T960305

IN THE CROWN COURT AT EXETER

							Royal Courts  of Justice
							The Strand
							London WC2A 2LL

							Tuesday, 17 June 1997

	B e f o r e:

	MR JUSTICE BUTTERFIELD

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	R E G I N A

	- v -

	MARK LITCHFIELD

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	Computer Aided Transcription by
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MR R LISSACK QC with MR D WESTCOTT appeared on behalf of THE CROWN. 

MR A JONES QC appeared on behalf of THE DEFENDANT.

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	J U D G M E N T
	(As approved by the Judge)

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	©Crown Copyright

							Tuesday, 17 June 1997
	J U D G M E N T
MR JUSTICE BUTTERFIELD:  Mr Litchfield is charged with three counts of manslaughter.  He was the owner and master of a square-rigged schooner called The "Maria Asumpta" which foundered off the North Cornwall coast on 30 May 1995 with the tragic death of three of her crew.  The prosecution allege that the defendant is criminally responsible for those deaths by reason of his gross negligence.
  
	In broad outline, the case for the prosecution is that the defendant put the vessel on a course which was too close to the rugged coastline, especially on a lee shore, so that he failed to sail at a safe distance from that shore.  Further, it is alleged that the defendant knew that the diesel fuel in the fuel tanks on board the vessel was contaminated and likely to cause the engine to fail if he had to use them to try to get out of difficulty.  Finally, the prosecution assert that when the engines did fail, in a number of respects the defendant failed to take reasonable steps to retrieve the situation and protect the lives of the crew, either individually or collectively.  Those matters are said to constitute gross negligence on the part of the defendant.  The basis of the prosecution case is particularised in the indictment.  

	Mr Litchfield's defence is that he was not negligent in the course he set; he did not know that the fuel in his tanks was contaminated so as to be likely to cause engine failure; in any event, the contaminated fuel, if there was any, was not the cause of the engine failure; and finally, when faced with the last moments of the emergency, he did everything he could to save both his ship and the lives of her crew.

	The evidence to be adduced by the prosecution comes principally from some of the crew and from those involved in refuelling the vessel.  However, the prosecution also wish to call expert evidence which is critical of the defendant's choice of route and of his handling of the final emergency.

	At committal the statements of two experts, a Captain Willoughby, a man with vast experience at sailing square-rigged vessels, and Mr Hurst, a world authority on sailing, were tendered to the court.  The prosecution intended to rely on those witnesses in support of their contention that the defendant's route was dangerous and unnecessary and his handling of the emergency was wholly inappropriate.  

	On 13 March 1997, Mr Lissack, leading counsel for the Crown, met those two experts for the first time.  He was concerned about the frail state of health of Mr Hurst, who was then in his late 70s and had suffered from indifferent health for a number of years.  In the course of his consultation, Mr Lissack advised Captain Willoughby and Mr Hurst of their duty to disclose any relevant material in the way of working notes, correspondence and the like, which had come into existence during their consideration of this case.

	That material was duly disclosed.  It revealed extensive correspondence between the experts, and some correspondence between at least one of the experts and junior counsel for the Crown, Mr Sellick.  The material was sent first to the  Crown Prosecution Service, who acted merely as a post box and forwarded it, unread, to Mr Lissack.  He received the correspondence disclosed by Captain Willoughby in early April 1997.  Mr Hurst took rather longer to disclose his correspondence, finally disclosing it some weeks later.  Mr Lissack, having read the correspondence disclosed by Captain Willoughby, took the view that Captain Willoughby, in the event, was significantly compromised by the content of that correspondence.  Through the correspondence, Captain Willoughby could be demonstrated to be willing to change his evidence if he was told or asked to do so either by Mr Hurst or perhaps by junior counsel for the Crown, it being apparent that there had been extensive and undocumented contact between junior counsel and the experts.  Further, correspondence could be said to demonstrate that Captain Willoughby might change his evidence if he thought that merging his opinion with that of Mr Hurst would be to his personal or professional advantage.  

	By the time Mr Hurst's correspondence was disclosed, there was, in my judgment and having considering the whole of the correspondence, clear evidence within it of partiality and lack of independence.  There was wholly inappropriate talk of making common cause against the defence (on one occasion going as far as to describe the defence as "the enemy").  Such an approach by experts is wholly wrong.  Even allowing for the robust approach of two old salts to the matter in hand, the situation was seriously disturbing.  Mr Hurst, in addition to the question mark over his health, was to some extent tainted by his connection and correspondence with Captain Willoughby.  

