James, R v [2000] EWCA Crim 64 (1st December, 2000)

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JAMES, R v. [2000] EWCA Crim 64 (1st December, 2000)

1. The appellant in this case is John James, now aged twenty-four, who, on 30^th January 1996, at the Central Criminal Court before Potts J and a jury was convicted of murder by a unanimous verdict and sentenced to life imprisonment. Leave to appeal was granted by the single judge after an extension of time application had been granted by the Registrar.

2. The conviction arose out of a street fight in which the appellant, together with his friend and co-accused, David Robinson, were involved with a group of other young men near to the Moon and Sixpence public house in Welling, Kent. The victim was one of the latter group, Darren Sylvester. The fight followed an incident earlier in the evening when the appellant's sister, Anna James, and her friend Kelly had been drinking in the pub and were insulted by the group in highly crude and abusive language. They left the pub upset and distressed and, on returning home they informed the appellant and Robinson of the incident. Later that evening, the appellant, Robinson and Kelly were passengers in a car driven by Anna. The girls spotted Darren Sylvester and stopped the car. The appellant and Robinson got out of the car and walked towards Sylvester and his friend. In the ensuing fight a knife was produced with which the appellant stabbed Sylvester several times, causing him serious wounds from which he died a short time later. In the course of the fight Robinson also sprayed Sylvester with CS gas from a canister which he was carrying. The prosecution case against the appellant was that, with Robinson, he had deliberately sought out Sylvester, the appellant armed with a knife and Robinson with CS gas, in order to teach him a lesson. The defence case was that the sighting of Sylvester was a co-incidence, that Robinson got out of the car to speak to Sylvester followed by the appellant, simply to obtain an apology, that Sylvester attacked the appellant and produced a knife which somehow came into the hands of the appellant who either acted in self-defence or blindly, not intending to kill Sylvester.

3. The conviction was based on the evidence of eyewitnesses, none of whom saw the knife in the hands of anyone but the appellant. The appeal is not based upon any criticism of the conduct of the trial judge. In an opinion as to the prospects of an appeal, Mr Birnbaum QC, who defended the appellant at trial, stated that the summing up afforded no grounds for criticism. The appeal is based upon the appellant's application for leave to call fresh evidence pursuant to s.23 of the Criminal Appeal Act 1968 as amended, in particular as contained in the statement of a Marcus Glasscock suggesting the propensity of the victim to use and carry a knife, thereby affording support for the defence of the accused that he acted in self-defence using a knife which had been produced by Sylvester. Such support was notably absent at trial. Before turning to the application, we summarise briefly the evidence as taken from the transcripts of the summing up and the witness statements. We observe in parenthesis that the transcript of the evidence at trial is not available; however, it is not suggested that its absence is material to the broad ground of appeal as we have summarised it.

4. The pathologist who examined the victim's body, said that Sylvester died as the result of a stab wound to the abdomen which penetrated the left lobe of the liver, the aorta and the anterior surface of the first lumbar vertebra to a depth of between five and six inches. Death would have been rapid, although collapse was not immediate. There was a second stab wound to the left side of the face which penetrated the skull some four to five centimetres and entered the dura causing the brain to bleed. Only moderate force was required for the two blows to have penetrated as they had. There were also two other wounds to the victim's left elbow, consistent with defensive injuries.

5. The murder weapon was a lock knife, which had a wooden handle bound with brass at each end and a silver blade. It was recovered after the incident, together with the CS gas canister, to which Robinson later took the police, well removed from the scene.

6. Alan Sylvester, the victim's father, said his son was an angler and clay pigeon shooter whom he saw several times a week. He had never known him carry a knife except a craft knife for fishing. He had a Stanley knife and two craft knives in his tackle box. Mr Sylvester had never seen the murder weapon before and said the victim did not own a lock knife. Stacey Henderson, the victim's girl friend, said she had never seen him with a knife. She produced a knife which he had brought from work for fishing which had a fixed blade and she used as a kitchen knife. John Scofield, a workmate of the victim at Brighton Marine where Sylvester was a rope maker, produced the type of knife which Sylvester used in the course of his work. He said the firm never used knives of the type of the murder weapon and he had never seen Sylvester with such a knife.

