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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Earle v R. [2011] EWCA Crim 17 (25 January 2011)
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Cite as: [2011] EWCA Crim 17

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Neutral Citation Number: [2011] EWCA Crim 17
Case No: 2010/01517/B4

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NEWCASTLE UPON TYNE
MRS JUSTICE SMITH
T980055

Royal Courts of Justice
Strand, London, WC2A 2LL
25/01/2011

B e f o r e :

LORD JUSTICE LEVESON
MRS JUSTICE SLADE
and
MRS JUSTICE SHARP

____________________

Between:
JOHN CHRISTOPHER EARLE
Appellant
- and -

THE QUEEN
Respondent

____________________

A. T. Hedworth Q.C. and Christopher J. Knox for the Appellant
Paul K. Sloan Q.C. for the Crown
Hearing date : 13 January 2011

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Leveson :

  1. On 31 July 1998 in the Crown Court at Newcastle upon Tyne before Smith J and a jury, the appellant, John Christopher Earle, was convicted by majority verdict (10:2) of the murder of Peter Halliday and sentenced to life imprisonment. On 11 May 2009, his renewed application for leave to appeal conviction was refused by the full court (Rose LJ, Ebsworth and Mitchell JJ). Upon reference by the Criminal Cases Review Commission, the appellant further appeals on the basis of fresh evidence which is contended has such a seriously detrimental effect upon the evidence of the main prosecution witness as to render the conviction unsafe.
  2. The Issue

  3. The appellant (who was known as Sean) and Peter Halliday (then 67 years of age and known as Jim) were both vagrants. In the days leading up to Saturday 2 August 1997, they had been living rough in Pennywells Barn, near Alnwick in Northumberland. Also living in the barn at the time was Shirley Waddington, the appellant's girlfriend. At about 4.30 pm on that Saturday afternoon, the appellant and Shirley Waddington arrived back at the barn and a struggle took place which culminated in Mr Halliday's death. The pathologist later reported that Mr Halliday ("the deceased") had been subject to a violent assault in which he had been punched, kicked and injured in a manner consistent with having been struck with a rod or blunt instrument. His neck had been forcibly gripped; there was evidence of severe constriction of the neck tissues. Death was caused by asphyxiation, most probably from manual strangulation. The other injuries, although severe, would not have been fatal. The appellant recruited a co-accused Stephen Williams (who was subsequently sentenced for doing acts tending or intended to pervert the course of justice) to help dispose of the body during the night. It was deposited on a beach at Embleton where, on 4 August 2007, it was found by a holiday-maker.
  4. Over the course of the next few days, tAVIHhe appellant and Shirley Waddington discarded the belongings of the deceased. On 12, 13 and 15 August, the appellant gave false information to the police in an apparent attempt to deflect their suspicion. On 18 August, he and Waddington were arrested and initially denied being at the barn at the time of the killing. Waddington subsequently changed her account and admitted that she and the appellant were at the barn; she then went on to say that the appellant had killed the deceased. Thus the prosecution case was that the appellant was solely responsible for the killing, the motive being robbery. The Crown alleged that after beating him, the appellant killed the deceased by strangling him on the grass outside Pennywells barn. The defence admitted that the appellant had caused some of the injuries to the deceased, contending that he had been acting in self-defence having been threatened with a metal bar. It was contended, however, that the appellant had not strangled the deceased: Shirley Waddington had done so with a belt.
  5. It was part of the defence case that Waddington's evidence was unreliable; she had made statements to the police inconsistent with each other and inconsistent with other available evidence. She was also of bad character such that she could not be considered a credible witness. Thus, the issue for the jury was whether the Crown had proved to the criminal standard that it was the appellant who was responsible for the final act of strangulation or, more particularly, whether it had excluded the possibility that responsibility lay with Shirley Waddington.
  6. The Evidence

