Cleeland, R (on the application of) v Criminal Cases Review Commission

On 22^nd April 2014 the Criminal Cases Review Commission (hereafter, “the Commission”) notified Mr Paul Cleeland that they had decided not to refer his murder conviction to the Court of Appeal, Criminal Division (hereafter, “Court of Appeal”). This is an application by Mr Cleeland for judicial review of that decision. It follows a long series of unsuccessful attempts by Mr Cleeland, over many years, to overturn his conviction. Before summarising the history of those earlier proceedings, and considering the present application, it is convenient first to consider the position of the Commission.

The Commission was established by Part II of the Criminal Appeal Act 1995. By section 9(1) of that Act, the Commission “may at any time refer” a conviction to the Court of Appeal. By section 9(2) such a reference “shall be treated for all purposes” as an appeal against conviction under s1 of the Criminal Appeal Act 1968. The criteria for making a reference are set out in section 13 of the 1995 Act:

the Commission consider that there is a real possibility that the conviction … would not be upheld were the reference to be made,

the Commission so consider

an appeal against the conviction … has been determined or leave to appeal against it has been refused.

If a reference is made, the Court of Appeal are required by section 2 of the Criminal Appeal Act 1968 to allow an appeal against conviction if they think the conviction is unsafe. By section 23 of the 1968 Act, the Court of Appeal may receive fresh evidence “if they think it necessary or expedient in the interests of justice” to do so. Section 23(2) provides –

The effect of those statutory provisions, in a case in which an applicant requests the Commission to refer his conviction to the Court of Appeal on the basis of fresh evidence, was explained in R v CCRC ex parte Pearson[1999] 3 All ER 498. At p505J Lord Bingham CJ noted that “the judgment required of the Commission is a very unusual one, because it inevitably involves the prediction of the view another body (the Court of Appeal) may take”. He went on to say at 506A:

R v CCRC ex parte Pearson also establishes clearly that an applicant who seeks to challenge a decision of the Commission, refusing to refer his case to the Court of Appeal, faces a high hurdle. Lord Bingham CJ said at p505C “The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else”. He went on to say, at p505E –

That approach was confirmed in later cases including R v CCRC ex parte Hunt [2001] 2 Cr App R 76 and Mills and Poole v CCRC[2001] EWHC 1153 (Admin). Earlier in the long history of Mr Cleeland’s efforts to overturn his conviction, when a Divisional Court was considering in 2009 a previous application which he had made for judicial review, Scott Baker LJ said that he “would wish to emphasise the very high threshold that has to be crossed to persuade this court that a decision by the Criminal Cases Review Commission not to refer a case to the Court of Appeal (Criminal Division) is unlawful”: see R (Cleeland) v CCRC[2009] EWHC 474 (Admin) at paragraph 48.

I turn to the circumstances of Mr Cleeland’s conviction. In the early hours of 5^th November 1972, Terence Clarke and his wife returned to their home in Stevenage. As Mr Clarke got out of the car he was shot twice. The circumstances clearly pointed to the gunman, armed with a shotgun, having lain in wait for Mr Clarke’s return to his home. Mr Cleeland was charged with his murder. At his first trial, in April 1973, the jury were unable to reach a verdict. They were discharged, and a retrial ordered. At the conclusion of that retrial, on 25^th June 1973, Mr Cleeland was convicted of murder and sentenced to life imprisonment with a minimum term of 20 years. He in fact remained in prison for some 26 years before being released on licence. Throughout, he has continued to protest his innocence.

At trial, there was no real issue but that Mr Clarke was murdered by someone. The prosecution alleged that Mr Cleeland was the murderer. Mr Cleeland denied that allegation. The prosecution relied on a combination of direct and circumstantial evidence which they contended proved for sure that he was the murderer. Almost every aspect of the prosecution case was hotly disputed by Mr Cleeland. Without going into all the details of the case, I summarise the main features of the evidence as follows.

First, there was evidence that Mr Cleeland had a motive to kill Mr Clarke. Mr Clarke had given Mr Cleeland a beating, apparently because he suspected that Mr Cleeland had engaged in an affair with Mrs Clarke whilst Mr Clarke was in prison. In relation to that beating, a witness who knew Mr Cleeland gave evidence that she later saw Mr Cleeland with marks of injury, and that he said to her “I’ll get him for this. Not now but later. I’ll get him one dark night”. Mr Cleeland denied this evidence, and accused the witness of monstrous fabrication. He denied that he bore any grudge, saying that he and Mr Clarke got on reasonably well, and had a business relationship in which each provided work for the other. Mr Cleeland also said that on occasions after the beating he had worked on scaffolding with Mr Clarke and would therefore have had an opportunity to engineer an accident at height, in circumstances which would not cast any suspicion upon him, if he wished to kill Mr Clarke.

Secondly, Mr Cleeland admitted that he knew of Mr Clarke’s likely movements that night. He therefore had the requisite knowledge to enable him to ambush Mr Clarke in the way the murderer did. However, the evidence gave rise to an inference that others would no doubt have been able to make at least an informed guess about Mr Clarke’s movements.

Thirdly, evidence was given by Mrs Clarke, who had been present when her husband was shot. She could give only a rough description of the physique of the gunman. It was apparent that she had not formed an immediate view that it was Mr Cleeland, whom she had known for some years. She thought the gunman was wearing a suit.

Fourthly, one of Mr Cleeland’s neighbours gave evidence that she had been woken by dogs barking during the night of the 4^th/5^th November, had looked out of her bedroom window and had seen Mr Cleeland (whom she knew and could recognise) going into his house. That evidence was disputed by Mr Cleeland.

