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R v Patrick Nicholls [1998] EWCA Crim 1918

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

External link to full text of R v Patrick Nicholls
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Court of Appeal - Friday 12th June 1998

Lord Justice Roch

In 1975 Nicholls was convicted of murder and robbery and sentenced to life for murder and 8 years for robbery. Appeal refused 1977. Application for review rejected 1996.

In 1975 Nicholls used to go to the Clifton Pub. A 74 year old lady, Mrs Gladys Heath, also went there. The public house was halfway between their two homes. They would sometimes have a drink together. They did that at lunchtime on 2 April. Mrs Heath left the public house on her own and went to her home at about 2.10pm.

Mrs Heath shared her house with 2 other people, a Mrs Hunt and a Mr Steggal. They returned home at about 4.15pm to find Mrs Heath lying at the foot of the stairs. She was dead. The prosecution, at Nicholls's trial, contended that he had gone to Mrs Heath's home some time that afternoon intending to rob her; had assaulted her by striking her over the bridge of her nose and by placing his hand over her mouth, probably holding against her mouth a woollen hat which she had been wearing, and by those means had brought about her death from heart failure; and that he had then stolen items of property which he had taken back to the flat where he lived.

The prosecution were able to call a witness who lived nearby, a Mrs Hunt, who told the jury that at about 4.00pm that afternoon \ she had seen Nicholls carrying a carrier bag and walking as though he was in a trance. The prosecution also called the person with whom Nicholls was living at that time. She said he had returned to the flat at about 4.00pm. He had a carrier bag which contained articles the prosecution said had been stolen from Mrs Heath's home. The partner gave evidence that she had seen on his trouser leg a blood stain which he had removed by washing his trousers in the washing machine. She said during the course of the evening , Nicholls said that she could see, "If it wasn't for you and the children I would go into the sea and keep on walking".

Police officers went to Nicholls' flat on 3rd April and found the items which they alleged had been stolen from Mrs Heath's home. Some of those items were found in a bucket of gravel which enabled the prosecution to say that Nicholls was hiding them. Nicholls ' evidence was that his children had played with those items which were of little value, and that was how they had got into the bucket of gravel.

Nicholls was interviewed by the police. Initially he denied that he had been to Mrs Heath's home on 2 April. Later he admitted that he had been there, and that he had found her dying and that she had died in his arms. He was very naturally asked why he had not telephoned the emergency services, and he said that was because he was afraid of involvement with the police.

Nicholls explanation for neither calling the emergency services or admitting straightaway his presence in Mrs Heath's home that afternoon was to say that some time before a Mrs Kathleen Clinton-Dynes had been found dead lying across his garden gate. It turned out that her death was due to the fact that she had vomited and inhaled her own vomit, but Nicholls said he had been questioned by the police who appeared convinced he had killed her, in such a way that he had been loath to be involved with the police again.

At his trial the judge directed the jury that the only relevance of Mrs Clinton-Dynes death was in relation to the truth or otherwise of Nicholls ' explanation for his failure to notify the police or ambulance services or to answer the police questions truthfully.

On 2 April police officers and a pathologist attended at Mrs Heath's home. One of those officers was a DSupt Finley. The pathologist was Dr Johnson. Dr Johnson carried out a preliminary examination of the deceased at the scene and dictated some notes to a police officer who was present. That process was recorded on video, but that video has since been lost.

The postmortem started at 11.00pm. It was performed by Dr Johnson at the local hospital. There were a number of police officers present, one of whom was Detective Supt Finley. Finley said Dr Johnson thought that the death might have been due to natural causes. Finley has made it clear that Dr Johnson was expressing a firm opinion.

At some stage Dr Johnson concluded that death was not attributable to natural causes, but that Mrs Heath, who suffered from a serious heart condition, had died as a result of shock which had triggered a heart attack.

The judge reminded the jury of Dr Johnson's evidence in his summing-up in these terms:

"The cause of death as given by Dr Johnson - says: 'Cause of death. Shock. Facial injuries. Coronary atheroma.', and you may think it would be right here to summarise the cause by saying heart failure due to shock and injuries… he went on to say that microscopic examination of the lungs revealed changes which indicated a degree of suffocation. He said suffocation played a part in the death, but he was not saying she died from suffocation itself. The judge reminded the jury of the importance attached to the evidence of suffocation."

