Cooper & Anor, R v

On 19 ^th March 1970 Patrick Colin Murphy, Michael Graham McMahon and David Cooper were convicted at the Central Criminal Court of the murder of Reginald Stevens at Luton on 10 ^th September 1969. On 26 ^th February 1971 their applications for leave to appeal were dismissed by this court, but in 1973 the case of Murphy was referred to this court by the Secretary of State for the Home Department pursuant to section 17 of the Criminal Appeal Act 1968, and on 11 ^th March 1973 his appeal was allowed. The Secretary of State then referred to this court the cases of Cooper and McMahon, but on 12 ^th February 1975 their appeals were dismissed. There was a second reference by the Secretary of State in 1976, but on 22 ^nd July, 1976 their appeals were again dismissed, and on 11 ^th April 1978 this court declined to receive fresh evidence tendered by McMahon following a reference by the Secretary of State under section 17(1)(b) of the 1968 Act. On 17 ^th July 1980 Cooper and McMahon were released from prison by order of the Secretary of State, and the remainder of their sentences was remitted, because of the "widely felt sense of unease" about the safety of their convictions. Cooper died in 1995 and McMahon in 1999. Their cases were referred to this court by the Criminal Cases Review Commission on 15 ^th March 2001.

This is not a case in which there is any criticism of the conduct of the trial by the trial judge. What is said by Mr Emmerson QC for the appellants is that over the years it has become increasingly apparent that there are serious grounds for concern about the way in which the police investigated the matter, and put the prosecution case together; about the failure of the prosecution to disclose certain matters to the defence, and about the impact of subsequent events upon the safety of the convictions. Some matters which we are asked to consider have already been considered by this court at one or more of the hearings to which we have just referred, but it is the cumulative effect of the criticisms we have to consider, and we are indebted to all three counsel for the work which they have done and the clarity with which they have presented the matter to us, both orally and in writing. Before we turn to the grounds of appeal which have been developed before us it is necessary to outline the case as presented at trial, and the main points considered at each of the subsequent hearings in this court.

At about 6.10 p.m. on 10 ^th September 1969 Mr Stevens, the sub-postmaster of a post office in Luton was getting into his car, which was parked in the car park of a bank close to his post office, when he was shot with a sawn-off shotgun at point blank range. It was apparently a bungled robbery. Two women, Mrs Crawley and Mrs Calvert, were in their gardens nearby. They heard the shot and saw three men running from Mr Stevens’ car. They then got into a green van which was driven off at speed. When it got to Luton railway station, not far away, Mr Herbert Andrews saw that it contained four men. They all got out, one clad in a boiler suit, and they got into two cars, a Vauxhall Cresta and a red sports car which may have been a Mercedes or an MG. Mr Andrews got the number of the Vauxhall Cresta, but his recollection varied about the make of the sports car, and he only got part of the number of that vehicle. He did however notice that the man in the boiler suit threw a bag over a fence on to the railway embankment before leaving. That bag contained the murder weapon in a pillow case, and it was recovered at 8.40 a.m. next day.

The Vauxhall car belonged to Alfred Mathews, who became the principal prosecution witness in the case. He was 53 years of age, and he was arrested on 22 ^nd October 1969. He was interviewed and, after initially denying any involvement, he made statements as a result of which, or partly as a result of which, the appellants and Murphy were arrested. Cooper had in fact already been arrested on 21 ^st October 1969 when he made a statement and was released. The two appellants and Murphy were all aged 25 to 27, and all three of them, like Mathews, had previous convictions for significant offences. Murphy was on bail awaiting trial for the armed robbery of a post office in London, for which he later received a sentence of 12 years imprisonment.