Fifthly, there was important evidence about the murder weapon. The fatal wounds were inflicted by 2 shots fired from a shotgun. At the scene, the police found a number of red, white and green cartridge wads. Later in the course of the investigation, a double barrel shotgun was found not far from the scene of the shooting, with 2 discharged cartridges in it. Other, unused, cartridges were found at a separate location, again not far from the scene of the shooting. All these cartridges were of a brand known as Blue Rival. The unused cartridges contained wadding of the same distinctive kind as the wads found at the scene. The prosecution’s expert witness Mr McCafferty – a principal scientific officer at the Metropolitan Police’s forensic science laboratory - gave evidence that the wads were manufactured in Italy (hence the distinctive colours) and that he had only come across similar wads on two occasions in his 25 years of experience as a ballistics expert. Mr McCafferty’s evidence also identified the recovered shotgun as the murder weapon. He gave his opinion as to the distance from which the fatal shots had been fired, and in the course of doing so expressed the view that one of the barrels had been “choked” and thus had a reduced bore.

The shotgun found not far from the scene, and identified by Mr McCafferty as the murder weapon, was identified by a witness Mr Sell as one which he had sold to Mr Cleeland on 4^th November 1972. Mr Sell’s evidence about that transaction was supported in material respects by his father and his wife.

As to the cartridges, a witness Mr Graham gave evidence that on 4^th November Mr Cleeland had asked him to buy a box of shotgun cartridges. Another witness, Mr Newton, gave evidence confirming that conversation. Mr Graham said he thereafter bought a box of 25 Blue Rival cartridges, using money given to him by Mr Cleeland, and provided them to Mr Cleeland. Mr Newton further gave evidence that at about 11pm on 4^th November Mr Cleeland had come to his home and asked him to look after a box of cartridges, a request which Mr Newton declined. Both Mr Graham and Mr Newton were men with previous convictions, about which the jury heard.

All of this evidence was disputed by Mr Cleeland. He alleged that evidence as to the recovery of items at or near the scene had been falsely concocted by police officers who had “planted” the items concerned. He accused Messrs Sell, Newton and Graham of lying. He denied any connection with either the shotgun or the purchase of cartridges. He pointed to contradictory features of the evidence, for example from the proprietor of the shop which sold the cartridges. He disputed the prosecution’s expert evidence which identified the recovered shotgun as the murdered weapon. He accused Mr McCafferty of giving evidence about the shotgun when he had not in fact examined it at all. The basis for that surprising attack on the witness appears to have been a deficiency in the record keeping of the transmission of the gun to the laboratory at which Mr McCafferty said he had examined it.

The jury heard all the evidence on these issues, including that which Mr Cleeland gave, and they received an appropriate warning from the trial judge in his summing up that they should look at the evidence of Messrs Graham and Newton “with some considerable care” in view of their previous convictions and admitted drug addiction. It was for the jury to decide which evidence they found truthful, reliable and accurate.

Sixthly, there was evidence that a Wrigley’s chewing gum wrapper was found at the scene of the crime. There was further evidence that Mr Cleeland had been given similar gum by his wife when she visited him at a police station, and that he had chewed it. As the trial judge said in his summing up, that would in the ordinary way be evidence of minimal, if any, importance. However, it acquired greater significance because Mr Cleeland denied that he had ever chewed any such gum. Again, it was for the jury to decide where the truth lay and, if they were sure that Mr Cleeland was lying, to decide why he was doing so.

Seventhly, the jury heard evidence that Mr Graham, the man who had purchased the cartridges, was for a time in custody at the same police station as Mr Cleeland. Police officers gave evidence of overheard cell conversations between the two men, in the course of which Mr Cleeland was alleged to have made highly incriminating remarks. All that evidence was disputed by Mr Cleeland, who said that no such conversation had taken place and accused the officers concerned and Mr Graham of giving perjured evidence.

Eighthly, a police officer gave evidence of Mr Cleeland’s reaction when the officer told him of the finding of cartridges in a shotgun near the scene of murder and of the account given by Mr Graham to the effect that he had bought cartridges for Mr Cleeland. This too was disputed.

Finally, and importantly for present purposes, expert evidence was given about the finding of lead residue on certain items of clothing which were admittedly the clothing of Mr Cleeland. That evidence was given by Mr McCafferty for the prosecution and by an expert witness Mr Lyne for the defence. The test which had been used was a chemical test using sodium rhodizonate. The presence of lead residue revealed by that test was alleged by the prosecution to be consistent with the recent discharge of a gun and therefore supportive of the allegation that Mr Cleeland was the murderer. An alternative explanation put forward by the defence was that the nature of Mr Cleeland’s work, as a painter and decorator or a supervisor of painting and decorating, brought him into contact with lead-based paint.

There is no transcript of the evidence which those witnesses gave. There is however a transcript of the summary of their evidence which the trial judge, Geoffrey Lane J (as he then was), gave in the course of his summing up. It is appropriate to quote all of what the learned judge said about this evidence, starting at p82 of the transcript:

Mr Cleeland’s defence was one of alibi. He gave evidence to the effect that he was in his own home from about 9pm on the night of the shooting. The jury had to assess that evidence against the evidence of Mr Newton, who had told the jury that Mr Cleeland visited him at about 11pm that night. Mr Cleeland further gave evidence that he went to bed at about half past midnight, and did not get up until he was woken by the arrival of police officers who arrested him the following morning. The jury had to assess that evidence against the evidence of the neighbour who said she had seen Mr Cleeland going into his house in the early hours.

I now turn to a summary of the various proceedings which Mr Cleeland has taken since his conviction.

Mr Cleeland’s initial application for leave to appeal against conviction was referred to the full court by the Registrar of Criminal Appeals and was heard by the Court of Appeal in February 1976. Two grounds were argued. First, it was contended that Geoffrey Lane J had wrongly failed to direct jury that the prosecution witnesses Newton and Glover should be treated as accomplices. The Court of Appeal found no substance in that point: Mr Cleeland had not alleged that either of those men was in fact an accomplice to the killing, and Geoffrey Lane J had given a clear warning to jury about the need to consider their evidence with great care.

