R v Davis, Johnson and Rowe UK Court of Appeal 2000

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

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Court of Appeal - Monday 17 July 2000

Lord Justice Mantell

Martin Membury used to own  a green Triumph Spitfire motorcar. It had a union jack painted on each of its two front wings and was habitually parked outside his home. Sometime during the night of 12 and 13 December 1988 it was stolen. The thieves were two young men called Griffin and Duncan. Griffin took the car whilst Duncan kept watch. Half a pair of scissors was used to start it. It was driven where Griffin and Duncan were living. Also living there were Michael Davis, Raphael Rowe, Jason Cooper and a young man called Jobbins who was a particular friend of Griffin and Duncan.

Three days after the Spitfire had been stolen, an Austin Princess was parked in a field not far from the White Bear public house in Fickleshall. Inside the Austin were two men. One was Mr Hurburgh, the owner, and the other, a much younger man, Alan Eley. They were making love. Their love-making was interrupted by three masked men. One carried a knife and another a gun. Mr Eley was pulled from the car and £10 taken from him. The man with the knife stood over him. It was clear that the three men were intending to steal the Austin. Hurburgh objected. He was attacked. By this time both Hurburgh and Eley were on the ground. One of the men spread petrol around both of them. Someone lit a cigarette. Mr Eley passed out. When Mr Eley came to he found that Mr Hurburgh was dead. He had been savagely beaten. Five ribs had been fractured, as had the sternum. The heart was bruised. He had died from a heart attack.

The car had gone. Not far away, however, was the abandoned Spitfire belonging to Membury.

Oxted is a little less than ten miles from Fickleshall. That is where Mr and Mrs Napier lived with their son Timothy. At about 3:40 am that same Friday morning their house was invaded by three masked robbers. One had a knife and one had a gun and one had a revolver. At first the Napiers resisted but were told they would be shot if they did not co-operate. There was a struggle. Timothy Napier’s arm was cut and an artery severed. The Napiers were overpowered. Mrs Napier was instructed at knifepoint to remove her rings and jewellery. She was told that if she refused her fingers would be cut off. The house was ransacked. The robbers then left, taking Timothy Napier’s Toyota which had been parked near the house. Timothy was taken to hospital. He was operated upon and has made a successful recovery.

The robbers were in the house for between 20 to 30 minutes. Later the Austin Princess was found abandoned 100 yards from the Napier’s house.

On 16th December Mrs Spicer and Mr Peter Almond were in bed together in an upstairs bedroom at Fetcham some twenty miles from Oxted. They woke to find three masked men in the room. One was holding something which both took to be a gun. They were told to be quiet. They were asked for money, jewellery and car keys. They were tied and gagged and the house was ransacked. After they had gone one of their own kitchen knives was found in the bedroom. The robbers were there for about three-quarters of an hour to an hour. They drove off in a Renault and a Vauxhall. Timothy Napier’s Toyota was found nearby.

On 19th December police raided two houses. In both places they found property which had been taken from  the Oxted and Fetcham robberies. A number of arrests was made. Those arrested included Rowe and Davis and also Cooper, Jobbins and Griffin. Duncan was already in police custody. Johnson was not arrested until 6th January 1989 when he was found to be in possession of a revolver.

Plainly, the police took the view that the same three men were involved in each of the three incidents. It is not difficult to see why. They believed that the three men were Davis, Rowe and Johnson. Davis, Rowe and Johnson were charged with various offences arising out of the three incidents, including murder.

All three were convicted of the murder of Hurburgh, causing GBH with intent in relation to Napier and the robberies. Each was sentenced to life imprisonment for the murder and substantial terms were imposed for the other offences. Davis had previously pleaded guilty to robbery and Johnson to robbery and rape. Those were offences committed on a quite separate occasion whilst the two of them were engaged in a burglary. Davis was sentenced to ten years and Johnson to a total of 12 years for the offences to which they had pleaded guilty. All sentences were concurrent.

It was obvious that the raid had been as a result of information supplied. The police were not asked to name the informant but it seems to have been assumed that it was one of Jobbins, Griffin and Duncan who gave important evidence at trial about the cars and getting rid of them.

Other important evidence came from Kate Williamson, a sixteen year old school girl and an intimate friend of Rowe, gave evidence about cars and their movements around the time of the robberies.  

In 1990 there was a duty to disclose material information.. Amongst the exceptions were cases where a statement disclosed the identity of an informant and there were reasons for fearing that disclosure of his identity would put him or his family in danger. There can be no doubt in this case that there were “reasons for fearing” that disclosure of Duncan’s identity would put him or his family in danger. In those days the decision had to be made without reference to the court.

