R v David James UK Court of Appeal 1998

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

List of Australian, UK and USA miscarriage of justice cases
Article on UK miscarriage of justice cases
Article on Australian miscarriage of justice cases
Article on USA miscarriage of justice cases

Court of Appeal - Friday 31st July 1998

Lord Justice Evans

David James was convicted of the murder of his wife Sandra, in May 1995. His appeal was dismissed in March 1996. The CCRC referred the case.

Background

James is a veterinary surgeon. He was married when he first met Sandra Oxley, who was single, when he was working in Welshpool. His marriage was dissolved. He moved to Burton-on-Trent in 1982 and he married Sandra in May 1983. They had three children, in 1985, 1988 and 1991, and in 1993 they were living in Burton-upon-Trent. He practised with a partnership known as Springwood Veterinary Surgery.

On 9 September 1993 he told his wife that he had recently begun an affair with Catherine Crooks, the wife of a couple who were friends of theirs, and that he was proposing to move out of their home to live with her in a rented bungalow near Burton. He did this and they remained there until 20 November when the lease on the bungalow came to an end. He then moved back into the home with his wife and children but he continued to see Mrs Crooks. This state of affairs continued until 13 January 1994 when he reported to the police at about 7.30am that he had found his wife dead in her bed. She had been poisoned.

The effect of the separation in September and the continued estrangement was devastating for her. There was much evidence from friends and acquaintances about her reaction to it and from her GP and from another doctor as to her physical and mental health, both of which declined.

Crucial Period

The crucial period was from shortly before Christmas until her death. There was evidence that she was seriously unwell. At the trial it was said that on 22 December she was acting like a zombie, and that day and the following came to be called `the two lost days'. She had said subsequently that she could not remember them. When the autopsy was performed it was established that phenobarbitone was in her system about three weeks before her death - that is, on those very days. The quantity could not be ascertained.

Phenobarbitone is a drug rarely used now for treating humans, for whom it can be fatal. Formerly used for hypnosis, it is now used only as a treatment for epilepsy, in humans and animals. For this reason, it was stocked at James's surgery. The forensic evidence showed that Sandra had also consumed a more substantial amount a few days before her death.

Phenobarbitone however was not the cause of her death. That was identified as immobolin, described as a very powerful opiate drug used in veterinary science for the purpose of anaesthetizing horses, and extremely toxic to humans. So potent is immobilin and so quick-acting that it is always accompanied by its antidote, revivon, when used by vets, in case of accidental application to themselves, and it is usually sold in a combination pack with revivon.

Next to her bed was a glass containing a mixture of orange juice and immobilin. It became common ground at the trial that the fatal dose of immobolin was consumed orally, from the glass.

Immobolin and revivon were kept at James's surgery in a locked cupboard. They were regularly used by him and his colleagues, but no log was kept. None was found at the home, except for what remained in the orange juice, or otherwise in the possession of the appellant, e.g. in his car, but two part-consumed bottles were found in the surgery cupboard, unusually, without accompanying bottles of revivon.

Prosecution Case

This was summarised by the judge:

"This was nothing less than a carefully planned killing carried out over a period of weeks by a vet who used the drugs and expertise available to him from his work to do away with his wife so that he could afford to live with the woman who had replaced her in his affections."

The allegation was that James caused his wife to take Phenobarbitone during the few days before Christmas, and then again between early January and her death. From 27 December she spent a few days with her brother and sister-in-law at Rochdale, taking her children with her, and whilst she was there she seemed much better and optimistic for the future. This confirmed, it was suggested, that the Phenobarbitone was being administered to her only when she was at home, with James.

Whilst she was away, Mrs Crooks moved in to live with James.

There were two further pieces of autopsy evidence which the prosecution was unable to explain. First, there was a trace of revivon in the urine taken from the body, together with Phenobarbitone and immobilin. The prosecution expert witnesses at first said that this pointed to an earlier consumption of immobilin which had been followed by its antidote, revivon. But then they accepted that the immobilin could have come from what was taken as the fatal dose. This left the revivon unexplained. It was not clear why a murderer should cause the victim to take an antidote as well as the poison. Equally, however, no reason was given in evidence why a suicide should do the same. One possibility, that a half-hearted attempt at suicide was immediately corrected by the antidote, was not explored, and so it remains speculative.

