Pope v R.

On 10^th March 1996 Karen Skipper was murdered. She was attacked in the early hours of the morning while walking her two dogs along a river bank in an area of open land off Birdies Lane, sometimes known as Birdies Field, between Ely and Fairwater in Cardiff. Her lower clothing was removed and her hands were tightly tied behind her back with the leads and chains of her dogs. Naked from the waist down, she was thrown into the river where she drowned. Her body was discovered the following morning.

There was no evidence of penetrative sexual assault. She had defecated while wearing her pants and jeans, and there was bruising with bleeding below each nipple which may have been caused at the time of the murder. During the course of the police investigation a small blood stain was discovered on the outside surface of this victim’s front jean pockets, on the side of the cloth nearest to her skin. What was not discovered at that time was a second, microscopic blood stain on her knickers, on one side of the valley of one of the ribs at the front top of her knickers. In due course it became apparent that these stains provided evidence of primary importance.

The murder of Mrs Skipper produced three trials.

In early 1997 her husband was tried and acquitted of her murder. He is now dead. The case against him was based on circumstantial evidence in which motive and opportunity were at the forefront of the prosecution’s case. However there were three aspects of the evidence which undermined that case. First, the small blood stain on the outside surface of the lining of the victim’s front jean pocket was tested for DNA purposes. This blood was neither the victim’s blood, nor that of Mr Skipper himself. Second, a man was sighted in the area shortly before the victim was attacked, wearing a ¾ length waxed coat and a ruck-sack on his back. He was never identified during the original investigation despite widespread publicity, but he was not Mr Skipper. Third, the prosecution evidence itself provided powerful evidential support for his alibi.

Contrary to what sometimes may be suggested, the “not guilty” verdict did not mean that Mr Skipper was innocent in fact, but simply that as a matter of law the presumption of innocence applied. The jury may have thought he was utterly innocent, or they may have thought that he was probably guilty. Whichever it was – and we shall never know – it did not mean that it was not open to anyone else tried for this murder to invite the jury trying him to consider whether on the evidence Mrs Skipper may indeed have been killed by her husband. “May”, because if the jury thought that was a real possibility then they could not be sure that the defendant they were trying had murdered her. In short, before the defendant could be convicted the prosecution had to exclude any reasonable possibility that someone else was responsible.

In January 2009, before Davis J and a jury, the second trial took place. The defendant was John Pope, the present appellant. His case at trial was that he had not killed Mrs Skipper and that either her husband, or someone else, but probably her husband, had been responsible. All the material available to the prosecution at the trial of Mr Skipper was deployed, and in effect, he was re-prosecuted on Pope’s behalf. The jury was nevertheless sure that Pope was guilty and convicted him. By definition, that meant that they were not prepared to entertain as a realistic possibility that Mr Skipper had killed his wife.

Pope appealed against his conviction and on 22^nd December 2010 the appeal was allowed and a fresh trial was ordered. The judgment of the court can be found at [2010] EWCA Crim 2499.

The reasons why the verdict of the jury was set aside can be summarised very briefly. First, a witness, Mrs Horton, came forward after Pope’s conviction with evidence which tended after all to incriminate Mr Skipper and which in the view of this court should be considered by a jury. Second, evidence from Pope’s former wife about his or their sexual practices was considered by the jury when it was never tested because she did not give evidence and could not be cross-examined. This entirely hearsay evidence was strongly disputed and highly prejudicial to Pope’s case and should not have been admitted.

For present purposes we note that the appeal was not allowed on the basis that the strength of the scientific evidence against Pope was undermined. Sir John Thomas, President of the Queen’s Bench Division, giving the judgment of the court observed:

“… looking at the evidence overall, it would be difficult to conclude that there was anything material in the forensic evidence called on the appeal that in anyway affected the safety of the conviction. If this had been the sole ground of the appeal, we would have had no hesitation in finding that the conviction was safe”.

We shall return to the court’s analysis of the scientific evidence. A new trial was ordered.