  7. The deceased had left his brother's home following a violent argument and, by 23 July, Shirley Waddington was complaining to Katrina Peddie (who worked in a soup kitchen which she and the appellant frequented) about an old man (the deceased) staying at Pennywells Barn who had money and should not be there; the appellant also said that he knew the man had money because he had offered to pay. Ms Peddie believed that Waddington was angry about his presence whereas the appellant was relaxed. On 28 July, the deceased cashed one of his two DSS order books, obtaining about £44. Although the deceased had said that he was going to go to Blackburn, by the end of July he was still at Pennywells.
  8. At the centre of the case was the evidence of Shirley Waddington who admitted that she was a habitual shoplifter and had a drink problem. She denied that she had been annoyed by the arrival of the deceased at the barn. On the contrary, she said that he had been quiet and inoffensive although she accepted that a remark he had made on 31 July had caused her to be angry. It was not true that she had been preoccupied by the old man's money and she had no recollection of the conversation reported by Ms Peddie (whom she believed must be wrong). The defence contended that, in this regard, Waddington was lying.
  9. Shirley Waddington said that, on Friday 1 August, she and the appellant went to Alnwick, where she stole various items from shops. It was her evidence that the appellant suggested a ploy to obtain money from the deceased; he suggested that she pretend to be upset so that she would have the chance to take money from his pockets. She said that she refused to do this. She said that she and the appellant spent the night of Friday 1 August at the house of Neil Ridley at 2 Lower Barrasdale. That night, the appellant beat her causing her to suffer a black eye: photographs taken three weeks later showed a red mark over her eye, estimated by a police surgeon to be about that age. She said that she and the appellant spent the following morning drinking at different venues. She also took four or five of the appellant's anti-depressant tablets to calm herself. Her evidence was that she left the appellant at the Queen's Hotel some time before 1 pm, and sat alone in the market place, feeling upset. At around 4 pm, she returned to the Queen's Hotel to find the appellant asleep in a chair and woke him. The appellant called (or had already called) a taxi, which arrived at about 4.30 pm and dropped them at the gate to the track that led to Pennywells barn. She said that she stopped for a short time to speak to the driver, so that the appellant arrived at the barn some distance ahead of her.
  10. Shirley Waddington went on to say that she heard the appellant shouting and swearing as she approached the barn, and on looking into the sleeping area, she saw the deceased on the floor just inside the door, facing upwards. His face and head were covered in blood and the appellant was kicking him hard. She estimated that he kicked the deceased not more than six times at this stage to the face, head and side of the body. She said she was afraid and ran back to the gate. She could hear the old man moaning while the appellant asked him repeatedly where his money was. She also heard the appellant say: "It's 2nd August and you're going to die". She went back to the barn and saw the appellant was still kicking the deceased. He began to pour what appeared to be methylated spirits over him. Waddington said that at this stage, she grabbed hold of the appellant and told him to stop, but he shoved her away and swore at her. Asked to demonstrate how they were positioned, she first showed one arrangement, and then changed her mind, putting 'the old man' into a different position.
  11. It was Waddington's evidence that whilst the two men were in the sleeping area the appellant picked up an iron bar, normally used to secure the door to the sleeping area. He hit the old man with it two or three times. Later in her evidence, she said that the iron bar was in the kitchen area when she first saw it. She had not seen the old man holding the bar at all and neither did she see the appellant dragging the old man by the bar, although she did see him drag him by his clothes. She did not see the appellant trip or fall onto the old man's body. She said that the two men had not moved from the kitchen area to the sleeping area; it happened the other way round. After seeing the appellant hit the old man with the iron bar, Waddington said she again ran back to the gate, from where she could hear the deceased still moaning, and the appellant demanding his money. The old man said that the money was in the building and the appellant told him to get it. Waddington's evidence was that she again approached the building, where she saw the appellant dragging the old man by his jacket, through the cooking area and out to the rear of the building. The old man lay curled up on the grass as the appellant continued to beat him with the iron bar, demanding his money and telling him repeatedly that he was going to die. Waddington said that she did not follow to the back of the building, but stayed by the gate. She denied playing any part in the attack or threatening the old man.
  12. She said that she remained by the gate for some time because she was afraid. When everything was quiet, she went back to the kitchen area, where she saw the appellant standing in the doorway holding a strap, normally used for pulling firewood, in his hand. She watched him walk to the fireplace and light a fire with some paper, and put the strap on it. He put the iron bar into some bushes (from where it was later recovered by police). Her evidence was that when she asked how the old man was, the appellant swore at her and told her that he was "all right." He then told her that they were leaving and they returned to Alnwick.
  13. When cross examined, Waddington denied that it was she who had killed the deceased, and did not accept that she had confessed the killing to the appellant. She insisted that she saw the appellant with the strap; this was the first time she had seen it that day. She denied that she had suggested that they burn or bury the body, or that the appellant had struck her face in response to the alleged suggestion. She could not say how her white trainers (which, at the trial, she denied wearing on 2 August) came to bear traces of blood then too small for analysis.
