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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Morris, R (on the application of) v Criminal Cases Review Commission [2011] EWHC 117 (Admin) (07 February 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/117.html Cite as: [2011] EWHC 117 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(sitting at LEEDS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 February 2011

The Hon Mr Justice Simon:

Introduction

1. This is a claim for Judicial Review brought by Raymond Morris (the Claimant) challenging a decision of the Criminal Cases Review Commission dated 21 June 2010 declining to refer his case to the Court of Appeal Criminal Division under sections 9 and 13 of the Criminal Appeal Act 1995. The primary basis of the claim is that the Commission was wrong to conclude that there was no real possibility that the Court of Appeal would not uphold the conviction in the light of new material which had come to light since the trial.
2. The Claimant was convicted following a trial at the Stafford Winter Assizes before Ashworth J and a Jury on 18 February 1969. He had been charged with 3 offences. Count 1 charged him with the murder of Christine Darby in August 1967; Count 2 charged the attempted abduction of a child 'MA'; and Count 3 charged an offence of indecent assault against another child 'HY'. He had pleaded guilty to Count 3. Following his conviction he was sentenced to Life Imprisonment on Count 1, and to terms of 3 years concurrent on Count 2 and 12 months concurrent on Count 3. Leave to appeal against the convictions on Counts 1 and 2 was refused by the Court of Appeal on 11 November 1969, see R v. Morris (1970) 54 Cr. App. R. 69.
3. On 8 October 2003, the Claimant applied to the Commission to review his conviction; and on 20 November 2008 a Case Committee of the Commission made a Provisional Determination that there was no real possibility that the Court of Appeal would quash the convictions. The Provisional Determination was accompanied by a Provisional Statement of Reasons set out paragraphs [1-325]. The Commission invited representations from the Claimant on the Provisional Determination and further representations were made on his behalf. These representations were recorded and considered at paragraphs [326-423] of the Report.
4. Following this, a pre-action letter was sent on the Claimant's behalf on 6 August 2010 and a detailed response from the Commission on 20 August. In summary the Commission contended that the complaints were no more than disagreements with the Commission's conclusions and did not give rise to any legitimate public law challenge. The Claim for Judicial review was issued on 21 September and was based on the contention that the Decision was unlawful, since the Commission 'misdirected itself as the nature of the appellate exercise and the relevant law'. The respects in which it was said the Commission had misdirected itself were set out in paragraph 7.1 and the particular proposed Grounds of Appeal which were said to have been wrongly discounted were set out in paragraph 7.2.
5. On 26 October 2010 Langstaff J granted permission to bring the present claim on two of the 14 Grounds of Appeal set out in paragraph 7.2, subparagraphs (vii) and (xi).

The legal test

6. Before turning to those Grounds and a summary of the necessary background, it is convenient to refer to the legal test which applies to challenges to decisions of the Commission.
7. There are two particular legal questions which need to be addressed: (1) what considerations bear on the judgment of the Commission in deciding whether to refer a case to the Court of Appeal, and (2) what considerations bear on the judgment of this Court when considering a challenge to the Commission's decision?
8. The first question is to be answered by reference to Part II of the Criminal Appeal Act 1995. Section 13(1) sets out the test for a reference to the Court of Appeal by the Commission.

A reference of a conviction shall not be made ... unless –

(a) the Commission consider that there is a real possibility that the conviction ... would not be upheld were the reference to be made.

9. In R v. The Criminal Cases Review Commission, ex parte Pearson [1999] EWHC (Admin) 452, [2000] 1 Cr App R 141, the Divisional Court (Lord Bingham LCJ and Ognall J) considered this test.

[16] Thus the Commission's power to refer under section 9 is exercisable only if it considers that if the reference is made there would be a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else. Save in exceptional circumstances, the judgment must be made by the Commission, in a conviction case, on the ground of an argument or evidence which has not been before the Court before ...

[17] The 'real possibility' test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission's judgment, is more than an outside chance or bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen ... The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not.

[18] The judgment required of the Commission is a very unusual one, because it inevitably involves a prediction of the view which another body (the Court of Appeal) may take. In a case which is likely to turn on the willingness of the Court of Appeal to receive fresh evidence, the Commission must also make a judgment how, on all the facts of a given case, the Court of Appeal is likely to resolve an application to adduce that evidence under section 23, because there could in such a case be no real possibility that the conviction would not be upheld were the reference to be made unless there were also a real possibility that the Court of Appeal would receive the evidence in question ... In a conviction case depending on the reception of fresh evidence, the Commission must ask itself a double question: do we consider that if a reference is made there is a real possibility that the Court of Appeal will receive the fresh evidence? If so, do we consider that there is a real possibility that the Court of Appeal will not uphold the conviction?

