R Paul Cleeland v Criminal Cases Review Commission
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon |
| Judgment Date | 10 May 2019 |
| Neutral Citation | [2019] EWHC 1175 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3848/2017 |
| Date | 10 May 2019 |
[2019] EWHC 1175 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon
Mrs Justice Farbey DBE
Case No: CO/3848/2017
Mr Edward Fitzgerald QC and Mr Richard Thomas (instructed by Arora Lodhi Heath) for the Claimant
Ms Sarah Clover for the Defendant
Shortly after the opening of the application, the Claimant dispensed with the services of counsel and conducted the case in person, assisted by Mr Arora. However, the Court benefitted from skeleton arguments settled by counsel.
Hearing date: 9 April 2018
Approved Judgment
This is the judgment of the Court.
Introduction
On 25 June 1973, nearly forty-five years ago, the claimant, Paul Cleeland, was convicted of the murder of Terrence Clarke, following a retrial before Geoffrey Lane J and a jury in the Crown Court at St. Albans. Since then he has pursued appeals against conviction and challenges to the decision of the defendant (‘the CCRC’) not to refer his case to the Court of Appeal. In each case, his purpose has been to establish that there are, at the very least, doubts as to the safety of his conviction.
The present claim seeks to quash the CCRC Final Decision, dated 24 May 2017, refusing to refer the conviction to the Court of Appeal Criminal Division. The basis of the claim is that the CCRC acted perversely or at least irrationally primarily in the light of new evidence from Mr Dudley Gibbs, a forensic scientist.
On 18 October 2018, permission was granted to bring the claim on the grounds that it was arguable that, in reaching its decision, the CCRC had given insufficient weight to Mr Gibbs's evidence. In summary, this evidence (contained in a number of reports) raised questions as to the expertise and reliability of a prosecution witness, John McCafferty. Mr McCafferty had given evidence in relation to three areas of the case: the gun that was said to have been used in the shooting of the victim, the ammunition that was said to have been used and the deposit of lead on the Claimant's coat which, the prosecution contended, might have been deposited in the course of discharging the firearm.
On 19 March 2019, the Claimant applied to amend and add a further ground of challenge, based on a further report by Mr Gibbs (dated 23 January 2019). In this report he advanced for the first time a contention that the cartridges, which the prosecution said had been used in the killing contained a different size of shot (No.6) to the size of shot found in and around the victim's body (No.7).
The trial and subsequent forensic history
An outline of the prosecution case at trial
At about 0200 on 5 November 1972, Mr Clarke returned by car to his home in Grace Way, Stevenage. He and his wife, with a man named Caldon, were returning from a night out. Grace Way was a cul-de-sac ending in a fence containing the back gate to the Clarkes' house. Mr Clarke drove past the line of garages on the right-hand side; and parked his car with the bonnet close to his garden fence. As he got out of the car, he was fatally shot by a gunman who was waiting for him to return. The weapon was a shotgun that was discharged twice.
The prosecution case was that the Claimant was the gunman. The prosecution relied on a number of strands of evidence which can be summarised. (1) The Claimant had known Mr Clarke, a fellow criminal, for a number of years, and harboured a grudge against him. (2) He had previously threatened to shoot him. (3) He knew about Mr Clarke's movements that night. (4) On 3 November 2017, shortly before the shooting, he had purchased a Guy & Moncrieff 12 bore shotgun (‘the G & M shotgun’) from a member of a family called Sells. (5) He had also asked two criminal associates named Newton and Graham to buy shotgun cartridges. (6) The cartridges which Graham bought and which he said that he had handed over to the Claimant were Blue Rival waterproof No.6 shot. (7) Wadding of the type used in Blue Rival cartridges (coloured red, green and white) was found at the scene of the murder. (8) A number of undischarged Blue Rival cartridges and the stock of the G & M shotgun were found at a distance of less than a 10 minutes' walk from the scene of the shooting. (9) Police officers gave evidence of incriminating conversations between Graham and the Claimant at a time when both men were detained in police cells on suspicion of the murder. (10) There was evidence of lead deposits on the Claimant's clothing that was consistent with the discharge of a firearm at close proximity. (11) The Claimant's alibi, that he was at home with his wife at the time of the shooting (which was supported by her evidence), was contradicted by the evidence of a Mrs Roethenbaugh, who was a neighbour of the Claimant.
