Park (Deceased) v R.

On 28 January 2005, at the conclusion of a two-month trial in the Manchester Crown Court before McCombe J (as he then was) and a jury, the appellant (then aged 61) was unanimously convicted of the murder of his (then) wife Carol Park (“CP”) some 28 ½ years previously, in the summer of 1976. He was sentenced to life imprisonment with a minimum term of 15 years.

His renewed application for permission to appeal against conviction was refused by the full Court in November 2008.

On 25 January 2010, which was his 66^th birthday, the appellant committed suicide in HMP Garth.

The case has since been examined by the Criminal Cases Review Commission (“CCRC”) following an application made by the appellant’s widow, Jennifer Park, in written Representations dated 17 August 2010.

On 26 October 2018 the CCRC referred the conviction to this Court under section 9 of the Criminal Appeal Act 1995. The then Vice-President of the CACD, Hallett LJ (as she then was), gave permission, pursuant to section 44A of the Criminal Appeal Act 1968, for the appellant’s son, Jeremy Park, to continue the appeal.

CP went missing from the matrimonial home, a bungalow called ‘Bluestones’ in Leece, near Barrow-in-Furness (“Barrow”), on Friday 16 July 1976 or Saturday 17 July 1976. She made no contact with anyone after that time.

The appellant and CP were born in January 1944, and December 1945, respectively. CP was adopted by the Price family, and thus had an older brother, Ivor Price, and a younger sister, Christine Price. The appellant and CP first met as teenagers in 1962/3 and were married in August 1967. They had three children: Vanessa (born in March 1968), Jeremy (born in March 1970) and Rachael (born in May 1971) who were aged 8, 6 and 5 respectively at the time of their mother’s disappearance. The elder daughter, Vanessa, was adopted, being the daughter of CP’s sister Christine, who had been strangled to death in April 1969 by her boyfriend, John Rapson, who was sentenced to life imprisonment for her murder.

Between about 1972 and 1975 the appellant and CP experienced significant marital difficulties. Both formed relationships with other people, and in 1974 CP had moved away from ‘Bluestones’ - first to live at a local guesthouse and then to live with a man called David Brearley in Cleveland.

CP had thereafter begun proceedings for custody of all three children. However, in March 1975, in the Middlesbrough Magistrates’ Court, custody was awarded to the appellant (who, it later transpired, had lied to the court in evidence to cover up an affair with a Mrs Walmsley).

After treatment for depression, CP returned to ‘Bluestones’ in August 1975 - where she remained until her disappearance. During that period, she gave no indication that she was unhappy, was seeing anybody else or was intending to leave again. In 1976 both CP (by then aged 30) and the appellant (by then aged 32) were working as teachers. She spoke enthusiastically to work colleagues towards the end of the summer term (which ended on Friday 16 July 1976) about a planned family trip to Blackpool during the school holidays and her work as a teacher in the new term which was due to start in early September 1976. Various friends, neighbours and colleagues recalled the Park family talking about a planned trip to Blackpool on Saturday 17 July 1976.

There was no formal record of CP having been at work on Friday 16 July 1976, which was the last day of term. On what was possibly that Friday, CP visited her sister-in-law, Maureen Price, and her niece Kay Price, at their home in order to pay in some ‘Christmas Club’ money. During the visit, CP said that she would bring Kay a birthday card and a present on the Sunday.

One of the Parks’ neighbours, Mary Robinson, recalled that at the start of the summer holidays, possibly in the morning of Saturday 17 July 1976, she had spoken with CP, who had been relaxed, relieved that term was over and looking forward to going on holiday.

On Sunday 18 July 1976 Malcolm and Angela Short, who were friends of the Parks, visited ‘Bluestones’ unannounced. The appellant spoke to them outside and told them that the previous day he had taken the children to Blackpool; that CP had not been well and had stayed at home in bed; and that when he and the children had returned, she had not been there. Angela Short recalled the appellant saying that CP had not taken her handbag and purse, and Malcolm Short recalled that the appellant had invited them inside but that they had declined.

After CP’s disappearance, the appellant continued to look after the children, but did nothing at all to try to find out what had happened to CP.

On Thursday 2 September 1976, which was the first day of term, CP failed to attend for work at her school. It was not until Saturday 4 September 1976, that the appellant informed CP’s brother, Ivor Price, that he had not heard from her for six weeks. After that, the appellant had reported to the police that CP was missing – stating that there had been no sign of forced entry or struggle at ‘‘Bluestones’’ when he and the children had returned from Blackpool on Saturday 17 July 1976, and (albeit that he said that he was unsure) that she had not taken any money or clothes.

The police began a missing person investigation, during the course of which the appellant made a witness statement to DI Williams. Ultimately, the investigation established that, after her disappearance, CP had neither contacted, nor been seen by, any family or friends, and that she had not withdrawn any money from the couple’s joint bank account, or her own account(s).

In November 1978, the appellant petitioned for divorce from CP on the ground of desertion. The divorce was granted in August 1979. In the early to mid-1980s the appellant was married briefly to Catherine Sillars. He continued to live at ‘Bluestones’ until the early 1990s, when he married Jennifer Park, and they moved to 34 Norland Avenue in Barrow.

On Saturday 10 August 1997 (21 years after CP had disappeared) amateur scuba divers noticed what appeared to be a bag resting on silt some 24 – 27 metres down at the bottom of Coniston Water, in the Lake District (around 20 miles from Leece), at a distance of about 200 metres from a beach on the eastern shore near Bailiff Wood. The bag was close to a steep drop into water over 50 metres deep. On Tuesday 13 August 1997, the divers returned, raised the bag and brought it to shore. On realising that it contained human remains, they called the police.

The remains proved, by reference to her dental records, to be the badly decomposed body of CP. She was dressed in a short nightdress and was elaborately bound, using around 20 feet of rope and string, which was tied and bound to her right shoulder blade, wrapped around her body at least three times, and tied with various complicated knots, into a foetal position. The body was enclosed within several layers of different materials. First, a plastic bin liner over the bottom half, and another over the top half, then a green nylon rucksack with padded straps (Exhibit 29) over the bottom half - all of which had then been put into a man-made sack fashioned by sewing up a black pinafore dress (identical to one depicted in photographs of CP taken whilst she was alive). The package had been weighed down by a flattened piece of lead pipe (consistent with having originally been the pipe from a high cistern lavatory) which had been folded over several times to form a mass 12” in length and 6.4kg in weight, and was attached by rope to the middle of the body.

Two post mortem examinations were conducted by Dr Edmund Tapp, a Consultant Forensic Pathologist and Home Office Pathologist, who ultimately gave evidence for the prosecution. The examinations revealed that the head and neck were skeletonised and that the bones had separated from the rest of the body. The vertebrae from the neck, together with a large number of small bones from the hands, fragments of the upper jaw and 18 teeth were collected from the plastic bin liner which covered her top half, along with a piece of strapping and two pieces of elastic/plaster material – one of which transpired to be a medical dressing which had originally been put across CP’s eyes. Dr Tapp concluded that there had been several impacts (either kicks or blows from a heavy blunt object, such as an axe or chopper) to CP’s face – with, on reconstruction, the appearance of the teeth and left zygoma suggesting that the object had a sharp edge. The central part of CP’s face had been destroyed by at least two blows from the object in a downward direction. There were also possible defensive injuries to the small bones of CP’s left hand, near to her wrist. With the exception of the head, neck, hands, and lower forearms the overall structure and integrity of the body had been retained due to the formation of adipocere in the soft tissues.

The appellant was arrested on 24 August 1997. Various intricately knotted ropes, some of which were old and dated back to the appellant’s time at ‘Bluestones’, were recovered. In interview, on 24 & 25 August 1997, the appellant denied murdering CP. He described their marital problems but said that he was not aware of any issues in July 1976. He said that his recollection of the trip to Blackpool with the children on the date of his wife’s disappearance in July 1976 was now vague, but that the detailed statement that he had given to police back in 1976 (which, along with the relevant missing person file, had since been lost by the police) would have been accurate.