10. Lord Bingham's double question at [18] requires a refinement in the light of the decision in R v. Pendleton [2001] UKHL 66, [2002] 1 WLR 72. In that case the House of Lords held that the Court of Appeal can only ever have an imperfect and incomplete understanding of the process which led the jury to conviction; and while the Court of Appeal can make its own assessment of the evidence that it has heard, it is (clear cases apart) at a disadvantage in seeking to relate that evidence to the rest of the evidence that was before the jury. It is for this reason that it will usually be wise for the Court of Appeal to test its own provisional view by asking whether the evidence, if given at trial might reasonably have affected the decision of the Jury to convict.
11. The second question was also considered in ex parte Pearson (above). At [55] Lord Bingham described the nature of the Court's role when considering a claim to judicially review a decision of the Commission,

... We are not sitting as a court of appeal but as a court of review, and it is no part of our duty to decide whether the Commission's conclusion was right or wrong but only whether it was lawful or unlawful. We are clearly of opinion that it was not irrational. Nor was it vitiated by legal misdirection. It is not, however, in our judgment appropriate to subject the Commission's reasons to a rigorous audit to establish that they were not open to legal criticism. The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere ...

12. At [59] Lord Bingham illustrated the confined role of the Court by reference to the broad nature of the Commission's judgment.

Had the Commission decided to refer this case to the Court of Appeal, that would (if based upon a proper direction and reasoning) have been a reasonable and lawful decision. The decision not to refer was in our view equally reasonable and lawful. The question lay fairly and squarely within the area of judgment entrusted to the Commission. If this court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its role. The Divisional Court will ensure that the Commission acts lawfully. That is its only role.

13. The importance of the judgement of the Commission has been referred to in three later cases.
14. In R. (Hunt) v. The Criminal Cases Review Commission [2001] 2 Cr.App.R 76 (DC), referred to in Farnell v. The Criminal Cases Review Commission [2003] EHWC 835 (Admin), Lord Woolf CJ noted at [3],

... [Section 13] is worded in a manner which reserves a residual discretion to the Commission not to refer albeit the case is one where there is a real possibility the Court of Appeal would not uphold the conviction.

He added at [16],

... It is a residual but a very important jurisdiction which the Commission exercises. It imposes a heavy burden on the Commission. It is a jurisdiction which requires the Commission carefully to exercise the discretion which it is given by Parliament. In these circumstances it is important that the courts should not in inappropriate cases allow the Commission to be sucked into judicial review proceedings which are bound to detract it from fulfilling its statutory role.

15. In Mills & Poole v. The Criminal Cases Review Commission [2001] EWHC (Admin) 1153, Lord Woolf CJ (giving the judgment of the court) repeated the warning.

[14] ... It is important that this court does not fall into the trap of forming a view as to how the Court of Appeal would react and then concluding that that is what the Commission should necessarily have concluded, since this would be to usurp the Commission's function. Decisions of the Commission cannot be quashed merely because a court on a judicial review might have or indeed would have come to a different view of the significance of the material or the prospects of success,

16. In R. (Cleeland) v. the Criminal Cases Review Commission [2009] EWHC (Admin) 478 Scott Baker LJ reiterated the confined powers of the Court to intervene at [48]

I would wish to emphasise the very high threshold that has to be crossed to persuade this court that a decision by the Criminal Cases Review Commission not to refer a case to the Court of Appeal (Criminal Division) is unlawful.

A Summary of the Background

The Murder of Christine Darby (count 1)

17. Christine Darby was aged 7 when she was abducted on Saturday 19 August 1967 at some time between 2.15 and 2.52 pm. The police were alerted by a boy she had been playing with at the time. He had seen her being approached by a man he described as being aged 35-40, with dark hair and wearing a white shirt. According to the boy the man had asked for directions to Caldmore Green, but had used a distinct local pronunciation 'Karmer Green'. The man asked Christine to get in the car to show him the way, which she did. She was not seen alive again.
18. Her body was found at 5.45 pm on Tuesday 22 August at Plantation 110, Cannock Chase. Items of her clothing were found nearby. A Pathologist concluded that she had died between Saturday 19 and Sunday 20 August and that she had been suffocated. She had also been sexually assaulted.
19. The Grounds settled on behalf of the Claimant note that the case was notorious because it was commonly believed that the murder was related to the earlier murders of two other girls (Margaret Reynolds and Diane Tift, both aged 6) in September and December 1965. Their bodies had been found in another part of Cannock Chase. The murders of the three girls were known collectively as 'the Cannock Chase Murders'.
20. The Police investigation into the murder of Christine Darby was led by DS Forbes of Scotland Yard and DCS Bailey of Staffordshire Police. There was an appeal for information from the public which led to three witnesses coming forward, each of whom were to give eye-witness evidence at trial.
21. Victor Whitehouse told the police that he had been walking his dog on Cannock Chase on 19 August when he saw a man in a grey car, near Plantation 110 at about 4.00 pm. The man was standing side-on but turned towards him as he passed, allowing him a view of the man's face. He later said that he thought the car was an Austin A55 or A60.
22. Jeanne Rawlings told the police that she had been with her husband on the southern part of Plantation 110 at about 4.15 pm on 19 August when she saw a grey Austin A60 drive slowly down the side of the plantation, passing within a few feet.
23. Nancy Daniels told the police (17 days after the event) that she had been outside Bloxwich Church at about 2.53 pm when she saw a grey car travelling in the direction of Cannock. The car was being driven by a man, with a young girl as a passenger.
24. As a result of information provided by Mr Whitehouse and Mrs Rawlings the Police were able to produce an identikit image of the suspect.
25. The Claimant owned a grey Austin A55; and, as part of the Police enquiries, he was visited by two police officers at his flat in Walsall. The Officers took an account of his movements on 19 August which was corroborated by his wife, Carol Morris. He told the Police that he had left work at Oldbury at 1.00pm and had arrived home at 1.45pm. He had gone shopping with his wife, visited her parents and had arrived back home at 6.00-6.30 pm.
26. In the early months of 1968 the Police decided to interview all white males, aged between 18 and 54 living in the Walsall area. The Claimant was visited on 29 February 1968 and gave the same account that he had given earlier, clarifying that he had gone shopping with his wife between 2-3.30 pm.

