R v John Kamara 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]

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 - Tuesday 9 May 2000

28 August 2007 Eamonn O'Neill of The Guardian reported on “Justice delayed?” in this case

Lord Justice Otton

In December 1981 Kamara was convicted of murder and robbery. He was sentenced to life imprisonment. He was jointly indicted with Gilbert, who pleaded guilty at a critical point in the trial. In March 1983 Kamara’s renewed application for Leave to Appeal against conviction was dismissed. He now appeals against conviction upon a Reference by the CCRC which refers to:

1. The potential unfairness of the identification evidence.
2. The failure of the police to disclose some 201 witness statements taken during the course of the investigation, which were deemed “non-material” despite the fact that some involved sightings of possible suspects outside the betting shop.
3. The failure to direct the jury as to the special need for caution in relation to the evidence of the remand prisoners.

Background

In March 1981 the Manager of a Betting Shop in Liverpool, was robbed and stabbed to death in his shop. £176.00 was stolen from the safe. Mr Suffield had been tied up and after failing to give the safe combination quickly enough because of a speech impediment, he was stabbed 19 times. The prosecution case was that Gilbert did the stabbing, while Kamara was present and assisting. When Gilbert was arrested he made a written statement in which he admitted the offence and named Kamara as his accomplice. Later Gilbert denied he was involved in the offence. Gilbert and Kamara pleaded not guilty. Soon after starting his evidence, Gilbert unexpectedly changed his plea to guilty. The evidence against Kamara consisted of three principal matters:

Kamara denied involvement in either of the offences. The issues for the jury were:
1. Whether Kamara had been correctly identified as the second man;
2. Whether he had assisted in a joint enterprise to rob, aware that Gilbert was carrying a knife;
3. Whether he had been present and complicit in the stabbing of Mr Suffield.

Gilbert made a statement to Kamara’s solicitor, exonerated Kamara and named his cousin, as the other man involved. Gilbert was interviewed by police officers. Gilbert retracted his previous statement and made another implicating himself and Kamara once again. He later wanted to retract both statements and to re-assert his own innocence. Tom Sergeant of ‘Justice’ took an interest in the case, and instructed lawyers who drafted grounds of appeal.

Following Gilbert’s change of plea references were made to Gilbert’s statement, which may have led the jury to conclude this statement constituted evidence against Kamara.

Counsel drew the Court’s attention to Gilbert’s post trial statements exonerating Kamara and implicating Forrester and submitted that had these been available at trial the jury would not have had attached any importance to Gilbert’s statement. He said the balance of comment in the summing-up was more favourable to the prosecution than was warranted by the evidence.

The Court of Appeal refused the application.

Identification Evidence - The Witness

Mrs Edmunds was the only witness who identified Kamara. In her first statement, she said she was on her way to do shopping about 9.40 am to 9.45 am on 13 March. She was sure about the time because she checked the clock on leaving her house and it was 9.30. In evidence she said she left home at 9.30 am and would have been opposite the betting office 2 to 3 minutes later. She had walked up Lodge Lane from Smithdown Road and before she got to the Telegraph filling station she noticed 3 men. One was a half caste man who was slouched by the direction signpost just to the left of the betting office. Another half caste man was struggling with a white man and was taller than the other half caste man and at the identification parade she picked out Kamara as the taller man. In her witness statement she described the taller man as wearing:

a blue snorkel jacket with a fur collar. He was about 25, possibly half-cast; not very black, slim build with short cropped curly hair. He had a droopy moustache which was a thick one.

He was wearing blue jeans and gloves which were dark either blue or black. The other half caste man was 20 to 21 years, 5’ 8” to 5’ 10” tall with his hair slightly bushier than the other man but it was not a full afro cut. He had a small beard which ran round from his hairline around the point of his jaw. The white man was 2 or 3 inches shorter than the man who had hold of him. His hair appeared to be a bit thin on top and was light brown but not fair. He was wearing a grey coloured suit type jacket and, “I think a dark pair of trousers which may have been blue”.