  14. She said that following the incident, they left Pennywells and went to the Queen's Hotel in Alnwick. The appellant had money because he claimed to have found a £10 note and bought several drinks for them both. He told her not to mention the deceased. She said initially that they had then gone to an off-licence and bought three bottles of cider, but she agreed later that they had had the bottles of cider with them earlier in the afternoon. They eventually made their way to Rachel Fox's house at 4 Upper Barrasdale, where they spent the night. Shirley Waddington said that she began drinking early the following day and also took some more sleeping tablets. Her evidence was that the appellant asked Rachel to wash the clothes he had worn the previous day: a black T-shirt, a waistcoat and jeans. She said that none of her clothes were washed. She later realised that the appellant went out that morning to dispose of the body, and had a bath when he returned. At one point, he produced a pen; one of several belonging to the deceased which the appellant had in his bag, and lent it to Rachel.
  15. Shirley Waddington said that she and Rachel Fox attended a church service on the evening of Sunday 3 August, while the appellant went to the Queen's Hotel where she later joined him. Stephen Williams was also present. The appellant appeared to be flirting with another woman and Waddington admitted that she was jealous. The appellant told her to leave and she went back to Rachel Fox's house where she spent the night. She said that at this time she was still unaware that the deceased was dead.
  16. Early the following morning, the appellant arrived at Rachel Fox's house. He told her that he had been "cleaning up her mess," shifting a dead body. She then realised that the deceased was dead. The appellant told her they had put the body inside a sleeping bag and moved it by car to a golf course. She said that she was too afraid to ask more questions. Later that morning, they walked back to Pennywells. According to Waddington, on the way the appellant took out a small black clock that had belonged to the deceased and threw it over a wall, together with his two or three remaining pens. At Pennywells, the appellant said that he wanted to find the old man's money. They searched, and he found the pension books and bankbook inside the armchair in the sleeping quarters, but did not find any cash. Afterwards, they walked back to Alnwick, where, according to Waddington, the appellant persuaded her to sign and attempt to cash the pension books. She went into the post office alone, and the clerk who served her refused to cash the books. They then heard that a body had been found on the beach at Embleton, and in panic, burned the pension books in the grounds of a nearby school. At some stage during the afternoon of 4 August, they also threw a bag containing the belongings of the deceased into the river.
  17. Either that afternoon or a day or so later, they returned to Pennywells and tried to burn the bloodstained carpets, finally throwing them over a wall from where they were later recovered, contaminated with white spirit. It was Waddington's evidence that the appellant also discarded a pair of blue jeans into a hawthorn bush, which she thought might have been the pair he was wearing on 2 August. The appellant and Waddington made their way to Seahouses, sleeping rough, and on Tuesday 5 August, she visited her niece in Bamburgh. She agreed in evidence that the appellant found a £10 note in the lining of his waistcoat while they were in Bamburgh. On 6 August, the appellant hid his boots in a plastic bag behind a bush and they returned to Alnwick. They spent the night of 6 August at Neil Ridley's house, where they discovered that the police were looking for the appellant and another man. They then went to Stephen Williams' house, where there was a discussion about the action they should take if the appellant was arrested. According to Waddington, the appellant told her that she was to wait 72 hours, and then go to the police and tell them that she had hit the deceased with the iron bar and pushed him into the water when he tried to rape her. She said that Williams threatened to injure her children if she refused (although she agreed in cross-examination that Williams did not know where her children were living).
  18. Waddington agreed that she had been provided with her own furnished flat paid for under the approved witness scheme. She said that when she made her statement incriminating the appellant, she had no idea that any such provision would be made for her.
  19. Other evidence relevant to Shirley Waddington's account came from the taxi-driver who had driven the appellant and Waddington to the barn on 1 August whose statement was read because he had since died: he described the appellant and Waddington leaving the taxi together. There was also evidence from Rachel Fox, who said that she had been asked to wash both the appellant's and Shirley Waddington's clothing, including Waddington's white trainers. She said that this was a normal occurrence. She also gave evidence that the appellant had a bath at her home later that morning (which would have been after he had disposed of the body).
  20. Thomas Donohoe said that two or three days after he heard that a body had been discovered, he noticed that the appellant was not wearing his usual boots, and asked him about this. The appellant told him that he had been involved in the killing of the deceased although he had not done it and that two other men were responsible. Mr Donohoe said that the appellant asked him to retrieve his boots and clean them and not to tell anyone. He agreed that there was a reference to an altercation between the appellant and a Micky Firman during the conversation, but he said that this was not in the course of discussion about the boots. Mr Donohoe said that on 18 August, he had a further conversation with the appellant, who told him again that he had not killed the deceased but that he knew who had done so. It was put to him that his evidence was unreliable because he was unwell and was being treated for psychiatric problems.
  21. We now turn to the evidence of the pathologist, Dr McCarthy, which itself cast some light on what had happened to the deceased. A post mortem concluded that the deceased had been violently assaulted. His injuries were consistent with blows with a fist, kicks and blows from a rod or blunt instrument. His throat had been forcibly gripped causing extensive bruising and fractures to the thyroid cartilage were indicative of severe constriction of the neck tissues. He had died as a result of the extensive injuries to his head, neck and chest, the cause being asphyxia. He would have died within minutes of the injuries being inflicted.
  22. Dr McCarthy said that the deceased had been an elderly man, 5'8" in height and weighing only 8 stone 9 pounds. The injuries to the body included three linear lacerations to the head, which in the view of the doctor, were caused by blows from the iron bar. A large flap of skin on the back of the scalp had been removed. The facial injuries included a large area of bruising to the right side of the face, and the area of the ear, with haemorrhage to the eye and lacerations to the right eye area. There was also a bruise to the chin and very severe bruising, swelling and abrasions to the left side of the face. There was extensive discolouration with bruising and abrasions to the neck and chest. Some of the bruising on the chest bore a slightly stippled imprint, which the pathologist said had the features of a fabric impression from his pullover.
