R v Shofah-El-Israel

On 5 August 2019 in the Crown Court at Reading (before Mr Justice Soole) the Applicant was convicted of the murder of Joy Morgan and sentenced to life imprisonment, with a minimum term of 17 years, less time spent on remand.  

The Applicant seeks to appeal his conviction out of time, relying on fresh evidence that has come to light since the trial.  Notably, the body of Ms Morgan was discovered in October 2019, some two months after the applicant was convicted of her murder.  The applicant contends that post-mortem and other scientific findings arising out of the discovery of the body cast doubt upon the safety of his conviction.  

The application was referred to the full court for a rolled-up hearing by the single judge, who noted that no criticism was made about the conduct of the original trial, but rather that the appeal depended on the admission of fresh evidence, and that a very lengthy extension of time was required.  It is upon that basis that we have considered the application.   

We are grateful for the written and oral submissions of Mr Vickers KC, on behalf of the applicant, and Mr Fenhalls KC, on behalf of the Crown.

Having heard the submissions, we indicated that we would grant the necessary extension of time and the application to rely on the fresh evidence for the purpose of considering the application for leave to appeal. We considered the material placed before us. We did not consider that further evidence or enquiries were required before determining the application for leave. Having considered the merits, we concluded that the new evidence did not arguably undermine the safety of the applicant’s conviction for murder and therefore that leave should be refused. We said that we would provide our reasons in writing, which we now do.

Joy Morgan was 20 years old when she disappeared in December 2018. She was in her second year at university and lived in student accommodation in Hatfield. She was an active member of the Israel United in Christ Church regularly attending worship and helping to run the children’s group. She was last seen at the church on 26 December 2018 and the last reliable communication she had with anyone was a WhatsApp exchange with her friend at 17.19 on 27 December.  She did not use her laptop or mobile telephone nor access her bank account after that time.  

The Applicant and his wife were also members of the church. They lived in Luton and had access to a flat in Cricklewood. They befriended the victim through the church and regularly gave her lifts to church. 

Although the church had strict rules about contact between male and female members, there was evidence of frequent telephone calls and messages between the applicant and Ms Morgan and of her visiting him in Cricklewood and Luton.  It was the prosecution case that his interest in her was more than platonic.  He denied any sort of relationship that would offend against the church rules. 

Mobile cell site analysis and Automatic Number Plate Recognition (“ANPR”) evidence was consistent with the applicant collecting and driving Ms Morgan from her accommodation in Hatfield to the Church in Ilford on 26 December and then driving her to Luton.  Thereafter, the applicant and Ms Morgan’s phones were sited in Hatfield just before midnight, before moving to Cricklewood.  Ms Morgan’s phone remained in Cricklewood throughout 27 December.  The prosecution were able to establish that the mobile telephones of the applicant and Ms Morgan were co-locating in Cricklewood at the time of her last known WhatsApp conversation on 27 December.  

Further cell site evidence showed that the applicant’s phones were in Cricklewood at 18.21 on the evening of 28 December when they became inactive.  They were next detected again in Cricklewood around 23.07.  During this time, ANPR analysis showed the applicant’s vehicle travelling to Hatfield, then on to Stevenage and back to Hatfield.  During the same period, Ms Morgan’s phone was detected in Hatfield and Stevenage and made two calls to 111 but those calls were silent.  

At approximately 19.30 on 28 December, Ms Morgan’s phone was used to remove her name from the church’s social media chat group, signifying that she had left the church. Members of the church found this surprising, as it was out of character and there had been no indication that she was planning to leave the church. It was the Crown’s case that the applicant had been in possession of Ms Morgan’s mobile telephone and that it was he who made the 111 calls and removed her from the chat to cover up that he had murdered her.  

Although members of the Church are banned from contacting those who leave, members attempted to contact Ms Morgan. She did not pick up the phone, her voicemail was turned off and her texts went unread. Members of the church, including the Applicant, attended her house on 29 December, but she was not there. 