 She helped to create an identikit picture of the taller struggling man and that showed a full moustache turned down. In evidence she said that the man she identified as Kamara had a blue parka and jeans with grey gloves on his hands. She had a side view of his face and a full frontal as he looked at her as she walked down the road. He had short hair but not right to the head. He was not clean shaven but “I cannot now recall what he had”.

In describing the smaller man she said he had a blue bomber jacket on and jeans, "His hair was bushier than the first man. He was a half caste. I think he had a small beard."

When she was cross examined she said that this man had his back to her at first:

"He turned his head and looked back up the road for a second, I did not have a very good look at his face. I did not really notice him because I was watching the other two men struggling."

The Identification Parade

This took place on 27 March. Both Gilbert and Kamara were represented by the same Solicitor, Mr Rex Makin, who was very experienced in criminal work. There was some difficulty in assembling a parade consisting of similar men in sufficient numbers. In the end 20 men were obtained and for the first identity parade on which Gilbert stood there were 12 volunteers. Two witnesses, Mrs Wright and Mr Guidio picked out no-one but Mrs Edmunds picked out a volunteer, Mr Arthur Mairah. The identity of those who stood on the first parade is known because the list has survived. There would undoubtedly been a similar list of names for the second parade but it is not now available. This is unfortunate because there is a dispute, which was not raised at the trial, as to whether Mr Mairah, after the Gilbert parade, also stood on Kamara’s parade. There is however, no dispute that five men from the first parade also stood on the second. Inspector Formby who gave evidence before us, who was in charge of the parades, had no recollection without seeing the lists of those attending the two parades. He accepted however, that the summing up makes it clear that this happened. He did not think that Mr Mairah would have gone on the second parade but without seeing the list of those on that parade he could not be certain. The Judge said:

"Then Inspector Formby got together a second parade of the twenty volunteers remaining. He says that the solicitor acting for Mr Kamara and Mr Gilbert at the time objected to two of them, but left eighteen, twelve of whom had already been on a parade. He says he spoke to the solicitor about the composition of the second parade and the solicitor said he thought it would suffice if some shorter (sic) men were substituted on the second parade. In consequence Mr Gilbert plus five volunteers went off, and five shorter ones plus Mr Kamara went on. One of the ones who went off was the man who had been wrongly identified in the first parade."

We feel that the Judge meant that taller men were asked to go on the second parade. It was not suggested by counsel at the trial that the Judge was in error in saying that the man who had been wrongly identified in the first parade was one of those who left. Mr Mairah and Mr Phillip Kamara, John Kamara’s brother, were insistent that Mr Mairah had been on the second parade. Having regard to the content of the summing up we think it extremely unlikely that Mr Mairah was on the second parade and that the recollection of Mr Mairah and Mr Phillip Kamara after 19 years is faulty although we do not doubt that they were honest witnesses. On Kamara’s parade there were 6 new volunteers and 5 who had been on the earlier parade. Again Mrs Wright and Mr Guidio failed to identify anyone. Mrs Edmunds walked along the line to a point about half way along it and she then returned to Inspector Formby and asked him to ask them to turn round. The men turned round and faced the wall and Mrs Edmunds walked directly to Mr Kamara standing between No 7 and 8 and placed her hand on his shoulder. She said in evidence that she was certain it was Kamara but as a check she got them to turn round so that she could have another view of his face. This was because when she saw the man’s face outside the betting office his face had been tilted towards her and she remembered, although the Inspector did not, asking him to tilt their faces towards her when they turned.

Kamara’s Complaint Regarding Identification

1. The identification parade was held in breach of the identification rules in Home Office Circular Number 109/1978 in that
(i) A number of men on the first parade also stood on the second parade
(ii) Kamara stood out both in clothing and general appearance from the other members of his parade.
Excerpts from two rules are relied on. Rule 12
The witnesses should be prevented from seeing any member of the parade before they are brought in for the purposes of making identification.
and Rule 14:
In no circumstances should more than 2 suspects be included in one parade and where there are separate parades, they should be made up of different persons.