	Having reflected on the situation and sought independent advice from other counsel, Mr Lissack advised that the whole of the correspondence should be disclosed to the defence.  In my judgment, he acted entirely properly by so doing.  But in my judgment, at least in hindsight, in so doing the consequence was that the Crown could not, in reality, rely upon either expert.  The gravity of the situation is demonstrated by the fact that junior counsel, Mr Sellick, considered himself to be so compromised that he withdrew from the case.  

	Urgent efforts were made to find an untainted expert who would be able to express a detached professional view on the matters hitherto dealt with by Captain Willoughby and Mr Hurst.  A Mr Scott was identified.  He is a highly experienced sailor with considerable knowledge of square-rigged sailing.  He was instructed to consider all the material in the case, except the statements, records, letters, charts and exhibits of Captain Willoughby and Mr Hurst.  In addition, he was not shown the report of the defence expert, Captain Briggs.  Mr Scott produced a statement dated 20 May 1997, which was served on the defence by a notice of additional evidence dated 30 May 1997, together with a letter informing the defence that the prosecution did not intend to rely on the evidence of Mr Hurst or Captain Willoughby.  However, the Crown are prepared to tender Captain Willoughby for cross‑examination and to tender Mr Hurst unless his health prevents his giving evidence. 
		
	I have no hesitation in concluding that this is a highly disturbing and very regrettable state of affairs.  The trial is due to start in two weeks' time.  Mr Jones, on behalf of the defendant, submits that I should not permit the prosecution to lead the evidence of Mr Scott.  It is said that the service of the proposed evidence amounts to a manipulation of the court processes and is an abuse of process.  It is said that, in effect, when the prosecution realised that the correspondence would provide no doubt welcome ammunition for the defence to fire at the prosecution experts, they sought to obtain a further expert and, having found him, abandoned their initial experts.  

	I am invited to exclude the evidence of Mr Scott, either under the court's inherent powers or under s 78 of the Police and Criminal Evidence Act.  Undoubtedly I have the power so to direct.  In exercising that power, I must have at the centre of my consideration the question of fairness.  Of course fairness must extend to the defendant, but fairness is not a one-way street.  It has to be seen and considered in the context of the prosecution process as a whole, which requires fairness not only to the defendant but to the victim, to the families of the victims, to the state and to justice generally.  
	Applying those principles, I am left in no doubt that fairness requires me to permit the prosecution to lead the evidence of Mr Scott.  His conclusions on the essential elements of the prosecution case are identical to those reached by Captain Willoughby and Mr Hurst, though (it should be said) expressed in rather more moderate and detached language.  Thus the defence are not, in my judgment, prejudiced in any way by the change in personality of the expert.  

	If I declined to admit the evidence of Mr Scott, the prosecution would be severely hampered and considerably prejudiced.  Mr Jones submits that they have brought that situation on themselves by the way in which the experts and perhaps junior counsel have behaved and so should be penalised by not being permitted to seek to remedy the situation.  I do not accept that submission.  The defendant is entitled to a fair trial, but so are the prosecution.  

	Mr Scott makes certain criticisms of the defendant which were not made by the earlier experts and which find no resonance in the particularised indictment. I do not propose to allow the prosecution to lead evidence of any criticisms which have not already been made by either Mr Hurst or Captain Willoughby.  Mr Jones submits that Mr Scott will not be able to deal in cross‑examination with suggestions put to him without recourse to some of those hitherto unexpressed criticisms.  That depends on the line of cross‑examination, which I cannot and do not seek to predict.  It is to be hoped that Mr Scott will be able to avoid reference to those criticisms which seem to me to be peripheral to the central matters in this case.  If Mr Jones chooses to cross‑examine so as to expose those other matters, that will be for him to decide.  It is not a ground for excluding his evidence.  

	The second matter raised concerns the other witnesses whom the prosecution propose to call at trial.  At the committal proceedings the prosecution relied on the evidence of four members of the crew: Mr Purser, the second mate; Mr Howells, the helmsman; and Mr Ludlow and Mr. Maunder, both carpenters working on the refit of the vessel.  Statements were taken from a number of other members of the crew, in particular a Mr Bennett, the mate, and Mr Campbell, the chief engineer.  Statements were also taken from Mr Chatfield, a deckhand, Mr Croome, a boatman, Mr McLaughlan, a bosun, and Mr Bowen, an assistant cook.  Mr Jones submits that the prosecution should be required to call each of those witnesses to give evidence at trial.  He draws my attention particularly to the potential evidence of Mr Bennett who may be able to give.  Mr Bennett, in the course of a statement made to the police, expressed the view that the defendant had shown sound seamanship and that the vessel was in extremely good condition with adequate equipment.  He made no criticism of the course taken by the defendant on the afternoon of the disaster, nor of his handling of the final emergency.  Mr Campbell was below deck in the vicinity of the engines when they failed, and in statements to the police he spoke of the condition of the ship's fuel system, the quality of the fuel and his views on the probable cause of the engine failure.  