There was evidence of the applicant driving to and being in the Stevenage area in the early hours of 31 December and again in the early hours of 1 January.  Just after 02.00 on 1 January, Ms Morgan’s phone connected to the phone system and moved from Hatfield to Stevenage, connecting for the last time at 03.04. 

It was the Crown’s case that Ms Morgan had been killed by the applicant at some point on 27 or 28 December, although they could not say precisely when or where she died. 

Ms Morgan’s disappearance was reported to the police by her mother on 7 February 2019 and a police investigation commenced.  

On 8 February, Police spoke with members of the church, including the applicant, who at that stage was not a suspect. The applicant told police that he had last seen Ms Morgan at 23.00 on 26 December 2018, when he had taken her back to her home in Hatfield after church.  

On 9 February, the applicant was arrested. When asked if Ms Morgan was alive, he told police, “Last time I saw her, yes, she is alive.” He was asked if he knew her whereabouts and he said “…I don’t know of her whereabouts, we went over to search for her, we went to her school, yes, she’s fine, yes she’s alive…”  

He was further interviewed between 10 and 12 February 2019. In the course of those interviews, his accounts changed in response to evidence presented by the police.  He initially told police he drove Ms Morgan to Hatfield, where he dropped her off, before returning alone to his Cricklewood property. He later changed his account, stating that she went with him to Cricklewood in the early hours of 27 December 2018, slept on the sofa, and he drove her back to her Hatfield accommodation at about 19.00 on 28 December 2018. 

The police searched the applicant’s home and Cricklewood property and seized his phones but found no forensic evidence. A further search of his car on 13 February 2019 uncovered keys issued to Ms Morgan for her student accommodation in the front passenger footwell. Despite extensive land, air and dive-team searches, Ms Morgan’s body and her mobile phone were not found.   

The issues for the jury were (1) whether Ms Morgan was dead and, if so, (2) whether the applicant caused her death by using unlawful violence and, if so, (3) whether when he used unlawful violence on Ms Morgan, the applicant intended to kill her or at least to cause her really serious bodily injury. 

There was no forensic evidence to support the prosecution case that the applicant had murdered Ms Morgan.  Indeed there was no such evidence to establish that she was dead.  The prosecution case was entirely circumstantial.  The trial judge gave clear and appropriate directions in relation to that.   

The Crown relied upon the complete and out of character disappearance of Ms Morgan, the fact that the applicant was the last person to see her alive and the mobile phone and ANPR evidence around the time she disappeared, together with the finding of Ms Morgan’s keys in the applicant’s vehicle.  They pointed to the applicant’s lies and the absence of any other explanation for the movements of his car and Ms Morgan’s mobile phone. 

The defence focused on the absence of evidence that Ms Morgan was dead, submitting that she was estranged from her family, unhappy with her accommodation and university course, and involved in a church experiencing internal division. Her departure from university, her accommodation, the church group, and contact with her family were said to be consistent with a voluntary disappearance.  They contended that the prosecution case was pure speculation, highlighting the absence of forensic evidence, the lack of any findings from extensive searches, and the applicant’s good character.   

The applicant gave evidence, during which he claimed that he had mobility problems.  He denied any inappropriate relationship with Ms Morgan and said he treated her as a daughter.  He attributed his lies to the police to being tired and confused, not having taken medication and an unwillingness to admit to things that would reflect badly on him with the church. 

He maintained that the plan on 26 December had been for him to take Ms Morgan back to her accommodation in Hatfield and then to go to Cricklewood himself.   However, she had become upset and talked of leaving the church.  She asked to stay with him in Cricklewood.  He did not tell his wife about that, as she would disapprove of anyone wanting to leave the church.  He claimed that he was intending to drive Ms Morgan to Luton to meet with his wife on 28 December, but he had got lost because his satellite navigation system was not working and they ended up in Stevenage.  They had stopped and had a long conversation before he took her home to Hatfield and he then returned to Cricklewood.  He explained his movements in the Stevenage area on 31 December / 1 January by reference to looking for Ms Morgan in the area where they had been and to making an enquiry at a hotel on behalf of a friend who was planning to visit from America. 

