R v Mary Druhan UK Court of Appeal 1999

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 - Friday 16 July 1999

Lord Chief Justice

In June 1988 a house at Kingston upon Thames was consumed by fire. Two men died in the fire, Richard (Dick) Duddy and Kenneth Challenger, known as Kenny Roberts. Druhan was charged with the murder of both men by deliberately setting fire to the house with the intent necessary for murder. She denied the charges and was tried in the Crown Court at Reading . The case was that she alone was responsible for starting the fires. She was unanimously convicted on both counts. Her appeal was dismissed.

From the uncontested evidence at the trial it appeared that there was at the relevant time a group of alcoholic vagrants who frequented the centre of Kingston, living on social security, spending most of their money on drink and either squatting in empty houses or living rough. This group included both the deceased already mentioned, Joe Neary and Bob Smith, who feature largely in this appeal, and Druhan.

In June 1988 three of the group lived in a house at Canbury Park Road. The previous occupants of the house had moved out about a month before. They had been painters and decorators and had left behind tins of paint-stripper and wood stain. The house had few facilities and no light. It was a house with two upper storeys. On the first floor was a bedroom at the front, which at the time was shared by Joe Neary and Kenny Roberts, and a kitchen at the back. On the top floor was a room occupied by Dick Duddy.

Kenny Roberts and Druhan had for a period of some years had a very close relationship, but it seems that Kenny Roberts had fallen for another woman named Patsy Roberts, which Druhan much resented.

The fire brigade were called to the fires at 9.41pm on 27 June. It seems clear that the fires had been started fairly shortly before. Druhan's defence at the trial was that she had not been in or in the immediate vicinity of the house at or about the time when the fires were started and had had nothing whatever to do with starting them. An alibi notice had been served on her behalf, but she did not give evidence at the trial, nor did she call any evidence. It was expressly accepted on her behalf that the fires in the house had been deliberately started. Thus, the central question for the jury's decision was whether, having heard all the evidence, including evidence of Druhan's consistent denials in interview of any involvement, they were satisfied that Druhan had been at the house at the relevant time and had deliberately set fire to the house with the requisite intent.

On 27 June Druhan, Roberts and Smith had as usual spent much of the day drinking. Neary had spent the morning drinking and had, according to his evidence at the trial, drunk about two quarts of cider; but because it was a Monday and he did not receive his social security money until Friday he had been short of cash and unable to drink any more. So in the evening he had returned to the house, done some domestic chores and prepared himself a meal over an open fire which he made in the first floor kitchen.

At around 6pm Druhan, Smith and Roberts entered, but were refused drink at, the Ram public house. They then moved to the Kingston Mill, where they were seen by the landlord, Mr Welch, a 17-year-old barman, Mr Dammacco, and a customer named Keith Fludgate.

The central issue concerns the events in the public house and the inferences to be drawn from them. Smith left the public house some time before the other two, perhaps at about 7.35pm , and Druhan and Roberts left some 10 minutes or so later. It seems that Smith left in order to find somewhere to eat.

According to Neary, at about 8.10pm Druhan arrived home looking for Roberts. At around 8.30pm, according to Neary, Roberts arrived and a violent row erupted in the kitchen on the first floor between Druhan and Roberts. Smith returned home at about 9.30pm . He heard the shouting from the first floor kitchen, where he found Druhan and Roberts. He saw Druhan kicking Roberts who was on the floor.

At around 9.25pm Mrs Cochran was walking home from bingo and while walking past No 15 heard a woman's shout or shriek coming from the house. This evidence was supported by Mr West who was also passing. He also thought it was a woman's voice. Neither of these witnesses could identify the woman whose voice it was.

At about 9.30pm Mr Talbot was in the vicinity and noticed three people standing in the doorway of No 15. One was a woman who had her back to the street outside the house with two men facing her. The woman had what Talbot thought was brownish hair. She was arguing with one of the men. Talbot gave a description of one of the men, which matched the appearance of Smith. Talbot walked on to a public house within 100 yards of No 15 and on arriving there saw smoke coming from the house. Later he walked back to where he had parked his car almost opposite No 15 and saw a woman hobbling away from the house and walking eastwards into Elm Crescent, which was just to the east of No 15. He later said that he was sure that the woman whom he saw going into Elm Crescent was the same woman whom he had seen standing in the doorway, but he was unable to identify the woman whom he saw as Druhan.

