Neutral Citation Number: [2007] EWCA Crim 1556
Case No: 2004/04441C2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRADFORD CROWN COURT
HIS HONOUR JUDGE STEWART QC
T20037570
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/07/2007
Before :

LORD JUSTICE THOMAS
MR JUSTICE AIKENS
and
SIR RICHARD CURTIS
- - - - - - - - - - - - - - - - - - - - -
Between :

	Regina	Respondent	
	- and -		
	Carl Raymond Wood	Appellant	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Alistair MacDonald QC for the Respondent
Malcolm Swift QC and Stephen Ferguson for the Appellant

Hearing date: 24 May 2007 
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Thomas : 

The murder of Mr Turner
1.	On 23 October 2003 Tarquin Turner, a housekeeper at a hospital for the aged, was murdered in Bradford.  He was 31 years old and of slight build, weighing 8 stone and being 5’ 2” tall.  He had left his home at 9.30 p.m. to go to his local cricket social club to play snooker.  He withdrew cash at 9.55 p.m. and then walked along a quiet road, Intake Road.  At the same time William Charlton, a young man aged 20, 6’ 2” high and the appellant, then aged 17 and 5’ 8” inches high were walking along that road.  Charlton had been drinking heavily that afternoon and evening.  The appellant had met him in the pub and they had discussed robbing someone.  Two pieces of wood were torn off a fence by either Charlton alone or the appellant and Charlton.  They ran up behind Mr Turner; Charlton struck him on the back of the head with a piece of wood.  He was knocked to the ground.  The force was such that it caused his spine to be dislodged.  He was then punched in the face and hit with the wood; the forensic evidence showed one piece of wood had definitely been used, but that did not rule out the use of the other piece.  The appellant and Charlton then robbed him of his mobile telephone, his wallet, £20, bank cards, a St Christopher’s chain and other papers.  The appellant used the mobile phone to call his girlfriend and then sold the mobile telephone for £45.  He bought cannabis with the proceeds.
2.	At about this time, a fellow member of the cricket club walked past; he saw what he thought was a Guy Fawkes dummy on the ground and a young lad rooting about what he thought was the dummy.  He thought the young lad was trying to put the dummy together.  That lad was the appellant.  The witness was then assaulted by Charlton.
3.	Mr Turner was found by other members of the cricket club, an ambulance called and he was pronounced dead on arrival at hospital.  His death was caused by blows to the head and neck which caused internal bleeding to the brain; the forensic evidence was that these blows were caused by a blunt weapon such as the fence posts, fists or kicks.
The course of the trial
4.	For that robbery and murder Charlton and the appellant were tried at Bradford Crown Court before His Honour Judge Stewart QC and a jury in June 2004; it was the prosecution case that they had each taken a fence post and jointly attacked Mr Turner to rob him.  On the first day of the trial the appellant and Charlton pleaded guilty to robbery.
5.	Each defendant ran a “cut-throat” defence.
i)	Charlton accepted he was guilty of manslaughter as he admitted he had struck one blow with a piece of wood; he denied that he intended to cause grievous bodily harm as all he intended to do was to knock Mr Turner out and steal from him.  His evidence was that the appellant had drawn his attention to Mr Turner and each then took hold of a piece of the fence.  After Charlton had delivered one blow to Mr Turner with the piece of wood, they both fell over and he struck Mr Turner with his fists two or three times.  He saw the appellant strike with the wood at Mr Turner, but he did not know if it hit Mr Turner; he said in cross-examination by the prosecution that the appellant did hit Mr Turner with the wood.  They both then left, the appellant saying he had Mr Turner’s phone and his wallet, but the appellant then went back to where Mr Turner lay; he followed and the appellant went through his pockets.
ii)	The appellant accepted he knew that Charlton would threaten violence to Mr Turner and that after violence had been inflicted by Charlton, he stole from Mr Turner.  He therefore accepted guilt for the robbery, but his evidence was that he had not used any violence towards Mr Turner.  Nor had he participated in any joint plan to attack Mr Turner; he had merely agreed they would threaten him.  He had not seen Charlton use a weapon on others and he did not realise that Charlton intended to kill or cause serious bodily harm or that Charlton might kill or cause serious bodily harm.  He went to urinate whilst Charlton struck Mr Turner repeatedly with both fence posts; he did not use or hold any part of the fencing.  He had robbed Mr Turner whilst on the ground; it was Charlton who had struck all the blows, using two pieces of wood.  He had tried to stop the attack whilst it was taking place.