7. So far as the attack itself was concerned, Christopher Gray, a friend of the victim said he had never seen Sylvester with a knife and that he was not a violent man. Gray said he had been at the Moon and Sixpence with Darren and other friends in the early evening playing pool. He had drunk about five pints of lager but was not drunk; neither was the victim. He remembered the girls going into the pub and conceded that one of the group had made a remark about them which was very offensive and highly obscene. He said that he, Sylvester and another friend called Joseph Simms decided to go to another pub, the Plough and Harrow, across the road. They spoke to two people on the way. Shortly after, two men approached Sylvester and Simms who were ahead of Gray, one of whom Gray recognised as the appellant. The appellant came and put his arm around Sylvester who pushed him away. Robinson was standing close by. A scuffle started. The appellant produced a knife and Sylvester hit the appellant. Robinson started to fight Simms. The appellant held the knife over his head and brought it down to hit Sylvester on the forehead. Gray did not see the appellant use the knife again. He saw Robinson spray Simms with CS gas and Sylvester hit the appellant three or four times. The appellant also slashed at Simms. The appellant and Robinson then ran off across the road, Sylvester running after them but collapsing on his back. He did not get up. Gray said the knife was a lock-knife with a wooden handle with brass edging and a blade about three inches long. He denied that he was able to describe it because he had seen it in Sylvester's possession before. He said that he had recognised the appellant and he and the group afterwards discussed whether he should tell the police. He said that he saw the knife clearly because it was in the appellant's right hand as he ran off. He said that the appellant and Robinson arrived on the scene together. He denied that Simms and Sylvester ran to attack them; the reverse was the case.

8. Joseph Simms, another friend of the victim, also said he was not a violent man. He recalled the girls in the pub and the words used. He said that on the way to the Plough and Harrow later he and Sylvester crossed to the middle of the road with Gray behind. Two men came up to them and one put his arm around Sylvester saying he wanted a word about him having a drink in the Moon earlier that day. Gray caught up and they all walked towards an alley. He saw Sylvester throw off the man's arm and hit him in the face. He said that Robinson sprayed a can in his (Simms) face. The man asked if he `wanted some', and held up his arm with a knife, sweeping at Simms and hitting him in the teeth. Robinson sprayed them both. The man with the knife then aimed two or three blows to Sylvester who backed on to the railings but did not seem in trouble. Sylvester said, `he's got a knife' and they didn't want any more, so ran off. However, Sylvester then collapsed. It was put to Simms that (as was apparent from the evidence of a police officer which was read) that when Simms first told him of the incident after the event he had not mentioned a knife. He denied that he had fabricated evidence of the attack. He said he did not see the knife go into Sylvester but saw it in the appellant's hand and put two and two together. He described the knife to the police as having a wooden handle with brass bits at each end and a silver blade and said he had never seen it in the possession of Sylvester. He insisted that he had told PC Collins about the knife. He admitted himself kicking the appellant in the stomach during the incident.

9. There was an independent witness, a bystander called Isaac Hudson-Gould. He had noticed the group of three coming out of the Moon and crossing the road. He said they appeared drunk and loud. One was singing and everything seemed quite friendly. He saw them stop and talk to two people in the road. [It is not clear, though it seems likely in view of the time-scale, that the two men Hudson-Gould first saw were the two mentioned by Gray who were spoken to before the accused arrived]. Mr Hudson-Gould went to find his girlfriend and on his return saw another man standing in front of the tall man (Sylvester) in the group of three. The former punched the latter in the middle of the chest who then staggered and fell back on the road. The man then walked across the road looking back and saying, `You're going down' with the emphasis on the `down'. Mr Hudson-Gould did not see anything in the hand of the `puncher'.

10. Another independent witness, Grant Connever, saw the incident from the window of the Moon and Sixpence. He saw a group of people fighting coming from the alleyway and one of them fell backwards into the road covered in blood. Two others walked past, one wearing a black bomber jacket with dark hair (consistent with the description of the appellant). He looked angry and was pointing and saying something.