In pursuance of his second ground, Mr Cleeland wished to call as a witness a Mr Nash, who had been in police custody at the relevant time and – it was said - could give fresh evidence that there had been no such conversation between Mr Cleeland and Mr Graham as the prosecution alleged. The Court of Appeal heard Mr Nash’s evidence. It became clear that he had previously made a 16-page witness statement which contradicted his evidence, and there were other features of the evidence which greatly damaged his credibility. The court concluded that Mr Nash’s evidence to them was not credible. In those circumstances the application for leave to appeal was refused.

On 3^rd March 1986 Mr Cleeland petitioned the Home Secretary to refer his case back to the Court of Appeal. That petition was refused on 17^th March 1987. The petition was renewed and was again refused 19^th July 1991. Two unsuccessful applications were made for judicial review of the Home Secretary’s decisions in 1991 and 1992. Further unsuccessful petitions to the Home Secretary followed in 1994, 1995 and 1996.

Mr Cleeland then applied to the Commission in 1997 to refer his case to the Court of Appeal. The Commission initially refused his application. Mr Cleeland successfully sought judicial review of that decision, which was quashed. The Commission was directed to reconsider Mr Cleeland’s case. The Commission thereafter obtained a report from a forensic scientist Mr Spencer who reviewed Mr McCafferty’s evidence relating to the issue of whether the recovered shotgun was the murder weapon. In his report, Mr Spencer gave reasons for concluding that Mr McCafferty was mistaken when he described the shotgun as having one barrel choked, and therefore mistaken in concluding that both shots had been fired from the same distance. The case was then referred by the Commission to the Court of Appeal, on the sole basis of the reliability of a number of aspects of Mr McCafferty’s evidence. The appeal (the second appeal) was heard on 13^th February 2002.

Although only referred on that single ground, the appeal as presented to the full court relied on a total of 20 grounds drafted by counsel and argued by Mr Edward Fitzgerald QC. A number of these challenged Mr McCafferty’s evidence on matters including whether the recovered shotgun was in full working order, and whether Mr McCafferty had examined it as he said he had. Most importantly for present purposes, Ground 12 criticised Mr McCafferty’s evidence on the ground that, by the date of his testing of Mr Cleeland’s clothes, there was a more sophisticated test available, which could differentiate between lead caused by firearms and lead caused by environmental contamination, but which was not used by Mr McCafferty. This was said to cast serious doubt on the reliability of all the evidence based on the presence of lead. In addition to Mr Spencer’s evidence about Mr McCafferty’s findings, further expert evidence was given by a witness Mr Pryor, a senior firearms examiner who had been a junior member of the laboratory staff at the time of the initial investigation of the murder.

The Court of Appeal rejected all the grounds of appeal, and the appeal was dismissed. As to Ground 12, the court said (at paragraph 108) –

On 6^th September 2002 Mr Cleeland made a second application to the Commission, relying on a decision in an unrelated case which was said to have a knock-on effect supportive of his wish to appeal. This was refused on 31^st March 2003.

A third application was made on 22^nd February 2007 on further grounds relating to the evidence of Mr McCafferty. Mr Cleeland relied on reports from an expert witness Mr Gibbs. On 29^th April 2008 the Commission refused to refer. Mr Cleeland was granted permission to apply for judicial review of that decision. His application was heard and refused by a Divisional Court (Scott Baker LJ, and David Clarke J) on 19^th February 2009.

The Divisional Court noted that as presented at trial, the finding of lead on Mr Cleeland’s non-work clothing was adduced as a factor capable of supporting the prosecution case. It was contended by Mr Cleeland that the jury were misled and misdirected by the summing up of that evidence, in the passage which I have quoted above. It was submitted that on the information now known – as set out in the evidence of Mr Gibbs – the testing which had been done on Mr Cleeland’s clothes was no more than a screening test revealing the presence of lead in some form, with no attempt to distinguish between lead which might have arisen from the firing of a gun, and lead from other extraneous causes; that the presence of lead could have arisen innocently from environmental contamination or from contact with lead-based paint at work; and that the evidence was wrongly put before the jury as evidence proving that Mr Cleeland had fired the fatal shots.

The Divisional Court did not accept the argument. First, it concluded that Mr McCafferty’s evidence at trial had not asserted that the lead which he found must have come from the firing of a gun. The court noted that although there was no transcript of the evidence which had been given at the retrial, there was a record of Mr McCafferty’s being cross-examined at an old style committal and a record of his evidence at the first trial. It was apparent from each that Mr McCafferty was not asserting that the lead found on Mr Cleeland’s clothes must have been the residue from the firing of a gun. At the committal, for example, he had said that it could have been left by a gun being wrapped up in an item of clothing but “I don’t say it must have come from a gun”. At the first trial he had given evidence that the lead on the coat could have come from a gun, but could have come from a number of sources. As David Clarke J observed at paragraph 28 of his judgment, if Mr McCafferty had given evidence to the jury in significantly different or more assertive terms at the retrial, he could and would have been cross-examined about his evidence at previous hearings.

Secondly, the Divisional Court held there was no ground on which it could be argued that Mr McCafferty’s evidence about the clothing was inadmissible.

Thirdly, the court noted that the point which Mr Cleeland was seeking to raise was not wholly new, and that many aspects of Mr McCafferty’s evidence had already been criticised.

Lastly, the court noted that the strands of circumstantial evidence were highly incriminating, a factor which was relevant to the Commission’s task of deciding whether there was a reasonable possibility that the Court of Appeal would quash the conviction. As I have said above, Scott Baker LJ emphasised the very high threshold which an applicant must surmount. The material relied on by Mr Cleeland was held not to meet this high requirement, and the application for judicial review was therefore refused.

I add for completeness that Mr Cleeland’s challenges to his conviction have also been raised in Parliament on a number of occasions.