The appellant was charged with CP’s murder on 25 August 1997 and was remanded in custody to HMP Preston from 26 August to 9 September 1997 - after which he was released on bail.

Police divers carried out searches in Coniston Water on 10 September 1997 (when PC Brookes found some female footwear and a small red dress) and on 30 September 1997 (when, at a depth of around 12 metres, and at a point roughly between where the body had been found and the shore), PC Brookes found female clothing dating from the mid1970s and some cosmetics from the same period - which he placed into a bag the contents of which were placed into another bag, which was then sealed and which, when opened on 4 October 1997, was found to contain both the clothing and a rock – which we refer to hereafter as “the rock”.

On 11 September 1997 Dr William Lawlor, a Home Office Pathologist instructed by the defence, conducted a third post mortem examination.

At the Coroner’s Inquest on 22 September 1997, Dr Tapp opined that the “most likely cause of death” was facial injuries caused by blows with a heavy sharp object which had resulted in upper respiratory obstruction, or in drowning of the lungs with the inhaled blood, via the destruction of the nasal and other facial bones, and that an axe or chopper could have been used. Dr Tapp also opined that the position of the body, coupled with the process of adipocere formation in the soft tissues, indicated that the body must have been tied up within 2-4 hours of death, before rigor mortis and putrefaction had set in. In contrast, Dr Lawlor opined that the cause of death was “unascertained” because the various post mortem changes precluded determination of the cause of death. Equally, whilst Dr Lawlor agreed that only direct blunt force trauma could have caused the significant injuries to the lower maxilla, he concluded that there was “absolutely no way” to show that those injuries must have occurred before, as opposed to after, death and that consequently there was no way that it could be proved, in pathological terms, that those injuries “must relate to the cause of death”.

On 6 January 1998, following the written opinion of counsel, Mr J.A.Price QC, who concluded that there was no realistic prospect of conviction on the evidence then available, proceedings against the appellant were discontinued.

Nearly six years later, in late 2003, fresh counsel, Mr Alistair Webster QC, reconsidered the matter and advised that there was now sufficient evidence to prosecute - based upon new material, namely:

The appellant was re-arrested on 13 January 2004. On that occasion a wooden axe, variously referred to as being a climbing-axe or an ice-axe, was seized from his address in Barrow. To avoid confusion, we shall refer to it hereafter as “the wooden ice-axe”.

The trial started in late November 2004 and (as indicated above) concluded on 28 January 2005. Mr Webster appeared on behalf of the prosecution, and Mr Andrew Edis QC (as he then was) appeared on behalf of the defence.

We have seen and considered transcripts from the trial of:

These documents were appended to the CCRC’s Reference, as were Mr Webster’s Opening (15pp) and Closing (42pp) notes prepared for trial, and the CPS notes of Dr Tapp’s evidence (6pp). We were told that a transcript of the appellant’s evidence is no longer available.

In the very broadest outline, the prosecution case (based in part on the alleged confessions to MW and GB, but principally on a mass of circumstantial evidence) was that the appellant had murdered CP, had bound and wrapped her body and had thereafter used his local knowledge, boat and boating skills to deposit her in Coniston Water.

The defence case was that the appellant, who was a man of exemplary good character, had not murdered (or ever been violent towards) CP. On Saturday 17 July 1976 he and their three children had gone to Blackpool for the day. CP was due to accompany them but did not do so because she was unwell. When he had returned home, CP was not there. There was no sign of forced entry or disturbance but her wedding and engagement rings, which she always wore, were on the bedside table. He believed that she had left him again. He had never had any dealings with MW, who was lying. GB’s evidence was obviously untruthful and unreliable. The evidence overall asserted to be consistent with another, including possibly John Rapson (the murderer of CP’s sister), having killed CP, and did not prove that the appellant had killed her. The police were criticised for losing their file from the 1976 missing person investigation, including the appellant’s statement given at the time to DI Williams.

Alternative scenarios were also proposed. In particular, firstly that CP may have left ‘Bluestones’ on the Saturday morning with a man seen by a neighbour on the driveway in a VW Beetle car, supported by the evidence of an acquaintance of CP’s, Dorothy Baines, who claimed to have seen her at Charnock Richard Services on the M6, some 80 miles south of Leece, at about 6pm on either Friday 16 July 1976 or the following day. Secondly, that John Rapson (the murderer of CP’s sister), who at that time was being allowed out from prison each weekend, might have gone to Leece to look for his daughter Vanessa, and might have come across and killed CP on the Saturday.

The prosecution called, amongst others:

Various other matters were also dealt with in Agreed Facts, including the agreed continuity of all the exhibits (apart from the rock said to have been found by PC Brookes in Coniston Water on 30 September 1997); the fact that (in 1997) the appellant had been on remand at HMP Preston for approximately 14 days – during which time he had spent several days on “F“ Wing and had shared a cell with GB; John Rapson’s history since murdering CP’s sister in 1969 – including his denials, in a witness statement and in interview, of any involvement in CP’s murder; and that, in media and television reports following the finding of CP’s body, and in the Channel 4 TV broadcast “Ladies of the Lakes” (which was seen by MW before he went to the police and alleged that the appellant had confessed to him) it was reported / stated that CP had severe facial injuries / injuries which were probably caused by an axe.

The prosecution also called some witnesses who were relied on by the defence (e.g. Mr Paul Shaw who came forward to give good character evidence after seeing a report of MW’s evidence), and read the statements of others (e.g. Dorothy Baines who had cognitive issues and was unwell).

In what follows, we deal in more detail with those parts of the evidence to which the submissions of Mr Henry Blaxland QC, on behalf of the appellant, have been particularly directed in this appeal.

“Confession” evidence

MW and GB had been in HMP Preston whilst the appellant was remanded there, after his first arrest, from 26 August 1997 to 9 September 1997. As indicated above, GB had shared a cell with the appellant on “F” Wing, and MW claimed to have spoken with the appellant in the exercise yard. MW was in custody consequent on assaulting his young stepson.

On 9 October 2000, MW went to the police after seeing the Channel 4 television documentary “Ladies of the Lakes” – in the course of which Dr Tapp had described the weapon used to murder CP as “some sort of axe”, and at the end of which CP’s family had appealed for help. MW made a witness statement that same day, in which he recounted he had been on “F” Wing, where GB had confided in him that the appellant had been talking about the murder in his sleep and was obviously very disturbed about it. After that he had encountered the appellant in the exercise yard, when he had heard the appellant mumbling “she deserved it”. Subsequently, he said, the appellant had approached him in the exercise yard and had confided in him that he had killed his wife with an axe which had a black handle and a metal shaft with a pick on one side and an axe on the other – which he, MW, had recognised from the description as one used for rock climbing. MW made a further statement on 16th July 2004 in which he said that he had remembered that the appellant had also said that he had buried the axe on the shore of Coniston Water between the boathouse and the water. In his final statement on 30th November 2004 (made just before he gave his testimony at trial) he said that he had recently further remembered that the appellant had told him that he had come home unexpectedly and had found his wife in bed with another man, that he had tried to hit the man who had run off out of the house, that he had then gone back and hit his wife with an axe used for mountain climbing, and that at the time that he had attacked his wife he had gone up some stairs. A copy of each of these statements accompanied the CCRC Reference.