At around the same time Ian Ruston was also walking past No 15. He saw the front door open and a small fire burning at the bottom of the stairs. He did nothing since he judged that the situation was under control, but went on and made a personal call from the telephone kiosk close to No 15. He then gave evidence of seeing a woman appear from the area of the house and walk fast towards him (in a westerly direction) occasionally looking behind her. He described her as looking like a vagrant. The direction in which this woman was described as walking was different from that described as having been taken by the woman seen by Talbot. Both witnesses were unable to identify the woman as Druhan, but Ruston did give evidence of seeing through the open front door, in addition to the fire, a hand coming from the shadows and throwing something on to the fire.

About 10.10pm Druhan was seen coming from the direction of Elm Crescent and meeting up with a man taken to be Smith. He was heard to say words to her to the effect, "It's all right". There were two witnesses to this incident, one of them a young member of the Bar named Squirrel, who later identified Druhan at an identification parade.

Around 10.20pm, according to Mr O'Connor, Druhan was seen at Kingston railway station, about 100 yards or so from No 15. His evidence was that he had not seen her there earlier.

About 10.20pm Smith was arrested for drunkenness outside the house and very shortly afterwards Druhan was seen in the same area. She ducked under a cordon which had been erected around the house by the police but was escorted outside the cordon again by a police officer. Around 10.30pm Druhan had a conversation with a police constable on duty at the scene, but he made no contemporaneous note.

Around 10.55pm Druhan returned to the railway station where she was seen outside the rear entrance, and shortly after midnight she was said to have had a conversation with a travelling artist named Mr Morris to whom she said, according to him, "We've got the house on fire. There's the police, the ambulance, the fire engines down there."

Around 1.30am Druhan was seen by DC Crewdson outside the house. She stated that she knew nothing about the fire. She had seen the fire engines on her way to her daughter's house at another address in Kingston. He told her that he understood that two people had died. She asked who they were. He told her that Neary and Duddy were possibly dead. She referred to Roberts and said that a week earlier she had spent the night at the house with Roberts. She told the officer that Roberts was now going back to his wife in Teddington and she added, "I loved that man. I loved Kenny."

Around 8am 28 June, after her release from the police station where she had been earlier, Druhan spoke to the gardener, Mr Hawkes, who saw her sitting on a bench in the Memorial Garden sobbing. As she sobbed she was heard to say, "They are all dead." He said, "Who?" She replied, "Ken, Dick and Joe".

Around 1.20pm the same day Druhan was arrested on suspicion of causing murder by arson. She was found to have amongst her possessions cigarette paper, tobacco, matches and a lighter.

Druhan was intensively interviewed on a number of occasions in the presence of her solicitor over 28, 29 and 30 June. She consistently denied involvement in arson. She gave an account of her movements after leaving the Kingston Mill public house at about 7.45pm on the 27th. She did, however, acknowledge that she was upset and angry with Roberts because he had, as she put it, "done the dirty to her". She initially said that she had parted company with her friends in the late afternoon, but later recalled their joint presence in the public house.

Mr Scaysbrook was called by the Crown to give expert evidence at the trial. He inspected the house on the day after the fire and is the only expert to have done so. He expressed the opinion that there had been three seats of fire. The main seat was identified as the ground floor hall way between the stairs and the front door; but he also identified subsidiary seats of fire in the first floor bedroom beside the sofa on which Roberts slept, and also in the first floor kitchen. He was of opinion that the fires had been caused deliberately, the upstairs fires probably being lit first because of the difficulty of escaping through the hall once fire had taken hold there.

The defence commissioned a report, but did not call their expert. They expressly accepted the evidence of three seats of fire and accepted that the fire had been deliberately caused. The evidence of the expert was treated as a platform for discrediting the evidence of both Neary and Smith.

Scaysbrook has since accepted that the fire in the first floor kitchen could have been caused accidentally on some other occasion, but otherwise he has adhered to his opinion originally expressed and to his view that the fires were deliberately caused.

It is necessary to refer to the important evidence given by Neary at the trial. He said that he had been squatting at No 15 for a week before the fire and shared the first floor front room with Roberts, whom he had known for 30 years. He slept on a mattress close to the window, and Roberts on the sofa. Neary had been in the house since about 6pm , doing domestic chores and making a meal. Duddy, who lived on the top floor, had arrived home at about 8pm but had been extremely drunk and had gone straight up to bed. The next person to arrive was Druhan at about 8.10pm . He was in the kitchen and she was looking for Roberts and was abusing in a foul manner the name of Patsy. Neary spent some time with Druhan after her arrival and nobody else was present until at about 8.30pm when Roberts arrived. Roberts and Druhan then started arguing about Roberts' association with Patsy. Neary described both of them as drunk. He left the kitchen and gone into the bedroom to let them get on with it, but could hear their argument continuing for some time. In particular, he heard Roberts telling Druhan to "piss off to the railway station", and after Druhan had first of all left, she had then shouted upstairs for a period of some minutes before Roberts went to bed.