That opinion, although the jury were unaware of this, was concurred in by an eminent pathologist retained by the defence, Dr Cameron, who, although he had not carried out a postmortem on the body of Mrs Heath, had, in July of 1975, examined specimens and slides taken by Dr Johnson. We shall, in a little while, look in some detail at Dr Cameron's conclusions.

The other evidence on which the prosecution relied was the evidence of a man called Boorer, described in the Commission's Statement of Reasons, as "an unsavory character with a long police record". He said that Nicholls had been in prison with him on remand, had discussed the case with him, admitted that he had killed Mrs Heath and gave a demonstration of how he had done it including clamping his hand over the mouth. The judge gave the most careful warning to approach his evidence with great care.

Nicholls said he had gone to Mrs Heath's home, found her at the bottom of the stairs dying, and she died in his arms.

On appeal, this Court concluded that (putting the evidence of Boorer on one side) there was still a very strong circumstantial case against Nicholls, which was true once it was accepted that this was an unlawful killing. Those representing Nicholls at his trial were faced by the difficulty that they had in their possession a report from Professor Cameron which was extremely adverse to Nicholls's case that this was a death from natural causes. We refer to the opinions expressed by that eminent pathologist:

"1. From the photographs, they would indicate that the body had been ‘dumped' at the foot of the stairs and in no conceivable way could the body have got into the position where found in any other way than having been so placed.

2. That the disturbance of the chair in the living room, yet the undisturbed jigsaw, suggested that an assault had taken place on the chair with the presence of blood on the cushion and underneath the cushion, and that the body had been moved from that chair.

3. Having looked at the photographs, the injuries to the bridge of the nose could only have been caused, in my view, by a blow or blows to the face. For these injuries were extremely severe involving the nose, cheek bones and also the inner side of the upper lip. The photographs would suggest that there had been a degree of asphyxia prior to death and would suggest that the body had been lying face down for a period after death or that the mouth had been partially occluded as a result of compression by a hand. These injuries are not, in my opinion, in keeping with a simple fall either on a carpeted floor or by falling down the stairs. They are likewise not in keeping with the deceased having received a downward blow to the bridge of the nose whilst wearing a pair of spectacles because the spectacles as one can see from the photograph had been folded and were within the corner of the chair. Had such a severe blow been inflicted on the face, I would have anticipated that the spectacles would have been broken and from the minor abrasions on the knuckles of the left hand and to a lesser extent the right hand with bruising of the base of the right thumb. There was no evidence of any other injuries to the body.

4. I examined the heart under the microscope and while showing changes of long-standing heart disease did show evidence that there had been an acute catastrophe as a result of shock which could have been precipitated not only by the force of an assault but also by an asphyxial element. There being no reaction around the haemorrhages within the heart muscle when seen under the microscope would suggest that the deceased had received a severe blow to the face on at least two occasions and that in all probability had either been partially asphyxiated in spite of the absence of asphyxial signs, possibly by the mouth being gripped or compressed.

5. I entirely agree with Dr Johnson's view that the immediate cause of death was one of acute coronary occlusion due to the degenerative change in the vessels but had been precipitated in my opinion not only by shock but also by an asphyxial element; a fact that Dr Johnson was not prepared to state on his clinical examination but from my reviewing of the notes and of the photographs it is undoubtedly present and this is further confirmed by the over distension of the lung when examined under the microscope."

It is not necessary to refer to the sixth conclusion:

"7. It is my view that this body had been assaulted whilst in the chair in the living room and had been 'dumped' at the foot of the stairs in order to give the impression that the deceased had fallen down the stairs either whilst ascending or descending the stairs. This is a total artefact in my view.

8. An assault of a woman of this age could easily have precipitated shock particularly in view of the moderate severity of her cardiac condition, but that it would have been further accelerated by an asphyxial element in the form of either compression of the face or nose, or by her posture after such an assault. However, the postmortem findings as confirmed by the microscopic examination would suggest an acute death."