By their verdict, the jury rejected the applicant’s explanations and found that the prosecution had satisfied them that the applicant had killed Ms Morgan, intending to kill her or to do her really serious harm.  

Two months after the applicant was convicted, a member of the public found Ms Morgan’s body in a wooded area adjacent to the A1, west of Stevenage, 60 metres from the boundary of previous police searches. The body had been wrapped in black plastic bags, and was covered with logs and leaves.  

A post-mortem examination was carried out on 8 October 2019 by Dr Charlotte Randall.  Her report is dated 9 April 2020.  Dr Randall also drew on findings of experts in other fields including a forensic archaeologist (Dr Ryder), two radiologists (Dr Zamir and Dr Breunung-Joshi), a forensic entomologist (Dr Pickles) and a toxicologist (Sophie Jones).   

It was reported that no attempt had been made to bury the body, rather it was concealed by a pile of logs.  No natural cause of death was identified.

Toxicological analysis revealed the presence of MDMA (ecstasy) in Ms Morgan’s blood, although not at a level that would be expected to cause death. According to Ms Jones, “the concentration detected in the liver appeared to be considerably lower than values reported in the scientific literature where deaths have been attributed to MDMA toxicity.”

The assemblage of insects associated with the body was somewhat unusual, but the entomological findings were consistent with the assertion that Ms Morgan died shortly after her last known sighting in December 2018, that her body was wrapped and deposited shortly afterwards and the wrappings were disturbed at a later point. 

Three possible bruises were noted (two to the left arm and one to the right ankle) although these were non-specific and Dr Randall could not say how they had been caused.  There was no significant blunt force trauma and no evidence of a head injury.  There were no fractures, knife or gunshot wounds.  There was no evidence of a sexual assault. 

There was a possible fracture of the hyoid bone raising the possibility of compression of the neck before death, although this was not accompanied by any other injury or signs to support strangulation as the cause of death.  Smothering could not be excluded.  At the time of examination, a T-shirt was found covering the deceased’s head.  According to Dr Randall’s evidence, smothering by holding something over the head may leave no specific autopsy findings. 

In summary, Dr Randall could find no obvious natural, traumatic or toxicological cause of death.  She could not fully exclude interference with the normal mechanics of breathing. She concluded that from a pathological viewpoint the cause of death remained obscure.  However, the circumstances in which Ms Morgan went missing and in which her body was found supported the view that death was caused by a third party.  The cause of death was officially recorded as “Unascertained”.   

The applicant seeks to rely on the evidence of Dr Randall.  In addition, he wishes to admit additional material disclosed by the Crown Prosecution Service following a request by his previous solicitors.  This includes evidence relating to the forensic examination of the wrapping around the body and the tape securing it, and evidence that a small package found in the applicant’s car contained MDMA.  

DNA testing of the wrapping and tape did not demonstrate a match for the applicant.  From the underside of one piece of tape after peeling it back from the wrapping, a very low-level incomplete DNA result was obtained.  If it is assumed that the DNA originated from only one individual, it did not match the applicant’s profile nor that of the deceased.   

In relation to the plastic bag containing the MDMA recovered from his car, DNA from at least three people was found in the area of the bag’s grip seal.  The applicant could have been one of the contributors.  Given that the bag was found in his car, no further attempt was made to carry out a statistical evaluation of the match.  It is said on behalf of the applicant that there was no disclosure of the discovery of MDMA in his car before or during the trial.  In the written application to this court, Mr Vickers described this as troubling as issues were raised at trial about the police searches of the car.  Ms Morgan’s keys were said to have been found in the footwell only on the third search of the vehicle.    

In light of the developments since trial and the forensic evidence that has since come to light, the applicant seeks to argue that his conviction is unsafe, relying on three grounds. 

The first is that the fresh evidence, in the discovery of the body and consequent forensic scientific testing, goes to the issues of intention to kill, intention to cause serious harm and any possible sexual motive.  