Neary's evidence was that he heard Druhan leave the house and return in order to continue shouting. It was then that he noticed that although Roberts was asleep there was a smell of smoke. He saw the makings of a fire at the bottom of the stairs with smoke coming up the stairs. He tried to alert Roberts and Duddy, but without success. He escaped from the house through the kitchen window on the first floor using a ladder which was leaning against the wall. He testified that there was no fire in the kitchen that he could see, although as he was climbing down the ladder he could hear cans of paint bursting. Asked whether he saw Smith in the course of this episode, he said that he neither saw him nor heard his voice. When cross-examined he repeated that he had not seen Smith and that the only people whom he had seen were Roberts, Duddy and Druhan.

Smith also gave evidence at the trial. He testified that he had, he thought, returned to the house at about 9.30pm when it was dark. He had heard voices from the kitchen and went in to see Roberts on the floor, propped up against the wall. Druhan was shouting at him. He described a search by Druhan for her handbag which she thought she had left downstairs. He had gone to the lavatory, but on returning to the kitchen had smelt burning which he described as a sort of paint smell. He thought that he had fallen over, although he may have been pushed, and ended up with a packet of Swan matches in his hand, which he thought he had either picked up from the floor or obtained from Druhan. He described going downstairs where he saw a fire in the hall, but could not remember how he had got out of the house.

He was cross-examined and said that he had seen Druhan kicking Roberts and pulling his hair as he lay on the kitchen floor. He described Neary coming into the kitchen and saying to Druhan and Roberts that they should break it up. It was put to Smith by defence counsel that he had told the police that when he went back into the kitchen there was a fire in the kitchen. Reminded of this evidence Smith answered that his statement had been true and spoke of Druhan having a go at him. At a later point in his evidence Smith referred to there being a raging fire in the kitchen.

It is plain that the Crown case, as it emerged at trial, faced certain significant difficulties. Without attempting to be comprehensive we list the following inherent problems:
1. The evidence of Smith and Neary was suspect since either might have been responsible for starting the fire and each had a possible motive to incriminate someone else.
2. Both were alcoholic vagrants and Smith at least was very drunk on the evening of 27 June.
3. Although Neary said he had been in the first floor front room where one of the fires was said to have been deliberately started, he did not see it, thus contradicting the effectively agreed expert report.
4. Although Neary left the house through the window of the first floor kitchen, and one of the fires is said to have been deliberately started there, and Smith described a raging fire in that room, Neary did not see it.
5. Neary did not see or hear Smith at the house on 27 June, although Smith says he was there and that Neary came into the kitchen where Druhan, Roberts and he were.
6. In order to divert suspicion from himself Neary falsely gave Hawkes to believe that he had not been at the house at all on 27 June.
7. Smith's evidence was uncertain, unspecific and unsatisfactory.
8. When first interviewed on 28 June Smith falsely gave the police to believe that he had not been in the house the night before.
9. If, as he testified, Talbot saw two men and a woman arguing at the door of the house, and assuming one of the men was Smith, the woman was not identified as Druhan, the second man was not identified, and Smith gave no evidence of an argument in the doorway.
10. On arriving at the Crown Court Talbot did not think Druhan was the woman he had seen at the time, although he later thought she might have been.
11. The woman whom Ian Ruston saw leaving the vicinity of 15, Canbury Park Road made off in a different direction from the woman identified by Talbot and he did not identify Druhan at an identification parade as the woman he had seen.
12. Two witnesses, Safaty and Squirrel, described a friendly meeting between a woman identified as Druhan and a man taken to be Smith, when on Smith's evidence he had just seen her set fire to a house in which several of his friends were living.
13. The witnesses who heard the scream or shout of a woman in No 15 were unable to identify Druhan as the source of that noise.
14. Mr O'Connor's evidence that Druhan arrived at the railway station at about 10.15pm and stayed until about 10.40 did not match comfortably with evidence that Druhan was seen in Canbury Park Road at about 10.10 and seen in the vicinity of No 15 shortly after the arrest of Smith at 10.20pm.
15. Druhan never at any time admitted any responsibly for causing the fire.
16. There was no scientific evidence linking Druhan with the fire.

