murder. During the course of the police investigation a small blood stain was discovered on the outside surface of this victim's front jean pockets, on the side of the cloth nearest to her skin. What was not discovered at that time was a second, microscopic blood stain on her knickers, on one side of the valley of one of the ribs at the front top of her knickers. In due course it became apparent that these stains provided evidence of primary importance.
The murder of Mrs Skipper produced three trials.
In early 1997 her husband was tried and acquitted of her murder. He is now dead. The case against him was based on circumstantial evidence in which motive and opportunity were at the forefront of the prosecution's case. However there were three aspects of the evidence which undermined that case. First, the small blood stain on the outside surface of the lining of the victim's front jean pocket was tested for DNA purposes. This blood was neither the victim's blood, nor that of Mr Skipper himself. Second, a man was sighted in the area shortly before the victim was attacked, wearing a 3/4 length waxed coat and a ruck-sack on his back. He was never identified during the original investigation despite widespread publicity, but he was not Mr Skipper. Third, the prosecution evidence itself provided powerful evidential support for his alibi.
Contrary to what sometimes may be suggested, the "not guilty" verdict did not mean that Mr Skipper was innocent in fact, but simply that as a matter of law the presumption of innocence applied. The jury may have thought he was utterly innocent, or they may have thought that he was probably guilty. Whichever it was—and we shall never know—it did not mean that it was not open to anyone else tried for this murder to invite the jury trying him to consider whether on the evidence Mrs Skipper may indeed have been killed by her husband. "May", because if the jury thought that was a real possibility then they could not be sure that the defendant they were trying had murdered her. In short, before the defendant could be convicted the prosecution had to exclude any reasonable possibility that someone else was responsible.
In January 2009, before Davis J and a jury, the second trial took place. The defendant was John Pope, the present appellant. His case at trial was that he had not killed Mrs Skipper and that either her husband, or someone else, but probably her husband, had been responsible. All the material available to the prosecution at the trial of Mr Skipper was deployed, and in effect, he was re-prosecuted on Pope's behalf. The jury was nevertheless sure that Pope was guilty and convicted him. By definition, that meant that they were not prepared to entertain as a realistic possibility that Mr Skipper had killed his wife.
Pope appealed against his conviction and on 22 nd December 2010 the appeal was allowed and a fresh trial was ordered. The judgment of the court can be found at [2010] EWCA Crim 2499.
The reasons why the verdict of the jury was set aside can be summarised very briefly. First, a witness, Mrs Horton, came forward after Pope's conviction with evidence which tended after all to incriminate Mr Skipper and which in the view of this court should be considered by a jury. Second, evidence from Pope's former wife about his or their sexual practices was considered by the jury when it was never tested because she did not give evidence and could not be cross-examined. This entirely hearsay evidence was strongly disputed and highly prejudicial to Pope's case and should not have been admitted.
For present purposes we note that the appeal was not allowed on the basis that the strength of the scientific evidence against Pope was undermined. Sir John Thomas, President of the Queen's Bench Division, giving the judgment of the court observed:
"…looking at the evidence overall, it would be difficult to conclude that there was anything material in the forensic evidence called on the appeal that in anyway affected the safety of the conviction. If this had been the sole ground of the appeal, we would have had no hesitation in finding that the conviction was safe".
We shall return to the court's analysis of the scientific evidence. A new trial was ordered.
The third trial, and Pope's second trial, was concluded in the Crown Court at Newport before Roderick Evans J and a jury on 21 July 2011. This jury knew and considered the evidence of Mrs Horton, and did not hear any evidence about the sexual practices of Pope and his former wife. Once again the evidence that Mr Skipper was guilty of this murder was deployed before them, and again he was reprosecuted. Yet again, the jury rejected this possibility. They were sure that Pope had killed Mrs Skipper and convicted him. Accordingly Pope sought leave to appeal against his conviction and we granted leave for the issues to be considered.
At the very outset we must emphasise that no criticism whatever is made of any ruling made by the trial judge or of any aspect of the conduct of the trial which, it is agreed all round, was flawless. It is accepted, and indeed was accepted from the very outset, again, that the summing up was entirely fair to the appellant, if anything favourable to him, and what is more, as a reading of the summing up demonstrates, absolutely comprehensive, detailed and meticulous, and every point, good, and not so good made on behalf of Pope, was put before the jury for its consideration.
Mr Mark Evans QC on Pope's behalf submits that the only ground of appeal available to his client is that this court should apply what is sometimes described as the "lurking doubt" principle first identified in Cooper [1969] 1 QB 267. For this purpose we have studied two interesting articles on the topic, first "Lurking Doubt and the Safety of Convictions" by L.H. Leigh in the Criminal Law Review (2006)…and second, "Lurking Doubts Remain" in the Criminal Law and Justice Weekly for 26 May 2012 and, we have, of course, considered the relevant authorities bearing on the issue.
It is not necessary for present purposes to address some of the interesting questions raised in the two articles. As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If therefore there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or maybe unsafe. Where it arises for consideration at all, the application of the "lurking doubt" concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.
Mr Mark Evans QC clearly understood the formidable nature of the burden he was undertaking. He forthrightly sought to show that there were two grounds on which the conviction was, notwithstanding the fairness of the trial and the summing up, an unsafe one. First, he suggested that it was incomprehensible that the jury could have excluded the real possibility that Mr Skipper had murdered his wife. In effect, although Mr Evans did not use the word, he was submitting that the conviction was perverse. Second, he argued that, given the microscopic findings of blood on the clothes of Mrs Skipper, combined with the flaws in the scientific evidence called by the Crown, the appellant's explanation for the presence of his blood on the deceased's clothes could not safely have been rejected. Each of these submissions is distinct, but whether taken on their own, or together, the result is that the conviction simply could not be safe.
We must examine the essential facts.
Mr and Mrs Skipper
Mr and Mrs Skipper had been married for many years. They both wished to have children, but none had been born to them. There was evidence to suggest that from time to time during the marriage he treated her with violence. In reality, their relationship was not entirely conventional and it was...
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