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R v Anthony Poole and Gary Mills UK Court of Appeal 2003

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 Anthony Poole and Gary Mills
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Court of Appeal - Tuesday 17 June 2003

Lord Justice Auld

This is an appeal against conviction for the murder of Hensley Wiltshire. About midnight on 5 / 6 January 1989, in a fight, both appellants attacked Wiltshire - Mills with a crowbar and Poole with a knife, causing him severe injuries from which he died the following day. Mills’ defence was self-defence. Poole denied any part in the assault. They also denied that the injuries had caused his death.

The Court of Appeal and House of Lords dismissed appeals. In October 1998 DI Gladding, the second most senior officer involved in the investigation, sued Channel 4, for libellous allegations about his conduct in the investigation and at the trial. The jury upheld Channel 4’s defence of justification. The CCRC declined to make a reference. Judicial review of that decision was dismissed. The Commission has now made this referral.

The Evidence At Trial

Two witnesses gave direct evidence of the fatal assault which took place in Poole’s ground floor front room in Gloucester. The first was a 21 years old woman named Kimberley Stadden, without whose evidence the prosecution had no viable case against either appellant. The second was a young man called Paul White, who claimed to have been looking through the window from outside for a short time while the fight was under way.

At about midnight Stadden had gone to Poole’s room to obtain amphetamine. In the room were Poole, Mills, Wiltshire and a man called Juke. It is plain that Wiltshire had had a lot to drink – and some amphetamine – and was aggressive. Stadden knew Wiltshire; she had been passing stolen cheques for him over the previous few days. She said Mills and Wiltshire were arguing. Wiltshire was trying to pick a fight. Mills then hit Wiltshire with the crowbar several times on the legs and head. Poole kicked him and then stabbed him four or five times with the knife.

The incident ended with Juke saying that they should all leave. Wiltshire said that he needed an ambulance.

Stadden a day or two later, as a result of a television news broadcast about the matter called “Crime Line”. She read out to Crime Line over the telephone a written statement that she had dictated to and discussed with a friend, Kathryn Halliday (who was later to gain notoriety by selling to the Daily Mirror an account of her sexual liaisons with Fred West and as a witness in the trial of Rosemary West).

Wiltshire died from cardiac arrest the following day. The post-mortem found injuries to the head and upper and lower body at the front and the back, each of the head injuries having been caused by a separate blow. There were stab wounds to the shins, which could not have been caused by a knife or a crowbar, but by a drill-shaped object. There were 17 stab wounds, 13 of them in the pelvic area, which must have been caused by a thin, sharp knife. There were fractures to the left ribs and the right fibula. The injuries to the head, body and legs could have been caused by a crowbar. A cut to the face and nostril was caused by a sharp instrument, such as a knife. It was difficult to say what instrument could have caused the ovoid leg wounds, but they had destroyed much more muscle tissue than any of the other individual injuries – the main muscle damage overall was to the left leg and the arms.

The post-mortem also revealed that Wiltshire had died from damage to his heart function caused by the wounds. Examination of Poole and Mills showed only superficial injuries.

DI Gladding gave evidence of having arrested the appellants on 9 January. They both put their hands up and Mills said, “Fair enough”. In interview by DI Gladding, Mills gave an account of having acted in self-defence.

DS Tooley also interviewed Poole, who said he had taken no part in the fight with Wiltshire. Wiltshire. Mills and Poole gave much the same account in evidence as they had each given in interview.

The Judge, in his summing-up to the jury, gave them the conventional direction on joint enterprise but, in addition, directed them that, on the facts, joint enterprise only arose if they were sure that both of the appellants had assaulted Wiltshire, each with a weapon. In response to a question from the jury towards the end of his summing-up, he repeated that direction in the following terms:

"In this case the question of joint enterprise can only arise if you find – which is of course quite contrary to the case which these two defendants put forward – that the two accused men were both engaged in attacking Wiltshire, one with the knife and the other with crowbar. It cannot arise on the facts of this case unless you make that finding, that is to say, that both of the two men were attacking Wiltshire with weapons."