Against that background, I turn to the present application for judicial review of the Commission’s decision of 22^nd April 2014 not to refer Mr Cleeland’s case to the Court of Appeal for what would be a third appeal against his conviction. I begin by summarising in chronological sequence the matters which have arisen since February 2009, and on which reliance is now placed.

In a further report dated 2^nd August 2013, Mr Gibbs referred to evidence which had been given to Lord Saville’s Inquiry into the shootings in Northern Ireland on Bloody Sunday, and about which Lord Saville had reported in March 2010. Mr Gibbs pointed to evidence given by an expert witness Dr Martin, to the effect that sodium rhodizonate should only be regarded as a screening test for the presence of lead. He further pointed to Dr Martin’s evidence that when particles of gunshot residue are present, the application of the sodium rhodizonate test reveals brown to orange-red colouration from barium. Mr Gibbs noted that Mr McCafferty had not referred to any such colouration in his evidence. Mr Gibbs concluded that the absence of any such reference could mean that no particles of barium (or compounds thereof) were present on Mr Cleeland’s clothing, which could in turn indicate that gunshot residue was not present on the clothing and that the traces of lead had an innocent explanation.

That report was provided by Mr Cleeland’s solicitors to the Commission. The Commission accepted that Mr Gibbs’ opinion should be treated as new evidence, but took the view that it related to only one aspect of the evidence at trial, and that the other evidence from multiple sources was highly incriminating. The Commission therefore decided on 27^th September 2013 that it did not consider there was any real possibility that the Court of Appeal would quash the conviction, and it was accordingly not minded to refer the case for an appeal.

Mr Cleeland’s solicitors then provided a further report by Mr Gibbs dated 2^nd December 2013. In this further report, Mr Gibbs attacked the evidence of Mr McCafferty as “seriously flawed”: he asserted that Mr McCafferty had either failed to perform the sodium rhodizonate test properly; or had seen orange-red particles, but failed to report the fact; or had not seen orange-red particles, which would be consistent with the lead found on the clothing having an origin other than gunshot residue. He said that in their evidence at trial, both Mr McCafferty and Mr Lyne had failed to consider the possibility of secondary or tertiary transfer of lead deposits from Mr Cleeland’s work clothes to his other clothes. He attacked the evidence given to the Court of Appeal in 2002 by Mr Pryor, because it failed to mention that both nuclear magnetic resonance testing and atomic absorption testing were in use and available at the time when Mr McCafferty was conducting his testing by sodium rhodizonate alone. He referred again to the Saville Inquiry into the deaths on Bloody Sunday. In the course of the earlier Widgery Inquiry into those deaths, in 1972, evidence had been given to the effect that the finding of lead on the hands and clothing of victims was consistent with their having discharged a firearm, handled a firearm or stood close to someone discharging a firearm. In the light of further evidence from an expert witness Dr John Lloyd, Lord Saville concluded that environmental factors could give rise to contamination, that the testing which had been used and conclusions reached by the Widgery Inquiry were unreliable, and that accordingly there could be no finding that any victim had fired, handled or been near to the firing of, a weapon. Mr Gibbs’ view was that Mr McCafferty had failed to perform tests which could have exonerated Mr Cleeland, that “the adducing of evidence of lead alone and inferring that it originated from the firing of a gun was either deliberately obfuscating or scientifically inept”, and that the Court of Appeal had been misled by the way these issues were addressed before it. He opined that there was no scientific or technical evidence which linked the shotgun to Mr Cleeland and no scientific or technical evidence which specifically linked the shotgun to the murder “save only a tenuous association of wads of a similar nature”.

The Commission indicated that it was willing to consider that further report as the basis of a fresh application. However, Mr Cleeland issued a claim form on 20^th December 2013 seeking to quash the decision of 27^th September. That claim was premature, as Collins J indicated when he adjourned consideration of the application for permission on 31^st January 2014. Mr Cleeland thereafter made further representations to the Commission by letters dated the 11^th March, 24^th March and 8^th April 2014, the last of which enclosed a further report by Mr Gibbs dated the 3^rd April.

On 22^nd April 2014 the Commission made a final decision not to refer the case to the Court of Appeal. The Commission did not dispute the content of Mr Gibbs’ reports, and had not sought to obtain any further expert evidence in the light of those reports, but concluded that his evidence did not raise anything new that could persuade the Court of Appeal to quash the conviction. The Commission noted Mr Gibbs’ opinion, but also noted the considerable body of other evidence against Mr Cleeland (which was summarised in the decision letter). The Commission remained of the view that even if Mr Gibbs’ evidence were to be accepted in its entirety, and the conclusion reached that there was no reliable evidence to link Mr Cleeland’s clothing with the recent discharge of a gun, the other evidence in the case was such that there was no real possibility that the Court of Appeal would quash the conviction.

On 3^rd July 2014 Burnett J (as he then was) granted Mr Cleeland permission to apply for judicial review of that decision on four grounds, but refused his application for permission on a fifth ground. That fifth ground has not been the subject of any further application, and I need say no more about it.

Mr Cleeland submits in Ground 1 that the Commission’s decision, refusing to refer the case to the Court of Appeal, is unreasonable and/or unlawful because it is in breach of its statutory duty to investigate new evidence and argument where there has been a re-application supported by new material. Reliance is placed by Mr Cleeland upon the stated aims of the Commission to enhance public confidence in the criminal justice system, to bring justice to those wrongly convicted and to investigate cases with thoroughness and care. He argues that the Commission has failed to consider or take into account the new material, has failed to provide any basis for its claimed view that Mr Gibbs’ evidence would make no difference to the outcome of an appeal, and has failed to provide adequate reasons for its decision.