The third trial, and Pope’s second trial, was concluded in the Crown Court at Newport before Roderick Evans J and a jury on 21 July 2011. This jury knew and considered the evidence of Mrs Horton, and did not hear any evidence about the sexual practices of Pope and his former wife. Once again the evidence that Mr Skipper was guilty of this murder was deployed before them, and again he was reprosecuted. Yet again, the jury rejected this possibility. They were sure that Pope had killed Mrs Skipper and convicted him. Accordingly Pope sought leave to appeal against his conviction and we granted leave for the issues to be considered.

At the very outset we must emphasise that no criticism whatever is made of any ruling made by the trial judge or of any aspect of the conduct of the trial which, it is agreed all round, was flawless. It is accepted, and indeed was accepted from the very outset, again, that the summing up was entirely fair to the appellant, if anything favourable to him, and what is more, as a reading of the summing up demonstrates, absolutely comprehensive, detailed and meticulous, and every point, good, and not so good made on behalf of Pope, was put before the jury for its consideration.

Mr Mark Evans QC on Pope’s behalf submits that the only ground of appeal available to his client is that this court should apply what is sometimes described as the “lurking doubt” principle first identified in Cooper [1969] 1 QB 267. For this purpose we have studied two interesting articles on the topic, first “Lurking Doubt and the Safety of Convictions” by L.H. Leigh in the Criminal Law Review (2006) … and second, “Lurking Doubts Remain” in the Criminal Law and Justice Weekly for 26 May 2012 and, we have, of course, considered the relevant authorities bearing on the issue.

It is not necessary for present purposes to address some of the interesting questions raised in the two articles. As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If therefore there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or maybe unsafe. Where it arises for consideration at all, the application of the “lurking doubt” concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.

Mr Mark Evans QC clearly understood the formidable nature of the burden he was undertaking. He forthrightly sought to show that there were two grounds on which the conviction was, notwithstanding the fairness of the trial and the summing up, an unsafe one. First, he suggested that it was incomprehensible that the jury could have excluded the real possibility that Mr Skipper had murdered his wife. In effect, although Mr Evans did not use the word, he was submitting that the conviction was perverse. Second, he argued that, given the microscopic findings of blood on the clothes of Mrs Skipper, combined with the flaws in the scientific evidence called by the Crown, the appellant’s explanation for the presence of his blood on the deceased’s clothes could not safely have been rejected. Each of these submissions is distinct, but whether taken on their own, or together, the result is that the conviction simply could not be safe.

We must examine the essential facts.

Mr and Mrs Skipper had been married for many years. They both wished to have children, but none had been born to them. There was evidence to suggest that from time to time during the marriage he treated her with violence. In reality, their relationship was not entirely conventional and it was unusual in its complexity. They played pool for a team at a public house where one of the members of the team was James or Jimmy Turner. During 1994 Mrs Skipper started a sexual relationship with Turner and moved in to live with him. She and her husband divorced in February 1995.

In the relationship with James Turner it seems clear that Mrs Skipper greatly enjoyed a newly energised sexual relationship, involving sexual activity which had not been part of the relationship with her husband. However she continued to see her husband, without Turner’s knowledge.

In the meantime Mr Skipper went to live with a man called David Davies at 105 Mill Road, close to Birdies Field. During 1995 he began a relationship with a woman called Linda, who became pregnant with his child, and gave birth to their daughter in February 1996. By now Mrs Skipper’s relationship with Turner was in serious trouble, and together with her two dogs she moved back to live with Mr Skipper at 105 Mill Road. She used to take the dogs for a walk in the area nearby at least twice daily. Nevertheless, although the relationship with Mr Turner was in deep trouble, Mrs Skipper also continued to see him and their sexual activity continued, leaving Mr Skipper somewhat torn between his former wife and the mother of his child. The birth of the child itself became a cause of friction between the Skippers, not least because he had now fathered the child he wished, and she had not been able to conceive a child.

On 9^th March Mrs Skipper visited Turner and they had intercourse. Later that day she telephoned him to say she would return to live with him. In the meantime David Davies had told Mr Skipper that she had had a man upstairs with her on the previous Thursday. After she returned to Mill Road, Mr Skipper told Davies that they were going out to try and make a go of their relationship. During the course of their visits to public houses, a number of witnesses spoke about how Mr Skipper was behaving aggressively towards his wife, and seemed ready to explode, and he spoke of her cheating on him after he had taken her back, and that he would “Fucking kill Jimmy”. He said that he would never forgive her and never forget. It appears that at this stage he had not told Mrs Skipper that David Davies had told him that she had been with a man on the previous Thursday. At one point he said that if she put him through it again, he would “Fucking kill her”.

