B e f o r e :
LORD JUSTICE KENNEDY
(Vice President of the Queen's Bench Division)
MR JUSTICE MAURICE KAY
MRS JUSTICE HALLETT
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
Michael John STONE
- - - - - - - - - - - - - - - - - - - - -
The handed down judgment of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - - - -
MR W CLEGG QC and MR J A INGRAM appeared on behalf of the Appellant
MR N SWEENEY QC and MR M ELLISON appeared on behalf of the Crown
(As approved by the Court)
Crown CopyrightSMITH BERNAL
1. LORD JUSTICE KENNEDY:
2. On 23rd October 1998 in the Crown Court at Maidstone this appellant
was convicted of two offences of murder and one offence of attempted murder, and was
sentenced on each count to life imprisonment. He appeals against conviction by leave of
3. At about 4 pm on Tuesday 9th July 1996, after a swimming gala at
Goodnestone School, Mrs Lin Russell, then aged 45, and her two daughters Megan, aged 6,
and Josie, aged 9, set off to walk home with their family dog. The walk should have taken
about 45 minutes. At about 4.25 pm, as they were walking along Cherry Garden Lane, a quiet
unmade track, they were attacked. Their attacker tied them up with torn towels and shoe
laces, blindfolded them, and beat them over their heads with a hammer. Mrs Russell and
Megan died, but although seriously injured Josie survived. There was evidence to suggest
that the attacker was searching for money. When his wife and children did not return home
Dr Russell raised the alarm, and at 12.30 am the same night the bodies were discovered. It
was also discovered that Josie was alive, and she was rushed to hospital, where she
received treatment which enabled her to make a partial recovery.
4. Josie was not able to identify the attacker. She was interviewed on
two occasions several months after the incident, and an agreed compilation of significant
passages from those two interviews was admitted in evidence to avoid her having to attend
at the trial. In part her recollection was demonstrably wrong, and for present purposes we
need say no more about her evidence.
Arrest of Appellant and Evidence of Daley.
5. On 14th July 1997, just over a year after the murders, the appellant
was arrested at his mother's home at Gillingham and from that date onwards he was detained
in custody. As presented to the jury the prosecution case was based on the evidence of
Damien Daley, aged 23, who, in September 1997, was detained in Canterbury Prison on remand
awaiting trial. He was in a cell on the bottom floor in the Segregation Unit, and said
that the appellant was put into an adjoining cell. Other prisoners were shouting at the
appellant and Daley told them to be quiet. Daley had something of a reputation as a hard
man in the prison, so his instruction was obeyed. The appellant then, according to Daley,
spoke to Daley by means of a pipe which ran along the rear wall of both adjoining cells.
It is common ground that if he said what Daley alleged that he said that amounted to an
admission that he was the murderer. On behalf of the appellant it was put to Daley at
trial that he had invented the confession, using information he obtained from a newspaper
supplemented by a little inspired guesswork. Daley denied that he had done any such thing,
and when he came to sum-up the trial judge told the jury that although there was other
background evidence as to what people saw and heard at the time of the murders at the
scene and in the area such evidence was "not sufficient to found a conviction. A
conviction must rest on the evidence of Daley." The trial judge continued -
"If you are not sure that Daley was giving a truthful report of
what happened when the defendant arrived in the Segregation Block that is the end of the
case against him, he must be acquitted."
6. In the light of that direction, which is accepted for the purposes of
this appeal to have been an appropriate direction in the light of the evidence led at the
trial, it is unnecessary for us to rehearse the evidence which the judge described as
insufficient to found a conviction.
The evidence of Jennings.
7. No witnesses claimed to have overheard what Daley said that the
appellant said to him, but two other prisoners were called by the prosecution to testify
as to other occasions when the appellant said things which were claimed to be significant.
Mark Jennings was one of them.
The evidence of Thompson.