The second ground is that there is fresh evidence and material undermining the circumstantial evidence against him, namely, the presence of MDMA in the victim’s body, the disclosure from the searching of his vehicle and the absence of any forensic evidence linking the body to the Applicant or his vehicle.  

The Applicant’s final ground is that had the material been available, accidental death and/or manslaughter would have been issues for the jury to consider.  

The application for leave to appeal is made significantly out of time. It was first lodged over five years after the discovery of the body. A statement from Mr Hussain, the applicant’s solicitor indicates that he was first instructed in April 2024 and was able to see the applicant in May of that year.  Prior to that, the applicant had instructed two other firms to advise on a possible appeal in light of the new evidence.  While there has been a significant delay in presenting this application, we are satisfied that this should not be held against the applicant.  It is apparent that he has sought to have his case reviewed and to obtain the necessary representation for that purpose.  It is right that we should consider the evidence that has come to light since the trial and Mr Fenhalls did not seek to persuade us otherwise. We have accordingly considered the applications for leave to appeal and to rely on fresh evidence on their merits.  

We consider that it is appropriate to admit the evidence obtained since trial in the form of the pathology report of Dr Randall and the bundle of disclosed material relating to other forensic testing for the purpose of considering the application for leave to appeal.  We were able to receive that evidence on paper without the need for any witness to be called. 

We have considered carefully whether the disclosed material gives rise to the need for any further investigation. In his written advice on appeal, Mr Vickers suggested further lines of enquiry, including seeking reports from experts in toxicology and DNA analysis. Although the advice said that application was made to the Registrar for such further expert reports as the Court considered appropriate, no attempt was made to pursue this, by seeking directions or otherwise, prior to the hearing.

We note from Mr Vickers’ advice that a pathology opinion had been obtained on the applicant’s behalf from Dr David Rouse, although this report was not provided to us. It appears that Dr Rouse did not disagree with Dr Randall’s opinion.

In relation to toxicology, Mr Vickers had not seen the report of Ms Jones at the time of advising. At our request, this was obtained and disclosed to the applicant’s representatives in advance of the hearing. While Mr Vickers indicated that the defence would wish to obtain a toxicology report if this Court allowed the appeal and directed a retrial, he acknowledged that such evidence was unlikely to be determinative. He did not suggest that the applicant should be afforded an opportunity to obtain toxicology evidence before this application was determined.

In relation to the DNA evidence, Mr Vickers concluded in his written advice that further testing of the wrapping / tape was not required, but thought that additional analysis of the DNA on the MDMA bag might be needed. He did not seek to develop any argument about the need for further evidence about the DNA found on the MDMA bag during the hearing. Indeed, the evidence about the MDMA found in the applicant’s car did not feature significantly in the arguments advanced on the application. We see force in the reasoning behind the decision not to attempt further statistical evaluation of the DNA on the bag. To the extent that the DNA evidence provided a link between the applicant and Ms Morgan’s ingestion of MDMA, this was not a point pressed by the Crown. In the circumstances, we were satisfied that this application could be considered without first requiring further investigation and/or evidence in relation to the DNA findings.

While Mr Vickers suggested in his skeleton argument that the fresh evidence raised issues requiring forensic scientific analysis in other fields, namely pathology, histopathology, archaeology and entomology, he confirmed in his oral submissions that these were matters which would be considered if the appeal were allowed. We were satisfied that the application for leave could properly be considered on the basis of the evidence now before us.

Mr Fenhalls submits that the new material does nothing to undermine the prosecution case, nor the safety of the conviction. It is argued that nothing in the pathology report is inconsistent with the verdict. Dr Randall’s evidence is one part of the evidence now available and must be seen in the context of all the other evidence.

The Crown also contends that nothing emerging from the scientific testing following the discovery of the body undermines the strong circumstantial case against the applicant. Indeed, it is argued that had the body been discovered before trial, the evidence that the applicant was responsible for Ms Morgan’s death would have been even stronger. The Crown do not accept the relevance of the findings relating to MDMA. 

Further, it is argued that there is still no evidential foundation for a route to a conviction for manslaughter rather than murder.   