Nicholls, following refusal of his application for leave to appeal, continued to maintain his innocence.

In 1996 there was obtained on his behalf a report from a pathologist at Southampton general hospital, Dr Hitchcock. In that report, which is dated 11th July 1996, Dr Hitchcock expressed the following conclusions:

"1. I consider Dr Johnson's postmortem examination to have been expertly performed and the conclusions he has drawn are reasonable enough although I believe that there are other possible explanations for the pathological findings...

2. From the information supplied to me, it is possible that this lady's severe coronary artery atheroma could have led to acute cardiac failure causing her to collapse and injure herself... There is also evidence that this lady was in heart failure at the time of her death as the postmortem report specifically states that oedema and congestion of both lungs was present although I can find no record of the weights of the lungs and heart."

Then we go on to conclusion 3:

"Dr Johnson postulates that this lady has met her death as a result of trauma resulting in a cardiac arrest. This is possible although, in my opinion, the injuries sustained in themselves are not life threatening and in answer to issue three in your letter, it is possible that acute cardiac failure may have preceded the injuries.

4. If an assailant is involved, I do not think the injuries in themselves indicate intent to kill by means of inflicting injury... However, it is possible that by inflicting the injuries, an episode of acute cardiac failure may have resulted causing death."

It was following receipt of that report and the Home Office's refusal in the light of that report to refer the case again to this Court that Nicholls applied to the Commission in August 1997. The Commission's enquiries raised two aspects of the case presented to the jury. First, the opinions of the pathologists and, second, an enquiry into the conduct of the investigation into Mrs Heath's death.

The Commission sought the opinion of a very eminent pathologist, Professor Crane, who is state pathologist in Northern Ireland at the State Pathologist's Department and a Professor of Forensic Medicine at Queen's University, Belfast. He gave a report which was critical of the autopsy report of Dr Johnson. He made eight particular criticisms and then expressed his conclusion and summarised those criticisms in these terms:

"The conclusions based on the autopsy findings are inadequate, inappropriate and misleading. The cause of death is misleading and incorrectly stated since if the coronary atheroma is being implicated as the underlying factor predisposing to death then it should not have been put in Section II of the cause of death which is reserved for contributory factors unrelated to those factors stated in Section I."

Professor Crane considered the report of Professor Cameron and was equally critical of it. Two criticisms require to be noted. The first was expressed in these terms:

"Professor Cameron's conclusion that the heart did show evidence that there had been an acute catastrophe as a result of shock which could have been precipitated not only by shock of an assault but also by an asphyxial element does not make sense. Acute changes in the myocardium (heart muscle) are not visible using conventional microscopy until some hours (6-8 hours) after the event and indeed in most sudden deaths due to coronary artery disease no acute changes are visible. To further suggest that the absence of changes in the heart would be in keeping with a severe blow to the face on at least two occasions and that the deceased had been partially asphyxiated is grossly misleading and has no scientific basis whatsoever. This in my opinion is quite inappropriate speculation on the part of the pathologist. Professor Cameron suggests that he agrees with Dr Johnson in that the immediate cause of death is one of acute coronary occlusion yet this is clearly not the immediate cause of death put forward in Dr Johnson's report where coronary atheroma is regulated the Section II of the cause of death suggesting that it is only a contributory fact or factor."

The other criticism was expressed in these terms:

"Professor Cameron suggests that the presence of overdistension of the lungs as seen in the histological sections is indicative of asphyxia. This is incorrect. The presence of overdistension of the air spaces is probably related to the presence of chronic obstructive airways disease confirmed by Dr Johnson. It is not in my knowledge an accepted or recognised diagnostic feature of asphyxia."