8. In 1997 Barry Thompson was nearing the end of a two year sentence,
and for a few days he was employed as a prisoner trustee cleaner in the Segregation Unit
at HMP Elmley where the appellant was then held as a prisoner on remand. Thompson gave
evidence that on a few occasions he spoke briefly to the appellant. The appellant told him
that he was in for robbing a man of £1000 and for burglary, and that he was going on an
Identification Parade on Friday. He also said that the Police were rushing through some
tests, and that Thompson should not judge him until the results came back. Next day whilst
exercising in the yard the appellant went over to Thompson who was in the kitchen and,
said Thompson, "he looked menacingly at me with his eyes rolling into the back of his
head and said 'I made a mistake with her I won't make the same fucking mistake with
you'". It was put to Thompson in cross-examination that these conversations, and in
particular the final conversation never took place, but when Thompson was released he went
and made a statement to the police and set out in substance the evidence which he later
gave at the trial.
At the Trial.
9. The appellant did not give or call evidence at the trial, and the
case was presented to the jury by the judge in the way we have indicated - by pointing out
that a conviction must rest on the evidence of Daley, but, as the judge went on to say, in
evaluating the evidence of Daley the evidence of Jennings and Thompson might have a part
to play. For present purposes we can focus on what the judge said about Thompson. He said
that Thompson gave evidence -
"Of a threat which the prosecution say implied so clear a reference
to Josephine's escape that it supports, if true, the evidence of Daley."
10. That evidence, like the evidence of Jennings, the judge described as
evidence which if the jury accepted it they could take into account when asking themselves
if they could properly convict on Daley's evidence.
11. So, as counsel before us accept, the jury may well have looked to
the evidence of Thompson when deciding whether or not to accept the critical evidence of
Daley, and the problem which now faces us is that as a result of developments since the
trial the evidence of Thompson has been shown to be hopelessly unreliable.
12. On 24th October 1998, the day after the jury returned their
verdicts, Thompson began to contact national newspapers telling journalists from the
Mirror, the Sun, and later the Daily Mail that he had given false evidence at the trial.
He said that it was true that he had met the appellant in prison, but the appellant said
nothing incriminating, and he had only said otherwise at the trial because of pressure
which had been put upon him by the police. In November 1998 Thompson was arrested on
suspicion of perjury, but in the end that charge was not pursued. The Hampshire Police
then conducted a thorough investigation which resulted in a very full report. Because that
investigation was in progress there was some delay in the conduct of this appeal. By June
1999 Thompson was saying that if required to attend in this court he would say that his
evidence at trial was true, and that in October 1998 he lied to achieve publicity. The
journalists from the Mirror and the Sun co-operated with the Hampshire Police enquiry, but
the relevant journalist from the Daily Mail took a different stance. On Monday 5th
February 2001 after hearing submissions we ruled that tape recordings, transcripts and
notes held by the Daily Mail journalist which related to conversations which she had had
with Thompson must be disclosed and she willingly complied with that order. On Tuesday 6th
February the respondent served upon counsel for the appellant and upon the court a
document which reads -
(1) The Respondent accepts the evidence of John Peacock, Adrian Shaw,
Arnold Slater, Antonella Lazzeri and Neil Syson (all journalists) as to the statements
made by Barry Thompson to them since trial.
(2) Having considered all the material now available to the Court for
the purpose of this appeal, the Respondent cannot seek to rely upon Barry Thompson as a
witness of truth and would not have called him at trial had the material that is now
available been known to the Respondent at the time.
(3) The Respondent concedes that, in summing up, the learned judge
correctly identified the linkage then made by the Crown between the evidence of Thompson
and the truth of the confession made to Damien Daley and therefore cannot argue against
the proposition that the jury's decision as regards Daley's evidence may have been
influenced by their assessment of Thompson's.
Notice of Appeal and Conclusion
13. In the Notice of Appeal ground 1 reads -
"The conviction of the appellant is unsafe as a consequence of the
witness Thompson retracting his evidence."