While the Crown opened the case to the jury on the basis that the evidence suggested the applicant was having an affair with, or at least pursuing, Ms Morgan, at no point did they allege sexual assault or suggest there was any evidential basis for that. 

The Crown’s case that the applicant killed Ms Morgan did not depend upon motive. It certainly did not require the jury to conclude that the applicant had sexually assaulted her before killing her. Accordingly, sexual assault was not an issue before the jury. As such, Dr Randall’s evidence that there were no injuries of a sexual nature does not in any way undermine the safety of the conviction.

The jury were clearly directed that, if sure Ms Morgan was dead, they must go on to consider whether they were sure that the applicant caused her death by using unlawful violence and that he did so intending to kill her or at least cause her really serious injury.  They had to consider those issues in the absence of a body, and therefore without any assistance from an expert pathologist. 

While the pathology evidence now available does not establish the cause of death and does not identify any significant traumatic injuries, it does appear to eliminate natural or toxicological causes.  The evidence is consistent with, albeit certainly not conclusive for, a death resulting from restriction of the airway, whether by strangling or suffocation.   

As Dr Randall quite rightly says, the finding from the post-mortem must be viewed in the context of all the other evidence in the case, in particular the way in which the body was wrapped and disposed of.   

The jury had no evidence at all about the cause of Ms Morgan’s death.  They were satisfied on the basis of the evidence presented to them that the applicant had killed her and had done so intending to kill or cause really serious harm.   

The pathology evidence now available is neutral as to the cause of death.  To that extent, it has not significantly altered the evidential position from that before the jury.  Dr Randall provides evidence that death can occur through strangling or smothering without leaving specific autopsy findings.  Accordingly, the autopsy findings do not undermine the jury’s conclusions based upon the evidence presented at trial that the applicant killed Ms Morgan by using unlawful violence and that he did so intending to kill her or at least cause her really serious injury. 

The first issue for the jury was whether Ms Morgan was in fact dead.  That clearly falls away in light of the discovery of her body, albeit in theory an issue could remain as to the date of her death noting that the applicant was in custody from early February 2018.  The conclusion contained in Dr Randall’s report, taking account of the entomology evidence, is that it is likely that Ms Morgan died shortly after her disappearance.  The evidence emerging from the finding of the body is entirely consistent with the prosecution case that the applicant was responsible for her death and for disposing of her body.  Indeed, it adds strength to the circumstantial case presented by the Crown.  The location of the body appears to fit with the applicant’s unusual movements in Stevenage late at night, when he claimed to have been looking for Ms Morgan. 

We do not accept the suggestion made in Mr Vickers’ written submissions, although not pressed in his oral submissions, that the geographical location of the body requires further exploration of the issue of whether the applicant could have been expected to “physically deposit the body in that location without detection”. Although the applicant gave evidence at trial that he had mobility problems, there was evidence of him dancing at church functions and carrying a freezer.  The body was not buried but left in a location concealed by logs.  The Crown’s case as presented at trial was that the applicant had disposed of the body in some way such as to avoid detection. By their verdict, the jury accepted that.

In our view, the finding of the body supports the prosecution position that it was the applicant who was responsible for Ms Morgan’s sudden disappearance.  Certainly, the evidence about the finding of the body does not in any way undermine the Crown’s theory, as put before the jury.

The fact that there is no DNA evidence linking the applicant to Ms Morgan’s body does not materially change the position from that before the jury. At trial, his counsel placed reliance on the absence of any forensic scientific evidence that he had been involved in her death. The absence of material findings following the discovery of the body may be explained by the passage of time and/or a level of forensic awareness (demonstrated by the wrapping and concealing of the body in a way that allowed it to remain undetected for over nine months).

In relation to the DNA found on the underside of the tape securing the wrapping around the body, the finding was “a very low-level and incomplete DNA result, indicating a mixture of DNA”, about which it was said:

“Assuming the majority of the DNA obtained originated from one individual, this DNA does not match the corresponding components in the reference DNA profiles of Joy Morgan or [the applicant].