Ground 2 alleges that the Commission has unlawfully and/or unreasonably failed to investigate three areas of new evidence and argument which, it is contended, should have led it to decide that the Court of Appeal would on a referral be likely to find Mr Cleeland’s conviction unsafe. The three areas are, the expert evidence of Mr Gibbs; the evidence in the conclusions of the Saville Inquiry in 2010 which undermines the reliance on sodium rhodizonate testing; and the written submissions to the Commission of Mr Edward Fitzgerald QC. Mr Cleeland submits that the Commission has failed to investigate this new evidence and argument. He argues that had the Commission done so, it could not have reached the conclusion that the safety of the conviction was not affected.

Ground 3 alleges that the Commission placed too much weight on other evidence in the case against Mr Cleeland. In particular, it is submitted that the Commission wrongly preferred what are said to be the views of “a non-expert scientist” Mr McCafferty to the substantial body of expertise from Mr Gibbs, whose conclusions had not been challenged. It is submitted that no fair-minded decision-maker could conclude that Mr Gibbs’ evidence does not affect the safety of the conviction.

Ground 4 alleges that the Commission took into account irrelevant factors, such as the potential wider effects (in relation to other historic cases involving evidence relating to firearms discharge residue) of a referral to the Court of Appeal and a consequent quashing of Mr Cleeland’s conviction, and failed to take into account the argument that the Commission had itself misled the Court of Appeal in 2002 by the manner in which it dealt with Mr Cleeland’s previous applications. Reliance is placed on a number of high-profile cases in which convictions were quashed on grounds relating to scientific evidence. Overall, it is submitted that the new evidence and argument could reasonably cause the Court of Appeal to view Mr Cleeland’s conviction as unsafe. It is said that all the other circumstantial evidence in the trial was challenged and it is submitted that the case against Mr Cleeland as a whole cannot be regarded as a strong one.

At an early stage of the hearing, Mr Cleeland raised an initial concern about the court having any regard to the 2009 decision of the Divisional Court, his argument being that that decision was contradictory of the earlier decision of a superior court, namely the Court of Appeal in 2002. He contended that the hearing should be adjourned so that he could argue before the Supreme Court that the 2009 decision should be overruled. I do not accept that the decisions were mutually contradictory; but in any event, the hearing before the Divisional Court in 2009 necessarily forms part of the history of this case, and indeed the approved transcript of the judgments had been included by Mr Cleeland’s solicitors in the bundle as a relevant document. That decision, as Mr Aspinall rightly submitted, formed part of what the Commission had to take into consideration in forming its view as to the likely response of the Court of Appeal to a further referral of this case. In those circumstances, there was no legal reason why this court should not consider the 2009 decision. In any event, Mr Cleeland accepted that he had sought unsuccessfully in 2009 to ask the Divisional Court to certify a point for the House of Lords. It was plainly not possible for him to renew that application. A separate reasoned decision was given rejecting the application for an adjournment: see [2014] EWHC 4594 (Admin). Mr Cleeland accepted that decision and proceeded with his submissions, which he argued with commendable clarity and considerable skill. I summarise his submissions as follows.

Mr Cleeland submits that at his trial, the evidence as to the finding of lead on his clothing was in reality treated as evidence of contact with a firearm, and not merely as evidence of the presence of lead. He submits that in the absence of any more sophisticated testing to establish whether or not barium and antimony were present, Mr McCafferty’s evidence should not have been admitted for that purpose. He goes on to argue that the same error has been repeated throughout the long history of the case, including at the appeal to the Court of Appeal in 2002. The fresh evidence and argument on which he seeks to rely would, he contends, expose that error and lead to the conclusion that his conviction is unsafe.

As part of that theme, Mr Cleeland submits that Mr McCafferty misled the court at trial, and Mr Pryor misled the Court of Appeal in 2002. The basis of that latter argument is that an article published in the Journal of Forensic Sciences in about 1965 shows that neutron activation analysis was available at the time: Mr Cleeland submits that Mr Pryor was therefore wrong to give evidence in Court of Appeal which effectively limited the testing available at the time to the sodium rhodizonate test. It is to be noted that the article on which Mr Cleeland relies was written with specific reference to detecting firearms discharge residue on the hand after the firing of a revolver. The relevant passage in the article stated that recent work had shown that traces of antimony and barium on the back of the hand could be detected and measured “by the application of neutron activation analysis. Investigations employing similar methods are being undertaken at the Atomic Weapons Research Establishment, Aldermaston, on behalf of the Home Office”.

Mr Cleeland relies, for a similar purpose, on testimony to the Saville Inquiry to the effect that in Northern Ireland an atomic absorption test for firearms discharge residue came into use during the summer of 1972.

Mr Cleeland submits that the sodium rhodizonate test was only a screening test and that Mr McCafferty’s evidence about the finding of lead should therefore have been regarded as inadmissible. As authority for that submission he relies on R v Barry George[2007] EWCA Crim 2722. In that case, a conviction was quashed after the Court of Appeal had heard fresh evidence relating to the reliability of the prosecution’s evidence at trial about the conclusions to be drawn from the finding on the appellant’s clothing of a single particle of firearms discharge residue.

In an alternative submission, Mr Cleeland argues that the sodium rhodizonate test was in fact capable of revealing barium, and that the inference should be drawn, from Mr McCafferty’s failure to say anything about that in his evidence, that no barium was present in the lead deposits found on Mr Cleeland’s clothing.

Mr Cleeland relies on written submissions which were made on his behalf by Mr Fitzgerald QC in May 2013. These challenged the Commission’s reasons for not referring the case to the Court of Appeal at that stage, and included a submission that, in the light of the evidence given to the Saville Inquiry, Mr McCafferty’s evidence at trial was inadmissible for the purpose for which it was adduced. Mr Cleeland contends that the Commission has failed to consider or address these submissions.