Within hours of the murder Scotland Yard was asked to conduct the investigation, and Detective Chief Superintendent Drury became the officer in charge. Once he began to admit any form of involvement Mathews told the police that he had gone to Luton with Cooper, McMahon and Murphy, because Cooper, having visited him at home several times, had persuaded him to go to pick up parcels. He had travelled alone in his own car, but in convoy with the sports car and the green van. The two cars were parked at Luton Station, and the others went off. When they returned in the van in a hurry he was picked up a short distance away and was driven back to the station. During that short journey McMahon said to Murphy (or vice versa) "you’ve shot him, you killed him", and McMahon also said "I didn’t mean to kill him. He pulled the gun and it went off". Mathews also said that McMahon had blood on his clothes, and was in the back of the van putting on a boiler suit. When they got to the station car park Cooper and Murphy left in Cooper’s sports car (Cooper did own a red Mercedes sports car) and McMahon left with Mathews in his Vauxhall. They parted on the way to London, and he arrived home at about 8 p.m. The murder was reported on the 10 p.m. television news, and at about 10.20 p.m. Cooper called. Mrs Mathews was there, and Cooper in effect confessed to the murder. Next day Mathews left his Vauxhall car unlocked in a side road in Hackney, and sent off a change of ownership form. In evidence he explained his initial denials to the police by saying that Cooper had made it clear to him that if he talked someone would be injured.

The sawn-off shotgun which was the murder weapon had belonged to a man named Good. He had been arrested on 12 ^th May 1969 for armed robbery, and claimed to have arranged for the disposal of the gun after his arrest. On 24 ^th October 1969 he was sentenced to 7 years imprisonment. We will look more closely at the position of Good when we turn to those grounds of appeal developed before us.

Superintendent Drury came to the conclusion that in order to convict Murphy, McMahon and Cooper it would be necessary to rely on the evidence of Mathews, and so in a report to his Commander which was dated 27 ^th November 1969, and which was submitted to the Director of Public Prosecutions, Drury said that Mathews was an essential witness and that "almost everything he has said is corroborated somewhere or another by a completely independent and impartial witness." The DPP agreed that proceedings against Mathews should be discontinued, and he became, as we have said the principal prosecution witness. When summing up the trial judge said that it would be idle to pretend that the case "did not really turn on Mathews". Of course the jury was warned of the danger that he might be an accomplice with his own interests to serve, and they were instructed to look for evidence which corroborated what Mathews said against each of the accused.

In the case of Cooper there were three pieces of evidence capable of amounting to corroboration, namely –

In the case of McMahon there were four pieces of evidence capable of amounting to corroboration, namely –

There was also some evidence capable of amounting to corroboration of what Mathews said about Murphy, but as his appeal was allowed in 1973 we need not itemise that evidence.

All three defendants gave evidence at the trial. Their case was that they did not go to Luton, and they were not in any way involved with the killing of Mr Stevens. Mathews was lying, and Cooper never visited him at home on either the 9 ^th or 10 ^th September. It was not suggested that Mathews could be mistaken. Cooper pointed out that the registration number of his soft top Mercedes did not contain 15 or 51, those being the numbers which Mr Andrews recalled seeing on the red car in the station car park.

As to what they were doing on 10 ^th September 1969 Cooper said that he had called on his tailor, Morris Lerman, for a suit. Mr Lerman recalled a visit at about 5 p.m. on a Wednesday, but his statements were inconsistent as to the date. In evidence he did say that it was 10 ^th September. McMahon said that he met Cooper at about 2.30 p.m. on 10 ^th September at Thames Magistrates’Court. They then went home, and watched the St Leger horse race on television, after which he went to his girl friend’s. Murphy gave a broadly similar account and alibi witnesses were called.

(1) February 1971: Application for leave to appeal (Fenton Atkinson LJ, Lyell and Mars-Jones JJ). When this application was made Murphy sought to call fresh evidence from three witnesses, the first of whom was Mrs Brooks, who described the way in which the expedition set off in terms which were not consistent with the evidence of Mathews. Her statement was not taken for several months, and the court did not find what she said likely to be credible. The other two witnesses were two men, Seal and McNair, who said that they were in vehicles in the street in Luton and saw the green van leave the bank car park and head off at speed towards the station. The substance of their evidence was that the driver of the van could not have been Murphy because it was a much older man, and McNair had identified a photograph of Mathews as resembling the driver when shown photographs.