The Attempted Abduction of MA (count 2)

27. At 7.45 on Monday 4 November 1968 a 10 year-old girl, MA, was approached by a man while playing on wasteland in Walsall. The man offered to give her some fireworks which were in his car. When she went with him to the car he grabbed her and tried to push her into the car. She was able to struggle free and ran off. This incident was witnessed by Wendy Lane who noted the number-plate of the car as '429 LOP', and its colour as light green with a white top. She later identified the make as a Ford Corsair. Police enquiries revealed that no such number plate existed in the area, but that a car with the number-plate '492 LOP' was registered to the Claimant. Further enquiries revealed that of the 999 cars with a registration plate with the letters 'LOP' only 25 were Ford Corsairs and only the Claimant's car was green and white.
28. On 5 November police went to the Claimant's workplace and he agreed to go to Walsall police station for questioning. At the police station, and following a discussion with his solicitor, he agreed to stand on an identification parade. He was not picked out by either MA or Mrs Lane, and was released without charge.
29. It appears that subsequent enquiries revealed that the Claimant had come to the attention of the police in relation to two earlier incidents concerning complaints of indecent assault on girls aged 10 and 11, which were alleged to have been committed while he took indecent photographs of them. Another matter of note was that the Claimant had owned a grey Austin A55 at the time of Christine Darby's murder.

The circumstances in which the Claimant came to be charged with murder

30. The Claimant was arrested on suspicion of the murder of Christine Darby on his way to work at 7.30 am on 15 November 1968. The arresting officer was DCI Molloy, who recorded that the Claimant's reply to his arrest was, 'Oh God, is it my wife?' The Claimant denied that he said this. Following his arrest his wife was visited by the police and retracted the earlier statement that the Claimant had arrived home at about 1.45 pm. She now said that he had come home nearer to 4.30 pm.
31. The police began an interview with the Claimant at 7.05pm on 15 November. DS Forbes led the interview, with DCS Bailey, DCI Molloy and DSgt Parry also present. DCI Molloy was responsible for keeping a written record of the interview. He gave evidence at trial that he took a complete and accurate short-hand note of everything which was said, from which he later produced a typed version. The Claimant alleged at trial that this was untrue, that DCI Molloy had not taken a full contemporaneous note and that the typed transcript was largely a fabrication. The interview concluded at about 8.15-8.30 pm and the Claimant was returned to his cell.
32. According to the police evidence the Claimant persistently refused to take part in an identification parade; and for this reason it was decided to carry out a confrontation procedure involving Mr Whitehouse. The following day (16 November 1968) Mr Whitehouse was brought to Stafford police station. The Claimant was again asked whether he would be prepared to take part in an identification parade and again categorically refused. As a result he was taken to the yard of the police station and was made to stand against its wall. Mr Whitehouse then entered the yard and according to a transcript produced by DCI Molloy, was asked by DS Forbes whether he had seen the Claimant before. After a few seconds he replied, 'Yes, I'd say yes'. Shortly afterwards Mr Whitehouse provided a statement in which he said that the Claimant was the man he had seen at Cannock Chase, standing next to a car on the day that Christine Darby was murdered. He was also shown the Austin A55 which had belonged to the Claimant at the time, which had been seized by the police from its new owner, and identified it as the car he had seen on 19 August 1967.
33. The content of the interview and the reliability of DCI Molloy's notes forms the basis of the challenge in paragraph 7.2 (vii) of the Grounds, for which permission was given to bring the present proceedings. The circumstances in which the confrontation took place between Mr Whitehouse and the Claimant forms the main part of the complaint set out in paragraph 7.2(xi), the other ground for which permission was given.
34. At 11.45 am, and following the confrontation, the Claimant was charged with the murder of Christine Darby. According to the police evidence it was only at this stage that he asked for a solicitor.