As against those problems the Crown case had certain strengths:

1. Whatever the other defects in the evidence, Neary and Smith were agreed that Druhan was at the house on the evening of 27 June and was in an aggressive and abusive mood towards Roberts because of his association with Patsy Roberts (that was ground 4 of the reasons given by the Court of Appeal for upholding the conviction).
2. On the morning of 28 June (according to Hawkes) Druhan knew that Roberts had died when there was no evidence that anyone had told her, suggesting that she knew because she had been present at the time.
3. Although Druhan had served an alibi notice, she did not herself give evidence of her movements at the relevant time; nor did she contradict on oath any of the evidence given against her or explain how she had come by the information attributed to her by Hawkes. Thus, although the jury knew of the account given by Druhan to the police, and she was of course entitled by law to remain silent and put the Crown to proof, the jury had no sworn evidence to put into the scales against the prosecution witnesses.
4. It was accepted, on behalf of Druhan that the fires had been deliberately started in each of the two first floor rooms and then in the ground floor hall way of the house. Thus, the question for the jury was not whether or how, but who.

Despite these strong points on which the prosecution is entitled to rely, it seems doubtful if they would on their own have been seen by the jury as amounting to proof beyond reasonable doubt, given the problems already listed. Perhaps significantly the jury during their retirement asked a question suggestive of doubt on their part whether someone else may not have participated in starting the fire. The judge instructed the jury that the prosecution case was, and had always been, that Druhan alone had started the fire. It should be recorded that the judge's conduct of the trial and his summing-up to the jury have been the subject of no criticism on this appeal nor on the appeal in July 1990, and both were in our judgment exemplary.

The prosecution case against Druhan did not, however, rest alone on the strong points which we have listed. In dismissing Druhan's appeal the Court of Appeal gave five reasons, of which we have so far mentioned only the last two. The first three reasons were these:

1. At about 7pm a man called Keith Fludgate was in the Kingston Mill public house when he saw Druhan, Smith and Roberts, all of whom he knew. Druhan was in a very bad mood. Roberts was saying that he loved Patsy and that Patsy loved him. Druhan was ranting and raving at Roberts and said on at least two occasions that she would kill him.

3. When asked about the quarrel at the Kingston Mill public house in her interview, Druhan played it down. All she said was that Roberts had got on her nerves as he was acting the fool. There was no mention of the real cause of the quarrel, namely Roberts carrying on with Patsy. We recognise that Druhan would have every reason for lying about the cause of the quarrel if she wished to divert suspicion from herself.

These three grounds rest very largely on the evidence of Keith Fludgate. It is necessary to examine the history of his evidence with some care. He made his first statement on 26 July 1988 , a month after the fire. In that statement he described how on the evening of 27 June he had taken Patsy and her current boyfriend, Mark Haggis, to the police station where Patsy had an appointment. He was given to understand that she would be at the police station for a little while and so, leaving her there, he and Haggis had gone to the Kingston Mill public house for a drink in order to fill in time. On going into the bar - he said at about 7.10pm - he had seen sitting at a table Roberts, Smith and Druhan. According to him, Druhan was banging the table with her fist and so was Smith. He said that Roberts saw him and came over and asked him to sit with them, which for a while he did (although with some embarrassment because of the extent to which they were drawing attention to themselves.) In the course of his statement he said this:

Mary [Druhan] was in a very aggressive mood. She would not talk to me and denied knowing me. She said, 'Buy me a drink'. I said, 'No' and she said 'Fuck off'. I tried to talk to Kenny but it was very difficult. The other two were banging the table and screaming abuse at Kenny, Mary more so. I have never seen her so angry. She said things like 'I hate you, you bastard' and she said, 'I am going to get you', several times. She glared at him the whole time. I had never seen her like this before. She was really nasty. Ken asked me how Patsy was. He was mad on Patsy and told me he wanted to marry her, but she gave him up. Mary heard him mention Patsy and she said, 'Don't mention that fucking cow's name in front of me again' and she threw some beer over him. She started to rant and rave and was banging the table and I thought there was going to be a fight so I went back to the bar, got Mark and we left.

At the trial Fludgate gave evidence. He wrongly named Neary as one of the group sitting around the table. He described the scene in the public house as pandemonium. We then have these questions and answers:

"Q. Having described that pandemonium I want you to help this court, if you can. Did you hear Mary Druhan say anything in particular to Kenny?
A. Yes, I did. As I was sitting there Kenny was talking to me and Mary was annoyed. I do not know if it was because he was giving me his attention. She did actually say on a couple of occasions that she was going to kill him. I do not want to make this sound dramatic but as I have made a statement it is on oath. Those are actually the words that she used.
Q. Do you remember the words?
A. Yes, I know those words are used. A lot of people do use those words in temper but those are the words that Mary used.
Q. Did she say how she was going to kill him?
A. No, she just said, 'I'm going to kill you' on at least two occasions.
Q. On at least two occasions?
A. Yes."

