Danny Clarke, now aged 30, and Lee Clarke, now 35, are brothers. On 20th May 2003 in the Central Criminal Court before HHJ Stephens QC and a jury they were convicted of the murder of Glen Sharpe. Both sought leave to appeal against conviction which was refused by the single judge. They renewed their applications for leave. On 19th October, sitting at the Central Criminal Court, we rejected both applications. These are our reasons.

Glen Sharpe was the 23 year old brother of Denise Draper. She had been in a relationship with Danny Clarke, during the course of which he frequently treated her with violence. Her brother was naturally upset and expressed his concerns for her, causing Danny Clarke to become very resentful of him.

At about 7 pm on 25th January 2002 Mr Sharpe was attacked in the car park of the "Old Shant" public house, West Thurrock in Essex. He was the victim of a fatal blow with a samurai sword which penetrated his stomach and emerged through his back. He suffered grievous injury and died a few hours later.

It is a critical feature of the case, constantly to be borne in mind throughout this judgment, that there was no dispute that both Danny and Lee Clarke were present in the immediate vicinity when Mr Sharpe was stabbed, and that neither suggested that anyone other than one or other of them was involved in or used violence towards him. The Crown's case was that Mr Sharpe's death was the result of a joint venture. Whichever of the two brothers stabbed him, both were equally responsible, and the brother who actually stabbed Mr Sharpe was acting for them both.

The Crown alleged that Danny Clarke had lured Mr Sharpe to the scene, where he was stabbed by Lee Clarke, using the samurai sword which he had brought with him in his car. There was direct eye-witness evidence to this effect from Denise Draper, who moreover suggested that Danny Clarke twice exhorted his brother to stop the attack on Mr Sharpe before the deadly blow was inflicted. The Crown suggested that this was no more than role playing, but obviously this evidence was potentially helpful to Danny Clarke, provided his case remained, as it was at the outset, that it was indeed Lee Clarke whose blow killed Mr Sharpe.

Danny Clarke advanced no positive case at trial. Indeed it is obvious from the information now before us that at trial his instructions to his then counsel were changed dramatically in the simple sense that he was accepting that he, not Lee Clarke, was responsible for the fatal wound. He was holding the samurai sword when Mr Sharpe suffered an accidental blow. We shall return to the impact of this change of instructions on the conduct of his defence in due course.

Lee Clarke's defence throughout was that his brother had stabbed Mr Sharpe, and when he did so, he had no idea that his brother was in possession of the sword.

In his evidence, Lee Clarke agreed that he was present at the Old Shant public house with his brother. On hearing that a man had said that Danny Clarke had threatened to "slice up" Mr Sharpe, he assaulted him. Thereafter Mr Sharpe shouted abuse at him and they had an argument. They were separated. He went to his car from which he removed a hammer because he thought there was going to be trouble. The samurai sword was in the boot of his car, but he did not take it out himself. Shortly afterwards Danny came to him and said that he had got the sword "in case it all goes off". He did not see the sword and presumed that it was in Danny's jacket. He had not given him permission to take the sword and told him to put it back. Danny left, and returned, and he assumed that he had indeed disposed of the sword.

He saw Mr Sharpe and Danny outside the public house and he went to see that his brother was safe. They were by Danny Clarke's car, and Mr Sharpe was being abusive. In the belief that Mr Sharpe had a weapon he struck him and a fight followed. He tried to get hold of his hammer, in order to threaten Sharpe, but without intending to use it. Ms Draper was trying to protect her brother, Glen, when he heard Mr Sharpe say "The cunt has stabbed me". He saw that Danny was in possession of the sword. Danny said that he would say that it was an accident. Thereafter Danny gave him the sword, which he hid under the tarpaulin of a lorry, and later retrieved from its hiding place and threw into the river.

Thereafter he saw his brother at their parents' home in the evening. When Lee Clarke was arrested, his torn jeans and a small corresponding cut to his leg were noted by the police. According to Lee's account, Danny told him that he had told the police that Sharpe had cut Lee across the leg, and in order to fool the police into believing that this was true, Danny cut him across the leg.

While he and Danny Clarke were on remand in custody awaiting trial, Danny had said several times that the stabbing of Mr Sharpe was an accident. Lee Clarke called another brother, Terry, to give evidence that Danny had told him that he, Danny, had held the knife, and that Mr Sharpe had turned in on it. It was an accident. There was indeed a good deal of evidence from no less than six different witnesses, as well as Lee Clarke himself, that Danny Clarke admitted his responsibility to others. The Crown did not challenge that the admissions had been made: it merely suggested that they were untrue. That evidence is said to be reinforced by yet further evidence obtained since the trial to the same effect. The jury also heard evidence to support the defence of Lee Clarke that Danny Clarke was inclined to behave violently. Again this evidence was unchallenged either by Danny Clarke himself or by the Crown.