  23. There was also bruising and abrasions to the hands, arms and legs of the deceased. On the left leg were a series of abrasions in a line, which the pathologist considered had been caused by being struck with the iron bar. The injuries to the back were less extensive and consisted of grazes and discolouration. Internal examination of the body revealed that neither the facial bones nor the skull had been fractured, although the brain had suffered some indirect damage, which might have been sufficient to cause loss of consciousness. There was extensive bruising inside the mouth and within the neck tissues, including fractures to both the thyroid cartilages. There were three fractures to the ribs on each side of the chest, but no injury to any of the vital organs.
  24. The pathologist considered that some of the bruises and abrasions might have been caused by kicks and that either the black boots worn by the appellant, or the white trainers said to have been worn by Shirley Waddington would have been capable of inflicting the injuries if sufficient force was used. His view was that the deceased had definitely been strangled manually, rather than with a ligature, although he could not rule this out completely. A considerable amount of force had been used. The likely cause of the chest injuries was either being knelt or stamped on; again considerable force would be required. He accepted that someone falling heavily on to the deceased's body could possibly have caused the injuries. The injuries to the hands could have been defence wounds or could have been caused by falling. Questioned about injuries to the palms of the hands, Dr McCarthy said that there was no sign of any abrading caused by grasping on the iron bar, but accepted that the deceased's hands would not necessarily have been injured if he had held on to the bar.
  25. The conclusion of the pathologist was that the injuries to the deceased, although serious, would not have been fatal but would have weakened him. Death had been caused by strangulation. Shown photographs of the hands of both the appellant and of Shirley Waddington (taken on 21 August), he said that he could not draw any conclusion from the pattern of abrasions on the neck as to which of them was more likely to have strangled the deceased.
  26. A forensic investigation of the scene only took place some three weeks after the murder. Dr Gregory found some blood staining on a piece of carpet near to the doorway of the sleeping area and at the top of the stone archway, up to seven feet above floor level. He also noticed marks consistent with drag marks on the hard surface just inside the doorway. He examined a bloodstained piece of carpet, and found traces of white spirit and burn marks on it. The blood on the carpet was that of the deceased. The iron bar was also examined; tests showed traces of blood were present, but it was not possible to say whether it was human in origin.
  27. Questioned about the possible implications of the spots of blood found seven feet above ground at Pennywells Barn, Dr Gregory said that the blood was likely to have been dispersed by a further blow to an existing wound. The blood appeared to have landed on the archway almost horizontally, which suggested that an attack had been made on the deceased while he was standing up in the sleeping area (which we comment was consistent with Shirley Waddington's account). Dr Gregory said that it was also possible, although less likely, that the blood had flown upwards as the deceased lay on the ground or had been flicked upwards by the appellant's hand.
  28. Tests showed a positive reaction for blood on the front of the appellant's green waistcoat; but it was not possible to discern whose blood it was. No traces of blood were found on any of the other clothes or the boots worn by the appellant at the time of the incident. It was clear from the condition of the appellant's boots that they had been wet at some point after 2 August although Dr Gregory accepted that it was difficult to remove all traces of blood. As we have said, a trace of blood too small to produce a DNA profile for analysis was found on one of Shirley Waddington's white trainers: it had been lodged in the seam and was invisible to the naked eye. He agreed that it was possible that the blood had remained in this area after the shoe had been washed in a machine.
  29. On 12 August, the appellant was invited to help the police with their enquiries and was interviewed. He told police that he had not been to Pennywells since early on Friday 1 August, when the old man had told him that he was considering moving on, and had then gone to Seahouses on 4 August, returning on 6 August. On 13 August, he approached DC McNaughton in Alnwick and gave him some names, which he said that the deceased had mentioned prior to his death. On 15 August he attended the police station in Seahouses and told the police that he thought that the deceased might have been killed in mistake for him. On 19 August, he was arrested and in a series of interviews under caution gave a false account, claiming not to have been to Pennywells on 2 August. He said that Shirley Waddington had resented the presence of the deceased at Pennywells, but there had not been any rows.
  30. Shirley Waddington was also arrested and questioned on 19 August and initially told a false story, but after further questioning, she implicated the appellant and showed police the remains of the pension book, the iron bar and the carpet at Pennywells and the appellant's discarded jeans. On 21 August, she was examined by a police surgeon who noted the injury to her eye (estimated to be about 3 weeks old). On 27 August, she took police to her brother's house at Alnmouth and produced a pair of jeans, which she said she had been wearing on 2 August. Finally, a pair of jeans found at the home of Shirley Waddington's brother in Alnmouth was examined (although her brother said that she had not been to the house since 26 July). In any event, it was found to have a broken zip, which the defence said rendered them un-wearable.
  31. After this interview implicated the appellant, on 20 August, he was interviewed further. He then gave an account broadly in line with that which he later gave in evidence although there were inconsistencies and further matters on which he later relied which he did not then mention. He told police that, having dragged the deceased out to the grass area at the rear of the building, he said "now look Jim, let go of the bar and I'll stop hitting you," at which the deceased released his grip. He left the deceased lying on the grass and went back to the house, where Shirley Waddington later followed. She told him that she did not trust the deceased not to go to the police, and had killed him to protect the appellant.