Mr Emmerson QC submits that there are now five topics which were not considered by the trial jury. Two of them have been considered on previous occasions by this court but he submits they should be reconsidered because the approach adopted by the court on previous occasions was wrong. In any event when the additional material is taken into account it is clear that the convictions of the two appellants can no longer be regarded as safe.

The five topics relate to –

Michael Good was not a particularly significant witness at the trial. He was called only to say that the gun found at Luton Station had been his, but after his arrest in May 1969 for armed robbery he had arranged for it to be sold, and that, having been convicted on 2 ^nd October 1969 he was serving a sentence of seven years imprisonment. That could be regarded as supporting the evidence of Jackson, a serving prisoner to whom McMahon was alleged to have confessed. Part of what Jackson said that he was told was that the gun had been obtained from the brother-in-law of a man doing seven years for armed robbery.

Good had been at liberty on 10 ^th September 1969 when the Luton murder was committed, and on 25 ^th September 1969 he was arrested in a public house in connection with that murder. On 8 ^th December 1969, when in custody as a result of his conviction on 2 ^nd October 1969, he made a statement to Detective Sergeant Fallon in which he identified the gun as having been in his possession prior to his arrest in May 1969. That statement was served at the committal, and formed the basis of his evidence.

What those acting for the appellants at the trial did not know, and what is now agreed, is that Good was a police informant, and that DS Fallon, based in north east London, was his handler. It appears that on the day of the murder which was committed at about 6.10 p.m., or possibly on the next day, Good telephoned DS Fallon and told him that he was aware that a gun that was his had been used, and that he was concerned that he would be implicated. The gun was recovered on 11 ^th September 1969 and then DS Fallon and DCS Drury met Good, who identified the gun. He was then to give DS Fallon the names of the suspects. The first two names were Hughes and Rogers, not the appellants. On 12 ^th September 1969 Good named Murphy, who was an associate of Hughes, and who owned a red Triumph sports car. On 15 ^th September 1969 he named McMahon, J. Disher (i.e. Cooper), Byrne and Sullivan. When he was arrested on 25 ^th September 1969 that was an arrest by arrangement to protect his status as an informant. He then, on 27 ^th September 1969, made his statement to DCS Drury which was not disclosed to the defence, and which he has subsequently stated to be untrue. In that statement he said that he had asked his wife to get rid of the gun after he was arrested in May 1969. When he asked his brother-in-law Terry Langston what had happened to it he was told that it had been sold to Patsy Murphy for £20, and from other people he heard that it had gone to McMahon. That version of events was supported by Mrs Good, but was contradicted by statements obtained from Terry and Sheila Langston. On 3 ^rd October 1969 DCS Drury added the name of Good and two others to the list of suspects. Three days later he added the name of Langston.

In April 1970 Good was released from custody, his appeal against conviction having been successful. On 21 ^st May 1970, on the recommendation of DCS Drury, he received a reward of £500 from the Post Office. The cheque was paid into DS Fallon’s personal bank account, and was withdrawn in cash. Good later alleged that DS Fallon retained the money, possibly to pass it on to or share with DCS Drury. DS Fallon and DCS Drury denied that.

Good’s first short statement of 27 ^th September 1969 was shown to the judge when Good gave evidence at the trial, and the judge ordered that the first five lines be read out. They dealt with his possession of the gun prior to his arrest. The rest was hearsay, dealing with his understanding of what happened to the gun thereafter.

Plainly, as it seems to us, the information which was not disclosed, and which today would be regarded as disclosable, would have been of considerable assistance to the defence. Mr Richard Latham QC for the Crown accepts that the information would today be disclosable, at least to the trial judge, but he submits that there was not a lot which the appellants could have done with it. We disagree. It would have shown that Good knew which gun had been used within 24 hours of the murder, and possibly even before the weapon was recovered, which would have supported a suggestion that he was himself involved, or at least he knew who was responsible. He then named a number of suspects, not at first including the appellants. Of course the jury knew that he was seeking to distance himself from the weapon which he conceded that he had once owned and on which he knew his fingerprints might be found, but what was to be made of his position in the light of the additional information, and of the conflict between the Goods and the Langstons as to how the gun was disposed of? As to the reward payment we are not prepared to speculate, even though we recognise that it is reminiscent of an allegation involving Mathews and ex-DCS Drury which was abandoned in 1976, but, as Mr Emmerson and Mr Latham both submit, the inescapable conclusion now must be that at the trial, without judicial approval, the evidence of Good was presented by the prosecution in a way that was deliberately misleading. As we have said, he was made to appear to be of no particular significance, but if the truth were known his evidence could have been of considerable significance. It would certainly have raised questions which the jury would have had to consider.