Given the limited information within this result, and the indication of a mixture of DNA, this result is not suitable for searching on the National DNA database. Direct comparisons could be made to nominated individuals, if required, however such comparisons may be of limited value.”

No attempt had been made to explore this aspect of the case further prior to the hearing. Mr Vickers sought to argue that the finding was “evidence of DNA from a 3rd party on a piece of tape taken from the body wrapping.” That is not what the report says. As Mr Fenhalls pointed out, there is no evidential basis for concluding that the majority of the DNA originated from one individual. It is apparent that limited information could be obtained from it. The report suggested that further investigation was unlikely to be fruitful. No doubt this is why Mr Vickers advised that further testing was not required.

We considered whether the DNA evidence required further exploration before determining this application. We concluded that it did not. It was apparent that additional investigation was unlikely to yield further evidence. That left a single low-level incomplete result which did not provide a match for the applicant, but neither could it exclude his involvement in disposing of the body.

The jury convicted the applicant on the basis of the circumstantial evidence, which as we have said has in fact been strengthened by the finding of the body. We do not consider that the DNA evidence undermines the strong circumstantial case against the applicant. It follows that it cannot cast doubt on the safety of the conviction.

The mere absence of forensic scientific evidence linking Ms Morgan’s body to the applicant is not capable of undermining the safety of his conviction.  As with the pathology evidence, the absence of supporting forensic scientific evidence would be a neutral factor, leaving a jury in much the same position as the jury at trial were when there was no body to examine. As is apparent from the summing up, the applicant relied at trial on the absence of any forensic scientific evidence to support the Crown’s case such as blood, DNA, hair, fingerprints, or any signs of a struggle despite extensive searches of relevant properties and the applicant’s car. The fact that the discovery of the body has not produced relevant scientific evidence does not materially change the position considered by the jury. There is nothing to exclude the applicant any more than there was at trial.

We do not consider that the evidence that Ms Morgan had MDMA in her blood, coupled with the MDMA found in the rucksack in the Applicant’s car is capable of undermining the circumstantial case against the applicant in any way.  We note that Mr Vickers described the evidence about MDMA which emerged after the trial as being of less significance than the pathology evidence. 

Had that evidence been available at trial, it may have had some bearing upon the evidence relating to the character of both the deceased and the applicant.  However, evidence linking the applicant to MDMA (the finding of it in his car in a bag bearing his DNA) and the finding that the deceased had the drug in her blood at the time of death would not have helped and may have harmed his position.  It is questionable whether his legal team would have pursued any line of enquiry casting doubt on Ms Morgan’s character arising out of her use of MDMA, when that would necessarily have involved consideration of the fact that there was evidence of the applicant’s possession of the drug.   

The applicant’s trial representatives maintain that evidence about the discovery of the MDMA in the applicant’s car could have been used to question officers about the searches of the applicant’s vehicle more generally and in particular that Ms Morgan’s keys were only discovered on the third search.  This point has not been developed further by Mr Vickers.  In circumstances where the applicant admitted having Ms Morgan’s keys, it is difficult to see where this point would have led. 

We consider that the evidence about MDMA strengthens the connection between the deceased and the applicant at the time of her death.  It is not capable of undermining the safety of his conviction.

To the extent that it was suggested that obtaining expert evidence in other areas, including archaeology and entomology, might now be required, this appeared to us to be unwarranted speculation.

The question for us is whether there is anything in the fresh evidence that may afford a ground for allowing the appeal. Taken as a whole, we do not consider that the evidence emerging from the discovery of the body and the subsequent scientific investigations could potentially undermine the circumstantial case advanced by the Crown. In those circumstances, we conclude that ground 2 is not properly arguable.

While the jury were not specifically required to consider the possibility that death had been accidental, they were instructed that they had to be sure that the applicant killed Ms Morgan through the use of unlawful violence.  As we have indicated in relation to Ground 1, they were sure of that and we do not consider that finding to be undermined by the evidence now available.  

