No: 9705845/W4‑9705896/W4

IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                            Thursday 15th October 1998
 
                    B E F O R E :
 
                THE VICE PRESIDENT
                (LORD JUSTICE ROSE)
 
                  MR JUSTICE SACHS

                         and
 
                  MR JUSTICE MOSES
 
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                     R E G I N A
 
                       ‑ v ‑
 
               FERGAL PATRICK SCOLLAN
                TREVOR WILLIAM SMITH
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
      Tel No: 0171 421  4040   Fax No: 0171 831 8838
        (Official Shorthand Writers to the Court)
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
 
MR S BATTEN QC and MR J DEIN appeared on behalf of the Appellant SCOLLAN
MR J NUTTING QC and MR J KNOWLES appeared on behalf of the Appellant SMITH
MR E BEVAN QC appeared on behalf of the Crown
 
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                      JUDGMENT
             (As approved by the Court)
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                   Crown Copyright 
                          Thursday 15th October 1998
THE VICE PRESIDENT:  On 1st August 1997, at Lewes Crown Court, before Wright J and a jury, the appellants were both convicted of false imprisonment and murder, and sentenced to 2 years' imprisonment for the former offence, and life imprisonment concurrently for the latter.  Two co‑accused, Simon Williams and Neisha Williams, were acquitted of murder; Neisha was convicted of false imprisonment and sentenced to 2 years' imprisonment; Simon Williams was acquitted of false imprisonment and a count which lay against him alone of kidnapping.
      The appellant's applications for leave to appeal against conviction were referred to this Court by the Registrar.  We granted leave to appeal in the course of the hearing before us.
      The deceased was a woman called Katrina Taylor. Simon and Neisha Williams were brother and sister.  The appellant Smith was the father of Neisha's children, and the appellant Scollan was his friend and flatmate. There was a serious burglary at Neisha's home and all four co‑accused were anxious to find out who had committed it.  They discovered that the perpetrators were the deceased, Katrina Taylor and two male associates.  For several weeks the deceased hid.  But  eventually Simon Williams spotted her outside a hotel and persuaded her to get into his car and accompany him to his home where his sister Neisha was.  She telephoned the appellants. They came to the house. The deceased remained in the house for several hours.  Her body was discovered early the following morning, in a nearby churchyard.  She had been stabbed through the heart.
      There was a cut‑throat defence between the two pairs of accused.  On the one hand, Simon and Neisha Williams, who said that the deceased had left the house with the appellants who had subsequently returned without her, and the appellants, who said that the deceased had left the house with Simon Williams who had subsequently returned without her.
      The facts in a little more detail were these.  The deceased was a heroin addict.  On 8th May 1996, together with a man called Laurie and another called Cosham, she broke into Neisha Williams' house, in Brighton, while Neisha and her children were away.  A number of electrical items were stolen.  Later, the burglars returned and, in the course of stealing the washing machine, flooded the house and also set fire to the furniture.
      The next day, Neisha returned.  She was angry at what she discovered.  She rang the appellant Smith from  her sister's house and asked him to come down to Brighton from London.  She said to her sister "Whoever did this is dead".  Later that day, she was told that the deceased's sister Kerry knew who was responsible for the burglary.  She asked that Neisha visit her alone. Neisha arrived 20 minutes later at Kerry's house, with Simon Williams and their brother Jason, the two appellants and two men called Wallace and Fleming. Kerry told them that Laurie had done the burglary, but she insisted that the deceased had had nothing to do with it.  The group, particularly the appellant Scollan, were described as angry and aggressive.  They demanded information as to Laurie's whereabouts and went off in search of him.  There was evidence that, over the next day or two, an angry group, of which both appellants were part, searched for the burglars, including the deceased, generated fear and used violence, which included stabbing Cosham in the leg with a screwdriver.
      Thereafter, the appellants returned to London. But Simon Williams continued, over the next few weeks, looking for the deceased, and saying that he was going to 'get her'.  Neisha had not reported the burglary to the police but the deceased's sister Kerry had.  In consequence, Laurie was arrested and detained in custody. The deceased was arrested, but she was bailed  to a hostel in Brighton.
      On 4th July the crucial events occurred.  At that time, because of the damage to her house, Neisha had moved into her brother Simon's house, at 77 Centurion Road, Brighton.  For about a week before 4th July, her children had been staying with the appellant Smith, in London, and on the 4th he brought them back to Brighton by train, accompanied by Scollan.  Meanwhile, at about 6.00 pm, Simon Williams spotted the deceased sitting on the steps outside a hotel in Brighton.  He stopped his car. He got out. The deceased ran away into the hotel. According to the manageress, she said "that black guy is going to kill me". Williams went into the hotel and the deceased said, according to the manageress, "Don't hurt me, I know you're going to hurt me." The manageress said in her police statement that Williams had dragged the deceased to the car.  But in evidence she said the deceased had gone under her own steam.