In his evidence at trial MW said that he saw the appellant in the exercise yard where other inmates were calling him names, including “bin bags”, which appeared to upset him. The appellant was mumbling, and MW heard him say “She deserved it”, but the appellant did not explain what he meant. MW said that, on a later occasion, MW had approached him and asked if he could confide in him because he needed to get something off his chest. He said he had killed his wife “because she should have been reliable to him and not to others” and that she deserved it. MW said that the appellant had told him that he had put his hands around her neck until she passed out and had then used a weapon (MW had understood him to refer to an ice axe with a black handle and a metal shaft) in order to start to dismember the body, but had stopped and had then wrapped her up. The appellant had said that he put her body in his car and had taken it to Lake Coniston where he had gone out on his boat. He had later buried the ice axe. MW added that the appellant had also said he had come home and found his wife in bed with another man who had run out of the house. MW said that he had also had a conversation with the appellant about the appellant helping him with a politics course.

MW was cross examined at length, and to considerable effect, about a number of matters, including:

MW had given police the name of GB, who was located in June 2001 living in a hostel. GB was found to have learning difficulties and was initially asked only if he recalled being in prison with the appellant, to which he responded, “He put her down with bricks and a pipe”. Thereafter, GB was formally interviewed in the presence of an appropriate adult. The interview was video recorded. During its course GB said, amongst other things, that the appellant had told him that he had put some white powder into CP’s drink, and that the appellant and CP had been going to Blackpool by boat to celebrate their fiftieth wedding anniversary, and that they had argued on the boat about leaving the children with babysitters.

In evidence GB who, because of his vulnerability, gave evidence over a video link, said that he shared a prison cell with the appellant, who had told him he “should not have done it” and that he had “killed his Mrs”. He said that the appellant had told him that he had taken his wife to Blackpool in a boat, had killed her on the boat, and had dumped her body, using black bags and weights or bricks. GB’s evidence was that the appellant kept saying he should not have done it, that it was doing his head in and that he had to tell somebody about it.

GB was cross examined on a number of discrepancies in his evidence, including that in his interview he had said that he had shared a cell with the appellant for some months. It was suggested to him that someone had put these things into his mind. However, he denied that he would ever “fit somebody up” for murder. He said that he had no recollection of the appellant having talked in his sleep.

In his closing speech Mr Webster made clear that if MW’s had been the only evidence against the appellant, he would not have invited a conviction on it. Mr Webster acknowledged that some aspects of MW’s evidence were inconsistent with other evidence and that there was no doubt that MW had some bizarre beliefs and that he was a man with previous convictions – which were all powerful reasons to treat his evidence with real and extreme caution. There were, however, some elements of MW’s evidence that were supported by common sense and the evidence – the fact that other inmates would have got at the appellant; the fact that the appellant was a primary school teacher; that it was not suggested that an ice-axe had been mentioned in the media or the television documentary. We deal in para 52 below with what Mr Webster said about the wooden ice-axe.

As to GB, Mr Webster reminded the jury that the appellant’s case was that he had not said a single word to GB about the case, and that the police must have fed information to him. Mr Webster conceded that much of what GB had said in evidence was unrealistic, that parts of his account were confused; and that some details were clearly wrong. However, Mr Webster submitted, GB had no motive to lie, was trying his best to tell the truth, aspects of what he had said did chime with the evidence, and that the issue had to be addressed as to where he had got those aspects from, if not the appellant.

In his closing speech, Mr Edis asserted that MW was a self-confessed attention seeking liar, who had effectively been dumped by the prosecution in their closing speech, and that GB was a suggestible man with severe learning difficulties who had got silly ideas into his head from somewhere.

In summing up, McCombe J directed the jury that they needed to exercise extreme caution before acting on the evidence of MW and GB, and that in GB’s case there was expert evidence (from a Dr Withers) that GB was prone to suggestibility by questioners and was also prone to acquiesce. The judge continued that in GB’s case there were also areas in which his evidence obviously could not be true and which were obviously unsound – namely, his initial suggestion that he had shared a cell with the appellant for some months; his evidence that CP had fallen overboard from a boat; the alleged trip across the water to Blackpool; and the alleged wedding anniversary celebration.

The wooden ice-axe

It was an agreed fact, as touched on above, that the wooden ice-axe had been found at the appellant’s home in January 2004. It is referred to in the typed copy of Mr Webster’s opening note for trial as follows:

“In January 2004 when his house was searched, he still had a climbing axe (the significance of which will become apparent later)…

[the appellant] opened up to [MW] and told him that he had killed his wife. He had strangled her until she had passed out. He had then hit her with various objects, one of which [MW] recognised, by its description, as a climber’s ice axe…

Any alleged confession to a fellow inmate needs to be treated with caution…[MW] however, had left prison in November 1997 and had not been back since. He had had no further dealings with [the appellant] and had no motive to lie to implicate him. Further, you will remember that a climber’s axe was recovered from [the appellant’s] home, when it was searched in 2004 following his final arrest”.

The wooden ice-axe was part of the unused material and was introduced into the evidence at trial by the defence during cross-examination of a prosecution witness, Mr Paul Shaw, a long-standing friend of the appellant. Mr Shaw’s evidence, as summarised by the judge, was that “he could not countenance the idea that the appellant had used that ice axe in the dreadful manner that might be being suggested in this case”. Mr Shaw had borrowed the axe some years previously and, as indicated above, had come forward (after reports in the media of MW’s evidence) to support his friend by telling the police that he could not imagine the appellant having used it to kill his wife. It was after his evidence that the wooden ice-axe was made Exhibit 1. However, neither side asked Dr Tapp about it.

According to Mr Webster’s note, and against the background that it was the appellant’s case that he had never seen, let alone spoken with, MW at HMP Preston, he relied on the axe in this way in closing:

“…there were elements of [MW’s] evidence which you may have thought to be supported by common sense and the evidence…There is no suggestion that the use of an ice axe was mentioned on any TV programme. If this was an invention on [MW’s] part, it was an extraordinary coincidence (one of many which the defence will have to rely upon) that it just happens that [the appellant] was a climber and had, to our certain knowledge, a climbing-axe. Bear in mind, of course, that he described a black axe, whereas the one recovered from [the appellant] was wooden. An ice-axe nevertheless.”

Evidence of a VW Beetle and a sighting of CP

A neighbour, Sabine Dixon, who had not made a statement until 1997, gave evidence that in the morning or at lunchtime on the day that CP had disappeared she had seen a pale blue or grey blue Volkswagen Beetle drive up to ‘Bluestones’ and stay for about 15 minutes. It was driven by a man who was not the appellant. Her evidence was that she believed that she may have seen the car on a previous occasion or occasions when the appellant and CP were both at home. She could not be sure about the date, but said that something had made her think that it was the day that the family had gone to Blackpool – though she could not recall how she knew that that was on 17 July 1976.

As indicated above, there was also evidence from CP’s acquaintance, Dorothy Baines, that she had seen CP at the Charnock Richard Service Station, some 80 miles south of Leece, in the evening of either Friday 16 July 1976 or Saturday 17 July 1976. The prosecution case in relation to her was that she did not go to the police until over a year after CP had disappeared; that her account was confused and plainly wrong; and that CP heading south was inconsistent with her ending up in the lake nearest to Leece.

Man seen depositing a large package from a white boat on Coniston Water

Mr and Mrs Young were on holiday by Coniston Water in late July 1976 when, parked on the eastern side, they saw a man in a small boat dumping a large package into the water. Mrs Young joked that perhaps the man was getting rid of his wife. However, in the absence, at that time, of any publicity about a missing person, they did not report what had happened.

The Youngs did not see the television documentary in 2000 but, as a result of the publicity when the appellant was re-arrested in January 2004, Mrs Young contacted the police. In her initial contact with the police, by telephone, she said that the boat was a “white, small cabin cruiser type” and that the man was wearing a black wet suit and was slim with glasses.

In her first witness statement, made on 13 February 2004, Mrs Young described a “small yacht… white in colour” with a mast but no sails up, with one male on board.

