R v Allan (Richard Roy)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hooper |
| Judgment Date | 20 August 2004 |
| Neutral Citation | [2004] EWCA Crim 2236 |
| Docket Number | Case No: 200205171/D3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 August 2004 |
[2004] EWCA Crim 2236
Lord Justice Hooper
Mr Justice Leveson and
Mr Justice Roderick Evans
Case No: 200205171/D3
T962000
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Manchester Crown Court
The Honourable Mr Justice Penry-Davey
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. R.L. Davies Q.C. and Mr P.R. Randall for the Appellant
Mr. J. M. Shorrock Q.C and Mr R. Stuart for the The Crown
On 17 February 1998 in the Crown Court at Manchester before Penry-Davey J and a jury the appellant was convicted of conspiracy to rob (Count 1) and of the murder of David Beesley (Count 2) by a majority of 10–2. He was sentenced to life imprisonment on Count 2 and to 15 years' imprisonment concurrent on Count 1.
On 18 January 1999 the Court of Appeal Criminal Division heard and dismissed the appellant's renewed application for leave to appeal against conviction.
He now appeals against conviction upon a Reference by the Criminal Cases Review Commission ("CCRC") under section 9 of the Criminal Appeal Act 1995, on the basis of a misdirection by the trial Judge in his summing up as to the drawing of inferences from silence.
On his behalf it is also submitted that he did not have a fair trial by reason of the admission of the evidence of Michael Hirrell that the appellant had made express and implied admissions to him of involvement in the murder. Hirrell was a registered police informant deliberately placed with the appellant whilst in custody to obtain admissions. Particular reliance is placed on the decision of the European Court of Human Rights ("ECHR") in the appellant's case (00048539/99, dated 5/11/2002). The ECHR held that "the information gained by the use of Hirrell in this way may be regarded as having been obtained in defiance of the will of the applicant and its use at trial impinged on the applicant's right to silence and privilege against self-incrimination." The Court held that: "Accordingly, in this respect there has been a violation of Article 6 § 1 of the Convention." When the appeal was first listed for hearing, it appeared to be the respondent's case that the factual findings of the ECHR were challenged. At a later hearing, it became clear that they were not.
The admissibility of Hirrell's evidence formed the basis of an unsuccessful ground of appeal before the Court of Appeal.
The third ground raises an issue of alleged non-disclosure. It is submitted that information disclosed only recently to the appellant shows that the officers handling Hirrell discussed with him the availability of a reward of £30,000 shortly before he was asked to "inform" on the appellant whilst they were both in custody and that a reward of £30,000 was paid to him following the conviction (£10,000 of which came from the Greater Manchester police Authority). Given the absence of evidence against the appellant from anyone else eligible for a reward (police officers not being eligible), Mr Hirrell received the whole available reward. The fact that Hirrell knew about the reward was known, but it is said that it was not known to prosecuting or defence counsel at the trial that there had been a discussion about the reward between Hirrell and his handlers at an early stage. The fact that the reward had been paid after the trial was not made known to the Court of Appeal.
The facts
On the morning of 3 February 1995 David Beesley, the manager of the Kwik Save supermarket in Burton Road, Didsbury, was shot dead in his office (Count 2) in the course of a planned robbery (Count 1), which did not succeed. The safes were not opened and nothing was taken.
The appellant denied being at Kwik Save that morning and said that he was at home in bed with his girlfriend at the relevant time.
Mr Metcalfe, an employee at Kwik Save, gave evidence that Mr Beesley followed his usual procedure in checking and locking the premises, and turning on the alarm, before leaving on 2 February. The evidence showed that Mr Beesley arrived at the store shortly after 7am on 3 February. He opened the gates to the car park and parked his car. He would then have unlocked and partially opened the shuttering protecting the main door on Burton Road and then unlocked and opened that door to gain access to the premises. It was the prosecution's case that at least two robbers were lying in wait and entered the premises with or just after him. There was evidence of 2 males in the vicinity before the arrival of Mr Beesley. One had fairish hair. The witness could give no description of the other.