For the Commission, Mr Aspinall submits that the Commission has acted within its statutory duty in accepting the evidence of Mr Gibbs as new, and in considering whether it would afford a real possibility that the conviction would be quashed. It is submitted that the decision that there was no such real possibility was both reasonable and lawful. As to Mr McCafferty’s evidence, he argues that it was never placed before the jury as conclusive evidence of the presence of firearms residue. He argues that the sodium rhodizonate test is a reliable test for the presence of lead. At trial, the alternative possible explanations for the presence of lead on Mr Cleeland’s clothing were before the jury. Mr Aspinall accepts that it would have been wrong for the prosecution at trial to have asked the jury to treat the sodium rhodizonate test as conclusive evidence of the presence of firearms discharge residue, but submits that that was not done. He contends that clear reasons have been given for the Commission’s decisions. He submits that this case must be considered on its own facts, and therefore decisions in other cases cannot assist Mr Cleeland. He submits that in making the prediction which statute requires it to make, as to what view the Court of Appeal would take if the case were referred to that court, the Commission could properly take into account the strength of the other evidence against Mr Cleeland and the outcome of the previous appeals.

Mr Aspinall points to the comprehensive judgment of the Court of Appeal in 2002, in which 20 grounds of appeal were considered and all were rejected. He submits that the Commission was entitled to take into account the findings of the Court of Appeal that the strands of non-scientific evidence were properly before the jury, and that the jury were entitled to find that the gun which Mr Cleeland was said to have purchased was the murder weapon.

Mr Aspinall submits that the decision of the Divisional Court in 2009 was an important judicial analysis of points now being raised again, and that a consideration of that decision properly informed the Commission’s view. The court in 2009 had been aware of all the arguments about the limits of what could be established by the sodium rhodizonate test, and had rejected Mr Cleeland’s submission as to the admissibility of Mr McCafferty’s evidence. Mr Aspinall relies on a passage at paragraph 36 of the judgment in which David Clarke J said –

Mr Aspinall submits that the Commission was therefore entitled to conclude that, even if Mr Gibbs’ scientific evidence were accepted by Court of Appeal, the conviction would still not be found to be unsafe.

I do not think it necessary or helpful to rehearse every single point which has been raised and developed in the written and oral submissions, though I have considered them all and taken them all into account in reaching my conclusions, to which I now come. I bear in mind that this court is not at this hearing deciding an appeal: it is being asked to review the discharge by the Commission of its statutory duty to consider whether there is a real possibility that, if there were a further appeal, the Court of Appeal would not uphold the conviction.

It is in my judgment important to remember what was the evidence at trial about the finding of lead deposits on Mr Cleeland’s clothing. I have already quoted the passage in Geoffrey Lane J’s summing up to the jury. It has not been submitted by Mr Cleeland that the passage was an inaccurate summary of the evidence. Although Mr Cleeland argues to the contrary, it is in my view clear from that passage that the evidence of Mr McCafferty was not put forward as capable of being in itself conclusive evidence that Mr Cleeland had fired a gun, let alone conclusive evidence that he had fired the fatal shots from the relevant shotgun. It was evidence of the presence of lead, a possible source of which was the lead deposits which contaminate the outer surface of a gun when it has been fired. The expert evidence of Mr Lyne, called by the defence, did not challenge the finding of lead deposits, and the possible explanations for those deposits were clearly before the jury for their consideration. The need to consider whether there had been any possible cross-contamination of any item relied upon in support of the prosecution case would surely have been apparent to both Mr McCafferty and Mr Lyne, and it is not suggested by Mr Cleeland that any significant point was in fact made in this regard. In addition, and importantly, the jury had to consider the expert evidence about the finding of lead residue as part of the overall evidence in the case: Mr McCafferty’s evidence was but one strand of the circumstantial evidence. In considering the evidence as a whole, the jury had to assess the truthfulness, reliability and accuracy of the evidence of a number of witnesses, including Mr Cleeland and witnesses called by him. I reject Mr Cleeland’s submission that the case against him as a whole could not be regarded as a strong one. If the jury accepted key parts of the evidence relied on by the prosecution, and rejected Mr Cleeland’s evidence of alibi as untrue, they were plainly entitled to regard the prosecution case as very strong. That would be so even if the jury were not sure that the finding of lead on his clothing was of any significance at all.

It is also important to remember the limitations of the evidence which Mr Gibbs could give if his reports were adduced before the Court of Appeal as fresh evidence. Mr Cleeland relies heavily on the fact that the Commission had accepted the reports of Mr Gibbs when making the decision which is challenged. However, for all his criticisms of Mr McClelland, Mr Gibbs’ evidence – even taken at its highest - could not exonerate Mr Cleeland from involvement in the murder, nor in itself could it cast doubt on any of the other evidence against him. At most, Mr Gibbs’ evidence could only reinforce the evidence which the jury in any event heard from Mr Lyne as to other possible sources of lead deposits on Mr Cleeland’s clothing. The emphasis on the evidence given to the Saville Inquiry as to possible environmental contamination by lead does not in my view take Mr Cleeland’s case any further, because Mr Lyne gave evidence at trial about that possibility. In the course of his submissions, Mr Cleeland told this court that because of the supervisory nature of some of his work he would often be smartly dressed, and that the presence of lead deposits on his suit can be explained in that way. If he offered that explanation in his evidence, the jury were able to consider it. If he did not, it is much too late now to put it forward.

In those circumstances Mr Cleeland cannot in my view derive the assistance which he seeks from the decision in R v Ward[1993] 1 WLR 619, that there is an obligation on an expert witness to disclose evidence of any tests which he had carried out, or of which he had knowledge, which tended to cast doubt on his opinion. In the evidence and information before this court, there is no evidential basis for suggesting that Mr McCafferty concealed, or withheld, any material fact or matter which was within his knowledge at the time.