      Williams' girlfriend, Sarah Jackson, gave evidence that, in the car, the deceased denied having had anything to do with the burglary and kept saying "Don't do anything to me".  At all events, she went in the car to
Centurion Road and arrived there at about 6.15. According to Sarah Jackson, she went in of her own  volition.  Neisha was inside.  There were angry words between her and the deceased, the culmination of which was that the deceased admitted having sold a stereo system, belonging to Neisha, she, the deceased, having acted as lookout at the burglary.  It was agreed that the deceased would pay Neisha for her losses at £10 a fortnight, out of her Giro cheque.  However, within a very short time of the deceased having arrived at No 77, Neisha had made a telephone call to the appellant Smith, on his mobile telephone.  At that time, he was on the train with Scollan travelling from Brighton to London. He got as far as East Croydon.  Having had the telephone conversation with Neisha, he and the appellant Scollan disembarked from the train and returned to Brighton. They had been told that the deceased was at No 77.
      To that house they returned at about 7.30.  Sarah Jackson described them as hostile.  At one stage, she had gone upstairs.  She said she heard Neisha come upstairs and say through the door, "Trevor has got a knife out".  Sarah left that house at about 8 15; Simon Williams drove her home.  Thereafter, apart from the deceased, there were only the four accused in that house.
      There was no direct evidence of what occurred between that time and the death of the deceased.  It  appears that her body, which was found in the nearby churchyard the following morning at 8.00 am, had not been there at 10.45 pm the previous evening.  There was evidence of a disturbance, including screaming, in the churchyard, at around 11.15 pm the previous evening.
      The pathologist's evidence was that the deceased had been stabbed five times with a knife, and her death had been almost instantaneous following two stab wounds to the heart.  The time of death was estimated at between 10.30 pm and 3.30 am.  There were two possible scenarios, the pathologist said, as to how that death had occurred:  either she had been held by one man from behind while another stabbed her from the front, or one tall, strong man had held her from behind with his left arm and stabbed her in the front with his right. She must have been restrained because there were very few defensive wounds to her hands and arms. There would be little or no bloodstaining on her attacker or on the knife.
      At about midnight, on the night of the murder, the appellants, who had missed the last train back to London, persuaded Simon Williams to drive them from Brighton to London Victoria.  He then returned to Brighton.  They caught the night bus to their home in Cricklewood.  From there they went by taxi to Purley  Avenue where their girlfriends were.  They arrived at about 3.00 am, offering no explanation for being so late.
      Smith's girlfriend, Jennifer Ioannou, gave evidence.  Her diary was exhibited.  It had an entry purporting to show that Smith had spent the whole of the evening of 4th July with her.  She gave evidence that both the appellants spent the weekend of 6th to 8th July at her home and they were "subdued".  On 6th July, Smith telephoned a police station to contact Neisha, following the arrest of Simon Williams for the murder. On 9th July, Ioannou gave evidence of them all being together in a taxi when Scollan received a telephone call from his brother.  As a result, she gave the appellants the key to her house while she went on to work.
      On the evening of 9th July, they asked if they could use her father's flat, which was some distance away.  She agreed, and there the appellants lay low until they were arrested by the police on 24th July.
      Ioannou said they told her they were afraid of people who might be coming from Brighton, though she also said she knew the police had raided their home on 9th July and that they were hiding from the police.  She gave evidence that she had had a conversation with both appellants about them going to Cyprus, and Smith had  asked if extradition was possible from Cyprus, and passports had also been discussed.  There was a further event on 9th July, in that Scollan told his girlfriend, Caroline O'Callaghan, that their relationship was at an end and he could no longer see her.
      There was evidence that Simon Williams disposed of the knife which was the murder weapon down a drain.  It had come from No 77 Centurion Road.  In due course he gave evidence of trying to destroy it with bolt cutters. The tip of the knife was found beneath the linoleum in the kitchen at No 77.
      Simon Williams was arrested on 6th July while he was driving Neisha and her children. He was told he was being arrested for the murder of the deceased. Telephone records showed that Neisha spoke to Smith that night.  Smith was to maintain that he believed that Williams had only been arrested for kidnapping but the Crown contended that it was inconceivable that he should have so understood matters, because he must have known from Neisha that the arrest was for murder.