This is a topic which, as we have explained, has been fully canvassed in this court on two occasions and, as is clear from the decision in Pendleton , although the law has been clarified it has not been changed. We are therefore reluctant to go over the ground again, but in a case such as this it would not be right to foreclose argument on any aspect of the matter on which counsel for the appellants reasonably wishes to rely. Mr Emmerson criticised the reasoning of the Court in 1975. He submitted that, given the way the matter was contested at trial, it was not appropriate for the Court to accept the Crown’s submission that it was open to the jury to find Mathews to have been mistaken about Murphy. For that involved an unacceptable degree of speculation on a point never canvassed at the trial. Even if it was permissible for the Court to speculate about mistaken identification, if Mathews may have been mistaken about Murphy then the jury might consider that they could not rely on his evidence in relation to Cooper and McMahon.

He further submitted that the Court fell into error when it said that "… the jury … could well have found Murphy not guilty and Cooper and McMahonn guilty …" in that given the credibility of Edward’s evidence the jury "could well have found" Cooper and McMahon not guilty. If, so, the convictions of Cooper and McMahon were unsafe.

Finally, he submitted that applying Pendleton the appropriate question the Court might have asked itself was – might Edwards’ evidence have affected the jury’s view of Mathews’ evidence against Cooper and McMahon? As Lord Devlin put it in "Afterword" in a book "Wicked Beyond Belief – The Luton Murder Case", edited by Ludovic Kennedy and published in 1979 (at page 144) :-

We accept Mr Emmerson’s submissions that once it is accepted that there is credible evidence [Edwards] which might have caused the jury to be unsure whether Mathews’ evidence against Murphy was reliable, it is undeniable that such evidence might reasonably have affected its view of Mathews’ evidence against Cooper and McMahon. The Court of Appeal in 1973 concluded that Edwards’ evidence in relation to Murphy was credible.

We, with the distinct advantage and benefit of the decision of the House of Lords in Pendleton in 2001, respectfully disagree with the Court of Appeal’s assessment in 1975. If the jury at the trial had had the benefit of Edwards’ evidence exculpating Murphy, we accept that it would have been directed by the trial judge that such evidence was also relevant to the jury’s assessment of the truthfulness of Mathews, not only in respect of Murphy, but also in respect of Cooper and McMahon. In our opinion it is impossible to say that such evidence would have made no impact on the jury in respect of Mathews’ veracity when considering Cooper and McMahon. On the contrary, it might have made a heavy impact.

In 1976 Mathews gave evidence before a differently constituted Court of Appeal. He roundly asserted that there was no question of mistake in his identification of Murphy, Cooper or McMahon. The Court explained why Murphy’s appeal had been allowed, and went on to consider the evidence from Mathews. It found that "he was clearly telling the truth". The Court did not hear Edwards although it is fair to point out that (a) he had previously been found to have been an honest and credible witness and (b) the Court of Appeal in 1976 was anxious and would have been prepared to listen to any witness whom the court or the defence had wished to call. Nevertheless, it is the submission of Mr Emmerson that the Court of Appeal in fact conducted the very exercise which Pendleton , many years later, said was impermissible. If Edwards was to the Court of Appeal in 1973 a credible witness, it was not permissible for the Court of Appeal in 1976 to say that they believed Mathews. For, he submitted, that was deciding the very matter which in Pendleton in 2001 it was made clear the Court of Appeal could not decide, namely the guilt or innocence of the defendant.