The Crown accepted that these requirements were not followed in Kamara’s case. Rule 14 also provides this:

The suspect should be placed among persons (at least 8 or if practicable, more) who are as far as possible of the same age, height, general appearance (including standard of dress and grooming) and position in life, as the suspect.

In their evidence Mr Mairah and Mr Phillip Kamara said that it was obvious that Kamara stood out like a “sore thumb” from the others on the parade and that it was so obvious as to be commented on by all taking part. He was wearing prison issue clothing of a blue striped shirt and brown trousers. On this issue we are left unpersuaded that Kamara stood out to any appreciable extent on this parade.

Second Complaint

The Judge failed to direct the jury as to:
1. The reasons why identification evidence should be scrutinised with particular care.
2. A number of Specific weaknesses in the evidence of Mrs Edmunds.
3. The efficacy of the parade as a means of testing fairly her ability to identify.

Counsel referred us to R v Turnbull & Others:

"First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the Judge need not use any particular form of words."

The Judge:

"that is identification evidence, and I must tell you that there is a special need for caution before placing any reliance on it. Whenever a case against an accused man depends wholly or substantially on the correctness of identification evidence, whether you think the case here does depend wholly or substantially on that identification must in turn depend on the view you take of the admissions which Mr Kamara is alleged to have made to various witnesses, but when examining the identification evidence, that is to say Mrs Edmunds evidence, examine closely the circumstances in which it came to be made."

The Judge then, as required by Turnbull, dealt with the circumstances of the identification in some detail but he did not return to the need for caution and the reason for the need for caution. We think there is force in criticism of the summing up at this point. It does not appear to be a point argued in the application to this court in 1983. Turnbull lays down three requirements at this stage of a summing up:

1. Warn the jury of the special need for caution before convicting on the identification evidence.
2. Instruct the jury as to the reason for such need.
3. Refer the jury to the fact that a mistaken witness can be a convincing witness and that a number of witnesses can be mistaken.

These requirements were described as “fundamental” in R v Pattinson and Exley [1996]:

So the trial Judge, in any case where the case against the accused depends wholly or substantially on identification evidence must ensure that the fundamental requirements laid down in Turnbull are met – and they will not be met simply by paying lip service to that judgment. This court will look to see that the message of Turnbull has been made clear to the jury and the reason for that was given by the Full Court in Turnbull “In our judgment the dangers of  miscarriage of  justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment.

Counsel drew our attention to the difference between the description of Suffield’s assailant in her witness statement and in her evidence. He also took us through her deposition and pointed to discrepancies there but it does not appear from the summing up that Mrs Edmunds was cross examined about her deposition. He says that further differences between the statement and her evidence were not identified by the Judge for the jury. The Judge had instructed them to look for any material discrepancy between the description she gave when first seen by the police and Kamara’s actual appearance, but no reference was made to discrepancies between statement and evidence. The summing up was meticulous and we think that a likely explanation was that defending counsel concentrated on differences between Kamara’s appearance as seen in the photograph taken in custody on 19 March and her descriptions to the police rather than discrepancies between statement and evidence. That is why we think the Judge spent some time dealing with the photo fit picture and comparing it with Kamara’s photograph. It may be that defending counsel did not dwell on this as there was more than a passing resemblance between the photograph and the photo fit. The moustache could not be described as thick but it was a proper moustache and did turn down at the edges. We do not think that counsel has made out this part of his grounds for appeal. It is not clear to us from the summing up whether in fact Mrs Edmunds was cross examined in any detail on her witness statement and if the statement was not before the jury, this criticism loses its force. No full transcript of the evidence is now available.