The Indecent Assault of 'HY'

35. While the Claimant was being detained at Stafford Police Station on 15 November, his home was searched in the presence of his wife; and the police discovered sexually explicit photographs of a girl lying on a bed naked (except for a dress and socks) in various poses. One of the photographs showed a man touching the girl's vagina and in another he is shown leaning over her and exposing his penis. The photographs had been taken at the Claimant's home and the girl was identified as HY. When seen by the police the girl's mother said that her daughter had stayed with the Claimant and his wife between 29 July and 7 August 1967 and in the following summer between 9 August and 19 August 1968. In one of the photographs a man's wrist could be seen with a gold watch identical to the watch seized from the Claimant following his arrest, and which he had tried to conceal.
36. There was an application before the Trial Judge to sever the indictment so that the Jury would not hear of the evidence of the indecent assault of HY when considering the charges of Murder and Attempted Abduction. The application was refused. The ruling was founded on the fact that the images in the photographs of HY demonstrated similarities to the appearance of the body of Christine Darby: neither girl was wearing shoes, both girls had their legs drawn up to allow access to their vagina, both girls had their upper clothes 'rucked' up, there had been no emission in either case and in each case there had been digital (or presumed) digital penetration.
37. As already noted the Claimant pleaded guilty following this ruling to an amended Count 3 which charged the indecent assault in August 1968.

The Commission's Report

38. The Report is in two parts. The first part [1-325] contains the Commission's provisional view that there was no proper basis for referring the convictions on Counts 1 and 2 to the Court of Appeal. The Claimant's legal advisors had been invited to respond to the Commission's provisional findings; and these further submissions were referred to and considered in the second part of the Report [326-422]. The Commission decided not to make a reference to the Court of Appeal for the reasons set out in the Report (see [423]).

The Grounds for Judicial Review

39. There were originally 14 grounds relied on. As already noted, Langstaff J gave leave in relation to paragraph 7.2 (vii) and (xi). These two grounds relate to the police notes of the Claimant's interview and the subsequent identification procedure.
40. In argument Mr George QC submitted that the Claimant should be entitled to argue the grounds in paragraph 7.2(iv), (v) and (ix), as they were linked to the grounds on which permission was granted, alternatively that the points were relevant to the broad issues which arose under subparagraphs (vii) and (xi). It is convenient to refer to these points as 'the Investigation Issues'. In support of his argument on the Investigation Issues, Mr George also referred to subparagraph (ix) which related to the treatment of the Claimant's wife by the police.
41. In addition to these points Mr George renewed his application for permission on a separate point relating to the Trial Judge's direction to the Jury on lies: paragraph 7.2 (ii) and (iii). I shall refer to this as 'the Summing-up Issue'.

The Investigation Issues in outline

42. It was the Prosecution case that the Claimant had been asked to attend an identity parade and had refused; and that it was for this reason that the confrontation procedure had been arranged. It was the Claimant's evidence at trial that he had not been asked to stand at an identification parade either on 15 or 16 November 1968.
43. The researches of the Commission showed that part of one page (page 17) of what purported to be DCI Molloy's contemporaneous note of the interview with the Claimant had almost certainly been re-written, and that the notes were very unlikely to have been a complete record of what had been said at the interview.
44. The Commission considered whether the alteration of the notes on page 17 threw significant light on the investigation, with the possibility that the identification of the Claimant by Mr Whitehouse during the confrontation might have given rise to a successful application to exclude the identification or alternatively as a basis for cross-examining the Police Officers.
45. Mr George criticised a number of passages in the Report where the Commission considered the significance of the new evidence. Before considering these criticisms it is convenient to consider what was said in the Report.

The Commission's approach to the Investigation Issue

46. At the heart of this aspect of the case is the finding by an expert in forensic document analysis (Mr Hughes) about DCI Molloy's notes of the interview. Mr Hughes's views were recorded at [268] of the Report:

In my opinion the page now numbered 17 is not the original version of this page. Another page has been written out, on top of the current page 17, with similar entries on it but this has been discarded and then the current page 17 written prior to the writing of the entries on page 18.

47. The Commission noted that page 17 was the record of what occurred on the morning of 16 November when, according to the evidence of the police officers, the Claimant refused to stand at an identification parade. As Mr George pointed out, there had been an earlier identification parade to which the Claimant had agreed at which he had not been identified.
48. The Report records that, as far as Mr Hughes could ascertain,

... the entries in longhand on the current page 17 are not different from those on the original page, albeit he could not exclude this possibility.

The changes between the original and current version of page 17 were slight, and amounted to one or two characters in short-hand. These would have appeared in the original version but had been omitted from the later version.

49. At [269] The Commission reached the following provisional view.

Mr Hughes's findings are that one of the pages of DCI Molloy's original shorthand notes, which the officer had claimed were all written contemporaneously, was in fact re-written at some stage. The Commission further notes that the page that was re-written was significant in that it records matters that Mr Morris disputed at trial, namely, that he was asked to stand on an identification parade ... The Commission also notes that the volume of text on the missing page 17 appears to have been similar to the current page 17, with the possible exception of the part that records Mr Morris's alleged reply when asked about an identification parade. Further, that the ESDA testing has revealed that the current page 17 was written before pages 18 and 19.

50. In the course of argument both Counsel considered the significance of the fact that the change appeared to be to the Claimant's reply to a question about an identification parade. It was the police evidence at trial that he was asked about whether he would be willing to stand on an identity parade and it was the Claimant's evidence that he was not asked to do so. Mr Hughes's findings did not suggest that the rewritten note had added a question about an identification parade. It might suggest that the answer might have been changed. However that of itself would not have materially advanced the Claimant's case, since his case was not that he had agreed or refused, but that he had never been asked the question.
51. At [270] the Commission considered the significance of the new evidence.