6.	During the course of the trial an application was made on behalf of the appellant to cross examine three prosecution witnesses about threats made to them by Charlton’s family whilst the appellant was in custody.  That application was refused by the judge and forms the sole ground for this appeal.
7.	At the conclusion of the trial both were convicted of murder.  The appellant was sentenced to 8 years for robbery and life imprisonment for murder with a minimum term fixed at 13 years, less time on remand.  Charlton was also given life imprisonment but with a minimum term set at 15 years; Charlton applied to this court to appeal against that sentence but that was dismissed ([2006] EWCA Crim 834).
8.	An application was made by the appellant for leave to appeal to this court in June 2004 on the grounds that the ruling as to the scope of cross-examination to which we have referred was wrong.  Leave was refused.  Fresh lawyers were instructed in 2005 and a renewed application made to this court in February 2007 on the same ground but with more material from the trial.   Leave was granted on the basis of that renewed application on the one issue raised.  For that purpose it is necessary to refer to the evidence of what happened after the murder and to the police interviews of the appellant.
The evidence of what happened after the murder and the appellant’s police interviews
9.	After the robbery and murder and the selling of the mobile phone, 
i)	The appellant went to the house of a friend, Lee Yeadon, who lived there with his partner Helen Moore; the appellant told Yeadon that Charlton had killed someone; Charlton then arrived and said that they had robbed a person.
ii)	The appellant telephoned Lee Yeadon the following day (24 October) and spoke again about Charlton killing someone.  Charlton overheard this; he told the appellant, Lee Yeadon and Helen Moore that they should keep their mouths shut and he knew where their families lived.  Later than day, the appellant met Carl Lomax and Jason Hartley; he told them that he (the appellant) had been present when Charlton killed a man but he had not killed him and had tried to stop Charlton; the appellant admitted to Lomax that he had rifled the man’s pockets.  They discussed going to the police.  The appellant decided not to.  He visited Lee Yeadon and burnt his clothes and shoes there.  Charlton again visited that house; he burnt his clothes.  The appellant told him that he had spoken to others; Charlton again told him and the others to keep their mouths shout or he would petrol bomb their houses.
iii)	The following day, the appellant asked Lee Yeadon to give him a false alibi.
iv)	When Carl Lomax was seen by the police on 4 November he denied seeing the appellant and Charlton on the day of the killing, but on 6 November made a full statement telling the truth.
10.	The appellant was arrested at about 7.15 on 4 November 2003 and Charlton on 5 November 2003.
11.	Lee Yeadon and Helen Moore made statements stating that on the night of 5 November, Charlton’s brother, mother and step father came uninvited to a party and made threats at their house to them, Carl Lomax and the appellant’s mother.  One of the threats was: “Grasses get sawn off shotguns through their doors and petrol bombed.” The threats were repeated the following day and extended to the appellant’s brothers.  Lee Yeadon and Helen Moore said in their statements they had been terrified.  Carl Lomax made a statement to a similar effect.
12.	The appellant was interviewed twice on 4 November, three times on 5 November and once on 6 November.  During those interviews he lied as did Charlton when he was interviewed.  These lies were summarised to the jury in a characteristically clear way by the judge.
i)	At the first interview on the morning of 4 November, the appellant denied knowing anything about the matter save what he had read in the papers.  He gave a false account of his movements.  The account of the witness who had seen a young man going through the pockets of Mr Turner was put to him; he denied it was him.  He swore to God he had never committed a street robbery and hoped the police would catch whoever was responsible.  He made no mention of Charlton.  
ii)	In his second interview on the afternoon of 4 November the appellant denied any knowledge of the crime and gave details of his false account of his movements.  He said he knew Carl Lomax and was a good friend of Lee Yeadon.  He knew Charlton, his brother and family but did not like them, though he found Charlton “alright.”
iii)	In his third interview on the morning of 5 November the appellant repeated his account of his movements and described in detail a fictitious person who he said had contacted him on the evening in question.  He denied being with Charlton.