In a case in which fresh evidence is introduced in this Court, which raises doubts as to the safety of the conviction of one defendant, it remains to be considered whether the introduction of that fresh evidence renders unsafe the convictions of other defendants. It is not enough to show that the primary evidence against all of the defendants was the same prosecution witness. There may, for example, be other evidence indicative of the guilt of those defendants to whom the fresh evidence does not directly relate. In this case there was some such evidence which was identified by the trial judge as capable of corroborating the evidence of Mathews. But the prosecution always accepted that the weight of that other evidence was such that the credibility of Mathews remained critical. If his credibility was seriously undermined then none of the convictions could be regarded as safe. In 1975 and again in 1976, the function of this court was to evaluate the fresh evidence, and to set it along side the evidence heard at the trial, in order to decide whether it thought that the conviction recorded in 1970 remained safe. Once the impact of the evidence of Edwards was, as we accept, to some extent misunderstood, the task of the Court became increasingly difficult. That was because, as it turned out, giving Mathews an opportunity to deal with the possibility of mistaken identity (a possibility not canvassed at the trial) came very near to putting the Court in 1976 in the position of the primary decision maker in relation to a different case. In our judgment Mr Emmerson’s criticisms of the way in which this whole topic has been handled since it was agreed that the evidence of Edwards should be admitted are well founded.

Seal on 10 ^th September 1969 was a 25 year old plant fitter driving his firm’s small van along High Town Road when a green Ford Transit van emerged from a road on his offside and a little way ahead. It turned left, but in doing so caused Seal some inconvenience, and in his first statement which he made two days later he described the driver as being 40-45 years of age and having a weather-beaten complexion. At first Seal thought that he "may be able to recognise" the driver but by 20 ^th September 1969 he was "pretty sure" that he would recognise him. On 29 ^th September 1969 he was shown a green van at the police garage, and described it as identical to the one he had seen on 10 ^th September. He was shown a number of photographs, one of which he described as very similar to the man driving the van. On 14 ^th October 1969 he was shown more photographs, one of which he described as similar in facial appearance to the van driver. On three subsequent occasions in late October and early November 1969 he attended identification parades, but did not identify anyone. Mathews was not standing on any of those parades, nor was either of the photographs selected by Seal a photograph of Mathews.

Although Seal’s statements were relied upon when leave to appeal was sought in 1971 he did not then give evidence. He did however give evidence in 1975. The court was not impressed. James LJ said –

Although for present purposes it would have been tidier if Mathews had been asked to stand on an identification parade attended by McNair and perhaps also by Seal, we can well understand DCS Drury’s professed anxiety not to do anything which might cause Mathews to withdraw his co-operation. In the result we, like our predecessors, do not regard the evidence of McNair, to some extent supported by Seal, as decisive, but it cannot be completely ignored when other matters are weighed in the balance.

Mrs. Florence Mathews was the wife of Alfred Mathews. She gave evidence about Cooper visiting their flat on 9th and 10th September, and again on the evening of the 10th when she heard him say, "Yes. I was at the back of it all, right at the back". Her evidence therefore broadly corroborated that of her husband that Cooper had arrived late on 10th September during the 10 pm television news and confessed to the murder. Her witness statement of 4th December 1969 was tendered in evidence at the committal proceedings and made an exhibit at the trial on the application of the prosecution. Mrs. Mathews’ evidence was identified in the summing-up as capable of being corroboration of Mathews’ evidence in the case of Cooper.

However, two earlier witness statements made by Mrs. Mathews on 24th October and 5th November were not disclosed to the defence. They contained no mention of the late-night visit on 10th September. In fact, in them Mrs. Mathews suggested that her husband may not have been at home on the evening of the 10th September. At p2 of her statement of 24th October she said:

Mr. Emmerson submits that had this evidence been available to the defence, Mrs. Mathews and Alfred Mathews could (and would) have been cross-examined on the basis that they had collaborated in order to fabricate evidence against Cooper. The evidence could have been used to show that Mathews was lying about his own involvement and the involvement of the appellants. Its non-disclosure was therefore a material irregularity, which seriously prejudiced the appellants.

