Neutral Citation Number: [2012] EWCA Crim 2240
Case No: 2011/04066B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SWANSEA CROWN COURT
Mr Justice Griffith Williams
T20097163-1
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/11/2012
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE WILKIE
and
MR JUSTICE SINGH
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	John William Cooper	Applicant	

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Mr Mark Evans QC for the Applicant

Hearing dates :17th October 2012
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Judgment

The Lord Chief Justice of England and Wales: 
1.	This is a renewed application by John William Cooper for leave to appeal against his conviction in the Crown Court at Swansea before Griffith Williams J and a jury on 26th May 2011.  On that date he was convicted of four counts of murder, rape, indecent assault and four counts of attempted robbery.  Following his conviction for murder he was sentenced to imprisonment for life, with a “whole life” minimum term.  For the remaining offences he was sentenced to concurrent terms of 15 years imprisonment for rape, 8 years imprisonment for indecent assault, and 7 years imprisonment for attempted robbery.  
2.	Cooper was convicted of crimes arising from three appalling but separate incidents which occurred in a small locality in South West Wales.  Only a very brief summary of the facts is required.
3.	In December 1985 Richard and Helen Thomas were killed in their home by shotgun fire.  Mrs Thomas was probably alone in Scovensten Park near Milford Haven when a burglar entered the house.  The high probability was that Mr Thomas returned home and found the burglar.  This applicant had worked for him during the early 1980s.  The prosecution alleged that this burglary escalated into murder so as to enable him to avoid identification.  After killing the occupants, the premises were set alight, and in effect reduced to rubble.
4.	In June 1989 Peter and Gwenda Dixon were holidaying in Pembrokeshire and walking the coastal path at the end of the holiday.  They too, were murdered by gunshot wounds.  Their bodies were concealed in thick vegetation near the top of the cliff, and were not found until two days later.  Mr Dixon’s wedding ring and his cash card were taken.  On the basis of details extracted from him before his death, this card was used or sought to be used on four occasions at different locations after the death.  The Crown’s case, again, was that Mr and Mrs Dixon were killed to avoid detection.
5.	In March 1996 a group of five teenagers, three girls and two boys, were walking through a field near the Mount Estate School in Pembrokeshire at about 7p.m.  They were approached by a man who pulled out a gun and ordered them to lie on the grass.  He seized hold of a 16 year old girl and raped her at knife point.  He demanded money from all the youngsters before approaching another 15 year old girl and subjecting her to a nasty indecent assault.  As he left he fired a gun as a warning and threatened them all that he would kill them if they reported what had happened.  These offences will be described as the Mount offences.
6.	The Crown’s case was that these offences were linked by a number of common features and that they were also evidentially linked to some thirty one other offences committed in South Wales in the same small locality between 1983 and 1996.  In December 1998 the applicant was convicted by a jury of these offences following his trial for what was described as the “Huntsman” indictment.  He was sentenced to 16 years imprisonment.  His appeal against conviction in respect of three of these offences was dismissed in January 2000.
7.	For present purposes one of the most striking of the “Huntsman” offences was an offence committed in November 1996 known throughout the proceedings as the “Sardis” robbery.  One evening Mrs Clark, a lady in her early 60s, was alone in her house awaiting the return of her husband, when  a man wearing a balaclava, brandishing a shotgun entered her house and threatened and assaulted her.  She was dragged into a bedroom and her head was covered with a pair of jeans.  She was then tied up with a rope with her hands behind her back.  The property was searched and ransacked and jewellery, a jewellery box and a handgun removed.  The intruder ran away through what was plainly a pre-arranged route through a number of fences which had been cut to allow ease of access. He was seen by a witness called John Monroe, who chased him until he was threatened with a gun. When a dog handler followed the track the following day it led towards the applicant’s home.  Both Mrs Clark and Mr Monroe provided descriptions of the intruder, which, because they were inconsistent with the appearance of the applicant at that time, were highlighted on his behalf before the jury considering the “Huntsman” offences. Nevertheless the applicant was convicted on the basis of the remainder of the evidence available to prove his guilt.  
