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97/4883/W3

Royal Courts of Justice

The Strand

London WC2A 2LL

Monday 15 February 1999

B e f o r e:

THE VICE PRESIDENT OF THE QUEEN'S BENCH DIVISION

(Lord Justice Kennedy )

MR JUSTICE BRIAN SMEDLEY

and

MR JUSTICE POOLE

____________________

R E G I N A

- v -

DONNA THERESA CLARKE

ANNETTE SUSAN HEWINS

____________________

Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

Telephone 0171-421 4040

(Official Shorthand Writers to the Court)

____________________

MR C PITCHFORD QC and MR S HOPKINS appeared on behalf of

THE APPELLANT DONNA THERESA CLARKE

MR M MANSFIELD QC and MS A SHAMASH appeared on behalf of

THE APPELLANT ANNETTE SUSAN HEWINS

MR JOHN C REES QC and MR G BULL appeared on behalf of THE CROWN

____________________

J U D G M E N T

(As Approved by the Court )

____________________

LORD JUSTICE KENNEDY:

1. On 20th June 1997 in the Crown Court at Cardiff, after a four month hearing, these two appellants were each convicted of Arson with intent to endanger life. Clarke was sentenced to 20 years imprisonment, and Hewins was sentenced to imprisonment for 13 years. They now appeal against conviction by leave of the single judge, and against sentence by leave of the full court.

2. Outline facts

Hewins, now aged 32, is the aunt of Clarke, now aged 29, and at the material time in early October 1995, they both lived at Merthyr Tydfil, South Wales. Clarke lived at 42 Clover Road on the Gurnos Estate. Her normal cohabitee at that address was Simon Owens, known as Ossie, but he had been in custody since October 1995. He was due to be released on 27th October 1995. Diane Jones aged 21, lived quite near, at 62 Marigold Close, with her two children aged 2½ and 1. Her normal cohabitee, and the father of her children, was Shaun Hibberd, but he too was in custody, having been there since 7th August 1995. In the Spring of 1995 Clarke had a sexual affair with Shaun Hibberd, who lived with her for a time, and that led to tension between Clarke and Diane Jones which, according to the prosecution, was a highly material fact in this case.

At about 1.50 am on Wednesday 11th October 1995 someone tore away part of the covering of the front door at 62 Marigold Close, poured in petrol and deliberately started a fire. Diane Jones and her two innocent children were in bed. Soon after the alarm was raised Diane Jones was seen at an upstairs window, but the fire spread so rapidly and with such intensity that neither she nor her children were able to escape, nor could they be rescued, and all three died.

3. The Prosecution Case

So far as can be ascertained no one saw the arsonist start the fire, and the prosecution had no scientific evidence to link Clarke to the fire. She was interviewed on a number of occasions, and she maintained on each occasion that she did not light the fire, so the prosecution case against her was necessarily based on circumstantial evidence. The prosecution set out to prove that -

(1) Clarke hated Diane Jones because of her prior claim upon Shaun Hibberd, and because Diane Jones was likely to tell Simon Owens of Clarke’s infidelity to him.

(2) Clarke made threats to harm Diane Jones, and in particular threatened to petrol bomb her home.

(3) At about 10.15 pm on Tuesday 10th October 1995, that is about three hours before the fire was started, Clarke went with Hewins, in Hewins’ car, to a garage in Merthyr Tydfil where Hewins purchased the petrol which Clarke later used to start the fire.

(4) At about 1 am on 11th October 1995 Clarke and a sixteen year old girl named Carly John met their friend Denise Sullivan, now 27 years of age, near to the Iron Horse public house and walked from there to the home of Mark Morris at 121 Clover Road, Gurnos Estate. On the way Sullivan, who had only just been released from custody but who knew what Clarke planned to do (partly as a result of a letter from Clarke which she received before she was released) distracted Carly John, so that Clarke was able for a short period to slip away on her own.

(5) When the three young women arrived at 121 Clover Road at about 1.35 to 1.40 am Clarke did not go in with the other two. She did join them in the house about ten to fifteen minutes later, but that period on her own was critical because the expert evidence indicated that it was probably at about 1.50 am that the fire began.

(6) When Clarke, Sullivan and Carly John left No 121 a few minutes later and saw smoke Clarke said that the fire was at the home of Diane Jones before the house was visible.

(7) At the scene of the fire and thereafter Clarke behaved in a way which was suggestive of guilt. She was furtive, she took the opportunity to listen into Police radio transmissions, she changed and washed her clothes in the middle of the night, and when questioned by the police she lied repeatedly.

(8) Hewins, Sullivan and Carly John also lied, but eventually Sullivan and Carly John shifted ground, with the result that Carly John became an important witness for the prosecution.

The indictment contained three counts of murder, one count for each victim of the fire, and Clarke, Sullivan and Hewins were all charged jointly with each offence. They were also jointly charged in count 4 of the indictment with Arson with intent to endanger the life of Diane Jones, and in count 5 with Arson, being reckless as to whether the lives of Diane Jones and her two children would be endangered. The jury was given the option of returning a verdict of manslaughter in relation to the counts of murder, but acquitted all three defendants on those three counts. As we have indicated, they convicted Clarke and Hewins on count 4 and were then not asked to return a verdict on count 5. Sullivan was convicted of the offence charged against her alone in count 6, namely doing acts tending and intended to pervert the course of justice by providing false information and threatening witnesses in an attempt to exculpate Clarke. Her appeal against conviction was abandoned at an early stage.

4. The Defence Case

The case for Clarke, which was presented by Mr Pitchford QC, at trial and before us, was that Clarke did not hate Diane Jones nor did she make any meaningful threats to harm her. Nothing was ever said about the use of a petrol bomb. Clarke’s affair with Shaun Hibberd had ended in June 1995 when Shaun Hibberd returned to Diane Jones, and long before the night of the fire Simon Owens knew about that affair. When Clarke went in Hewins’ car to Snow’s Garage on the evening of Tuesday 10th August 1995 her prime purpose was to buy an electricity token. She also bought a small bottle of Lucozade and some cigarettes, but the petrol which was bought by Hewins went into and remained in the fuel tank of Hewins’ car.

The walk back from the Iron Horse public house was boisterous but uneventful. Clarke did not slip off on her own, and the interpretation which the prosecution sought to place upon the letter which she had written to Sullivan on 2nd October 1995 was unwarranted. When the three of them got back to 121 Clover Road Clarke did not go off on her own, but remained with Sullivan and Carly John at that address until they left together just after 2 am, by which time the emergency services had already been called to the fire. They could see smoke, but Clarke did not attribute it to the home of Diane Jones until she had gone far enough to be able to see where it was coming from. Thereafter she was very upset, particularly when she heard that the two young children had perished with their mother, but although she did listen to police transmissions she did not change her clothes in the middle of the night, nor did she deliberately seek to hamper police enquiries.

On behalf of Hewins it was contended by Mr Leighton Davies QC, at the trial, and by Mr Mansfield QC, before us, that Hewins did no more than, at the request of Clarke, drive Clarke to Snow’s Garage so that Clarke could purchase an electricity token. Hewins took the opportunity to put a little petrol in the tank of her car, but neither she nor Clarke at any stage put petrol into any other container. From first to last she had no reason to believe that Clarke intended to commit any criminal offence.

If and in so far as either Clarke or Hewins may be shown to have lied to the police or sought to mislead them, or even lied to the court, it is submitted that lies alone cannot constitute an affirmative prosecution case.