The criticism that the Judge failed to direct the jury as to the efficacy of the parade is, we think, of more substance. The Judge referred to the recommendation of whether a separate parade should be made up of different persons, which did not happen in this case. The Judge reminded the jury of the evidence of Inspector Formby that this came about at Mr Makin’s insistence because he wanted 12 on the parade plus the suspect. The Judge said the inspector said he had no alternative but to agree. The Judge continued:

"Members of the jury, if that is so you may think it is rather difficult to blame the police for that."

He referred to the evidence of Detective Sergeant Murray who had had the task of organising the men for the parade and the difficulty he had had in assembling them and continued:

"Again, if you accept that evidence can you blame the police for that?  Was it reasonably fair, that is the question for you to consider."

Counsel submits that was not the only question for the jury to consider, and that the Judge should at this point, have asked the jury to consider whether the reduced number of volunteers who had not been seen before by the witness in anyway rendered the parade less effective and less safe as a means of identification. One specific warning suggested by counsel which the Judge should have given to the jury was that they should ask themselves whether such a parade constituted a fair test of her ability to identify accurately. We think it would have been better if the Judge had instructed the jury to look at the evidence in that way.

Counsel relied on a further ground which had its origins in a Home Office investigation some years ago. In 1980 or 1981, at all events before Kamara’s trial at the end of 1981, Mrs Edmunds had given evidence on behalf of her brother who had been tried and convicted at Birkenhead Crown Court for burglary and aggravated burglary. She had given evidence in support of her brother’s alibi. This information was not known to Kamara or his legal advisors at the time of the trial and counsel suggests that if it had been known it would have enabled Kamara’s defence to investigate whether she had been dishonest, and even if honest, the rejection of her evidence by another jury could have been invoked to challenge her reliability. This matter was investigated by the Home Office and she made a statement in September 1992 maintaining that her evidence that her brother had been at home with her at the relevant time was correct. She was supported in that by her husband. The officer in the case, Inspector George Jones, in a statement, said that he was satisfied at the time that Mrs Edmunds was confused over dates and he did not consider that she was committing perjury. Neither prosecuting counsel nor the trial Judge raised the question of perjury so far as she was concerned. The Crown relies on those statements and submits that this ground is misconceived. The Commission says:

"There is no new information to support the allegations of dishonesty against Mrs Edmunds. This issue is not therefore considered to affect the safety of Mr Kamara’s conviction."

We agree.

However, we think there is some force in the suggestion by Kamara’s solicitor that as Mrs Edmunds had visited her brother on remand she might have anticipated that the suspect she was to identify might also be wearing prisoner on remand clothing.

Mrs Edmunds was such a pivotal witness that we have come to the conclusion that the deficiencies in the identification procedure and the important omissions from summing up have considerably added to our view that this conviction is not safe.

Non-Disclosure of Unused Materials

This ground of appeal concerns 201 statements which were taken by the police in the course of the original enquiries and not discovered until recently. The CCRC concluded that the non-disclosure was a breach of the Attorney-General’s Guidelines which were in place at the time and disadvantaged the Defence.

In July 1981 the solicitors for Gilbert wrote a letter asking for the names and addresses of all persons interviewed during the investigation. In August the DPP sent a letter to Kamara’s then solicitors and the solicitors for Gilbert setting out the names and addresses of 54 “known material witnesses not [to be] called by the prosecution”. Gilbert’s solicitors replied asking for copies of the statements. On about 19 August Mr John Kay, as he then was, received the brief as junior counsel for the prosecution. Included in the brief were the 54 statements in a bundle entitled “Statements of witnesses not tendered” and a further bundle number 16 entitled “Non material statement” which contained the 201 statements. In September the DPP wrote a letter to Gilbert’s solicitors offering them arrangements to read the 54 statements. Mr Kay looked at bundle 16 and made various annotations. He advised that:

"There are a number of witnesses in the non-material witnesses file whose evidence might in some circumstances be viewed as material. In the circumstances, I would normally list those witnesses and advise that a further letter be sent detailing their names and addresses to the Defence. However, one of requests made by Messrs. Canter Levin & Company on behalf of Gilbert in their letter dated the 7th August 1981 is to be given access to all the statements of people interviewed and not called. In the particular circumstances of this case, I can see no good reason why that facility should not be provided both as to those considered by the Crown material and those considered not to be material. Although such access will avoid the need to send a further letter and I advise that access should therefore be given to the solicitors. The other solicitors concerned, i.e. Messrs. E. Rex Makin & Co., should also be offered precisely the same facility."