  32. We turn to the defence case and the evidence of the appellant. He admitted that the account he gave in his initial interview on 12 August was false. He said that he had lied because he had helped dispose of the body, was on licence from prison and wanted to keep out of trouble. He did not think the police would believe that Waddington was responsible for the killing. He claimed that the account he gave in later interviews and in evidence was the truth, and that he had acted in self-defence when he inflicted the admitted injuries on the deceased. Of the injuries found on the deceased, he admitted that he might have been responsible for most of the facial injuries but denied striking the deceased with the iron bar or causing the injury to the back of the scalp.
  33. The appellant's case was that Shirley Waddington had resented the presence of the deceased at Pennywells Barn. He said that she was also preoccupied with the idea of obtaining money from the deceased and denied that it was he who had suggested that they take his money. He did not accept that he had beaten Waddington on Friday 1 August, but admitted that he had hit her the next day when he became aware that she had killed the deceased. He denied causing the mark over her eye. He said that Waddington often told lies and had tantrums; she was a troublemaker with an unpredictable temperament.
  34. The appellant's account of the events of 2 August was that he and Waddington had gone to the Queen's Hotel in the morning, but she had left at about 1 pm. She returned at about 4 pm, and told him that she had been back to Pennywells and that she and the deceased had argued after she had been told by him that she had no right to be there. He said that she was furious. They decided to go straight back to Pennywells so that the appellant could remonstrate with the deceased; they travelled to the barn by taxi. Waddington was only a few yards behind him as they went down the track towards the barn. When he entered, the deceased was in the kitchen area attending to the fire. The appellant said that he went into the sleeping area, put down the three bottles of cider he had with him, and sat on the settee. Waddington followed and sat down too. She was angry that the deceased was still there and the appellant agreed to speak to him. He said that he went into the kitchen, where the deceased was standing poking at the lighted fire with an iron bar. The deceased intimated that he had more right to be at Pennywells than either the appellant or Waddington and a heated argument developed whereupon the deceased raised the iron bar as if to strike him. The appellant said that he grabbed the bar and they struggled for possession of it. The appellant managed to trip him up so that the deceased fell towards the door, managing to retain his hold on the bar. The appellant pulled him out of the door, calling Waddington to help him and shouting at the deceased to let go of the bar. The deceased did not appear to be injured, and neither of them had struck a blow at this stage. He was trying to shut the deceased outside the door to let the situation calm down, but could not manage to do so. The appellant said that he punched the deceased hard to the right side of his face to try and force him to let go of the bar; but that this had no apparent effect.
  35. The appellant said that he then tried to force the bar towards the feet of the deceased, but that as he tried to manoeuvre himself through the doorway, he tripped and fell across his body. He suggested that this accidental fall might have caused the fractured ribs found at post mortem. However, the appellant said that the deceased did not cry out in pain; he continued to grip the bar and also tried to knee him in the groin. The appellant said that at this stage he let go of the bar and began to punch the deceased six or seven times to the face, mainly using his right hand, keeping his knee over the latter's stomach to hold back the bar. The deceased threatened to go to the police. The appellant said that he grabbed the iron bar, which the deceased was still holding on to, pulled him to his feet and began to drag him out of the doorway to the kitchen entrance. He asked the deceased again to let the bar go, but he refused, so the appellant continued to drag him out to the grass at the rear of the building. His evidence was that he thought that if he pulled him up the steps to the grass area, he would be forced to let go of the bar. By this time, the deceased had some cuts to his face but was not bleeding profusely. The appellant said that he himself had blood on his hands and on his jeans. When they reached the grass area, the appellant said that he again asked the deceased whether he still intended to get the police and received an affirmative reply whereupon he let go of the bar and kicked the deceased two or three times in the body, then overpowered him by sitting on top of his chest, straddling his body. He said that the old man still held the bar, insisting that that he would go to the police. According to the appellant, Shirley Waddington appeared at this point and began kicking the legs of the deceased.
  36. It was the appellant's evidence that by twisting the bar, he managed to wrestle it away from the deceased and threw it on to the grass, a few feet away and then told him that he did not want any trouble; the deceased should leave on Monday morning. He said that he would not be here for the weekend, and told Shirley to stop kicking the deceased, which she did. In response to the appellant's questions, the deceased said that he was all right and that he would not go to the police. He began to walk away. At this point, Shirley said that they should not let him go, because he would go to the police. The appellant said that he was satisfied that he would not go to the police, and walked away, leaving the deceased lying on his back on the grass and still conscious, although weak. As he walked away, he saw Shirley kick the old man again, and told her to stop.