They returned home just after 11p.m. The taxi driver detected signs of tension between them but there were no signs of aggression nor swearing, and neither of them appeared to be drunk. On their return it appeared that Mrs Skipper either was or had been crying. David Davies thought that Mr Skipper was drunk, but not too drunk to stand. Mrs Skipper apologised for the way she had been behaving and said that she and Mr Skipper would be trying again.

It took some 15 to 20 minutes for David Davies to get Mr Skipper back into his room, and while this was in progress he heard Mrs Skipper leave the house with the dogs. He started to watch a film on the television. This began at 11.55, and the only other sounds he heard came from the kitchen about half an hour or so later. Without going into this evidence in detail, it was at the heart of Mr Skipper’s alibi that he had remained at this address at the time when Mrs Skipper was killed. In the meantime, looking at her clock, a local resident heard the high pitched, distressed and frightened scream of a woman. She observed that the time was 11.53. She also heard the sound of two dogs barking, followed by muffled voices, one of which was possibly that of a woman. About three minutes later she heard a second scream, which was very loud and went on for about three seconds. After that the dogs carried on barking. A number of other witnesses described hearing screams and shouts and the sounds of dogs barking coming from the direction of Birdies Field.

In the early hours of Sunday 10 March, a neighbour living opposite 105 Mill Road noticed that most of its lights were on. The girlfriend of David Davies, who, like him, thought Mr Skipper was drunk that evening, said that about 20-30 minutes after Davies had heard the noises in the kitchen, she went to the lavatory and heard noises from the lounge which she thought were being made by Mr Skipper and Mrs Skipper having sex, but this could have been the sound of somebody who was drunk. Later still she got up again to go to the lavatory and saw that the door to the lounge was open and Mr Skipper’s head was lying on the settee.

Mrs Horton, the witness who had come forward after Pope’s conviction in 2009, lived next door to 105 Mill Road and said that about midnight on 10^th March she looked out of her landing window and say the victim leave the house, walking with her two dogs towards Birdies Lane. She was followed a few minutes later by Mr Skipper, who walked in the same direction. The prosecution case was that she was confusing what she had seen on a different night with this particular night, and the description of the coat being worn by Mrs Skipper, as given by Mrs Horton, was inconsistent with the one she was actually wearing.

When Mr Skipper was first interviewed he told the police that he and the victim had been out together on the Saturday evening, and that there had been no upset between them. He said that the evening was enjoyable, but that when he got home he was so drunk he crashed out on the settee, and indeed during the evening he urinated over his clothes and the cushion on the settee. When the cushion was examined no trace of urine was found on it (which it was accepted was by no means definitive of the issue). When his boots, the cushion and towels from the house were examined, diatoms from the River Ely were found on his boots, but as these can become airborne and could simply have been transferred from the dogs onto items in the house, this evidence was not placed before the jury at his trial, but it was before the jury in the appellant’s second trial. Mr Skipper went on to tell the police that he washed his clothes the following day, and put the cushion to dry by the fire. He was too drunk to remember what had happened. He denied that he had been told by David Davies that Mrs Skipper had brought a man back to 105 Milton Road on the Thursday night, but later admitted it, when the police told him that they knew he had been told. He said that he had last had sexual intercourse with the victim on 6^th March. This was unprotected anal intercourse, a practice which, although exciting for the deceased, was unpalatable to him. He accepted that after the murder he had told the mother of his child that Turner and Mrs Skipper were into bondage, and that Turner liked Mrs Skipper to shave her pubic hair for him. He also said that Turner had tied her up on the day she was killed, and he knew that she had shaved herself that day before they went out together on the Saturday night.