The second feature of the autopsy evidence was the presence of puncture marks, eight or nine in total, in the right hand and both feet of the deceased. These were attributed to syringe needles such as might have been used to inject the drugs, but there was no trace of any of the drugs in the vicinity of the punctures. The prosecution said that they were skilfully carried out in order to reach directly into veins, and that this was evidence that James's professional skills had been used. The defence suggested that Sandra had made the puncture marks herself in order to cast suspicion on James, a somewhat bizarre suggestion on the face of it but one which the defence was able to support.

The prosecution case was that Sandra was not suffering from mental illness nor was she a suicide risk at the time of her death.

Defence Case

James denied that he had administered either Phenobarbitone or immobilin or any other drug to his wife. She had obtained the drugs for herself, from James's surgery, possibly using his keys which she could find in the house or in his car, and had committed suicide between about 10 pm on 12 January, when he left the house in order to see Mrs Crooks by arrangement with her, and 7.15 next morning when he found his wife dead.

He gave a detailed account of the events of the previous few days and witnesses who were friends or acquaintances and had seen her or both of them during that period. The weekend 8 / 9 January was marked by some bitter rows and she had hit him. Her mood swings worried him but she was adamant that he should not call a doctor. On Monday 10 January she was feeling unwell and she spent most of the Tuesday and Wednesday asleep. He cancelled his veterinary duties in order to be at home and look after the children. There was no basis, he said, for her saying or feeling that there was any chance of him staying at home and saving their marriage, but she gave that impression to some of the witnesses whom she saw up to the Monday morning. None of them saw her alive after 11.30 that day.

The Issue

The judge defined the issue in the following terms, at the outset of his summing-up:-

"Sandra James was killed. She was either killed by her husband or she killed herself. There are no other alternatives. Is it proved that Ryan James killed her or may she have killed herself? That is the question at the heart of this case ....."

Near the end of the summing up he said this, perhaps making explicit what had been implied rather than expressed in the defence case :-

"The prosecution say this was murder made to look like suicide. The defence say no, it was most likely suicide made to look like murder."

The qualification "made to look like suicide" represented the defence efforts to explain the puncture marks, but in fact no explanation was possible. For the same reason, the marks could not provide positive evidence to support the prosecution case. The issue was as the judge stated it to be - was murder proved, or may the cause of death have been suicide?

The defence alleged that Sandra was shown to have been contemplating suicide, and they relied upon a will which she drew up and signed on 13 September, four days after James told her of his infidelity and that he intended to leave. It is an unusual document and shows in a number of ways that she expected the will to take effect within a relatively short time. It ended :-

"To my husband the said David Ryan James I leave absolutely nothing. I loved you and lost you. I will never forget."

There followed instructions that the Will should be opened and read by a solicitor in the presence of her brother and sister-in-law and of James. James said that he did not know of the will's existence before she died.

He did say, however, that shortly after that date his wife gave him a 2-page document on A4 size paper in which she wrote of their first meeting and early life together, and of her hopes and plans for the future. A short central paragraph included plans for her funeral arrangements and suggested to him that she might contemplate suicide. He gave somewhat ambivalent evidence about whom he told about this note, and when. He said that he gave the document back to his wife, at her request, some two weeks after she gave it to him.

Although the defence relied on this and the evidence of friends to suggest that by the crucial period Sandra was in a variable mental state and was contemplating or threatening suicide, the appellant did not accept that he was fully aware of the risk. He said that he did not consider that she was mentally or physically ill, and he did not believe her when she said things, for example with regard to his guns, which might have been suicide threats.

The defence did not call psychiatric evidence, although the report from a consultant was available to them.

Verdict and Appeal

The jury retired for about 4½ hours on Wednesday 24 May and from 10.00am the following day. They asked for further directions that morning and returned their unanimous verdict at 12.11pm

The thrust of the appeal was that the judge failed to assist the jury over complex scientific and forensic evidence and to direct them in such a manner that the jury would find helpful and understandable. The scientific and medical evidence formed a substantial proportion of the whole, about 2½ days out of 13. The Court accepted that there some substance in the criticisms but that nevertheless the summing up "was a model of conciseness, accuracy and detail". Some further directions could have been given, but this lack of direction was not such as to render the conviction unsafe. The appeal was dismissed, after a full review of the evidence including that of "two experienced doctors who knew her well, that she was at no stage suicidal and there were no signs of clinical depression".

Fresh Evidence

The following facts are established by written statements from a number of witnesses which have been placed before us. We did not consider it necessary that any of these witnesses should give oral evidence.