As part of his attack upon the evidence of Mr McCafferty, Mr Cleeland submits that Mr McCafferty’s evidence as to ballistics in this trial was later discredited, and that his evidence as to the finding of lead should similarly be regarded as discredited. I do not accept either the premise or the conclusion of that argument, which in any event overlooks the fact that Mr Lyne’s evidence did not significantly differ from Mr McCafferty’s as to the finding of lead. Several of the grounds of appeal argued before the Court of Appeal in 2002 related to Mr McCafferty’s evidence, but none succeeded. The Court of Appeal accepted that there had been justified criticism by Mr Spencer of some of Mr McCafferty’s methods and assumptions, and that Mr McCafferty was mistaken in his view that one barrel of the shotgun was choked, but did not find that any error on Mr McCafferty’s part had misled the jury. On the contrary, the Court of Appeal found that Mr Spencer’s evidence broadly affirmed Mr McCafferty’s evidence to the jury as to the distance from which the fatal shot was fired, and as to the evidence being consistent with the Blue Rival cartridges, fired from the shotgun, being used in the crime.

Mr Cleeland further relies upon the opinion of Mr Gibbs – not challenged by the Commission - that there was no scientific or technical evidence which linked the shotgun to Mr Cleeland. Using that springboard, he contends that the police must have had doubts about their case, because they took steps – which he explained in detail in the course of his submissions - to investigate other guns. That, in my view, is a bad point: the police were bound to investigate other lines of enquiry, but they found nothing which in the end assisted Mr Cleeland. The argument is in any event inconsistent with the case which he advanced before the jury, to the effect that the police planted the shotgun which was wrongly said to have been used in this murder.

Mr Cleeland seeks to derive support for his arguments from the fact that the 2002 appeal was heard because the Commission (as it said in its statement of reasons) “decided to refer the conviction to the Court of Appeal on the sole basis of Mr McCafferty’s inaccurate and apparently unreliable evidence as an expert witness”. This, I am afraid, is a misunderstanding by Mr Cleeland. In deciding to refer, the Commission was considering the possibility that the evidence then available to cast doubt on Mr McCafferty’s testimony might cause the Court of Appeal to regard the conviction as unsafe. It was not (as Mr Cleeland perhaps thinks) a definitive finding that Mr McCafferty’s evidence was unreliable in any respect, let alone in all respects. Nor can it be regarded (as Mr Cleeland suggests) as a finding that the other evidence in the case was insufficient to support the conviction.

I believe Mr Cleeland may similarly have misunderstood the status of Mr Fitzgerald’s written submissions to the Commission, which he was inclined to treat as being determinative of the issues covered by those submissions. The opinion of leading counsel was of course entitled to respect; but it was for the Commission to form its own view as to whether there was a real possibility that the Court of Appeal would regard the conviction as unsafe, and it was not obliged to accept the opinion of counsel however distinguished. I reject the contention that the Commission failed to consider Mr Fitzgerald’s submissions: no such failure can be inferred from the mere fact that the Commission reached a contrary conclusion, and I cannot accept that the Commission ignored what was in effect a skeleton argument in support of Mr Cleeland’s case.

The fourth ground of appeal is in my view based in part upon another misunderstanding. The Commission referred the case to the Court of Appeal, but at the hearing in 2002 it was the prosecution which responded to the appeal and argued against Mr Cleeland’s grounds. It cannot possibly be said that the Commission misled the court in any way.

As to Mr Cleeland’s repeated submissions that he has for many years been thwarted by the establishment, because if his appeal were to succeed it would cast doubt on the safety of convictions in other cases in which Mr McCafferty gave evidence, I can only say that I see no basis for the assertion, and that in any event no such consideration affects my judgment in this case. I reject, as wholly without foundation, Mr Cleeland’s submission that the Commission made its decision simply because it wished to cover up past mistakes.

Mr Cleeland argued that if the evidence of Mr McCafferty had been excluded, as he says it should have been, “the other evidence was inadmissible”. That is not an argument which could be sustained. Indeed, Mr Cleeland came to accept in the course of the hearing that his submissions really went to the weight of the evidence, not its admissibility. Mr Cleeland then treated the other prosecution evidence at trial dismissively, on the basis that it was all disputed by him, but in my view it is very significant. Mr Cleeland had, and has, arguments to advance about each strand of the evidence, but there was a substantial body of evidence which the jury by their verdict must have accepted as truthful and reliable. Even if there had been no evidence of lead residue on the clothing, there would have been a compelling case against Mr Cleeland. Nothing has changed in this regard: none of the criticisms of Mr McCafferty’s evidence can affect the evidence from a number of different sources to the effect that Mr Cleeland bore a grudge and had vowed revenge against Mr Clarke, that he bought the shotgun and cartridges with which Mr Clarke was murdered, and that he effectively confessed to the crime. Mr Gibbs’ opinion as to the absence of scientific or technical evidence to link Mr Cleeland with the murder weapon neatly illustrates the limitations of the evidence he could give, as a scientist, in a circumstantial case: the jury might accept there was no scientific evidence of such a link, but would be entitled to accept the non-scientific evidence as proving for sure that Mr Cleeland had recently purchased the murder weapon, and had used it to shoot Mr Clarke. In reaching its decision, the Commission was entitled to take into account all the evidence, including the non-scientific, and indeed was correct to do so.

The conclusion of the Commission as to the strength of the other evidence in the case is said by Mr Cleeland to be inconsistent with its earlier decision to refer the case to the Court of Appeal on grounds relating only to the ballistic evidence. I am not persuaded by that argument, in particular because the Commission in 2013 was obliged to make a fresh analysis of the likely decision of the Court of Appeal, and in doing so was bound to have regard to the views which that court had expressed in 2002 about the strength of the non-scientific evidence.

In the course of the hearing, Mr Cleeland referred to the cases of R v Barry George[2007] EWCA Crim 2722, R v McIlkenny & others[1991] 93 Cr App R 287 and R v Maguire & others[1992] 94 Cr App R 133. I do not think it necessary to refer to them in detail: in relation to the features on which Mr Cleeland seeks to rely, they are decisions which turned on their own facts, and in my judgment do not provide any support for his present application. The mere fact that scientific evidence has been challenged successfully in other cases cannot assist Mr Cleeland as he perhaps thinks it can.