Then came the decision of this court in Ward (1993). Consequently, Mr Bevan deemed it proper to seek the Court’s guidance as to whether or not the fact of Duncan’s status ought to be disclosed to the appellants prior to hearing of the substantive appeal. That led to two hearings before the court presided over by, Lord Taylor, Lord Chief Justice, which in turn led to the guidelines issued in Davis & Others (1993). The court upheld the Crown’s submission that it was unnecessary for the fact to be disclosed. In July 1993 the court dismissed the appeals against conviction of all three appellants.

In April 1997 the CCRC exercised its powers and appointed an investigating officer from the Greater Manchester Police to carry out enquiries. It revealed Duncan was a registered informant who had contacted his handler on 18 December 1988 with the result that he had been housed at Reigate police station from that day until Sunday 20 December. As a result of what took place between Duncan and police officers during that period a message had been originated which suggested that the three robbers were not Rowe Davis and Johnson but Rowe, Davis and Jason Cooper. Also during the same period there had been discussions between Duncan and the investigating officers about the possibility of a reward being paid to him at the conclusion of the case. It is apparent that prosecuting counsel were aware of the possibility of rewards being paid as early as 9 June 1992 and before the ex parte applications made prior to the first appeal. That was as a result of a report submitted by a Detective Inspector Arnold on 9 June 1992 which also recorded the fact that Duncan had been a voluntary inmate at Reigate police station from late on 18 December until sometime after the raid. What had not been made known to prosecuting counsel in 1992 was the fact that Duncan seemingly had first of all implicated Cooper rather than Johnson.

On 29 March 1999 Mr Bevan applied to this court presided over by the then Lord Chief Justice Lord Bingham for the Public Interest Immunity Certificate in relation to Duncan to be lifted. This court acceded to the applications. There has since been a number of interlocutory applications to this court relating to enquiries which might be made of jurors at trial and orders have been made permitting such enquiries in approved terms.

On 7 April 1999 the CCRC referred the matter to this court together with a detailed statement of reasons. In the case of Johnson the Commission was particularly concerned about the failure to disclose the message which recorded that Duncan had pointed to Cooper rather than Johnson. Also the fact that the defence were not informed that Duncan had been in receipt of a reward. This, the Commission considered, along with the fact that not one member of the “Jobbins group” had been prosecuted, might have deprived Johnson’s counsel of a profitable line of defence. The Commission also noted that Jason Cooper was himself a practised burglar and had one conviction for robbery. Further the statement of reasons mentions the possibility of a juror having visited the site of the murder.

On 16 February 2000 the European Court of Human Rights (ECHR) gave  judgment in respect of Davis and Rowe. Its decision was that there been a violation of the European Convention Human Rights at trial which had not been cured by the Appeal process. The decision focused entirely upon the failure to disclose Duncan’s status as an informant prior to trial together with the fact that he had become eligible for a reward and may have nominated Cooper as one of the robbers before pointing the finger at Johnson.

In the days preceding the hearing of argument a reply was received from the foreman of the jury to the effect that during the trial he had indeed visited the site of the murder. The Commission had already passed on a letter from another juror indicating that it was that juror’s belief that the foreman may have made such a visit.

We are required to review the safety of convictions resulting from a trial which the ECHR has adjudged to have been unfair. It may be the first case of its kind; it will certainly not be the last.

The Convention for the Protection of Human Rights and Fundamental Freedoms confers on everyone the right to a fair trial. We see no difficulty in giving effect to the ‘right to a fair trial’ when discharging our duty to consider the safety of a conviction.

As was stated by Roch LJ giving the judgment of the court in Hickey & Others CA 30/7/97:

"This court is not concerned with guilt or innocence of the appellants; but only with the safety of their convictions. This may, at first sight, appear an unsatisfactory state of affairs, until it is remembered that the integrity of the criminal process is the most important consideration for courts which have to hear appeals against conviction. Both the innocent and the guilty are entitled to fair trials. If the trial process is not fair; if it is distorted by deceit or by material breaches of the rules of evidence or procedure, then the liberties of all are threatened."

"This court is a court of review. The court reviews the trial process to equip itself to answer the question "do we think that the conviction appealed is safe or do we think it unsafe?"

"The court is not a court of trial or re-trial. Persons accused of serious crimes are tried by juries in the Crown Court."

The Court is concerned with the safety of the conviction.

A conviction can never be safe if there is doubt about guilt.

However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been “vitiated by serious unfairness or significant legal misdirection”.

The colour question.

There was some evidence from the victims of the attacks that one or more of the assailants could have been white. The court then cited a passage from Cooper (1969):

"It has been said over and over again ...that this Court must recognise the advantage that a jury has in seeing and hearing the witnesses and if all the material was before the jury and the summing up was impeccable this court should not lightly interfere."

This court concluded that as matters then stood the discrepancies between the descriptions given by the witnesses and the actual appearances of the robbers was not such as to give rise to a lurking doubt as to the safety of the convictions. In our view, standing alone it has little weight and would not persuade us to differ from the view expressed by this court in the first appeal. But, naturally, it does not fall to be considered alone. It has to be taken into account along with other grounds. It is their cumulative effect which matters.