Mr. Latham agreed that the much more limited account in Mrs. Mathews’ statements of 24th October and 5th November did not support the account in Mr. Mathews’ witness statement. Mr. Latham accepted that the two undisclosed statements would have provided material for the cross-examination of both Mr. and Mrs. Mathews on the issue of fabrication of evidence relating to his movements and associations on the afternoon and evening of the murder and that these earlier statements should have been disclosed to the defence prior to the trial.

In our judgment Mr Latham was right to concede that Mrs. Mathews’ two earlier statements of 24th October and 5th November should have been disclosed to the defence prior to trial. Such disclosure would be required under modern practice and in our view such disclosure was required at the time. In Regina v Ward [1993] 1WLR 619 at 643 the Court of Appeal presided over by Glidewell LJ cited from Archbold, Criminal Pleading Evidence & Practice 38 ^th edition, page 202:

It is not necessary to consider whether the failure of the prosecution to disclose the two statements of 24th October and 5th November taken alone would have rendered the convictions unsafe. In our judgment the deployment of the two earlier statements in cross-examination (had they been disclosed as they should have been) would have had a significant impact upon the course of the trial.

For completeness we add that ‘notes of interview’ between Drury and Mathews allegedly recorded between October 22nd and 24th were not revealed to the defence until Mathews was being cross-examined during the 1976 appeal. Until then, the defence had been informed merely that Mathews, until he had made his first statement, denied ever having been in Luton on the day of the murder, and denied that he had made out a false change of ownership card for his Vauxhall car. The defence were unaware of Mathews’ attempt to put up a false alibi by using his wife and brother, and of his highly detailed account (accepted by the prosecution to be a complete fabrication) of selling his car and threatening visits that he claimed he was receiving (presumably from non-existent people). After 11.15 on 24th October Mathews switched to what was revealed to the defence in isolation at trial, namely an account of his activities in Luton in the company of Cooper, McMahon and Murphy. (CCRC Statement of Reasons 19.13.3 and 4). Mrs. Mathews first (undisclosed) statement was dated 24th October.

Drury was convicted in July 1977 of five counts of corruption. He was found to have accepted sums of money, airline tickets and an evening’s entertainment as a reward for favours bestowed, but none of the charges have anything to do with the investigation of the Luton Post Office murder. Indeed the first offence in time of which he was convicted was committed on 29 ^th March 1971, just over a year after the jury returned its verdicts in the present case, and it seems to us that this court must not be too ready to hold that subsequent bad behaviour even by a police officer has a retroactive effect. It may in some cases cast fresh light on credibility, but the credibility of DCS Drury was not a large issue in this case. He did not, for example, contend that either appellant made significant admissions to him. Nevertheless Mr Emmerson contends that, at least in this court, the conviction of Drury enables him to present some of his other complaints with more force.

First, Mr Emmerson points to the way in which the trial court was misled as to the position of Good and as to the consistency of Mrs Mathews. The extent of disclosure in relation to those two witnesses can be traced back to the officer in charge of the case. Then, secondly, there was the decision not to proceed against Mathews, and to use him as a prosecution witness. That was approved by the DPP, but Drury’s report to the DPP overstated the case for Mathews, saying, as we have already noted, that "almost everything he has said is corroborated somewhere or another by a completely independent and impartial witness." The report went on to say in paragraph 200 –

Finally, there were the allegations about shared rewards, particularly those paid to Mathews and to Good. We do not and cannot make any finding that reward monies were improperly recommended or passed on in whole or in part to serving police officers. Even if they were, that would not directly impact upon the central issue of who went to Luton with Mathews on the day of the murder, but the conviction of DCS Drury does enable Mr Emmerson to underline the points that he has made.

So, as it seems to us, there are now a number of matters which can be described as causes for genuine concern, when evaluating the safety of these convictions.

For present purposes it is unnecessary to say that one of those matters, or any combination of them, is decisive. It is sufficient to say that in their totality they persuade us that these convictions are no longer safe, and that the appeals against conviction must be allowed.