The Commission notes that the fact that one of the pages was re-written could have provided cross-examination material at trial, but the Commission does not consider that this issue by itself provides ground for referral, as it is debatable whether or not it directly undermines the credibility of the officers involved as there could be a number of explanations as to why the pages were re-written.

52. In the following paragraphs the Commission considered a number of other issues. First, matters relevant to the credibility of DCI Molloy, including the book he had written about the case 20 years later, which the Commission found to be an unreliable account. Secondly, the difference in the Claimant's account of what had been said by DCI Molloy (a) at trial and (b) to the Commission. At [276] the Commission took the view that,

... on the evidence as it currently stands there is no evidence of misconduct which is capable of affecting the safety of the conviction.

53. At [277-287] the Commission considered the reports of Professor Coulthard (a Professor of English Language and Linguistics) and Dr Eric Shepherd (a Chartered Forensic Psychologist). In broad summary, these experts concluded that DCI Molloy's note was not a complete record of everything that was said during the interview: there must have been matters which were not recorded and there was the possibility that the notes were not taken contemporaneously. Dr Shepherd thought the use of shorthand was anomalous. He also asserted motives for what he believed had occurred, and in doing so exceeded his role as an expert.
54. At [288] the Commission accepted that the expert evidence would have been admissible at the trial and that it called into question the accuracy and reliability of the Claimant's interview.
55. However, at [290-1] the Commission concluded that a submission to exclude the evidence resulting from the interview at a voir dire would have failed, since it would have been a matter for the Jury to evaluate the evidence in relation to the interview. At [292-294] the Commission declined to accept that there was a real possibility that the Jury having heard this and other evidence would or might have concluded that the Claimant was telling the truth when giving evidence that he had persistently asked for a solicitor and had not refused to stand at an identification parade.

[292] ... The Commission takes this view because it considers that the other evidence available to the jury would have led them to doubt Mr Morris's credibility by virtue of the lies he appears to have told at his trial (e.g. his routes to and from work, how he came to take the photographs, etc).

[293] However, even if the jury did accept Mr Morris's account of the interview, the Commission does not consider that their verdicts would have been any different because of the strength of the other evidence against Mr Morris. In particular, the jury would have noted not only the lies told by Mr Morris, but also the fact that he had no support for his alibis on counts 1 and 2, the identification evidence against him (including his cars) and the similar fact evidence against him. The Commission considers that this evidence would have displaced any doubts that the jury might have otherwise entertained by virtue of accepting Mr Morris's account of his police interview as a result of the proposed expert evidence.

A Summary of the Claimant's case on the Investigation Issues

56. It is convenient to start by identifying the way in which the challenge was advanced in the Grounds. At paragraph 7.2 it was contended that the Commission wrongly rejected a number of proposed grounds of appeal as falling short of the required standard, namely:

(iv) that the direction to the jury to consider the truthfulness of DCI Molloy (calculated to result in a favourable conclusion) was fatally undermined by his misconduct in the investigation

(v) that the evidence of Dr Shepherd and Professor Coulthard plainly demonstrated that the police fabricated the notes of interview and that the Claimant's account of the same was inherently more likely

...

(vii) that the content of the notes [of interview] was a matter of such contention at trial as to render the conviction unsafe

...

(xi) that the identification procedures were so subverted (even by reference to guidelines then in force) as to render the ID evidence tainted.

57. In the course of argument Mr George QC submitted:

(a) The Judge had directed the Jury's attention to whether the police witnesses were telling the truth on various aspects of the case against the Claimant.

(b) The Claimant's evidence at trial had been that DCI Molloy had failed to note everything that was said during the interview.

(c) His evidence was now supported by the report of Professor Coulthard that it was unlikely that the note of interview was full and accurate, and by the report of Dr Shepherd that the note was anomalous.

(d) There was clear evidence in Mr Hughes's report that p.17 of the note had been rewritten; and the natural inference was that it had been altered after the confrontation between Mr Whitehouse and the Claimant, and in order to legitimise the procedure which had taken place.

(e) The Commission failed to consider these points in their proper context

58. He submitted that the fresh evidence would have founded an application to exclude the identification evidence, and the possibility that this would have been successful could not be safely discounted. In any event the fresh evidence would have provided important cross-examination material which could have substantially undermined both the police evidence and the identification evidence of Mr Whitehouse and Mrs Rawlings. It might also have affected the way in which the Judge had summed up the case at the point he came to contrast the credibility of the Police Officers and the Claimant.
59. He further submitted that at [292-3] the Commission fell into error by analysing the evidence by reference to the reaction of the jury. The correct question was the view that the Court of Appeal might take of an application to receive fresh evidence. In [293] the Commission had again looked at the reaction of the jury rather than considering whether the Court of Appeal might consider that there was a real risk that the verdicts were unsafe in the light of the fresh evidence.