14. In our judgment because of the way the case was presented in the
Crown Court and in the summing-up that ground of appeal is made out. We have therefore not
considered, nor have we been asked to consider, the remaining three grounds of appeal,
which raise issues in relation to disclosure of police officers' day books, scientific
evidence, and disclosure of a letter sent by Jennings to Detective Sergeant Bowler after
Jennings had given his evidence. It follows that in our judgment this appeal against
conviction must be allowed, and we so ordered last Thursday.
15. We turn now to the question whether to order a re-trial. The power
to order a re-trial is to be found in section 7(1) of the Criminal Appeal Act 1968 which
"Where the Court of Appeal allow an appeal against conviction and
it appears to the Court that the interests of justice so require, they may order the
appellant to be re-tried."
16. In R v Graham and others  1 Cr App R 302, a case
concerned with criminality of a very different kind, Lord Bingham CJ said at 318 B in
relation to section 7 -
"It is apparent that conditions which permit the Court to order a
re-trial are two fold: the Court must allow the appeal and consider that the interests of
justice require a re-trial. The first condition is either satisfied or is not. The second
requires an exercise of judgment, and will involve the consideration of the public
interest and the legitimate interests of the defendant. The public interest is generally
served by the prosecution of those reasonably suspected on available evidence of serious
crime, if such prosecution can be conducted without unfairness to or oppression of the
defendant. The legitimate interests of the defendant will often call for consideration of
the time which has passed since the alleged offence, and any penalty the defendant may
have already paid before the quashing of the conviction."
17. We accept that we are called upon to exercise our judgment in that
18. Mr Clegg's basic submission in relation to this aspect of the matter
is that because of the publicity generated by the case the appellant cannot now receive a
fair trial. An order for a re-trial would therefore, it is said, amount to unfairness to
Strength of Case.
19. Mr Clegg submits that whether publicity renders a re-trial unfair
cannot be considered in a vacuum. The decision must be related to the facts of the case.
If the case against the defendant appears weak then the impact of publicity may be
crucial, and so persuade the court not to order a re-trial. Conversely if the prosecution
appear to have a very strong case the impact of publicity would be reduced and a re-trial
would be ordered.
20. Whilst we accept that a re-trial should not be ordered where, taking
into account the result of the appeal, the prosecution appears to be left without a viable
case, and we also accept that a very powerful prosecution case may weigh in favour of an
order for re-trial, we consider that otherwise this court should not speculate as to how
strong the prosecution case may appear to be at a re-trial.
Gravity of Charge.
21. A much more relevant factor, in our judgment, is the gravity of the
charge, because where there is a viable case against a defendant in relation to a grave
matter the public interest does require the verdict of a jury, provided that can be
achieved without unfairness to or oppression of the defendant. In the present case the
charges could not be more grave.
Publicity in this case.
22. The publicity to which our attention has been drawn took place for
the most part in the months immediately after the verdict was returned in October 1998,
when many matters were revealed which had not been known to the jury. There was a trickle
of publicity thereafter, and it erupted again immediately prior to and during this appeal.
Nothing new was said recently, but it can be argued that newspaper readers and television
viewers would have been reminded by recent publications of what they were told over two
years earlier. Whether they were reminded of the detail of what they had been told is
quite another matter. In summary form the early allegations can be said to have been made
under eight heads -
23. Not all of these revelations were made in any one newspaper, but
many of them featured prominently in tabloid newspapers with wide circulations, such as in
particular the Sun on 24th October 1998, and also various editions of the Mirror and the
Daily Mail. Whether or not the revelations were accurate is for present purposes wholly
immaterial. Mr Clegg that asserts many of them were false.