iv)	In his fourth interview later in the morning of 5 November, the appellant admitted his involvement in the robbery for the first time.  He attributed the idea of robbing someone to Charlton and he stated that Charlton had armed himself with two pieces of wood and ran up to the deceased and then hit him repeatedly with the wood.  Charlton had then started checking the deceased’s pockets and had stolen the chain from the deceased’s neck.  He admitted ringing his girl friend on the phone stolen from Mr Turner and selling the phone.  The appellant, however, continued to lie; he denied putting his hand into and going through the deceased’s pockets; he said he merely patted them on the outside and maintained that he was checking to see if the deceased was breathing and trying to stop Charlton.  
v)	In the fifth interview which followed directly on from his fourth interview the appellant lied about the way he had disposed of the clothes he was wearing at the time of the robbery and murder; he said he had thrown away his shoes and had lent his gloves to someone.  He also lied about the St Christopher’s chain which had been stolen from Mr Turner.  The appellant also continued to stress that Charlton was responsible for the attack and he said the deceased’s face looked like Charlton had hit it about 50 times.  He asked the police not to tell Charlton what he had said.
vi)	In the sixth interview on 6 November the appellant lied about the bus pass; he maintained he picked it up as they ran away.  He also lied about the reason he burnt his clothes.  He mentioned in the course of this interview the threats made by Charlton to him and Charlton telling him that if he could not carry them out his brother would.
13.	In his evidence, his explanation of the lies he told was:
i)	He wanted to get out of the police station; that was the explanation he gave about the lies in his first interview and his further lies in his fourth interview.  He said he lied in his fourth interview about Charlton taking the St Christopher’s chain and the phone because he wanted to go home: “I wanted it all to be over and done with so I could go home.” He maintained this and repeated it several times in the face of quite firm cross-examination, finally stating that he thought lying was worth a try.
ii)	He also explained his lie in saying that he swore to God he had never robbed anyone, as that was the first thing that came into his head.
iii)	He said repeatedly in cross examination that he had his reasons for lying.
iv)	He also gave evidence that he lied because he was frightened of Charlton and Charlton’s family as they were known to be violent.  He had had threats made to him.  
The ruling on the cross examination
14.	Lee Yeadon, Carl Lomax and Helen Moore gave evidence on the matters to which we have referred in paragraph 9 including threats made to them by Charlton himself.  The appellant wanted to cross-examine these witnesses about threats made to them by various members of Charlton’s family on 5 and 6 November, as we have set out at paragraph 11, and not merely by Charlton himself who had, as we have stated, been arrested on 5 November.  During the period of 5 and 6 November, as we have already stated, the appellant was himself in custody and therefore cannot have known of the threats.  However, the reason the appellant wanted to adduce this evidence was that the fact that threats were made to these others would support the genuineness of the appellant’s belief that the threats made by the family were actually being made.  The fact that the family was making these threats whilst he was in custody provided independent support for his position.   Counsel on behalf of Charlton opposed that cross-examination on the basis that it was not relevant, as the appellant had lied before the threats were made by the family and thus the threats could not be relevant to his reason for lying; the prosecution supported the position taken on behalf of Charlton.
15.	The judge made the following ruling:
“Mr Malcolm Swift, QC, has applied to be allowed to cross-examine three witnesses about threats allegedly made by William Charlton’s family to those witnesses.  Mr Swift represents [the appellant], and Mr Swift submits to me that the fact that these threats were made provides corroboration for the validity of the appellant’s belief that if he told the truth and did not lie, sanctions could be brought to bear against either him or members of his family.
It is undisputed that [the appellant] was interviewed on 4 November, and lied.  It was not until his fourth interview on 5 November that he indicated he was going to tell the truth, and this was after he had spoken to his solicitor.
It is conceded by both counsel for William Charlton and counsel for the Crown, that if this evidence is relevant to the appellant’s defence, then I cannot prevent Mr Swift cross-examining this evidence in.  But they submit that because of the fact that [the appellant] had lied before these threats were made, that they cannot be relevant to his state of mind as a reason for lying.
It seems to me that a distinction has to be drawn between whether or not the threats are relied upon as corroboration of the fact that William Charlton himself made threats, or whether or not they are sought to be adduced as corroboration for [the appellant’s] state of mind.  I have come to the conclusion that this evidence cannot be relevant to the issue of why [the appellant] lied, and I cannot see in those circumstances that they can provide corroboration for his state of mind, since the threats which Mr Swift seeks to rely upon post-date the lies which [the appellant] told to the police.