Later in his evidence we have this exchange:

"Q. Did she do anything in relation to Kenny Roberts?
A. Yes, as far as I can remember there was a full or half full can of lager on the table and Kenny was talking to me and before he could notice and I could notice Mary had leaned across the table, which was not very far, and hit him. I can't remember which eye, but she hit him on the eye and it was at that point that I thought it is best that I go."

The cross-examination by was conducted in a very low key. It was suggested to Fludgate that there was not really any trouble in the public house, and he replied that he thought there had been. He was referred to his statement in which there had been no reference to "killing" but only a reference to "getting". Nor was there any reference to hitting Roberts on the eye with a can. In answer to these questions Fludgate insisted that Druhan had hit Roberts on the eye with a can and that she had actually said, "I am going to kill you". He said he was sure that she had said, "I am going to get you" as well, but that she had actually said, "I am going to kill you". Fludgate was not challenged on his incorrect mention of Neary as a member of the party. He was not accused of lying. It was not suggested to him that he had not been in the public house at all. The thrust of the cross-examination was that he had exaggerated and that his recollection was fallible.

At a stage after the dismissal of Druhan's appeal "Trial and Error" (a television programme) became interested in Druhan's conviction and undertook a series of interviews with some of the protagonists. An interview took place between an interviewer and Fludgate. In the course of his answers he did not accuse the police of putting words into his mouth, but did suggest that some of the language in his statement was not language which he would himself have used, and did suggest that he had been encouraged to put his evidence strongly against Druhan. In the course of his interview he said:

"And I did actually, in fact, I think I heard once Mary say 'I'm going to kill you', but everyone was, they were all together that night, they were all saying to each other 'I'm going to kill you, I'm going to kill you, Bobby, I'm going to kill you'. It was just a drunken screaming and shouting match. So I felt that in a way, you know, they wanted to hear things which perhaps hadn't actually been said...."

He described the statement he had given as "factually more or less true", and said that he was not at all happy with that statement. He was asked about the blow which he had seen struck with the beer can and said:

".... it was a blur of movement, because although they were drunk, they still moved pretty quickly and the can was sort of moved forward, but to be honest, I mean now, it's difficult, I mean I can't .... I mean the actual thing about hitting in the eye, I mean I don't know really if I'm happy with that, you know. So I mean, that could have happened, but I'm not sure, I'm not sure now if that did. And as I say, for actually screaming 'I'll kill you', I heard that -- she did scream that -- but it wasn't several times and as I say everyone was screaming 'I'll kill you', 'you're a....', I don't want to swear on camera, you know you're this and you're that, so it was bedlam really, you know, but that was uttered, 'I'll kill you', but as I say they were all screaming 'I'll kill you' ...."

Q. So the hitting in the eye with the beer can may not have happened?
A. No, it may not have happened. It may not have happened, no, no, no. It may not have happened.
Q. And the 'I'll kill you' wasn't quite the threat that it might have seemed?
A. The 'I'll kill you', as I say, she did say 'I'll kill you', but the 'I'll kill you' was being banded about quite freely, you know, really. So I mean I suppose, you know if you don't take it out of context it wasn't too evil in intent, I don't know if that's the right way to put it. I don't know.
Q. It sounds pretty bad though, doesn't it, 'I'll kill you' and then you see her hitting her boyfriend with a beer can?
A. Yeah, but I mean I'd seen .... it does, but I mean I'd seen them .... in the time I'd seen them, they were often sort of lunging out to hit each other and you know to make contact and hurt and whatever. You know, I mean that wasn't a rare occurrence, that was normal, you know...."

He was questioned as to whether he had, in truth, been in the public house at all on the evening of the 27th and replied that he knew for definite that he had been there. Following the television programme Fludgate was interviewed by the police again, and a record is before us of his answers on 17 August 1995. He was asked again about the threats to kill and said:

"I remember standing in the witness box at Reading Crown Court and when I said that Mary said to Kenny, 'I'm going to kill you,' that was absolutely true. Mary also said to about -- all and sundry in the pub, 'I'm gonna kill you,' as well, because that, because she was in a very volatile mood and I didn't take -- I took that with a pinch of salt because as anybody probably knows, that people like that, that drink, do often make threats like that."

Later these questions and answers were put:

"Q. Did she say, 'I'll get you,' as well?
A. It's very possible she did, I mean I would say that in terms of the, 'I'll kill you,' she probably said it about -- between fifteen and fifty times and like as I say not just to Kenny but to, I think someone that walked by because she was in a very, very bad mood. I'm not really sure why, but she was. So that's really the only light I can throw on your question.
Q. .... To generalise was this just the ramblings of a drunken vagrant, aggressive vagrant?
A. Yeah it was, yeah."