Most regrettably, the existence those 201 statements was never disclosed. The Crown accepts that they should have been disclosed. It appears that the fault for that lies within the office of the DPP.

Counsel submits that any competent defence team would have wished to call the makers of some of those statements and, at the least, to have further investigated matters raised in those statements.

The manner in which a court should approach non-disclosure was considered in Ward 1993. The Crown had conceded that there was a number of items of evidence which should have been disclosed but were not. In relation to most of them he argued that the undisclosed evidence may have been material to issues in the case, but that the non-disclosure was relatively insignificant in the context of the case viewed as a whole. He submitted that, therefore, the failure to disclose it did not amount to a “material irregularity”. The judge said:

"We would emphasise, however, that the scope for the application of the Crown’s proposition is limited to matters which, at the end of the day, can be seen to have been of no real significance. The possibility that this view will ultimately be taken of any particular piece of disclosable evidence should be wholly excluded from the minds of the prosecution when the question of disclosure is being considered. Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence."

Consistent with this approach, we have examined the statements to decide whether “at the end of the day” they can be said to be “of no real significance”. In doing so it seems to us that we are now entitled to take into account one undisputed fact- namely that Gilbert stabbed Mr Suffield to death during a robbery of the betting shop. Counsel has drawn our attention to a number of the statements many of which he conceded did not meet the test. It is not necessary for us to go through the statements in detail because of our conclusion that at least some cannot be said to be “of no real significance”.

The court then outlines some of the significant aspects of various statements.

If Florence McCoy had been called as a witness, a question asked by the jury could not have been answered in that way. If the jury had heard her evidence coupled with the other evidence about the newspapers and with, possibly, the evidence of Gilbert’s change of account, the jury might have reached a different conclusion about the crucial evidence of Mrs Edmunds. For these reasons, we have no doubt that the failure to disclose her statement (amongst others) makes Kamara’s conviction unsafe.

Before leaving the evidence of the remand prisoners, we turn to the assertion that there was a misdirection as concerning the evidence of Reardon. In interviews with the police Kamara had consistently denied any involvement in the robbery of the betting shop. However, he was alleged to have admitted that he and Gilbert had considered robbing the Bingo hall which was next to the betting shop and known as the “pivvi”. Reardon gave evidence of a conversation he had had with Gilbert and Kamara together. He alleged that Gilbert had admitted the robbery and murder whilst Kamara had denied it claiming that he had an alibi. According to Reardon, Gilbert admitted that he had planned to rob the “pivvi” and had been waiting to do so when he saw the victim opening the betting shop. The judge directed the jury that this admission by Gilbert was “relevant” to the case against Kamara. He said:

"Of course, the relevance of the ‘pivvi’ the Bingo Hall, you will recall, is that Kamara admits or admitted to the police that there was a plan between him and Gilbert to rob the bingo hall."

We accept counsel’s submission that this was a misdirection. Gilbert had made no allegation to Reardon against Kamara whilst Kamara had said nothing which amounted to an acceptance of Gilbert’s account. Indeed he had denied his guilt to Reardon, claiming that he had an alibi. Kamara did not admit to the police that there was a plan between him and Gilbert to rob a bingo hall. Unfortunately, it would appear that this part of the police evidence was not challenged by Leading Counsel for the Defence nor when this direction had been given did he seek to correct the situation or suggest that he may have overlooked the need to challenge it. The Learned Judge continued:

"Let me stress this to you. Do not approach it by saying, “Well, he admits he and Gilbert were planning a robbery together, that is the sort of man that Kamara is, therefore, we will convict him.”  I say do not do that, because that is not good enough in our law. In our courts in this country people are not convicted of crimes merely because they are shown to have a tendency to commit crimes and the way the prosecution put it is not that. The way they put it is to say, “Look this man admits he was planning a robbery, not anywhere or with anyone, but with Gilbert at that particular bingo hall right next door to the betting office”. He has admitted that he had been taken up there by Gilbert to have a look at it and the prosecution say that that gets him very close indeed to the betting shop and they say that the chance was taken by him and by Gilbert instead to rob the next-door betting shop when the manager of it appeared. That is the way the prosecution put it and approached it that way and that is reasonable if it appeals to you, but do not, as I say convict him because he is a man who has a tendency to rob - that would not be fair or in accordance with our law."

This was a blemish on an otherwise careful and meticulous summing-up. We give some weight to the point when considering whether the conviction can still be said to be safe.

The Other Relevant Complaints

We have an abiding sense of unease about the events which followed Gilbert’s change of plea to guilty of murder and robbery and the effect these events may have had upon the jury. It is not suggested that this event alone would be sufficient to undermine Kamara’s conviction. The first question we have to consider is whether the conviction can be said to be unsafe by the virtue of the fact that following Gilbert’s change of plea the jury were not discharged and a retrial ordered of Kamara alone. This point was not specifically taken before the Court of Appeal in 1983 or, if it was, it found no favour with the Court. Counsel in his grounds and skeleton argument submitted that it was a grave error of judgement on the part of Leading Counsel not to ask for a retrial. Alternatively, even if he was justified in not seeking a retrial, he should have insisted that the statement of Gilbert be removed from the jury and that there be no further reference to it except to warn them to put it out of their minds.

The decision not to seek a retrial must have been taken in defiance of, or without proper instructions, or when all promptings of reason and good sense pointed the other way. In such circumstances this Court would be justified in setting aside the verdict as being unsafe. He referred to R v Clinton [1993], where the Court of Appeal drew the distinction between the conduct of counsel and its effect on the trial. The judge said:

"It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of Counsel’s alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict according to the terms of the subsection."

The defence team was clearly at a disadvantage by this turn of events. The statement had been adduced in evidence and there was admissible evidence that during his police interviews it had been shown to Kamara and he had declined to read it or acknowledge it as genuine. Counsel gave evidence before this Court and he told us that the question of seeking a retrial was discussed between Leading and Junior Counsel and himself but in the absence of Kamara. He may have had reservations and favoured a retrial but Leading Counsel’s views prevailed. Leading Counsel may well have taken the view that the case had gone as well as it could, that there had already been two aborted trials and that he could be confident that the trial judge would give the appropriate direction to the jury. Moreover, there was a chance that the jury would remember that Gilbert had acknowledged that he was the only one to inflict the terrible violence on the victim and might take the view that Kamara was not a party to murder. There was a real chance that they might at worst find him guilty of manslaughter on the basis of a joint venture which had gone wrong, or, at best, convict Kamara of robbery only.

We consider it would be wrong to stigmatise Counsel’s decision as gross incompetence or that the promptings of reason and good sense pointed the other way. Following the reasoning in Clinton, we have to consider the effect of that decision in the light of the circumstances then prevailing and what happened when the trial resumed. Kamara gave evidence that he was not present and presented a flimsy and inconsistent alibi. When he addressed the jury, Leading Counsel specifically referred to the statement and in particular that part which supported his argument that if, contrary to the defence primary case, Kamara was present he should only be convicted of robbery.

In 1983, Waller LJ, took the view that Leading Counsel was entitled to refer to the statement. He said:

"The first question we have to consider is whether counsel for Kamara was entitled to pray in aid the contents of the statement in order to help his client. In our judgment he was so entitled. The situation here was precisely the same evidentially as if Gilbert had not gone into the witness box and had not pleaded guilty. It would be unfair if Kamara could not in those circumstances make use of the favourable parts of the statement, for example, if he admitted being engaged in robbery, but denied being a party to murder. The statement is in evidence, albeit only admissible against the co-defendant, but counsel for the other defendant must be free to use evidence called by the prosecution which is favourable to his client, even though if it were against him it would not be admissible. Once counsel had made the point in his favour, then the judge was obliged to deal with it in his summing-up."