5. Police Investigations

Police investigations began at once, and on 12th October 1995, the day after the fire, Clarke was seen by DC Reardon. She gave a statement, but it did not mention any visit to the garage. Clarke’s case at trial was that she did mention the visit to the officer. Sullivan was present when that statement was taken, and it was the prosecution case that initially all three defendants and Carly John agreed to keep silent about the acquisition of the petrol which was used to accelerate the fire.

Hewins using a false name telephoned the police and arranged for Clarke to be seen by a police officer. She was seen by DC Nicole Lloyd on 13th October 1995 and expressed concerns about Anthony Pembridge, who lived with Tammy Jones at 19 Jasmine Close, near to where the fire occurred. Pembridge had been at 121 Clover Road and had left before the final departure of Clarke, Sullivan and Carly John. According to Tammy Jones he was subsequently either the first or one of the first to see the fire, and he and Tammy Jones then did what they could to help. The prosecution contended that on 13th October 1995 Hewins and Clarke were cynically trying to make the police suspicious of Pembridge so as to protect themselves. They, of course, say that they were simply trying to assist by passing on genuine concerns.

On Friday 13th October 1995 Carly John made a witness statement in which she said that she was with Clarke from the time that they left Clarke’s home on the Tuesday evening until after they discovered the fire. Initially they had gone to the home of Pauline Seal at 45 Bramble Close where they obtained amphetamines, then, after an initial visit to 121 Clover Road, they had been to the home of Colleen Parry at 24 Crabapple Close, from which address Clarke made a telephone call to Sullivan at the Iron Horse public house. After meeting up with Sullivan they had gone back to No 121.

On 16th October 1995 Clarke was visited by the police during the course of a house to house enquiry. Again, so far as the police officer PC Coombes could recall, there was no mention of any visit to a garage on the Tuesday evening. That again was disputed by Clarke at the trial. The officer said that had such information been forthcoming he would have regarded it as significant because the police knew by then that petrol had been used as an accelerant. Clarke produced a pair of light blue jeans as the clothing which she had been wearing on the night of the fire. In fact her visit to Snow’s Garage at about 11 pm was recorded by a video camera, and it is clear from that record that when she went to the garage she was wearing dark jeans.

It is not clear to us precisely when the police appreciated that Clarke and Hewins had visited Snow’s Garage, and that their visit had been video-recorded. But the police were not long in ignorance of the fact that Clarke and Hewins had visited some local petrol station because Louise Price, a fifteen year old girl who was baby sitting at Clarke’s home on the Tuesday night, told the police of the garage visit. She also told them about Clarke returning to change her clothing after the fire. So, according to the prosecution, the three defendants decided to adjust their position, and when Hewins gave a statement on 22nd October 1995 she said that there had been a visit to a garage, but to a different garage, the Esso Garage at Dowlais, at which an electricity token and other items were obtained but no petrol was bought. Clarke adopted that position when she was interviewed on 2nd November 1995.

On that same day, 2nd November 1995, Carly John was interviewed. During the course of that interview she said that when she left 121 Clover Road after 2 am with Clarke and Sullivan it was only when the home of Diane Jones was visible that Clarke said “Oh my God, look, its Diane’s house”. Carly John also said that neither Clarke nor Sullivan changed their clothes during the night.

6. Arrests

On 14th February 1996 the police arrested Clarke, Sullivan and Carly John. Hewins was interviewed and raised for the first time the possibility that the garage visit may have been to Snow’s Garage, which would be unusual unless she wanted to use the vacuum cleaner to clean the inside of the car. A further justification for the visit to Snow’s Garage was said to be the need to visit Claire Green. She was called as a defence witness at the trial but was, we were told, unimpressive. In any event Hewins said that she would have been in a rush because her husband did not like her going out late to take Clarke to a garage.

Although the evidence is not admissible against either of these two appellants it seems that it was Sullivan who on 14th February 1996 first indicated to the police that Clarke was not with Carly John and herself at No 121 at the critical time when the fire began, so the police had that information when they interviewed Carly John in the presence of her father on 15th February 1996. Carly John then adopted a markedly different stance, saying that Clarke had been absent from No 121 when the fire began, and that when she later left that address she made her comment about it being Diane Jones’ home that was on fire before her house was visible. Carly John was interviewed again on 15th February 1996 and then released. At the trial she gave evidence for the prosecution.

7. Anthony Pembridge

The prosecution obtained a statement from Anthony Pembridge which they disclosed to the defence but they did not at any time serve that statement, or indicate that it formed any part of the prosecution’s case. Nevertheless an application was made by Clarke’s counsel for the proceedings to be stayed until the prosecution called Anthony Pembridge as a witness for the prosecution, failing which it was submitted that the trial judge should exercise his discretion to call that witness himself. As Mr J.C. Rees QC, for the prosecution made clear the prosecution had reasons for questioning the reliability of Pembridge’s recollection of the night of the fire. There was evidence to indicate that everyone at 121 Clover Road other than the defendants and Carly John was adversely affected by drugs, and Pembridge went there to brew “magic mushrooms”. If any defendant wanted to call him as a witness they were free to do so. Of course defence counsel were reluctant to do so because some of what had appeared in the statement of Pembridge was not helpful to the defence. The trial judge declined to stay the proceedings or to call the witness himself and that decision is challenged in this appeal.

As in the court below we have had our attention invited to the speech of Lord Devlin in Connelly v D.P.P (1964) AC 1254, and to the decision of this court in Russell-Jones (1995) 1 Cr App R 538, a case concerned with the duty of the prosecution in relation to a witness whose statement has been served as part of the prosecution case, but the most helpful authority is Richardson (1993) 98 Cr App R 174, which makes it clear that where, as in this case, a witness statement has simply been served on the defence as unused material, the prosecution is not under any duty to call the maker of the statement as a witness and, provided that the decision is made bona fide , the prosecution is free to consign a witness to that category even though he purports to have been present at the scene and to have made material observations. The power of a trial judge to call a witness himself can only be exercised in exceptional circumstances, and he was right not to invoke it in this case. Accordingly this ground of appeal, which appears at B in Clarke’s grounds of appeal and as ground 5 in Hewins’ ground of appeal, fails.

8. The evidence of Carly John

Carly John was called to give evidence on Monday 10th March 1997, and she was in the witness box for 4½ days. Her evidence in chief lasted a little over a day. She was then cross-examined by Mr Pitchford for nearly two days. Mr Aubrey QC, for Sullivan was much shorter. She was then re-examined, after which the judge gave leave for further cross-examination by Mr Pitchford, which led to further re-examination by Mr Rees. Of course where there are serious charges the evidence of important witnesses has to be carefully adduced, and if there is more than one defendant cross-examination may take a little while, but having read the whole transcript of the evidence of Carly John we are firmly of the opinion that Carly John was kept in the witness box for far too long. Long before the end of her testimony she must have been, and on the face of the transcript clearly was, exhausted, so the value of her evidence was diminished. After her evidence had been concluded the trial judge said, in the absence of the jury, that it was his impression (and maybe that of the jury) that, whilst giving evidence ultimately she became what I would describe as “intellectually exhausted” (Volume 2 Page 7G). At the time of trial she was seventeen years of age and a single mother, under a lot of pressure from both sides. In justice to the defendants and to the witness herself her evidence could and should have been completed in a much shorter period of time.