In June 2004, the Youngs were taken back by the police to the eastern shore of Coniston Water. They each separately tried to identify the location from which they had observed the man in the boat. Mrs Young said that she was 80% sure that it was at Machell Coppice. Mr Young said that he could only say that the location was south of Machell Coppice but not as far down as Dodgson Wood (which was adjacent to Bailiff Wood – near to which CP’s body was found). It was common ground at the trial that

Mrs Young’s evidence at trial was that they had been parked on a beach at the side of the lake; and that straight in front of them on the lake she had seen a man standing in a small white boat. He was wearing a black or very dark wetsuit, was thin and very thin faced, and had brown / auburn hair, and possibly a moustache. Mrs Young said that she was “probably over 50% sure” that he was wearing glasses. She added that she was pretty sure that she had identified the correct location to the police. Asked about the description of the boat that she had given when reporting the incident, she said that she knew nothing about boats, and that it had been a small boat with, she supposed, a small motor on it. Asked if she had meant a boat with a cabin, she answered “A little bit, yes, ah ha”. She said that she was not sure if the boat had sails. It possibly had a mast, but did not have sails up. Mr Young said that he was “confident-ish” that the location was at Machell Coppice.

The appellant accepted in evidence that he had owned a white “505 fast sailing dinghy” which he had sailed extensively on Coniston Water. He asserted that he had sold the boat in June 1976, but his sailing log suggested that it was actually sold in July 1976. He agreed he had auburn hair at that time but asserted that he only wore reading glasses indoors. In cross-examination he was shown a photograph of himself dated 25 August 1973 in which he was, he said, surprised to see himself wearing glasses outside.

We deal below with the prosecution’s reliance on the evidence of Mr & Mrs Young as part of its circumstantial case. The defence asserted that, given that each of them had identified the area of Machell Coppice as their location at the time of their sighting, whatever they had seen could not have been the deposition of CP’s body.

Pathological evidence

Dr Tapp gave evidence that he had examined the body, which was bound in the foetal position. He described the wrappings (above), the rope that had been used to tie her and the lead weight.

He described how nearly all of the soft tissue had disappeared from the scalp and face. On the right side of the inner skull there was a prominent area of brown discoloration, suggesting the possibility of bleeding having occurred in that area during life. There was no similar discolouration on the left side. The facial bones were fractured and some of the fragments contained one or more teeth. The two largest fragments from the facial bones were part of the zygomatic (cheek) bone from each side of the face. There was extensive shattering of the upper jaw. It appeared that the anterior border of the fragment of zygoma from the left side of the face had a sharp edge, suggesting that it had been cut rather than fractured. The remainder of the body was largely in a state of adipocere (i.e. had a white soapy appearance via the breakdown of neutral fats in the body).

Dr Tapp gave his conclusions, which included the following:

The finding of the rock and expert geological evidence

As indicated above, the prosecution case was that PC Brookes had found the rock during the recovery of clothing at a depth of around 12 metres and at a point between where CP’s body had been found and the shore – albeit that PC Brookes himself was unaware of having done so, and that the rock was the only item that was excluded from the Agreed Fact that the continuity of exhibits was not contested.

As also indicated above, expert evidence concerning the rock was given at trial by two geologists: Dr Pirrie (for the Crown) and Professor Pye (for the defence). Both had examined the rock and compared it with sample rocks gathered from the nearby shores of Coniston Water and from a wall at ‘Bluestones’. Dr. Pirrie concluded that the rock and four of the samples recovered from ‘Bluestones’ contained certain recognisable similar characteristics (a calcium bearing rare earth element mineral). In contrast the samples recovered from the shores of Coniston were of a different composition.

Professor Pye was of the view that there was a high degree of similarity between the rock and rocks from ‘Bluestones’. However, there was also, he opined, a high degree of similarity between the rock and three samples from the eastern shore of the lake. Both the rock and those from ‘Bluestones’ came from the same general source, namely the Windermere Supergroup. He believed that not enough research had been done and that rocks with similar mineral constituents could be more common in the Coniston area.

In summing up the issue McCombe J reminded the jury that Dr Pirrie had only been a forensic scientist for some 18 months, and that this was the first case in which he had given evidence. He posed the question whether Dr Pirrie’s lack of experience meant that his evidence was perhaps less cogent than that of Professor Pye. It was, the judge explained, for the jury to assess how the expert geological evidence helped them to decide whether, as Mr Webster had put it in closing, it was a strange coincidence that rocks with a calcium bearing rare earth element were found at ‘Bluestones’, and apparently in the one recovered in the lake, but not in the Coniston samples.

Lies by the appellant

In closing, and as part of its circumstantial case, the prosecution relied on five alleged lies told by the appellant, as follows:

The principal defence evidence at trial was that of the appellant. As we have already indicated, there is no transcript of it. What follows is taken from the judge’s summing up.

The appellant (by then aged 60) denied that he had killed his wife. He gave evidence of his good character, together with his positive qualities as a single parent and a school teacher. He described his early relationship with CP and their matrimonial difficulties. He spoke about the 11-month period before her disappearance, when she had returned to the matrimonial home and had seemed to be happy. They were re-building their relationship and he trusted her completely.

He gave his account of the planned trip to Blackpool with the children. He said that, on the morning of the trip, his wife had told them she felt unwell and had remained at home. When he returned, his wife was gone. There was no sign of any disturbance at the address, but her wedding and engagement rings (which she always wore) were on the dressing table, which concerned him because she never took them off. He continued looking after the children and waited to hear from her. He did not inquire of the neighbours or of family members because they were not in the habit of keeping others informed about their difficulties. He simply assumed that she had left him again, for another man.

The appellant spoke about his keen interest in sailing and the various boats he had owned. He denied being the man seen by Mr and Mrs Young on Coniston Water. His “505” sailing dinghy did not fit their description of a “motor boat with a cabin”, and, it was suggested, they would not have been able to see the location where the body was deposited/recovered. Although he had sailed on Coniston Water over the years, he denied having previously visited the site where Carol’s body was found although he agreed that it was almost opposite the location of where his family had a caravan in his childhood.

The appellant denied that he had tied the knots around CP’s body but accepted that as a former scout, a climber and a sailor, he was familiar with knots. (The prosecution conceded that this level of knot expertise was common in the Lake District). Although he accepted lying to the Court about his own infidelity during his custody proceedings, he had not lied about other matters, including about the date he sold his “505” sailing boat, and regarding the incident where Carol had gone “berserk” in the presence of Mrs Walmsley. He was critical of the police for losing the original 1976 missing persons file, including the detailed statement he had given about his wife’s disappearance when matters were most fresh in his mind.

The appellant said that MW and GB had both fabricated the alleged prison confessions; he had never had any dealings with MW and had not spoken with GB about his case. He said that he had followed his solicitor’s advice at the time, not to speak to other prisoners about his case – though he may have spoken about being a climber (which MW may have heard about and used in fabricating his account). The appellant’s solicitor was called and confirmed having given the appellant that advice at the time.

Amongst the other witnesses called by the defence were:

Prosecution

From the combination of Mr Webster’s closing note, and the judge’s summary of his speech, it is clear that Mr Webster re-iterated that there were two aspects to the prosecution case - the direct evidence of MW and GB as to what the appellant had said to them, and a mass of circumstantial evidence which both excluded all others and proved the guilt of the appellant. Mr Webster made clear that the circumstantial evidence was the principal basis upon which the prosecution case was advanced.

We have already dealt with Mr Webster’s warning to the jury as to the need for extreme caution when considering the evidence of MW and GB, and of his other remarks in closing in relation to them (including whether it was a coincidence that the appellant was a climber and owned a wooden ice-axe) at paras 46, 47 & 52 above.

Mr Webster submitted that there were only three possibilities in relation to the murder of CP, namely that:

As to an intruder (including John Rapson) being responsible, Mr Webster pointed out that:

As to John Rapson, Mr Webster added that:

Mr Webster further submitted that running off with another and being murdered by that person, or thereafter by someone else, could be surely discounted given that:

Detailing the circumstantial case against the appellant necessarily involved the repetition of a number of those points. In the combination of the prosecution evidence and Mr Webster’s speech, the circumstantial case included the following:

Defence

As summed up to the jury by McCombe J, the principal points made in closing by Mr Edis were that:

Following his conviction, the appellant sought permission to appeal. After refusal by the single judge the application was renewed before the full court (Keene LJ, Beatson & Macduff JJ) on 27 November 2008 – see [2008] EWCA Crim 2963.