      The appellants were arrested at Ioannou's flat in Dutton Hall on 24th July, and Scollan said at that
stage "Who grassed us up?"
      Neisha was interviewed on 6th July, as a witness. She lied in almost every respect.  The following day she  was arrested for murder and re‑interviewed.  On the advice of her solicitor, she made no comment.  The judge described that advice as wholly bad and directed the jury to draw no inference adverse to her from her failure to answer questions.  Simon Williams was interviewed on a number of occasions and told lies.  He admitted having picked up the deceased on the seafront, but said he had let her go. He denied that she had been to his house and denied that the appellants had been there at the relevant time.  He claimed, in evidence, that he had lied because he was frightened of the appellants.
      The appellant Smith was interviewed on 24th July. He said he dropped off his children on the 4th and had returned to London early in the evening and had not returned.  He agreed he was looking for the perpetrators of the burglary about which he was angry; he wanted to beat them up.  He claimed to have last seen the deceased the previous year.  He claimed that he and Scollan had hidden from the police because they had cannabis plants at their home in Cricklewood, which they knew the police had raided.  He agreed, eventually, that he knew because of a telephone conversation with Scollan's brother that they were wanted for murder.  In evidence he accepted that he had told lies in interview but said that was  because he realised Simon Williams must have killed the deceased and he was afraid that he too might be killed.
      Scollan was interviewed the day after his arrest. He refused to answer questions.  He read a prepared statement to the effect that he was not guilty but he was extremely frightened and he would explain everything in court.
      Before the jury Simon Williams gave evidence.  He agreed that he had chased the deceased into the hotel on 4th July, but said she had got into his car willingly. There had been a shouting match when they had first reached No 77, but it had calmed down once the deceased admitted responsibility for the burglary and agreed to repayment.  He knew that Neisha had telephoned Smith and he said that when the appellants arrived they were questioning the deceased in a bossy manner, but later on everything in the house was quiet, when he took Sarah home. When he returned things were much the same. He and others had smoked cannabis. The deceased had stayed there until about 10.30, when the appellants had left to catch their train and the deceased had left with them. About half‑an‑hour later, the appellants had returned. Scollan had gone straight to the bathroom. Smith said they had missed the train and the deceased was dead.  He had reluctantly agreed to drive them to London.  During  the journey very little was said, except that Scollan had said that he should get rid of the knife.
      He had returned to Brighton and had gone to bed. The following day he had gone to work as usual but he heard local news which reminded him of his conversation about the knife with Scollan.  Having failed to destroy it with bolt cutters, he had disposed of it down a drain, as we have said.
      Neisha Williams gave evidence that she and Smith had lived together until 1995. She told him about the burglary because she wanted money from him to replace the missing and damaged items, and he had been extremely angry about the fact that the children might have been injured by the house being set on fire.
      On 4th July the appellants had brought the children back from London and then gone off to catch the 5.50 pm train from Brighton.  Just after 6.00, her brother had brought the deceased to the house, and she had immediately telephoned Smith on his mobile telephone.  Her explanation for that was that if he had discovered that the deceased had been in the house and he had not been told, he would have been very angry.
      She claimed that the deceased had remained in the flat throughout that evening of her own free will and no one had tried to stop her leaving.  When the appellants  arrived, Smith was very angry, shouting at the deceased and, at one stage, Scollan had fetched a knife from the kitchen which he held against the deceased's throat. She had gone upstairs at that stage to tell Simon what was happening.  She said she was too scared to interfere.
      She learnt that the deceased was supposed to be back at her bail hostel by 11.00 pm. The appellants left with the deceased, and she Neisha noticed the knife was missing.  But she had no idea what the appellants had in mind for the deceased.  After some time the appellants returned. Scollan went to the basement, where the bathroom was. Smith appeared sweaty, edgy and frightened.  She was not told that the deceased was dead.
      Later, during the journey of the three of them driven by Williams to London, she spoke to Smith on his mobile telephone.  He told her to tell anyone who asked that he had not been in Brighton that day.  Thereafter, Smith had telephoned her many times and reiterated that she was to say that.  She stuck to that lie in the statement which she made to the police on 6th July.  She had remained on affectionate terms with him until 4 months before the trial, when she discovered his relationship with Ioannou and, at that stage, she said  she decided to tell the truth.