Asked further about the blow, Fludgate answered:

"It all happened very quickly. I was either standing or as I say I can't remember exactly at the time sitting or whatever. Kenny was facing Mary and one minute he was sitting in what I would describe as an upright position, the next second his back had arched and his head had gone back in like a sort of snapping movement because Mary had lunged towards him with a can. I don't know what was in the can, obviously something alcoholic and I remember, I remember it quite, quite vividly because I had -- I remember I had trousers on and thinking I don't wanna get wet because beer smells and I remember just sort of moving back and then the beer just flopped on the table and then after that there was just a general melee, you know, so that, that's what I remember of that."
Q. Was this a blow though or was it a throwing of beer?
A. I'd have to say now .... it was probably just -- I would say the intent, the intent, probably the intent was for a .... blow, but being that the person aiming the blow was probably not, not in the best physical shape, it missed, so I'd say it was probably meant to be a blow, but, you know, probably it didn't connect.
Q. Okay. It was like a lunge, so she lunged at him.
A. It was a lunge yeah, but it was a, a sort of feeble lunge I suppose."

From those extracts of the evidence and statements two things are in our judgment clear. The first is that Fludgate was by no means consistent in his accounts of what transpired in the Kingston Mill public house. The second is that the later accounts put a very different complexion on his original account of a threat to kill specifically directed by Druhan to Roberts and accompanied by an apparently effective blow.

In the course of the Trial and Error investigation matters of potential relevance to the reliability and accuracy of Fludgate's evidence came to light.
In July 1985, in Kingston Magistrates' Court, he had been put on probation for a year for forgery and using false instruments.
In January 1986, for shoplifting, he had been fined in the same court.
In March 1986, for using a false instrument, with three similar offences taken into account, and for breach of probation, a term of four months' imprisonment.

He served his sentence in Pentonville Prison where he was found to be suffering from a psychopathic disorder and also to be displaying psychotic symptoms, which led to his transfer to a mental hospital under the Mental Health Act. It is quite evident that Fludgate's offending, including the forgery of prescriptions, was very closely related to a very severe drug addiction. The drugs in question were Ativan and Benzodiazepine. The effects of his addiction were very damaging to both his mental and physical health. During the term of his imprisonment and detention as a mental patient Fludgate's addiction was successfully addressed, and it seems that he was weaned from the use of addictive drugs. His recovery, however, was by no means immediate or complete on his discharge from hospital. At the date when the fire was lit and at the date of the trial he was no longer an addict and it may very well be that his short-term memory was unimpaired. But he was still recovering from the effects of his addiction and imprisonment, and in all probability was still somewhat vulnerable. It seems likely from the record of his various statements that he was perhaps more anxious and eager to please than another person without his personal history would have been, and he may moreover have had some personal incentive to aggrandise his own position.

By a very unfortunate, but now partly explained, oversight, Fludgate's criminal record was not disclosed in the list of convictions supplied to counsel for the Crown, and was not disclosed at all to the defence. Had it been, Fludgate's history of drug addiction and treatment would necessarily have come to light. Since we do not know what instructions Druhan gave to her trial counsel we cannot know what effect communication of this information would have had on the conduct of the defence. But it seems overwhelmingly probable that Druhan's counsel would have made a very determined effort to discredit Fludgate and undermine the effect of his evidence.

It is, we think, misleading to consider the evidence of Fludgate in isolation. The landlord of the Kingston Mill, Paul Welch, made a statement on 29 June 1988 (two days after this incident). He described how he had been on duty in the public house from about 6pm onwards. There had been a barman on duty. When he entered the bar three people (described by him as tramps) had just been served by the barman. One of those he later identified as Smith. These people, he said, were not causing any trouble but were liable to be offensive to other customers and so he told the barman not to serve any more drink to them, and in due course told Smith that he wanted him to leave. There was also in the bar another customer known to be a troublemaker, but not in the company of the three people described as tramps. The landlord told him to go too. He said in his statement:

"I noticed that the female tramp was having a loud conversation with the man who was with her, ie not Smith but the other man. Whether they were arguing or not, I don't know. Eventually they discussed going to 'Nicks' restaurant which is opposite Kingston Police Station."

He described where the three had been sitting and added:

"When the woman became abusive, she started to gesticulate towards the man. She was waiving an arm at him and hurling a stream of obscenities. Although the obscenities were directed at the man, she was generally complaining about the fact that Smith had left the pub. At one stage she shouted, 'Where the fucking hell has Robert Smith gone?' That is how I discovered the name 'Robert Smith'."