After the hearing, Mr Cleeland’s solicitors brought to the attention of the court the fact that there was an appeal pending in the Court of Appeal which he believed involved consideration of issues relating to firearms residue which would be relevant to this application. That case has now been concluded: see R v Dwaine George[2014] EWCA Crim 2507. The appellant in that case was convicted in 2002 of offences of murder, attempted murder and possession of a firearm. The evidence against him was entirely circumstantial. It included evidence of the finding of two particles on a coat recovered from the appellant’s home: one particle containing barium and aluminium on the front of the garment; and one particle containing barium and aluminium in the pocket. The prosecution’s expert witness found particles containing lead, barium, antimony and aluminium on the spent cartridges at the scene. He concluded that the coat had an association with a shooting incident, but that it was not possible to establish a link with the shooting of the deceased. The prosecution asserted that this was evidence supportive of the appellant having been the gunman. The defence asserted that the particles could have arisen from sources other than the shooting, and called expert evidence to that effect.

The case was referred to the Court of Appeal by the Commission on the basis of fresh evidence as to a change in scientific thinking about the significance or otherwise of a finding of a low level of gunshot residue. The Court of Appeal admitted that fresh evidence, and came to the following conclusion at paragraph 77 of the judgment given by the President of the Queen’s Bench Division:

The court went on to consider the weaknesses of the other aspects of the evidence upon which the prosecution had relied, and concluded that the fresh scientific evidence might reasonably have affected the decision of the trial jury, with the result that the convictions were no longer safe. The appeal therefore succeeded.

In my judgment, that decision does not assist Mr Cleeland as he had hoped it would. In Mr Dwaine George’s case, the Commission had referred the convictions to the Court of Appeal. Neither the fact that they did so, nor the fact that the appeal succeeded, provides in itself any reason for regarding the decision of the Commission not to refer Mr Cleeland’s case as being unreasonable or unlawful. The important feature of Mr Dwaine George’s case was that there was clear evidence of a relevant change in scientific thinking about the extent to which inferences could be drawn from the finding of a very low number of particles of firearms residue. In Mr Cleeland’s case, there is no corresponding evidence, and the arguments advanced by Mr Cleeland are effectively the same as have been considered by the courts at earlier stages of his case. In the present case, moreover, there is a formidable body of other evidence against Mr Cleeland.

In the course of his judgment in Mr Dwaine George’s case, the President referred at paragraph 47 to “the forensic value of the absence of evidence”, saying –

Those words can in my view be applied to the present case. They explain why the evidence which Mr McCafferty gave about the finding of lead residue was relevant and admissible as part of the prosecution case against Mr Cleeland.

My overall conclusion is as follows. It cannot successfully be argued that the evidence which Mr McCafferty gave at trial, as to the finding of lead residue on Mr Cleeland’s clothing, was inadmissible: it was conceded before the Court of Appeal in 2002 that the evidence was admissible, and Mr Cleeland acknowledged in this court that the sodium rhodizonate test is a reliable test for the presence of lead. There was, therefore, evidence of the presence on Mr Cleeland’s clothing of lead, which could be regarded as consistent with contact with a recently-discharged firearm. True it is that no further or more sophisticated test was carried out by Mr McCafferty; but there is no clear evidence that any alternative form of testing was in fact available to him at the relevant time, and in any event it is not now possible to do more than speculate about what any further testing might have revealed. It may be that Mr McCafferty’s evidence could carry only limited weight as evidence that the man accused of firing the fatal shots had lead residue on his suit; but it was admissible, and it was for the jury to consider the weight to be given to it, taking into account the evidence that the presence of lead may be explained by the nature of Mr Cleeland’s work or by environmental factors. The jury were entitled, if they were sure they could safely reject the other possible explanations which were put before them, to regard that finding as supportive of the prosecution case. I reject the submission that the jury were misdirected or misled as to the limited purpose for which that evidence was adduced.

In making the decision which is now challenged, and in particular when making the necessary prediction as to whether there is a real possibility that the Court of Appeal would not uphold the conviction, the Commission was entitled to take into account the previous decisions in these proceedings of the Court of Appeal and the Divisional Court, and to regard those decisions as an indication of the weight likely to be given – if a further appeal came before the Court of Appeal – to the strength of the non-scientific evidence against Mr Cleeland. None of the evidence now put forward as fresh evidence can reduce the strength of that non-scientific evidence.

In the present hearing, this court has had the advantage of being able to consider both the written submissions prepared by Mr Cleeland’s former counsel, and Mr Cleeland’s full oral presentation of his case. Having done so, I accept Mr Aspinall’s simple submission that the analysis of the evidence has not really changed since the decision of the Court of Appeal in 2002, and that Mr Cleeland is not able to clear the high hurdle which he faces in seeking to challenge the Commission’s decision. The Commission plainly did take into account the submissions and evidence put forward on Mr Cleeland’s behalf, before concluding that there was nothing in them which gave rise to a real possibility that the conviction would not be upheld. In my judgment, the Commission was entitled to conclude that the other evidence against Mr Cleeland was strong, and that even if Mr Gibbs’ evidence were accepted in its entirety there is no real possibility that the Court of Appeal would quash the conviction. The Commission was entitled to regard the arguments advanced on Mr Cleeland’s behalf as being, to a substantial extent, a re-presentation of points already made to, and considered by, the courts. I am not persuaded that the Commission’s decision was unreasonable, still less that it was so unreasonable as to be unlawful. The Commission’s reasons for its decision were clearly, and in my view sufficiently, explained in its correspondence with Mr Cleeland’s solicitors, and in its decision letter.

For those reasons, I would dismiss this application for judicial review.

I agree.