The appellant relied upon grounds drafted by fresh counsel, Mr Simon Bourne-Arton QC. These included an application to rely upon fresh expert evidence from a further geologist, Dr Andrew Moncrieff, contained in his report dated 17 October 2007.

Dr. Moncrieff had examined the various rock exhibits in 2006 (21 months after the appellant’s conviction) and had also done field work of his own at Coniston Water. In his opinion the composition of the rock, as well as being similar to samples from ‘Bluestones’, was also indistinguishable from samples collected from the wider area of Leece and likewise from rocks adjacent to the place where the deceased’s body had been brought ashore. In those circumstances, the conclusion that the composition of the rock was sufficiently unusual to allow a link to be inferred to ‘Bluestones’, was unfounded. Dr Moncrieff concluded that the composition of the rock was, in this regard, meaningless.

Mr Bourne-Arton contended that, in the absence of evidence linking the rock to

The Court refused the renewed application for leave to appeal, concluding that Dr Moncrieff’s evidence did not raise a reasonable doubt as to the safety of the conviction and could not, therefore, afford a ground for allowing the appeal. The Court’s reasoning was set out by Keene LJ at [23] – [26} of the judgment, as follows:

“23.…We bear in mind that this is an application for leave to appeal, not the appeal itself. It is right that the Crown’s evidence about the rock was part of the circumstantial evidence against the applicant at trial and indeed that some time was spent on the evidence of the opposing experts. However, we have concluded that it is not realistically arguable that the evidence of Dr Moncrieff raises a reasonable doubt as to the safety of the conviction.

24.

We have a number of reasons for arriving at this conclusion. First, the evidence at trial as to how this rock came to be found so as to link it to the body was far from clear. No witness could say with any confidence how it came to be found. Secondly, the evidence of the experts at trial must have left doubts as to whether it could not have come from the Coniston area. Dr Pirrie, as we have said, accepted that no studies had been carried out of the incidence of the calcium rare earth element in the Lake District and he agreed that he could not exclude the possibility that “it does occur and may occur in rocks in the Coniston area” because detailed work had not been carried out. Professor Pye’s evidence before the jury was that Dr Pirrie had not “demonstrated satisfactorily” that the same association did not occur in rocks around Coniston shore. So the position after those experts had given their evidence was a long way from being clear-cut and the jury may well have found it very difficult to decide what conclusions could be drawn from this geological evidence.

25.

Thirdly, this evidence was only one element in a strong circumstantial case against the appellant. We have referred to many of those features already. They include motive arising from the established evidence of past marital disharmony, the applicant’s knowledge of knots, his ability as a sailor, and access to a boat (very necessary given the location of the body some distance from the shore), his knowledge of Coniston Water including the part of it directly opposite where the body was found, his lies (some of which were not in dispute), the evidence of a man with some similarities to the applicant seen in a white boat (the same colour as his dingy) pushing a large bundle over the side of the boat in late July 1976 at the eastern side of Coniston, and of considerable significance the clothes found on the body plus the lack of disturbance at home. An intruder was highly unlikely, given the fact that there was said by the applicant to be no blood at the house and no sign of forced entry; that she was wearing a nightie and that her murderer had had access to her pinafore dress that he used to wrap the body. Since she was still in her nightie it was also very unlikely that she had gone off from the house voluntarily with someone, especially leaving behind her rings purse and handbag.

26.

We are therefore unpersuaded that the evidence about the rock was a crucial part of the Crown’s case at trial. As can be seen from the summing up, the position was far from that. This court, if leave were granted, would be applying the test in Pendleton as explained by Lord Brown of Eaton-under-Haywood in Dial [2005] UKPC 4 at paragraph 31:

“Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused, it will dismiss the appeal. The primary question is for the Court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the Court regards the case as a difficult one, it may find it useful to test its view by asking whether the evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict (Pendleton at p.83, para 19).”

We cannot see that Dr Moncrieff’s evidence would afford a ground for allowing the appeal against conviction for the reasons which we have indicated. That being so, this renewed application must be dismissed.”

The CCRC Reference is based on what is described as the “cumulative effect” of four separate reasons, summarised in the Reference as follows:

The CCRC concluded that, in the light of the above, “the balance of the case [had] shifted to such an extent” as to merit a Reference to this court.

Grounds 1,2 & 4 of the Grounds of Appeal reflect the first, second and fourth of the CCRC’s reasons.

However, and significantly, the new DNA evidence which formed the basis of the third of the CCRC’s reasons has been abandoned by the appellant as, after further consideration, it was concluded that the evidence did not support, even arguably, the proposition that it undermined the safety of the conviction – whether by implicating another or by exculpating the appellant. Instead, Mr Blaxland seeks to advance a new Ground 3, for which permission is, if necessary, sought.

The final Grounds of Appeal are accordingly as follows:

We shall first summarise the general submissions made on both sides, then the background and arguments in relation to each Ground, the applicable legal framework, and finally turn to the merits - both individual and cumulative.

The appellant

Mr Blaxland submitted that, in 2008, the Court had fallen into error in stating, at [4] of the judgment, that it was formally admitted at trial that CP’s injuries had been caused by an axe. The only Agreed Facts which referred to the axe in that context were numbers 36 & 37 - which dealt, respectively, with what had been reported in the national press and on the television news after the finding of CP’s body, and in the “Ladies in the Lake” broadcast (which MW had seen and in which it was stated that CP’s injuries had probably been caused by an axe).

Mr Blaxland relied on [171] of the CCRC’s Statement of Reasons, in which the CCRC made observations as to weaknesses in the elements of the prosecution’s circumstantial case to which reference was made in [25] of the 2008 judgment, and asserted that that evidence no longer pointed so strongly to the appellant, such that there was a real possibility that the Court would consider that his conviction is unsafe. The observations included the following:

In addition, Mr Blaxland invited the Court to consider, amongst other things:

Against that background, and in conclusion, Mr Blaxland submitted that:

The respondent

On behalf of the respondent, Mr Richard Whittam QC submitted that there was a compelling circumstantial case against the appellant, and that any suggestion that CP had either simply left the matrimonial home or had otherwise disappeared was fanciful.

Mr Whittam submitted that the strands of evidence that together comprised the compelling circumstantial case were as follows:

Given that the Reference had been made on the basis of the cumulative effect of the reasons relied on by the CCRC, it was not without significance that the DNA evidence was no longer relied on and that the original Ground 3 had been abandoned by the appellant.

In the result, Mr Whittam submitted, the Appellant’s conviction was safe. The evidence considered in its entirety was strong and, although it was submitted that there were matters of concern arising from non-disclosure and fresh evidence, they were not such, after an overall assessment of the case, to affect the safety of the conviction.

As touched on above, during the course of his evidence MW said, amongst other things, that he had been using substantial quantities of drugs for some 14 years; that he was a long-tern cannabis user; that in 1997 he had additionally used cocaine, LSD, amphetamine, whizz and trips; that he had stopped using the more serious drugs in

It is common ground that there was a prosecution conference at the chambers of Mr Webster on 22 June 2004; that DS Marshall (who had been in contact with MW on 10 June 2004) was present; and that a note of the conference was made by a CPS Caseworker, who recorded that:

“”Wainwright now says that Park told him (Wainwright) that he had buried the axe between the boathouse and the shoreline – now coming off heroin (AW) – record further info – disclose/serve?”

The witness statement that MW made on 16 July 2004 dealt with the burial of the axe, but there was no reference to him coming off heroin, and no other disclosure was made of that information.

