Quinn, R v

LORD JUSTICE CLARKE: This is the judgment of the court.

The appellant is John Quinn, who is now aged 76. This appeal comes before the court by way of a reference by the Criminal Cases Review Commission (the CCRC). On 27th March 1957 at the Cumberland County Quarter Sessions held at Carlisle, on an indictment containing two counts, the appellant and John Smith were convicted of an alternative charge of receiving stolen goods, namely a quantity of brass fittings and eleven-and-three-quarter bars of lead, contrary to section 33(1) of the Larceny Act 1916, having been found not guilty of store-breaking and larceny contrary to section 26(1) of the Larceny Act 1916, and were each sentenced to six years' imprisonment. On the second indictment they pleaded guilty to one count of larceny, contrary to section 8(1)(b) of the Larceny Act 1916 and were sentenced to five years' imprisonment concurrent. The total sentence was thus six years' imprisonment. This appeal relates only to the first indictment.

The presiding judge at the appellant's trial was Mr JM Davies, sitting as Deputy Chairman of Quarter Sessions. Counsel for the Crown was Mr Ifor Morris Jones and counsel for the appellant was Mr Winston Guthrie-Jones, both of whom were well known in the Cumberland County Quarter Sessions at the time and were, we understand, known as the Cumbrian Cambrians. Gibbs J and I are indebted to Douglas Brown J for this historical footnote, which is based on his personal knowledge.

On 8th July 1957 the appellant was refused leave to appeal to the Court of Criminal Appeal against both conviction and sentence. He now appeals against conviction, all these years later, upon a reference by the CCRC under section 9(1) of the Criminal Appeal Act 1995 on the basis of what is said to be fresh evidence. By section 9(2) such a reference is to be treated for all purposes as an appeal against conviction under section 1 of the Criminal Appeal Act 1968.

Unfortunately, but unsurprisingly given the lapse of time, many of the original documents, including the trial transcripts, have been destroyed. The Court of Appeal office file is no longer available. The facts upon which the appeal is based are principally to be found in a police internal report dated 7th September 1957, which was written in response to a petition by the appellant's co-defendant, John Smith. It is apparently not known what the purpose of the petition was. The second document upon which the facts are based is a Home Office summary of evidence dated 4th September 1959. It appears that that summary was prepared as a result of an attempt by the appellant to persuade the Home Secretary of the day to refer the matter back to the Court of Criminal Appeal. The attempt failed at the time.

The facts, based as they are principally on those documents, may be summarised in this way. Between 16.30 on Saturday 5th January and the morning of Monday 7th January 1957 a store belonging to the Border Rural District Council was feloniously entered into and property stolen from it. The value of the property was £234.16s.6d. Police enquiries were commenced and as a result of information received Harry Dixon was interviewed. Statements were obtained from Harry Dixon and his brother William Dixon. Smith and the appellant were arrested.

Two other men were also charged with receiving. They were Mr Jamieson and Mr Miller. They were in due course dealt with summarily by the Cumberland Ward Magistrates Court and were found guilty of receiving the property in question. Mr Jamieson was fined £50.

It was the prosecution case that the appellant and Mr Smith were guilty of receiving the stolen goods. The prosecution case depended entirely on the evidence of Mr Dixon. It was the defence case that Mr Dixon was implicated in the theft and was faced with the problem of disposal. He tried to pass the wares to Mr Smith and the appellant who refused to receive them. When the police became aware of the theft, Mr Dixon realised he was in trouble and decided to make up a story that Mr Smith and the appellant had given him the wares. Mr Dixon could not have visited the appellant at the caravan at the time he claimed because to attend work the appellant travelled by a special bus which left at 6.45 am.

So far as can be ascertained, William Dixon's evidence was broadly to this effect. One day early in the week beginning Saturday 6th January he was doing his milk round with a lorry in an area which formed part of milk round No 17. Between 7.20 and 7.30 am he delivered milk at a caravan where John Smith and the appellant resided with the appellant's mother and Mr Smith's girlfriend, Mrs Mcleish. Smith and the appellant asked him whether he would take "stuff" down to Carlisle for them as they had no means of transport and he agreed to do so. The appellant got into his lorry and they drove down to a spot a few hundred yards away on the main road. The appellant indicated where he should stop the lorry. The appellant got out and climbed over the wall adjoining the road and returned to the lorry with about five sacks which he handed to Mr Dixon over the wall. Mr Dixon did not see the contents of the sacks but the appellant told him there was brass inside them. Mr Smith joined them having walked there. They told Mr Dixon to "take it down to town and leave it, put it out of the road for a bit." Mr Dixon drove to his brother's house and told his brother's wife he was leaving the sacks there. He left no message for his brother, nor did he tell them that the brass was for sale. When he dumped the sacks one burst open and he saw the brass components inside. He returned to his milk round. Later in the day he was approached by his brother and his companion Mr Miller. Mr Miller offered Mr Dixon £14 for the brass which Mr Dixon accepted. Mr Dixon returned to the house where he helped his brother and Mr Miller to load the brass into Mr Miller's vehicle. Between 4.15 pm and 4.30 pm Mr Smith approached Mr Dixon, who was doing his newspaper vendor job, and Mr Dixon gave him the £14 he had received from Mr Miller for the brass. Mr Smith gave him £2 for taking the brass into town. Only Mr Smith was present at this transaction.