Thus it came about that the jury still had copies of the statement in their possession and when they retired they took them with them. By this stage the judge had given the obligatory admissibility direction (to which no exception can be taken) but when dealing with Leading Counsel’s references he said:

"My only comment is, why should one believe Gilbert’s account of the part which his companion played in the betting shop raid if one is not to believe Gilbert as to who the companion was. Because that is the rather difficult road upon which Mr Houlker has embarked. He is really saying to you, disbelieve Gilbert when he says it is Kamara who was with him, but believe him as to what part he says Kamara played. There you are, members of the jury, it is for you to reflect upon that comment, but you heard how Mr Houlker put that to you and you will consider his statement."

Counsel is critical of this passage but we can find no justification. It was not inappropriate for such comment to be made in all the circumstances and any counsel of experience must have taken the likelihood of such a comment being made into account. The learned judge continued with a passage which was clearly favourable to Kamara:

"But please do bear in mind that basically the defence case is as it always has been, Mr Kamara was not there, you should acquit him of everything. It is only if you are satisfied that he was there that you then go on to consider Mr Houlker’s suggestion that you can find him guilty of the second count, robbery, but on the first count, not guilty of murder, either acquit him, or at the worst find him guilty of manslaughter."

Our concern arises out of further analysis of the situation which had developed. The jury, almost inevitably, must have pondered the issue as to what to believe in the statement. They had seen Gilbert plead guilty and no doubt inferred that he had done so on the basis of his admissions clearly set out in writing. It is quite likely that they took the view that the reason why he had changed his plea at that stage was because he was not prepared to continue to give evidence on oath incriminating Kamara by adhering to the statement that Kamara was present. The jury would not have appreciated that by his change of plea he had avoided cross-examination on behalf of Kamara to suggest that Gilbert’s implication of Kamara was untrue or unreliable.

There was ample material that could have been used to discredit Gilbert’s statement. On the evening of 16 March, after initial denials, Gilbert admitted committing the robbery with Kamara and stabbing the deceased, but gave details that were inconsistent with the prosecution case. Later the same evening he retracted the admission. At midnight, he reverted to the admissions but changed some details, advancing a version consistent with the prosecution case at trial and implicating Kamara. However, on the night of the 17 March, he stated that he had falsely accused Kamara. In a further statement made on 15 May 1981, Gilbert again denied involvement and implicated Roy Forrester and Neville Smith. If Kamara’s counsel had pursued this line, it would in all probability have been picked up by the judge in his summing-up. These matters were hardly referred to in the summing-up at all. Moreover, if he had combined to assert that the incriminating parts of the statement were true this would inevitably have triggered an ‘accomplice’ direction in the summing-up. Accordingly the jury did not have the opportunity to consider the veracity of the parts incriminating Kamara in the light of counsel’s challenge or judicial assistance.

Thus, in summary, the defence of Kamara was disadvantaged by an accumulation of factors:  the change of plea, the retention of the statement by the jury, leading counsel’s reference to and reliance upon part of it, the denial of the opportunity to cross-examine Gilbert and the absence of the benefit of appropriate directions. Accordingly, we take the view that there is a real risk that the jury might have given undue credence to the statement that this might have contributed significantly to their verdict. We harbour a real suspicion that the effect of this turn of events is of sufficient substance to be put in the balance with the other doubts we have already expressed.

Conclusion

By virtue of the accumulation or aggregation of the doubts we have expressed and reasons for them we have come to the firm conclusion that the verdicts of guilty of murder and robbery can no longer be considered safe and that they should both be quashed and the life-sentence and sentence of six years imprisonment concurrent should be set aside.

Top of Page