	Neither Mr Bennett nor Mr Campbell, nor indeed any other member of the crew which I have identified, gave evidence at committal, nor were their statements served as part of the prosecution case.  

	Another area of the case concerns a prosecution witness, Mr Borman, who is a marine engineer.  His statement did form part of the committal documents.  Its conclusion as to the cause of the engine failure was that the probabilities were that the fuel filters became clogged with contaminated fuel but he would not positively confirm that opinion.  His opinion appears to have been based, if not entirely, certainly to a very large and overwhelming extent, on the content of the earlier witness statements made by Mr Campbell.  The Crown have indicated that they no longer seek to rely on Mr Borman but will tender him for cross‑examination.  

	Mr Jones submits that I should require, or at least request, the Crown to call all these witnesses.  He submits that the law is that the prosecution must call all witnesses who can give material evidence as to the primary facts of the case unless, for good reason, the prosecution regards their evidence as unnecessary, unreliable, repetitive or tainted.  It is not a good reason, he submits, that the witness gives a version of events which is unhelpful to the prosecution or inconsistent with the evidence of other witnesses.  It is the duty of the prosecution to place all the evidence before the jury, submits Mr Jones, from whatever source and however inconsistent with the allegations made by the prosecution. That should be done unless there is some particular reason to regard that witness with reserve.  The mere fact that a witness contradicts the evidence of others is not, without more, sufficient justification for not calling him.  

	In my judgment, the law on this topic is clear.  I take it from R v Kenneth Russell-Jones [1995] 1 Cr App R 538, as illustrated by R v Haringey Justices [1996] QB 351 and R v Richardson [1994] 98 Cr App R 174.  It is unnecessary in this judgment to rehearse the judgments of those decisions.  In my judgment, it is plain beyond peradventure that the prosecution have an unfettered discretion in deciding which statement to serve for the purpose of committal.  There is no obligation upon them to serve at committal all those persons who are able to give evidence of the primary facts.  Of course, if they choose not to do so, certain consequences may follow.  Comment may be made -- and perhaps strong comment -- on the absence of the witness from the prosecution case.  The defence may themselves choose to call the witness.  Of particular relevance in this case is the evidential rule that the relevant facts upon which an expert opinion is based must be proved before that expert opinion can have any weight in the context of the case.  All these circumstances may ultimately redound to the disadvantage of the prosecution.  But that is their problem, and they exercise their clear and unfettered discretion in that knowledge.  Thus there is no duty upon the prosecution to call or to tender either Mr Bennett, Mr. Campbell or any other member of the crew who is not presently proposed to be called by the Crown.  As to Mr Borman, the wide discretion granted to the prosecution fully entitles them to tender this witness rather than to lead his evidence.  

	I therefore reject the submissions made to me by Mr Jones on this issue.  I note, however, that Mr Lissack has undertaken to use the resources available to the Crown to seek to have at court such witnesses as can be found who were members of the crew so that, if required, they may be called on behalf of the defence.  

	Mr Jones reminds the prosecution, through his submissions to me, of the responsibility of prosecuting counsel to act fairly and impartially, and in particular not to seek to inflame the jury in his opening remarks by the use of emotive or sensational language.  I am confident that Mr. Lissack is fully conscious of that responsibility, and I have every expectation that he will discharge it properly.  In the particular circumstances of this case, I think it appropriate to direct, and I do so direct, that the prosecution should provide a note of their opening to the jury.  That can, of course, be in note form and I do not, by that direction, require Mr Lissack to produce a script of every word he proposes to say.  It should, however, make plain what evidential matters are to be relied on by the Crown in their opening.  

	May I, with some diffidence, end this short extempore judgment with this observation.  Emotions about cases of this nature can run high, not only amongst those who are sadly caught up in them but at the Bar as well.  Passions are easily aroused when there has been an unfortunate sequence of events such as that surrounding the evidence of Captain Willoughby and Mr Hurst.  I am confident that, with counsel of such eminence representing the defendant and the prosecution, they will both remember at all times that emotion can be the enemy of justice and that their respective causes may not be best served by personalising the issues to be resolved.  

	Yes, Mr Jones?
MR JONES:  My Lord, I hope I can make one further observation.  It has occurred to me overnight to apply to the Court to be allowed to make, at the conclusion of my learned friend's opening, a short opening of my own.  

MR JUSTICE BUTTERFIELD:  Identifying the issues?