It was suggested on behalf of the appellant that Mr Skipper’s purpose in washing his clothes was to get rid of any incriminating evidence which might show that he had been at or near the river. It was also pointed out that although the victim had not been at home at all that night, he had made no enquiries into her whereabouts. In fact Mr Skipper went out to a public house, to buy his first pint at about 12.50. He was described as looking untidy, unkempt and worried. He spoke to a customer, saying that he and Mrs Skipper had gone home the previous night and that after a big argument she had stormed out. He said that he waited a while, and then crashed out on the settee, but when he woke he found that she had not been at home all night. He was said to be quiet and withdrawn. By mid-afternoon he was back at home. A friend called to see him and was told that Mrs Skipper had gone off with the dogs and was probably “seeing him again”, which the friend took to be a reference to Turner. At about 17.15 he was at the home of some friends when the news came on the television that a body had been found in the River Ely. There was a picture of the dogs, which he immediately recognised, and he said “that’s Karen, I told her not to take the dogs out down the lane. Phone the police”.

After his arrest he was interviewed. He described how during the course of the evening of 9^th March he did not speak to anyone about his relationship with Mrs Skipper or their problems, or indeed Turner, or the mother of his child or any personal matters. That evening they had a good time. There was no conflict or bad feeling or argument. He said that he loved Mrs Skipper, but admitted that on occasions in the past he had physically assaulted her. On Sunday morning he had got out of bed feeling hung over. He went to put on his jeans, but found they were wet and he realised he had urinated in his pants. As David Davies had left washing of his own on the top of the washing machine, he put some of his washing together with his own jeans and underpants into the washing machine.

He later said that the dog Sam would never allow any stranger to attack the victim. He could only think that she had let the dogs run loose. He agreed that David Davies had told him on 9^th March that Karen had had someone back to the house, and accepted that on the Sunday he had said in the public house that Karen had gone out with the dogs and had not come home. Asked where he thought she had slept and why he was not concerned when he woke up, he said “I don’t know, I can’t explain it”. He thought nothing of the fact that she had left her handbag behind. Asked if they had had a big argument and gone down to Birdies Lane with the dogs, or if he had gone after her, he said he could not remember, but he denied killing her.

On the basis of this material Mr Evans argued that the Crown’s case based on opportunity and motivation, strengthened now by the evidence of Mrs Horton, should at the very least have culminated in the conclusion that it was reasonably possible that Mr Skipper had murdered his wife. However, his problem was not simply that two juries had acquitted Mr Skipper, when he was in effect reprosecuted, but there were very good reasons why they should have done so. We have summarised the facts relied on by Mr Skipper at his own trial, which were in effect re-examined during his reprosecution by Mr Evans in the present trial at paragraph 4. In addition to the alibi evidence, the blood on Mrs Skipper’s jeans from an unknown source and the stranger in the vicinity, the jury was required to reflect, even in the context of the possible involvement of Mr Skipper, not only on the evidence which tended to exculpate him, but also on the powerful incriminating evidence which served to show that the appellant was guilty of the murder.

The starting point in the case against the appellant was that during the course of the original investigation by the police in 1996, he told the police that he had been at home throughout the night of the murder and, in the present context no less important, that he did not know Mrs Skipper. However in 2006 the appellant was arrested for an unrelated offence of which he was subsequently acquitted. He provided a sample of his DNA. This was later examined and found to provide an overwhelming match for the blood stain on the outside surface of the pocket of Mrs Skipper’s jeans, and what is more, as a result of improvements in profiling techniques, on a second tiny blood stain discovered on Mrs Skipper’s knickers, which similarly matched the appellant.

There was minor evidence, broadly supportive of the prosecution case, which may have served to undermine the appellant’s contention that he had not been out and about during the night of 9/10 March. Thus, there was evidence from a work colleague that he was seen in the early evening, not far from the vicinity of the crime, wearing a ¾ length coat with a rucksack on his back. At the time of the murder he was regularly wearing a waxed coat and did indeed carry a rucksack. Two other witnesses described a man seen by each of them, shortly before mid-night out and about, whose description fitted him. There was however, no identification, and taken on its own this would not have provided a sufficient evidential basis to justify a prosecution.