Discussion and Conclusion on the Investigation Issues

60. When considering a challenge to a decision of the Commission it is important for the Court to remind itself of the limits on the Court's function. It is concerned with errors of law and irrationality. It is the Commission which is vested with the power and duty to assess which cases cross the threshold for a Reference to the Court of Appeal and which do not. The Court is not concerned with a view as to whether the Commission's decision was right or was wrong. Since it is not to be drawn into rigorous audits of the Commission's functions it should read its Reports sensibly and as a whole (although not uncritically), and should decline invitations to embark on a detailed textual analysis. The Court must consider whether the Commission's reasoning betrays significant defects which require a Court of Review to intervene.
61. The passages that were the particular subject of Mr George's criticism occurred in the Provisional Report and were reviewed after the Commission had received submissions on behalf of the Claimant. Since the Commission was responding at this stage to a number of different and diverse points, its views are expressed in a number of different paragraphs.
62. The Commission were referred to and cited a number of authorities on the approach which they should adopt. It concluded at [356],

Accordingly, if the Commission finds that there is a real possibility that the Court of Appeal would receive fresh evidence and would conclude that, in the context of all the remainder of the evidence in the case, it might reasonably have affected the decision of the jury to convict, there will be a real possibility that the Court will quash the conviction.

This conclusion was a correct statement of the law and was in any event not criticised by Mr George.

63. At [400] the Commission reiterated its view that the physical examination of the note of interview did not materially undermine the record of the interview as a whole (a record which noted earlier refusals to take part in an identification parade) and that the 'rewritten' page added nothing significant.

As such, there is no real possibility of the Court of Appeal concluding ... that, had the jury heard evidence relating to the results of the [examination of the note], they might acting reasonably, have reached a different verdict on count 1.

64. Mr George criticised the number of iterations of the test which the Commission had to apply when considering a reference to the Court of Appeal. He submitted that the Commission was repeating a formula defensively, but without really considering the question which it had to decide. I am not persuaded that he is right about this. At this point in the Report the Commission was dealing with a particular issue which had been raised on the Claimant's behalf. If it had failed to refer to the correct legal test the Commission would undoubtedly have been criticised. It was necessarily for the Commission to refer to the test many times because of the number and nature of the submissions made on the Claimant's behalf.
65. At [404] the Commission repeated its view that the general findings of Professor Coulthard and Dr Shepherd were such that they could be deemed matters of common sense and within the ordinary understanding and experience of the jury. In other words the jury would have understood that the note of interview was clearly not a transcript. Nevertheless at [405] the Commission went on to consider the potential impact of their findings. It found that these might support a conclusion that the note of interview was not a complete record of what went on, but that this did not mean that the note did not record the key elements of the interview. These key elements of the note of interview were set out in [401]: the self incriminating remarks, the fact that the Claimant did not deny the offence of murder, the issue of whether he asked for a solicitor or not, his persistent refusal to stand at an identification parade, his reaction to being told that his wife had retracted her support for his alibi and his silence when asked key questions. The changes to page 17 did not impact on these key elements of the note of interview.
66. At [406] the Commission turned again to the crucial and correct question,

... whether or not this fresh evidence raises a real possibility that the Court of Appeal will find the conviction on count 1 to be unsafe ... The important consideration in the approach of the Court of Appeal to fresh evidence is whether or not it might have led a jury, acting reasonably, to have reached a different verdict if it had been adduced at trial.

67. The Commission approached the question [407] on the basis that the Court of Appeal would weigh the new evidence with all the other evidence in the case when assessing whether or not, and to what extent, a jury might have reached a different conclusion about the police interview and the evidence from the investigating officers. Again, this was an approach which was open to the Commission.
68. At [409] the Report reads,

In relation to [Counsel's] submission about the fresh evidence relating to Mr Morris's police interview, the Commission accepts that there is some evidence here which is capable of casting doubt on the officer's account that the interview record was a full, verbatim record ... However, the fact that DCI Molloy's record might not be a complete record does not necessarily mean that it does not accurately record at least some of what was said at the interview. Further, even if the jury thought it possible that Mr Morris might not have refused to stand on an identification parade and that the police had manipulated the situation so that they could hold a confrontation instead, this falls far short of the proposition that the jury might, therefore, have rejected Mr Whitehouse's identification. In addition, as previously stated, it does not follow that a breach of the identification procedures will result in identification evidence being excluded and the Commission is satisfied that there is no real possibility that the Court of Appeal would conclude that the new evidence concerning the police interview is such that Mr Whitehouse's identification would be excluded ...

69. At [411] the Commission set out its final conclusions

... the Commission takes the view that there is no real possibility that the Court of Appeal would find that, when evaluated against all of the evidence in the case, the fresh evidence referred to above is such that if it had been raised before the jury at trial, it might have led the jury acting reasonably, to reach a different verdict on any of the counts. Consequently, the Commission does not consider that it provides a basis for a reference.