The technique of cross-examination which was used by Mr Pitchford was the first serious mistake which prolonged Carly John’s period in the witness box, and, as we shall see, it was echoed by the prosecution at a later stage in the case. In chief Carly John gave evidence which was of considerable assistance to the prosecution, and which was broadly in accordance with what she had said to the police on and after 15th February 1996. She gave evidence of Clarke’s fear of what would happen when Simon Owens was released from prison, and learnt of her infidelity, of which he was said to be unaware. According to Carly John Clarke had said twice that “she couldn’t wait to get her hands on her (Diane Jones) and she was going to petrol bomb her house”. As to the night of the fire Carly John gave evidence of Clarke returning from the garage with Lucozade and cigarettes. The Lucozade bottle was, she said, “a rusty colour. It had no fizz in it”. Carly John revealed that at the material time Mark Morris, who lived at 121 Clover Road, was a boy friend of hers and she claimed that on her first visit to 121 on that evening she looked out of the window and saw Clarke “standing at the side of Julie Hitchens” which, as Mr Pitchford was able to demonstrate, was impossible. Carly John said that after she and Clarke left 121 for the first time Clarke drew attention to the fact that the lights were off in Diane Jones’ home, 62 Marigold Close, and suggested that might be because Diane Jones was at bingo. Carly John went on to say that when she was on the way back with Clarke and Sullivan from the Iron Horse public house to 121 Sullivan went up the steps to her aunt Margaret’s flat at 26 Honeysuckle Close and knocked for quite a long time, perhaps ten minutes. Clarke had gone on, and during that period Carly John did not have sight of her. Most significantly of all, from the prosecution point of view, Carly John said that when the three of them reached 121 Clover Road for the second time Clarke left them, saying that she was going to “see if the kids were all right”. She returned after ten to fifteen minutes. She had changed her clothes. She was wearing light blue jeans and an orange Adidas jumper and she had with her a black bin liner type of bag from which she fed clothes into Mark Morris’ washing machine and asked him to wash them. About ten minutes after her return to No 121 Clarke left again, this time with Carly John and Sullivan, and as they got outside Clarke said “Oh my God, look at the cloud of smoke up there, it must be Diane Jones’ house”. At that stage, Carly John and Sullivan were not in a position to see the home of Diane Jones, but they ran in that direction. There was no one else about, and indeed there was other evidence that until the fire began it was a quiet night on the Gurnos Estate.

Obviously Mr Pitchford had a lot of work to do to challenge the evidence in chief of Carly John and he had the material he needed to hand in the shape of the answers given by Carly John when interviewed by the police and the statements which she had given before and after 15th February 1996. The technique which he used and which we deprecate, was to draw the attention of the witness to large chunks of interview or statements by reading those chunks out, and then asking the witness one or two short questions about what had been read. The witness and the lawyers had a copy of the interview record or the statement which was being used. The jury did not, and they cannot have found the process easy to follow. Even the witness was not always able to follow. At one point, after Mr Pitchford had been reading an extract from a police interview which in transcript covers 43 lines the witness said “Excuse me. Could I ask which page you’re on?”

The dangers of this cross-examination technique are obvious. Not only does it lengthen the proceedings, but it makes the cross-examination difficult for the jury to follow, and it must be especially difficult for them not to muddle the current evidence of the witness with what they hear that she said on some previous occasion. Of course her current testimony can and should be tested against what she has said on earlier occasions but the testing needs to be done selectively, and with precision, if the jury is to follow and the witness is to receive fair treatment in the witness box.

Mr Pitchford’s cross-examination was to a large extent successful. Although Carly John maintained throughout that she was afraid of Clarke and Sullivan she accepted that neither of them had told her to lie to the police. She also accepted that when questioned after arrest she felt under a lot of pressure in a situation where it was obvious, both to her and to her father, that if she went on saying what she had previously been saying she would be unlikely to be released. She was conscious of the fact that the police, no doubt as a result of misinformation, were putting to her some things which were not true, for example that at the time of the fire Clarke had no use for electric tokens. When reminded in cross-examination of the course of police enquiries she eventually said that what she had originally been saying to the police was right, and that she had only altered her account in order to get out of police custody. In substance she confirmed Clarke’s alibi for the time when the fire was started, said that Clarke’s remark as to which house was on fire was only made when Diane Jones’ house could be seen, and discounted the suggestion that Clarke changed her clothing at any time before about 6 am. The dirty washing was, she said, taken to No 121 much later on. That is merely an indication of some of her changes of position. It is not an exhaustive list, but for present purposes it will suffice.

Because of Mr Pitchford’s success Mr Aubrey, for Sullivan, was as we have said, relatively brief, but Carly John was not prepared to say that she was not afraid of Sullivan, so Mr Aubrey put to her the letters she had written to Sullivan when Sullivan was in custody.

9. Criticisms of Re-Examination

When Mr Rees began to re-examine he asked Carly John about the attitude of those who lived on the Gurnos Estate to the police and to those who gave information to the police. Mr Pitchford objected, contending that the object of prosecuting counsel was to attack the credit of the witness he had called. Mr Rees’ response was that he was exploring possible reasons for those earlier versions given by the witness to the police which the prosecution contended were untrue, and the judge declined to intervene. That decision is now challenged in ground A of Clarke’s grounds of appeal, which also complains that later in his re-examination Mr Rees drew an unfavourable comparison between the witness and her parents, implied that the witness knew in advance of an attack on Diane Jones, and/or was an accomplice, and drew attention to the witness’ failure before trial to retract her allegations against Clarke. The extra matters were raised with the trial judge who ruled against the prosecution in relation to the suggestion that Carly John may have been an accomplice, but who did not otherwise interfere.

In our judgment prosecuting counsel was fully entitled to explore with Carly John her understanding of the local attitude to the police, and to those who assisted the police. Her answers might well have helped the jury to evaluate what she had said on different occasions. The questions to Carly John about her parents, who were on holiday abroad at the time of the fire, were unobjectionable when considered in context. Counsel was investigating an offensive reference by Carly John to her mother in a letter introduced into evidence by Mr Aubrey. The effect may have been to draw an unfavourable comparison between decent parents and a difficult teenager, but that fact did not render the line of re-examination inadmissible. As Mr Rees pointed out, it had been suggested in cross-examination that Carly John lied to the police because she was worried about her child. The prosecution was therefore entitled to show that the child was in safe hands, and that Carly John knew that. The accomplice point is covered by the judge’s ruling, and prosecuting counsel was plainly entitled to assist the jury to test the value of Carly John’s change of position in the witness box by eliciting what, if anything, had preceded it.

It may well be that the tone of the re-examination was redolent of cross-examination, and defence counsel were naturally anxious to preserve the gains that they had made, but in our judgment the criticisms now made of the judge’s rulings are unsubstantiated and this ground of appeal fails.

10. Carly John - Final stages

The re-examination, like the cross-examination which had preceded it, proved to be a success, but, as Mr Rees pointed out in his submissions to us, Carly John did not simply revert to what she had said to the police officers after her arrest, and had subsequently said in her evidence in chief. She completely discounted her earlier evidence that Clarke had said that she could not wait to get her hands on Diane Jones and had threatened to petrol bomb her house. That was, she said, not true. She had said it because she was under a lot of stress at the police station, and she had repeated it in the witness box because she thought counsel wanted to hear what was in her statement. She confirmed in re-examination that the Lucozade which Clarke brought back from the garage was “a rusty colour” and “had no fizz to it”. She said that when she and Clarke made their first visit to the home of Mark Morris at 121 Clover Road Clarke left her for a time. She also confirmed that on the return journey from the Iron Horse public house Sullivan did knock at her aunt’s home for about 5 minutes, and during that period Carly John could not account for the whereabouts of Clarke. As to what happened when they got back to 121 Clover Road Carly John said that it was true that Clarke left herself and Sullivan at the door of No 121 and did not come back for ten to fifteen minutes. When she returned she was wearing an orange Adidas T-shirt and had a black bag containing clothes which she asked Mark Morris to wash. When they left No 121 Clarke made her remark about the fire being at Diane Jones’ home.