8.	Close connections were established between items found in the applicant’s home and nearby, on the route taken by the “Sardis” robber, leading to the applicant’s home and the present offences.  These included a pair of shorts recovered from the applicant’s bedroom. These shorts had traces of blood on them which had come from Mr Dixon, and indeed his daughter, Julie.  Peter Dixon’s blood was also found under the paint on the shotgun found very close by after the “Sardis” robbery.  The presence of Mr Dixon’s blood on the shotgun, and on the shorts, provided virtually incontrovertible evidence which linked the applicant with the murders of Mr and Mrs Dixon.  Moreover random fibres were found in the pocket of Mr Dixon’s shorts which later matched fibres from the sock worn by Mr Thomas.  In addition, fibres taken from various items of clothing from the victims of the “Mount” offences, were closely linked to the applicant, offences which were committed very close to the sites where a significant number of the “Huntsman” burglaries took place.  Without reciting the entire body of evidence adduced by the prosecution, the jury was presented with an exceptionally powerful case that Cooper , a local man who knew the area very well, was the perpetrator of all the offences which give rise to the present application.
9.	The Crown relied on evidence adduced before the jury in the “Huntsman” trial to link the applicant with the present offences and relied on the fact that he had indeed been convicted of them.  The applicant’s case was that he had been wrongly convicted of all the “Huntsman” offences, and therefore, that any possible links between them and the current offences were irrelevant. In a decision of this court on 17th December 2010 [2010] EWCA Crim 2971, it was held that the applicant was entitled, notwithstanding the fact of his conviction, to seek to prove to the jury that he was not guilty of the “Huntsman” offences, and the “Sardis” offence in particular.  The decision nevertheless left open quite how far all this would or could take him in the present case.  Apart from an argument relating to contamination of exhibits, which was fully deployed before the jury, there was no escaping the conclusions to be drawn from the findings made after the “Sardis” robbery in or near to or on the route to the applicant’s home. 
10.	The defence case was that the applicant had been wrongly convicted of the “Huntsman” offences and that he was not guilty of the present offences.  He gave evidence denying them all.  The jury no doubt considered his evidence carefully before deciding that his guilt was proved.
11.	The single ground of appeal is that it was a “main plank” of the defence that the applicant was not the perpetrator of these offences and that numerous witnesses had given “clear and express descriptions” of the perpetrator which did not fit him.  As we have already said, part of his challenge was based on the descriptions given by Mrs Clark and Mr Monroe in relation to the “Sardis” robbery.  He also relied on the descriptions given by witnesses who saw the individual who used Mr Dixon’s card as well as the descriptions given by the victims of the “Mount” offences of their assailant. The descriptions were said to be inconsistent with the prosecution case that the applicant was guilty.  Nevertheless, part of their evidence was relied on by the prosecution, and it was to be treated with appropriate caution.  The criticism of the summing up is that the judge misdirected the jury about the approach to and effect of the descriptions given by these witnesses. 
12.	No criticism whatever could be addressed about the way in which the judge directed the jury to approach the evidence relied on by the Crown with appropriate caution.  He directed the jury that the evidence of descriptions given by witnesses to the use or attempted use of Mr Dixon’s cash card, and the description given by the five victims of the “Mount” offences was relied on as supporting the contention of the Crown that the defendant was the offender.  He was at pains to ensure that the jury approached this contention with great circumspection.  
13.	The Judge then directed the jury in unequivocal terms that the defence case was that the evidence “of description of some of the witnesses is such that the person described cannot have been the defendant and so this evidence not only provides no support whatsoever for the other evidence in the case, but also establishes that he could not have been the offender”.  This was a precise, accurate and complete summary of what Mr Evans had urged on the jury.  