The respondent has not been able to find any record to show that MW mentioned that he was coming off heroin to DS Marshall on 10 June 2004, and underlined in argument that there was nothing to suggest that the information had been deliberately withheld. However, the respondent accepted that that information should have been disclosed - as (viewed at that time) it had the potential to undermine the content of MW’s 16 July 2004 witness statement. The appellant argued that, in any event, the information should have been disclosed once MW had claimed in evidence that he had stopped taking hard drugs in 1997 – as it could have been deployed to demonstrate that he was lying on oath.

It is also common ground that on 19 January 2005 (the day before the last defence witness was called in the appellant’s trial) MW was arrested by Lancashire Police and charged with supply of, and possession with intent to supply, amphetamines and cannabis, said to be worth £19,000; and that that information was not disclosed.

Further, and also undisclosed to the appellant, on 22 February 2005 (i.e. nearly 4 weeks after the conclusion of the appellant’s trial), MW pleaded guilty in the Crown Court at Preston to a total of 10 counts of supplying and possession with intent to supply of Class B and C drugs in the period between 1 January 2004 and 19 January 2005, and was sentenced to a total of 20 months’ imprisonment.

On behalf of the appellant, Mr Blaxland argued that information as to the fact and circumstances of MW’s arrest on 19 January 2005 should have been disclosed at trial, and that (taken together) that information and the information about MW coming off drugs was capable of further undermining MW’s credibility and reliability, and would have enabled the appellant to explore whether his supplying activities had been funding his heroin use, and/or whether he was under the influence of drugs when making his 2004 statements and/or when giving evidence.

On behalf of the respondent, Mr Whittam submitted that it was not clear when (if at all) the facts of either MW’s arrest or conviction had been brought to the attention of the prosecution. In any event, he argued, the facts and/or circumstances of the arrest and conviction were not relevant to an assessment of MW’s credibility and/or reliability,

In addition, Mr Whittam submitted, the failure(s) to disclose had to be seen in the light of MW’s evidence (as recorded in the transcript) that:

Mr Whittam further submitted that the failure(s) also had to be seen against the background (again by reference to the transcript) that MW had been cross-examined as to the fact that:

Thus, Mr Whittam submitted, the jury had been appraised of MW’s character, criminal activities and mental health difficulties and, during the course of cross-examination, the appellant had been able to explore the matters set out above. Indeed, the CCRC had concluded that Mr Edis had “conducted a robust cross examination of (MW) by reference to his drug abuse, his failure to come forward before the television programme which had included most of the details that he had recounted, and all the changes, inconsistencies and inherent difficulties in his various accounts”.

In the result, Mr Whittam argued, the jury had been able to assess both MW’s credibility and reliability as a witness and had not been left with a false impression – particularly against the background of the warnings to them, from both the prosecution and McCombe J, of the need to approach MW’s evidence with “extreme caution”. Thus, to the extent that there had been a failure or failures to disclose, the failure or failures amounted only to “more of the same”, and thus the appellant’s conviction was safe.

Mr Blaxland submitted that the information was not “more of the same”. Notwithstanding the skill and effect of the cross-examination of MW, the appellant had not been able to deliver a knockout blow to MW’s evidence. MW’s claim that his memory had got worse since 1997 because he had stopped taking hard drugs was significant - as it was his explanation for the shifts in his accounts. Disclosure of the 2004 information would have enabled the appellant to demonstrate in crossexamination that that explanation was a lie on oath to the jury, which would have been a good point for the appellant. Likewise, given the prosecution’s knowledge of that information, MW should not have been re-examined (as he was) in a way that enabled him to say that he had stopped using hard drugs (in 1997) because he wanted to come off them.

Equally, Mr Blaxland emphasised, Mr Webster had made clear to the CCRC that, if he had been aware of the information in relation to MW’s arrest on 19 January 2005, it would have been disclosed. It too was significant information – in that the impression given by MW that he was confused and vulnerable would have been wholly undermined by the revelation that he had been (and was still) involved in long-term commercial drug supply.

At all events, Mr Blaxland submitted, MW was an important witness and, for all the problems with his evidence, it was impossible to know what the jury had made of him – the more so as the respondent had relied on the finding of the axe at the appellant’s then home in 2004 as supporting MW’s evidence. In the result, the undisclosed information might have had a significant impact on MW’s reliability and credibility. Therefore, the non-disclosure of that information rendered the appellant’s conviction unsafe.

Combining the Perfected Grounds and his oral submissions, Mr Blaxland summarised this Ground as follows:

The appellant’s submissions in relation to this Ground also involve assertions of nondisclosure after the trial.

As indicated above, at the Inquest in 1997 Dr Tapp opined that the most likely cause of death was facial injuries caused by blows with a heavy sharp object, which could have been an axe or a chopper. An agreed Schedule and Transcript of an interview for a television documentary (which we append hereto) detail relevant aspects of what Dr Tapp has also been recorded as saying over the years (from his Coroner’s Report dated 15 October 1997 to his CCRC witness statement dated 9 May 2018) about the type of weapon used to inflict the facial injuries.

As to non-disclosure before trial, Mr Blaxland relied upon the following:

As to events at the trial, Mr Blaxland underlined the following:

Mr Blaxland also prayed in aid the recollections of both leading counsel - as given by them, many years after the event, to the CCRC.

Mr Webster said that the combination of the ice-axe, knots, knowledge of Coniston and access to a boat was all very strong circumstantial evidence; that the mention of an ice axe in MW’s account was the most significant part of his evidence, which had given significant colour to his account; that it was his recollection that the respondent’s case was that the ice axe might have been the murder weapon and that it was a good candidate; and that whilst the prosecution could not prove that the ice-axe might have been the murder weapon, ice-axes were unusual and the fact that the appellant had one provided some evidential weight.

Mr Edis recollected three matters in relation to the ice-axe – that the respondent had presented it as an implement that could be the murder weapon; that it was shown to the jury as a possible murder weapon; and that he believed that it was said by the respondent that Dr Tapp’s view was that it was consistent with the murder weapon. Mr Blaxland accepted that Mr Edis’s recollection was “not perfect” as, for example, it was, in fact, him who had shown the ice-axe to the jury when he produced it to Mr Shaw in cross-examination, after which it had become Exhibit 1. However, Mr Blaxland pointed out that Mr Edis had gone on to say to the CCRC that if he had known that Dr Tapp had not thought that the ice-axe was the murder weapon, he would have asked Dr Tapp in cross-examination to comment on how likely it was for that the appellant’s ice-axe could be the murder weapon, because it was key to MW’s credibility.

Mr Blaxland further submitted that there was also non-disclosure after trial, relying on the following:

As to post-trial expressions of opinion in relation to the likelihood of the wooden iceaxe being the murder weapon, Mr Blaxland drew attention to the following:

Mr Blaxland asserted that there was another aspect of non-disclosure in relation to the wooden ice-axe, namely as to the fact that a search had been made near boathouses on Coniston Water for a small axe, possibly a kindling axe, rather than an ice axe. In that regard he relied on the following;

As to the general merits of this Ground, Mr Blaxland argued that:

Mr Whittam submitted that it was necessary to consider three matters with care - namely the accounts of Dr Tapp regarding the weapon used to inflict blunt force trauma to CP; whether the prosecution failed to disclose any of Dr Tapp’s accounts to the defence; and whether at trial the prosecution ever suggested that the ice-axe (Exhibit 1) could be the murder weapon.

Mr Whittam submitted that Dr Tapp had consistently stated throughout, amongst other things, that CP’s facial injuries were the result of several deliberate impacts on the central part of the face – which could have been in the form of blows with a heavy blunt object or by kicks, but the appearance of the teeth and the anterior border of the zygoma suggested strongly that the implement also had a sharp edge on it and that the central part of the face had been destroyed by at least two blows in a downward direction.

