T v R
| Jurisdiction | England & Wales |
| Judge | Lord Justice Fulford |
| Judgment Date | 08 February 2022 |
| Neutral Citation | [2022] EWCA Crim 108 |
| Docket Number | Case No: 2019/03868/B1 |
| Court | Court of Appeal (Criminal Division) |
[2022] EWCA Crim 108
Lord Justice Fulford, THE VICE-PRESIDENT OF THE COURT OF APPEAL
(CRIMINAL DIVISION)
Mr Justice Hilliard
and
Lord Hughes
Case No: 2019/03868/B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
TUDOR EVANS J
Ind. Nos. 810041, 814402, 810043, 810044, 810045, 810046, 810047, 810048, 810049, 810050, 810051
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr T Barnes QC and J Gelsthorpe (instructed by Cartwright King Solicitors) for the Appellant
R Whittam QC and Louise Oakley (instructed by Crown Prosecution Service Special Crimes Division Appeals Unit) for the Respondent
Hearing dates: 11th – 22nd October 2021
Approved Judgment
This is the judgment of the court to which all members have contributed.
Introduction
On 20 January 1981 in the Crown Court at Leeds before Tudor Evans J, the appellant (now aged 61) pleaded guilty to 11 counts of arson with intent to endanger life or being reckless as to whether life was endangered, contrary to section 1(3) of the Criminal Damage Act 1971, and 26 counts of manslaughter, contrary to common law. His guilty pleas to manslaughter were entered on the basis of diminished responsibility and in consequence the Crown did not proceed against him on the 26 counts of murder with which he had originally been charged.
On the same day, he was sentenced to detention without limitation of time at Park Lane Hospital, under sections 60 and 65 of the Mental Health Act 1959.
The indictments containing the offences to which the appellant pleaded guilty were as follows (all the addresses are in Hull, in the East Riding of Yorkshire):
| Indictment | Address | Date of fire | Guilty pleas |
| 810041 | 12 Selby Street | 4 December 1979 | Count 1 – arson with intent to endanger life or being reckless as to whether life was endangered Counts 2 – 4 – manslaughter |
| 814402 | 70 Askew Avenue | 23 June 1973 | Count 2 — arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter |
| 810043 | 33 Glasgow Street | 12 October 1973 | Count 2 — arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter |
| 810044 | Humber buildings | 19 October 1973 | Count 2 — arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter |
| 810045 | 7 Minnies Terrace | 23 December 1974 | Count 2 — arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter |
| 810046 | 9 Gorthorpe | 3 June 1976 | Count 2 — arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter |
| 810047 | 43 West Dock Avenue | 2 January 1977 | Count 2 — arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter |
| 810048 | Wensley Lodge (All 12 convictions were quashed in 1983) | 5 January 1977 | Count 2 — arson with intent to endanger life or being reckless as to whether life was endangered Counts 3 – 13 – manslaughter |
| 810049 | 4 Belgrave Terrace | 27 April 1977 | Count 2 — arson with intent to endanger life or being reckless as to whether life was endangered Counts 3 – 4 – manslaughter |
| 810050 | 2 Brentwood Villas | 6 January 1978 | Count 2 — arson with intent to endanger life or being reckless as to whether life was endangered Counts 3 – 6 – manslaughter |
| 810051 | 407 Troutbeck House | 22 June 1979 | Count 2 — arson with intent to endanger life or being reckless as to whether life was endangered |
It is critical to emphasise at the outset that the case against the appellant was centrally, although not entirely, based on confessions that he was said to have made in interviews with, and in 12 statements under caution provided to, Detective Superintendent Sagar (together with other police officers) in advance of his guilty pleas. Absent that evidence there would have been no case against the appellant, although there was certain other supporting evidence.
He was represented at trial by solicitors (Andrew M Jackson & Company) and counsel (Mr Harry Ognall Q.C., later Mr Justice Ognall, and Mr Peter Heppel). Counsel saw the judge in his chambers on 19 January 1980, the day before the pleas were taken. Mr. Ognall took the highly unusual course of indicating to the judge that his instructions caused him anxiety and disquiet. He said it was difficult to get instructions from the appellant who had shifted his ground as to his guilt. The concerns expressed by Mr Ognall included the following:
“We for our part are gravely troubled because last Thursday when we saw him last in prison, his clear instructions to us were to plead not guilty to everything on the basis that he had not done anything. When we came to see him this morning as a matter of courtesy, just to explain what would happen to-day he told us he wished to plead guilty. This is about the fourth change of tack.”