14.	What then is the complaint? In the context of the Crown’s case and the need for caution in this context the judge reminded the jury that even if a description given by a witness was consistent with some of the features of the defendant at the material time the evidence would not of itself prove his guilt, and that if the description of a witness was or maybe “inconsistent with the then appearance of the defendant, then you will obviously put it out of mind and consider whether the other evidence links the defendant to the offences or any of them”.  Mr Evans’ complaint is directed at this particular passage and, seen in the context of the argument advanced to the jury by him, rather than the judge’s direction about the caution with which the prosecution case on these issues should be approached, complaint would be justified.  However that context is crucial. We note that precisely the same issue also arose in the context of an artist’s impression, created on the basis of a description given by one of the witnesses of the man he saw at the cash point seeking to use the Dixon cash card.  The judge directed the jury not to use the image as a way of identifying the defendant, pointing out that the most that could be proved is that the description given by the witness was similar in some respects to the then appearance of the defendant at the time, adding that it was “a huge evidential leap from that evidence to the conclusion that the man was the defendant”.
15.	Before summarising the respective submissions directed to the present offences, the judge addressed the possible impact of the “Huntsman” offences, and in particular the “Sardis” offence.  He correctly directed the jury that in view of the conviction it was for the defendant to prove that it was more likely that he was innocent of the offence than not.  He reminded them that no new evidence was relied on by the defence, and that Mr Evans had repeated the substance of the “descriptions” argument which he had advanced to the jury which convicted the applicant of the “Huntsman” offences.  He nevertheless reminded the jury of the argument, and in particular that the impressions of age given by Mrs Clark and Mr Monroe were inconsistent with what was known about the defendant at the time, and that Mr Monroe’s description of the intruder was dissimilar to that of the defendant.   He also drew attention to the “contamination” argument and the submission that the defendant’s medical condition was such that he would have been unlikely to manage to commit the “Sardis” robbery. 
16.	He then turned to the Dixon murders, and how Mr Evans had reminded them of the various descriptions given by the witnesses, and similarly, in relation to the Mount offences that Mr Evans had contended that the descriptions were inconsistent with the appearance of the defendant at the time.  
17.	The jury can have been left in no doubt that the matters referred to in the summary were clearly directed to the defence argument that the descriptions showed or tended to show that the applicant was not the perpetrator of the relevant offences.  When the judge came to summarise the detail of the offences, exactly as he said he would, he provided the jury with the detailed descriptions given by each of the witnesses who gave evidence relating to the men who misused Mr Dixon’s card, and again the detailed descriptions given by each of the victims of the “Mount” offences.  The only possible reason for providing this detail of evidence was to enable the jury to examine Mr Evans’ contention that the descriptions did not fit the applicant and therefore supported his case that he was not guilty.
18.	At the end of the summing up the judge reminded the jury of the evidence of a retired police officer, Emlyn Dudley, the final defence witness.  He investigated the sale of a ring by the applicant which the Crown believed had been taken from Mr Dixon.  He was asked about the artist’s impression based on the evidence of one witness, and said that the applicant’s appearance did not resemble the artist’s impression.  The very last item of evidence was included in the summing up, as part of the defence case, and it related to and served to remind the jury of the “description” argument. 
19.	We agree that, taken out of context, there was a slip of the tongue by the judge when he told the jury that if the description of a witness was or might be inconsistent with the then appearance of the defendant then it should be put out of mind, but as we have explained, that observation formed part of his direction relating to the care required before such evidence could be used against the applicant. Given the unequivocal direction at the outset of the summing up, and the careful way in which the facts were summarised, in our judgment there can never have been the slightest doubt either about the way in which Mr Evans invited the jury to use the evidence of these witnesses to establish, or at any rate to raise a doubt, that the applicant could not have been the offender, or that this contention was properly left by the judge to them for consideration and evaluation.
20.	The application for leave to appeal against conviction was refused by the single judge.  We agree with him.  This renewed application will similarly be refused.