It was part of the case for the prosecution that at about 11.15 pm Clarke had done a little recognisance in the vicinity of Diane Jones’ home. That was based on the evidence of Tammy Jones who said that at that time she saw two girls, one of whom she recognised as Clarke, near to 27 Marigold Close, which was opposite to the home of Diane Jones. Clarke denied being there at any relevant time before the fire, and Carly John never accepted the suggestion that she was with Clarke at that place. Similarly she never agreed that she had been left by both Sullivan and Clarke. So, Mr Rees submitted, Carly John showed that she had a mind of her own.

After re-examination had been completed Mr Pitchford sought leave to cross-examine further in the light of the re-examination, on the basis that he had terminated his cross-examination prematurely once he obtained the co-operation of the witness. The judge gave leave, and it was within his discretion to do so, but it is a discretion to be very sparingly exercised. Carly John was then asked about her later police interviews covering ground which had been covered many times - the Lucozade bottle, and what Carly John saw of it, whether Clarke had changed her clothes before she returned to the home of Mark Morris, and whether Clarke had made any threats about what she would do to Diane Jones. Mr Pitchford reminded Carly John that she told the police that Clarke once, in her house, had said of Diane Jones “I’ll petrol bomb her”. Mr Pitchford suggested at once, and again at the end of his further cross-examination that no such threat had been made, but Carly John refused to accept that she had lied. So the threat to petrol bomb, which had apparently disappeared during re-examination, was revived. Carly John went back to saying that Clarke changed her clothes “when we got back down to her house” sometime after the fire, and that when she returned to No 121 Clarke had no black bin liner in her hand. Carly John said that she had been warned by a police officer of the possible consequences of perjury, and when asked if she was terrified to depart from her witness statement she said “Yes”. Nevertheless she refused to accept Mr Pitchford’s proposition that “Donna never left 121”. Carly John accepted that there was nothing odd about the bottle of Lucozade that Clarke had with her, and Mr Pitchford continued -

“Q. And the reason why you had to start telling the police something different was because you had decided to tell lies about Donna, hadn’t you?

A. Yes.

Q. Because you thought that if you didn’t tell lies about Donna you would be charged with murder too.

A. Yes”.

In her final re-examination Carly John confirmed that there was a threat by Clarke to petrol bomb Diane Jones, and that Clarke did leave her and Sullivan for ten to fifteen minutes when they got back to No 121.

11. Case for Clarke to Answer?

At the close of the prosecution case Mr Pitchford submitted that there was no case for his client to answer. The judge ruled against him, and in ground C of Clarke’s grounds of appeal it is contended that the judge was wrong to make that decision. In considering this ground of appeal it is, in our judgment, important to bear in mind the nature of the statutory power of this court. We may only allow an appeal against conviction if we think that the conviction is unsafe (see section 2 of the Criminal Appeal Act 1968 as amended), and if at the end of the day the test is not satisfied it is immaterial that at a particular point in the trial a submission has been rejected which arguably ought to have succeeded. We cannot shut out of our minds what happened thereafter. Although that is not the way in which this court expressed its conclusion in R v Berry [1998] Crim LR 487, to which our attention was invited by Mr Mansfield, it seems clear that the court in that case was not addressing itself to the words of the statute, which seem to us to make the position clear. However, we do have the benefit of a copy of the lengthy and detailed written submission which was used by Mr Pitchford at the time when he made his submission to the trial judge as well as a transcript of the judge’s ruling, and it is clear to us that the judge approached his task in the right way, and with the relevant authorities well in mind. He had before him -

(1) an abundance of evidence fit for consideration by a jury which suggested that right up to the time of the fire that Clarke was anxious to continue her relationship with Shaun Hibberd, and hated Diane Jones even to the extent, if the evidence of Carly John was accepted in its final form, of being prepared to talk of petrol bombing the home of Diane Jones.

(2) Evidence capable of being regarded as evidence of preparation, namely the trip to the garage, as illuminated by the lies told about it by Clarke and Hewins, if the jury should be satisfied that those two defendants did indeed lie.

(3) Evidence of opportunity - on any view Clarke was near to the scene of the fire when it started, and if Carly John was right in saying that she was not at 121 where was she? Why was she lying about her whereabouts?

(4) Evidence of guilty behaviour after the fire began. If Carly John was right Clarke was able to say which house was on fire before Diane Jones’ house could be seen. Thereafter, on any view, Clarke showed a surprising interest in police radio transmissions, and she changed her clothing at some stage during the night. Louise Price had given evidence which suggested that Clarke returned home alone, and changed well before dawn. Some support for that might be obtained from the evidence of Carly John. The defence sought to explain the evidence of Louise Price, but the jury was not bound to accept the explanation, and its acceptability or otherwise was a matter for them. Thereafter there were what the jury might regard as lies told to the police.

The judge gave consideration to the evidence of Carly John, which he recognised as being in many respects flawed by her contradictions, but he continued -

“Carly John is pre-eminently a witness to be considered by the jury, not by the judge and not by counsel. Mr Pitchford contends that without the evidence of Carly John there is no case for his client to answer. I am wholly unable to agree with that submission, which however no longer arises.”

In our judgment that was not only a ruling which was open to the judge at the time when it was made. It was the only ruling which at that stage he could properly make in the circumstances.

12. The case against Hewins

Counsel for Sullivan and counsel for Hewins also made submissions at the close of the prosecution case, and those submissions were rejected. We need not consider the submissions made on behalf of Sullivan, but as the prosecution case against Hewins at the end of the trial was very much the same as it had been at the end of the prosecution case this is a convenient moment to consider her position overall.

The first thing that needs to be emphasised is that, as we have already said, there was no scientific evidence to show that the petrol bought at Snow’s Garage was the petrol used by the arsonist. Secondly, there was nothing patently unusual about the trip to the garage itself. Hewins had taken Clarke to the Esso Garage at Dowlais on the previous evening to purchase an electric token, and although the amount of petrol purchased at Snow’s Garage was small there was evidence that Hewins did purchase petrol in small amounts. The prosecution sought to demonstrate by reference to the video recording that at the garage the two women behaved suspiciously in that whilst using the petrol pump Hewins left the car door open, so that it was not possible for anyone in the position of the video camera to see whether the nozzle of the hose was inserted into the petrol tank, and after the petrol had been obtained the car was driven to where the vacuum cleaner was situated. That meant that for about six minutes it, and the two defendants, were out of sight of the camera. In our judgment neither of those points has any real substance. Car drivers do on occasion leave their driving doors open as Hewins did. We have seen the video recording, and her actions appear innocuous. As to the missing six minutes there are still photographs which show that the whole forecourt, including the area adjacent to the vacuum cleaner, was very public and well lit, and there was evidence to indicate that in addition to the petrol station staff there were other people about. Certainly the petrol which was used to accelerate the fire could have been obtained by Hewins and Clarke from Snow’s Garage. Hewins could have fed it from the pump into a petrol can sitting inside the car, and at some stage thereafter it, or some of it, could have been transferred from the petrol can to some other container, perhaps the Lucozade bottle which was seen by Louise Price and Carly John. But there was no evidence to show that is what happened. Mr Rees rightly contends that the garage evidence should not be considered in isolation. Hewins was not only the aunt of Clarke, she was also an intimate friend. They saw each other regularly. She would know of Clarke’s feelings for Shaun Hibberd and Diane Jones. If on 11th October 1995 Clarke needed petrol to start a fire she might well need the assistance of Hewins to get it, and if Hewins gave that assistance she could not fail to know what was afoot. That we accept, but the difficulty is that, as we have said, there is no evidence to show that the assistance was given. Even if the evidence against Clarke is such as to enable the inference to be drawn that at 1.50 am she started the fire it does not necessarily follow that the petrol she used came from Snow’s Garage. Petrol is relatively easy to obtain, and after the fire two small containers were found near to the fire which had some petrol in them. Where that petrol had come from it is impossible to say.

