Bain, R v

On 17 February 1971 at the Central Criminal Court, before Caulfield J. and a jury, Alfred Nathan Bain was convicted of the murder of a 21 year old prostitute called Mary McCormack. He was sentenced to life imprisonment. There had been an earlier trial, at which the jury had failed to agree upon a verdict in respect of the murder allegation but convicted Mr Bain of living on the immoral earnings of Miss McCormack.

Mr Bain sought leave to appeal against his conviction for the offence of murder but his application was refused by the full court. Their reasons for refusing leave were given in a judgment delivered on 2 June 1972.

Mr Bain, with assistance from his Member of Parliament, applied to the Criminal Cases Review Commission (“CCRC”) for his conviction to be reconsidered. The CCRC concluded that there was a real possibility that the conviction would not be upheld if the case was referred to the Court of Appeal and accordingly made such a reference pursuant to section 9 of the Criminal Appeal Act 1995. The sole ground upon which the CCRC concluded that the conviction might not be upheld related to the adequacy of the directions given by the trial judge to the jury in respect of lies alleged to have been told by Mr Bain.

Mr Bain, who was released on licence from his life sentence, died on 31 May 2001 and the appeal is now pursued in his stead by his daughter, leave having been granted to her pursuant to section 44A of the Criminal Appeal Act 1968.

Mary McCormack was an Irish girl, who in November 1969, returned to County Clare following periods of employment in England. She attended a number of dances in Ennis and Limerick and it was at one such dance that she met Mr Bain. He was originally from Grenada but had he come to live in England around 1960 working mainly as a motor mechanic. Miss McCormack travelled back to London with Mr Bain and after a number of weeks went to live with him at 85 Talgarth Road in West London.

Miss McCormack became a prostitute and was cautioned by the police for soliciting in April 1970. She advertised her services in a number of shop windows adopting the name “Rita Williams” and giving the telephone number of the Talgarth Road address as a means of contact. The prosecution alleged that Mr Bain was living on the immoral earnings of Miss McCormack and the jury at the first trial convicted him of one such offence, disagreeing on the murder allegation and on other counts relating to his involvement in Miss McCormack’s prostitution. No appeal was brought in respect of the conviction for living on immoral earnings.

85 Talgarth Road was divided into flats, one on each floor including the basement. Mr Bain and Miss McCormack occupied the ground floor flat. Access to that flat was via the main door to the premises. Just inside that door were two doors, one leading to the ground floor flat, and the other giving access to the first floor flat, which was occupied by a Mr and Mrs Willoughby. The basement flat was occupied by a Mr Rogers.

Within the ground floor flat there were two main rooms. Miss McCormack used the front room to ply her trade as a prostitute and also slept in that room. Mr Bain occupied the rear room. When he was away from the premises, he kept that room locked with a combination lock.

Miss McCormack met her death by strangulation in her room during the daytime of 31 July 1970. The medical evidence was that she was killed at some time within the bracket 11 am to 3 pm but in all probability before 1 pm. Her last known contact with anyone other than her killer was at approximately 11 am when Mr Percival, one of her clients, spoke to her on the telephone for 10 to 15 minutes. At trial, Mr Percival conceded that the call might have been as late as 11.45 am.

At 2.20 am on 1 August, Mr Bain telephoned the police to say that he had discovered the body of Miss McCormack in her room. On arrival at the flat, the police found the body lying on the floor dressed only in underwear. The body was face downwards partially under the bed. She had been strangled from behind with a strip of plastic which it was established came from a loudspeaker belonging to Mr Bain. When asked where he had found her, Mr Bain replied: “She was lying face down under the bed. I pushed it off her, but I could see she was dead”.

The post-mortem examination revealed that the body had lain face upwards for some six hours or more and it had then been turned over and lain face downwards for a period that might have been as short as a few minutes or up to 4 hours.

In this context, Mr Rogers, the occupier of the basement flat, was able to provide information that at around 12.30 to 1 am, he had been woken by what sounded like someone dropping his boots on the floor of the flat above. The prosecution invited the jury to conclude that this was in all probability the sound of the girl’s body being pushed under the bed.

Two aspects of the matter became important. The first was the movements of the appellant during the day of the murder and the second was how the killer could have obtained the plastic strip from Mr Bain’s loudspeakers. There was no doubt that Mr Bain had spent the middle part of the day and most of the evening at the home of relations by the name of Cato in Percy Road, some two miles from Talgarth Road, and in visiting various locations such as a garage, a betting shop and a post office but the two crucial questions for the jury to consider were first the time when he left home and second, the time of and what happened upon his return.