Immediately after his appeal was dismissed, James received a letter dated 26 March 1996 from the Royal College of Veterinary Surgeons informing him that its Preliminary Investigation Committee was about to consider whether disciplinary action was called for, pursuant to the Veterinary Surgeons Act 1966. On the following Sunday, 30 March, he telephoned the former Catherine Crooks whom he had married after the trial and was now living at 20 Tower Road as his third wife. He told her that he felt that it was a foregone conclusion that he would be struck off and he suggested that she might as well throw away his veterinary magazines that had been accumulating over the years.

These were in an upstairs bedroom which he had used as an office and storeroom, and they included a magazine `In practice' which is issued six times a year. Later that day she brought them downstairs and whilst glancing through the magazine she came upon a piece of paper between the pages of the November 1993 issue. The piece of paper was lined and had been torn from a note-pad with a spiral binding at the head of the page. There was writing on it. This read:

"Ryan
I leave you absolutely nothing but this note - if you find it in time
Sam"

The writing was Sandra James'. "Sam" was a name used by her family when she was a child and afterwards used by the appellant and her. The words were a sad echo of those used in her will. There can be no doubt that the note was hers.

The circumstances in which Catherine James discovered the note were corroborated by Grahame Elson, a friend who was present at the time, as were her young children. The handwriting was identified by an expert witness, Robert Radley. The note was also examined by Kim Hughes, a forensic document examiner. There were indented impressions formed by the pressure from handwriting on another piece of paper placed above the one on which the words were written. The impressions could be sufficiently identified as telephone notes likely to have been made on or between about 31 December 1993 and 5 January 1994. The handwriting of the impressions could not be positively identified but possibly it was Sandra James'.

The note therefore is proved to have been written by her and there is circumstantial evidence that she wrote it, addressed to James, during the period between the New Year and the date of her death.

James was interviewed by the Commission. He confirmed that spiral notebooks were kept by the two telephones, upstairs and downstairs. He said that he had no knowledge of the note until it was found by Catherine James as described above and reported to him.

James confirmed this in oral evidence before us. Leading counsel for the Crown volunteered no questions in cross-examination but at the Court's request he raised one matter with the appellant, arising out of a passage in the summing up. This records what the appellant said at the trial when he was asked why he had not told other persons about the two-page document which, he said, Sandra James had given him, including one paragraph which he thought was or might be a suicide note. His reply was -

"If she (Sandra) had given me a small sheet of A5 with just two sentences on it, it might be different, but that paragraph in what she gave me certainly did not come to mind."

The note which has now been found is written on A5 paper. James told us that what he meant by the above answer was that, if the short paragraph from the 2-page A4 document had been the only contents of a note, not `submerged' by other matters, then he would perhaps have taken it more seriously than he did. The answer he gave in cross-examination was remarkably prescient, if he was unaware of the note which is now produced, but we have concluded that we should accept his evidence that he was.

We held that we should receive the above evidence as fresh evidence. The application was not opposed by the Crown.

Appeal

Counsel for James (though not at the trial) submitted that `the note', was demonstrably a suicide note, written by Sandra James during the ten days or so before her death, and admissible evidence of her state of mind at that time. The issue before the jury was whether she had or may have committed suicide. There was no other direct evidence of her mental state during the last period of her life. The conviction of murder, made in ignorance of the note and without the benefit of psychiatric evidence, could not be regarded as safe. The fresh evidence proved, he submitted, that Sandra James committed suicide, or at least it created a doubt ; she may have done so.

We should refer at this stage to the evidence of Dr Nigel Eastman, a distinguished consultant psychiatrist who prepared a report and who gave evidence before us. He addresses the questions:

(1) Did Sandra James suffer from a mental illness at any time between September 1993 and her death?

(2) How likely is it that Mrs James suffered from a depressive illness at the time of her death?

His conclusions are that it is likely that she did suffer from a depressive illness of moderate severity at least for some weeks from early September and that there is a "substantial likelihood that she relapsed into clinical depression at least in the days before her death". Turning to the likelihood of her having committed suicide, though making it clear that he limited himself to her psychiatric status, he regarded the note as a significant factor : it "substantially increased", from the psychiatric point of view, the chances that she did so.

He amplified these conclusions in his oral evidence. A number of questions arise. If the note was intended as a suicide note, why was it not left for James to find? What is the likelihood of some previous attempt, from which she withdrew, thus accounting perhaps for the fact that the note was not found and possibly for the presence of revivon, the antidote to immobilin?