Of course the prosecution attaches considerable weight to Hewins’ behaviour after the fire. In our judgment it is safe to conclude that she remained close to Clarke and was a party to a conspiracy, probably orchestrated by Clarke, which sought to mislead the police by -

(1) at first omitting all reference to a visit to any garage, and then gradually shifting position to try to take account of what the conspirators believed that the police already knew.

(2) Laying down false trails.

But grounds for suspicion and lies cannot alone constitute a positive case of arson with intent to endanger life. In Strudwick and Merry (1994) 99 Cr App R 326 Farquharson LJ, giving the judgment of this court, said at 331:-

“Lies, if they are proved to have been told through a consciousness of guilt, may support a prosecution case, but on their own they do not make a positive case of manslaughter or indeed any other crime.”

That observation does of course have to be read in context, but in the case of Hewins there is here really nothing other than lies. The matter can perhaps be tested this way - given the general anti-police attitude of those who lived in the Gurnos Estate, and given the bond of affection between Clarke and Hewins - suppose that -

(a) Clarke, without consulting Hewins, did start the fire, or become suspected of having done so, and that at least is something that we know did happen, or -

(b) Hewins, having helped Clarke to obtain petrol in the knowledge that Clarke intended to use it some way to frighten Diane Jones, but not knowing of any intent to endanger her life -

in either of those events, might Clarke and Hewins then have decided to try to head off suspicion by trying to conceal the purchase of petrol on the relevant night, and inviting the police to look at other “suspects”? If, as we believe, in the case of Hewins that possibility cannot be regarded as unrealistic, then in our judgment her conviction cannot be regarded as safe, and we must therefore allow her appeal.

13. Cross-Examination of Clarke

Having given her evidence in chief Clarke was cross-examined by Mr Rees for the prosecution. Ground D of her grounds of appeal asserts that the trial judge was wrong to permit her and later Hewins to be cross-examined on documents which were inadmissible against each of them. Mr Pitchford and Mr Mansfield submitted that in general it is impermissible for prosecuting counsel to cross-examine one defendant by reference to a record of interview or a statement made by another defendant, or by reference to any other document to which the witness is not a party, although of course questions can be based on information drawn from those various sources. In fairness to both Mr Rees and the trial judge it is right to say that some of the authorities in relation to this branch of the law post-date this trial, and have not been widely reported, but the principles are now, as it seems to us, quite clear. In Windass (1989) 89 Cr App R 258 the appellant was cross-examined by reference to a diary found in the possession of his girl friend which was inadmissible against him. He was repeatedly asked what the writer meant by her entries, and at page 262 Lord Lane CJ said -

“It seems to us there are two objections which should properly be made to that line of cross-examination. First of all it is quite improper to ask a witness to explain what a third party means by a document written by that third party .... Secondly, perhaps more importantly, it is, in our judgment, quite improper for counsel to take in his hands a statement which is inadmissible vis-a-vis the witness whom he is cross-examining, let alone allowing the jury to have a copy of the statement in their hands whilst he is doing that, and then to ask the witness to explain, almost sentence by sentence, the highly damaging statements, inadmissible against him, which the maker of the document had written.

It is of course perfectly possible and perfectly proper for questions to be put in cross-examination such as ‘were you in such and such a public house on such and such a day? Were you with such and such a person?’ But to link it, as was done here, with the contents of a document inadmissible against the witness being cross-examined was, in our judgment, a matter which should not have occurred.”

In R v Hickey and others 30th July 1997 unreported, the Carl Bridgewater case, complaint was made of persistent improper cross-examination of one defendant by reference to statements made by other defendants which were inadmissible against him. At page 277C of the transcript Roch LJ, giving the judgment of the court, stressed that the validity of such criticisms can only be assessed by having regard to the context in which the questions were put, but at 279B he continued -

“Appearances and impressions must inevitably play a large part in the jury’s assessment of and reaction to the evidence as it unfolds before them. For questions in cross-examination to create the impression (even inadvertently) that a particular piece of evidence is evidence relevant to the case against the defendant when it is not, is unfortunate, as it misrepresents the position.”

The court then examined the way in which cross-examination was conducted in that case, and condemned it. The technique was, as it seems to us, indistinguishable from that used by Mr Rees in this case. Finally, in Gray and Evans [1998] Crim LR 570, the defendants and a co-accused were charged with reckless arson after a fire which caused serious damage to a church. When Gray gave evidence the judge allowed the prosecution to cross-examine him by reference to Evans’ interview, which indicated that Gray was with Evans when the co-accused was recruited to go and set fire to the church. One of the grounds of appeal was that the cross-examination was improper because its effect in relation to Gray was to confer on Evans’ interview a status which it did not enjoy. Counsel for the prosecution contended in this court that the technique used was legitimate and commonplace. He argued that no damage was done because if the defendant being cross-examined rejected what was being put to him that was an end of the matter, but Hutchison LJ, giving the judgment of the court, rejected that submission, saying -

“We think that the cross-examination cannot have been undertaken with any expectation that the witness might admit or adopt those parts of Evans’ interview. The general effect of it (whatever the intention) seems to us to have been to deploy what Evans had said in interview as though it were evidence and thus denigrate or otherwise undermine the witnesses own account. ...... it was, to borrow the words used by Roch LJ, a cross-examination which created the impression that the prosecution were relying on Evans’ interview against Gray ‘by equating its evidential status with that of evidence given by the prosecution witnesses’ when in truth it was no evidence at all against Gray. ...... of course we are not saying that it is never appropriate to ask a witness a question about what appears in the interview of a co-defendant; there may be particular circumstances in which that is permissible. What is certainly inappropriate, as the case of Windass and the observations of Roch LJ in Hickey and others show, is to use the interview, or statement, or whatever other inadmissible document may be in question, as though it were evidence in the case against the defendant being cross-examined. Certainly in a case such as the present where, as we have indicated, there can have been no sensible expectation that Gray was going to adopt what Evans had said, such cross-examination should be strictly avoided. If it is not avoided, the judge’s task in making the jury understand the evidential status of the interview or statement or whatever it may be is made very much harder, and real prejudice may be caused to the case of the defendant against whom it is inadmissible.”

Having set out the law we have to apply we turn now to look at what happened in the present case.

In Volume 25 of the transcript prosecuting counsel deployed Sullivan’s statement of 16th February 1996 as a springboard for an attack on the character of Clarke. Mr Rees now submits that no damage was done because Clarke accepted Sullivan’s assessment. In fact she did not do so. Having shown some initial willingness to do so she then firmly rejected the assessment, and the jury was left to contrast the oral evidence of the witness with the printed record they had in front of them, showing what Sullivan had said about her. Similarly, in Volume 26 at page 30D Clarke was questioned about what Sullivan had said about Carly John -

“Q. Just look at Page 344, please, bottom line: ‘I know that Carly is afraid of both myself and Donna as we both have a reputation for fighting’. Yes?