      The appellant Smith gave evidence that he had two previous convictions for robbery, in the course of which knives had been used by his co‑accused.  He described his relationship with Neisha, and admitted that he wanted to find out who the perpetrators of the burglary were and to beat them up.  He described the telephone call during his train journey back to London on 4th July. He said he had agreed to return and persuaded Scollan to go with him for company.  When they got to
Centurion Road, at about 7.30, the deceased was crying and Neisha was shouting at her.  Everything was resolved however by about 8.00 pm, and they sat around smoking cannabis and watching television.  He checked that the last train was about 11.00, but he wanted some more cannabis and was waiting for that to arrive.
      The deceased said she had to be back at her hostel by 11.00 pm and Simon Williams went off with her.  He returned after 40 or 50 minutes.  He appeared perfectly normal and in due course he reluctantly agreed to drive them back to London.  Smith agreed that he had made many telephone calls during the journey, including several to Neisha, but he denied that involved any discussion as to what had happened to the deceased.
      He went on to describe going to Cricklewood and  events at Jennifer Ioannou's house. The following day he had again had many telephone calls with Neisha. That was quite normal; they were in relation to the children.  He said, when he spoke to her on 6th July, she told him that Simon Williams had been arrested for kidnapping the deceased. Nothing was said of him having been arrested for murder.  It was not until the morning of 9th July, when he heard about the police raid on his home, that he knew the deceased was dead.  He feared that he was in danger from Simon Williams, whom he believed to be the murderer.  He agreed discussing with Jennifer about going to Cyprus but that was just for a holiday.  He agreed lying in interview, but that was because of fear of Simon Williams, and he denied persuading Jennifer Ioannou to make false entries in her diary with a view to providing him with an alibi.  He agreed that, while in custody, he had written a large number of letters to Neisha, intended to 'keep her sweet' and to persuade her to stick to her story that he had not been in Brighton. He was cross‑examined by Scollan's counsel, in terms to which we shall later come, as to the date when he first knew about the murder.
      The appellant Scollan gave evidence which accorded with that of Smith. In particular, he too said that he first knew about the murder on 9th July.  He said, by  reference to his comment to the police on arrest "Who grassed us up?" that he was referring to the disclosure of their hiding place.  His reason for failing to answer questions in interview was his extreme fear of Simon Williams.
      We turn to the appeal.  Not all the matters canvassed in the grounds of appeal of the two appellants were argued before us. Mr Nutting QC, for Smith, in four submissions, the first three of which were adopted by Mr Batten QC, for Scollan, contended, first, that there was no case to answer on murder and false imprisonment and the judge was wrong to reject a submission to that effect at the close of the prosecution case. The judge, having reviewed the evidence showing, as was conceded, that the appellants were part of a group, searching for the deceased, and offering violence to others believed to be involved in the burglary, was entitled to conclude that there was evidence of the appellants being party to an agreement to punish the deceased. But, submitted Mr Nutting, in the absence of any evidence as to who took the knife from the house and as to who knew it had been taken, the judge was not entitled to conclude that there was evidence that either of the appellants was party to an agreement to kill the deceased or cause her serious harm with a knife.  Although there was evidence the  deceased was being held against her will at No 77, there was no evidence that she had actually been injured there.
      In the light of authority since these appellants were tried, R v Powell and English [1997] 3 WLR, R v Appleby (unreported, 23rd January 1998) and R v Uddin (unreported, 19th March 1998), Mr Nutting submitted there were two issues for the judge to consider:  was there evidence showing a joint enterprise to kill or cause serious harm?  Was there evidence that the use of knives was foreseen or contemplated by those in the joint enterprise?  He submitted that the judge's conclusion that "all four must have realised, must have been aware that this girl was being taken from the house and that a knife was being taken at the same time" was not supported by any evidence.
      Mr Batten QC added to this submission that the pathologist's evidence was that there could have been one, two, three or four involved in the stabbing, and although the knife came from No 77, there was no evidence as to the expectations of anyone remaining in the house when the girl was taken out.
