R (on the application of Norman Edward Gilfoyle) v Criminal Cases Review Commission
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Mr Justice Sweeney |
| Judgment Date | 24 November 2017 |
| Neutral Citation | [2017] EWHC 3008 (Admin) |
| Docket Number | Case No: CO/5236/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 November 2017 |
[2017] EWHC 3008 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
and
Mr Justice Sweeney
Case No: CO/5236/2016
Mr Ben Emmerson QC and Anita Davies instructed by Birnberg Peirce Ltd for the Claimant
Hearing date: 5 July 2017
Written submissions: 26 July, 1 August 2017
Introduction
This is a renewed application for permission to apply for judicial review of a decision by the Criminal Cases Review Commission (the Commission) of 13 July 2016, not to refer the claimant's conviction for murder to the Court of Appeal. The claimant is Norman Edward Gilfoyle (also referred to in the documentation before us as Innocent Gilfoyle, Innocent Norman Edward Gilfoyle, Edward Gilfoyle and Eddie Gilfoyle).
On 4 June 1992, the claimant's wife, Paula Gilfoyle (Paula) who was 8 1/2 months pregnant with his child, was found dead, hanging in the garage at the home she shared with her husband at 6 Grafton Drive, Upton, Wirral. The claimant was charged with her murder on 8 June 1992, a charge to which he pleaded not guilty. He has maintained his innocence ever since. His trial before Mr Justice McCullough and a jury at Liverpool Crown Court began on 10 June 1993. The Crown's case at trial was that the claimant murdered his wife and tried to make it look like suicide. The claimant did not give evidence and no evidence was called on his behalf. His defence, rejected by the jury's verdict, was that her death was suicide or accidental, a grand gesture gone wrong. On 3 July 1993 he was convicted by a unanimous verdict, and sentenced to life imprisonment with a minimum term to be served of 18 years. He has now been released on licence.
The claimant's first appeal to the Court of Appeal, Lord Justice Beldam, Mr Justice Scott Baker and Mr Justice Hidden was dismissed: see R v Gilfoyle [1996] 1 Cr App R. 302: 'the first Court of Appeal judgment'. On 20 December 2000, after a referral by the Commission under section 9 of the Criminal Appeal Act 1995 (the 1995 Act), the Court of Appeal, Lord Justice Rose, Mrs Justice Hallett (as she then was) and Mr Justice Crane, dismissed the claimant's second appeal: see R v Gilfoyle [2000] EWCA Crim. 81; [2001] 2 Cr. App. R 5: 'the second Court of Appeal judgment'. The claimant was represented at his trial by David Turner QC and Moores, Solicitors. He was represented at both appeals by a fresh legal team: Michael Mansfield QC, and Stephensons, Solicitors.
The two judgments of the Court of Appeal should be read in full to put the present application into context. The facts of the case, as summarised by Lord Justice Rose giving the judgment of the Court in the second Court of Appeal judgment, were these:
"6. The appellant had served in the Royal Army Medical Corps. He left the army in 1986. From January 1991, he worked as an auxiliary nurse at Murrayfield BUPA Hospital in the Wirral. His job was to sterilise and prepare surgical instruments for use in operations. The deceased was his second wife. They married in June 1989. She worked at the Champion Spark Plug factory in Upton. She also ran a mail order catalogue business from home. In 1991, they bought 6, Grafton Drive. It needed considerable renovation, so, for a time, they lived with the deceased's parents. In the autumn of 1991, the appellant moved into 6, Grafton Drive, in order to spend more time on the house. The deceased remained with her parents, where the appellant also stayed from time to time. On November 11, the pregnancy of the deceased was confirmed by her general practitioner. The expected date of confinement, as the appellant knew, was June 18 or 19 1992.