Mr. Ognall pointed out that one of the factors that had created anxiety was the conclusion of a public inquiry into the cause of one fire, the Wensley Lodge fire of 5 January 1977, to the effect that it was accidental.
Notwithstanding these concerns, the psychiatrists who had been instructed agreed that the appellant was fit to plead (see [144] – [147] below). His pleas, when entered, were clear and consistent and no suggestion has been advanced that they should not have been accepted by the judge.
The South Wales Investigation
On the 28 June 1982, Mr Vivian Brook, Assistant Chief Constable with the South Wales Constabulary, was appointed to conduct an investigation on behalf of the Chief Constable of Humberside Police into the actions of officers from the Humberside Police which had culminated in the arrest of and conviction of the appellant. This followed reporting by the Sunday Times Insight team – in particular, articles on the 7 March 1982, 14 March 1982 and 18 July 1982 and a “dossier” – which purported to raise doubt as to the appellant's culpability, notwithstanding his guilty pleas, and advanced a number of alternative theories. It was suggested that the materials which Mr Brook was asked to consider demonstrated a lack of integrity on the part of the investigating officers and especially Detective Superintendent Sagar and Detective Sergeant Martin. Mr Brook submitted two undated, long and detailed reports which refuted the allegations made by the Sunday Times; he found no evidence of wrongdoing on the part of any of the officers (save for limited criticisms of former Detective Sergeant Nesbitt which did not have any impact on the safety of the convictions). Indeed, the considerable body of evidence did not lead him to harbour any material doubt as to the responsibility of the appellant for these crimes. We note that Mr Ognall expressly declined to place any reliance on the theories advanced by the Insight team which, for reasons we need not rehearse, have been comprehensively demonstrated to be unfounded.
The Previous Appeal
On 9 December 1983 the full court (Ackner LJ, Glidewell and Leggatt JJ) quashed the appellant's convictions in relation to indictment 810048 (Wensley Lodge: count 2, arson with intent to endanger life or being reckless as to whether life was endangered and counts 3 – 13, 11 counts of manslaughter), and refused the applications for leave to appeal in respect of the other indictments. The appellant's sentence was unaffected. The appellant has previously used the names Peter Dinsdale and Bruce George Peter Lee, and his appeal in 1983 was listed as R v Bruce George Peter Lee. He changed solicitors, but not counsel, in advance of the appeal. The replacement solicitors were Philip Hamer & Co, Hull.
The court handed down four rulings or judgments during the 1983 proceedings. The first was on 21 November 1983 ( (1984) 79 Cr App R 108), the court having been asked to give a preliminary ruling as to whether, notwithstanding the appellant's guilty pleas, the court had jurisdiction to hear the application and, if so, whether it could receive fresh evidence. The court decided that the fact that an applicant seeking leave to appeal against conviction a) was found fit to plead at his trial, b) knew what he was doing, c) intended to make the pleas he did, and d) pleaded guilty without equivocation after receiving expert legal advice, although constituting factors that were highly relevant as to whether the convictions, or any of them, were either unsafe or unsatisfactory, cannot of themselves deprive the Court of the jurisdiction to hear the applications under section 2(1)(a) of the Criminal Appeal Act 1968.
Given the analysis that it has been critically necessary for this court to undertake as to the circumstances when it is open to an appellant to argue that his or her conviction is unsafe following a guilty plea, it is relevant to note that having determined (as just set out) that the court had the power to intervene when the accused had pleaded guilty, and having referred to Director of Public Prosecutions v Shannon (1974) 59 Cr App R 250; [1975] AC 717 and R v Forde (1923) 17 Cr App R 99; [1923] 2 KB 400, the court expressed the circumstances when this opportunity is potentially available as follows (at page 114):
“We should however make this observation, about this Court's function in these circumstances. We have set out the relevant terms of section 2 of the Criminal Appeal Act 1968.
In Stafford v Director of Public Prosecutions (1973) 58 Cr App R 256, 290, [1974] AC 878, 912, Lord Kilbrandon said: “The setting aside of a conviction depends on what the appellate court thinks of it – that is what the statute says. If it were necessary to expand the question which a member of the court, whose thoughts are in...
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