24. Mr Sweeney, for the respondent, pointed out that the publicity was
not all adverse to the appellant, and that the publicity which was adverse, in the sense
of disclosing what a re-trial jury would not normally know, occurred almost entirely at
the end of 1998. In 1999 and 2000 there was some discussion of how to deal with those
suffering from severe personality disorders, and the House of Commons Select Committee on
Home Affairs recommended legislation to provide a service separate from but linked to
prisons and hospitals, and a new civil court order for detention. This legislative
initiative was triggered by the Chillenden murders, but alongside that publicity,
reminding readers of the appellant's personality, there was publicity questioning whether
he was rightly convicted, now that Thompson was shown to be a liar. Questions were also
raised as to the reliability of confessions to other prisoners. Mr Sweeney calculated that
since the verdict there 85 newspapers articles which were adverse to the appellant, of
which between 50 and 60 were published in 1998, and there were 95 articles which could be
described as adverse to the prosecution case. Mr Sweeney was rightly cautious about the
value of such arithmetic, which was derided by Mr Clegg in reply, but it does emphasise
two important points - first that the vast bulk of the publicity with which we need to be
concerned occurred in late 1998, and secondly, that the publicity has certainly not been
all one way. We are conscious that there has been considerable publicity during the course
of this hearing, not included in our bundle, which has been distinctly favourable to the
25. Mr Clegg, who makes no complaint in relation to pre-trial publicity,
or even in relation to saturation publicity during the trial, submits that although
interest in the appellant and in the Chillenden murders after the trial may at times
appear to have declined it has always been there, ready to be rekindled by a new book
about Josie, by library material stored on the Internet, or even by a discussion between
two Queen's Counsel on a late night television programme. Mr Clegg's submission is that
the recurrent publicity, coupled with the shocking nature of both the crime and
allegations made about the appellant, has ensured that even if there is to be no re-trial
until September 2001 some at least of the jury then assembled will recall matter which
they should not know and thus the appellant will not have a fair trial. Even though jurors
will no doubt try to be fair, the effect of the publicity, like bias, is likely to be
insidious, and taint the procedure. We were reminded that in R v Gough  97 Cr
App R 188 Lord Goff said at 191 that "bias is such an insidious thing that, even
though a person may in good faith believe that he was acting impartially, his mind may
unconsciously be affected by bias."
Date of possible re-trial.
26. At the very end of the hearing we ascertained that if there is to be
a re-trial the appellant understandably wants to be represented by Mr Clegg, who
represented him at his trial as well in this court. Mr Clegg has commitments which make it
impossible for him to represent the appellant at a re-trial before September 2001, and the
appellant is content to wait until then in order to be represented by counsel of his
choice even though the court could accommodate a re-trial in late April. Obviously in a
case of this kind it is right for us to accede to the appellant's wishes in relation to
representation, so the result is that if a re-trial is to be ordered it will not now start
for many months and that is a matter which we think is right to take into account in
deciding whether there should be a re-trial.
Relationship of Publicity to Trial.
27. Publicity can impact on a trial at three stages - pre-trial, during
a trial, or after a trial so as to affect a decision by the Court of Appeal as to whether
or not to order a re-trial. If prejudicial material is published either before or during a
trial then the publisher will be at risk of proceedings for contempt of court and a
defendant in the trial may be able to seek an order that the action be stayed. If his
application is rejected and he is convicted his appeal may be allowed on the basis that
the verdict is unsafe. For the reasons which we have already explained we are not here
concerned with the publicity prior to the original trial, or with publicity during that
trial. We are concerned with the post trial publicity of a kind which could not give rise
to proceedings for contempt, and so far as we have been able to ascertain there are no
decisions, either in England and Wales or in relation to Article 6 of the European
Convention on Human Rights, which focus on adverse publicity after trial. As Mr Sweeney
pointed out, this is a case where, but for the publicity, we would inevitably order a
retrial. Mr Clegg recognises that even without Thompson the prosecution has a clear case,
whatever arguments there may be about its merits, and with offences of such gravity that
case ought to be heard, so Mr Clegg's submission can realistically be regarded as a
foretaste of the submission he would otherwise make to the trial judge at the start of the
re-trial. It is obviously sensible to make that submission now but in reality what we are
looking at, viewed from the point of view of the proposed re-trial, is pre-trial
publicity, and even by analogy publicity long before committal, which, it is said, has
been such as to render a fair trial impossible. That is why we are able to derive some
assistance from decisions in relation to pre-trial publicity, but less assistance from
decisions in relation to publicity during a trial, which may be particularly objectionable
because of the way in which it impacts upon the course of the current trial and the way in
which the defence case is being presented. Our decision does not of course bind the trial
judge at the re-trial in relation to any pre-trial publicity hereafter, and we recognise
that we do not have the advantage which the trial judge will have of knowing precisely the
shape of the revised prosecution case, but we think it important to analyse the type of
publicity with which we are concerned before we turn to look at the authorities to which
we have been referred. We propose to look at them in chronological order because that
casts some light on the development of this branch of the law.