He later said that he had returned to the table and told them to leave, which they did at about 7.45pm , Smith having left some 20 minutes earlier. He described how the woman had got up to go to the lavatory. He said:

"She was pretty drunk and had to lean on the walls to get round."

In the course of this statement Welch made no reference to the presence of Fludgate in the pub at all, or to his sitting with the three at the table. In evidence at the trial Welch gave evidence along the lines already outlined. He made reference to the other customer who had attracted his attention and then we find these questions and answers:

"Your attention having been diverted did it return and was it directed eventually back to the other three?
A. Yes, there was a certain amount of loud discussion and arguing going on.
Q. Between?
A. Between, well, the three of them. They were all discussing something loudly. I did not hear the actual details.
Q. Did you eventually hear anything in particular?
A. Very difficult to remember it all.
Q. Did there come a time when the woman played more of a part?
A. Yes, first of all there was a discussion about going down to Nick's restaurant for a meal."

He then described the departure of the party. He said that the three had been sitting opposite each other at the table and that Druhan had been swearing and shouting, not necessarily at the man opposite, or about him, but to him. Welch made no reference to Fludgate joining the group at the table. In cross-examination it was established that the group had been in the public house for something between one-and-three-quarter and two hours, and Welch described the group as not being "seriously obnoxious".

Welch was also interviewed by the television interviewers. He had no recollection at all of threats to kill or of Patsy being abusively described. The only loud discussion that he recalled was about Smith's departure and where the parties should eat. He did not see any hitting in the face or any throwing of beer. He said that no one had come in and joined Druhan's party. He also was re-interviewed by the police in August 1995 and repeated that he had heard voices raised but that they could have been arguing about anything. He still was of opinion that no one had joined the group, and he had no collection of any blows.

The young barman, Dammacco, gave a statement in July 1988. He described the entry of Druhan and her two male friends. He also recollected the other customer in the pub to whom reference has been made. He said that the three were seated in a corner. He did not notice them much, other than swearing. He was more concerned with the other customer. In August 1995 he made another statement in the course of which he suggested it was usually the landlord's practice to pop upstairs from time to time to see his wife and child, although he could not recall if the landlord had done so on that occasion. He said:

"With regard to the group of vagrant types who entered the bar, before Paul came downstairs, I recall him approaching them and discreetly asking if they would drink up and leave. They were noisy and had been drinking and whilst I was working I could hear them shouting."

He remembered a loud female, and continued:

"I don't recall hearing the female actually threatening to kill someone whilst she was shouting. I would have expected that to have drawn my attention. However, I do recall Paul having cause to ask them to leave immediately and I have some recollection that it was because she had hit someone although I don't know where I got that from. I do now recall she had been shouting about someone who was not there, at one time."

He was asked if he thought it possible that a separate male had joined the group, having entered the public house with another man, and was unable to say whether that had happened or not.

Since the evidence concerning Fludgate's record and background was not before the trial judge and the jury, and not before the Court of Appeal in 1990, and since the main ground on which this appeal is founded relates to that aspect of the case, we considered it necessary for the fair determination of this appeal to hear the evidence of Fludgate and Welch, which we did. The evidence of Dammacco was also tendered, although he did not testify at the trial, and we have heard and received his evidence also.

It is unnecessary to recite extensive tracts of the evidence which we have heard. In cross-examination Fludgate said:

"I think I heard her say, 'I'm going to kill you' once, but they were all saying that to each other."

He referred to the discrepancy between his reference to "getting" Kenny Roberts in his statement and "killing" him in his evidence at trial. Fludgate said that he believed the statement more likely to be accurate, and that he could not explain the discrepancy. He testified that Druhan did lunge across the table and that he had got beer on his trousers. He was unable to explain how the change in his evidence had occurred and could not explain the reference to threats being uttered between fifteen and fifty times. He testified that Druhan had said, "I will kill you", but probably not as often as that. He was insistent that he had entered the public house on that particular night.

Welch broadly reaffirmed the effect of his earlier evidence and statement. He said that he had never seen anyone join the group of three people sitting at the table; that Druhan had not been "ranting and raving"; that their voices had been above normal, as with drunken people, but that there had only been an argument in the later stages; and that there had been no banging of fists on the table and no unacceptable behaviour.

We also heard evidence from Dammacco, who did not remember hearing any threats to kill but did remember the landlord asking the party to leave and remembered hearing something about a blow with a can, although his recollection was indistinct. In answer to the court he described shouting and bad language coming from the group of three, which he described as a "cacophony of sound." He said that they were a group of quarrelsome, vituperative drunks conducting a not very coherent conversation. Voices were raised and bad language bandied about. He would not have been surprised to see beer cans, since they were the sort of customers who attempted to sneak beer cans into the public house.