Mr Whittam submitted that it was clear that Dr Tapp had been repeatedly asked whether he was able to offer an opinion as to what the heavy, blunt and sharp object may have been and, by reference to the extracts in the agreed Schedule and Transcript

Mr Whittam also pointed out that new reports from odontologists (Dr Evans for the appellant and Dr Marsden for the respondent) agreed that the damage to CP’s teeth was not artefactual, but as a result of decomposition.

As to disclosure, and as indicated above, Mr Whittam accepted that the CPS minute sheet dated 2 June 2004 and the notes of the conferences on 22 June 2004 and 7 September 2004 should have been disclosed, given Dr Tapp’s status as an expert witness, and that a further witness statement should have been taken from Dr Tapp.

Nevertheless, Mr Whittam submitted:

Further, Mr Whittam submitted that there was no evidence that the prosecution had ever suggested at trial that the wooden ice-axe (Exhibit 1) could have been the murder weapon. In support of that submission he relied on the following matters:

Thus, Mr Whittam submitted, the entire basis of this Ground was the notion that the prosecution consistently implied that the appellant’s wooden ice axe, Exhibit 1, could be the murder weapon, whereas it could be demonstrated (as above) from contemporaneous documentation, rather than the recollections of Mr Webster and Mr Edis, that that was not the case, and therefore, notwithstanding the prosecution’s disclosure failings, the appellant’s conviction was safe.

Further, or in the alternative, Mr Whittam submitted that, when considering whether the appellant’s conviction is safe, the Court might wish to consider whether the ice-axe could properly be excluded as the murder weapon, and thus to take into account the evidence of Dr Fegan-Earl, a Consultant Forensic Pathologist instructed by the Respondent to consider the type of weapon that was used to inflict the injuries to CP’s face, and the evidence of Dr Kolar, a Pathologist on the Specialist Register of the GMC instructed by the appellant to review the pathological aspects of the case and to respond to the report of Dr Fegan-Earl.

Dr Fegan-Earl had variously concluded that:

“It is reasonable to suggest that there is a combination of blunt and sharp force trauma on the facial skeleton, and this tends to raise a specific subset of candidate weapons that can cause both blunt and sharp force injuries…this then does indeed raise the possibility of the use of an object such as…an axe…the iceaxe could not be excluded as a candidate weapon…Whilst the bones still bear hallmarks of the assault, the absence of soft tissue in its original form severely hampers the pathologist in considering the definite weapon type, albeit even in a freshly dead body this may not be possible. Whilst it is telling in the presence of both blunt and sharp force trauma, if one accepts the use of a single weapon then realistically the only category of weapons that could be responsible would be heavy chopping weapons that allow the production of both blunt and sharp injuries. This must include axes….I do not believe that there are any features that must indicate that it was the ice axe, but it could not be excluded”.

Dr Kolar was provided with various post mortem and facial reconstruction photographs in relation to CP. In his first report, dated 18 September 2019, he noted that (in relation to the reconstruction) Dr Tapp had referred to a sharp edge to the fracture of the left zygoma but that there was no photograph of the left zygoma that was of sufficient quality for him (Dr Kolar) to interpret. If, however, Dr Tapp’s description was accepted, then the narrow edge of the implement (if there was only one) was sharpened to some extent. He observed, nevertheless, that there was at least one relatively clear and crisp lower edge to the fracturing, suggesting an edged implement, and thus a conventional axe could easily have caused the facial injuries. Equally, he concluded, the ice-axe could not be excluded pathologically as the cause of the maxillary fractures - but nor was there any evidence that indicated that the ice-axe must have been the weapon used.

Thereafter, Dr Kolar was provided with the reports of Dr Marsden and Dr Evans (who, as indicated above, had concluded that the damage to CP’s teeth was the result of decomposition, and not the product of any blow with an implement) and with better quality copies of the photographs (which had been made from the original negatives). In his Addendum Report, dated 29 October 2019, Dr Kolar opined that, still absent a photograph of sufficient quality of the fracture to the left zygoma, the use of an in part sharp edged implement could not be confirmed or refuted. From his perspective, all that could be said was that impacts with a linear edged, probably narrow edged, object arose. He did not change his opinion that the ice-axe could not be excluded.

Therefore, Mr Whittam submitted, the evidence of all four pathologists was that the wooden ice-axe could not be excluded as a potential candidate weapon, which undermined any suggestion that the appellant’s conviction was unsafe due to the nondisclosure of Dr Tapp’s expressions of opinion as recorded on 2 June 2004, 22 June 2004 and 7 September 2004.

As indicated above, this appeal is the result of the appellant’s conviction being referred to this Court by the CCRC, under the provisions of s.9(1) of the Criminal Appeal Act 1995. By virtue of s.9(2), the reference is to be treated for all purposes as an appeal under s.1 of the Criminal Appeal Act 1968.

As to the Grounds upon which such an appeal can be pursued, s.14 of the Criminal Appeal Act 1995 (as amended) provides that:

“….(4A) Subject to subsection (4B), where an appeal under section 9…is treated as an appeal against any conviction…the appeal may not be on any ground which is not related to any reason given by the Commission for making the reference.

(4B) The Court of Appeal….may give leave for an appeal mentioned in subsection (4A) to be on a ground relating to the conviction….which is not related to any reason given by the Commission for making the reference…”

As also indicated above, this is a new Ground which is sought to be advanced against the background of the abandonment of the original Ground 3, which was concerned with new DNA evidence in relation to the rope used to bind CP (which was one of the reasons given by the CCRC for making the reference). Mr Blaxland submitted that the new Ground falls within s.14(4A) and thus does not require leave, but that if (as argued by Mr Whittam) leave was required it should be granted.

As to the Ground itself, Mr Blaxland underlined that:

Against that background, Mr Blaxland submitted that:

As to what had been done on this issue prior to and at the time of the trial, Mr Blaxland submitted that:

As indicated above, Mr Whittam submitted that this Ground requires leave under s.14 of the Criminal Appeal Act 1995 (as amended), and that it was difficult to see how it was related to the reasons given by the CCRC for the Reference. He further submitted that, in considering whether to grant leave, the Court should consider whether to admit the fresh evidence under s.23 of the Criminal Appeal Act 1968. In that regard, he underlined the appellant’s instruction of Dr Evison prior to the trial, and the opinion given to the defence by Dr Lawler, also prior to the trial, that the ice-axe could have been used to inflict the injuries.

If the Court granted leave, Mr Whittam submitted that the new evidence relied on did not support the assertion that the appellant’s wooden ice axe was not used to cause the facial injuries to CP. Rather, it simply showed that the damage to the teeth was not artefactual, but the result of decomposition.

Mr Whittam further submitted that:

In reply, Mr Blaxland submitted that this Ground was really part of the consideration of Dr Tapp’s opinion, and continued that:

Mr Blaxland submitted that:

Against that background, Mr Blaxland submitted that:

In response, Mr Whittam submitted that in 2008 the Court had correctly:

Mr Whittam further submitted that the evidence of Dr Moncrieff did not have renewed importance and that reconsideration of it was not appropriate, nothing had changed since 2008. The rock was not a crucial part of the prosecution’s case at trial, it was only a single part of a strong circumstantial case. The case remained strong and none of the individual strands had been weakened. Accordingly, as in 2008, Dr Moncrieff’s evidence did not afford any basis for allowing the appeal - whether considered alone or in combination with the other three Grounds now advanced.

Mr Blaxland replied that the evidence at trial in relation to the rock had not been just another piece of evidence - rather, it had been a very powerful piece of prosecution evidence.