A. Yes.

Q. Do you accept that Carly John was afraid of you?

A. That’s Denise’s opinion.

Q. I am asking you whether you agree with it?

A. I don’t know.

Q. Think about it, please, an answer ‘I don’t know’ is not very helpful.

A. I don’t know, I can’t say what Carly thinks because I don’t know what Carly thinks.

Q. Was she afraid of you?

A. I don’t know.

Q. Did you have a reputation for fighting?

A. No.”

The unspoken invitation to the jury was to accept Sullivan’s assertion that Carly John was afraid of the witness even though that assertion had no weight at all as evidence against Clarke.

Reverting to Volume 25, we see at page 49 a statement made by Sullivan to the police being used as the back drop for a series of questions about the critical period when the fire was started.

“Q. If we just look, please, at 351 in the statement of Sullivan, do you see about 6 lines down a sentence beginning ‘on reaching Mark’s home, Donna told us that she was going home to fetch some washing for Mark to do for her as her washing machine was broken’. Is that true or not?

A. No.

Q. It is not true is it?

A. No.

Q. In fact, what you told Denise Sullivan and Carly John was that you were going home to check on the children, was it not?

A. No.”

Prosecuting counsel cannot have expected the witness to agree with any version of the facts which undermined her alibi, and the only point of referring to Sullivan’s statement at this stage can have been to unsettle the witness, and to remind the jury of the contrast between what she was saying and the account given by Sullivan which, in due course, in considering the case against Clarke, the jury would be told by the judge to disregard. In dealing with this critical period of time perfectly proper questions were interleaved with references to Sullivan’s statement in a way which cannot in reality have failed to give the statement a status that it did not enjoy. For example at 50C -

“Q. In fact, you never went home that night to check on the children, did you?

A. No.

Q. And even when you left Mark Morris’s and saw the fire, you were not going to go and check on the children, were you, you were going home to read the letters, you told Mr Pitchford?

A. Yes, but I was in my house with my children, wasn’t I?

Q. You were not going home to check on the children, were you, or do you want to change the version you gave last week?

A. Its the same thing, isn’t it, going down to my house to read the letters and check on the children at the same time.

Q. Go back to the statement: ‘she then left us and walked in the general direction of her home which is situated behind Mark’s home and to the right, although I did not see Donna go into her home’. Yes?

A. Yes.

Q. That is true, is it not?

A. No.

Q. You did leave Carly John and Denise Sullivan at Mark Morris’s.

A. I didn’t.”

In Volume 27 prosecuting counsel returned to what Sullivan had said to the police on 16th February 1996 when enquiring into Clarke’s affair with Shaun Hibberd, and its effect upon her relationship with Diane Jones. At page 8B the transcript reads -

“Q. Please go to page 343. Of course, we are now talking about a time when Sullivan has eventually told the police that you did leave at Auntie Margaret’s and were out of sight for some minutes and you did not go into Mark Morris’s with them, you understand the point in time where we are at, do you not?

A. Yes.

Q. ‘I am aware from talking to both Donna and Diane that they hated each other’. Is she wrong about that?

A. Yes.

Q. So you say you did not hate her?

A. No.

Q. Right about Diane Jones’s feelings towards you, but wrong about your feelings towards Diane Jones?

A. Yes.

Q. ‘As a result of the affair with Shaun.’ And then she describes ... and I am not going to go through them ... she describes some incidents that you had told her about, there is the machete incident, the horse incident, and then this incident, halfway down the page: ‘Another incident was when Diane called at Donna’s and found Shaun in the house.’ What incident is this?

A. I don’t know what she is talking about.

Q. Come on, Miss Clarke.

A. I don’t know.

Q. Which incident is this, when Diane Jones caught Shaun Hibberd at your house?

A. Diane Jones have (sic) never been to my house.”

Clearly prosecuting counsel cannot have expected Clarke to agree with Sullivan’s interpretation, or even to provide information which would be of any value if in due course Sullivan were to give evidence herself, and whatever may have been the intention of prosecuting counsel the jury in reality must have been led to measure Clarke’s answers against the inadmissible written record of what Sullivan said to the police.

Counsel then drew the attention of the witness to a statement made by Hewins on 26th October 1995, which was also inadmissible against Clarke, and so he was able at page 10C to put this question -

“Q. So both Sullivan and Hewins have got it wrong when they describe you telling them of an incident when Diane Jones came to your house?

A. Yes.”

The unspoken invitation to the jury was to side with the majority.

After asking a number of questions based on Hewins’ interview of 14th February 1996 Mr Rees put his challenge at page 13B in this way -

“Q. The fact is, Sullivan was right when she said you hated Diane Jones and Diane Jones hated you, that is right, is it not?

A. No.

Q. Hewins was right when she told the police that there were loads and loads of rows between you, is that not right?

A. No.”

Once again the jury was, at least by implication, being invited to prefer witnesses whose evidence was not admissible. Similarly at page 15D -

“Q. Of course, Annette Hewins was seeing you -- and I am sorry to repeat myself -- daily at this time, was she not?

A. Yes.

Q. Let us just see what she says about this to see to what extent you agree with it. Page 21. Hewins says: ‘I thought she liked him,’ - meaning Shaun Hibberd, yes?

A. Yes.

Q. ‘What do you think she felt about him? Well, I thought she really liked him, you know, she thought, well, I thought, well, she thought the world of him. I’d even had said that I thought she loved him like, do you know what I mean.’ Where would Hewins get that impression from, Miss Clarke?

A. I don’t know, that’s her opinion.”

When Clarke denied that before she began to go out with Shaun Hibberd she used to look like a gypsy she was reminded of what Hewins had said to that effect in her interview on 14th February 1996.

Later on Mr Rees used Sullivan’s interview of 2nd November 1995 to suggest that in reality Clarke was very scared of what was going to happen when Simon Owens was released from prison. The witness and the jury were reminded of what Sullivan said about the correspondence passing between herself and Clarke, which seemed to be in sharp contrast to Clarke’s evidence that she was not fearful of Owens’ release.

At page 34G of Volume 27, when the witness denied wanting to visit Shaun Hibberd in prison, and wanting no contact with “Ossie” Mr Rees mounted an immediate challenge by reference to Sullivan’s interview of 2nd November 1995 -

“Q. Please look at Denise Sullivan’s bundle, still dealing with your relationship with Shaun Hibberd and your feelings towards him because, as you know, I am suggesting you are not telling the Jury the truth about your feelings towards Shaun Hibberd. Please turn to Page 19, this is an interview on the 2nd November: Casey says to her: ‘What does Donna feel for Shaun? Have you got that?

A. Yes.

Q. ‘Well she likes him, you know. Just like him? Yeah, she did like him. In a big way? I don’t know so much because before she used to say, ‘I really like him a lot.’ But you know she hasn’t said much about him now like, I know she still likes him though.’ Correct?

A. Yes.

Q. Would you agree with what is said there?

A. No.

Q. Oh, you would not?

A. I liked him, yes.

Q. You liked him but you are saying you did not like him a lot, is that it?

A. I liked him, yes.

Q. What do you disagree with in the passage that I have just read out to you?

A. I liked him.”

Obviously the jury is being invited to contrast the assertions of the witness with what Sullivan said to the police.