7. In the early summer of 1991, the appellant had started a relationship with Sandra Davies, who worked at the same hospital. At one stage she wrote a love letter to the appellant, at his request. The appellant told his wife about the relationship. He told Sandra Davies that he was separated from his wife and invited her to move into 6, Grafton Drive. The deceased moved in at the end of October or beginning of November 1991. She telephoned Sandra Davies telling her to have no more contact with the appellant and Sandra Davies broke off the relationship. However, the appellant sent Sandra Davies a birthday card on February 11 1992 and a Valentine card the same month. In April 1992, he showed her a letter which he said his wife had written to him. This was referred to at trial as the "Nigel" letter. It stated that the appellant was not the father of the child she was expecting, which was untrue, as subsequent DNA evidence showed. It said she had been having an affair for the previous 14 months with a man called Nigel: no man called Nigel existed and there was no evidence the deceased was having an affair with anyone. It said that the appellant had been tricked about the dates in relation to paternity: he had not, because he had attended the gynaecologist and knew the expected date of confinement from the beginning. The letter also asserted "I would like you to try and pick up the pieces with Sandra". After the deceased's death, other letters were found in notebooks in the house. One typed letter had been written about the end of October 1991, a day or two after the appellant had told his wife he had someone else. She referred to the coming baby "when I am at the lowest ever in my life" and to being undecided whether to bring up the baby herself or to give it for adoption. As a result of ESDA testing, another typed "suicide" letter, referred to as the "indented" letter was revealed in a notebook. A handwriting expert said that there was strong evidence that it had been written before March 1992, when some domestic accounts had been written in the same book. It contained falsehoods: in passages similar to the Nigel letter it referred to an affair which she said she had been having for the previous 16 months, it said that the father of the child that she was carrying was going away and she had nothing left to live for. Another note, of unknown date, hand-written, and addressed "To whom it may concern", was found in a footstool in the kitchen. It said "I Paula Gilfoyle am ending my life. I have taken my own life and I am doing…" In interview with the police, the appellant said his wife had told him two days before she died that her brother-in-law Peter Glover was the father of the baby. Mr Glover denied this in evidence and denied any impropriety in his relationship with the deceased. DNA testing, as we have said, established that the appellant was the father.
8. A Miss Coltman, albeit criticised for partiality because she said on June 7 1992 that she "wanted to help clear Paula's name" and also said she had hated the appellant since Paula's death, gave evidence that the appellant had told her that, in connection with his job at the BUPA hospital, he was being trained to go on a crash team to go out to cases of suicide or attempted suicide. Miss Coltman remembered the conversation because she had asked why such people would be taken to a private hospital without knowing whether or not they had a BUPA card. Another witness, Mr Mallion, also said the appellant had told him he was on a suicide course at work. In interview, the appellant accepted he had had some conversations with the deceased and Mallion about the possibility of doing a course or project which involved a consideration of suicide. It was not suggested to witnesses from the hospital who gave evidence for the prosecution that the appellant had been offered any such training. Miss Coltman also said the appellant had claimed to help at operations at the Murrayfield, but she did not believe him. In April and May 1992 the appellant told a number of witnesses that the expected baby was not his and that either his wife had left him or she was going abroad.
9. Three weeks before the baby was due, a party was held when the deceased left work. She was described as "radiant". Seventeen witnesses described her as being, in the spring of 1992, happy and looking forward to the birth of the child, despite misgivings about the birth itself. Her GP, who saw her regularly and last saw her a week before her death, and her gynaecologist, both described her as fit and positive about the birth. She had no history of depression. She had bought two sets of baby equipment so that one could be left with her mother, who was going to look after the baby when she returned to work. Two days before her death she went to the library and, appearing happy and normal, borrowed six books on childcare and names. She had twice asked a vicar to christen the baby. She had prepared a nursery.
10. On the morning of June 3 she was happy and normal. On the afternoon of June 3 she had a conversation with a Miss Barber about a man whom they both knew, who had recently hanged himself. The deceased said "How could someone hang themselves? How could you get so low? His wife will feel guilty for the rest of her life." On the evening of June 3 she was her usual happy self.
11. On the morning of June 4, Mrs Brannan, a market researcher, called at the house in connection with a wine survey and spoke to the appellant and the deceased. She was there for about 15 to 20 minutes. She was unclear about the time, but thought the visit was between eleven and noon. The appellant, in interview subsequently, said she had left by 11.10 to 11.15 am and he had left for work about 11.25 am. At 11.50 am Mrs Melarangi, a courier for Freemans catalogue company, called to deliver a package, but received no reply. Others called at the house between 2.00 and 2.30 pm and they obtained no reply. At 2.00 pm the deceased was due at an anti-natal appointment, none of which she had previously...
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