The prosecution contended that having killed Miss McCormack, Mr Bain had immediately gone out to provide himself with an alibi and that his actions on his return were inconsistent with innocence. They argued that the killer would have had no motive to return and move the body unless he was Mr Bain in whose premises the body was lying.

When interviewed by the police, Mr Bain claimed that he had gone out between 9.30 and 9.45 am and thus well over an hour before the earliest time at which Miss McCormack might have been killed. He maintained this account throughout.

Mr and Mrs Willoughby, the occupiers of the first floor flat gave evidence that Mr Bain had called on them that morning. The prosecution suggested that this visit was almost certainly soon after the killing and suggested that Mr Bain was wanting to satisfy himself that the Willoughbys had heard nothing of the struggle. Mr Bain denied that he had spoken to the Willoughbys on the morning when the murder occurred and it was suggested on his behalf that they were muddling the days and they were talking about events, which had happened on the previous day.

There were discrepancies in the evidence of the Willoughbys. Mr Willoughby at first said that the visit was some time between 9 and 11 am but eventually said that he really had no idea of the time. Mrs Willoughby had initially said that the visit was on the 30^th and not the 31^st but gave evidence that it was the 31^st. Other evidence was called to show that the day to which she was referring was indeed the 31^st. Mrs Willoughby’s evidence was that Mr Bain called between 11.30 and 12. She said that she could be sure of the time and she referred to the fact that she had spoken on the telephone to a Mr Isidore an hour to an hour and a half later, and during the call he had said that it was 12.55. She said that shortly after that Mr Isidore came to the flat. Mr Isidore gave evidence that he had left his own flat shortly after a radio programme started called Radio 1 Club and this had started at 12 noon.

Mr Bain’s version of these events was that he had left between 9.30 and 9.45 am seeing Miss McCormack either going to the toilet or making some coffee before he left. He had not returned until the early hours of the next morning, around 12.15 am. He described how when he left, he went to his car parked opposite Talgarth Road in Glazebury Road but it failed to start. Eventually he had pushed the car nearer the main road where he had waited for half an hour to get someone to help him push start the car. Once it started, he had gone straight to Percy Road arriving at the Catos’ home where he parked on the corner between 10.30 and 11 am. He described how on his arrival he had made a number of telephone calls. The first was to Limerick but he could not get through. He had received a call from a garage (Stewart and Arden’s Garage) and made a note of this message although this part of his account differed from what he had told the police which was that this call had been before his arrival and the garage had left a message for him. He had then gone out and done some work on the car before returning to the house and making a call to Aer Lingus to make a reservation but he had been unable to obtain the booking that he required. Thereafter he had remained at the Catos’ house until after 2pm, when he had gone out to various places including Stewart and Arden’s.

There was evidence that supported his account that he had pushed his car that morning. Two witnesses gave evidence that they had seen a car being pushed near Mr Bain’s home that morning. The prosecution accepted that this was Mr Bain’s car. However the timings given by the witnesses conflicted with the account given by Mr Bain since he had put his pushing the car at shortly after 9.45 am at the latest. One witness said that it was definitely between 10.30 and 11 am. The other said that it was after 10.30 am and may have been a little later than 11 am.

Mr Bain’s account of the time of his arrival at the Catos’ house was also contradicted by other evidence. The prosecution called a nurse whose boyfriend lived at the address. She described how she had visited the premises at 11.45 am and neither saw nor was aware of the presence of Mr Bain. She had left the premises and returned at 3 pm and Mr Bain was there then. Another witness described how he had seen Mr Bain sitting in his car outside the Catos’ house at around 1.30 to 1.45 pm. Mrs Cato herself said that she had first seen Mr Bain outside her house after 1 pm but before 2pm. The judge in summing up asked the jury:

“Do you, from (these witnesses), assuming you accept their evidence, reach a conclusion in your thoughts that the accused did not get to the Catos’ until about half past one? If that is your view, you may conclude that part of the accused’s defence is untrue … Thus far, assuming you accept the Willoughbys and the evidence of Mrs Cato, nurse Beckett and Alexander, you may conclude that the accused is not telling the truth on this vital matter. If he is not, why not? … If the evidence of the Crown is to be accepted on the actual movements of the accused during these hours, and he is to be disbelieved, then say the Crown, he has the opportunity to kill, and his lies are told to cover himself.”

The next important issue the jury had to resolve related to Mr Bain’s return home that night. The Crown suggested, and the appellant accepted, that he had told lies about his return. The Crown further suggested that the account of his true movements once established revealed that he was behaving in a manner inconsistent with his sudden discovery of the body of Miss McCormack. The judge put the matter succinctly when he said to the jury:

“The evidence of what the accused did after midnight is brought to your attention, to persuade you that the accused acted oddly and then told lies. The odd actions of the accused and his lies, say the Crown, point to a guilt complex.”

The judge referred to the “important” medical evidence about the turning over of the body and continued:

“Who did this? The Crown must prove that the accused did that, on the way the Crown have presented this case and the Crown say it was the accused. The Crown says that the accused did it, that is turned the body on its stomach, after his return to the flat after midnight, and having so returned, and turned the body, he did not tell the police he had returned to his flat. In other words, he kept quiet to the police about his return to the flat after midnight. On the contrary, say the Crown, he told lies. Lies do not, of course, necessarily convict the accused of murder, or of any other crime. People tell lies for all sorts of reasons, as was mentioned to you by Sir Dingle Foot (leading counsel for the defence) in his address to you yesterday, and Sir Dingle was perfectly right. Says the Crown, “That may well be, but what are the motives behind the lies?”

It will be necessary to return to this important part of the summing up when we consider the grounds of appeal but we must first complete our account of the evidence. The appellant’s initial account to the police about his return home that night, which he subsequently admitted to be false, was that he had left the Cato’s house with a friend, Albert Bertrand, at about ten to midnight to go to see a girl but that they had found that she was out, and so they had gone to Percy Road, where they sat in Mr Bertrand’s car talking. At about a quarter to one, Mr Bertrand had driven him back to his home and dropped him off outside. He said that on entering the hallway to the house, he had seen Mr Willoughby and he had asked if Miss Willoughby was in. Mr Willoughby had not responded and so he had opened the door to his flat with his key, whereupon he had heard Miss McCormack’s radio was on and he noticed that her light was also on. He went to his own room, which was locked as it had been when he had gone out. He then had remembered that his television needed fixing and so he had started to see to this, opening the back of the television before deciding that it was too late to do the job. He said that he was thinking of going to see a girl that he had met the previous week but that he had changed his mind. After about 10 minutes, he became aware that he had heard no sound from Miss McCormack and so he gave her a shout but received no response. He said that he looked in her room and saw a stocking on the floor. He thought that she might be hiding from him because she was “funny like that”. He went and looked in a cupboard under the stairs and then returned to her room. He looked in her handbag which was on the floor and saw that her keys and wallet were missing. He knelt down and looked under the bed and at that point he saw her leg sticking out. He said that the body was face down. He had called Mr Willoughby, who came down and looked, and he had then gone upstairs and telephoned the police. He said that he was worried that he might be accused of involvement. This account was given orally and then confirmed in a written statement.

The police investigated this account and it became apparent that in a number of respects, it simply was not true. Mr Bain was, therefore, re-interviewed two days later and he made a number of significant alterations to his account. He accepted that Mr Bertrand had not dropped him off at his house. He accepted that he had returned home much earlier than he had told the police and that far from immediately telephoning the police when he found the body, he had gone out again first returning to the Cato’s house and then going to see Mr Bertrand. Only after this had he returned home, gone to see the Willoughbys and telephoned the police.

Mr Willoughby gave evidence that Mr Bain had come up to his flat after 2 am and he had said “Where is Mary?”, and then some ten minutes later he had returned and said that he had found her dead. If this evidence was accepted by the jury, as the Court observed on the original application for leave to appeal, it was “the most telling piece of evidence against” him.

The Catos gave evidence that he had come back to their house at about 1 am to say that the girl was dead. They had advised him to telephone the police. He left their house and later returned with Mr Bertrand. Mr Cato had then gone with Mr Bain together with Mr Bertrand and Mr Bain had asked to be allowed to get out of the car so that he could go to the police station near by.

Although the transcript of the summing-up placed before us is incomplete, it is apparent from the judgment of the Court of Appeal on the first appeal that the judge concluded his summing-up of the prosecution case in the following way:

“ … are these not the periods that you have to concentrate on: 9.30 on Thursday the 31st of July to 1.30 on the same day, as regards the evidence; then another important period of time is 12 o'clock midnight on the 31st of July to twenty past two on the 1st of August. I am not giving you a complete summary of the Crown case, but the Crown really says this to you: this man in the dock and this girl have the closest association. He knew that she was a prostitute, he knew how she earned her money. On the 31st of July, having killed her, he goes up to the Wil1oughbys’ flat really to discover for himself whether anything has been heard about the commotion that might have occurred in the flat between him and the girl. Then, having left the girl dead on her back, he sets out that day to lay a trail which will convince any jury that he has a perfect alibi. The Crown say that he has slipped up in that attempt, because he cannot account for a couple of hours in the morning and that his arrival at the Catos was much later than the accused says it was. Furthermore, say the Crown, he stays out all day, he can prove everything that has been done that day; betting slips, calls to Limerick, even talking to his sister in. America with the help of his cousin at a telephone exchange. Working for four or five hours at the Continental Garage. Then he gets back to the flat, say the Crown, some time after 12 o'clock probably quarter past twelve or twenty past twelve, and he finds the body on that particular occasion. What does he do? The body is stuffed under the bed, turned over onto its face. After that, he goes back to the Catos, he goes to Bertrand, he returns to the flat and turns the body over. He fixes the body for the arrival of the police at 2.20, tells the police he has found the body for the first time lying on its front underneath the bed, and when he sees the police, for the first couple of days, both in oral examination and written questions, and this written statement, he really has told lies to the police, and that he does not disclose his visit to the Catos until he comes very close to the end of the questionnaire which was provided for him by the police. The Crown say, on that evidence you should be sure that he killed this girl.”

The Court at the first appeal were invited to say that the evidence did not justify the conviction for murder, since the evidence at most showed an opportunity to kill and “beyond that it was all surmise”. The Court rejected these arguments as unarguable. They said:

“ … there was abundant evidence from which the jury were entitled to infer that he had built up an elaborate alibi which in relation to the immaterial times was cast iron but in relation to vital times depended on a tissue of lies.”

With that view, we respectfully agree. It will be necessary to look at a further aspect of the evidence relating to the plastic strip used to strangle Miss McCormack but that can conveniently be left until we address the grounds that relate to it and we turn to deal with the first ground of appeal (which was the matter that resulted in the reference by the CCRC.

The ground reads:

“The learned trial Judge, failed to direct adequately or at all in relation to the alleged lies told by the appellant either by the state of the law as it was and then and/or as it has developed.”

In his helpful submissions to us, Mr. Michael Turner Q.C. first considered the law as it was at the date of trial relating to directions to be given by the judge where the jury have to consider lies alleged, or admitted, to have been told by the defendant. He drew our attention to the case of Broadhurst v R [1963] A.C. 441, which had already been decided at the date of trial. He comments that it does not seem to have been brought to the attention of the learned judge but we have no means of knowing whether that is right or not. He particularly points to a passage in the speech of Lord Devlin (at page 457) that reads:

“It is very important that a jury should be carefully directed on the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if on the proved facts two inferences may be drawn about the accused’s conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends of course on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness.”

Mr Turner then draws attention to the way the courts have developed this aspect of the law since the date of Mr Bain’s trial and not unnaturally points to the leading case of R v Lucas (1981) 73 Crim App R 159. He draws attention to the well known passage in the judgment of the Lord Chief Justice at page 162 in which he identified four conditions that needed to be satisfied before a defendant’s lie could be seen as supporting the prosecution case (in that case by way of corroboration of an accomplice):

“1.

The lie must be deliberate;

2.

It must relate to a material issue;

3.

The motive for the lie must be a realisation of guilt and fear of the truth; and

4.

The statement must be clearly shown to be untrue by other evidence or be admitted to be false.”

In relation to the third such proposition, the Lord Chief Justice observed:

“The jury should in appropriate cases be reminded that people lie, for example, in an attempt to bolster a just cause, or out of shame, or out of a wish to conceal disgraceful behaviour from their family.”

Since Lucas it has been the practice of judges to direct juries in accordance with these principles and the court frequently has to consider cases where this has not been done and ask itself whether the failure renders the conviction unsafe.

In R v Ritchens (1994) 98 Crim App R 43, Lord Taylor CJ said:

“In principle, however, the need for a warning along the lines indicated is the same in all cases where the jury are invited to regard, or there is a danger that they may regard lies told by the defendant, or evasive or discreditable conduct by him, as probative of his guilt of the offence in question.”

In R v Burge & Pegg [1996] I Crim App R 163 at page 173, the court no doubt mindful of the reference to “in appropriate cases” in the passage from Lucas which we have quoted above, identified four distinct circumstances where the direction should be given:

“1.

Where the defence relies on an alibi.

2.

Where the judge considers it desirable and necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant.

3.

Where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and rely on that lie as evidence of guilt in relation to the charge which is sought to be proved.

4.

Where although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so.”

At page 174A Lord Justice Kennedy observed:

“The direction should, if given, so far as possible, be tailored to the circumstances of the case, but it will normally be sufficient if it makes the two basic points:

1.

That the lie must be admitted or proved beyond reasonable doubt, and;

2.

That the mere fact that the defendant lied is not in itself evidence of guilt since the defendants may lie for innocent reasons, so only if the jury is sure that the defendant did not lie for an innocent reason can a lie support the prosecution case.”

Mr Turner submits that this case clearly satisfied the criteria set out in Burge & Pegg, if for no other reason because it involved reliance upon an alibi, and thus today would call for a lies direction as explained in the earlier cases. He submits that the judge did not cover adequately or at all the two central basic points as explained by Lord Justice Kennedy. Thus he submits that on the present state of the law, the conviction has to be regarded as unsafe. He submits that the court has to judge the safety of the conviction by reference to the standards of today (See R v Bentley [2002] 1 Crim App R 305 at page 307 and R v Johnson [2001] 1 Crim App R 408 at page 414). Mr Turner contends that viewed by today’s standards, a failure to give an adequate direction in the circumstances of this case would be bound to lead to a conclusion that the conviction was unsafe. He illustrates his point by reference to R v Robinson [1996] Crim LR 417.

Mr Turner, however, goes further and submits that even by the standards applicable in 1971, the summing–up has to be seen as deficient in that it did not follow the guidance which had already been given in Broadhurst.

In his response on behalf of the Crown, for which we are equally indebted, Mr Clegg QC acknowledges that the direction of the judge on the alleged lies would no doubt have been different if the trial had proceeded after the decision of the Court of Appeal had been given in Lucas. However he does not accept that the directions given were inadequate when judged by the state of the law in 1971 and he contends that any frailties that there may be in the directions when judged by current standards do not render the conviction unsafe in all the circumstances.

Mr Clegg emphasises the direction which we have already set out at paragraph 22 and particularly the passage reading:

“People tell lies for all sorts of reasons, as was mentioned to you by Sir Dingle Foot in his address to you yesterday, and Sir Dingle was perfectly right.”

He suggests that this incorporated into the summing-up the most important element of the direction when applied to the facts of this particular case. He refers to the central basic points identified by Lord Justice Kennedy in Burge & Pegg and acknowledges that the judge did not tell the jury in terms that before considering a lie as support for the prosecution case, it must be admitted or proved beyond reasonable doubt. However he submits that in the circumstances of this case that is not fatal to the conviction. He points to the careful direction that the judge gave on the burden and standard of proof. He suggests that the most significant lies to be considered were the movements of Mr Bain at the time when the pathological and other evidence proved the killing must have taken place. He observed that Mr Bain’s account at trial about that matter was the same as it had been throughout and says in terms:

“The defence case was that there was no lie and, if that was the position, or might have been, then it provided the appellant with a complete alibi for the time of the killing. To suggest that the jury might, on the facts of this case, not have appreciated that they had to be sure that the lie must be proved beyond reasonable doubt is fanciful.”

As to the second “basic point”, he submits that the direction already set out was sufficient. Whilst no doubt today the judge would have repeated the reasons identified by Sir Dingle Foot in his speech, he had made specific reference to them and endorsed them as being correct.

Mr Clegg submits that the judge did precisely what Lord Devlin suggested needed to be done in Broadhurst and that the direction was, therefore, entirely in line with the practice at that date. The more focused decisions that have followed since that time would, he accepts, probably have caused the judge to modify what he said but there is no reason to think that the jury would not have grasped the essential considerations in determining what weight was to be given to the lies from that which the judge had said to them.

For our part we consider that there is considerable force in Mr Clegg’s submissions. It is quite clear that Sir Dingle Foot, counsel of very considerable experience, had addressed the jury specifically on the question of lies. Apart from the passage to which we have already referred in the summing-up, it is worthy of note that even at the first appeal where there was no complaint made about the judge’s direction, Sir Dingle nonetheless directed the court’s attention to the very proposition which underlies such considerations. At page 10B of the judgment, Cairns LJ says:

“Authority was further cited for the proposition that the telling of lies is not necessarily consistent only with guilt. The case of King v Marsh 1951 2 Times Law Reports, page 402, was cited in that connection.”

Whilst in the light of Lucas, a judge would no doubt have felt obliged to repeat what had been said by defence counsel, where the judge specifically referred to counsels argument as “perfectly right” we cannot begin to see that the jury can have failed to realise that they had to consider other possible innocent explanations for the lies.

As to whether the jury would have understood that they could only hold lies against Mr Bain if they were sure they were lies, the important lies fell into two distinct parts. First there were the alleged but denied lies about his movements at the time of the killing and second there were the admitted lies about his movements prior to the police being called. The first of these groups was the very heart of the case against Mr Bain and we accept Mr Clegg’s submission that it is inconceivable that the jury did not understand that the burden of proof was firmly on the prosecution in relation to these vital matters. A complete reading of the summing-up leaves us in doubt that the jury will have grasped that they could only consider these alleged lies if they were shown to be false. Specifically at page 24B of the summing-up, the judge said:

“If the evidence for the Crown is to be accepted on the actual movements of the accused during these hours, and he is to be disbelieved, then says the Crown he has the opportunity to kill, and his lies are told to cover himself. You will conclude, no doubt with ease, that the accused has accounted for his movements after 1.30, and so far as the killing of the girl is concerned, you may think that it is highly unlikely that she was killed after 3 o’clock in the afternoon, in view of the medical evidence.”

That passage starts with the pre-condition “if the evidence for the crown is to be accepted…” It further makes clear that it is only if Mr Bain is to be disbelieved. Any jury hearing the whole of the summing-up, and particularly passages such as that to which we have just referred, could only have understood that the lies only became significant if they were sure that the relevant statements were false.

For these reasons we are satisfied that the jury must have understood that it was only if they were sure a lie had been told and only if they were sure that there was no other innocent explanation for it that support could be derived for the Crown’s case from the alleged lies. In our judgment the resulting conviction is not unsafe because of any deficiency in the judge’s treatment of the alleged lies. Our conclusions on this aspect of the case are very similar to those of the first court, whose judgment included at page 10C:

“The jury must in this case have believed not only that he had told a good many lies but that his behaviour between midnight and 2.30 am was inconsistent with innocence. They may further have taken this view. Granted that any visitor that afternoon might have killed the girl if she was still alive then, is it conceivable that such a murderer would have returned 6 hours later to turn the body over? Nobody but the applicant could have any motive for altering the position of the body and putting it under the bed.”

We turn therefore to consider the other grounds of appeal. We should make clear that none of these grounds were matters considered by the CCRC and that they are advanced by counsel, as he is entitled to do, without the support of the CCRC. Equally, because of the nature of the proceedings, they have not been considered by the court at the leave stage, because no leave is necessary.

We mention these matters because we doubt very much whether we would have granted leave if it had been necessary to seek it for these matters to be argued in full.

These grounds relate to what is said to be identified as unfairness in the judge’s treatment of the evidence relating to the plastic strip with which Miss McCormack was killed. Bearing in mind that Mr Bain had two counsel of considerable experience and a solicitor, that the judge was experienced in criminal work and that there were experienced prosecutors, it would perhaps be remarkable if this unfairness had gone wholly unnoticed both at trial and on the first appeal but now could be identified from the papers over 30 years after the trial.

It was suggested at the trial was that since the plastic strip undoubtedly came from the speakers built by Mr Bain and kept at the time of Miss McCormack’s death in his room, it was likely to have been taken from his room by the murderer prior to the murder. The significance of this was that the room was locked throughout the time when Mr Bain was out and hence he alone could have had access to it.

This proposition, of course, depended upon the strip having been in Mr Bain’s room prior to the killing and thus its history was relevant. The available evidence came from a number of sources. A statement was read to the jury from Mr Looby, whose evidence was that in the autumn of 1969 he had helped Mr Bain move into the premises and amongst his property were the speakers from which the strip came.