Notwithstanding the admissions made by Danny Clarke, the Crown adhered to the allegation that this was a joint enterprise in which Lee Clarke was the brother who had actually killed the deceased. The incident in which Danny cut Lee Clarke's leg provided an example of what the Crown suggested were careful tactical manoeuvrings by the two brothers, intended to enable them both to escape a conviction for murder, ultimately in relation to Lee Clarke on the basis that doubt existed about the identity of the brother who used the sword, and Danny Clarke, on the basis that once it was established that he was responsible, on the basis that the fatal injury was inflicted accidentally, and now, in circumstances to which we shall come, on the basis that two fresh defences, diminished responsibility and provocation ought now to be considered.

Following conviction, both applicants sought leave to appeal, Danny Clarke on the basis of perfected grounds dated 15th December 2003. They were examined in close detail by the single judge, Richards J (as he then was). He dealt comprehensively with each individual ground and concluded that there was no arguable case that the conviction was unsafe. Those grounds have not been renewed, and it is therefore unnecessary for us to deal with them. We shall simply note in passing that our views coincided entirely with those of Richards J, and we should have adopted his written reasoning as our own.

Grounds of appeal based on alleged misdirections in the summing up were also prepared and advanced on behalf of Lee Clarke. Leave to appeal was refused by Richards J. Although a renewed application was made, at the hearing before us, Mr Michael Gledhill QC rightly acknowledged that there was no realistic possibility of a successful appeal on these grounds.

Having read the papers ourselves, our conclusion was the same as that of Richards J. There was, on any analysis, no arguable failure by the judge to provide the jury with appropriate directions in relation to joint enterprise. Again, we shall adopt the observations of Richards J as our own, and as providing a sufficient indication of the reasons why the renewed application for leave to appeal on these grounds should not succeed.

Before us, the main contention on behalf of the applicants, advanced by Mr Cooper, and adopted and refined by Mr Gledhill, was based on complaints about the preparation and conduct of Danny Clarke's defence at trial. To put some of the arguments before us in context we must briefly look at the history of the case, better informed about it because the complaints by Danny Clarke about the way in which his defence was conducted at trial have led him to waive privilege.

In the immediate aftermath of the killing, Danny Clarke provided a witness statement in which he claimed that Mr Sharpe had stared at him and that he heard mutual threats passing between Mr Sharpe and his brother Lee. Later he had spoken to Mr Sharpe and witnessed a fight between him and his brother. He intervened in an effort to stop the fight and then saw his brother remove a welder's hammer from his trousers. He claimed that he had not seen any bladed weapon.

When the case was first listed for trial, it emerged that Danny Clarke was suffering from clinical depression. Between September 2002 and April 2003 he was unfit to plead. Until some date in about December 2002 Danny Clarke's instructions were that his brother, not he, had been responsible for the injury sustained by Mr Sharpe. In essence, he had seen something of the incident, but not all of it.

Later instructions are summarised in an account to a doctor given on 16th December 2002.

The first that Danny Clarke's leading counsel, Mr Tim Owen QC, and his junior, knew of these instructions was at a consultation on 23rd March 2003.

We have been supplied with all the notes of the interviews between Danny Clarke and his legal advisers. It was no longer suggested that he was unfit to plead. A medical report by Dr Farnham, a consultant forensic psychiatrist instructed on Danny Clarke's behalf said in terms that he was "now fit to instruct his legal representatives and to stand trial." He repeated the point that "At the current time he fulfils the criteria set out in Pritchard and subsequent case law, and is fit to plead and to stand trial." Yet again, later in the same report he said "His current mental health difficulties do not provide grounds, on balance, to state that he lacks the capacity to instruct his legal representatives". Mr John Cooper, on behalf of the appellant drew attention to the reservations expressed by Dr Farnham about this applicant's mental health. We have noted them. However we do not for one moment accept that they provide any basis for concluding that his mental difficulties meant that he was unable properly to appreciate the issues which were raised with him in consultation, or the advice which he was given, or that they vitiated the decision about the conduct of his defence which he made.