Professor Crane expressed his views about the matter, and we set out those views almost in their entirety in view of the seriousness of this case and in fairness to Nicholls. Professor Crane's opinion was:

"1. The injuries sustained by Mrs Heath could only be described as trivial in view of the absence of bony injury to the nose, the lack of significant amounts of blood in the nose or air passages and the absence of any laceration to the delicate skin on the basal bridge. The injury to the mouth was also trivial and was almost certainly caused by pressure from the denture inside the mouth. The injuries were not typical of a violent assault and on their own would not have caused, or in my view, contributed to death. Whilst they could have been caused as the result of a blow or blows to the face such as by punching, it is equally possible that they were caused as a result of her collapsing face downwards, possibly striking the bridge of her nose on the edge of a hard surface and similarly causing her denture to be forced against the inner lining of her upper lip. The other injuries on the body were trivial and in particular there was no evidence of bruising on the ulnar borders of the forearms such as might be seen if she had been warding off an attack by an assailant.

2. It is particularly significant that no blood was found in the upper air passages or in the air passages of the lungs, particularly since the injury to the nose would be expected to be associated with significant bleeding which would then have trickled down the back of the throat. This finding would tend to suggest that the injury to the nose was slight in nature and might also indicate that death occurred quite rapidly after the injury to the face was sustained allowing insufficient time for blood the accumulate.

3. Suffocation effected by obstruction to the mouth and nose may not and indeed usually is not associated with any obvious asphyxial signs detectable at postmortem examination. Whilst the possibility that death was due to or contributed to by an element of suffocation cannot be excluded, equally there is no evidence to indicate that such an element played any part in the fatal outcome.

4. There is evidence that this elderly woman suffered from severe coronary artery disease with almost total obstruction of the right main coronary artery. The severity of this coronary artery disease was such that it could have precipitated a fatal, or indeed non-fatal heart attack, at any time. Whilst it is recognised that emotional stress and indeed physical stress and exertion may exacerbate significant coronary artery disease and perhaps precipitate a heart attack there is no way that this can be proven beyond reasonable doubt.

5. The use of the term 'shock' is extremely misleading since shock is not a pathological entity which can be detected at postmortem examination. Shock is a clinical condition which may be precipitated by a number of causes including blood loss or generalised infection (septicaemia). So-called emotional shock is a near nebulous description again for a clinical condition in which a person becomes pale, sweaty and perhaps faint and can be precipitated by a sudden fright. The latter condition has no underlying pathological basis however and to include it in an autopsy report is misleading and inappropriate.

In conclusion I cannot agree with either Dr Johnson or Professor Cameron that this woman sustained severe facial injuries as the result of an assault and that these severe injuries precipitated a heart attack from which she died. The injuries were trivial and whilst they could have occurred as a result of her having been assaulted, the possibility exists and indeed I believe it to be a strong possibility that the injuries were sustained as the result of collapse, perhaps precipitated by an acute coronary attack. There is no evidence to support the conclusion that suffocation played a part in her death."

As a result of this matter being referred to this Court by the Commission, the prosecution, who have been represented by Mr Houlder, sought the opinion of another eminent pathologist, Dr Djurovic, who is a senior lecturer and honourary consultant in forensic medicine in the Department of Forensic Medicine at Guy's Hospital and the University of London. Her conclusions coincide, for the main part, with those of Professor Crane. In particular her third conclusion is:

".....there is no pathological evidence to support asphyxia. The possibility that she was suffocated, however, cannot be excluded. External injuries and asphyxial signs can be minimal or absent in such cases. None of the points in favour of asphyxia, as outlined by Professor Cameron are, in my view, acceptable."

"I also do not think that it can be stated with any certainty that her body was 'dumped' or placed at the bottom of the stairs. In my opinion, she could have ended in such a position if she collapsed and fell backwards as she was about to start climbing the stairs. Such a fall would not, however, have caused the facial injuries to Mrs Heath."

"Although it is possible that Dr Johnson was correct in his interpretation of the injuries and mechanisms of death, this is not the only explanation. The possibility remained that Mrs Heath fell forwards, possibly whilst feeling unwell, sustained the injuries to her face. It is possible that she then stood up and tried to go upstairs, but finally collapsed at the bottom of the steps."

Mr Houlder, in addressing us on the other aspect, referred to by the Commission, namely the investigation into Mrs Heath's death, conceded that it appears that there was a failure in days when the practice of disclosure was not as rigorous as at the present time in the passing of notes made by Det Supt Finley to the defence as to the positions in which items were found in Mrs Heath's house, in particular the woollen hat which she had been wearing, and possibly of Mr Finley's recollection of the initial opinion expressed by Dr Johnson that Mrs Heath's death was due to natural causes.