The Referral

The Commission referred the matter to this Court, expressing the view that there was now “a real possibility that the Court of Appeal would find these convictions to be unsafe”.  It gave five reasons for that view.

First, the Commission saw no evidence to suggest that Stadden’s second witness statement incriminating both appellants was a result of any attempt by DI Gladding to corrupt her. However, it concluded, in the light of DS Jeynes’s explanation at the libel trial about his use of the words “punishment beating” when questioning Mills, that it could not be certain that everything said by Stadden in evidence “represented a full and accurate recollection” of what she had said at the time.

Second, the Commission stated that the Court of Appeal’s conclusion that the jury must have dismissed Mr. White’s evidence as incredible should be re-visited in the light of R v. Pendleton [2002] 1 Cr App R 34, HL.

Third, the Commission expressed concern about the failure of counsel on both sides to remove from the transcript of DS Jeynes’ interview of Mills his misleading summary of Juke’s second witness statement before it was put before the jury. It said that, having regard to Pendleton, the misleading questioning was no longer relevant only to whether it had prompted Mills to make an incriminating admission (which it had not), but to whether the prosecution had proposed to call evidence to support the assertion:

"The Crown, the Commission concludes, should not have been allowed to place before the jury a question, whether denied by the witness or not, in the form that the suggestion of a punishment beating came from a witness whom the Crown did not intend to call. Counsel for Mills and Poole rightly points out that there is danger that such a question might have had some prejudicial effect upon the jury."

"The Commission notes further that defence counsel did not invite the trial judge to draw the sting of the inference left by the question, by means of an appropriate direction."

Fourth, the Commission expressed the view, notwithstanding the Court of Appeal’s holding that Juke’s evidence before it, if given at trial, would not have helped either appellant, that there could be no certainty as to what evidence Juke might have given at the committal or trial or as to the value he might have had as a defence witness. Having considered various possibilities, it concluded that it could not say:

"with certainty, that the defence suffered no detriment from its inability to explore Mr. Juke’s evidence at the committal proceedings, caused by D.I. Gladding’s warning to M. Juke. The Commission does not consider it likely that such prejudice accrued, however, it cannot go further than that."

Fifth and in reaching its final decision, the Commission, whilst rejecting the suggestion that there had been an abuse of process, observed that the appellants’ case was that they had not received a fair trial because of police misconduct and inefficiency of which the prosecution had been unaware. It concluded that, in the light of all the information before it “regarding the police handling of the case …, in particular, with regard to the judgment in …Pendleton,” that there was a real possibility that this Court would find both convictions unsafe.

The Issues In The Appeal

The appellants maintain that their convictions are unsafe on the following common grounds:

1. The close examination in the libel trial of DI Gladding’s conduct in relation to Juke revealed a level of impropriety that tainted the whole police investigation more profoundly than had been recognised in the previous appeal, so as to cast fresh doubt on all the prosecution evidence, and in particular, that of Stadden;

2. In the light of Pendleton, the first Court of Appeal was wrong to hold the conviction safe on the basis that, although there had been serious improprieties in the handling of White’s evidence, the jury would not, in any event, have relied on it to convict;

3. In the light of Pendleton, the first Court of Appeal was wrong to hold that, even if the defence had called Juke to give evidence, it would not have raised doubts in the jury’s minds as to the appellants’ guilt;

4. The inaccuracy of DS Jeynes’ rehearsal of Juke’s second witness statement in questioning Mills, only identified after the first appeal, introduces a new and separate argument from that considered by the House of Lords in its ruling that any prejudice to the defence arising from non-disclosure of the statement was largely overcome by the substance of it having been put to Mills in interview; and

5. The admission into evidence of that hearsay evidence of DS Jeynes, whether accurate or inaccurate, was unfairly prejudicial to the appellants.