      For the Crown, Mr Bevan QC submitted there was ample evidence to implicate both appellants in a plan to cause at least grievous bodily harm to Katrina Taylor by  stabbing her.  She had been kept in the house beyond the time when she was due back at her hostel; the knife which stabbed her was taken from the house beforehand and back there afterwards. Prima facie, the four in the house were party to the joint enterprise to stab.  These events occurred against a background which included a burglary and fire effecting Smith's former girlfriend and his children, Scollan being a close friend and flatmate of Smith, both being part of a group seeking revenge against the burglars and both being present when Cosham was stabbed with a screwdriver. Katrina Taylor was petrified when she was spotted by Simon Williams and taken to No 77.  When telephoned by Neisha, both appellants left their London bound train and returned to No 77, remaining in Brighton until after the last London train had gone.  Eventually, following repeated telephone contact with Neisha during their car journey to London while driven by Williams, and having first paid a visit to their flat, the appellants reached their girlfriends at 3.00 am without any explanation.
      On 6th July, Smith had spoken to Neisha following Simon Williams' arrest for murder in her presence.  On the 9th, following a further telephone call, the appellants had made arrangements to hide, and had discussed fleeing the country.  On arrest, Smith had  lied about when he had last seen the deceased and Scollan had said nothing in interview.
      In our judgment, when the terms of the very full ruling which the judge gave are read as a whole, he directed himself correctly in accordance with both the law, as it was at the time of trial, and the law in the subsequent authorities to which Mr Nutting referred: that is, that there must be evidence in relation to each defendant that he was party to an agreement to cause the death of or serious harm to Katrina Taylor by the use of a knife.  See in particular the transcripts of his ruling at page 6F‑G, 7E‑F, 10B‑C, 10G‑11B, 12A‑C, 14F, 15E‑F, 18G‑19A and 19D‑F.  Furthermore, we are satisfied that the circumstantial evidence identified by Mr Bevan afforded, cumulatively, a proper and sufficient case for the jury to consider against both appellants in relation both to murder and false imprisonment. The judge was therefore right to reject the defence submissions and ground 1 fails.
      Mr Nutting's second submission was that the judge's directions in relation to character were defective in four respects. First, he failed to remind the jury of the contents of an exhibited pink file which spoke of Smith's charity work. Secondly, he failed to refer to the evidence of a prison officer as to Smith's  exemplary behaviour in custody. Thirdly, he failed to direct the jury that the appellants' previous convictions in relation to knives were relevant only to his credibility, and not to propensity.  Fourthly, the credibility of Simon and Neisha Williams, whose evidence was crucial to the case against Smith and Scollan, was unfairly highlighted by the last minute direction at the end of the summing‑up, prompted by prosecuting counsel, that the Williamses were of good character: the defence was therefore undermined.
      There is no substance in the first two of these complaints. The judge was under no obligation to rehearse all the evidence.  As to previous convictions in relation to knives, the relevant passage in the summing‑up is at page 129C‑G.  Having referred to Scollan's convictions for assault occasioning actual bodily harm and carrying a knife, and to Smith's two convictions for robbery when knives were used, the judge said:
"The significance of that evidence that he had been involved in criminal activities when knives were used, as relied upon by Miss Woodley and Mr Kershen, is pretty obvious, but I need hardly say to you that you do not decide this case one way or the other on the existence or absence of previous convictions, you decide this case, as I have told you, on the evidence in this case. One of the basic principles of English criminal law, both of law and indeed of justice, is that we do not convict people on their records. You do not give a dog a bad name and hang him.  The relevance of that evidence is to enable you to put into context the nature,  character and personality of the persons who make these allegations against their co‑defendants, enabling you to decide where you think the truth lies.  It may also enable you to put into context the truthfulness or otherwise of Mr Smith's assertion that he made to Mr Bevan at the very outset of his cross‑examination [that he was not a violent man]." 
      Mr Bevan accepted that the phrase "the significance is pretty obvious" was unfortunate.  But he submitted, this passage, read as a whole, made it plain that the jury could only convict on evidence and not past record. We cannot agree.  It seems to us that, the judge having first said that the significance of knives was "pretty obvious", he did not, as he might have done, remedy the situation by giving an express direction that the knives' convictions were of no significance, save as to credibility.  This passage in the summing‑up, in our judgment, amounted to a misdirection.
      The direction about the Williamses' character came about in this way.  The judge having concluded his summing‑up, Mr Bevan drew attention to the provisions in Archbold arising from R v Nye 75 Cr App R 247, and the circumstances in which a person with convictions might be entitled to present himself as being of good character.  The point had not apparently been canvassed by anyone at an earlier stage. Mr Bevan said, at the summing‑up transcript page 157A:
"Your Lordship will forgive me if I have this wrong. In so far as Neisha Williams is concerned I think the jury  know the position so far as character is concerned;
one shoplifting.
 
[THE JUDGE]: One shoplifting. And you would be content I treated her as a woman of good character.
 
MR BEVAN:  I would. The same in the case of Simon Williams stealing a bicycle, and the same would apply.
 
[THE JUDGE]: Very well.  I will so do.
 
Ladies and gentlemen, let me explain. Mr Bevan is content, because of the relatively minor nature of those convictions, that both Simon Williams and his sister should be treated as being persons of good character." 
The judge went on to give what, if it was appropriate, was a full and entirely correct direction as to the effect of the Williamses' good character, in that it supported their credibility and made it less likely they would be involved in serious criminal activity than persons not having a good character. The jury then retired.
      In the context of a cut‑throat defence between the Williams, on the one hand, and the appellants on the other, this direction, it was submitted, was highly prejudicial to the appellants, particularly in its timing immediately before the jury retired.  Mr Bevan plainly prompted the judge from the very best of motives, with a view to being fair to the Williamses. But the subject, as it seems to us, merited much earlier consideration, if the judge was to be in a position to exercise his discretion properly, in deciding whether or  not, in all the circumstances of the case, a good character direction ought to be given in relation to the Williamses.  With time for argument and reflection, he might have decided not to give such a direction at all. Mr Bevan, with characteristic candour, accepts, with the benefit of hindsight, that perhaps he should not have intervened as he did.  In our judgment, coming when it did, the judge's good character direction about the Williamses was potentially significantly prejudicial to the defence of the appellants, in that it bolstered the Williamses' version of events.
      Mr Nutting's third submission was that the judge gave no adequate warning as to the dangers of relying on Sarah Jackson's evidence because of the interests she might wish to serve as Simon Williams' girlfriend in minimising his role and maximising the roles of the appellants. This was particularly prejudicial because he gave such a warning in relation to the appellants' girlfriends Ioannou and O'Callaghan in these terms,
at transcript page 93C‑E:
"Jennifer Ioannou was still very
sympathetically inclined towards Trevor Smith and regarded themselves as they told you, as being engaged, and indeed Caroline O'Callaghan still feels an attachment towards Mr Scollan in so far as she has been visiting them at High Down. So that if and in so far as you think any of that part of the girls' evidence was intended to cast aspersions on either Simon or Neisha Williams you may be inclined to the view, it is a matter for you, that there may be some element of favouritism  in that aspect of their evidence and you may want to think about it and treat it with a good deal of reserve." 
      Mr Batten stressed that Sarah Jackson was a very important witness in favour of Simon Williams, in that she gave the alleged kidnapping a voluntary character, and against the appellants in describing a worsening atmosphere after their return to No 77 on the evening of the 4th. Mr Bevan drew attention to a passage earlier in the summing‑up where, when dealing with witnesses generally, the judge referred to some of them
having "had some inclinations or associations that may have affected an even handed approach".
      It is to be noted that in this passage the judge said he would "look at it later on". In the event, as we have said, he gave directions urging caution in relation to the appellants' girlfriends, but gave no such direction in relation to Sarah Jackson, who helped Simon Williams. In our judgment, this was a non‑direction, giving rise to the possibility of prejudice against the appellants.
      Mr Nutting's fourth submission related only to Smith and was based on alleged inadequacies in the summing‑up about the letters passing between Smith and Neisha which, it is common ground, were intended
to 'keep her sweet' and which were said to show she did  not fear him.  We find no inadequacy in the judge's reference to the letters, which were all in the jury's possession. That ground was unarguable.
      Mr Batten made the running, supported by Mr Nutting, on a ground of appeal critical of the conduct of junior counsel, leading for Scollan's defence at trial. It is expressed in the grounds of appeal in this way:
"The convictions are unsafe having regard to the manner in which a crucial aspect of Scollan's instructions was dealt with by counsel during the trial." 
      Prior to the hearing of the appeal, this Court had been supplied with an affidavit by leading counsel for Smith, exhibiting certain contemporaneous documents and a confirmatory affidavit from his junior and explanatory letters, but no documents, from Scollan's counsel, who indicated, however, that relevant notebooks and notes were in existence.  At the outset of the hearing before us, we directed that these notebooks and notes should be disclosed to counsel and the Court, and they were.  They are detailed and, apparently, comprehensive.
      We mention these matters because they explain the way in which this ground, as pursued before the Court, particularly on behalf of Scollan, differed markedly from counsel's skeleton argument. This had been based on Scollan's own initial handwritten ground that his  barrister failed to follow his instructions as to the date on which he first knew about the murder.  In the light of the material in counsel's notes and following an adjournment to consult his client, Mr Batten accepted that this ground could not be pursued on this basis.  It could not be said that counsel did something without foundation and was seriously at fault so as to support an allegation of flagrant incompetence such as the authorities describe.  Despite Scollan's sense of grievance persistently expressed during the trial and subsequently, Mr Batten accepted that it was difficult to contend before this Court that there was more than a misunderstanding between client and counsel.
      However, he submitted, what occurred was within the terms of what Rougier J said in giving the judgment of this Court in R v Clinton (1993) 97 Cr App R 320 at 326. Having referred to R v Gautam [1988] Crim LR 109, R v Wellings (20th December 1991) and other authorities, all decided prior to the amendment of section 2(1) of the Criminal Appeal Act 1968 by the Criminal Appeal Act 1995, Rougier J said this:
"We think that the proper interpretation of the cases to which we have referred is that the Court was doing no more than providing general guidelines as to the correct approach.  The Court was rightly concerned to emphasise that where counsel had made decisions in good faith after proper consideration of the competing arguments, and, where appropriate after due discussion with his client, such decisions could not possibly be said to  render a subsequent verdict unsafe or unsatisfactory. Particularly does this apply to the decision as to whether or not to call the defendant. Conversely and, we stress, exceptionally where it is shown that the decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, it may be open to an appellate Court to set aside the verdict by reason of the terms of section 2(1)(a) of the Act.  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." 
      In our judgment, those observations are of continuing validity, despite the change of wording in section 2(1), by virtue of the provisions of the 1995 Act.
      The particular passage in the judgment upon which reliance in the present case is placed is the reference to "without proper instructions".
      In the light of all the material before this Court, the following nine matters now seem plain:
1. Scollan's original proof stated that he first knew of the murder on the date the police raided his home, which was 9th July.
 
2. Scollan, as his counsel knew, was, throughout, most anxious that his defence should be run in tandem with that of Smith.
 
 3. His instructions in conference with counsel on 16th July, repeated in further conference on 22nd July, were that 9th July was the date of his first knowledge.
 
4. During the conference on 16th July, Scollan's counsel had pointed out to him, in forceful terms, that the evidence, particularly in relation to the telephone call which Smith made on 6th July, following Williams' arrest for murder, to a police station where Neisha was, strongly suggested that Smith must have known of the murder on the 6th, and must have passed this on to his friend and flat mate Scollan.  Scollan's response to this, recorded in counsel's note, was "I can't remember if Trevor passed on this information to me, about Simon's arrest, but he must have."
 
5. Smith having given evidence that he first knew on 9th July, Scollan's counsel cross‑examined him, during the course of the trial on 23rd July, in these terms, transcript of evidence 2H:
"I want to put to you that Neisha told you on the 6th and possibly 7th July, more likely the 6th, that in fact Katrina Taylor was dead.
 
A. That's not true.
 
Q. And that you conveyed that information to Fergal Scollan?
 
A. That is not true." 
 
6. That cross‑examination evoked from Scollan in the dock immediate, apparent, dissent, in shaking his head as described by Smith's leading counsel in affidavit. It also caused consternation in Smith's legal team which led to vigorous exchanges between counsel for the two appellants, into the details of which it is unnecessary to go, save to say that each team came to believe that the other's client was seeking improperly to influence the conduct of their client's defence.
 
7. When Scollan gave evidence, he said that he first knew of the murder on 9th July.
 
8. At no stage did Scollan's counsel seek to give to the judge, jury or other counsel in the case, any explanation as to how the divergence between her cross‑examination and his evidence had arisen.
 
9. That divergence formed the subject, as Mr Bevan told us, of vigorous comment by each of the leading counsel appearing for the two Williamses and by himself as counsel for the prosecution.  The judge, in his summing‑up, referred to the matter in this way, 147B‑F:
  