Evidence of the alarm system at Kwik Save showed that the front door to the store and the manager's office door were opened, and the manager's personal number entered (which switched off the alarm), at about 7.08am. The "duress" code was not used.
Mrs Bradley, a cleaner, arrived at 7.15am and found the shutters up and the door unlocked. She went in and saw no-one about. She started cleaning and five or ten minutes later heard a noise from the direction of the entrance. She looked out and saw the back of a figure walking away. At about 7.45am the body of Mr Beesley was found in the manager's office.
Mr Marr, the assistant manager, found that the bar on the fire exit leading towards Burton Road, which Mr Beesley had put in place the previous evening, was on the ground. It appeared that the quick release bar had been operated but because the door was mortice-locked it remained secure. It was the prosecution's case that the robbers had unsuccessfully tried to leave by that exit. Mr Hughes, the area manager, said the safes were apparently untouched, and that the store manager would not have had the safe keys on him when opening up the store.
The police arrived at 7.50am and an ambulance at 7.55am. Mr Beesley's body was in a sitting position on the floor, having apparently been moved into that position. He died from a single gunshot wound to the back of the head on the right side, and there were no injuries indicating a struggle or fight immediately before death. He had been shot at close range while in a standing position, the shot being fired by a person inside the office. The direction of the shot was towards the corner of the room where the door out into the store was located, that door being closed, or only slightly open, at the time. Bullet fragments indicated that it was probably fired from a . 38 or .357 revolver, possibly a Colt, Rouger or Dan Wesson make. The injury was consistent with the use of a powerful revolver, and it was very unlikely that a self-loading pistol was used.
Mr Beesley's left fore, middle and ring fingerprints were found on the wall of the office, about 6'3 above the floor (a diagram of their position was produced), consistent with his being held against the wall. This, said the prosecution, was important evidence tying in with things said by the appellant a little later (see paragraphs 23 and 24 below). However, the fingerprints were also consistent with his standing on a stool and steadying himself while adjusting the CCTV monitor, as there was evidence that he did on occasions. Casts of footwear impressions were taken in a builder's yard and a garden adjoining the Kwik Save car park, but there was no evidence as to whose they were.
Evidence was given by Andrea Sinclair, aged sixteen, who lived at 403 Wilbraham Road, the home of the appellant's girlfriend Jan Sultan. She said that about two weeks before the appellant's arrest on 19 February, Jan Sultan asked her to take down a box from the top of the wardrobe. As she did so she saw what she thought was a gun on top of the wardrobe. It was a "square thing", but she could not see the whole shape of it. (Subsequently she looked at a gun catalogue and pointed out something that she said looked like it.) That night she asked the appellant about it and he told her that it was not a gun, and that she should not worry.
The appellant was arrested 16 days after the murder on 19 February for a robbery at the Late Shop the previous evening (to which he subsequently pleaded guilty).
On 20 February he was seen by police officers Lynn and Simpson, who told him that they were investigating the Kwik Save murder. They said that he was not under arrest in connection with that and could leave at any time, or have a lawyer if he wanted. He was co-operative and did not seem nervous. He gave an alibi. He said that he lived at 403 Wilbraham Road with Jan (or Jahn) Sultan and there were also six children there. He remembered clearly that that was where he was at 7am on 3 February. He had shopped at Kwik Save four or five months previously. He had heard about the shooting but had no idea who was responsible. The two officers said that they did not mention any details relating to the murder to the appellant. They did not say that Mr Beesley had been executed nor did they say anything about Mr Beesley's hands being against the wall.
Following his arrest on 19 February, the appellant shared a cell at the police station with Leroy Grant (who was also under arrest for the Late Shop robbery) and covert recordings were made of their conversations, of which a précis, exhibit 21, was produced.
The prosecution submitted that the recordings showed the appellant referring to a knowledge of the Kwik Save premises, to a previous "watching" of the premises and to details of the murder which only a person who had been present at the scene could have known. The prosecution relied upon, amongst other things, the following said by the appellant in the first covert recording in the...
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