The Law

The Commission may only refer a conviction to the Court of Appeal if it considers that there is a real possibility that the Court would not uphold the conviction because of new argument or evidence, or because there are exceptional circumstances for making it. However, once the matter is referred, the appeal is not confined to the Commission’s reasons for the referral. It may be on any ground. That may consist of or include a ground that has already been aired in a previous appellate hearing in the matter. But normally the proper exercise of the Court’s discretion involving departure from its previous reasoning should equally be confined to exceptional circumstances; R v. Ian Thomas [2002]; and R v Wallace Duncan Smith [2002].

Exceptional circumstances may exist where, for example, there was some cogent argument advanced, but not properly developed at the previous appellate hearing, but which as now developed could persuade the Court that the conviction was unsafe (R v. Chard (1984). Other examples, as the Court observed in Thomas, may be where there has been a development of the law requiring the adoption of a different approach by the Court to the issue before it, or where there has arisen some tension between overlapping principles such as that between the statutory criterion for safety of a conviction and the ECHR concept of a fair trial. As the Court said:

"…the exceptional circumstances, whatever they are, would have to be such as would convince the Court that if the matter had been arguable and argued in that way before the previous Court, it would – not might – have quashed the conviction. The Court should in any such cases be very slow to differ from its previous judgment."

This approach, it seems to us, is consistent with the reasoning in Pendleton, of the need of the Court itself to be sure of the safety of the conviction, as distinct from sureness of guilt or that, if such circumstances had been before the jury, it would still have convicted.

It follows that the task for the Court on this appeal is to determine:
1) whether there is some new argument or evidence not previously before, or properly developed before, the Court;
2) if not, whether there are any exceptional circumstances which, in our view, make either conviction unsafe;
3) the effect of Pendleton on how we approach our task.

The first point to note about Pendleton is that it was a fresh evidence case. The House had to consider how the Court should assess the effect of such evidence on the safety of the conviction. It was stressed that the Court, when considering such evidence, should focus on its effect on the safety of the verdict rather than on the guilt of the accused.

In doing so, he said that it was not the role of the Court to usurp the role of the jury. However, he acknowledged that the Court cannot, save in clear cases either way, entirely exclude from its thought processes questions of how evidence at trial, if put alongside the fresh evidence before it, might or would have affected the jury’s decision. It is clear from his reasoning that in those cases where the answer to the question, safety or unsafety, is not immediately clear, the Court may have to ask itself, for example, whether and to what extent the jury relied on a particular piece of evidence in convicting an accused and how their decision might reasonably have been affected if they had known what the Court now knows. This is how Lord Bingham, at paragraph 18, spoke of the varying degrees to which the Court may intrude on the jury’s domain according to the nature of the issue in play and the obviousness of the impact of the fresh evidence on it:

"18. Where the Court of Appeal has heard oral evidence the evidence will almost always have appeared, on paper, to be capable of belief and to afford a possible ground for allowing the appeal. By the time the Court comes to decide whether the appeal should be allowed or dismissed, it will have heard the evidence, including cross-examination and any submissions made on its effect. It may then conclude, without doubt, that the evidence cannot be accepted or cannot afford a ground for allowing the appeal. … The Court may, on the other hand, judge the fresh evidence to be clearly conclusive in favour of allowing the appeal. … The more difficult cases are of course those which fall between these extreme ends of the spectrum.  …The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe."

In our view, the Pendleton jury impact test, looked at as a range of permissible intrusion into the jury’s thought processes for confirmatory purposes, is equally applicable where the new matter is one of argument, either of law or of interpretation of, or of inference from, the evidence at trial. The Court may also have to ask itself similar questions as to the effect on the jury of evidence improperly given or of other irregularities at trial.

The Submissions

Counsel placed at the forefront of their submissions the proven misconduct and / or incompetence of a number of police officers. The improper conduct of DI Gladding toward Juke and his lies about it in evidence at the criminal trial and the potential for an officer in his position to infect the whole investigative process and evidence so as to render the conviction unsafe. They acknowledged that his misconduct had all been before the Court of Appeal. However, they maintained that the more detailed examination of that conduct in the libel trial, coupled with the libel jury’s conclusion that he had perverted the course of justice and perjured himself at the criminal trial, added something new which, if the criminal jury had been aware of it, might have led them to acquit.

