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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McCloy [2007] EWCA Crim 1263 (15 May 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1263.html Cite as: [2007] EWCA Crim 1263

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		15 May 2007

Tuesday 15 May 2007

THE LORD CHIEF JUSTICE: I will ask Mr Justice Teare to give the judgment of the court.

MR JUSTICE TEARE:

1. On 25 February 1982, in the Crown Court at Birmingham, the appellant was convicted (by a majority of 10:2) of robbery. On 26 February 1982, the trial judge sentenced him to fifteen years' imprisonment. On 15 February 1983, his applications for leave to appeal against conviction and sentence and for a representation order were refused by the single judge. On 12 December 1983, the full court refused his renewed applications for leave to appeal against conviction and for a representation order. In July 1984 the appellant's appeal against sentence was allowed and his sentence was reduced to twelve years. He now appeals against his conviction upon a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 on the following basis:

(1) The convictions of two co-accused have been quashed.

(2) Improperly obtained and inadmissible evidence in the form of a confession of a co-accused (Twitchell) implicating the appellant was before the jury.

(3) The involvement of discredited West Midlands Serious Crime Squad officers in this investigation impugned the evidence of the other officers who were directly involved in the appellant's case.

2. The facts of the robbery can be summarised as follows.
3. On Thursday 13 November 1980, George Smith (the deceased) was shot and fatally wounded during a robbery. At 10am a Securicor van being driven by the deceased, collected a bag containing £11,514 in notes and coins from Lloyds Bank in Market Place Willenhall. It was then driven to the premises of Lowe and Fletcher Limited in Church Street, Willenhall, West Midlands, arriving at approximately 10.15am. The deceased stepped out of the van onto the pavement and took a bag containing £11,514 from the hatch of the van and walked towards the door of the premises. A metal hoop had been placed across the door handles, which prevented them from opening. The deceased removed the hoop, but before he could gain entry into the building, someone rushed him and fatally shot him in the chest at point-blank range with a sawn-off shotgun. It was the prosecution case that two men approached the deceased, one carrying a sawn-off shotgun and one a pickaxe handle. Mr Smith was pronounced dead at 10.45am.
4. There was evidence that the two men had been waiting in a stolen red Ford Escort van which was parked in a yard adjacent to the entrance of Lowe and Fletcher Limited.
5. A number of witnesses saw a bronze coloured Daimler Sovereign motor car (sometimes referred to as a Jaguar) registration number NJU 949M parked on its offside immediately behind the Securicor van just before and just after the shooting. Two men seized the bag containing the money and jumped into the Daimler Sovereign motor car. The car made off at speed. Witnesses refer to having seen five men inside. The Daimler belonged to a Mr Knights and had been stolen shortly before the robbery.
6. The prosecution case was that this was a carefully planned joint enterprise. The three men in the Daimler motor car were the driver Behan, Hammond and Twitchell. They had followed the Securicor van from Lloyds Bank to Lowe and Fletcher Limited. The appellant, who was carrying a pickaxe handle, and Irvine, who was carrying a shotgun, were said to be the two men in the red Ford Escort van who committed the robbery, and one of whom shot the deceased. They then joined the men in the Daimler and fled the scene. A sixth man Steele had placed the metal hoop across the door handles of Lowe and Fletcher Limited, and had then left the scene in a BMW prior to the robbery and waited for the others in the car park at the dog track.
7. The case against the appellant was based on five pieces of evidence. They can be summarised as follows. First, DC Turner purported to identify the appellant from a photograph he had seen on 13 November 1980. Prior to the trial he made a statement to this effect dated 14 January 1982. Secondly, the police recovered a Jaguar motor car belonging to the appellant outside a house occupied by Patrick Irvine. Dr Bolister gave evidence at trial that he was in no doubt that this was the same wheel that had been a spare in the stolen Daimler. Thirdly, there was evidence of association between the appellant and Mr Irvine. Fourthly, he had allegedly tried to alter his appearance. There was evidence that, using the alias of George Dickinson, he had paid £640 in cash to a hair clinic for a hair transplant. Fifthly, there was evidence of incriminating remarks made in his second interview on 31 January 1981 with DCI Gittings and DI Law. It was alleged that he had admitted fitting a tyre from the Daimler to his own car and, further, that he had left the pickaxe handle in the front seat of the Daimler on the day of the robbery, where it was subsequently found.
8. The case for the appellant was one of alibi. He had been charged, it was said, only because of his association with others. He gave a statement from the dock as to his whereabouts at the material time and denied any involvement in the offence.
9. Twitchell's case was also one of alibi. He was at home all morning until midday on 13 November 1980, save for going out briefly to a local shop. Statements taken by the police admitting his involvement and that of the appellant and Irvine were fabricated and he only signed them to stop the police torturing him. The fibres on his belongings from the Ford Escort van and the toys and tools had been planted by the police.
10. Irvine's case was denial of any involvement. The police evidence was complete fabrication.
11. The issue for the jury so far as the appellant was concerned was whether or not he was where he claimed to be at the time of the robbery and murder; if not, whether or not he knowingly assisted in the robbery and whether or not he deliberately shot the deceased.
12. Some years later, in 1999 and 2002, the Criminal Cases Review Commission referred the convictions of Twitchell and Irvine to this court. Following a reference by the Criminal Cases Review Commission, on 26 October 1999 the full court quashed Twitchell's convictions. Twitchell had made an allegation two days after his interviews, and again at trial, that officers interviewing him had placed a plastic bag over his head to force a confession from him. A similar complaint by a Derek Treadaway had resulted in damages being awarded by McKinnon J in a civil action. McKinnon J was satisfied that Mr Treadaway had been assaulted by five named officers of the West Midlands Serious Crime Squad, one of whom was DS Brown, who had also interviewed Twitchell. Giving the judgment of this court, Rose LJ held that

"highly significant and potentially devastating cross-examination could plainly have been directed at Brown, Taylor, Perkins and Quinn, in the light of what is known about those officers. The fact that such devastating cross-examination could have been so directed, is as it seems to us, on a review of all the material before this court and in light of the concessions properly made by the Crown, an ample basis upon which to say that this appellant's convictions are unsafe".

13. There was also a reference to this court by the Criminal Cases Review Commission in the case of Irvine. On 14 January 2002, this court quashed Irvine's convictions. The basis of the referral was the discrediting of the police evidence and the impact of the quashing of the conviction of Twitchell. It also referred to Twitchell's statement implicating Irvine (although inadmissible). The only real evidence against Irvine was that he had made a confession to the police in the police car following his arrest -- admissions that were subsequently denied in a further police interview and from the dock. The Crown also concluded that the conviction was unsafe. The full court held that there was no basis for upholding the conviction.
14. By a reference dated 1 June 2006, the Criminal Cases Review Commission has referred the appellant's conviction to this court on the following grounds:

(1) The convictions of two of the appellant's co-defendants have been quashed.

(2) Improperly obtained and inadmissible evidence in the form of a confession of a co-defendant (Twitchell) implicating the appellant was before the jury.

(3) The involvement of discredited West Midlands Serious Crime Squad officers in this investigation impugned the evidence of the other officers who were directly involved in the appellant's case.

15. The Crown has given careful consideration to this reference and has concluded that it would not be right to seek to argue that there is anything other than a distinct possibility that the jury would have reached a different verdict in the appellant's case, whether because the confessions of some or all of the others naming him had been ruled inadmissible and/or because some or all of the officers involved in some of those confessions had been cross-examined before the jury as to material now known to their discredit.
16. This court has considered the reference by the Criminal Cases Reveiw Commission, the written and oral submissions made on behalf of the appellant, and the written submissions on behalf of the Crown. We have concluded that in circumstances where, first, the appellant was implicated by a confession of another defendant which was improperly obtained and ought not to have been admitted; secondly, where the evidence of wrongdoing by officers of the West Midlands Serious Crime Squad, had it been known at the time of the trial, would have effectively impugned the evidence from other officers directly involved in the appellant's case; and third, where Twitchell's and Irvine's convictions have been quashed, there is a real possibility that the jury would have reached a different verdict in the case of the appellant.
17. The matters to which we have referred would have had a bearing upon each of the five pieces of evidence relied upon by the Crown at the time of the trial to link the appellant with the robbery. They would have enabled counsel for the appellant at the trial to mount a sustained attack on the cogency of each of those five pieces of evidence. For these reasons the conviction of the appellant was not safe and must be quashed.