70. These passages show that the Commission posed the right question and answered that question by reference to all the evidence in a way which shows neither a misunderstanding of the law nor irrationality. The other evidence against the Claimant which (because of the nature of this claim) was not the focus of argument, was formidable, as Langstaff J noted when giving his very full and clear reasons for his decision at the Permission stage.
71. Once the evidence on Count 2 and 3 was treated as admissible on Count 1 there was evidence of a grey car, with one man in it, whose driver was seen to pick up Christine Darby, and drive off in the 'wrong' direction. The man used a pronunciation used only locally to refer to the place to which he asked directions from Christine. A grey car was seen in part of Cannock Chase where no other car went, near to the place where Christine's body was soon to be discovered. It was said by witnesses to be an A55 or A60 model. There was a strong likelihood that the car was the same as that seen to have carried Christine away. The Claimant owned a car of this model at the time. He lied to the Police about the time when he came home that day for no reason likely to be explained as 'innocent' in the sense used in R v. Lucas. Mrs Morris's evidence showed that he had given a false alibi for the time of the murder. He had claimed that he took a route home which was longer than it needed to be, as a matter of course. The shorter route would have taken him past the spot where Christine was abducted. Mrs Rawlings had given evidence of seeing a grey car near to where the body was found and had made a dock identification of the Claimant as the driver of the car. Mr Whitehouse also gave evidence of seeing a grey car at the scene of the crime, and identified the Claimant as the driver at the arranged confrontation. The evidence about the make, colour and number-plate of the car seen by witnesses strongly linked the Claimant to the offence charged under Count 2, and tended to show that the Claimant was a man who sought to abduct a young girl, almost certainly with sexual motives in mind. The evidence and plea to Count 3 showed that the Claimant had taken indecent and abusive photographs of another young girl during the same period, posing her for at least one of the photographs in the same way that Christine had been discovered: ankles together, knees apart, without her knickers, with her private parts exposed, her dress bunched up above the waist and with no trace of semen.
72. Some of the passages in the Report (for example [290-4] and [409]) might be said to be over-elaborate, but the Commission was seeking to address a number of arguments and, any event, the primary reasoning is clear: the new evidence did not throw a significant doubt on the note of interview and, even if had, the evidence had to be viewed in the light of the other compelling evidence against the Claimant.
73. I agree with the submission of Mr McGuinness QC on behalf of the Commission that when properly analysed, there was neither a misdirection as to the nature of the Commission's task nor irrationality in carrying out that task. The criticisms advanced on the Claimant's behalf are in reality disagreements with the evaluative judgments of the Commission.

Mrs Morris's evidence to the Commission

74. In subparagraph 7.2 (ix) of the Grounds it is submitted that one of the proposed Grounds of Appeal which was wrongly rejected by the Commission was,

... that the intimidation of [Mrs Morris] casts doubt upon the conduct of the officers elsewhere in the investigation such that the Defendant is wrong to adopt a default position that the absence of evidence of further misconduct is evidence of its absence.

75. The Commission had received evidence that Police Officers had behaved oppressively to Mrs Morris following the arrest of the Claimant; and considered the effect of the new material on effect of her evidence at trial

[263] The Commission takes the view that this disclosure by [Mrs Morris] does not render unreliable the evidence she gave at trial. The Commission notes that [Mrs Morris] has maintained that her evidence at trial i.e. her retraction of the alibi support, was true. The Commission specifically asked her whether she had told lies at trial because of oppressive conduct by the police officers and she has denied this. Her confirmation of her trial evidence is, in the Commission's opinion, the most significant aspect of her account to the Commission.

76. The Commission recognised [273] that, if the police conducted themselves in an aggressive manner towards Mrs Morris, it was likely that they behaved in the same manner towards the Claimant during the interviews.
77. At [395] it considered the treatment of Mrs Morris, and concluded at [396].

However, as noted at paragraph 273 above, the Commission also considers that had the jury known about the aggressive/oppressive conduct of the police officers towards [Mrs Morris], it would have been reasonable for them to infer that the manner in which the police behaved towards [Mrs Morris] would have been similar to the way in which they behaved towards Mr Morris. As such the Commission considers that the new evidence of [Mrs Morris] is capable of providing some support for Mr Morris's allegations against the same police officers.

78. At the end of [409] the Commission considered again the impact of the evidence in relation to Mrs Morris.

The Commission also notes that there is evidence (from DCI Molloy's book and Mrs Morris's interview with the Commission) that the police intimidated [Mrs Morris] ... In relation to [Mrs Morris], the Commission has already stated that the key feature of her evidence is that she has maintained that the evidence that she gave at trial was true. Therefore her treatment by the Police did not result in her giving false evidence.

79. It can be seen that the Commission considered the effect of the evidence of the intimidation of Mrs Morris both in terms of the general credibility of her evidence and the impact it had on the allegations against the police. Having considered the evidence overall it came to the conclusion set out in [411], referred to above.
80. It is right to note that Mr George did not renew the application for permission on this point as a discrete issue. He relied on the point as linked to the Investigation Issues and particularly to the credibility of the police evidence. In my view it adds nothing to the other points; and there is no proper basis for contending that the Commission's approach to this aspect of the case was vitiated by legal misdirection or irrationality.