  37. The appellant said that he then went inside and sat on the settee drinking from a bottle of cider. After resting for a few minutes, he went to look for Shirley and met her coming from the kitchen door to the living room door. They went into the living area together. He asked her if she was all right, and he thought she said, "I could kill that bastard". The appellant said that he did not take this seriously. He was not worried about the possibility that the deceased would go to the police, because he considered that he had acted in self-defence. Shirley sat drinking, and then she told the appellant that she had killed the deceased. According to the appellant he then went to the back of the building where he found the body. He started to check for a pulse, but his skin was cold, and he realised that he was dead. His evidence was that he was very shocked. He went back inside and hit Shirley in the face. He had not mentioned this in interview because he was ashamed that he had done so. He claimed that Waddington explained that she had strangled the deceased with the belt and said that she had always wanted to kill a man. The appellant said that, not able to think coherently, he picked up the belt and threw it on to the fire. They argued. He wanted to distance himself from the killing, but he said he felt that the police would not believe that it was Waddington who was responsible. Waddington suggested that they burn or bury the body, but he said he was not prepared to do this because he was a Catholic and believed that the deceased should be given the chance to be buried on holy ground.
  38. They left Pennywells and went to the Queen's Hotel in Alnwick and afterwards made their way to Rachel Fox's house, where they spent the night. The appellant said that the following morning (Sunday 3 August), Waddington asked Rachel Fox to wash the clothes that they had been wearing the previous day, including Waddington's white trainers.
  39. The appellant said he spent the night of 3 August transporting the body to the beach at Embleton, assisted by Williams. When he returned to Rachel Fox's house early on the morning of 4 August, he told Waddington that he had been clearing up her mess. He and Waddington returned to Pennywells on 4 August, where she found the pension books. They disposed of a bag containing the property of the deceased on the way back to Alnwick. The appellant claimed that he tried unsuccessfully to dissuade Waddington from attempting to cash the pension books. He agreed that when the attempt failed and they heard that the body had been found, they disposed of the books. Questioned about the pair of jeans found in a bush near the Denwick Lane bridge, the appellant said that he had put the jeans there well before 2 August, because they were stained with the blood of another man, Micky Firman (which has later been confirmed).
  40. He said that he and Waddington then made the trip to Seahouses, returning to Alnwick on Wednesday 6 August. They discussed the account they would give to the police if they were questioned about the death. The appellant's evidence was that Waddington suggested that they pretend the deceased had made sexual advances towards her and she had pushed him over with the bar. The appellant said that he told her he would not co-operate with the story. Challenged as to how, on his account he would have had knowledge that an iron bar had been used in the assault, he said Waddington had told him about it on their trip to Seahouses. Questioned as to his failure to mention this in interview, he said that he could not be expected to mention every detail. He agreed that there was a discussion between himself, Williams and Waddington on the night of 6 August. He said that during the conversation he made it clear to Williams that it was Waddington who was responsible for Mr Halliday's death: she did not admit or deny this.
  41. We have set out the facts in such considerable detail because the conflicts serve to identify the nature of the task of the jury. Essentially, the Crown relied on the extensive violence admitted by the appellant (although claimed to have been inflicted in self defence): as we have said, the admissions extended to many of the facial injuries and the rib fractures (when he fell on him) but not further. They challenged his evidence about the fight over the iron bar, pointing to the lack of abrasions on the hands of the deceased. They pointed to the new facts not mentioned to the police in interview and, in particular, to the fact that the appellant now suggested that Shirley Waddington had admitted striking the deceased with the iron bar which he had neither said in interview or challenged her about in evidence. The defence pointed to the general unreliability of Shirley Waddington, the lies that she had told (both generally in her earlier statements and more particularly in relation to the clothing she had worn and whether that clothing and her trainers had been put in the wash) and the lack of corroboration for her evidence.
  42. The previous convictions both of the appellant (for violence and dishonesty) and Shirley Waddington (essentially for theft) were before the jury as relevant to their credibility and, in relation to her, the learned judge was at pains to put that issue of credibility at the very forefront of the jury's deliberations. She said:
  43. "… she is a woman of bad character. She steals from shops. She has a number of convictions for that and she has accepted that she had stolen many, many more times than the occasions on which she has been caught. She admits that certainly last year she had a drink problem. She says that she drinks less now but certainly then she was drinking a great deal and admits that she can be aggressive in drink … she agreed that she has led a completely disorganised and chaotic life. … So there you have a picture of a not very satisfactory personality.
    … not only are those generally unsatisfactory features about her, but there is plainly a particular reason that I must warn you about as to why her evidence could be unreliable. She may have an interest in persuading you that Earle is guilty of this murder because as you will well realise if he is not, the finger of suspicion is pointing directly at her."
  44. As to the discrepancies in the evidence, Smith J was at pains to analyse them (although it was later argued that she had not sufficiently identified the importance of the inconsistencies). She said that there was no evidence from any other source which directly supported her account having emphasised to the jury that:
  45. "in your deliberations you must give very careful consideration to her evidence to see whether you can rely upon it as being essentially truthful, … you must scrutinise her evidence with great care … you must exercise great care before you can rely upon her evidence."
  46. During the course of their deliberations, the jury asked about the number of statements Shirley Waddington had made; that led to them being reminded of inconsistencies between the statements that had been explored in evidence. They also asked to hear again a summary of the pathologist's evidence and, in particular, about the neck injuries. Having deliberated further, a majority verdict convicting the appellant was returned.
  47. The First Appeal

  48. In the Court of Appeal, it was argued that not only did the judge place insufficient emphasis on the inconsistencies in the evidence of Shirley Waddington (which the court concluded gave rise to "no arguable ground of sustainable complaint") but, in addition, did not adequately warn the jury of her inherent unreliability. The court did not agree. Rose LJ made it clear:
  49. "Having carefully considered the whole of this summing up … we do not regard it as arguable … that this judge's warnings were inadequate. On the contrary, it seems to us that she said everything that could properly be said, in order to emphasise to the jury the need to approach with, in her words, "great care" the evidence of Shirley Waddington.
    In our judgment, Mr Knox was correct to characterise this summing up as being prima facie coherent, well constructed and impeccable. It also, at the end of detailed scrutiny, satisfies that description."

    The New Evidence

  50. One aspect of the case that was not capable of complete resolution during the trial concerned Shirley Waddington's trainers. Although it was recognised that she had said that she was not wearing the trainers on the day and that they had not been washed, it was undeniable that Rachel Fox had said to the contrary and, furthermore, that in the stitching of a seam on the outer aspect of the side of the left trainer there had been found a trace of blood, not visible to the naked eye and not then sufficient for DNA analysis. Advances in technique (and, in particular, the development of low copy number or LCN DNA analysis) now mean that such analysis is possible: it is that evidence that the Criminal Cases Review Commission has obtained.
  51. Although we heard evidence both from the appellant and the Crown de bene esse, we can deal with the requirements of s. 23 of the Criminal Appeal Act 1968 quite shortly. By s. 23(2), evidence is admissible if it appears to the Court to be capable of belief, may afford any ground for allowing the appeal, would have been admissible in the trial and there is a reasonable explanation for the failure to adduce it at the trial. Suffice to say that this evidence satisfies each of these tests and we admit it.
  52. The evidence obtained by the CCRC and called by the appellant came from Valerie Tomlinson, a forensic biologist who, coincidentally, was involved by the prosecution, alongside Dr Gregory, in the analytical work initially conducted. Although the original material tested by Dr Gregory was not available, a further extraction of material from the stitching and material edge of the trainer (from where a positive test for blood had been obtained) again tested positive for blood and, using more sophisticated low copy number techniques not available in 1997, revealed only a partial DNA profile which was mixed, that is to say, of more than one person. Thirteen of the bands, with an X or female band, matched bands from the profile of Shirley Waddington bands with a further Y or male band, matched bands from the profile of the deceased. In relation to those bands which did not match Shirley Waddington, Ms Tomlinson explained those areas where no result was obtained (a full profile being 20 bands) were explicable on the grounds of degradation; she discounted the three common bands and concluded that the chances of obtaining a matching DNA profile from someone other than the deceased or a relative of the deceased was 1 in 1000 males.
  53. The Crown did not dispute this evidence but there was an issue as to its interpretation. Ms Tomlinson concluded that recovery of the DNA of the wearer of the trainers was to be expected and that, on the basis that this sample was extracted from the area where blood had been detected, it was likely (or most likely) that this blood was the source of that DNA profile both because of the coincidence of position and the fact that blood is a good source of DNA. She was not aware that Shirley Waddington had suffered a bleeding injury at around the same time but, when told of the evidence in that regard, recognised that if she had bled onto her trainer, this could have been the source and that the other DNA could be from other cellular material (such as might be generated by a sneeze or a cough).
  54. Caroline Crawford, a forensic biologist instructed by the Crown for the purposes of this appeal, was not prepared to draw any conclusion as to the origin of the DNA from either source and, in particular, was not prepared to conclude that the profile similar to that of the deceased was more likely to have come from blood as opposed to some other source of cells. The blood could have come from the deceased, from Shirley Waddington or, given that it was not proved to be human blood, from neither. She pointed to the evidence that the deceased had been living in the close proximity of Shirley Waddington for several days and, in the same way that blood might not have been washed out of the trainers by Rachel Fox, other cellular material might also not have done so.
  55. On this issue, we prefer the view expressed by Ms Tomlinson, although our conclusion is, perhaps, slightly more nuanced than was her evidence. Like her, we do not exclude the possibility that the material that gave rise to the DNA profile similar to that of the deceased was something other than blood and, also consistent with her evidence, we recognise that the wearer of the trainers is likely to have imprinted her DNA into the seams and stitching of the trainers by mediums other than blood including handling, sweat and other secretions such as coughing or sneezing. Further, as did the Crown, we proceed on the basis that the evidence of Rachel Fox was accepted and that the trainers were put through the washing machine. Superficial deposits by the deceased are thus unlikely to have survived. Thus, on balance, it is more likely than not that the finding of blood and the extraction from that precise area of a DNA profile similar to the deceased is not coincidental. We reject the possibility of the blood not being human blood as entirely speculative.
  56. That is not the end of this evidence because it is extremely important to underline what Ms Tomlinson and Ms Crawford did agree about, namely, that absolutely no conclusions could be drawn as to how or when the blood or other cellular material came to be deposited on the trainer. There was no suggestion that the position of the blood allowed an inference to be drawn of participation in an assault. Thus, even assuming that the profile of the deceased was in blood, the possibilities were many and varied. The wearer of the trainer might have been in close proximity to the deceased while blood was being shed (whether or not he was then being attacked); the trainer might have been in contact with or proximate to an object which was wet with blood (such as the iron bar, or indeed, the carpet or some other clothing whether of the deceased or otherwise). Although not canvassed in evidence or argument, at least at a theoretical level, the trainer need not even have been worn at the time blood was shed onto it: if the deceased was attacked in the area where the trainers had been left, a deposit of blood would be easily explicable. We are not advancing this possibility as an explanation but use it only to underline the very real limitations of the new evidence in the context of the facts of this case.
  57. Analysis

  58. Against that background we must first consider the approach to the fresh evidence that we have admitted. The test for this court has been exhaustively analysed in a number of recent authorities which have trodden the path created by Stafford v DPP [1973] 3 All ER 762, [1974] AC 878, R v. Pendleton [2001] UKHL 66; [2002] 1 Cr App R 34; [2002] 1 WLR 72, R v. Hakala [2002] EWCA Crim 730, R v. Hanratty [2002] EWCA Crim 1141, [2002] 2 Cr App R 30, Dial & anor v. State of Trinidad and Tobago [2005] UKPC 4; [2005] 1 WLR 1660 and, most recently in R v Burridge [2010] EWCA Crim 2847 and R v. Ahmed [2010] EWCA Crim 2899 in which Hughes LJ observed (at para. 24) that the court would consider the issue before the jury and such information as it could gather as to the reasoning process through which the jury will have been passing but that the question that matters most is whether the fresh material causes this court to doubt the safety of the conviction. We add only the observation of Lord Bingham in Bain v. R. [2007] UKPC 33 (at para. 103):
  59. "A substantial miscarriage of justice will actually occur if fresh, admissible and apparently credible evidence is admitted which the jury convicting a defendant had no opportunity to consider but which might have led it, acting reasonably, to reach a different verdict if it had had the opportunity to consider it. … It is … the duty of the criminal appellate courts to seek to identify and rectify convictions which may be unjust. That result will occur where a defendant is convicted and further post-trial evidence raises a reasonable doubt whether he would or should have been convicted had that evidence been before a jury."
  60. Mr Hedworth correctly points to the very careful way in which the learned judge summarised the evidence in relation to the trainers. Having said that Shirley Waddington had been unable to account for the presence of anyone's blood upon the left trainer, the judge correctly reminded the jury :
  61. "[T]he Crown have said that it has not been shown who the blood belongs to. It certainly has not been shown that it was [the deceased's]. She [Shirley Waddington] did, however, tell you at one stage that she was not wearing her white trainers on that day, although both the [appellant] and Rachel Fox say that she was. The defence suggest to you that there she is, trying to excuse the blood on her boots and suggest that it has nothing to do with the events of that day. A matter for you to consider."
  62. The new evidence, he argued, established the contention which was only a suggestion at the trial. In the appellant's skeleton argument, it was submitted that the presence of the blood of the deceased within the stitching or edge of the fabric of the outer aspect of Shirley Waddington's left trainer demonstrated that she was in close proximity to the deceased when he died and, further, that she was lying when she denied wearing the particular shoes on the day of the death. The argument goes on that it also highlights that she was lying in relation to the clothing that she was wearing generally and emphasises the significance of the lies she told the police about the jeans. Orally, he described this new evidence as "a killer blow" because the presence of the blood of the deceased on trainers which she denied wearing would have required an explanation which she would have been unable to provide.
  63. On behalf of the Crown, Mr Sloan submits that, in the light of the evidence at the trial, it was crystal clear that Shirley Waddington had not been truthful about the jeans that she was wearing (not least because of the evidence of her brother) and the jury are overwhelmingly likely to have concluded that she lied because she was fearful that if the jeans that she was wearing were contaminated by the blood of the deceased, she would be implicated in the murder: that, after all, is precisely why the clothing of the appellant was washed by Rachel Fox and the same will have been so in relation to her. In that regard, the judge provided the clearest steer to the jury when she dealt with the jeans in these terms:
  64. "… [S]he handed over a pair of jeans which she said were the ones she had been wearing on 2 August and you may think it looks as though she was lying about that. … The defence say that it is significant that there was no blood on those jeans and they suggest that there she was seeking to give the police a pair of jeans which she knew would have no blood on them that would be detected."
  65. As for the trainers, Mr Sloan challenges the overwhelming significance that Mr Hedworth places on the presence of the blood of the deceased. True it is that Shirley Waddington could not provide an explanation for it but, even without her knowing, there were many such explanations which were entirely consistent with the case for the Crown. It was the appellant's account that whilst the deceased was lying in the doorway to the sleeping quarters, he repeatedly punched the deceased in the face causing bleeding injuries. In addition, there was blood on the carpet near that doorway and on carpet from the sleeping area which had been thrown over a nearby wall. There was blood 7 ft above floor level on the internal archway. All this blood was the blood of the deceased. In addition, it was the appellant's account that Shirley Waddington had been in the doorway to the sleeping quarters and then moved back into them. Consistent with that, Shirley Waddington said that when she reached and looked inside the doorway, the head and face of the deceased were covered in blood and the appellant was kicking him hard in the face. He was still kicking him when she grabbed him and told him to stop. Further, while she was in the sleeping area, she also spoke of seeing the appellant hit the deceased with the iron bar.
  66. Even assuming, contrary to her evidence, that Shirley Waddington was wearing the trainers that were later washed, there was ample opportunity for blood to have been deposited on the outer aspect of the left trainer: this is not a case of blood within the welt from which its use to kick the deceased in the face might have been inferred. What is even clearer, contrary to Mr Hedworth's written submission, is that its presence does not provide the basis for concluding that Shirley Waddington was necessarily in close proximity to the deceased when he died. His death was the consequence of manual strangulation and there is no suggestion that it was accompanied by any bleeding; blood would have been spattered from the face of the deceased during the beating which the appellant concedes he administered (while not admitting responsibility for all the injuries) and which, on both accounts, Shirley Waddington witnessed. Manual strangulation could have been inflicted without blood splatter of any sort.
  67. Thus, the new evidence is not, in fact, a killer blow at all. It does no more than demonstrate proximity (taken at its highest: see paragraph 50 above) to a person who, while bleeding, is further struck and there is no doubt both on her evidence and the evidence of the appellant that Shirley Waddington was in that position. More significant are the lies that she told about the jeans and the use of Rachel Fox's washing machine but the new evidence does little more than underline those lies which, in any event, the jury had to grapple with. The judge had given the jury the clearest direction as to that evidence and it fell to be considered as part of their overall assessment of the evidence.
  68. Although this case turned on the credibility of Shirley Waddington (as to which the judge gave warnings described by Rose LJ as "impeccable"), it required a much wider consideration than that. In particular, the jury had to consider the admitted violence with which the appellant had treated the deceased, his explanation for that violence, the evidence relating to the iron bar, the reason that he gave for Shirley Waddington having strangled the deceased, the lies that he told and his conduct in disposing of the body and the possessions of the deceased. Having reviewed the reasoning process through which the jury must have considered the case, there is nothing to cause us to doubt the safety of the conviction or which raises a reasonable doubt about whether he would have been convicted had the new material been available.
  69. Conclusion

  70. In the circumstances, although we understand the reason for the reference by the CCRC, this appeal must be dismissed.


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