The Timing Point

On the previous occasion this court came to the conclusion that Kate Williamson and the others who had taken part in the visit to the Pooley’s must have been mistaken first of all as to the time of their arrival back and secondly, so far as Kate Williamson was concerned, as to the time when Rowe left the house.

The Court of Appeal on the previous occasion did not consider it such as to undermine the safety of the convictions. Again we find ourselves unable to differ from that approach.

The Informant Point.

Duncan told the jury that he was not arrested until 22 December. He did not tell the jury anything about his earlier sojourn at Reigate police station. Because he was concealing his status as an informant he was also forced to lie about what had taken place in the 38-minute interview. That could only have been in collusion with the police. It amounts to no less than a conspiracy to give perjured evidence. That is something that Mr Bevan and Mr Waters would not have countenanced at any cost. We find the fact profoundly disturbing. It must dent the credibility both of Duncan and the police officers directly involved. It is possible to present it either as fresh evidence or a further material irregularity. Either way the “Duncan factor” should make a significant contribution to our decision.

The Juror Point.

This is of some importance and deserves our close attention. During the investigations of the CCRC, a suggestion  emerged that a member of the jury on his own initiative might have visited one or more of the scenes of crime. Directed by the Court of Appeal, the Commission wrote to each juror, posing questions drafted by the Court. They were as follows:

1. Did you, at any stage during the trial, visit any place mentioned in the evidence?
2. If yes
(i)  where did you visit?
(ii)  did you visit alone or with others?
(iii)  if with others, please say how many and identify them if you can.
3. If the answer to 1 is no, are you aware that any other juror visited such a place?
4. If the answer to 3 is yes, please identify if you can the place(s) visited and the juror(s).

One answered as follows:

"I did not at any stage during the trial visit any place mentioned in the evidence but the jury were aware that one juror had. >From the seating plan of the jurors which you enclosed, to the best of my recollection the juror was No 3 who was also the foreman of the jury. The jury discussed the journey he had made to various sites mentioned in the evidence including distances and timing between the garage, the pub, the field, and routes taken etc. However for specific identification of places and journeys made I feel he would be the person to give you more detail."

The juror said he had gone by car to the street in which Davis and Rowe had lived. From the roadway he had looked at the house for about one minute. He had then driven to a road near to the public house close to the field in which Mr Hurburgh had died. He had stayed there for one or two minutes. He had been alone at all times. So far as he knew, no other juror, had visited any of the places mentioned in the evidence.

Section 8 of the Contempt of Court Act 1981 prohibits any enquiry which might lead to disclosure of matters discussed in the jury room. Historically, this Court has been vigilant to preserve the sanctity of a jury’s deliberations. In our judgment, to ask any further questions would be to risk contravention of Section 8.

R v Gurney (1976) the judge decided that it would cause too much trouble and expense for the jury all to have a view to consider the quality of the street lighting in a particular street where the defendant was alleged to have committed the offence of dangerous driving. He authorised one juror who lived near the scene to view it and describe it to others. It was held on appeal that the judge broke the rules which required the jury to stay and hear all the evidence together and that there was no place in the jury system for apportioning work between jurors. The prosecution did not press for the application of the proviso and the conviction was quashed.

R v Smyth, Aspinall and Aspinall (1988) the court considered the appropriate criteria when considering individual knowledge acquired by one juror. It concluded “we think the correct question to ask when considering whether such an incident renders a conviction unsafe, is whether what was done could have affected in a significant way an issue the jury had to determine.”

Might he have gone back to the jury with his own solution  to “the mystery”?  If he did, then there is no guarantee of the basis upon which the jury reached its verdict. The area of fact which this jury must, in our judgment, have been considering, is crucial. Either, as Mr Mansfield put it, the Crown comes up against the block of the Fyffe body of evidence, or, it comes up against the block of the Kate Williamson evidence. The two are irreconcilable. In our judgment, this visit by juror No 3, was another material irregularity in the course of the trial and a serious one at that.

In our view the case against all three appellants was formidable. The evidence against Rowe on counts 9, 10 and 11 was overwhelming. However we are bound to follow the approach set out earlier in this judgment, namely assuming the irregularities which we have identified had not occurred would a reasonable jury have been bound to return verdicts of guilty?  In all conscience we cannot say that it would. At this distance we simply cannot assess the impact which the undisclosed material might have had on the case for and against Johnson. Nor can we be certain that the results of the juror’s private investigations, whether or not communicated to the others, might have played a part in resolving the timing mystery in favour of the prosecution. Accordingly we cannot say that any of these convictions is safe. They must be quashed and the appeals allowed. Ten years on it is not appropriate to order a retrial. For the better understanding of those who have listened to this judgment and of those who may report it hereafter this is not a finding of innocence, far from it.

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