Section 2 of the Criminal Appeal Act 1968 (as amended) provides that, subject to the provisions of the Act, the Court of Appeal:

“(a)

shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b)

shall dismiss such an appeal in any other case…”

Mr Blaxland submitted that the leading case in relation to the approach to the safety of a conviction in a fresh evidence appeal (such as this one) is the decision of the House of Lords in R v Pendleton [2002] 1 Cr.App.R. 34, in which, at [20], Lord Bingham (who gave the leading speech) identified the following guiding principles:

As to the meaning of “a case of any difficulty”, Mr Blaxland relied on Lord Bingham’s speech at [18], as follows:

“Where the Court of Appeal has heard oral evidence under section 23(1)(c) (whether pursuant to its own decision, or by agreement, or de bene esse), the evidence will almost always have appeared, on paper, to be capable of belief and to afford a possible ground for allowing the appeal. By the time the Court comes to decide whether the appeal should be allowed or dismissed, it will have heard the evidence, including cross-examination, and any submissions made on its effect. It may then conclude, without doubt, that the evidence cannot be accepted, or cannot afford a ground for allowing the appeal. Such was the case, for example, in R v Jones (Steven) [1997] 1 Cr.App.R. 86, where the Court, having decided to receive and having heard opinion evidence from an expert, found conclusive objections to the acceptability of that opinion (see p.94). The Court may, on the other hand, judge the fresh evidence to be clearly conclusive in favour of allowing the appeal. Such might be the case, for example, if a witness who could not be in any way impeached testified, on oath and after all appropriate warnings, that he alone had committed the crime for which the appellant had been convicted. The more difficult cases are of course those which fall between the extreme ends of the spectrum”.

This appeal, Mr Blaxland submitted, clearly falls between the extreme ends of the spectrum, and is thus one in which the jury impact test must be applied – which test embodies the role of this Court as a court of review.

Mr Blaxland further argued, by convenient reference to an article entitled “Sappers and underminers: fresh evidence revisited” (written by him and published in the Criminal Law Review - see [2017] Crim.L.R. 537) that in R v Pendleton the House of Lords had failed to directly grapple with the central issue in relation to its earlier decision in Stafford v DPP [1974] AC 878 (which was whether the new statutory test on appeal first introduced by the Criminal Appeal Act 1966 had fundamentally revised the role of the court – the consideration of which should have resulted in Stafford v DPP being overturned). Mr Blaxland continued that the authorities since R v Pendleton, such as H [2002] EWCA Crim 730, Dial and another v Trinidad and Tobago [2005] UKPC 4, Burridge [2010] EWCA Crim 2847, Mushtaq Ahmed [2010] EWCA Crim 2899, and Garland [2016] EWCA Crim 1743 (in which the authority of Stafford v DPP was restablished, and it was decided that the jury impact test is not determinative in a fresh evidence appeal as it cannot supplant the Court’s own responsibility for determining the safety of the conviction) were based on the same fundamental misconception of the significance of the statutory test.

In the combination of the respondent’s written and oral arguments, Mr Whittam submitted that the jury impact test was not the correct ultimate question. Rather, he argued, the ultimate question for the Court is whether the undisclosed material and/or fresh evidence causes us to doubt the safety of the conviction.

In support of that submission Mr Whittam relied on [24] of the judgment of the Court in Mushtaq Ahmed (above), in which Hughes LJ (then the Vice President of the Court of Appeal Criminal Division) said:

“Although it is not critical to the outcome of this appeal, we do not in any event agree with Mr Ali’s submission that it is sufficient to render a conviction unsafe that there now exists material which the jury did not have and which might have affected their decision. The responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on this court, which must make up its own mind. Of course, it must consider the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. It is likely to ask itself by way of a check what impact the fresh evidence might have had on the jury. But in most cases of arguably fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury’s deliberations since ex hypothesi the jury has not seen the fresh material. The question that matters is whether the fresh material causes the court to doubt the safety of the verdict of guilty. We have had the advantage of seeing the analysis of Pendleton [2001] UKHL 66; [2002] 1 Cr.App.R. 34 and Dial [2005] UKPC 4; [2005] 1 W.L.R. made recently by this court in Burridge [2010] EWCA Crim 2847 (see paragraphs 99-101) and we entirely agree with it. Where fresh evidence is under consideration the primary question “is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury”. (Dial). Both in Stafford v DPP [1974] AC 878 at 906 and in Pendleton the House of Lords rejected the proposition that the jury impact test was determinative, explaining that it was only a mechanism in a difficulty case for the Court of Appeal to “test its view” as to the safety of the conviction. Lord Bingham, who gave the leading speech in Pendleton, was a party to Dial”.

Mr Whittam also relied on [25] – [31] of the judgment of this Court, given by Lord Judge CJ, in Noye [2011] EWCA Crim 650:

“25. The approach of this court to appeals brought on the basis of fresh evidence admitted under s.23 of the Criminal Appeal Act 1968, as amended by the Criminal Appeal act 1995, should now be regarded as settled. It was decided by the House of Lords in Stafford v DPP [1974] AC 878 that the ultimate responsibility for deciding whether a conviction was safe rested with the court. The principle was re-affirmed in the house of Lords in R v Pendleton [2002] 1 WLR 72 in a short phrase in the speech of Lord Bingham of Cornhill that “…the principle laid down in Stafford was, in the opinion of the House, correct…”

26.

For a while it was thought that Pendleton was authority for a different approach, and there was a great deal of emphasis on the observations by Lord Bingham that the Court of Appeal should remind itself that it has

“an imperfect and incomplete understanding of the full process which led the jury to convict. The Court of Appeal can make an assessment of the fresh evidence that it has heard, but save in a clear case is at a disadvantage in seeking to relate that evidence to the rest of the evidence that the jury has heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their provisional view by asking whether the evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe”.

27.

Any doubts on the issue were resolved by the decision of the Privy Council in Dial and another v State of Trinidad and Tobago [2005] 1 WLR 1660 where Lord Brown of Eaton-under-Heywood gave a judgment expressing the view of the Board that:

The law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, always assuming that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case…The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury.”

28.

It is relevant to underline, first, that Lord Bingham of Cornhill was himself a member of the constitution, and party to the majority judgment given by Lord Brown; that Lord Brown was expressing the view of the Board as a whole; and that although Lord Steyn and Lord Hutton disagreed with the conclusion that the conviction under consideration was safe, neither suggested that the essential principle was in doubt; indeed Lord Hutton expressly repeated it.

29.

This approach has been consistently followed in this court (see for example R v Hakala [2002] EWCA Crim 730; R v Hanratty, deceased [2002] 3 All ER 534; R v Ishtiaq Ahmed [2002] EWCA Crim 2781; R v Harris [2006] 1 Cr App R 5; R v Dunne and others [2009] EWCA Crim 1371; R v Burridge [2010] EWCA Crim 2874, where the authorities to date are carefully analysed at paragraphs 99-101).

30.

The same principle applies to whatever form of fresh evidence is admitted under section 23 of the 1968 Act, whether it appears to strengthen or weaken the case for the appellant or weakens or strengthens the Crown’s contention that the conviction is safe.

31.

The responsibility therefore rests with this court. In reaching our decision we reflect on how best to examine the fresh evidence and its possible impact on the safety of the conviction, and test our analysis to ensure that we have reached the right conclusion. Miss Montgomery reminded us that we were not making an assessment based on the advantages of seeing and hearing the witnesses; equally, we do not know which parts of the evidence impressed the jury, and which did not. All this is clear enough, and we recognise the difficulties which can face this court when it is assessing the impact of fresh evidence on the safety of a conviction……..the essential question which we must address…is, whether, in the light of the fresh evidence, the conviction is unsafe. The principle is clear.”

Finally, on this issue, Mr Whittam drew our attention to the decision in R v Garland [2016] EWCA Crim 1743, in which this Court. presided over by Lloyd Jones LJ (as he then was), considered how the principles identified by the Supreme Court in McInnes v

Court analysed the relevant authorities in both Scotland and England & Wales, concluded that there was no difference between them, but that (in any event) it had to apply the law of England & Wales which, it concluded, was that:

“…the ultimate question for our consideration……is whether the material causes us to doubt the safety of the conviction.”