MR JONES:  Identifying the issues, and saying what our defence is going to be and how we are going to proceed in cross-examination. 

MR JUSTICE BUTTERFIELD:  Mr Lissack?

MR LISSACK:  I think that is a very good idea, and we have no objection.  

MR JUSTICE BUTTERFIELD:  Good.  Hopefully this new spirit of amity will continue to prevail.  Yes, I think that is a very good idea, Mr Jones, and I approve of it.  You will no doubt be providing a copy of your opening note to Mr Lissack, again obviously in note form.  

MR JONES:  Yes, I shall.

MR JUSTICE BUTTERFIELD:  Now, Mr Lissack, you wanted to deal with certain housekeeping matters? 

MR LISSACK:  Yes, they are tedious matters to detain your Lordship with, but it was just really this.  Would it be more convenient, does your Lordship think, for the Crown to begin the opening on the Tuesday?

JUDGE BUTTERFIELD:  I think it might. Presumably the case estimate remains the same, does it?  It is difficult to know.

MR LISSACK:  It is.  

MR JUSTICE BUTTERFIELD:  If Mr Jones chooses to pursue one particular line of his case, which he may, and he now has the material to do it, one can imagine the cross-examination of Captain Willoughby, for example, extending over a while?  

MR LISSACK:  Yes.

MR JUSTICE BUTTERFIELD:  I do not know, but I do not want to hold anyone to ransom.  It is certainly going to finish by the end of August, is it? 

MR JONES:  My Lord, I would have thought it is at most a 
six-week -- so far as the -----

MR JUSTICE BUTTERFIELD:  Yes, I am grateful.  What I am anxious to do is to give the prospective jurors, all of whom gladly volunteer on day one, the opportunity to go home and for their wives or husbands to say:  "What on earth are you doing, agreeing to sit for six weeks?  Have you not remembered we are going on holiday," and for the juror to say:  "Yes, that is why I volunteered!"  And also, there may be administrative matters to deal with, or evidential matters.  

MR LISSACK:  Yes, exactly.  My Lord, thank you.  That is all I 
need -----

MR JUSTICE BUTTERFIELD:  I did raise, I think, at the last pre-trial review, the question of any questions to the jury.

MR LISSACK:  Which I have done nothing about, and I have to confess that.

MR JUSTICE BUTTERFIELD:  Well, I simply remind you both of that, and whether you wish me to consider whether it is appropriate to ask any question of them.  It was also, I think, proposed to have available a list of the names of the witnesses on whom the prosecution propose to rely with sufficient identification to enable the jury to see that list and understand it, so that they may consider it before coming into court, rather than in court.  It has certainly been my experience that when lists are read out, people are in such a state of apprehension about what is going to happen to them that they cannot really apply their mind.  May I suggest, Mr Lissack, that you, or your junior, perhaps, construct such a list, but please agree it with the defence before it is shown to the potential jurors.

MR LISSACK:  Would it be appropriate to limit it to live witnesses, or would your Lordship think all the witnesses in the case?

MR JUSTICE BUTTERFIELD:  If there is no dispute as to any witness' evidence, it does not matter if that witness is the next-door neighbour of a juror, does it?  I should think live witnesses would be sufficient.  

MR LISSACK:  Thank you.

MR JUSTICE BUTTERFIELD:  Is there anything further I can deal with, Mr Jones?

MR JONES:  No, thank you, my Lord.  

MR JUSTICE BUTTERFIELD:  You have no application to make?  Your solicitor is -----

MR JONES:  Yes, my Lord, I want to consider the question of costs.  
MR JUSTICE BUTTERFIELD:  Yes, I thought you might.

MR JONES:  I am sure that is what he wants.

MR JUSTICE BUTTERFIELD:  You do not want to do that now?

MR JONES:  My Lord, the argument would come under the costs in criminal cases regulations in the current edition of Archbold at para 3, page 742.

MR JUSTICE BUTTERFIELD:  Yes.  Do you want us to look at it or -- if you are simply saying that you want to reserve your position on it -----

MR JONES:  I would like to reserve it, my Lord.

MR JUSTICE BUTTERFIELD:  That is fine.

MR JONES:  And also to try to make calculations.  Perhaps it could be raised at some moment in the trial. I expect there will be some, when we have a break with the jury.  

MR JUSTICE BUTTERFIELD:  Yes.  Mr Jones, as you will understand from the intervention that I made, I am not unsympathetic to such an application, depending on how it is made and for what. 

MR JONES:  Yes, my Lord.

MR JUSTICE BUTTERFIELD:  And to what matters it goes.  Yes, we will deal with it at some stage in the course of the trial.  Thank you very much.

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