A Mr Appleton gave evidence that he had been responsible for pulling the piece of plastic strip from the speaker. He explained that this had happened during Mr Bain’s move into the house. He gave evidence that the strip had been placed with the speakers in the front room (i.e. that occupied at the time of her death by Miss McCormack). He said that the loud speakers had remained in the front room until a few months before Miss McCormack’s death when they had been moved into the back room. Mr Appleton was, however, on any view an unsatisfactory witness. He accepted that he was throughout the material period taking drugs and he suggested on more than one occasion that he was confused and his memory could be at fault.

Mr Bain in his evidence said that the plastic strip had remained throughout in the front room. If that was right, then it would have been available for use by the murderer without any need for him to have access to Mr Bain’s locked room.

The only other relevant evidence related to when Mr Bain had moved into the premises. He asserted that it was in November/December 1969 but a statement from the landlord, which was read to the jury, said that it was in December 1968.

The judge dealt with this aspect of the matter at page 8G of the summing-up. Before reviewing the evidence, he said:

“You may, however, wish to pause to consider when the accused went to 85 Talgarth Road. He said in chief that he lived at 79 Sherling Road from 1968 until the 29^th December 1969, but changed this last date to 29^th November 1969. If you accept the evidence of the landlord, Mr Grant, the accused moved to 85 Talgarth Road in December 1968. You may think that the time of the accused’s arrival at 85 is of some importance when you pause to consider that the plastic strip, admittedly from one of the accused’s loud speakers, was used, if you accept the medical evidence and the inferences, by the assailant in the girl’s room, to kill her. Was that plastic strip detached and separate from the loud speaker in the front room of 85 from the day the accused’s furniture was delivered there? The assailant, whom you may think, whoever he was, could not have got it from the accused’s own room. Which was locked, he said, by a padlock, and only the accused knew the combination numbers to open that lock. Only he, the accused, also had a key. Was the strip in that room, the front room, for so long? Has this strip do you think, got great importance in this case?”

Later at page 9H dealing with the evidence of Mr Appleton, he said:

“That is the man who throughout the material period was taking drugs, who at one stage said he was mixed up, who said also his memory could be at fault in relation to some things, yet in cross-examination he told you that he pulled the plastic strip off himself. “I think the plastic strip went into the front room, I just remember taking the speaker into the front room.” Do you accept what he said on this topic?”

It is submitted that each of these passages were unfair to Mr Bain. Mr Turner contends that “the unchallenged evidence led by the Crown was that regardless of the date at which (Mr Bain) had moved into Talgarth Road, his speakers arrived in the autumn 1969”. With every respect to Mr Turner, that is not an accurate assessment of the evidence. Everyone was agreed that the speakers had arrived when Mr Bain moved into those premises. Mr Looby, Mr Appleton and Mr Bain all said the speakers arrived as part of the process of moving in. Whilst those witnesses said that that had occurred in late 1969, there was other evidence from the landlord to the effect that this was in December 1968 and the jury were entitled to consider the totality of the evidence. The judge accurately summarised the evidence and we consider that if it had in any way seemed unfair to defence counsel, who had after all seen and heard all the evidence, they would have inevitably raised their concerns with the judge, and would additionally have raised the matter on the appeal.

The point, however, was in any event a relatively limited one. Whichever date was right, the strip had remained laying around in the front room for no good reason for many months even after the speakers had been moved into Mr Bain’s room. Whilst as time went by the likelihood of this being so would have diminished, it seems to us that whether it was a matter of some months or the significantly longer period that would be involved if the landlord was right, the point was there to be made in any event.

Mr Turner further criticises the judge for inviting the jury to consider whether they could rely on Mr Appleton’s evidence. It was Sir Dingle Foot who had raised the deficiencies in the Mr Appleton’s recollection. At one point Sir Dingle had put to him that he no precise recollection of these events and the witness had agreed with him. It is difficult in such circumstances to see how complaint can properly be made that the judge was wrong not to ask the jury whether they could accept his evidence on the relevant point.

Mr Turner characterises this matter as “potentially the single most important issue in the case”. We simply cannot accept that proposition. However, in any event, we cannot detect any unfairness in what the judge said about these matters and we have no doubt that if it had struck those who were present at the trial that he was raising some wholly new matter, complaint would have been made long before it appeared in these grounds of appeal.

For these reasons we are satisfied that these further grounds must also fail. We have considered carefully whether anything that has been put before us in relation to this trial that took place so long ago would cause us to feel that the resulting conviction was unsafe. Our conclusion is that there is nothing that leads us to have such a concern. In those circumstances it follows that this appeal is dismissed.