In those circumstances, I have decided that this evidence is not relevant to the issue for which purpose Mr Swift seeks to rely upon it, and should therefore not be allowed before the jury.”
16.	It was submitted to us by Mr Swift QC for the appellant that the judge was wrong.  Although the threats could not have influenced the appellant as he was in custody, the evidence was plainly relevant, as it would provide independent support of the evidence given by the appellant that he was frightened of threats from Charlton’s family.
17.	The issue as to whether the judge was right to refuse the appellant’s counsel the right to cross examine depends on whether the evidence was relevant.  In our view, it was clearly relevant.  It was probative of the reason why the appellant claimed he had lied.  His lies were an important part of the prosecution case, as it could forcibly be contended that, if he was innocent of the murder there was no reason for his failure to go to the police immediately and no reason for him to lie in his police interviews.  Evidence of the threats from the others would support his account that there were such threats, even though he did not know of them.
18.	We therefore consider that the judge was wrong to exclude the evidence.
Was the conviction nonetheless safe?
19.	The remaining question for the court is whether the conviction is nonetheless safe, a question to be determined in accordance with the decision in R v Michael George Davis [2001] 1 Cr App R 8 and the cases referred to in that decision.  We would only consider the conviction safe, taking the summary of the law set out at paragraph 56 of Michael George Davis, if, on the assumption that the wrong decision on law had not occurred and the trial had been free from that legal error, the only reasonable and proper verdict would have been one of guilty.
20.	The evidence in relation to murder against the appellant was:
i)	The appellant knew Charlton intended to rob Mr Turner.  The appellant remained present throughout and then stole from Mr Turner in the way we have described.
ii)	The account given by Charlton.  Although it is clear that Charlton had every reason to attribute as much as possible to the appellant, there is one aspect of his account that may have some independent support.  It seems to us that it is inherently unlikely that if Charlton was going to attack Mr Turner on his own he would have done so with two pieces of wood.  As it is clear that two pieces of wood were torn from the fence, Charlton’s account of doing this jointly with the appellant is inherently more likely than the appellant’s account of Charlton taking both pieces and using both pieces of wood.
iii)	The appellant’s rifling of Mr Turner’s pockets; he must have known he was very seriously injured.
iv)	The appellant’s burning of his shoes and clothes.  The destruction of the shoes that the appellant was wearing removed any link that could have been established between the appellant and the injuries caused to Mr Turner.  There was no reason for him to have destroyed his shoes and clothes if he had done no more than rob Mr Turner.  There was no reason attributable to fear of Charlton or his family that explained his lies on this.  He said in his evidence in chief that he did this because he did not want to get caught.  He did not suggest it was due to threats from Charlton or his family when cross-examined by the prosecution, though he attributed the idea for burning them to Charlton.
v)	The lies he had told.  As we have set out above, the explanations for his lies varied. 
21.	Clearly part of the explanation for lying was the threat from Charlton and his family; but the jury heard evidence from Lee Yeadon, Helen Moore and Carl Lomax that supported his fear from the threats made by Charlton himself.  The point made forcibly by the appellant was that the jury did not hear evidence of the threats made by Charlton’s family.  Moreover we accept that the appellant did seem inhibited in the answers he gave in his evidence when he said repeatedly simply, but without further explanation, that he had his reasons for lying.  He did, however, make clear that he feared not only Charlton, but his family.
22.	Yet the jury took into account the threats made by Charlton himself which were directly made to the appellant.  Those were clearly the threats which would, if the jury had attached weight to them, have been far more operative on the appellant.  We do not think, in these circumstances that it would have made a difference if they had heard evidence of the threats made by the family.
23.	Moreover it is significant that when in his fourth interview, he said he would tell the truth, he attributed to Charlton aspects of the robbery (such as the taking of the St Christopher’s chain) that he had committed.  These lies cannot have been told by him out of fear of Charlton or his family; if that had been the case he would have minimised Charlton’s part.  The reason for the lies can only have been to minimise his part in what had happened.
Conclusion
24.	In our judgment, despite the error made by the judge, we consider that the verdict of the jury that the appellant murdered Mr Turner is a safe conviction.  Even if the judge had not made the error he did and the cross examination had been permitted, the only reasonable and proper verdict would have been one of guilty.  The appeal is accordingly dismissed.