Once the appropriate matches had been made, the appellant was arrested and interviewed. His initial statement was put to him. He agreed that when he had denied knowing Mrs Skipper, this was not true. He then gave an explanation of how he had indeed met her some three weeks before she was murdered. This, he said, was a chance encounter one Sunday morning when he saw her dogs waiting outside a shop. One of them had a thorn in its paw, and so he stopped to help, bending down and removing the thorn. However, the dog bit his finger and caused it to bleed heavily. Mrs Skipper came out of the shop, and offered him a paper handkerchief or tissue to stem the bleeding. He discarded the tissue but said that the victim must have got his blood on her hand either from touching his own blood-stained hand or from touching his blood which had got on to the dog’s coat.

At this stage the defendant was not told that the evidence linking him to the offence resulted from an examination or finding of his blood on the deceased’s clothes. Before he was interviewed again, he was told that the scientific evidence which implicated him was indeed DNA from a smear of his blood on the outside surface of the lining of the pocket of her jeans, touching her skin, and the blood stain on her knickers which matched his DNA. He was unable to proffer any explanation for the presence of his blood on these clothes. He said that Mrs Skipper “clouted” the dog for nipping him, and she produced a tissue from her jeans pocket. He put it on his finger and went into the shop holding the tissue over the cut. He described her clothing as either black jeans or black trousers, clothing which she was indeed wearing on the night she was killed.

The explanation given by the appellant for the presence of his blood on the deceased’s clothes was, of course, closely examined in the light of expert evidence. A number of criticisms were directed at the expert witnesses called by the Crown, Mr Appleby and Mr Robinson. The accuracy of the witnesses was disputed, and inconsistencies in their evidence were highlighted. Mr Appleby was said to have made too many assumptions, suggesting, for example, that the jeans worn by Mrs Skipper were tight fitting, and guessing or estimating at the size of the stain on the knickers. Mr Robinson was criticised for the inadequacy of the records he kept. Much was made of the fact that when re-examined during the appellant’s first trial Mr Appleby had excluded the possibility of a transfer of blood stains from the pocket to the knickers, or indeed the possibility that the stain might have soaked through from the inside of the lining of the pocket to the other side. In his evidence to the Court of Appeal he accepted that he could not in fact exclude these possibilities and that he had gone too far. Both Mr Appleby and Mr Robinson were, throughout their evidence, relying entirely on memory, and indeed it was said that Mr Robinson did so without being able to rely on any contemporaneous records, an assertion that Mr Ian Murphy QC was able to address and destroy.

A detailed examination of the scientific evidence was carried out by the judge between pages 72 and 97 of the summing up. Every point made by or on behalf of the appellant based on criticisms or concerns about the expert evidence was canvassed with the jury.

It is perhaps as well to emphasise at the outset that there was no dispute whatever between the experts called at the trial that the bloodstains on the victim’s jeans and knickers did indeed come from the appellant. They also agreed that the position of the bloodstains on the clothing was consistent with what they would expect if the lower clothing of the victim had been taken down while her attacker had a very small amount of blood on one of his fingers.

An examination of the appellant’s account at interview, and indeed his evidence at this trial, meant that, however one looked at it, first, if either the jeans or the knickers had been washed between the date when he said he was bitten by the dog and the murder, then the blood on the jeans or the knickers respectively would have been washed away. The evidence suggested that Mrs Skipper was careful about matters of hygiene although, as a photograph of her home taken after her death shows, her clothes tended to be strewn about in a chaotic way. Nevertheless, the credibility of Pope’s explanation depended on the coincidence that Mrs Skipper washed neither of the two items of clothing, and then some three weeks later, quite by coincidence, put on exactly the same (unwashed) jeans and exactly the same (unwashed) knickers as those which had been stained with Pope’s blood after her dog had nipped him.

The expert evidence was examined in the course of the last hearing in the Court of Appeal, and the overwhelming majority of the findings are and continue to be undisturbed. It remained the case that the blood stain on the inside of the jeans was found at the tip of the pocket. For this to happen the tissue used to staunch the blood from the appellant’s fingers, or the blood which found its way from the cut caused by the deceased’s dog to the appellant and which had then leaked onto her finger would, whether tissue or finger, have had to be pushed right down to the very depth of the pocket for the blood to be deposited there. If a tissue soaked in blood or a hand with blood on it was pushed into the pocket it would be very unusual for a stain to end up at the bottom of the pocket without there being some staining or smearing higher up the pocket, nearer to the entrance, as the blood on the finger or blood soaked tissue was pushed down. Moreover if the blood was deposited inside the lining of the pocket, in order to arrive where it was found, it had to make its way through the fabric to the other side of the pocket. There was in fact no record of any blood found on the inside of the surface lining of the pocket. It was recorded as only being on the outside surface of the lining. If blood had soaked through from the inside surface of the pocket then there would have been a larger stain of blood on the inside surface. It is true that no specific record was made that the inside of the pocket was checked for blood during the course of the initial investigation, but such a check would have been routine, certainly if any blood at all had been found on the outside of the pocket. The lining of the pocket of the jeans was highly absorbent and the blood dried very quickly, experiments showing that it dried within 3 seconds or less. Yet for Pope’s explanation to be credible the blood found on the outside surface of the lining of the pocket had to remain wet enough for it to be transferred onto the front of the knickers. This blood, on the appellant’s account, must have found its way from the tissue of the deceased’s hand or finger through the pocket without leaving a trace, and onto the front of the knickers. It was found towards the centre and top of the knickers and, again, for the blood to have been deposited from the pocket onto the knickers the pocket itself must have been fully extended and at the same time the blood must have remained wet. If so smearing of the blood on other parts of the knickers would have been anticipated, but in fact none was ever been found.

All these considerations bore on the credibility of the defendant’s evidence, as he gave it before the jury during the course of this, second, trial. He explained how one Saturday or Sunday, before Mrs Skinner was murdered, he came across her dogs waiting outside a shop. One of the dogs was on its side, growling. It had a piece of stick between its toes. He pulled it out quickly but the dog nipped the middle finger of his left hand. Then the victim came out and the dog bit him. He told the victim that the dog had a thorn in its paw. His finger was bleeding “like a bugger” and she took a tissue from one of her pockets and wiped the blood which was running between his fingers onto his hand. She then used a second tissue to wipe his blood from her hand. He had never met her before or seen the dogs. There had been no other contact with the victim. He told the police that the dog incident occurred three weeks before the victim died, but he did not know why the period of three weeks had come into his head. It must have been something the police had said at the time. The defence called a neuro-psychologist to give evidence about the appellant’s mental capacity to support a possible explanation that when he had said that the incident with the deceased’s dog occurred three weeks before she was killed, his estimate of time might be inaccurate.

The appellant was cross-examined about his untrue statement that he had never met the victim. He referred to the victim providing him with the tissue to put over his finger, and how she had touched his hand when giving him the tissue because she tried to wrap it round his finger, although he did not see any blood on her hands. The prosecution pointed out that he had referred to the use of two tissues for the very first time when he gave evidence at this trial, and that the essence of his description of the deceased and the clothes she was wearing when this encounter took place strangely coincided with the description of Mrs Skipper on the night she died.

The case presented by the Crown to the jury was that the blood found on Mrs Skipper’s clothes could not and did not get onto her clothes in the way suggested by the appellant in his evidence. The blood was deposited when the jeans were open and in the process of being taken down and her knickers were exposed. That occurred when she was being attacked by her killer, who left his blood on the two items of clothing in the position in which the stains were found. Before they could reach that conclusion the jury had to be sure first, that the explanation given to them by the appellant for the presence of his blood on the deceased’s clothing was untrue, and second that there was no reasonable possibility that Mr Skipper or anyone else had killed his former wife. The evidence, and the submissions to them, were both comprehensively analysed in rather greater detail in the summing up than we have attempted to summarise them here, and we shall not repeat them. Each member of the court has studied the evidence closely. Mr Skipper was acquitted when he was tried. In two further trials every effort to demonstrate the possibility that he killed his wife was rejected by two juries, and so was every effort to demonstrate that someone else may have killed her. We have examined the evidence in the light of the flaws urged on us by Mr Evans. However we address it, we can find no basis for concluding that this conviction should be quashed by the application of the “lurking doubt” concept identified in Cooper. The verdict of the jury was entirely supported by the evidence.

This appeal must be dismissed.