Although it is not necessary to consider all of these matters for the purpose of the present claim, we set out in summary what the Claimant said about this evidence. As to (1) and (2), he accepted that there had been a falling out with Clarke and that he had threatened to shoot him. However, the falling out had been two years before the killing. It arose out of a misunderstanding by Mr Clarke. The Claimant had explained the misunderstanding and he accepted the explanation. In any event, since they had subsequently worked together on scaffolding at building sites, it was inherently unlikely that he would run the risk of buying a shot gun and cartridges to kill him shortly before the shooting, when he could easily have pushed him off scaffolding at a high level. In any event he emphatically denied shooting him or having anything to do with the shooting. As to (3), he acknowledged that he was aware of Mr Clarke's movements that evening; they were friends. As to (4), (5) and (6), the prosecution witnesses were lying both about the purchase of the G & M shotgun and the purchase of the cartridges. The initial statements of the witnesses had not implicated him. The witnesses had changed their evidence as the result of police pressure. As to (7) and (8), in the light of what he said about items (4)-(6), there was no significance in this evidence. If the G & M shotgun and the Blue Rival cartridges had been used to kill Clarke, they had not been used by him. In his oral submissions, he suggested that Mr Clarke had been targeted by serious criminals due to fears that he might give evidence as a police informant, and that he had been shot by a pump-action shotgun. As to (9), the police evidence was fabricated and untrue. At no point had he said anything while in custody; and he could not have been understood to have said anything, which amounted to a confession to the shooting. Although, Graham's evidence supported the evidence of the police officers, he was lying about it for his own reasons. As to (10), this evidence was entirely equivocal and should have been accepted as such. Finally, as to (11), the evidence to contradict his alibi, was at best unreliable and was, in any event, inconsistent with other prosecution evidence.
We note that many of these points have previously been considered by the Court of Appeal and that the Claimant's submissions to us went very considerably further than addressing the issues that arise on this application for judicial review. We also note that this has been a feature of previous hearings before the courts. When the Claimant has represented himself, as he often has, he has been permitted to make submissions that went beyond what a professional advocate would have been permitted. In summing-up the case to the jury, Lane J said this (s/u p.7B):
… the defendant has declined the offer of professional assistance in the shape of a barrister to present his case. He has conducted his own defence, as he is perfectly entitled to do. He has, as a result, I think it is fair to say, received more latitude than would otherwise be the case.
Similar latitude was given to the Claimant when he represented himself on the hearing of the appeal in 2002, see [4] of the judgment in the Court of Appeal, R v. Cleeland [2002] EWCA Crim 293, and in the two previous Divisional Court hearings.
During the hearing of the present challenge, the Claimant again sought to enlarge the argument beyond the grounds for which permission was given. Some of the points had been previously considered and, to a greater or lesser extent, rejected by the CCRC and the Courts. While we accept, as did Ms Clover, that the CCRC must consider the impact of fresh evidence on matters which have already been considered by the CCRC, the statutory regime established by Part II of the Criminal Appeal Act 1995 cannot operate satisfactorily if challenges to decisions of the CCRC consist of nothing or little more than reiterations of points which have already been considered.
Previous court hearings
Although the Claimant has made a large number of applications and there have been many court hearings, it is only necessary at this point to mention four.
On 26 February 1976, the Claimant's application for leave to appeal against conviction was heard and dismissed by the Court of Appeal (Lawton LJ, MacKenna and Swanwick JJ). There is no published report of this decision.
On 13 February 2002, the Court of Appeal (Potter LJ, Wright and Penry-Davey JJ) dismissed the Claimant's appeal against conviction. The appeal followed a reference by the CCRC and the decision is reported (as noted above) at [2002] EWCA Crim 293. During the hearing of the appeal, the Court heard from witnesses (including experts) and addressed many points which were said to give rise as to the safety of the conviction. The judgment of the Court extends to 138 paragraphs and covers some of the points advanced in the present...
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