59. Our conclusion is that although the European decisions do
demonstrate that the right to a fair trial enshrined in Article 6 does encompass a right
to a trial the result of which is not distorted by publicity, the English criminal courts
have been much more involved than the European Commission or the European Court with how
that right, which we all recognise, is to be safeguarded.
60. There is a tendency in a case such as this to equate the right to a
fair trial with keeping the jury in ignorance of facts which a jury should not normally
know, and the two are not the same. For example a jury is not normally told of a
defendant's previous convictions, but there are a variety of ways in which that knowledge
may come to the attention of a jury in a particular case without the trial being rendered
unfair. The offence may have been committed in prison, or the defendant (like Ronald Kray)
may be notorious; he may choose to put his record before the jury, perhaps so as to enable
him to attack witnesses for the prosecution without reserve. When asked why in the present
case a re-trial would be unfair Mr Clegg replied that the publicity would deprive the
appellant of the right to keep certain matters from the jury. But, as we have
demonstrated, a defendant in a criminal trial does not always have that right. In addition
to the examples we have given of circumstances in which a jury may learn of the previous
convictions of a defendant the prosecution may be allowed to lead evidence of similar
facts, or a co-defendant may cross examine to establish bad character. So the submission
has to take account of all of the possibilities, and in our judgment a better approach to
our task is that adopted by Phillips J in Maxwell.
61. So we ask ourselves whether we can be satisfied, on a balance of
probabilities, that if the jury in September or October 2001 returns a verdict of guilty
the effect of the pre-trial publicity between October 1998 and February 2001 will be such
as to render that verdict or those verdicts unsafe.
62. We accept that the early publicity was sensational, possibly in
parts inaccurate, and extended far beyond what a jury in 2001 might normally be told, but,
at least in so far as it was accurate it was legitimate. Mr Clegg submits that the volume
of publicity is unique. We decline to involve ourselves in comparisons, but we have been
referred to other cases where the volume of publicity was considerable. Mr Clegg submits
that if a re-trial is to be ordered in this case and there is to be no stay it is
difficult to envisage any case where as a result of pre-trial publicity there will be a
stay or a refusal of an order to re-try. But, as we have demonstrated, circumstances vary
infinitely. The re-trial will not start until nearly three years after the October 1998
publicity, which is the principal target of complaint, and people do forget. Even if they
do not forget entirely, the passage of time makes it easier for them to set aside that
which they are told to disregard. Here, as Mr Sweeney points out, the central question
during a two to three week trial is likely not to be the character of the appellant, but
whether Daley can be believed, and in justice to the Russell family and to the wider
community there should be a trial to answer that question. The risk of prejudice will be
reduced if the trial does not take place in Kent, or even in London, because the impact of
these crimes was at its greatest locally and it may be that some further safeguard can be
provided by a few careful questions to the jury panel (but as to that see R v Tracey
Andrews  CLR 156). But whether or not questions are asked we are not now
satisfied that if the jury does convict their verdict will be found by this court to be
unsafe by reason of the publicity to which we have referred. That is why last Thursday we
ordered a re-trial.