Mr Houlder has told us, and we accept, that a reading of the instructions and brief to prosecuting counsel shows that those notes were not made available to prosecuting counsel. We accept Mr Houlder's submission that had Mr Finley's notes been made available to prosecuting counsel there can be little doubt that they would have, in turn, been passed to the defence.

Mr Mansfield brought to our attention two extracts which appear to come from the sound track of the video recording made during the postmortem performed on Mrs Heath's body. We were told that this small part of the sound track is all that has survived of that video recording. On it a person described as "pathologist" says:

"She's sitting in the chair, she certainly, she feels bad, she leans forward or slithers forward, has her coronary or whatever, that she....."

And then there is a blank:

".....back or something, she bangs her face, er takes her spectacles off, goes upstairs to get a pill or have a drink or have a pee or whatever it is (the bowels empty), she goes, going down the stairs again, pitches down, you know when she gets near the bottom, because she hadn't pitched very far, she hadn't done herself any great injury."

Then there is another voice recorded as saying:

"Yes, would it be possible to assess - ....."

And then the extract finishes.

It is quite impossible, in our view, to know whether this was Dr Johnson expressing his view or whether, as he worked, he was considering one possible sequence of events which might have occurred in Mrs Heath's house that afternoon. Dr Johnson has now died, and on the information before us it is quite impossible to say which this was.

There have been suggestions that the case against Nicholls may have been improperly added to by the method of investigation adopted by the police. Counsel for the Crown does not accept those suggestions and would, had they been pursued, have disputed them. It is not necessary for this Court to examine these issues because of the three reports before us from three eminent pathologists, all of which, to varying degrees, criticise and contradict the pathological evidence heard by the jury and expressed the view that Mrs Heath's death could have been due to natural causes.

Mr Houlder has brought to our attention the matters in paragraphs 42 and 43 of the commission's statement of reasons, namely that Detective Chief Inspector Moore of the Thames Valley Police has twice investigated aspects of this case. In the course of his enquiry in 1977, he inquired whether Dr Johnson might have been subjected to undue influence by the police. The conclusion he came to was that Dr Johnson had not. His report is dated 5th December 1977. The Commission go on in paragraph 42:

"Dr Johnson was apparently given to theorising out loud. His initial statements were made without the benefit of a full examination of the deceased. Mr Moore also spoke to Mr Finley [he is there referring to Det Supt Finley] who then said that he did not believe that Mr Johnson could have been subjected to undue influence by other officers."

"43. Mr Moore was also shown the report by Professor Cameron, the pathologist retained by the defence. Professor Cameron never examined Mrs Heath's body. Professor Cameron was, nonetheless, even more firmly of the view that death could not have occurred by natural causes."

The conduct, so Mr Houlder informed us, of the two officers who directed this investigation, DCI Cantle and DI Harrison, has been scrutinised by a senior officer of another force, Chief Supt Moore, who found no material to suggest that the investigation into Mrs Heath's death was not conducted properly.

We would observe that once it was accepted that this was a case of homicide and not death due to natural causes, the view expressed by two highly respected pathologists, the case against Nicholls, based on the circumstantial evidence, which in turn rested principally on his conduct, both during that afternoon and later in interview with the police, was a strong one.

This Court understands how the jury came to the verdicts which they did which, on the evidence presented to the jury, in our view, were perfectly reasonable once it could not be effectively disputed by defence counsel that Mrs Heath had been unlawfully killed. We accept Mr Houlder's submission that the jurors who reached these verdicts should not feel that they were to blame for Nicholls having spent some 23 years in custody.

We allow this appeal because the pathological evidence that this was an unlawful killing, and natural causes could be excluded, has now been shown to be unreliable.

In allowing this appeal we wish to express this Court's great regret that as a result of what has now been shown to be flawed pathological evidence Nicholls was wrongly convicted and has spent such a very long time in jail. We allow these appeals and we quash the convictions for murder and robbery.

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