It is sufficient for the purpose of our present inquiry that Dr Eastman's evidence supports the submission that the terms of the note and the fact that it was written shortly before Sandra James' death are relevant to the likelihood of her having caused her own death. More than one interpretation is capable of being placed upon the note in the known circumstances, but none is conclusive and one is undoubtedly consistent with an intention to commit suicide. We therefore hold that the jury's verdict given in ignorance of the note must be regarded as unsafe. We quash the conviction accordingly, on this single ground.

Fresh Psychiatric Evidence

We receive Dr Eastman's evidence as fresh evidence because of its relevance to the note, and it is perhaps unnecessary for us to say that without such relevance wholly different considerations would arise. His views as to the mental health of Sandra James in the period shortly before her death differ radically from those of the G.P.'s who gave evidence at the trial, and the defence did not call a psychiatrist although a consultant's report was available to them. The trial was conducted by the defence, therefore, without seeking to establish by qualified psychiatric evidence that she was mentally ill at that time, and the fact that another psychiatrist whose evidence supports that case has now become available to James's representatives would not be sufficient of itself, in our view, to justify admitting fresh evidence or holding that the conviction was unsafe.

Mr Christopher Shorter's Statement

This is a third category of fresh evidence which we hold to be of no weight. We can deal briefly with it.

There was evidence from a Mrs Connie Blackburn aged 80 who lives in a flat above the surgery, where she was once employed. She said that she was woken shortly after 4am on the day of Sandra Jones' death by a car which drove up to the surgery. The driver went into the surgery and may have set off the alarms in doing so. The car then drove off at some speed. She was unable to say whether the driver was male or female.

Mr Shorter was a prosecution witness because he was the practice manager at that time. He was not cross-examined as to his knowledge of Mrs Blackburn and the reliability of her observations, as he could have been and would have been, if the defence case was that she had imagined that any such incident took place.

Instead, both prosecution and defence placed some reliance upon it. The prosecution said that the nocturnal visitor was James, returning to the surgery for some reason connected with his use of drugs or syringes to murder his wife. The defence said that the driver could have been Sandra James, going there for the purposes of obtaining immobolin which she then used to commit suicide. We were told that this became a high profile issue at the trial.

It seems to us that it was of marginal relevance, at best, except as regards the creditworthiness of James. If the incident took place at all, then it could be said to be consistent with each party's case. It could even help the defence by explaining how and when Sandra James obtained the drug. This may be a reason why the defence did not clearly challenge Mr Blackburn's evidence that some such incident did occur. It seems to us this is doubtfully a ground for receiving fresh evidence, although we were prepared to do so in the circumstances of this case, and that the evidence is of no weight in determining whether or not the verdict was unsafe.

The Role Of The Prosecution

We were told, a few days before the hearing, that the application to adduce fresh evidence and the appeal would not be opposed by the Crown. The decision not to do so was reached after a careful review of all the evidence, and the prosecution did not seek an order for retrial. It recognised that the Court has the power and the duty to decide these matters for itself, in references by the Commission as was the case in references by the Home Secretary under the previous law : see R. v. Winston Grant per Kennedy L.J. (ref 94/1260/Y2 1 December 1994 trancript p.4). Mr Joyce also recognised that it remains the duty of counsel appearing for the Crown to assist the Court so far as they can.

We appreciate that this is a non-partisan task which may become more difficult when counsel have advised what the prosecution's attitude should be and the decision is made known in advance of the hearing, as it was here. But the role is no different from that which counsel undertake in many other situations, for example when instructed to appear as amicus curiae, and it is well within their range of professional skills. The Court cannot discharge its own duty unless it can be sure that both sides of the issue have been fully and fairly presented to it.

Order For Re-trial

We were also told that "in all the circumstances the Crown will not invite the Court to order that James be retried". We take account of this and of the evidence now available in reaching our own decision. We question, however, whether it can ever assist the Court for the prosecution to reach their own conclusion before the hearing of the appeal, unless there is a particular reason, such as ill-health of the appellant or non-availability of witnesses, which should be made known to the Court. No such reason exists here, so far as we are aware. We hope that the Crown Prosecution Service will consider this for the future. Here, there are many unanswered questions, perhaps unanswerable. The intended meaning of the words written on the note has not been the subject of forensic debate. But it is clear that the conviction for murder cannot stand and in the circumstances we do not order a retrial.

Top of Page