11. Daniel Gilbert saw two people arguing outside the Plough, one of whom he recognised as the appellant and the other as Darren Sylvester. He saw them arguing and saw the appellant `punching' Sylvester. He saw the glint of what he thought at the time was a shiny watch and simply carried on walking.

12. There were a number of other witnesses who saw the incident from fairly nearby. They spoke of a scuffle, blows struck, one man falling and two running off to a car, but none saw a knife or appreciated a stabbing had taken place.

13. In interview the appellant refused to answer questions on the advice of his solicitor, but he proffered a statement. He said that he, David Robinson, Kelly and Anna were in Anna's car going to pick up her baby. They drove past the Moon and Sixpence and the Plough, when Robinson said stop the car. Kelly stopped the car and Robinson got out and seemed to be arguing with a group of three men, so the appellant walked over to talk to them. Two of them immediately rushed at him kicking and punching him. One had a knife which `ended up' in the appellant's hand. He then got back into the car.

14. In evidence at trial, the appellant stated that Kelly had telephoned him and Robinson to make arrangements to go to a club. Robinson had taken the call and the girls were upset that they had been insulted by boys in the pub. Kelly and Anna then arrived and all four decided to pick up his sister's baby. They had not intended to go to the Moon and Sixpence. However, the girls spotted the boys who had insulted them. He could not remember who said stop the car. However, he and Robinson walked over to them to obtain an apology on behalf of the girls. They walked over to the alley and he asked Sylvester if he had been in the Moon that night. An argument broke out over what had been said to the girls. The appellant said he was then punched by the blonde man (Sylvester) and kicked in the stomach by the man with the ponytail (Simms). He said the blonde man came at him with a knife lifting his arm above his head as he did so. He (the appellant) saw a silver blade coming towards him in a slashing movement. They struggled and he managed to wrest the knife away from the blonde man. He wanted to get to the car. He accepted he must have stabbed Sylvester but could not remember doing so. He and Robinson ran to the car and there was a panic to get away. He was scared and realised he had a knife in his hand and a cut at the base of his thumb. He could not remember disposing of the knife. He did not know why the knife and canister were put down the drain. The next thing he remembered was sitting outside his sister's house with Robinson whilst the girls went inside. The brother-in-law then came out and took them to the station so they could get a train to the West End. He had not realised he had stabbed a man. They went to two clubs and later returned to Anna's house where they spent the night. In the morning they went to Robinson's house. He heard on the radio a man had been stabbed and died and put two and two together. He became very confused and decided to go to Spain. [He was arrested some time later on his return].

15. The defence called Doctor Wheeler, the Prison Medical Officer, who said that, in a number of sessions with the appellant, his story remained the same i.e. that he could not remember the struggle. However, he remembered his friend in the distance arguing with three people; also that he walked across and asked his friend what was wrong at which point he was attacked and kicked. The kicker then went at him with a weapon and he (the appellant) then ran away from the scene with a knife in his hand. As to the immediate circumstances of the stabbing, the doctor considered the appellant might be suffering from post traumatic stress disorder and that his memory loss may have been triggered by a shocking event like killing someone. The memory loss was limited to the period of the struggle but the doctor said it could extend to the disposal of the knife, even though the appellant had said previously he was running away with the knife in his hand.

16. Anna James, the appellant's sister, gave evidence about the earlier incident. She said she did not know if Kelly had spoken to Robinson about the remarks which had been made. She said that when they were in the car they were going to her sister's house. They saw Sylvester and his friends larking around outside the pub. One of the girls then told of the earlier incident and Dave Robinson said to stop the car. He got out followed by the appellant. She thought they were going for cigarettes. She saw the appellant cross the road and put his hand on the shoulder of one of the boys. She said a fight started and the appellant swayed as though he had been hit. After a few seconds the appellant and Robinson returned to the car, one saying `drive, Kelly drive'. She said the appellant said that one boy had pulled a knife on him and the appellant had blood on his nose and on his thumb. He threw the knife on the front passenger floor. They went to her sister's house. On the way Robinson said they should stop to get rid of something but she did not see what he did with it.