Mr Owen was extremely concerned at the change of instructions. In truth, a defence of accident had no realistic prospect of success. This view was confirmed by a pathologist instructed on Danny Clarke's behalf. The chest of the deceased was not "nicked", nor did it sustain a minor wound. The blow which caused the samurai sword to penetrate right through the deceased's clothing and body required considerable force. On the other hand, the original account of the incident, which in effect put his brother in the position of the assailant, provided him with a defence to both murder and manslaughter which was not utterly remote. The sword which killed Mr Sharpe was brought to the scene by Lee Clarke, and taken away and disposed of by him afterwards. As we have already noted, the only eyewitness to the killing identified Lee Clarke as her brother's murderer, and she suggested that Danny Clarke had tried to prevent the attack before it happened.

We accept that the notes of the various consultations were not a transcript, and therefore cannot be a complete or verbatim account. On the other hand what we can read suggests that at a very early stage counsel were extremely concerned that the changed instructions might not represent the truth, and about the consequences for Danny Clarke, if he adhered to them. Counsel also advised that medical evidence was required to check the appellant's fitness to plead and the possibility of diminished responsibility.

The note dated 2nd April 2003 of a telephone conversation between the solicitors acting for Danny Clarke and Dr Farnham suggests that at that stage Dr Farnham was not particularly concerned about fitness to plead, indeed the note suggests that at that stage he was saying that diminished responsibility was "out of the window". Counsel saw the applicant on 4th April. The issue of diminished responsibility was discussed. Danny Clarke was told that at that stage the impression from Dr Farnham was that diminished responsibility at the time of death did not arise. The question of provocation was addressed. When counsel said that this involved someone losing self-control, Danny Clarke expressly said that he "did not lose self-control". There was a discussion about how the new instructions could fit in with diminished responsibility or provocation. On the face of it, the new instructions suggested that all that Danny Clarke had done was to intervene in a fight to bring it to an end, with catastrophic but accidental consequences. On this basis it might be difficult to suggest that he acting under any medical impairment at all, and he was later to give express instructions that he had not responded to provocation.

The exchanges between counsel and the applicant on this day demonstrate to us that the appellant was perfectly well able to address the issues, and give instructions about them.

Thereafter a report was received from Dr Farnham. Whatever he may have said before, he concluded that the appellant was "suffering from an abnormality of mind at the material time of the offence", adding that whether his abnormality was sufficient to "substantially impair his mental responsibility for his acts … is clearly a matter for the jury". He also thought that provocation might provide an available defence. He spoke in terms about Mr Clarke's "loss of self-control". In fact, we can see no real evidence of any loss of self-control, and the applicant's instructions to his counsel expressly denied it.

Another consultation took place on 14th April. The report from Dr Farnham was discussed. The difficulties of arguing diminished responsibility in the context of the applicant's state of mind when his defence was accident was also discussed. The note records that there was a problem with diminished responsibility and provocation because the applicant's clear instructions were that he did not mean to "do it".

A further meeting took place on 29th April where the "strategy" was discussed with the applicant.

Understandably, the applicant's legal advisers were still extremely concerned about the changed instructions. Far from assisting the applicant, they added greatly to his problems. So they asked for detailed instructions about how and why the applicant came to change his mind. We have read a long detailed explanation. Thereafter there was a further consultation in which Mr Owen pointed out to the applicant that his brother Lee would be saying that he had deliberately killed Mr Sharpe. The response noted is that the applicant said that he was not going into the witness box. Thereafter there was a long discussion about how the case could be presented. We have studied the note. We have also studied the explanation sent by Mr Owen to the court dated 18th March 2005, which accompanied a document signed on 7th May 2003 by the applicant. It followed a consultation on 6th May where the judge rightly and robustly rejected an applicant for separate trials.

The statement, signed by the applicant, reads:

The forensic difficulties, and indeed the professional difficulties faced by Mr Owen should not be underestimated. On the basis of the decisions reached by the applicant about the conduct of the case he plainly did the best he could. He submitted, unsuccessfully, that counsel for Lee Clarke should not be entitled to cross-examine Miss Draper about occasions when Danny Clarke treated her with violence, or indeed about a threat of violence made by Danny Clarke towards Mr Sharpe. He objected to the admissibility of some of the oral admissions made by Danny Clarke that he had been responsible for the wounds suffered by Mr Sharpe, including those made at a time when he was said to be unfit to plead. When this objection was rejected, a further application was made by him for separate trials, an application that, again, was rightly refused. He submitted that there was no case for his client to answer, again rightly rejected. And, as his instructions had indicated, Danny Clarke elected not to give evidence.

We can summarise the forensic difficulties briefly. On the case to be presented by the prosecution there was a more than fanciful possibility that the appellant would be acquitted altogether. If he presented his new case of "accident", a conviction for murder was virtually certain. There was no basis for arguing provocation: Danny Clarke's own instructions ruled that out. But there was evidence to support a plea of diminished responsibility. Given the burden of proof and the circumstances of this particular case, this required that Danny Clarke should elect to advance it, and give evidence in support of the facts relied on by Dr Farnham. However this would also involve Danny Clarke giving evidence in support of his fanciful assertion that Mr Sharpe's injury was the result of an accident. His own evidence would then have undermined any contention that his mental responsibility for his actions was impaired, and would on any realistic analysis lead inevitably to a conviction, at best of manslaughter, but looking at the evidence as it then stood, almost certainly of murder.

These issues were plainly in Mr Owen's mind, and we believe that the notes of the various consultations suggest that they were clearly discussed, and the pros and cons of any course carefully analysed with the client. Mr Owen's personal response to the grounds of appeal based on his failure at trial to advance diminished responsibility or provocation is dated 18th March 2005.

The relevant parts of it read:

Having reflected on a substantial bundle of material including a bundle or schedule of psychiatric or other medical reports, the notes of the meetings between this applicant and his legal advisers, part of a paper by Dr Taylor as well as letters and notes from the applicant himself, our conclusion can be expressed very simply. In an extremely difficult position the applicant's legal advisors gave clear advice. The applicant decided to adopt the strategy which would give him the best chance of an acquittal overall. Although a defence, such as diminished responsibility can be run as, so to speak, an alternative defence, if established, the consequence is a conviction for manslaughter, whereas Danny Clarke would have hoped for an overall acquittal, and the deployment of diminished responsibility would have increased, not reduced, the chances of a conviction for murder. If of course Danny Clarke had been prepared to plead guilty to manslaughter on the grounds of diminished responsibility, it would then have been inappropriate for Mr Owen not to seek to develop the point: but that did not happen.

In our judgment it was not incompetent of Mr Owen to give the advice that he did. The advice about the possible alternative courses available to the applicant was sound, and the applicant elected take the course which would have given him the best chance of an acquittal overall. Now that he has been convicted of murder, in the circumstances of this case, it would be entirely inappropriate to allow the issue of diminished responsibility to be argued on appeal, or reopened. This application was accordingly refused.

Lee Clarke submits that fresh evidence should be admitted under s 23 of the 1968 Act, which would cast doubt on the safety of each conviction.

The material before us comes from Jan Mertens, a prisoner whose own trial for murder was taking place simultaneously with the trial with which we are concerned, Veronica Hawes, the aunt of both applicants, Jamie Clarke, the son of Lee Clarke, Paul Teenan, who views himself as Lee Clarke's brother-in-law, and the uncle of Jamie Lee Clarke. We have read this material de bene esse.

It contains a number of generalised allegations that Danny Clarke is a violent individual. One example, from Paul Tiernan, reads:

A third element of these statements involves yet further admissions or confessions by Danny Clarke. Again by way of example, Mertens describes how, on the day before the verdict, Danny Clarke said that he had no intention to kill the man he was charged with killing and that he had stabbed him by accident. "I shouldn't have stabbed him. I shouldn't have done that … but it is too late now. After the verdict he said that both of them had been found guilty of murder and commented that it was not fair on Lee." Mr Gledhill also sought to rely on the admissions made to Dr Farnham by Danny Clarke.

The final document is a letter purporting to be sent by Danny Clarke to his father, Barry. It is dated 16th June 2004, well after the conclusion of the trial. In this letter he asserts that after Lee Clarke and the deceased had started to exchange punches, and that after Denise had tried to interfere, he saw that Lee was trying "to pull the hammer out from the front of his waistband". In order to break up the fight and to make sure that Denise was not hurt, he intervened. He was holding the sword, which he had retrieved from Lee Clarke's car at an earlier stage. He pushed them apart, when Mr Sharpe shouted that he had been "stabbed". He had not realised what had happened, or how it had happened. He then gave the sword to Lee. In summary, this repeats that he, not Lee Clarke, inflicted the fatal injury when he was seeking to defend Denise and to break up a fight between his brother and Glen, at a time when his brother was apparently trying to make use of a hammer.

We have not been asked to address any of the potential difficult questions of admissibility. The Crown's essential case is that none of this material should be admitted. In truth it takes the case no further forward. The issues were fully investigated before the jury. The "fresh" evidence adds nothing to what was known: in particular the jury were aware of Danny Clarke's violent propensity and, more important, of the admissions he was making. In any event, nothing in this evidence undermines the Crown's contention that Lee Clarke was a full participant in the murder of Mr Sharpe.

Having examined this "fresh material", we concluded that it would be inappropriate to admit it under s 23 of the Criminal Appeal Act 1968.

Accordingly this application, also, was refused.