There was the misconduct of DCs Paine and Cheminais in their dealings with White, adding to the impression of a dishonest and incompetent investigation from top to bottom.

There was the behaviour of DS Jeynes in his misrepresentation to Mills in interview of what Juke had said about the attack on Wiltshire.

In summary, they submitted that the cumulative effect of what had happened since the first appeal and the evidence and arguments in that appeal is seriously to discredit an already tainted investigation and to render the convictions unsafe.

Conclusions

General

Although the appellants were separately represented on this appeal, they had, as we have indicated, the same counsel at the trial. Their defences were different, but consistent one with another. Mills relied on self-defence; Poole supported Mills’ account and denied that he had been a party to any of the violence. They were witnesses for each other so that any unfairness to one in the trial would have been likely to diminish the defence of the other. In addition, Mills’ defence of self-defence would have been substantially undermined by any evidence, admissible or inadmissible, suggesting that both of them were engaging Wiltshire in the fight.

Many of the complaints of the police treatment of Stadden, White and Juke, and about their vulnerability and / or unreliability, are not new arguments nor do they arise from any new evidence. They were fully considered and rejected by the first Court of Appeal after hearing the evidence of, amongst others, DI Gladding and Juke. We have considered whether any new matter or significance has emerged as a result of the more detailed examination of DI Gladding’s and DS Jeynes’ conduct in the libel trial, such as to raise a new argument of the sort considered by Lord Woolf of overall infection of the police investigation so as to cast new doubt on the reliability of, in particular, Stadden, White and / or Juke. We have also considered whether Pendleton gives rise to a new argument based on the first Court of Appeal’s examination of the likely credibility of those witnesses and the effect of that authority on our approach.

White

The Judge, in his summing-up of White’s evidence to the jury, described him as an “important witness” and expressly told them that it was for them “to decide whether he [was] a truthful and reliable witness”. In our view, the first Court’s view that the jury, even without the Neale evidence, would have regarded his evidence as to what he saw and heard as unreliable offends the Pendleton principle of substituting the Court’s for the jury’s view of the evidence. There is no knowing what the jury thought of the credibility or reliability of White’s evidence of what he could and did see and hear of the fight from his vantage point outside on the street. The prosecution had not conceded that he was unreliable. And, as we have mentioned, the Judge, in his summing-up, described him as “an important witness” and concluded his references to his evidence by directing that it was for them “to decide whether he [was] a truthful and reliable witness”.  Since, as the House of Lords held, the failure to disclose the Neale information was a material irregularity, this Court must consider the effect of the non-compliance of the first Court of Appeal with Pendleton in, as it seems to us, intruding on the jury’s role in assessing the credibility and reliability of an important witness in the trial.  He was obviously important, as the trial Judge acknowledged, because he was the only potential prosecution eye-witness apart from Stadden. His evidence, if accepted by the jury, might reasonably have been regarded by them as reassuring confirmation of Stadden’s account – enough perhaps to clinch any tentative doubts that they may have felt when considering whether they believed and could rely on her. In saying this, we are conscious that we too are in danger of crossing the Pendleton line, but we do so only because we are sufficiently uneasy about the effect of the inability of the defence to exploit the Neale material on the safety of the verdict. Put another way, we do not agree that, even looking at the matter with Pendleton hindsight, the jury must - or would - have convicted on reliance on Stadden’s evidence, if she had been the only eye-witness.