17. Robinson did not give evidence. He had made a statement as to his part in matters, admitting use of the CS spray. He stated that he and the appellant had intended to teach the two boys a bit of a lesson and he suggested that the appellant had the knife with him when he left the house as he normally carried one, though he said he had not seen it on that occasion. This statement was in evidence as part of the Crown's case against Robinson. However, the judge fairly and properly directed the jury that such statement could not be treated as evidence against the appellant and they should disregard it so far as he was concerned. The jury returned a unanimous verdict, having at one stage earlier returned to ask the judge for further directions upon the meaning of intent and, in particular, what constituted really serious harm.

18. The evidence now sought to be adduced before this court is that of Marcus Glasscock who, on 17^th October 1999, supplied a statement to the appellant's solicitors concerning an incident which he stated occurred some six months before the killing when, having been denied admission to a party which he (Glasscock) was giving, Sylvester had become aggressive and stabbed Glasscock with a knife. The statement also contained lengthy explanations as to why, despite contact with the police, Glasscock had not been prepared earlier to supply such a statement. We have considered the contents of the statement and the circumstances in which it was obtained for the purposes of deciding whether the requirements of s.23 of the Criminal Appeals Act 1968 are satisfied. S.23 provides as follows:

"(1) ... the Court of Appeal may, if they think it necessary or expedient in the interests of justice -

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings and

(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal arises on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

19. With regard to the matters set out in sub-section (2), we were immediately satisfied as to (c) namely that, if available to the defence at the time of the appellant's trial, Mr Glasscock's evidence would have been admissible as to the propensity of the victim to carry a knife. So far as concerns paragraph (d), the Crown objected in its skeleton argument that the evidence could have been available at trial had the defence seen fit to make efforts to obtain it. It is plain that the existence of Mr Glasscock as a possible witness was known to the defence. We have been supplied with a copy of the advice of Mr Birnbaum as to the prospects of an appeal given shortly after conviction. The relevant parts read:

"The evidence was such that the jury were quite entitled to disbelieve Mr James' claim that he was attacked by the deceased with a knife. After his conviction Mr James told me for the first time that there were people known to his family who had known the deceased and who could confirm that he carried a knife ... .

There is another possibility on the score of fresh evidence. Final disclosure was made by the prosecution very late in this case. Mr Nagle, junior counsel for the prosecution, gave me at court some details of witnesses that we had been enquiring about. One of them was Mr Glasscock. He was reported to have claimed that he had been attacked with a knife by the deceased. However, when spoken to by the police he denied that this was so, or indeed that he had ever made any such allegation .. . Attempts were made during the trial to contact Mr Glasscock on the telephone number given but without success ... . Consequently we were not able to proof him.

After the conviction I told Mr Laidlaw that the defence would wish to renew enquiries to find this witness ... ."

20. On the basis of the matters contained in that advice, and the fact that, as material before us makes clear, pre-trial disclosure (albeit belated) was made in relation to the short oral statement made by Mr Glasscock to the police in March 1996 [from which he then resiled], the Crown argued that we should not receive evidence in respect of which insufficient efforts were made by the defence to ensure Mr Glasscock's presence as a witness. Having considered the material available, we are satisfied that there were considerable difficulties in contacting Mr Glasscock at the time. Further, he was reluctant to be involved and, even if contacted, would almost certainly have refused to assist. Accordingly, we did not think it right to refuse to hear the evidence on that score and we heard the evidence of Mr Glasscock `de bene esse' with a view to considering it in the light of sub paragraphs (a) and (b) of s.23(2).

21. The evidence of Mr Glasscock was as follows. He said that, in October 1995, he was living at an address in Granville Road, Welling, where he held a party to celebrate his birthday on the basis of a `£10 whip' on the door i.e. a £10 contribution from those who came, taken at the door as the price of entry. When the party was in progress there was a knock at the door and a group of up to six youths, including Sylvester (who he knew by sight but not by name) sought to come in. When told it was a `£10 whip', Sylvester, who was in the lead, said `we don't pay to come in'. Told by Mr Glasscock that, in that case he could not come in, Sylvester headbutted Mr Glasscock and a struggle ensued in the course of which Mr Glasscock felt a punch on his shoulder and felt something sharp which he assumed was a knife. When cross-examined, he said he had seen something come down on his shoulder which he assumed was a knife because of the nature of the injury which he later found he had suffered, namely a penetrating wound on top of the shoulder `down to the bone', as he put it, and which caused a good deal of bleeding. He said that he and others at the party chased the group off at that stage. When the police came later, he told them that nothing had happened as he did not wish them to interfere in what he saw as his own problem.

22. Mr Glasscock said that after the party he sought to find out who the group were and found out that they regularly drank at the Plough and Harrow. He said that after the party there were `repercussions' (on which he was not asked to elaborate) in the next few months, once at the Plough and Harrow, once in a club at the Blackwall Tunnel and once at St Paul's Cray. He described the incidents as `skirmishes' in which fighting broke out and punches were thrown. He did not suggest that weapons were used or produced on those occasions.

23. Between November 1995 and March 1996 he was being sought by the police for a number of motoring offences. On 29^th March 1996 he was stopped and arrested after giving a false name and address. When asked if he knew of the Sylvester killing, he said that Sylvester had deserved it as he (Glasscock) had once been stabbed by him. However, asked if he wished to make a statement he said `No'. He acknowledged that, thereafter, the police made efforts by leaving telephone messages with his father at the address and number he had given them, asking for him to come to the police station to make a statement. However, he was unwilling to go, ringing the station on several occasions but failing to speak to the officer in charge. He said he did not wish to co-operate because he did not wish to be involved. On the last occasion he had made contact he told the police that they had got the information he had given them wrong. The information which he gave over the telephone was recorded by the policeman receiving the call in the following terms:

"He did not know the victim save having heard his name as a result of the murder. He stated that what he told the police was that about twelve months ago he was set on by a group of about eight youths not including the victim, o/s the Plough and Harrow. If the victim had been part of that group or that `ilk' then he deserved what he got but he (the victim) was not. Subj. stated that he wasn't stabbed. He also stated he knew names of people in the group but would not say who they were".

24. We have considered this evidence carefully. It is plain that Mr Glasscock, as he accepted, was someone known to the police. He had a conviction for causing grievous bodily harm in respect of which he had received a custodial sentence of one year at the age of eighteen, but, over many years since, he had been involved only in motoring offences. He was plainly a ready liar and had told inconsistent stories to the police in relation to the incident at the party in which he said he was stabbed by Sylvester. He had also given false particulars to the police on a number of occasions. His motives for coming forward at this late stage, when he had not previously been prepared to assist, were also obscure. However, we are prepared for the purposes of this appeal to assume that a jury, receiving that evidence at trial might have been prepared to accept it as true, or possibly true. Further, although Mr Glasscock did not purport to have seen a knife in the hand of Sylvester on the occasion of which he spoke, we are prepared to assume that the jury would have acted on the basis that it may well have been a knife in the hand of Sylvester which caused the injury of which Mr Glasscock spoke. Accordingly, we have been prepared to treat the evidence as `capable of belief' for the purposes of s.23(2)(a) of the 1968 Act.

25. We therefore turn finally to consider the linked questions, first whether the evidence `may afford any ground for allowing the appeal' (see s.23(2)(b) of the 1968 Act) and second whether, having heard Mr Glasscock, we consider that his evidence as to the earlier stabbing incident renders the verdict unsafe.

26. We do not so consider for the following reasons. The appellant's case in respect of the initiation of the incident was inherently implausible. The undisputed background to the incident, namely the disgusting verbal abuse of the appellant's sister, gave the appellant and Robinson an obvious motive to arm themselves and to seek out the deceased for the purposes of confrontation. The appellant accepted that, on the telephone to Robinson shortly after the abuse, the girls were upset and said they had been insulted. Nor was it in dispute that Robinson had armed himself with a CS gas canister before going out. In those circumstances it seems plain that they went out expecting some kind of violent confrontation. It was also highly unlikely that, although the appellant so stated, they happened upon the victim by chance. Even on the appellant's story, the car was stopped when the girls had identified the boys who had insulted them. Again the appellant's explanation that he left the car only to extract an apology was inherently unlikely. In his statement to the police, he put the initiative with Robinson as having stopped the car, got out and commenced an argument with Sylvester's group, before the appellant got out and went to speak to them, he then being immediately attacked. At trial, his version was that he had walked over with Robinson, in order to obtain an apology before he was attacked. Further, his account of being attacked by Sylvester and disarming him was not only unsupported, but in marked contrast to his assertion that he had no idea how he came to stab Sylvester, nor any memory of doing so. His evidence that, on the night of the stabbing, even after the knife had been disposed of, he did not realise he had stabbed anyone was inherently incredible.

27. The evidence of Mr Glasscock that Sylvester had been aggressive and in possession of a knife on a previous occasion some months before, did not and could not amount to any kind of direct evidence that such was the case on this occasion. Of the various witnesses to the incident, none stated or suggested that that was the case, or that the knife was ever seen in the hands of anyone but the defendant. Even if the jury were sceptical of the evidence of Gray and Simms, as friends of the deceased, that he was generally of a peaceable nature and was not carrying a knife, there was evidence from two independent witnesses, Hudson-Gould and John Griffin who saw what was plainly the fatal blow in circumstances where they had seen no immediate violence offered to the appellant before he struck. Gilbert saw the glint of what must have been the knife and Hudson-Gould was in no doubt that the attacker (i.e. the appellant) had deliberately used words to the effect `You're going down'. This observation was also consistent with the demeanour of the appellant described by another witness, Grant Connever. Finally, following the incident, it was plain that Robinson and the appellant disposed of the weapons used having fled the scene, the appellant himself swiftly travelling to Spain.

28. Mr Lyons' vigorous argument for the appellant has consisted solely of the assertion that, had the jury heard the evidence of Mr Glasscock, they would have been aware that Sylvester was not of the peaceable nature which his friends had portrayed, and in particular, may have been carrying a knife on the evening in question. On that basis, Mr Lyons submits that, even if the jury rejected much of the defendant's version of events, they could not be certain that he did not act in self-defence. Mr Lyons has put the case with skill and force. However, although gauging the possible effect of fresh evidence upon the jury, had it been given at trial, may often provide the best means of deciding whether a conviction is safe, it is not in fact the test. The ultimate question and the only test, is whether, in the light of the fresh evidence and all the other circumstances of the case, the conviction is unsafe: see Stafford -v- DPP [1974] AC 878 and R -v- Lee [1984] I WLR 578 at 585C-D. Thus, if the individual members of this court are themselves not left with any lurking doubt as to the safety of the verdict, the appeal should be dismissed.

29. That is the position in which we find ourselves in this case. It seems to us that, whether or not Sylvester had a propensity on occasions to carry and use a knife, there is no shred of supporting evidence for the assertion of the appellant, that he did so on the occasion in question. While any judge, hearing the evidence of Mr Glasscock, would no doubt direct the jury that, if they accepted it, it might lead them to conclude that Sylvester was not necessarily the peaceable man his friends had asserted him to be, he would nonetheless be bound to direct them to decide the case upon the basis of the evidence which they had heard and not upon the basis of speculation. It is quite plain that the jury rejected the defence of the defendant as inherently incredible and unsupported by any witness who had observed the scene. Furthermore, even if credence were to be given to his assertion that the victim produced a knife, there was no evidence, even from him, to suggest that, at the time the blows were struck (when by definition he had a knife and the victim did not), they were struck in self-defence, let alone that they constituted the use of reasonable force to that end.

30. Accordingly, having considered the evidence of Mr Glasscock, we have no hesitation in dismissing the appeal.

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> James, R v [2000] EWCA Crim 64 (1st December, 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/64.html Cite as: [2000] EWCA Crim 64

England and Wales Court of Appeal (Criminal Division) Decisions

JAMES, R v. [2000] EWCA Crim 64 (1st December, 2000)