B e f o r e :
LORD JUSTICE BUXTON
MR JUSTICE CRANE
MR JUSTICE FULFORD
|| MARK DARREN DAY
||- and -
(Transcript of the Handed Down Judgment of
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Mr Peter Carter QC (instructed by Messrs Oury Clark for the Appellant)
Mr Andrew Bright QC (instructed by The Crown Prosecution Service for the Respondent)
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Lord Justice Buxton :
- On 26 March 1993 Mr Day was convicted of murder after a trial before His Honour Judge Rant QC and a jury at the Central Criminal Court and sentenced to imprisonment for life. An appeal to this court was dismissed on 2 December 1994. None of the grounds on which that appeal was advanced are now persisted in. The present appeal arises from a reference of the case to the court by the Criminal Cases Review Commission [the CCRC].
- Under the provisions of section 14(5) of the Criminal Appeal Act 1995 it is open to an appellant to advance any ground that he chooses in an appeal arising out of a CCRC reference, whether or not such grounds formed part of the reasons of the CCRC for referring the case. That provision has been criticised in previous judgments of this court: see Garner  EWCA Crim 1166; Smith  EWCA Crim 2097, The Times, 5 December 2002; and Bamber  EWCA Crim 2912. In the present case, the CCRC identified three grounds of appeal. One of those was abandoned by the appellant's advisers, but they added approximately eleven other discrete complaints in the perfected Grounds of Appeal, albeit not all of those were in the event pursued. This extension of the appeal, with the hearing not limited either by the guidance of the CCRC or, as in an ordinary appeal, by scrutiny under section 31 of the Criminal Appeal Act 1968, also seemed to lead the appellant's advisers to assume that further complaints, not even foreshadowed in the grounds, could be added in the course of the hearing. We give a number of examples of that in the course of this judgment. However, we did not think it right to limit the present appellant in the range of his contentions, and are satisfied that we are in a position to deal with the appeal in a proper manner. Nevertheless, the unstructured form that this appeal eventually assumed has much reinforced our agreement with the view of the constitutions of this court already referred to that, after a full investigation of the kind characteristically undertaken by the CCRC, it should only be necessary, in order to do justice, for this court to consider only the grounds identified by the CCRC, together with any other ground for which the court itself exceptionally grants permission.
- The case turned entirely on a limited factual dispute as to the extent of Mr Day's participation in a violent brawl in the market place of Kingston-on-Thames. Before coming to that dispute, we can quite shortly set out the undisputed background facts of what was a short incident: an incident unfortunately typical of many such fights that come before the courts, and distinguished only by the level of violence that was displayed and, more particularly, by the unhappy fact that that violence caused the death of one of the participants, a Mr French.
- Mr Day had been out drinking with four other men, Messrs Steer, Monaghan, Prince and Paul, and a number of young women. He had previously only once met Steer and Monaghan, who were to play a significant part in later events. Somewhat surprisingly in view of the amounts that some of those involved claimed to have consumed, it seems to have been accepted at the trial that none of them were intoxicated. In due time the group ended up in the queue at a mobile burger bar stationed in the market place. In the same queue were Mr French and his friend Mr Chapman, talking to a number of young French women. It appears that, quite gratuitously, one of the Day party, probably Monaghan, took offence at this, insults were exchanged, allegedly including some directed at Mr Day, and violence broke out. Mr Day admitted throwing a punch at Mr French when at the burger bar, but no more so far as Mr French was concerned.
- What was originally a deplorable but comparatively minor scuffle rapidly took on a more serious aspect. There were a considerable number of witnesses to what occurred, and although their evidence differed in relation to identifying the roles of each participant it was generally agreed that Mr French was driven by a number of attackers from the burger bar towards a Cortina car that was parked in front of a shop called "Next". At some stage, Chapman was knocked to the ground, suffering, comparatively, minor injuries. The judge accepted, and directed the jury in terms, that the fight involving Chapman had developed into a confrontation separate from the fight involving French. Mr French was head-butted, fell or stumbled over the car, and was then seen having his head banged violently against the window or window-cill of Next, falling to the ground and being kicked while on the ground. He suffered a subarachnoid haemorrhage through rupture of his vertebral artery, which could have been caused by any of the attacks on him just set out, but most likely by the kick, and died in hospital without regaining consciousness.
- Mr Day's case as to his involvement, as put to this court, which he says was not properly put before the court of trial, was that he had been fighting with French on the bonnet of the Cortina, both of them fell off, with French comparatively uninjured, and after punching French on the ground to release him both of them stood up. Mr Day then saw Steer moving towards French and Chapman moving towards both of them. Mr Day went to intercept Chapman. In a statement made to the CCRC in 1999 Mr Day explained that he did that, first because he thought that Chapman was going to take French's part against Steer and he did not want Steer to be hurt; and secondly because he was annoyed with Chapman for, as he thought, provoking the initial violence. It is of some importance at a later stage of the appeal to note now that in that statement Mr Day said that he fell with French on to the floor on the Next side of the Cortina.
The trial and the first appeal
- Day, Steer and Monaghan were charged jointly with the murder of French, alternatively manslaughter or section 20 assault on French. They were also charged with section 20 assault on Chapman, and violent disorder. They all pleaded not guilty to all counts, save that Monaghan pleaded guility to assaulting Chapman, a further matter to which we shall have to return.
- As we have already said, the prosecution evidence of identification was far from consistent. Some witnesses placed Monaghan in the fight with French, while a lesser number attributed that role to Mr Day. Those latter witnesses were Mr Prince, already referred to, whose evidence was however viewed with reserve because of previous suspicions of his own involvement in the incidents; and a Miss Tuckwell. Miss Tuckwell identified Mr Day as having taken part with Mr Steer in the attack on Mr French on the Next side of the Cortina. That evidence, if accepted by the jury, was fatal to Mr Day's defence, because it showed him participating in an attack the only intention of which could have been to inflict grievous bodily harm on French. Miss Tuckwell's account was corroborated by the finding of the palm prints of Mr Day and of Steer on the windows of Next, which the prosecution argued tended to suggest that they had leaned against the windows for support as they had kicked French on the ground.
- Monaghan's case was that he had been involved in the fight with Chapman, but not in the fight with French, at least when the fatal injury occurred. Steer claimed, against the weight of the evidence, that he had played only a minor role in the fighting, and that Mr Day had caused the fatal injury after Steer had withdrawn. Steer and Monaghan gave evidence; Mr Day did not.
- The jury found Mr Day and Steer guilty of murder. Monaghan was acquitted of murder but convicted of assaulting French, in addition to the assault on Chapman to which he had already pleaded guilty.
- For present purposes, the relevant ground on which Mr Day first appealed to this court was that in view of the contradictory nature of the prosecution identification evidence the judge should have withdrawn his case from the jury. This court pointed out that it was for the jury to assess the evidence, and that they had been entitled to act on the evidence of Miss Tuckwell, described as plainly an impressive witness. Further, the handprint had gone unexplained, counsel only submitting that it might have been put on the window earlier in the evening.
The present appeal
- It is not now sought, contrary to the submissions to the CCRC, to attack the decisions taken by leading counsel at the trial as to the handling of the evidence of Miss Tuckwell. And the explanation of the handprint now advanced, though not at the time of the trial, is that contained in Mr Day's second statement to the CCRC of August 2000:
"I cannot specifically remember the circumstances in which the handprint had got on to the window but, if I had been asked, I would have said that the handprint had got there when I stood up after fighting French. I could have touched the window at that time before going on to fight Chapman."
It will be observed that that explanation, consistently with Mr Day's statement of 1999 referred to in §6 above, again places Mr Day together with French on the Next side of the Cortina.
- It is therefore necessary, if a further appeal is to be sustained, to introduce entirely new grounds of complaint. Those grounds can be briefly described as being that Mr Day's representation at, and more particularly before, his trial was so incompetent as to render the trial unfair and thus his conviction unsafe. It was that contention that led the CCRC to conclude that there was a real possibility that the conviction would not be upheld if reconsidered by this court.
- It has therefore been necessary for this court to consider in detail the preparation and presentation of Mr Day's case at trial. Before doing that we will set out the conclusions of the CCRC, and then explain how the appeal was, somewhat differently, presented in this court. It is however first necessary to make a general observation about complaints of this type.
- While incompetent representation is always to be deplored; is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar  EWCA Crim 1096, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe. We stress this point for two reasons. First, that was, rightly, the approach of the CCRC, who identified specific mistakes of the order that we have just mentioned as the basis for their Reference; albeit thinking that the errors had been caused by incompetence. Second, while the analysis that we have just set out was accepted by Mr Carter QC for Mr Day, Mr Carter understandably sought to stress ways in which, in his contention, the pre-trial errors had effectively rendered it impossible for the trial to be properly conducted on behalf of Mr Day, whatever the skill and devotion of those representing him at that stage. We have, we think, fully understood that contention, and will seek to address it fully in what follows; while continuing to remind ourselves of the basis, already set out, on which this appeal has to be adjudicated.
The CCRC's reference to this court
- The CCRC were very critical of the standard of preparation of the case by Mr Day's solicitors, and in particular of the late instruction of Mr Roy Amlot QC. He was sent instructions on 9 March 1993; advised in consultation with junior counsel on 12 March 1993 (a Friday); and the trial opened on 15 March 1993 (a Monday). We will have to return to various aspects of those events. The CCRC summarised its reasons for referring the case back to this court in paragraphs 10.9.7, 10.10.1 and 10.15.5 of its Statement of Reasons [Reasons]:
"The Commission does not consider that these matters [of poor preparation] taken in isolation affect the fairness of the trial and therefore the safety of the conviction. They are however indicative of the poor standard of early preparation of the case and in the Commission's view must be taken to have hindered the further preparation of the case and the conduct of Mr Day's defence at trial.
The Commission has identified the three key elements in the case against Mr Day as having been; the evidence of Miss Tuckwell, the presence of the handprint on the window of Next and the evidence of Monaghan (allied to that of Mr Steer). The Commission considers that there were steps that could have been taken in relation to each of these matters that were not taken. Much of the responsibility for this rests with what appears to have been the poor preparation of the case prior to the instruction of leading counsel. There are, however, aspects of Mr Amlot's handling of the matter which the Commission concludes are open to criticism.
It is the view of the Commission that had Mr Day's case been presented differently, using material that was available to the defence, the outcome may well have been different. The Commission has therefore concluded that, taking into account the cumulative effects of the way in which the case was approached, there is a real possibility that the Court of Appeal will find the quality of representation afforded to Mr Day to be such that he did not receive a fair trial and his conviction is accordingly unsafe"
- We have already recorded that Mr Carter did not feel able to pursue the CCRC's criticism of the defence's handling of Miss Tuckwell's evidence, set out in §§ 10.12.1-10.12.7 of the Reasons, and we accordingly say no more about that criticism. That decision however also impacts on the CCRC's criticism with regard to the handprint. The CCRC considered [Reasons, § 10.13.1] that the failure of the defence was not to identify the implications of the handprint and seek an explanation of it from Mr Day. As we conclude in §77 below, that criticism is unfounded. The problem for the defence was that Mr Day had no explanation to give, and the explanation that he has now advanced is inconsistent with his defence at the trial. But the CCRC went further, and pointed to the link between the handprint and the evidence of Miss Tuckwell. It was the CCRC's view that if Miss Tuckwell's evidence was attacked, as in the Commission's view it should have been, the handprint could not be relied on to restore her credibility. With the abandonment of any attack on the handling of the Tuckwell evidence, the handprint necessarily assumes distinctive corroborative force.
- The case as presented to us accordingly took a different shape from that in the reference. It is, we think, not inaccurate to say that it contained the following elements, which to some extent overlapped.
- First, the appellant adopted and reinforced the criticism of the preparation of the case by his solicitors. The effect of this was that Mr Amlot, in the time allowed to him, simply was not able to grasp all the implications of the case, and in particular the account that Mr Day wished to give. The inadequate preparation was exacerbated by Mr Amlot not being properly warned by the solicitors of Mr Day's personal diffidence and difficulties of communication. That led to Mr Amlot not being in an adequate position to make important decisions about the conduct of the case, in particular as to whether Mr Day should give evidence; and as to the cross-examination of Monaghan.
- It will be recalled that that last matter had been identified by the CCRC as a respect in which Mr Amlot was open to criticism, and that criticism was developed by Mr Carter as the second major strand in his argument.
- Third, the solicitors were criticised for not identifying and making available to counsel character evidence that could have been called as part of Mr Day's case on liability. This complaint was not addressed by the CCRC, no doubt because it featured nowhere in the 35 page submission on behalf of Mr Day that formed the basis of the CCRC's review of the case.
- As we have already pointed out in §2 above, this court has to consider the appeal as presented, even if it diverges from the approach of the CCRC; and that is what we do in the remainder of this judgment. First, however, we must give an account of the preparation of Mr Day's case, and of the complaints made about that preparation.
The preparation of Mr Day's case
- Mr Day when arrested was originally seen at the police station by the duty solicitor, a Mr Bate. Mr Bate, having taken instructions, advised that Mr Day should, except in respect of matters entirely preliminary to the incident, give a no comment interview. He also appears to have taken an initial statement from Mr Day [the first statement] In a handwritten draft of that statement Mr Bate appears to have written, of the fight itself:
"NB I deliberately did not question Mark too closely about his detailed involvement in these fights. Mark in his interview has admitted being present at the scene but has given 'No Comment' replies when questioned as to any wrong doing"
- Mr Bate however considered that he did not have the experience to take the case through to trial, and he recommended for that purpose a firm known to him, Messrs Whitehead Devereux. As a result of his recommendation financial arrangements were entered into between Mr Bate and that firm that, we understand, have attracted the attention of the Law Society. We have not gone further into those arrangements, because however much complaint was originally made of them on behalf of Mr Day it has not been suggested before us that they affected the conduct of the trial.
- The employed solicitor at Whitehead Devereux who dealt with criminal matters was a Mr Prus. He was then of about one year's admission, but he had had three years' earlier experience as an employed barrister in the Crown Prosecution Service. He is generally and severely criticised by Mr Day not only for lack of attention but also for incorrect judgement; but in particular three complaints are made, some of which we have already foreshadowed. First, that no proper proof of evidence was ever taken from Mr Day, thus rendering it almost impossible to advise on or to control the case. Second, that Mr Prus gave inappropriately optimistic advice not only to Mr Day but also to his family, who were closely involved in and concerned about the case. Third, that leading counsel was instructed extremely late, and in circumstances where it was impossible, however skilled and experienced counsel might be, for him to present the case properly at trial. We deal with these matters in turn.
Mr Day's statements: nature and contents
- Mr Prus told us that he attended upon Mr Day in custody on a number of occasions, he thought on one occasion accompanied by junior counsel. He said that he would have kept attendance notes of what Mr Day told him. Mr Prus left the employ of Messrs Whitehead Devereux many years ago, and would have left there such notes, if any, as he had taken. No such notes were before us, or before the CCRC. The CCRC recorded, at § 10.11.3 of its Reasons, that Mr Prus had declined to co-operate with its enquiries; so it is hardly surprising that this aspect of the matter has not been pursued further. We have had to work off the typed statements themselves, together with evidence that we were given about the manner of their compilation by Mr Prus and Mr Day.
- We have for convenience described the documents in question as "statements", but it is important to note that most of them are not dated and none of them are signed. Mr Day said in an affidavit prepared for the purposes of this appeal that he had been given what he described as "a handful of typed statements" on one of Mr Prus's visits to prison, and that they went through the statements together on Mr Prus's next visit. Apart from that, he had never approved the final form of any of the statements, and he was adamant that he had never even seen the "fifth statement", to which we will come below, until further investigation of his case took place after his trial and original appeal. Further, Mr Day said in his affidavit, and repeated in detail before us, that the typed documents contained statements attributed to him that he was adamant he had never made.
- We should say immediately that the omission to produce a single, detailed and coherent account of the client's evidence, agreed and signed by him, was a major failing in this case. Such a document not only clarifies what the client's evidence will be should he be called at the trial, but also serves as an agreed guide for the preparation of the trial. It also, as the present case graphically illustrates, avoids future disputes as to what the client's instructions had in fact been. There was also the further problem that Mr Day's reading skills in 1992 were, he told us, considerably less than they are now. It would therefore have been particularly necessary to ensure that he had time to absorb the documents and understand their content and implications. The process of statement-taking appears to have been completed in October 1992. While giving full weight to the difficulties of dealing with a client in custody, and particularly a client like Mr Day, there should have been ample time thereafter for a full statement to be produced and agreed.
- Mr Prus told us that he had handled the matter in the way that he had because he conceived the solicitor's role to be to take only what he described as "minimalist" statements from the client. The production of a full statement was, he thought, the role of junior counsel. This approach was said by Mr Prus to follow from advice given by the Law Society, whether or not in the context of Legal Aid funding was unclear. We found this account unconvincing, and think that at best Mr Prus must have misremembered the procedures. We do not need to pursue this issue further, because even on Mr Prus's view it must have been his responsibility to provide counsel with the basic material for the statement, and to press her to undertake what he thought to be her task. That he never did; there is no sign that any instructions in that sense were ever sent to counsel; and the coherent and signed statement was never produced.
- In the event, therefore, the five statements attributed to Mr Day that were included in the brief to leading counsel were not signed by him; contained no single coherent narrative; in some respects were self-contradictory; and included comment on the law and on the implications of the evidence that was only appropriate as advice by a lawyer, and not appropriate as observations ostensibly made by an unskilled person such as Mr Day. We have already noted that the first statement was, probably, taken by Mr Bate. It was rendered a good deal less useful than it might otherwise have been by Mr Bate's self-imposed limitation of his function that we have referred to in §23 above. The second statement was somewhat more extensive, and we will have to return to it. The three other statements contained material that it is necessary to set out because it is inconsistent with the case that Mr Day sought to have presented at the trial, and which he presented to us.
- The third statement was headed "Comments on Prosecution Case Summary Facts", and consists of a series of brief numbered paragraphs. The statement first recounts the argument at the burger bar, with Mr Day throwing a punch at French but missing, and then continues:
"(2) Then Steere [sic] punched French in the face
(3) Monaghan was fighting Chapman
(4) I ran over and wrestled French a couple of times by punching him in the face
[there is no paragraph (5)]
(6) CPS say myself and Monaghan dragged French over a car bonnet. This is untrue.
(7) I go off the bonnet and punched French a few times. We fell over.
(8) Steere then emerged and kicked French in the head or neck.
(9) I then punched him on the ground.
(10) I got off.
(11) I rang [sic] over to Chapman. I punched him over the eye causing a cut."
- There is then a document "Addition to Third Statement" which says in relevant part:
"I threw a punch at French with my right hand and missed him. At the same time, Scott Steer ran along and hit French. I then started wrestling with French and both of us fell on top of a car. I think that he was on top of me on the car. He then rolled off and fell on the ground. As he fell off, I got off the car and sat on his stomach facing his head and I hit him a couple of times in the face. Scott Steer ran along and kicked him once in the head or neck. I then hit French again once in the face. I then ran over and hit Chapman.
It could have been that Scott Steer kicked French first and then I hit him and then got off him or it could have been that I hit French first on the ground and then Scott Steer kicked him."
The statement went on to deny, as Mr Day has done throughout, any part in hitting French against the window of Next.
- A fourth statement, headed "Statement Taken 1 October 1992" consists of comments on the prosecution witness statements. A passage in it to which Mr Carter drew our attention was a comment on a witness called Feast, where Mr Day said:
"Feast says that he saw two men pull French from the side of the Cortina and run him into the Next window. As aforementioned, this is denied.
I was fighting Chapman at this point. I could not have seen the attack on French had it occurred I would not have been looking at French and his predicament but would have been concentrating on hitting Chapman."
Mr Carter said that that did indeed represent Mr Day's case.
- The fifth statement is headed "Fifth Statement of Events on 31.7.92 and 1.8.92 Mark Day". It refers to Mr Day throwing two punches at French by the burger bar, one of which connected, and then continues:
"At this point Chapman came over to protect his friend. I engaged in a fight with Chapman near the burger stall. Several punches were thrown. It took a considerable time period to enable me to knock Chapman to the floor.
I therefore, joined the second fight after Steere had headbutted French. I did not have a clear view of Steere and Monaghan. I did not therefore notice either of them throw French into the Next window. I do not, in any event, believe that this happened, and firmly believe that the witnesses……are mistaken. What they probably saw was Steere pulling French off Monaghan. French was apparently on top of Monaghan and it is logical that Steere had pulled him off, headbutted him and threw him forward, prior to accidentally kicking Monaghan and inflicting the fatal kick to French's head.
I did come over to the second fight and did punch French only. The rest is confused.
I am however of the opinion that the fatality is wholly attributable to Steere. I could only be liable for having assaulted French."
- If the material in some of the statements, and in particular those parts that we have quoted, was a correct account of D's involvement, then it placed him in very severe difficulties. In particular, a return to the Steer/French fight after the Steer headbut rendered it difficult, or as we would think impossible, to divorce Mr Day from responsibility, either as a joint principal or as a participant in a joint enterprise, for the fatal blows that had been inflicted on the Next side of the Cortina.
- We discuss later whether the form of the statements, and their content, handicapped Mr Amlot in the presentation of the case at trial. First, however, we have to address what became a major issue before us, the extent to which the statements correctly recorded the instructions that Mr Day had given to Mr Prus.
Mr Day's statements: veracity
- Mr Day's evidence to us was that where the statements said that he had punched French after he had been attacked by Steer; or said that he had returned to fight French after fighting Chapman; they were untrue, did not represent his instructions, and purported to reproduce statements that he had never made. His case was and always had been that, as set out in the fourth statement quoted in §33 above, he had been engaged with Chapman at the time that Steer was attacking French.
- This case had previously been put in a less definite form. In his submissions to the CCRC (prepared in great detail by professional advisers) and in his affidavit in this appeal (plainly prepared with the benefit of advice from professional advisers) Mr Day had gone no further than to say that he had never seen and did not agree with the fifth statement. But that statement, with the reference to which Mr Day objected to his joining the "second fight", did no more than put in different words and in a different order the account as to engagement with Steer and French in paragraphs (7)-(9) of the third statement, that we have set out in §31 above. Mr Day's more extensive claim in this appeal, disowning the third statement and the addition to it, as well as the fifth statement, could only be correct if either Mr Prus had fabricated those parts of the statements that diverted from the case that his client wished to present; or had taken the statements with such incompetence or misunderstanding as to record, on a number of occasions, statements that his client had not made and which it must have been clear he could not have intended to make.
- When we pointed that out in the course of argument Mr Carter said that that was indeed the appellant's case: Mr Prus had either fabricated the third and fifth statements, or had written them with gross misunderstanding of what Mr Day was telling him. We are bound to record that not only was that case not put to the CCRC, but it did not feature in the Perfected Grounds of Appeal settled on 9 February 2003, nor in the skeleton argument dated 23 February 2003: that is, two days before the hearing of the appeal opened. Nevertheless, this was plainly an issue that had to be addressed by this court, once it had been raised and supported by evidence from the appellant. It was not the respondent's intention to call Mr Prus as a witness, but in view of the allegations made against him we directed that he should be tendered for cross-examination.
- We have already indicated that the mode of preparation of the statements and their final form was wholly unsatisfactory. When Mr Prus gave evidence, his explanation of why the statements had been in the "minimalist" form that he described was difficult to follow. We were also shown a disturbing letter that Mr Prus had written to Mr Bate on 7 August 1992, before Mr Prus's involvement in the statement-taking process commenced. Mr Prus there said:
"As a preliminary step, we must obtain a detailed statement from [Mr Day] at Feltham. We need not concern ourselves initially with the contents, for it these are unfavourable, we need not disclose it to Counsel."
- It hardly needs to be said that this letter displayed a wholly incorrect attitude to the solicitor's role and responsibilities. It appears to be of the same order as the approach of Mr Bate, set out in §23 above. Counsel cannot either properly advise his client; or properly perform his duty to the court; unless he knows what his client's instructions have been. When Mr Prus was shown this letter in cross-examination, ten years after he had written it, he unreservedly condemned it; as do we. That said, however, we were a good deal less clear as to whether the letter and the contemporary attitude that it revealed illuminated the question of the genuineness of the parts of the statements to which Mr Day takes objection. The complaint now made against Mr Prus is not that he concealed unwelcome material from counsel; but that he included in the statements and in the brief unwelcome material that the client had not in fact authorised.
- As to the latter allegation, Mr Prus expressed bafflement as to why he should have deliberately falsified his client's case and his instructions to counsel in the way alleged; and we share that incomprehension. Whatever the incompetence that was displayed, Mr Prus had no interest in inventing a case that was unfairly detrimental to his client, and we are satisfied that he did not do so. Had this allegation been included in the submissions to the CCRC we are confident that its fragility would have been rapidly exposed by the Commission.
- The allegation of incompetence leading to mistransmission is less obviously inept. Mr Day never signed the statements, a step that would have disposed of this point, though as we have seen his evidence was that he had gone through what must have been at least some of the statements with Mr Day. The attendance notes that Mr Prus says that he took are not longer extant, so cannot be used for purposes of comparison. However, the error alleged by Mr Day did not, as was first thought, extend merely to the fifth statement but, as we have set out in §§37-38 above, alleged that an incorrect account had been attributed to him on more than one occasion. Mr Prus was closely examined by Mr Carter on this issue. Having given careful consideration to that evidence, as well as to the evidence of Mr Day, we consider that what would in any event have been the striking error of repeated misunderstanding of the client's instructions did not occur. We found wholly unconvincing the evidence of Mr Day, denying that he had ever said much of the contents of the statements.
- Mr Carter had sought to support his case on this issue by pointing to a letter written by Mr Prus to junior counsel on 28 August 1992, enclosing the third statement, which was alleged to give a different version of events from that contained in the third statement itself. That, said Mr Carter, showed the cavalier way in which the taking of instructions had been handled. We do not agree that the differences, such as they were, showed a misunderstanding on the part of Mr Prus of the account that his client had given to him. And, perhaps importantly, in the letter Mr Prus drew specific attention to the fact that the statement placed Mr Day as fighting with French at the same time as Steer was engaged with French.
- Because of the form that this appeal has taken, as already referred to in §2 above, we have found it necessary to make specific findings as to some of the factual issues raised in the course of the proceedings before us. In the present instance, and for the reasons indicated above, we find as a fact that the statements correctly recorded instructions given by Mr Day to Mr Prus. Some of those instructions were confused or contradictory, and we have already indicated Mr Prus's failure to press his client for a single coherent account.
Mr Prus's advice to Mr Day and to his family
- Mr Prus was criticised before us for giving advice to Mr Day and to his family that was, on the material before him, incorrect or, at least, overly optimistic. Quite apart from its implications for the solicitor's duty to his clients, this conduct was said to have two implications for the present appeal. First, it cast further doubt on what Mr Prus's instructions in fact had been. If in truth Mr Day had given instructions in terms of the third or fifth statements, he should have been told that his case was very serious indeed. Second, that lack of appreciation of the difficulties of the case produced a false sense of security, which diverted attention from proper preparation for trial.
- We respectfully agree with the CCRC, in § 10.9.4 of its Reasons, that the error that was made was to think that an adequate defence would be provided by an argument that, as Mr Prus put it in a letter to Mr Day's parents on 2 October 1992, the sole cause of death was the kick inflicted by Steer and admitted by him in his police interview. This view appears to have been shared by Mr Prus and junior counsel. Even a brief consideration of the then law on joint enterprise, as most clearly set out in Anderson & Morris (1965) 50 Cr App R 216, should have demonstrated that, on his own account, Mr Day had participated in an enterprise from which Steer's kicking was unlikely to be regarded as a relevant departure; quite apart from the scepticism that might greet a claim that participation that far had not gone on to involve participation in the thrusting of French into the window of Next. That said, however, we are satisfied that this error sprang from a failure properly to analyse the law (a failure that was shared by junior counsel); and not from any realisation by Mr Day that the material that he had placed in counsel's brief was not in fact reliable. In his evidence before us Mr Prus accepted that he had not pursued this aspect of the case with proper force, nor properly warned Mr Day or his parents. He said that with the benefit of the further ten years' experience that he now had he would have dealt with the matter very differently.
- So far as the preparation of the case is concerned, there is great difficulty in tracing what, if anything, was further undertaken before the instruction of Mr Amlot. We mention something of this in the next section of this judgment, dealing with the instruction of leading counsel. However, by October 1992 instructions, such as they were, had been taken from Mr Day; steps had been taken to see if any helpful pathology evidence could be obtained; and the evidence of the handprint had not emerged, since it was served as additional evidence only at the beginning of March 1993. There remained, however, the instruction of leading counsel, for which legal aid had been extended in October 1992.
The instruction of leading counsel
- In a letter to Mr Day's parents written immediately Whitehead Devereux took the case over, in early August 1992, Mr Prus said that he would be seeking a certificate for a leader, and would instruct a named QC whom "I always use". That was not true. Mr Prus was, at best, at the beginning of a hoped-for professional relationship with the leader in question; as indeed he was himself only at the beginning of his career as an independent practitioner. He should not have written in anything like those terms. In the event, the leader in question was not instructed. Whether that was because Mr Prus was told by his chambers that he was unavailable is not now clear.
- The CCRC on the material before them (which, it will be recalled, because of Mr Prus's lack of co-operation included nothing from Mr Prus, nor any statement by him), concluded that nothing at all had been done in the direction of finding leading counsel until Mr Amlot was approached in the week before the trial. The CCRC rightly, if we may say so, commented at § 10.9.7 of their Reasons that "this must be most unusual in a case of this sort". Further material now before us indicates that the brief had in fact been delivered successively to two leaders, each of whom was very well qualified to hold it. Because there are no attendance notes on the matter (and we are far from persuaded that Mr Prus kept any) it cannot now be traced when and with what notice the brief was returned. If the issue was important in the final determination of this appeal it would have been necessary, to the extent to which it is now possible to do so, to investigate any assurances of availability given by the respective chambers when the brief was delivered; and the extent of the notice given of unavailability and the reasons for it. But we do not need to pursue that further, because the important fact is that Mr Amlot, the man who was going to conduct the trial on Mr Day's behalf, did not receive the brief until the week before the trial; and this part of the appeal turns on whether, in those circumstances, he was nonetheless able to, and did, master the case properly, and conduct it without error at the trial.
The instruction of Mr Amlot
- We have already set out the dates upon which Mr Amlot received his instructions and advised in consultation. On any view, both were unsatisfactorily close to the date of the trial. Mr Amlot's brief contained, in particular, the five statements, and he used the consultation to seek to elicit Mr Day's instructions. That was done principally through the most comprehensive of the statements, the second statement, on which Mr Amlot made manuscript notes. We will come in due course to the terms of the instructions so given. First, however, we must rule on a series of allegations made about the conduct of and circumstances of this consultation.
- First, it was alleged that Mr Prus never conveyed to Mr Amlot, as he should have done, his impression that Mr Day was slow, diffident and a difficult person to take instructions from. That may have led to Mr Amlot being more confident than he should have been that he could obtain and had obtained reliable instructions from Mr Day. In that connexion also we should take into account Mr Day's own evidence that he did not remember much of the consultation, save that he had felt overawed and in "a bit of a state". We note, again no more than in passing, that this is another complaint that did not feature in the submissions to the CCRC, nor in the Grounds of Appeal and skeleton argument produced in the week before this appeal opened.
- Mr Amlot said that he could not recall whether Mr Prus had told him of Mr Day's difficulties when they met privately before the consultation, but he may have done so. Mr Prus gave us a fairly circumstantial account of having in fact informed Mr Amlot of the perceived difficulties. Mr Carter invited us to find that that evidence, like all of Mr Prus's evidence, was wholly unreliable. We do not so find. To the extent that it matters, we find that Mr Prus did give Mr Amlot the warning that he claimed. But the point is in the end of little relevance, because Mr Amlot told us that he had no doubt at the consultation as to what Mr Day was telling him, and did not get the impression that Mr Day was having difficulties in communicating his instructions. Mr Carter invited us to discount the latter evidence as unreliable assessment based on imperfect experience and knowledge of the client. We do not do so. We consider that a leader of Mr Amlot's experience would be concerned to satisfy himself, warned or not, as to the reliability of the client whom he was interviewing; and was well able to make a proper judgement on that issue.
- Second, and to some extent a related issue, the CCRC in effect concluded, adopting a criticism put to them by Mr Day's former advisers, that the combination of imperfect instructions and the short period of consideration allowed to Mr Amlot put him in a position where mistakes were almost bound to follow. Again, we do not agree. The case was certainly a serious one, but it could not remotely be described as complicated or difficult. It was only the issue of causation of death that added an unusual dimension to an incident of street violence of a kind regularly dealt with by junior members of the criminal Bar. What was required was an understanding of Mr Day's account of what had occurred, and the making of tactical decisions in the light of that account and of the prosecution evidence as revealed in the depositions. It would have been well within the competence of criminal advocates less experienced than Mr Amlot to deal with those matters effectively within the time and under the conditions presented to Mr Amlot. Mr Amlot told us, as he had told the CCRC, that he was confident that he had been able properly to master the case before the trial. Having heard Mr Amlot give evidence and be cross-examined we do not share the CCRC's scepticism about that assurance. In our view the CCRC underestimated the ability of any competent member of the Bar to master a brief well within the time available to Mr Amlot. Mr Amlot did say that it would have been better to have one single proof, but also that he was not handicapped by its absence, since the whole point of meeting Mr Day in consultation was to understand what his evidence would be.
- That leads on to the third point of contention, relating to the handling at the consultation of the five statements. We have already seen that Mr Amlot's evidence was that he had gone through all the statements with Mr Day, using and annoting the second statement as the basis of the instructions, but in other cases reading through the statements and annotating them where they did not accord with the present instructions. In his closing speech to us Mr Carter challenged whether Mr Amlot had in truth taken instructions from Mr Day about the fifth statement. He based that contention, first on the absence of any marking by Mr Amlot on the copy of the statement in his brief; and second on the inconsistency between the fifth statement (and for that matter the third statement) and the case that, on Mr Amlot's evidence, Mr Day related at the consultation and wished to have put at the trial. We did not understand that contention, which directly challenged Mr Amlot's evidence, to have been put to Mr Amlot when he was cross-examined. But in any event we reject the contention, and accept Mr Amlot's evidence on this point. To the extent that Mr Day's evidence to us was contrary to the evidence given to us by Mr Amlot we reject that also. We find as a fact that all five statements were gone through in the consultation, and that Mr Amlot took instructions on all of them. We agree that, as already noted, some of the statements were inconsistent with some parts of others of them. We deal with that issue separately below.
Mr Day's case
- We accordingly find that at the consultation Mr Day told Mr Amlot that his case, and his evidence as to the events of the evening, was as annotated by Mr Amlot on the copy of the second statement that was included in his brief. It will be convenient to set out the crucial parts of that account verbatim. After describing the exchange of insults at the burger bar the account continued:
"[French] stood there and started laughing at me. Kelvin [Prince] came up to me and took my hamburger from me. I then through [sic] a punch at French but did not hit him. I aimed for his face. Scott Steere [sic] ran in and hit French straight in the face which made French stumble. I walked forward and hit French in the face with all my strength using my right hand which is damaged.
French fell onto the front or back of a car. We were wrestling and both fell onto the car boot. French pushed me off the car and I fell onto the ground: both of us, just the two of us. I grazed my elbow and leg. French was still fighting hard and uninjured.
Somehow French fell onto the ground, he on bottom me on top. I hit him in the face whilst on the ground and I was sitting on him and I then got off him and Scott Steere came over and kicked him on the right hand side of the neck. French was lying with his head tilted to one side.
I then went over and hit Chapman who was standing up by the burger bar in the face. He fell and then we went. During our fight with French, [Monaghan] was fighting Chapman.
Kelvin Prince was standing to the side with Sandra during the fight "
- At this stage, we note the following relevant points in that account. First, Steer was reported as having taken part with Mr Day in an assault on French at the burger bar. Second, the fight between Mr Day and French in which Mr Day punched French whilst sitting on top of him (instructions that Mr Amlot told us he distinctly remembered being given by Mr Day) was reported to have taken place not by the burger bar but just by the Cortina. It will be recalled that the burden of the prosecution evidence was that the dispute by the burger bar had escalated into French being chased towards and then bundled over the Cortina. If Steer was, as Mr Day said, already involved at the burger bar, it was at least very likely that he took part, with Mr Day, in the chase after French. Third, Mr Day was adamant that he had never been on the Next side of the Cortina. Mr Amlot confirmed to us that he had always understood that to be Mr Day's case. That claim is contrary to the account that Mr Day gave to the CCRC in 1999, that is set out in §6 above. Fourth, in relation to the side of French's head or neck to which Steer directed his kick, Mr Day was able in the consultation with Mr Amlot to correct "left" that was in the original typed version to "right". Mr Day told us, as he had told Mr Amlot, that he had not seen Steer's kicking attack on French. He told us that he had obtained his information, including the circumstantial details about the location of the kick, from Steer when sharing a cell with him when they were on remand.
- It is also to be noted that the instructions given in consultation by Mr Day differed in some respects from other of his statements which, Mr Amlot told us, Mr Day had equally confirmed in consultation. First, in the third statement, and in the "Addition to the third statement" (see §§ 31-32 above) he had said that he had hit French after, not before, Steer had kicked him. Second, in the fifth statement (see § 34 above) Mr Day said that the fight with Chapman took place at the burger bar, and that he thereafter joined the "second fight" after Steer had head butted French.
- Mr Amlot told us that he would have noticed, and would have been concerned by, the inconsistencies in Mr Day's accounts, but that he was confident that by the end of the consultation he had obtained Mr Day's final version, as set out in §56 above.
- It is convenient at this juncture to revert to the matter of the handprint. That came to light only when a statement of additional evidence was served on 5 March 1993, some ten days before the trial. It was not therefore known about when Mr Day made his original statements. Mr Amlot told us that he could not be sure whether it was discussed at the consultation, but he was confident that instructions would have been taken about it before the trial opened. The problem was, as we have pointed out in §17 above, that the handprint caused severe difficulties for a central part of Mr Day's case, that he had never been on the Next side of the Cortina. Mr Amlot told the CCRC that he would have been very concerned if Mr Day had said to him what he, Mr Day, told the CCRC would have been his case at trial if asked about it (see §12 above), that the handprint may have got on to the window when he stood up after fighting French. We are satisfied that Mr Amlot never received such instructions. We consider below whether the conduct of the defence should have altered if Mr Amlot had received, or was culpable in not seeking out, instructions to that effect.
- Having considered the question in detail, we are satisfied that Mr Amlot was, after his intervention in consultation, in a position properly to conduct the trial, and we accept his evidence to that effect. We are unable to accept that the assumption of the CCRC, at § 10.9.7 of the Reasons, that the poor standard of early preparation of the case "must be taken to have hindered….the conduct of Mr Day's defence at trial," was in fact borne out in this case.
The conduct of the trial
- However, whether or not blameable upon the solicitors' poor preparation, criticism is made of decisions taken by counsel in the actual conduct of the trial. As we have already observed, the only aspect of the CCRC's criticism of decisions taken at the trial that is still maintained is that relating to the decision not to cross-examine Monaghan. Other complaints have been added since then; or complaints rejected by the CCRC have been persisted in. We consider all of those in due course. However, investigation of the position of Monaghan and the attitude of those representing Mr Day to his evidence reveals a number of general issues relevant to the conduct of the trial as a whole, and we will therefore deal with the Monaghan question first. And as a preliminary to that, we address the implications of Mr Amlot's absence from the trial while Monaghan was giving evidence.
Mr Amlot's absence from the trial
- On one day of the trial Mr Amlot had a prior engagement in a preliminary hearing in a fraud trial. He told us that he had informed both solicitors and client of this, without objection on their part. He had made arrangements for a substitute to take the fraud application should his presence at the Day trial be necessary. He left his junior to take a note, having formed a favourable view of her note-taking abilities. He scrutinised the note on his return, and if it revealed anything of concern would have applied to the judge to intervene out of order.
- We accept all of that evidence. Subject to the matter that we refer to in §71 below, we did not understand complaint to be made of Mr Amlot's absence as such. Rather, the objection was that he had felt able to absent himself because the day in question was that on which Monaghan was to give evidence, and Mr Amlot had decided that Monaghan would not be challenged or cross-examined. It is that latter decision that is heavily criticised, and forms the main plank of Mr Day's case in this appeal.
The decision not to cross-examine Monaghan
- The CCRC was very critical of this decision. Together with the defence's approach to the evidence of Miss Tuckwell, not now challenged in this appeal, it formed the basis of the Commission's concern about the outcome of the trial. The Commission said this, at §§ 10.14.3-4 of its Reasons:
"The crucial evidence from Mr Monaghan was that he was the protagonist in the incident involving Mr Chapman. At its highest, Mr Day's "fifth statement" instructions suggest that he returned to the incident involving Mr French after he was pulled off Mr Chapman by a witness called Pender. The Commission readily understands why this informed counsel's advice that Mr Day should not give evidence himself (not least because no prosecution witness spoke of him returning to the "French incident"). Insofar as Mr Monaghan was effectively implicating Mr Day in the main fight with Mr French while he, Mr Monaghan, was engaged with Mr Chapman, this was wholly at odds with Mr Day's instructions and should have been challenged.
The Commission is of the view therefore that the fact that Mr Monaghan gave evidence that went unchallenged on behalf of Mr Day may have significantly damaged Mr Day's defence. There would have been scope for challenging Mr Monaghan's account of his and Mr Day's involvement irrespective of the information contained in the "fifth statement". In his police interviews Mr Monaghan did at one point admit to the possibility that he might have been fighting Mr French. This and the weight of the eye witness evidence could have been put to him. As with Miss Tuckwell, the Commission is not in a position to speculate as to what response he might have made but considers that the challenging of his evidence could have raised doubts in the minds of the jury as to whether Mr Day was engaged in the fight with Mr French at the time that the fatal injury was inflicted. The fact that his evidence was not challenged on behalf of Mr Day may well have substantially undermined Mr Day's contention that his fight was primarily with Mr Chapman. Even if the accuracy of Mr Day's "fifth statement" is accepted it suggests that he was engaged with Mr Chapman for a substantial period of time during which Mr French may well have already received his fatal injury and therefore made all the more necessary the exploration of this point with Mr Monaghan. Mr Monaghan had pleaded guilty to an assault on Mr Chapman. By direct inference, this implicated Mr Day in the lethal fight. He gave evidence that he was not involved in the lethal fight, again implying that Mr Day was. He was not cross examined by those representing Mr Day. Mr Day himself did not give evidence and pleaded not guilty to assaulting Mr Chapman. In these circumstances the accumulation of the factors identified in Mr Monaghan's evidence were potentially extremely damaging to Mr Day's defence, yet they went unchallenged."
- In reaching this conclusion, the CCRC were plainly strongly influenced by the submissions to them by Mr Day's then junior counsel, no doubt reinforced at the meeting that the CCRC held with counsel and his instructing solicitors. In counsel's submissions the decision not to cross-examine Monaghan was variously characterised as a grave misjudgement; a decision that no competent counsel could have made; and a catastrophic mistake. The basis of these strictures was the conclusion that was in effect reached by the trial judge, that there had been two separate fights, one involving an attack on French and one an attack on Chapman. It was in that context that Monaghan claimed in his evidence to have been engaged in fighting Chapman at the time of the fatal assault on French. If that claim was believed, it seriously damaged Mr Day's case (as those who drafted the submissions to the CCRC believed it to have been) that after an initial, brief confrontation with French by the burger stand he was thereafter fighting with Chapman some distance away. If it was Monaghan who had fought Chapman, as he claimed, Mr Day could not have been involved with Chapman as well, and it was therefore imperative that that claim by Monaghan be challenged.
- We accept that the CCRC's exchanges with Mr Amlot did not lead them to an entirely clear view of the forensic position during the trial. We will revert to that aspect of the appeal briefly below. But after investigating the matter in some detail with Mr Amlot the following points became clear to us.
- First, Monaghan, unlike Steer, had never attributed responsibility to Mr Day. There was therefore no question of a "cut-throat" defence between them. Had Mr Day's counsel attacked Monaghan, forensically Monaghan's counsel would have had to respond. That would inevitably have drawn adverse comment on the absence of Mr Day from the witness box (which we discuss in more detail below). Second, it was never the Crown's case that if Monaghan had been fighting Chapman, Mr Day must have been somewhere else. The case never achieved that degree of clarity. The witnesses spoke of a confused, brief encounter or series of encounters, in which Steer, Monaghan and Mr Day were not necessarily the only participants. It did not follow that, even if Monaghan had not been engaged with Chapman, Mr Day must have been so engaged, or at least that the jury would accept that he must have been so engaged. Third, Mr Day's case, at its best, was not that he could not have been anywhere near the fight with French at the Cortina, because he was attending to Chapman. Leaving aside any reference to the fifth statement, his case as related to Mr Amlot, as set out in §56 above, was that he had only left French, by the Cortina and not by the burger bar, after he had punched French on the ground, and Steer had at least arrived on that scene. Then and then only did he attack Chapman. And he said that during "our" fight with French Monaghan had indeed been fighting Chapman.
- Fourth, and most importantly, Mr Amlot pointed out that in order to cross-examine on his account of events he would be obliged to put to him Mr Day's case, as just set out. That would have involved revealing that Mr Day indeed admitted involvement in a serious fight with French, sitting on him and punching him when on the ground, very close to the Cortina. It might also have involved admitting or asserting that, as noted in §57 above, Mr Day in his initial attack on French, which was followed by a rush towards the Cortina, had been accompanied by Steer. These facts had never emerged in the course of the prosecution case, where, as we have seen, most witnesses had had difficulty in attributing particular roles to the various participants. That that degree of uncertainty prevailed was a considerable forensic advantage for Mr Day. It would have been thrown away in any cross-examination of Monaghan, first because Mr Day would be admitting involvement, as Mr Amlot put it to us, uncomfortably close to the Next side of the Cortina; and second because confirmation from his own counsel that Mr Day had indeed been near the area of the fatal blows might very well have caused the jury to look with even greater scepticism at his claim that he was not one of those who had gone on to inflict those fatal blows on French.
- Our conclusion is therefore that, faced with a difficult decision, Mr Amlot was entirely justified in not opening up a case that so far had not been made against his client. Like all such decisions, that decision has to be seen in the context of the state of the case as a whole. When seen in that context, it cannot be criticised.
- We would add two further points. First, Mr Amlot told us that no complaint was made to him either by Mr Day or by Mr Day's father, who was taking a close interest in the case, about the decision not to cross-examine Monaghan. Immediately after the conviction Mr Day's father drafted, and we believe sent, a letter to Mr Prus in which he criticised various aspects of, in particular, the preparation of the trial. He made no criticism of Mr Amlot "who Mark feels did a very good job". We would place no weight on, and not refer to, what is inevitably a judgement by a layman who cannot have full understanding of the issues attributed to him, were it not for observations by Mr Day in his witness statement in the present appeal. Mr Day there described the day on which Mr Amlot was absent from the trial, and then said:
"I heard Mr Monaghan's evidence and the cross examination of him by Prosecuting Counsel. My immediate thought which I will never forget was feeling sick and thinking 'where is Amlot, when is someone going to say something on my behalf.' [Junior counsel] asked no questions. I felt devastated."
- Having heard Mr Day cross-examined on this passage, we are quite satisfied that it completely misrepresents Mr Day's attitude at the time of the trial. The professional advisers who took this statement from Mr Day (not, we believe, those who advised him in the course of the appeal before us) should have pressed him more critically about his contemporaneous reaction, and in particular with his father's letter: which was plainly available to them, as it was exhibited to a witness statement made by Mr Day senior at the same time.
- Second, the CCRC communicated with Mr Amlot solely in writing, and by means of questions posed as to various aspects of the case. When replying to those questions Mr Amlot did not have a complete file before him and, through no fault of his, did not give as clear an account of the issues and decision as he gave to us. We appreciate that there are limits on the resources of the CCRC. However, in this case the Commission held meetings not only with Mr Day and his father, but also with the junior barrister and the solicitors who had prepared the 35 page submission to the CCRC. They necessarily could not have added to that submission any first-hand information about the conduct of the trial, which they had not attended. We would venture to suggest that, if an issue of the present type again arises in a case of this gravity, the CCRC should at least consider directly interviewing the legal advisers whose decisions and conduct are under scrutiny.
- We have said that the illumination of the dynamics of and issues at the trial that we have obtained from consideration of the decision not to cross-examine Monaghan also considerably assists in assessing the other complaints that were put before us. We now deal with those issues.
A plea to the charge of assaulting Chapman?
- Ground 13 of the Grounds of Appeal stated:
"On the first morning of the trial Monaghan entered a plea of guilty to assaulting Chapman. [Mr Day] was not advised to enter such a plea. The effect must have been that it appeared throughout that Monaghan was admitting the assault on Chapman which placed him away from the fatal assault on French, whereas [Mr Day] was not."
This criticism was said to have underlined or made worse the error in not cross-examining Monaghan. The CCRC did not make that point, critical though they were of the handling of the case with relation to Monaghan. The point stands or falls with the criticism in relation to Monaghan, which we have already disposed of. Further, Mr Amlot gave us a very good reason for having witheld a formal plea to the count in relation to Chapman, in that he wanted to leave the jury with a verdict by which they could nonetheless mark their disapproval of Mr Day's conduct if they were uncertain of his guilt on the more serious charges. Given the unique nature of a jury as a tribunal, that was an entirely proper view for an experienced criminal practitioner to have taken.
- The CCRC said, at § 10.13.1 of its Reasons:
"The finding of Mr Day's handprint, in conjunction with that of Mr Steer, on the window of Next provided powerful support for the account given by Miss Tuckwell. The Commission has seen no evidence of any attempt by the defence to seek Mr Day's instructions about this. Indeed Mr Day states that he did not become aware of it until well into the trial itself…..In the view of the Commission, the failure of the defence was in not apparently identifying the significance of this issue at an early stage and in not seeking any explanation from Mr Day about it."
Ground 8 of the Grounds of Appeal before us reads:
"No instructions were taken by solicitors or junior counsel on the evidence that the Appellant's palmprint was found on the window next to the scene of the fatal attack upon the victim, as was the palmprint of the co-accused Steer"
The CCRC may not have been aware of the late date at which the evidence of the handprint emerged, as set out in §60 above, though we think that those advising at the date of the appeal must have been. In those circumstances, how the matter was handled by solicitors and junior counsel becomes somewhat academic. The issue is what instructions Mr Amlot obtained. He told us that he could not have been unaware of the significance of the handprint, and would have sought instructions in relation to it. The case that he put at the trial was, however, the only available explanation that was consistent with Mr Day's case that he had not taken part in the fight on the Next side of the Cortina.
- It is plain from this account that Mr Amlot does not appear to have pressed Mr Day strongly about the handprint. That, it seems to us, was a matter of judgement. But if he had pressed Mr Day, then at least on Mr Day's present evidence he would have been told that, contrary to Mr Day instructions at the trial, Mr Day had been fighting French on the Next side of the Cortina. In forensic terms, that would have been grave news indeed, for the reasons that we have already elaborated. In the paragraph of its Reasons that we have already referred to, the CCRC said:
"In a recent statement, made since the trial and appeal, Mr Day has suggested that the print might have been found on the window as a result of his possibly touching it at an earlier stage of the incident when he was engaged with Mr French before becoming involved with Mr Chapman. Given that the area of the incident involving all the participants was comparatively small such a possibility cannot be ruled out."
We feel bound to comment that any argument to that effect advanced at the trial would have been seriously damaging to Mr Day's case. It would not only have put him on the wrong side of the Cortina, with very limited room to maneouvre before the alleged arrival of Steer; but also, by stressing the limited area in which the incident took place, would have cast doubt on the basic assumptions underlying any detailed argument, such as Mr Day now relies on, as to the exact location of different participants at different stages of the incident.
- It was however argued, at a late stage of the appeal, that those advising Mr Day should indeed have recognised the hazard presented to his case at the trial by, in particular, the handprint, and should have adopted an entirely different strategy. We address that argument in the next two sections of this judgment.
Mr Day's failure to give evidence
- The CCRC did not criticise Mr Amlot for advising that Mr Day should not give evidence, or at least not seeking to displace Mr Day's own reluctance to give evidence. Ground 14 of the Grounds of Appeal however states:
"The Appellant did not give evidence. In the circumstances, it was in his best interests to give evidence. It is accepted that he was reluctant to give evidence and accepted advice not to do so."
- In truth, however, it was very strongly against Mr Day's best interests to give evidence. As already explained, the prosecution had only produced some evidence, which it certainly could not be assumed would be accepted by the jury, to place him in the fatal fight. The rest of his participation in the attack on French, and admitted by him in his instructions, had not emerged from the prosecution case. Had he given evidence, he would have had to set out his account in the terms stated to Mr Amlot; and possibly, as we now know, with the addition that he had in fact fought French on the Next side of the Cortina. The addition of those circumstantial details, placing Mr Day on his own admission very close to the fatal attack, would have done nothing to persuade the jury to disbelieve the evidence of Miss Tuckwell. And with a witness like Mr Day it was impossible to know where further cross-examination would have led.
- That approach would, in reality, have only been even arguably sensible if Mr Day's advisers had decided to present his case as having been involved in the fight with French in such a way as to expose him to the danger of a verdict of manslaughter, but not, because of the fatal kick by Steer when Mr Day was fighting Chapman, of murder. It was indeed contended before us that that was what Mr Day's advisers should have done.
A verdict of manslaughter?
- The basis of this argument, that only emerged in Mr Carter's closing submissions, was that at the trial Mr Day's advisers should have grasped the nettle by putting Mr Day in the witness-box to give evidence in the terms of his instructions; including, it would seem, the explanation that he now gives in relation to the handprint; and should in that context have vigorously attacked the evidence of Monaghan. The merit of that course would have been that that evidence, if accepted, although putting Mr Day in a serious fight with French, would have put him out of the way, fighting Chapman, when the fatal blow was inflicted. As we have seen, it is conceded that that would have exposed Mr Day to the possibility of being convicted of manslaughter, it would seem on the basis of participation in a fight that had a fatal result but without intention to cause serious bodily harm; but the evidence would at least have saved him from conviction of murder. There are, however, a multitude of reasons why the course now urged by his advisers could not have been to Mr Day's advantage. In explaining why that is so, we will assume that the positive case that Mr Day would have advanced at the trial would have involved his giving evidence in the terms asserted before us and in his statements to the CCRC, which we have summarised in particular in §6 above.
- Before setting out those objections, however, there is a factual difficulty about this argument. Mr Carter said, as had the CCRC in respect of the failure to cross-examine Monaghan, that Mr Amlot had acted with mistaken diffidence because he feared the effect of Mr Day giving evidence in terms of the fifth statement, with its reference to Mr Day joining the second fight. Mr Amlot had been at fault because he had not taken proper instructions from Mr Day about the fifth statement, and had not therefore discovered that it did not represent anything that Mr Day had ever said. But we have found, in §§ 45 and 55 above, that the statement did record Mr Day's instructions; and that Mr Amlot did properly ascertain that in consultation. It was in fact far from clear that Mr Amlot took the course that he adopted because of, or at least primarily because of, the fifth statement; but to the extent that that statement was a factor in counsel's thinking, it was a factor that he was not merely entitled but obliged to take very seriously.
- The basis of the present complaint therefore falls away. Quite apart from that, however, the difficulties of the argument would have been formidable. First, it is at least now Mr Day's case that he went to fight Chapman because he thought that Chapman was going to intervene in the fight between Steer and French. That was the account that Monaghan gave in his evidence at the trial, evidence that Mr Day complains that he was not allowed to give in the same sense. But the judge gave the jury a careful direction as to the implications in law of such a claim. He said, at p35 of the summing-up:
"If you are sure that Mr Chapman was going over to try to help Mr French at a time when, whoever was attacking Mr French, he intended to do him really serious harm or to kill him, and Mr Chapman was going to his aid; and if you are also sure that Mr Monaghan, seeing that situation, and knowing that whoever was attacking French intended to kill him or to do him serious harm, and stopped Mr Chapman from intervening, the situation then is [that] Mr Monaghan is liable to be guilty, and, as an accessory, an aider and abettor to the man who was doing the actual attacking."
That direction was, if we may respectfully say so, plainly correct. Its implications for the case that Mr Day says should have been put on his behalf scarcely need underlining.
- Second, the whole argument rests on the assumption that Steer's intervention at the Cortina would be accepted as a novus actus in the general attack, so far as it was such, on French; it being remembered (see §6 above) that the evidence was of a general move from the burger bar to the Cortina, and that Mr Day's instructions to Mr Amlot in consultation had placed Steer at the burger bar with Mr Day in the original confrontation (see §56 above). That assumption, we have to say, is optimistic. It suffers from the same weaknesses as did the advice given to Mr Day's family by Mr Prus and junior counsel: see §47 above.
- Third, in order to account for the handprint, Mr Day's instructions are that he fell with French on the Next side of the Cortina: see §12 above. That puts him perilously close, not only in space but also in time, to the fatal attack by the Next window. As we have already pointed out, it is very difficult to see how these assertions would not have reinforced the willingness of the jury to accept the evidence of MissTuckwell.
- We are therefore quite clear that taking a course at the trial that effectively invited a verdict of manslaughter would not have advanced Mr Day's defence to the murder charge that he faced.
- Mr Day was of good character, save that he had had a caution some one year previously for an offence of violence, involving headbutting. The issue of whether character evidence should nonetheless be called on his behalf never arose at the trial, because none was made available to Mr Amlot. There was in atttendance Mr Day's general practitioner, potentially to give medical evidence, but who at some late stage of the trial provided a statement as to character. That latter evidence, if given, would not have been unqualifiedly helpful to Mr Day. However, there are also before us statements from a number of witnesses who say that they would have been prepared to give evidence of character at the trial, but were never contacted by the solicitors. Most or all of these are friends of Mr Day's family, and in view of the active interest that Mr Day's father was taking in the trial it seems very likely that, if the solicitors had taken any step in that direction, these witnesses would have become readily available.
- This is a new complaint, which did not feature either in the submissions to the CCRC or in the provisional Grounds of Appeal, settled by leading counsel extremely eminent in criminal practice, on the basis of which this court was invited to conduct a summons for directions in January 2002. However, for the reasons already indicated we do not set it aside on either of those bases.
- Whether to call this evidence at all, had it been available to Mr Amlot, would have been a matter of some judgement. An understanding would have had to be reached with the prosecution and, probably, with the judge as to whether that would involve the admission of Mr Day's caution. Admission of that caution would have been a potentially damaging step, in view of the allegations in the present case, which included at least one of act of headbutting, albeit one not clearly attributed by the witnesses to Mr Day. Moreover, if the character witnesses had been tendered in the form in which they are before us it seems very likely that the prosecution would have wished to pursue the earlier incident: because several of the witnesses, apart from commending Mr Day's general character and responsibility, say that he was a person who was most unlikely to commit an act of violence.
- It is that latter aspect of the matter that also makes us doubt whether these character witnesses, if called at the trial, could have made any difference to its outcome. On the case that Mr Day says should have been made on his behalf at the trial, he had on any view been engaged in an unpleasant, gratuitous and violent attack: indeed, an attack that his advisers now say put him in hazard of a conviction for manslaughter. It would hardly be plausible in that context for friends and neighbours to say that he was not capable of, or very unlikely to commit, acts of violence.
- The failure properly to explore this area was undoubtedly a significant fault on the part of the solicitors in preparing the case. The failing was made the more obvious to Mr Day and his father when they heard character evidence given on behalf of Monaghan, and thereafter attributed Monaghan's acquittal in part to that evidence. Had the evidence been properly available, it might or might not have been called; Mr Day was entitled to have a reasoned decision from his advisers on that issue. But we are quite unable to conclude, when looked at in the context of the trial as a whole, that the absence of such evidence made any difference to the outcome of the trial in Mr Day's case.
The reality of the trial
- This judgment has largely been directed at the assumptions made on behalf of the appellant that the account that he seeks to give of his involvement in the events of the night would or might have been accepted by the jury. We need, however, to remember, as the court hearing the first appeal pointed out, that he was convicted on the evidence of an impressive witness, Miss Tuckwell, corroborated by the handprint, that placed Mr Day in the middle of the murderous attack, kicking French in company with Steer. Our task is to ask ourselves whether the evidence that Mr Day says should have been given at the trial might reasonably have displaced the view taken by the jury on the evidence that they did hear: Pendleton  1 WLR 72, per Lord Bingham of Cornhill. We find it impossible to answer that question in the affirmative.
- We would only venture to add this. The absence of character evidence was a significant failure in the preparation of the case that has required us to consider whether it affected the safety of the conviction. However, the remainder of the criticisms of the conduct of Mr Day's defence at the trial have resulted in what we are bound to say was a wholly inappropriate exercise: a detailed review of perfectly reasonable tactical decisions and advice by very experienced leading counsel. The CCRC may wish in relation to future applications to consider whether such an exercise should be permitted.
Mr Roy Amlot QC
- Mr Amlot is criticised by Mr Day's advisers and, in more measured terms, by the CCRC. We are entirely satisfied that those criticisms are unfounded. In our view, Mr Amlot conducted the case with skill and judgement. The appellant was fortunate to have secured his services: as in the immediate aftermath of the trial Mr Day himself very properly acknowledged.
Disposal of the appeal
- None of the very many arguments put before us persuade us that Mr Day's conviction was unsafe. We dismiss the appeal.