"He [that is Scollan] also claimed that he also heard nothing about Katrina's death until his brother rang him on 9th July, and here is a second point, because as you were reminded about only yesterday, that is not what was put to Trevor Smith by Miss Belford on behalf of Mr Scollan.  She suggested ‑‑ again it is suggested to you no doubt upon Mr Scollan's instructions, that they were told of Katrina's death on Saturday 6th July and not that he got to hear about it from his brother on the 9th, and the suggestion to you therefore is that here he has changed his story in order to conform to the evidence that Mr Smith had given everyone when he was in the witness box, and Mr Scollan heard him, and therefore you are invited to conclude that he also is not concerned to tell you the truth as he knows it to be, but to tell a story which so far as he possibly can conforms with that which Mr Smith has already said.  It is a matter for you as to what you think about that." 
      We record as a matter of history, though it has no impact on the appeal that, on more than one occasion, including during the summing‑up, there were conferences between Scollan and his counsel in which the merits of Scollan sacking her were discussed.  In our judgment, in the light of these matters, Scollan is entitled to feel a sense of grievance that, for whatever reason, the cross‑examination of Smith as to date of knowledge was not in accordance with his instructions. In itself this would afford no ground for appeal.  But it is apparent, from the use made of this divergence by other counsel in the case and from the passage in the summing‑up which we have read, that the divergence between the cross‑examination on his behalf and the evidence which he gave, loomed large in the case, to the likely  detriment of Scollan's credibility.  Furthermore, as Mr Bevan rightly accepts, there was a serious knock‑on effect so far as Smith was concerned.  The prosecution case against him, that he had sought to persuade his girlfriend and Neisha to provide a false alibi for 4th July, that he was in the forefront of the group offering violence in the search for the burglars, and the evidence of Williams that they had lied to the police because of fear of Smith, would all have been supported if, as might well have appeared to the jury, Smith had been putting pressure on Scollan to change his account as to the date of knowledge.  Furthermore, the judge rightly directed the jury that the cases of Smith and Scollan stood or fell together.
      In our judgment, highly unusual though the circumstances of this case on this aspect are, they give rise to concern that Scollan's apparent change of story, figuring in the case as significantly as it did, may well have prejudiced the jury against both him and Smith.
      The case against these appellants was formidable. The terms of the summing‑up in relation to character and Sarah Jackson and counsel's cross‑examination of Smith, would not, separately, have rendered these convictions unsafe.  But their combined effect is such that we  cannot be confident that, had the trial proceeded properly in relation to these three matters, the jury's verdicts would necessarily have been the same.  It follows that we must regard the convictions as unsafe. Accordingly, the appeals of both appellants are allowed and their convictions are quashed.
      We should add that we have considered a letter from Scollan's counsel, dated 14th October, in which she makes an application for an order for costs in her favour, in relation to this appeal.  All we propose to say is that, in the light of the judgment which we have given, such an order would not be appropriate, and that application is refused.

THE VICE PRESIDENT:  Mr Nutting, is there any reason why there should not be a retrial?
 
MR NUTTING:  I have given that matter some thought, I am bound to admit that I can find no argument which would persuade, or might persuade, your Lordships not to make that order.
 
MR DEIN:  My Lord, we have nothing to say on the matter. 
 
THE VICE PRESIDENT:  We shall direct that these appellants be retried. We direct that a fresh indictment be preferred, as soon as may be. Mr Bevan, so far as the place of retrial is concerned?
 
MR BEVAN:  That has concerned me.  Your Lordship might appreciate, this trial was at Lewes. It attracted a considerable amount of local interest, press ‑ I cannot speak about the media, but certainly a lot of newspaper attention.  In my submission, it would be quite wrong for this trial to take place in that area, for that obvious reason.  It is not very long ago. It was allegedly, or in fact, a nasty killing, whoever was responsible, and, in my submission, Lewes and that area is the wrong venue.  I would respectfully submit that the Central Criminal Court would be the right court in this particular case.
 
THE VICE PRESIDENT:  Does anyone dissent from that?
 
MR NUTTING:  No, I was going to ask your Lordship for a section 4(2) order. Contempt of Court Act section 4(2) order, preventing publicity against the possibility that it was going to be tried in the area where publicity has  been so necessarily and understandably current. But, in the circumstances of the application, if your Lordship is disposed to allow Mr Bevan's application, I do not think, in the circumstances, I need to make an application for that order.
 
THE VICE PRESIDENT:  We shall direct the trial take place at the Central Criminal Court.
      I expect legal aid would be sought for leading and junior counsel separately for each of these defendants on the retrial.  We grant that. In the meantime, subject to any further application, they will remain in custody.
 
MR NUTTING:  Order for solicitors too.
 
THE VICE PRESIDENT:  Yes, of course.  In relation to both appellants.  Is there anything else we need to deal with?  I am told we ought to direct they be re‑arraigned within a period of 2 months, and we do so direct.