The Summing-up Issue in outline

81. Mr George submitted that in a case where the jury may treat a defendant's lies out of court as proof of the case against him, it is incumbent on the Judge to warn the jury in the terms of what is now referred to as a Lucas direction, see R v. Lucas [1981] 1 QB 720. The jury should be directed to consider (a) whether it is sure a defendant has deliberately lied, (b) if so, why he lied, (c) if the jury think that the lie was or may have been for a reason which does not denote guilt it should ignore the lie, (d) otherwise it may take it into account in proof of the prosecution case.
82. Mr George relied on (1) the lies told by the Claimant in relation to his arrest, detention and interview, (2) his false alibi on counts 1 and 2, (3) his false account of his route home from work on the relevant dates and (4) his false account of how he came to take the photograph which gave rise to the charge under count 3.

The Law

83. In R v. Burge & Pegg [1996] 1 Cr. App. R. 163 at 172, the Court of Appeal gave further guidance on cases where a Lucas direction was required, namely,

... A Lucas direction is not required in every case in which a defendant gives evidence, even if he gives evidence about a number of matters, and the jury may conclude in relation to some matters at least that he has been telling lies. The warning is only required if there is a danger that they may regard that conclusion as probative of his guilt of the offence which they are considering.

84. Both of these cases were decided after the trial of the Claimant. However, as Mr George pointed out, although the relevant substantive law is the law which applied at the date of the trial, the conduct of the trial and the directions to the jury must be judged according to the standards which now apply, as they do to any other appeal under s.1 of the Criminal Appeal Act 1968, see for example R v. Bentley [2001] 1 Cr. App. R, 207 at [4],
85. In any event, Mr George drew attention to the decision of the Privy Council in Broadhurst v. The Queen [1964] AC 441 at 457, where Lord Devlin noted the tendency of juries to think a defendant is guilty if he tells lies and the importance of carefully directing juries on the effect of a lie.

Discussion and conclusion on the Summing-up Issue

86. Again it is necessary to consider the Commission's conclusions in the two parts of the Report. At [178] the Commission referred to the parts of the summing-up where (a) the trial judge had referred to what might have been lies told by the Claimant, most particularly as to the order in which he had taken photographs of HY, and (b) to the relevance of lies which might enable them to tell who, as between the Claimant and the Police, was telling the truth about the disputed account of the interview.
87. At [180-184] the Commission set out parts of the relevant cases, including Broadhurst, Lucas, and Burge & Pegg. It noted that a direction was only required if there were a danger that a jury might conclude that a defendant's lies out of Court were proof of guilt: the forbidden line of reasoning. At [186] the Commission identified those matters which were relied by the Prosecution or highlighted by the Judge as being lies: the allegations against police officers in relation to his detention and interview, his alibi, his account of his routes home from work on the dates in question and his explanation for how he came to take the photographs of HY. At [188-195] it considered the significance of the absence of a Lucas direction.
88. Mr George drew attention to passages in the Report where the Commission said that a Lucas direction would have done more harm than good to the defence. He submitted that the need for a Lucas direction could not be dismissed on that basis.
89. As a general observation that is correct. The defence at trial may resist the giving of a Lucas direction because it draws attention to lies; and a trial judge may have to give such a direction against the wishes of the defence. However, the Commission was considering the lack of a Lucas direction in the context of whether there was a real possibility that the conviction would not be upheld by the Court of Appeal. In these circumstances it was entitled to consider the impact of the lack of a Lucas direction on the safety of the conviction.
90. In many of the passages identified by the Commission, the Judge was focussing on lies in the context of the issue as to who was telling the truth on critical questions in their evidence to the jury. In other passages it is difficult to see how the complaint about the lack of a Lucas direction could be framed since even now there is no explanation for the lies.
91. However at page 31 of the summing-up the Judge said,

... justice, which is what he is to receive at your hands, includes two things: acquitting the innocent or those in respect of whom you have doubt; but justice also includes convicting the guilty when you are sure. You will ask yourselves 'What does justice require of you now?' And in approaching Morris, as indeed in approaching some other witnesses you will ask yourselves, 'Is he truthful?'

92. It seems to me that this was coming perilously close to the forbidden line of reasoning; and the Commission's view [196],

It follows from the above that the Commission takes the view that a Lucas type direction would not have been appropriate in the circumstances of the case,

might be open to question.

93. However [196] continues,

In any event, the Commission observes that the absence of a direction does not per se render a conviction unsafe. If the Court of Appeal is satisfied that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would have been one of guilty, the conviction will be upheld. The Commission takes the view that on this issue there is no real possibility of the Court finding otherwise.

94. This observation was repeated later in the Report at [415], where the Commission added,

... as such this issue does not provide any basis for a reference.

95. One might argue with the phrase 'any basis'; but the conclusion, that the direction on lies did not give rise to a real possibility that the conviction would not be upheld, was plainly one that was open to the Commission and was equally plainly not irrational.
96. I also note that this is not a fresh evidence point and that, to the extent that Broadhurst expressed the law at the time, it was not a point which struck those advising the Claimant at the time as a matter of great force.

Conclusion

97. For the reasons set out above,

i) I refuse the renewed application for permission to argue the grounds refused by Langstaff J; and

ii) I dismiss the Claimant's claim