Again and again what Sullivan had said in interview was put to Clarke, extracts which she was never likely to accept and did not in fact do so. For example, at Volume 30 Page 50G Mr Rees quoted this passage from Sullivan’s statement dealing with what happened when Sullivan and Clarke got back to Clarke’s home at 6.30 am on the day of the fire -

““Q....’It was only then that I noticed that Donna had changed her clothing from those which she had on prior to the fire. She now had on an orange or peach coloured V-shirt and different trousers, although I cannot recall what colour the trousers were. Donna must have changed her clothes before we entered her house at 6.30 because she did not change them while I was at her house.’ Do you agree with that?

A. No.”

Obviously Clarke could not have agree that she changed her clothes before that early morning return home, but the jury was reminded that Sullivan had said otherwise.

In Volume 29 from page 88 onwards generous extracts of Sullivan’s interview of 14th February 1996 dealing with the critical period from 1.35 am at Mark Morris’s home are quoted verbatim, and at page 96D the account given by Sullivan is linked with Carly John’s evidence, thus using inadmissible evidence to support evidence which was admissible as an explicit basis for cross-examination of the witness.

“Q. Please turn over to second paragraph: ‘I would like to say that although Donna had left us to go and get some washing for Mark to do, I did not see her bring back any washing into the house. Donna then said that she wanted to take some washing that Mark had done for her earlier in the day and she asked us to go with her. We agreed and Mark walked us to the front door, Mark opened the front door and I walked out first. Before I go any further, I’ve just remembered that when Donna originally left us at Mark’s house it was for her to go and check on her children and not to collect washing’ Yes?

A. Yes.

Q. Basically there, she is saying the same as Carly has said, hasn’t she?

A. Which is not true.

Q. You say it is untrue.

A. Yes.

Q. Please move on to Page 366, this is the retraction statement that she gave, halfway down the last paragraph: ........”

At Volume 30 Page 9 Mr Rees perfectly properly reminded Clarke of the evidence of Carly John that when Sullivan was crying after the fire Clarke had said to her “come on, it doesn’t matter.” Clarke denied saying “it doesn’t matter”, and she was immediately reminded of what on that topic Sullivan had said to the police. The whole issue of Clarke’s reactions to the fire and her belief as to whether Diane Jones and her children were in the house was explored through the medium of what Sullivan had said. For example at Page 11H -

“Q. If you look at the next paragraph: ‘For a week after the fire, Donna’s personality changed. She cried often. She was very withdrawn. I was surprised at this because of her hatred for Diane.’ You were crying because of the enormity of what you had done, were you not?

A. No, I hadn’t done nothing, and everybody was crying.

Q. The killing of the two children ------

A. I didn’t kill nobody ------

Q. As well as Diane Jones.

A. I didn’t kill nobody. I never set fire to nothing. I’m innocent. I haven’t done nothing wrong.

Q. ‘However, after the time she became more of herself again and has become as hard a person as she ever was.’

A. Denise has never seen me upset, so how can she say?”

Again at Volume 30 Page 29C -

“Q. ‘I do not know how Donna got there. She did not pass me at any time. I then walked up to Donna and asked her for a cigarette for Deane. She then joined us and gave Deane a cigarette. I told her that Diane and children were in the house and she started crying. She said, “Who told you that?’ I said, ‘Tammy.’ She then said to Tammy, ‘They can’t be. I’m sure.’ Tammy said, ‘Yes, I heard Diane crying for somebody to help her.”’ Did you say to Tammy, ‘They can’t be’?

A. No.

Q. You did not?

A. No.

Q. ‘Donna then said, “Come on, let’s get out of here.” Did you say that?

A. No. .......”

“.....Q. ‘We then walked along the path between Tammy Jones’s house and Marigold flats and stopped in the small car park which is situated behind the first row of flats in Marigold Close. I cannot remember the exact words of what we said, but we then had the following conversation. Donna said, I can’t believe the children and Diane are in there . They’re not supposed to be in there. She’s in bingo.’ Yes?

A. Yes.

Q. Did you say that?

A. No.

Q. Did you say something like that?

A. No. But you’re saying how can she get out?

Q. Did you say, ‘I can’t believe the children and Diane are in there. They’re not supposed to be in there. She’s in bingo’?

A. No.

Q. You see, Sullivan is suggesting that you thought the house was empty, yes?

A. Yes.”

Clearly, by implication, the jury was being invited to accept that what Sullivan had said was right.

14. Cross-Examination of Hewins

Sullivan did not give evidence, so when Hewins gave her evidence everyone knew that what Sullivan had said to the police was not going to be adopted by Sullivan in the witness box. It could not therefore form any part of the prosecution case against either Clarke or Hewins, but nevertheless Mr Rees, when cross-examining Hewins, used Sullivan’s material just as he had done when cross-examining Clarke. At times the object may well have been genuinely to see if the witness would agree, or to seek to strengthen the case against Sullivan, or to demonstrate collusion between the defendants, but for the most part the object, and certainly the effect, can only have been to cause the jury to take into account inadmissible material when evaluating the evidence of the witness. Other written material, prima facie inadmissible against Hewins, was used as an aid to cross-examination in the same way, in particular letters passing between Clarke and Sullivan, between Clarke and Ossie, between Clarke and Jason Hibberd, and the record of Clarke’s interview with the police. So, at Volume 18 Page 15 when Hewins denied knowing that by June 1995 Sullivan had become Clarke’s best friend, Mr Rees immediately referred the witness and the jury to Sullivan’s interview -

“Q. Can you just look briefly at Denise Sullivan’s interviews for a moment? I want to see whether what she says is right or not so far as you are concerned. Page 243, please. Top of the Page. Do you see the question, ‘Recently from, say, the middle of last year, you’ve been quite close to Donna, haven’t you? (A.) Yeah. (Q.) Would you say that you would spent most your, most of your time with her? (A.) Yeah. (Q.) Would you say it would be fair to say that you would see her most days of the week if not every day? (A.) Yeah. (Q.) And you would spend a large portion of the day and/or the evening with Donna? (A.) Yeah. (Q.) Would you go out shoplifting together? (A.) Yeah.’ All right?

A. Yes.

Q. Did you know that, that Denise Sullivan spent most of her time with Donna Clarke from the middle of 1995 onwards?

A. No.”

At Page 23D Mr Leighton Davies for Hewins pointed out that as the judge had said to the jury “many weeks ago” the contents of a co-defendant’s interviews are not evidence against another defendant, but Mr Rees was allowed to proceed uninterrupted. He justified doing so by saying -

“This is the evidence in the case of Denise Sullivan, first. Secondly, I want to find out whether this defendant agrees with it or not.”

The first of those reasons was irrelevant when cross-examining Hewins. The second could be relevant but all too often there was no realistic prospect of agreement whatsoever.

At Volume 18 Page 24 Mr Rees made skilful use of Sullivan’s statement of 18th February 1996 to implant the idea in the jury’s mind that there may have been a fuel container in the passenger compartment of the Sierra car on the evening of 10th October 1995, something of which there was no direct evidence, and which Hewins denied -

“Q. Do you remember you said that you carried a fuel container, but not in the car itself?

A. Yes.

Q. ‘On these occasions I’ve seen a black fuel container both in the car and in the boot of the car. This container is usually full.’ Did you keep the container mostly full or not?

A. No, I never kept a container with petrol in my car.

Q. ‘And is mostly kept near the front passenger seat.’

A. No, if ever I was in the car, I always had the can in the boot. I never had the can inside the car.

Q. Can we just look at that sentence then. You accept that you did have a black fuel container, did you?

A. Yes, I remember seeing a black -- I remember seeing a black can once or twice, perhaps.

Q. You saw it once or twice?

A. I never took no notice of cans because my husband always had cans, do you know what I mean?

Q. She is right that there was a black fuel container?

A. Oh, I’m not saying she could have seen one in the boot, yes.

Q. But, she is wrong when she says it is usually full and mostly kept near the front passenger seat?

A. Yes.”

Much later in his cross-examination Mr Rees returned to the topic of the black petrol container which had been found in the Sierra on 14th February 1996 -

“Q. Found in the front passenger well.

A. The Fiesta was my car and the Sierra my husband used to use.

Q. Where Denise Sullivan said she used to see a petrol container.

A. Denise had never seen a petrol container in my car. She may have seen one with Phillip when he’s given her a lift, but she’s never seen one when she’s been with me.

Q. So, she is wrong about that, is she?

A. Yes.”

Once again, as Mr Mansfield submitted, the jury was reminded of the inadmissible material to support the wholly unsubstantiated proposition that there was a petrol container in the passenger compartment of the Sierra on 10th October 1995.

In Volume 19 at Page 12E Hewins denied ever taking drugs, and was at once referred to a letter from Clarke to Ossie in which it was said that “Netty is on the billy”. Hewins was known as Netty, and billy was another name for “speed” or amphetamine. There was not even a suggestion that Hewins had seen the letter at any material time but, inadmissible though it plainly was, it was being used to discredit her.

At Volume 19 Page 54, by reference to Clarke’s interviews, Hewins was cross-examined about Diane Jones’ threat to tell Ossie about Clarke’s affair with Shaun Hibberd. Hewins said she knew of no such threat. She was then asked to look at Sullivan’s bundle in which Sullivan in answer to a police officer say that she had heard that such a threat was made, and Mr Rees continued -

“Q. Are you sure she didn’t tell you, like she told her friend Sullivan?

A. No she never told me. She told me that Ozzy’s family had written to Ozzy, but she didn’t tell me that Diane was going to write to Ozzy.”

The implication clearly was that it was the inadmissible information from Sullivan that was to be preferred, and as can be seen from this sort of question at Page 56C -

“Q. So it appears as though Denise Sullivan has got a totally different impression from you, doesn’t it?

A. Denise and Donna were close in a different way.”

Hewins was then taken to Clarke’s interviews, to letters written by Ossie to Clarke, and to letters exchanged between Clarke and Sullivan. She said more than once that she had never seen any of them, but questions in relation to the contents of the letters persisted, not least in relation to the letter written by Clarke to Sullivan on 2nd October 1995 which, the prosecution contended, foreshadowed the fire. So at Page 71A -

“Q. Can we just have a look at the other side of this page please to see if you can help the jury on some of the expressions that are used, from your experience of the Gurnos and Donna Clarke. ‘Howdy partner. I’ve had your letter. Glad to hear you are getting the rest you need cos, Lacey, when you get out, believe me, you’re going to be on a full fucking mission with me, muling these Bronx street.’ Now, a mission can mean violence, can’t it?

A. Well, I’ve never heard the word mission until after the fire.

Q. You’ve never ....

A. When Denise come out and I started bothering ... Denise started coming shopping with us, and that’s when I used to hear it.

Q. You have never heard the word mission until after the fire?

A. I haven’t heard Donna saying it, no.”

And a few questions later 71F -

“Q. ‘Muling the Bronx streets.’ Muling can mean using violence on the streets, can’t it, or hadn’t you used that expression or heard that expression before?

A. Not really no.

Q. Not at all?

A. Not really no, that I can think of.”

On one level it can be said that Mr Rees was simply seeking the assistance of the witness to produce definitions of local words and phrases, but in reality she was being tarred with the contents of the document which she claimed never to have seen, and the prosecution was in no position to prove otherwise. When he came to sum up in relation to the letter of 2nd October 1995 the judge did not give the jury any specific warning that any inferences drawn from it could not be used against Hewins who did not write or receive it, or (so far as was known) ever see it, and to whom it did not even refer.

We have spent some time dealing with what we regard the wholly unacceptable cross-examination technique used in relation to both Clarke and Hewins, but we must emphasise that the passages of transcript set out in this judgment are only examples of passages in respect of which both Mr Pitchford and Mr Mansfield have justifiably complained. In our judgment ground D of Clarke’s grounds of appeal and ground 4 of Hewins grounds of appeal are established, and the fact that each defendant was improperly cross-examined day after day in a case where so much depended on their response to the circumstantial evidence deployed against them makes it impossible for us to say that in either of their cases we can now regard their convictions as safe. It is no sufficient answer for the prosecution to say, as they do, that the trial judge warned the jury that answers given by one defendant in the absence of the other are not evidence against that other. In reality admissible and inadmissible evidence were so intertwined that it was impossible for the jury to apply the judge’s warning as they should have done.

15. Summing-up and Verdicts

That conclusion makes it unnecessary for us to consider in any detail the remaining grounds of appeal, but we should indicate in passing that we were not impressed with any of them. The trial judge gave adequate directions to the jury as to how they should approach the evidence of Carly John (Clarke’s ground F) and we are not satisfied that there was any material misdirection of law or fact in the summing-up (Clarke’s grounds G & H, and Hewins grounds 6). Mr Leighton Davies took a perfectly sensible forensic decision not to adduce the additional evidence which Mr Mansfield invited us to consider in relation to the interpretation of the video tape, and the evidence of Marcus Journeaux would have added nothing of any substance to Hewins’ case (Hewins ground 3).

The only other point worth considering at this stage is the alleged inconsistency of the verdicts. We accept that the Judge’s directions as to manslaughter as a possible alternative verdict in relation to count 1 made it in law logically impossible for the jury to convict the appellants on count 4 without also returning a verdict of at least manslaughter, if not murder, in relation to count 1. But the judge rightly directed the jury that, because of what is sometimes known as the doctrine of transferred malice, there could in reality be no possibility of different verdicts in relation to counts 1, 2 and 3, and it seems to us highly probable that the jury were understandably reluctant to convict either appellant of serious offences in relation to Diane Jones’ children, not least because it was clear from the evidence we have cited in this judgement that Clarke was distraught when she heard that the children had died. Counsel for the appellants made no criticisms of the Judge’s directions in law in relation to count 4, nor realistically could they do so, and were it not for the grounds of appeal we have found to be established the fact that the jury was generous in the way that it dealt with counts 1,2 & 3 would not in the circumstances of this case lead us to question the verdicts in relation to count 4 (Clarke’s ground I and Hewins’ ground 2).

16. Conclusion

However, as set out earlier in this judgment there are other grounds of appeal which have been established, and which have led us to the conclusion that the convictions on count 4 cannot stand. In the case of Hewins one of her successful grounds of appeal is that in reality there was no sufficient evidence to prove the case against her, so in her case it would not in our judgment be right to order a re-trial. In the case of Clarke the position is different. There was in our judgment a clear case to answer, and the appeal has only succeeded because of what happened when she was being cross-examined, a sequence of events which distorted the conduct of the case. We therefore order that in her case there should be a re-trial on count 4. A new indictment will be required, but, having regard to the verdicts of the jury on counts 1, 2 and 3 and our conclusions in relation to ground I of Clarke’s grounds of appeal we do not consider that counts 1, 2 and 3 of the present indictment can or should be revived. It is however open to the prosecution to include a count reflecting the present count 5 if it is considered appropriate to do so.

We accordingly direct that a fresh indictment be preferred by Friday 26 February -- that is to say Friday week -- and that Clarke be re-arraigned on that indictment within two months of today's order. We propose that the hearing be at Cardiff to commence on 13 April 1999.

(Legal aid was granted for leading and junior counsel and for a solicitor. An application for bail was refused )

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