The conclusion of Dr Randall that the cause of death was unascertained does not support the suggestion that the death may have been accidental.  There is no evidence of an overdose of MDMA or any other drug.  It is difficult to see how a healthy 20 year old could have died by accident without sustaining any obvious traumatic injury.  Further, the circumstances in which Ms Morgan disappeared and her death was then concealed very clearly point away from a possible accident.   

Given the applicant’s complete denial of any involvement in Ms Morgan’s death, the only possible basis for a verdict that he was not guilty of murder but guilty of manslaughter would have been that the jury were sure that he killed Ms Morgan through the use of unlawful violence, but not sure that he had the necessary intent at the time. 

That alternative could have been left by the judge notwithstanding that it was contrary to the applicant’s case that he had nothing to do with Ms Morgan’s death.  The applicant’s trial representatives say that they would have argued that manslaughter should have been left to the jury. 

Nevertheless, the question of intent was clearly left for the jury to decide.  They had no evidence as to the cause of death then, indeed no direct evidence of death.   

The question now is not whether manslaughter can be imagined as a theoretical possibility, but whether there is evidence upon which a properly directed jury could rationally conclude that the applicant unlawfully killed Ms Morgan but may not have intended to kill or cause really serious harm.

By their verdict, the jury found that the applicant was responsible for Ms Morgan’s death and for the concealment of her body. That finding is not undermined by the fresh evidence. The availability of pathological evidence that was not before the jury cannot itself provide a basis for treating the conviction as unsafe. The critical question remains whether the evidence now available arguably provides any real basis for a manslaughter verdict to be returned instead of finding the applicant guilty of murder.

The applicant has not sought to change his account following the discovery of the body.  He does not now admit that he was Ms Morgan’s killer.  He has provided no evidential basis whatsoever for a manslaughter verdict.  While it was not for him to disprove that he had the necessary intent, the prosecution were required to prove intent on the basis of the evidence they then had.  They did so to the satisfaction of the jury. 

The question for us now is whether the fresh evidence, in particular the pathology evidence, undermines the safety of the applicant’s conviction for murder.  We are not persuaded that there is anything in the pathology evidence which calls the jury’s verdict into question.

The jury reached that verdict without knowing how Ms Morgan had died. They were persuaded having considered all the other evidence in the case that the applicant killed her with the necessary intent. The pathology evidence does not provide any positive evidence that such intent was lacking. It may fairly be said that Dr Randall’s evidence could not of itself establish intent. But that is not the point. The Crown’s case did not depend upon establishing the likely cause of death. The fact that the cause of death still cannot be established following the discovery of the body does not assist the applicant. An unascertained cause of death is not the same as evidence of accidental death, nor is it positive evidence that murderous intent may have been absent.

It is possible for a victim to be killed by someone intending to kill or seriously harm them while leaving relatively minor signs on autopsy. Dr Randall’s evidence confirms that sustained pressure on the neck or obstruction of the mouth and nose can produce that outcome. Such mechanics are consistent with the jury’s verdict. It matters not that Dr Randall cannot positively say how Ms Morgan died. Her evidence does not exclude the necessary intent.

We do not consider that the fresh evidence provides a proper evidential basis for leaving manslaughter as an alternative verdict. Even assuming, contrary to that view, that a judge might be persuaded to leave manslaughter on the evidence now available, the applicant’s representatives could not advance any positive case in support of the lesser verdict given his complete denial of any involvement in Ms Morgan’s death. In those circumstances, it is very difficult to see how leaving manslaughter would have any bearing on the jury’s consideration of the questions they had to address and did address at trial.

We are accordingly satisfied that the fresh evidence does not arguably undermine the jury’s conclusions that the applicant killed Ms Morgan by unlawful violence and did so with the necessary intent. Nor does it provide an arguable evidential basis for manslaughter to be left as an alternative verdict.

For the reasons set out above, we conclude that the verdict that the applicant is guilty of murder is not arguably unsafe.

Accordingly, while we have granted an extension of time for seeking leave to appeal and received the fresh evidence in the form of Dr Randall’s report and the bundle of evidence relating to forensic scientific findings following discovery of the body, we refuse the application for leave to appeal.