Juke

It is an irony that the original focus of complaint about the treatment of Juke and of the non-disclosure of his witness statements to the defence may have distracted attention from the prejudicial hearsay use of his second witness statement, regardless of its inaccurate representation by DS Jeynes. As it was, the Court of Appeal, though it did not regard the non-disclosure as a material irregularity, considered that the officer’s hearsay references to it in the interview would have largely eliminated any prejudice that might have resulted from the non-disclosure. And it considered that, even if he had been called by the defence, his evidence was likely to have been so unreliable as not to have assisted the appellants. Of course, the Court of Appeal did not know, and nor did the House of Lords, which was focusing on the single issue of non-disclosure before it, that DS Jeynes had misrepresented to Mills in interview some of what Juke had alleged in his second witness statement. The Commission, when it reconsidered referral, seems to have come a little closer to considering the possibility of prejudice from the hearsay itself.  However, its focus still appears to have been on the inaccuracy of the hearsay rather than its main thrust, an allegation by Juke, who saw what happened but did not give evidence, inculpating both Mills and Poole.

In our view, the important point, on which Miss Baird and Mr. Fitzgerald have in this appeal for the first time given due emphasis, is that DS Jeynes’s rehearsal in his interview of Mills of Juke’s account in his second witness statement, whether accurate or inaccurate, became hearsay evidence unfairly prejudicial to both appellants on issues central to their respective defences. It was strongly supportive of Stadden’s evidence. It contradicted Mills’ account of self-defence and it implicated Poole in the attack. It is surprising that defence counsel did not seek exclusion of the offending question and others like it eliciting denials from the copies of the transcripts put before the jury. Whatever their reason for not doing so, the primary concern of the Court now is the effect on the safety of the verdicts of admitting and leaving such critical hearsay material before the jury.

In our view, the hearsay was capable of having had a seriously and unfairly prejudicial effect on the jury’s deliberations.
First, there was the unfortunate impression left with them by Mr. MacDonald in his cross-examination of DI Gladding that Juke was to have been a prosecution witness.
Second, the significance of what he might have said if called was clearly a matter of interest to the jury, as their note to the Judge at the end of the trial indicated.
Third, DS Jeynes’ question effectively introduced a hearsay account of the only other person present in the room throughout the fight with Wiltshire, apart from Stadden and the appellants, an account that they, the appellants, denied when it was put to them.
Fourth, quite apart from the partly misleading nature of the question, it was also, as Miss Baird said, disingenuous in its lack of reference to what Juke had said in his first statement.
Fifth, although the Judge made no reference to the question is his summing-up, the jury had it before them in writing in the transcript of the interviews when considering their verdicts, in a form and at a time when it could have left a disproportionate impression on them. The Judge could have alerted them to the dangers of such hearsay allegations, though for him to have done so in any specific way would probably have only made matters worse.  And, as the jury had the transcripts, it was unfortunate that, instead of possibly directing them in general terms as to what was and was not relevant, his only observation on the subject was to invite them to refer to any passages that they thought were relevant.

The only other complaint about Juke’s role, or lack of it, in the trial, upon which the Court could properly act on this second appeal is that the first Court’s rejection of him as a credible witness, largely because of his lack of explanation for the injuries suffered by Wiltshire, does not accord with Pendleton. However, we acknowledge the force of the reasoning of the first Court on this point. And the likely effect on the jury of his evidence, if he had given it, in our view, falls between the extreme ends of the spectrum of clarity to which Pendleton referred.

In the result, we are of the view that both convictions are unsafe for two main reasons.

The first related to the evidence of an important eye-witness, White.

The second related to the possibly more influential hearsay use of a witness statement of one who was not a witness, Juke.

Both could have had an important influence on the jury’s conclusion as to the credibility and reliability of the key eye-witness in the case, Stadden. The non-disclosure of the Neale material deprived the jury of the opportunity to test the truth of White’s evidence, the credibility and reliability of which were essentially matters for them. As to the hearsay use of Juke’s witness statement, we agree with the submission that, to put before the jury a document containing a graphically phrased, inaccurate, damning and inadmissible account central to the case was improper, and, in the way in which the Judge left it with them, was unfairly prejudicial to the defence of both appellants.

Accordingly, we allow both appeals against conviction.

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