Having considered all this evidence we reach a number of firm conclusions:

1. We are satisfied that Fludgate did enter the Kingston Mill public house on the evening of 27 June and did join Druhan's group, even if briefly. We reject the suggestion that he was not there at all. On the sole point which is independently verifiable, namely the visit to the police station before the visit to the public house, he is shown to be correct. His account of the scene inside the public house and the activities of the barman is in our judgment too close to the truth to be the product of invention or imagination or even hearsay. We can see no reason at all why Fludgate should have wished to injure Druhan whom he had known for a long time and for whom he felt genuine sympathy. It follows that we cannot accept the evidence of Welch that Fludgate was never in the public house at all that night and never joined Druhan's group.

2. We conclude that Druhan and her group were behaving in a drunken, quarrelsome, vituperative, rowdy, coarse and incoherent manner. We do not doubt that Druhan was foul-mouthing Roberts concerning his relationship with Patsy, as she had done earlier in the day. But we see equally little reason to doubt that there was an argument about Nick's restaurant and the departure of Smith. The evidence that the group was intermittently arguing with each other is very strong and we see no reason to think that there were only one or two subjects of argument.

3. We think it probable that Druhan uttered threats to "get" or "kill" Kenny Roberts (or both), but these were in our judgment the vapourings of a very drunken distressed woman. We cannot regard them as meaningful expressions of intention.

4. We think it far from unlikely that Druhan made some aggressive gesture towards Roberts, probably with a beer can, but we do not accept that she struck him or was at that stage sufficiently well co-ordinated to deliver any meaningful blow.

5. When making his statement in 1988, and when testifying in 1989, we consider that Fludgate acted in good faith and without any malicious or dishonest intention. But in significant respects we consider his description given at the trial of the scene in the public house to have been seriously exaggerated. The public house on that night was not "awful", nor "a den of iniquity", nor was there "pandemonium". We would add that the failure to disclose the details of Fludgate's record and background deprived the defence of an important opportunity to undermine his credibility as a witness.

Do these conclusions undermine the safety of Druhan's conviction? In our judgment they must. They undermine the significant threat to kill on which the Court of Appeal relied in concluding that the conviction was safe. They gravely weaken what the Court of Appeal regarded as "the clearest motive", attributed to Druhan for wanting to hurt Roberts. They make it hard, if not impossible, to attach significance to Druhan's failure in her statement and when interviewed to corroborate Fludgate's account of what happened in the public house. In short, they put a very different complexion on what transpired in the public house and sever what must have appeared a very clear thread leading from the making of a threat to its implementation. Once that thread is severed the problems inherent in the Crown's case, and in particular the suspect contradictory evidence of Neary and Smith, inevitably weigh more heavily. Had the Court of Appeal in 1990 been able to rely only on the last two of their grounds for upholding the conviction, we feel sure they would have reached a different conclusion. On the evidence as it now stands the trial jury would in our judgment have been bound to conclude that, however strong the grounds for suspicion, proof was lacking.

That conclusion makes it unnecessary to review in detail the other grounds advanced in support of this appeal. Had they stood alone, however, we should not have regarded those grounds singly or cumulatively as good grounds for allowing this appeal. The unreliability of Neary and Smith was fully explored at the trial, was the subject of a very careful direction by the judge and was fully appreciated by the Court of Appeal. Mention was made of other fires since 1988 involving houses and victims associated with Smith and Neary, but in the absence of any evidence at all to suggest that either of them caused those fires, these facts are in our judgment of no probative significance. The discrepancies in the evidence of identification witnesses were also fully explored at trial, were the subject of a careful direction by the judge, and were fully appreciated by the Court of Appeal.

We would think it quite wrong to speculate how Druhan was able to tell Hawkes that Roberts was dead when she had the opportunity to tell the jury how she came by that information and did not do so. We see no reason to doubt the reliability of the expert evidence which was accepted at the trial. It would indeed make a mockery of the trial process if the defence, having obtained an expert report, and having made a considered decision to accept the evidence of the prosecution expert, were to be free, in the absence of any technical advance or new information, to challenge that evidence on appeal in reliance on the report of an expert who, without inspecting the scene of the fire, felt able to offer a contrary opinion. None of these arguments renders the convictions unsafe.

For reasons already given, however, we do consider the convictions unsafe and accordingly allow the appeal and quash them. We add one final word. Lady Kennedy, who represents Druhan, has made no criticism of those who represented Druhan at her trial. Nor do we. But this case does illustrate yet again how the virtue of jury trial is emasculated if the jury, as the tribunal of fact, have no opportunity to hear and assess the defendant's own account of the events in issue at the trial.

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