Some evenings later, and on what was almost certainly Thursday 10th January, Mr Smith and the appellant approached him when he was selling newspapers. The appellant asked him if he knew of anyone who would buy a quantity of lead. Mr Dixon took the appellant to the Globe Tavern. They went there in the appellant's lorry. Mr Smith did not go with them. Mr Dixon introduced the appellant to two dealers but no price was agreed on. They went to the Wrestler's Arms where Mr Dixon interested Mr Jamieson in the lead and said that the appellant wanted £28 for it. Mr Jamieson came out of the public house to meet the appellant who had stayed in the lorry. Mr Jamieson agreed to pay £25. The lead was unloaded from the lorry in Mr Jamieson's yard. Mr Jamieson handed the £25 to Mr Dixon. Mr Dixon handed it immediately to the appellant and did not profit from the transaction himself.

A few nights later Mr Dixon was interviewed by a police officer. Mr Dixon took the officer to the plantation where he said the appellant had handed him the brass over the wall. Mr Dixon and the police officer found an overcoat button there. We interpose to note that the button was later found to come from an overcoat subsequently found by the police in Mrs Quinn's caravan. Mr Dixon added that he had never seen the overcoat from which the button came and did not sell it to Mrs Mcleish. He was not sure that the visit to the caravan took place on a Sunday. He thought it was an ordinary weekday but then he thought it must have been a Sunday because on other days he sold newspapers in the evening. he realised that if he gave Mr Smith the £14 on the same day when he was selling papers it could not have been a Sunday, it must have been a week day.

He was cross-examined and in cross-examination said that the allegation of milk rounds was not rigid and owing to staff shortages he helped out on the No 17 round before doing his own round. When roundsmen were helping each other they often signed for deliveries they had not made. The figures in the milk books for the day in question were by him. The time he reached the caravan was between 7.20 and 7.30 on a weekday.

The defence called Mr Messenger, a milk roundsman. He said, among other things, that the entry in the milk delivery book was in his and Mr Underwood's handwriting. Mr Underwood, the foreman of the Carlisle Milk Distributors, for whom Mr Dixon worked, gave evidence. He said that Mr Dixon should have been on the No 5 round, not the No 17 round. He had no business delivering milk to the caravan, nor to be there with a company vehicle. The entries in the milk delivery book showed that Mr Dixon had not delivered milk to the caravan that week. The relevant entry in the book was in his and Mr Messenger's handwriting.

Mrs Quinn and Mrs Mcleish corroborated Mr Smith and the appellant's account that Mr Dixon came to the caravan early on the Wednesday morning with the brass and the lead on the lorry. Mr Dixon could not persuade Mr Smith or the appellant to accept the metals, but he persuaded Mrs Mcleish to buy an overcoat from him. This was the overcoat to which the button found at the plantation was matched.

It is clear from the evidence which we have summarised that the prosecution case against the appellant depended entirely on the evidence of Mr Dixon.

The grounds of appeal are that the conviction is unsafe for these reasons: first, that the appellant and Mr Smith should have been tried jointly with Mr Jamieson and Mr Miller; secondly, that there was insufficient independent evidence to support a conviction; and thirdly, that the evidence of Mr Jamieson.

In this last regard the appellant applies to call fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968. The fresh evidence consists of a statement from Mr Jamieson dated 14th July 2003, which may shortly be summarised in this way. Some time between 1973 and 1981 a man named John Quinn came to his house and asked him if he would say that he was not the man with Mr Dixon when Mr Jamieson purchased the lead from Mr Dixon in January 1957. Mr Jamieson was sure he was not the man who had been with Mr Dixon. The difference in size between John Quinn and the man with Mr Dixon was such that they could not possibly have been the same person.

In our judgment this appeal essentially depends upon the evidence of Mr Jamieson. Section 23 of the Criminal Appeal Act 1968, in its present form, provides so far as relevant:

As to those factors, Mr Dutchman-Smith accepts on behalf of the Crown:

However, Mr Dutchman-Smith submits that there is no reasonable explanation for not adducing the evidence of Mr Jamieson at the original trial. His submissions can be summarised in this way, which is substantially as he put it in his skeleton argument:

We shall return to these submissions in a moment. However, before doing so we should note the Crown's approach to the safety of the conviction if we admit the evidence of Mr Jamieson. In that event it is the position of the Crown that at this time so long after the events it would not seek to challenge the assertion by Mr Jamieson that the appellant was not the person who accompanied Mr Dixon. In coming to this conclusion the following factors have been taken into consideration by the Crown:

In his skeleton argument Mr Dutchman-Smith submits that the conviction cannot be said to be unsafe on the basis of the evidence that was given at the trial. We agree. There is no reason to think that the matter was not properly summed up and the question of guilt was essentially a matter for the jury. Mr Dutchman-Smith put the point in this way in paragraph 11 of his skeleton argument:

However, Mr Dutchman-Smith makes what is in our judgment an important concession, if the evidence of Mr Jamieson is admitted by this court. He recognises that if that evidence is admitted and is considered by the court to be credible, it would in a very significant way further undermine Dixon's evidence. For that reason he has told us that the Crown would not in those circumstances seek to argue that the conviction should be upheld. If Jamieson's evidence is admitted we see no reason not to regard it as credible. He has never expressed any view which implicates the appellant. There is no reason to think that he would not have said the same in 1957 if he had been asked in 1957, which he was not either by the police or by and on behalf of the appellant. We agree with Mr Dutchman-Smith that if Mr Jamieson's evidence were admitted, it would have the effect that the court would reach the conclusion that the conviction was unsafe with the result that the appeal should be allowed.

The crucial question in this appeal is therefore, in our view, whether the court should receive Jamieson's evidence under section 23 of the Criminal Appeal Act 1968. We therefore return to the submission that there is no reasonable explanation for the failure to adduce the evidence at the original trial.

In considering this question we must have regard to circumstances as they were in 1957. To modern eyes it is perhaps surprising that Mr Jamieson was tried in the Magistrates Court, whereas the appellant and Smith were tried at Quarter Sessions. Miss Smullen submits that the failure to try both together affords the appellant a separate ground of appeal. In response Mr Dutchman-Smith says this in his skeleton argument:

The appellant at least attempted to do something about it. While on remand in custody at Durham prison he petitioned the Home Office to be permitted to attend Jamieson's trial. We have seen the petition which is a very coherent document. It includes this passage, being addressed to the Home Secretary:

It is submitted by Mr Dutchman-Smith that it is almost certain, in the light of the appellant's state of mind as indicated in that petition, that he would have raised the importance of Mr Jamieson as a witness with his solicitor and counsel before the trial. We accept that in principle that seems likely. However, it is right to say that there is evidence, which we see no reason to doubt, that the appellant did not see his solicitor or counsel until the morning of the trial. He had not, it appears, been in contact with them whilst he was in prison before the trial.

Although Mr Jamieson was a compellable witness at the trial, and it is more likely than not that the appellant's solicitors and counsel considered calling Mr Jamieson, it is far from clear how practical it was for them to take a statement from Mr Jamieson. First, Mr Jamieson was not convicted until some eight days before the date of the appellant's trial. He was convicted, as we understand it, on 19th March 1957, since we understand he did not plead guilty as had originally been contemplated. The appellant's trial took place on 27th March. Even if solicitors and counsel had been aware of those facts it is not clear to us how easy it would have been to take a statement from Mr Jamieson in time for the trial and, if they only learned of Jamieson's importance on the day of the trial, it may well have been decided that it was not worth applying for the adjournment which might well have been required. We think it most unlikely that solicitors and counsel would have advised the appellant to call Mr Jamieson blind by serving a witness summons but without having a proof of evidence from him.

In considering this part of the case, the CCRC said this in paragraph 43 of their report:

It appears that there was some confusion as to the date of Mr Jamieson's trial. A police report to the Home Office, dated 7th September 1957, which was after the appellant's trial, included the following:

We agree with those conclusions. We are not able to conclude that there is a reasonable explanation for not calling Mr Jamieson to give evidence at the appellant's trial. We can put it no higher than to say that there was a potentially reasonable explanation in the factors identified by the CCRC.

We recognise the principle in R v Ditch (1969) 53 Cr.App.R 627, which is referred to by the CCRC, where O'Connor J said in this court:

However, let it be assumed that it cannot be shown that there were reasonable grounds for not adducing the evidence of Mr Jamieson at the appellant's trial. The question remains whether we should receive the evidence. We have reached the conclusion that, when all the circumstances of the case are taken into consideration, we should receive the evidence. The circumstances here were most unusual. We have regard to the fact that, although reasonable grounds have on this hypothesis not been shown, when we set that fact against all the other circumstances of the case which we have described, we should indeed receive the evidence. Most importantly, we set it against the fact that the other criteria in section 23(2) are satisfied and against the concession, which in our judgment is correctly made, that, if the evidence is received, it is credible and leads to the conclusion that the conviction is unsafe.

In our judgment, this is indeed one of those very rare cases in which there are strong reasons for thinking that the appellant was not guilty of receiving. If we were to dismiss this appeal it would in our judgment be to compound what in our view was a miscarriage of justice. It follows that we receive the evidence and allow the appeal.

We add only this. When we first considered the papers in this case we were surprised that the CCRC should have referred to this court such an old case which is concerned with nothing more serious than receiving stolen goods. We noted that the CCRC had refused to refer it on at least one previous occasion. We certainly do not encourage the CCRC to refer historic cases to this court. Nevertheless, the CCRC itself had this principle well in mind. It said in paragraph 53: