B e f o r e :
LORD JUSTICE KENNEDY
MR JUSTICE SIMON
MR JUSTICE BEAN
||- v -
||Stuart James Campbell
Mr Michael Borrelli QC and Mr Anthony Korda for the Appellant
Mr Orlando Pownall QC, Mr Brian Altman and Miss Navaz Daruwalla for the Crown
Hearing dates: 20th & 21st January 2005
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Kennedy :
- On 19th December 2002 in the Crown Court at Chelmsford this appellant was convicted of kidnapping and murdering his fifteen year old niece, who disappeared after leaving home for school on the morning of 18th June 2001, and whose body has never been found. Leave to appeal against conviction was granted by the full court on two grounds, each of which is critical of a ruling made by the trial judge.
The Grounds of Appeal.
- The first ground of appeal is that the judge was wrong when, on 7th November 2002, during the course of the trial, he refused to discharge a juror. The second ground of appeal relates to an earlier ruling made on 3rd October 2002, at the start of the trial, as to admissibility of evidence. It is said that the judge was wrong in failing to exclude inadmissible evidence, or alternatively he failed to exclude evidence the prejudicial nature of which outweighed its probative value.
Background to Ground One.
- The disappearance of Danielle Jones attracted a lot of publicity. The public assisted the police to search for her, and it was not until November 2001 that the appellant was arrested and charged. However, prior to that he had been arrested and interviewed on a number of occasions, and searches made at his home revealed, amongst other things -
(1) A large number of photographs, including photographs of teenage girls, some of them in provocative poses.
(2) That images downloaded from his computer included images of teenage girls, and also other material not led before the jury which for present purposes can be described simply as pornographic.
Furthermore, the appellant, who was born on 21st February 1958, had a number of previous convictions for a variety of offences, including in 1990 a conviction for in 1989 taking a child without lawful authority so as to keep her from lawful control. That offence related to a 14 year old girl who was allegedly taken against her will to the appellant's house in East Tilbury where he took photographs of her in a Karate suit.
- At the trial the prosecution did not seek to lead evidence as to the full range of photographs or computer images which were recovered, nor did the jury hear of the previous convictions of the accused, and even before the trial began counsel for both prosecution and defence were anxious that no one should be empanelled as a juror who might have prior knowledge of the appellant. Partly for that reason Mr Michael Borrelli QC for the appellant submitted unsuccessfully that the trial should be heard elsewhere, and thereafter both he and Mr Orlando Pownall QC for the Crown agreed that all members of the jury panel be asked to consider a number of questions which, with the approval of the trial judge, were provided to the members of the panel in writing. There were ten questions, the overall purpose of which was clearly to identify anyone with prior knowledge of the case, and for present purposes only question 6 needs to be recited. It read -
"As far as you are aware, do you know or are you related to a police officer or civilian police employee serving with the Essex Constabulary or in any way involved in the investigation into the disappearance of Danielle Jones?"
None of those empanelled to serve on the jury gave a positive response to that or any other question.
Events leading to and ruling of 7th November 2002.
- One of the jurors empanelled was Mr C. He lived in Great Waltham, a village just outside Chelmsford, and next door but one to Detective Sergeant Philip Davies, who had played a relatively minor role in the inquiry (amongst other things checking CCTV to see if one of the appellant's vehicles could be seen visiting a builder's merchants at a material time). DS Philip Davies and his wife had no social contact with Mr and Mrs C but Mrs C did from time to time cut the Detective Sergeant's hair. On the evening of Monday 4th November Mrs Davies called at the home of Mr and Mrs C to arrange such a haircut. Mr C was there, and Mrs Davies enquired about his working day. He said that he was not working at the moment as he was serving on a jury. Mrs Davies asked him if it was the Danielle Jones case and he said that it was. She then said that Phil (her husband) worked on that. The conversation ended there, but Mrs Davies reported it to her husband, who at once telephoned the officer in the case, acting Detective Inspector Keith Davies who happened to live in the same village. DS Philip Davies said to the Detective Inspector that he had never discussed the case with Mr C nor, to the best of his knowledge, had his wife. The substance of the telephone call was set out in a note prepared by the Detective Inspector for prosecuting counsel, and that note was shown to defence counsel and to the trial judge. At the end of the note the Detective Inspector said that he did not know Mr C, and so far as he was aware Mr C did not know him.
- On 7th November 2002 Mr Borrelli submitted to the judge that in the light of the note Mr C should be discharged, and that he should then be asked this question -
"Were you aware of any information about Mr Campbell prior to the commencement of this trial or, indeed, received outside the witness box that may have been passed on to other members of the jury?"
In the light of some of his submissions made to us it is worth recalling how Mr Borrelli began his submissions on 7th November 2002. He said -
"We are absolutely satisfied, on all the information made available, that there is no question of anybody keeping quiet about something that they should not have not kept quiet about, either police officer or juror."
The concern which he expressed was that some information about the appellant which was known to one or other of the two police officers who lived in Great Waltham, and which went beyond what was revealed to the jury, might have innocently got to the ears of Mr C and then been passed on by him to other members of the jury. Mr Borrelli went on to submit, that if, at the start of the trial, it had been known that one potential juror was a very near neighbour of the appellant the potential juror would have been asked to stand down. The judge accepted that but, as he pointed out, the position was not the same weeks later, after 58 witnesses had been called.
- The application to discharge Mr C was resisted by the Crown. Mr Pownall said that DS Philip Davies would not be called as a witness. His evidence was expected to be agreed, and, Mr Pownall submitted, there was no necessity to discharge the juror.
- The judge then considered the submissions, and ruled that there was no necessity to discharge the juror. He said -
"There has been no discussion of the case between any of these people. That is accepted by the defence. There is no reason to believe that the juror in question has received information which might in any way undermine his ability to judge this case dispassionately."
- After the notice of appeal had been served, and leave to appeal had been granted in relation to ground 1, Mr Borrelli sought directions from this court, and it was then ordered that statements be obtained from Mrs C and from DS and Mrs Philip Davies by a senior police officer from outside Essex, those statements to be taken in the presence of a solicitor acting for the defence. To facilitate that exercise a questionnaire was to be agreed between counsel to give direction to the statement taker. It was not suggested that there should be any approach to Mr C, but in the event a statement was also obtained from A/DI Keith Davies. A statement of 9th September 2004 added nothing of any significance to what appeared in A/DI Keith Davies's note dated 6th November 2002. He had once met Tanya (not then Mrs C) at an exercise class four to five years previously, and did know of Mr C, but that was all.
- DS Philip Davies said in his statement that he had known Tanya for several years -
"Tanya at one stage cut my hair, she knew I was a police officer. I cannot recall why exactly she would know but we may have discussed it during haircuts….. I assume Graham knows I am a police officer, we do not socialise or mix but it's a reasonable assumption to make as his wife knows my occupation that he would know it as well.
I have never discussed the Danielle Jones case with Mrs C. In relation to Graham C, before or during the trial I have not discussed the case with him at all. …..
During the trial I was getting a paper from a shop in Chelmsford when the door to the premises was held open for me, when I looked it was Graham that was holding the door. I knew he was on the jury but did not discuss or talk to him about it. …
After the verdict in the case I did see him outside his house. I came home, he saw me and said 'we reached the right decision' or 'gave the right verdict' or words similar to those I have described. I acknowledged that he had spoken to me but did not enter into any conversation.
After the appeal was published I was outside my house I saw Graham, I was aware that one of the grounds of appeal was the fact that he knew me, I thought it was appropriate to notify him of this. He asked 'what does this mean for me'. I informed him that he may well be interviewed about it but that this would require the approval of the Home Secretary or the Attorney-General. Nothing else was discussed."
We have re-ordered the paragraphs in the statement to put them in chronological order.
- Mrs Philip Davies, who is a schoolteacher, said that Mrs C -
"Used to cut my husband's and son's hair, she stopped doing that about a year ago and we have been out on the odd girl's night out, and I will speak with her in the street, to speak to she is a nice lass. …..
We live in a village so most of us know the professions of the other people who live in that village, Graham probably knows that my husband is a police officer, before my husband worked in plain clothes he was a uniformed officer.
I have never discussed the case with Tanya. I never discuss cases that my husband or my friend Keith Davies gets involved in, it's not right to do that so I don't. I never spoke to Graham about the case before the trial."
Mrs C gave her statement on 20th September 2004, and she said -
"I did not know her husband was a police officer, I knew he worked at Stansted Airport and thought he was in customs. … I never discussed the case with Jan or Philip Davies, it was late in the case that I found out Philip was a police officer on the case and that was when Jan spoke to me. …
Graham at that time did not know, to the best of my knowledge, that Philip Davies was a police officer. I can recall having a discussion with Graham about him recognising some one at the court. I would describe Graham's account of this recognition as familiarisation. He was unable to place who this person was or where he had seen him. I never asked Graham about the court case, but one day he did say that there was a problem and that the case did not start on time. I assumed there was a problem with a jury member knowing a person connected with the case. …..
Graham does not know people in the village, he barely speaks to Phil and barely says hello. He leaves early and comes in late."
- Mr Borrelli does not now submit, nor could he, that there is any reason to think that Mr C, at any stage prior to the verdict, received, still less passed, any information about the appellant which was not properly adduced at the trial. So all that remains is to decide how the trial judge should have reacted, and how we should react to the allegation of bias.
- The law, as it seems to us, is clear. It is unnecessary to go back to the speech of Lord Goff in R v Gough  AC 646 because, in order to take account of Strasbourg jurisprudence, the test he propounded was modified by Lord Phillips MR in Re Medicaments (No 2)  1 WLR 700 when he said at 727 -
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the (judge) was biased. It must then ask whether those circumstances would lead a fair minded observer to conclude that there was a real possibility…….. that the tribunal was biased."
That was approved by the House of Lords in Porter v Magill  2 AC 357 in which Lord Hope, after reviewing the authorities, said at 494H -
"The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was real possibility that the tribunal was biased."
The only other authority to which we need refer is Lawal v Northern Spirit Ltd  ICR 856 in which Lord Steyn said at 862C -
"It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson  201 CLR 488 at 509 para 53 by Kirby J when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.'"
Submissions and Conclusions.
- Mr Borrelli submits that it is now safe to infer that almost certainly Mr C knew before the trial began that DS Philip Davies was a police officer, and nevertheless failed to respond positively to question 6. We reject that submission. The evidence is to the opposite effect. It seems likely, but not certain, that Mr C, like his wife, only learnt of the occupation of DS Philip Davies when Mrs Davies called to arrange the haircut. Mr Borrelli then submitted that even if Mr C only learnt of his neighbour's occupation at that stage he is open to criticism because, having regard to the terms of question 6, he did not then tell the court what he had discovered. In our judgment he is not open to criticism, as Mr Borrelli rightly accepted before the trial judge. Assuming that Mr C did discover his neighbour's occupation on 4th November the trial had then been going for about a month, and it is extremely unlikely that Mr C would have been able to remember question 6. If he did remember the wording of that question he might well have said to himself that he did not "know" DS Philip Davies to the extent that would have required an affirmative answer to the question, and in our judgment that would have been a tenable point of view, but in fact nothing turned on his silence because of the action taken by DS Philip Davies. The court was told at once, and after a proper consideration of the information which was available to him the trial judge then made his ruling. We do not entirely agree with his approach. The test was not one of necessity, but it makes no difference to the result in this case because, in our judgment, no fair minded and informed observer, having considered the facts, would at that stage have concluded that there was a real possibility that Mr C was biased, and therefore there was no reason for him to be discharged.
- Nothing that happened thereafter seems to us to have changed the position in any way. There was a brief encounter in the newspaper shop when Mr C held open the door, but nothing of any consequence was said. Mr C's observation after the verdict might well have been made by any juror to any acquaintance who knew what the juror had been doing.
- In our judgment there is no substance whatsoever in the first ground of appeal.
Background to ground 2.
- It was central to the prosecution case against the appellant that he was not simply a caring uncle of Danielle, he was infatuated with her, and his infatuation was at least partly sexual. It fitted into the pattern disclosed by his photography of and behaviour towards other teenage girls, and his downloading of teenage images from the internet. That set in context and helped to explain other evidence of the relationship between the appellant and Danielle from Christmas 2000 onwards, such as -
(1) His regular attendance on her, collecting her from school and taking her to his house as much as four times in one week:
(2) His keeping a diary about her:
(3) His setting up her mobile phone, and thus being aware of her PIN number and then exchanging with her text messages, many of them sent late at night and some with sexual connotations:
(4) What happened to Danielle on 30th April 2001 when the appellant took her home during the afternoon. A woman who was house-sitting for his neighbour heard a man saying "there is no need to be embarrassed, I don't want you to do anything you are uncomfortable with. It will take only 2 minutes". A female then replied "alright for you". At about 5.30 pm on that day the appellant took Danielle home saying that she had fainted. Danielle said she felt as if she had been strangled. Her mother and others noted marks on the front and right side of her neck, but did not associate those marks with the events of that day, and the appellant in due course gave a number of differing accounts of what had happened. The entry in his diary for that day was later found to have been erased.
It was the prosecution case that whilst on holiday, and subsequently on a school trip from which she returned on the 15th June 2001, Danielle became disenchanted with the appellant, and there was evidence from some of her contemporaries to support that. Telephone contact ceased, but there was also some evidence that she was not particularly happy at home.
- On Sunday 17th June 2001, the day before Danielle disappeared, the appellant purchased computer software and deleted two thousand one hundred and five files. On the Saturday evening, and again on the Sunday evening, he spent a total of 4˝ hours visiting websites, amassing and downloading images, and six of those images downloaded were very similar to Danielle.
- On Monday 18th June 2001 a number of people saw Danielle at about 8 am after she left home for school. One claimed to have heard a girl of her description telling a man to leave her alone, and possibly telling him he was a pervert. Another, who knew Danielle, saw her at the front of a blue Ford transit van. The appellant owned such a van, and his wife had a silver Nissan car. Others claimed to have seen a girl in the passenger seat of a blue van, but there was also evidence from witnesses who saw the appellant's blue van in the drive of his house.
- It was the case for the appellant at trial that he left home at 7.02 am on 18th June 2001 in his wife's car to go to Wickes Store at Rayleigh, a journey which would have taken about 45 minutes, intending to be back in time for his wife to go to work. However he was delayed in traffic, so he telephoned his wife, and was not back until 9.20 am, having bought nothing even though the store did carry the hardware which he later claimed he had gone to buy. He did, however, he said, collect some leaflets, one of which was only released on 9th June 2001. The car park entrance to the store was covered by CCTV, and no silver Nissan was seen to use that entrance at the material time, but it would have been possible by using an unusual route to by-pass the CCTV. Expert evidence was called by the prosecution to show that when the appellant made the telephone call to his wife he was not where he said he was.
- About one month after Danielle's disappearance Kelly Humphries contacted the police to say that at about 10.45 to 10.50 am on the day of Danielle's disappearance she spoke to a girl who was sobbing in the toilet at Gray's Library. Having seen a photograph of Danielle Miss Humphries thought that she was very similar to the girl whom she had seen. Miss Humphries who did not know either the appellant or Danielle, was called on behalf of the defence, but the appellant did not himself give evidence.
- At 11.20 am the appellant went to premises where he was doing building work for Kay Hahn. He said he had been at home for the earlier part of the morning doing estimates and making calls. There was no evidence of any telephone calls having been made. She noticed that he had a second mobile phone with him and used his mobile phone at least twice, once around midday. At 11.57 a text was sent from Danielle's mobile phone to the appellant saying that she was in trouble and every one hated her. The content of that message was different in style and tone to any message which had been previously been sent by Danielle. For example, the abbreviations used in transmitting the text message were different. It was the prosecution contention that the appellant sent that text message, which he later showed to Danielle's friends. His own mobile phone was not used until 14.13. The expert evidence also showed that his mobile telephone and that of Danielle were in the same area for thirty hours after she disappeared, and it could be inferred that the same person was controlling both phones because, on four occasions, Danielle's phone was switched on and off apparently in response to what had happened on the appellant's phone.
- At 5.20 pm on 18th June 2001 Tony Jones, Danielle's father called at the appellant's home to see if he had seen Danielle. Both the van and the silver car were on the drive, but Mr Jones saw no one. Through the window he could see a closed tripod leaning against the settee, and four or five film packets strewn about the floor. There was no camera. It was the prosecution submission that the appellant wanted more photographs of Danielle and was under some pressure of time because his wife would soon be at home on maternity leave.
- On 19th June 2001 another text message was sent to the appellant from Danielle's mobile phone. Like the message on the preceding day it was transmitted from the area of the appellant's home, and it was the prosecution case that he sent it.
- On 23rd June 2001 a green bag was found in the appellant's loft. It included items of women's underwear, and a Bourjois lipgloss identical to one purchased by Danielle on 9th June 2001. Some stains were found on the stockings in the green bag, and two of them contained DNA from Danielle and the appellant. They were blood stains, but it could not be said whether the blood came from her or from him. It was not possible to say how long the DNA had been there or precisely how it came to be on the stockings.
- The appellant was arrested for the first time on 22nd June 2001, four days after Danielle disappeared. He was interviewed on a number of occasions, and he maintained from the outset that his relationship with her was normal. He was just a caring uncle in whom she could confide. He said -
"She didn't talk to her father at all and she couldn't talk to her mother…., outside of that you know some times she used to ask my advice basically. Or had there, if there had been a problem in the family i.e. an argument or a row or a another fight erm which was quite often the case, sometimes I would go round and, and sort of mediate a little bit."
He described the suggestion that he was obsessed with Danielle as ridiculous, and said of the diary -
"I started keeping a note of the rows and the arguments and when I had to go round there or when she texted …."
The frequent telephone calls and text messages between himself and Danielle were, the appellant said, at her instigation, and one text message which began "Hi sexy legs" was, he said, sent by a soldier with whom she corresponded. He rejected her father's suggestion that he had touched her inappropriately, and said that photographs of her which the police recovered and which we have seen had not been posed.
- The appellant was re-arrested and interviewed on 17th August 2001, and he was re-arrested again and interviewed on 13th November 2001, after which he was charged.
Submissions and judge's ruling.
- Mr Borrelli objected to the admissibility of (1) evidence of the behaviour of the appellant towards other teenage girls - principally involving photography - and (2) evidence of his Internet activity involving access to teenage sex sites and downloading of material from those sites.
- As to the first disputed area of evidence Mr Borrelli submitted that it did not bear on the issue of whether Danielle was murdered or might be still alive. It was not clearly and strongly probative of the crime charged. There was other evidence as to the relationship between Danielle and the appellant to which no objection was taken, and this disputed evidence went to propensity and no more. If it did have any probative value that was far outweighed by the prejudice to the appellant of that evidence being before the jury.
- As to the Internet activity evidence Mr Borrelli submitted that it was so prejudicial as to render a fair trial impossible. It was only a snapshot of the appellant's true range of Internet activity, but he could not introduce the full range of his activity without worsening his position in the eyes of the jury.
- Mr Pownall submitted that both areas of evidence were admissible, and highly probative, because they cast light on the relationship between the appellant and Danielle, and showed it to have a strong element of sexual attraction, at least on the appellant's side. It put in context other evidence, such as the diary and the contents of the green bag, including the DNA evidence. It provided some evidence of the motive for abduction, a burning desire to photograph Danielle, and it showed what the appellant said in interview about his relationship with Danielle to have been lies.
- So far as the teenage girls were concerned, objection was taken to 13 witnesses dealing with incidents extending in time from 1987 to 2001. The two girls photographed in 1987 were not kidnapped or forced to participate, but they were given clothing in which to dress up, and were photographed in provocative poses. Others in 1994 and 1995 were obviously persuaded to pose, but there was no suggestion that force was used. In 1995 the appellant was approaching girls at a shopping centre claiming falsely to be a photographer for a magazine. In 1997 two girls were photographed as they passed his home. In 2001 two other girls were approached at a gymnasium or swimming pool. All of that, Mr Pownall contended, helped to set in context the evidence that was found such as the green bag which could be directly related to Danielle.
- The Internet activity also helped to establish the appellant's interest in teenage girls, including in particular one who closely resembled Danielle. Establishing that the appellant had a passion for Danielle was an important part of the prosecution case.
- The judge accepted Mr Pownall's submissions. He said -
"The evidence in both disputed areas makes it at least very much more likely that the true relationship did have a strong sexual element, at least on the defendant's side. There are proper inferences to be drawn that the defendant was desperate to see Danielle on or about 18th June and to photograph her.
The disputed evidence is compelling and, as Mr Pownall puts it, very probative. To exclude it would be to provide the jury with a distorted picture and allow the defendant a much freer rein to persist in his denials, as well as explanations, that all was innocent association."
The judge then referred to authorities to which we have been referred, and to which we will return later in this judgment, and continued -
"The disputed evidence is not sought to be led in isolation. It is led in the context of other evidence which discloses a most unusual relationship, probably involving strong sexual attraction on the defendant's part.
It seems to me that the disputed evidence explains, interacts with and puts into a sensible context important parts of the evidence; for example, the green bag and its contents and the Danielle diary 2001. Those are only examples."
The judge indicated that he would give an appropriate direction in his summing up, which he did, and of which no complaint is now made. He rejected the suggestion that the evidence was more prejudicial than probative, and accepted that the evidence did have to be looked at as a whole because it showed the appellant's "enduring predilection for teenage girls".
In this Court: Ground 2.
- The arguments which Mr Borrelli and Mr Pownall advanced in this court were substantially the same as those which they presented to the trial judge.
- Mr Borrelli began by reminding us of the well-known passage from the advice of the Privy Council delivered by Lord Herschell in Makin v Attorney General for New South Wales (1894) AC 57 at 65 -
"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the evidence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."
Mr Borrelli submitted that the evidence which he contended should have been excluded was not relevant to any issue before the jury. If Danielle was kidnapped and murdered no one could suggest that to be accidental, and the issue raised by the defence was alibi.
- In Wright  90 Cr App R 325 this court held that a refusal by one judge at a pre-trial review to sever the indictment was not binding on another judge who tried the case, and went on to consider the merits of the application to sever, as related to the facts of that case. After referring to Makin Mustill LJ at 331 pointed out that the principle is subject to exceptions, as Lord Herschell recognised, for example "if there is a defence that acts prima facie attributable to guilt in fact had an innocent explanation." The evidence may go "to disprove a defence that an association with the complainant (or alleged victim) bears an innocent explanation". That was, as it seems to us, at least in part the position of the Crown in the present case. In reality the defence was not simply alibi, it also involved the appellant adopting the stance that his association with his niece was, or at least may have been, innocent. Mr Borrelli relied upon the decision in Wright for the proposition that the exceptions to the general rule set out in Makin "are not brought into play simply through a denial that the acts in question ever happened at all." We accept that, but that was not the basis on which the Crown sought admission in this case.
- In B (RA)  2 Cr App R 88 the appellant was charged with indecently assaulting his grandsons, which he denied. The jury was allowed to hear that homosexual magazines had been found in his possession, and that in consequence he had been questioned about them. Having set out the circumstances and referred to Wright this court held that the evidence should not have been admitted because "neither the answers nor the magazines were probative of anything save propensity". But that, as it seems to us, was simply not the position in this case. To admit the evidence of the appellant's association with Danielle without setting it in context was to invite distortion.
- Mr Borrelli also invited our attention to DPP v P  2 AC 447, and to the recent decision of this court in Haslam  EWCA Crim 1840. The appellant in the latter case was a consultant psychiatrist who was alleged to have indecently assaulted patients. One patient alleged rape. She was persuaded to go to a photocopying room, as happened with another patient JW, but JW consented to the events which took place in that room and so, this court held, evidence of what happened to JW should not have been admitted. In our judgment the decision in Haslam is of no real assistance to the appellant in this case.
- Mr Borrelli submitted that in the absence of being able to prove what had happened to Danielle the prosecution postulated what may have happened to her, by adducing evidence about the appellant's desire to photograph other teenage girls. Such evidence, it is said, should not have been admitted. The evidence which the defence concedes to be admissible does, according to Mr Borrelli, provide "a picture that is both complete and comprehensible" (skeleton, paragraph 57). That, as it seems to us, may be a critical assertion in the context of this case. Mr Borrelli also submits that in any event the prejudicial effect of the evidence in relation to other teenagers far outweighs its probative value. At paragraph 58 in his skeleton argument Mr Borrelli submits that -
"The overwhelming danger is that a jury concluding that the appellant had a desire to photograph his niece will use this conclusion as a stepping stone to provide a motive for kidnap and murder, despite the lack of evidence to place the defendant and a vehicle in Coronation Avenue at 0800 that morning."
On the other hand it can be said that if there is credible evidence of motive then it ought to be heard, and evaluated.
- Mr Borrelli adopted the same stance in relation to the evidence of Internet activity on the part of the appellant. The material was, he submitted, "overwhelmingly prejudicial and clearly went to propensity. Further, it placed the defence in an impossibly difficult position, namely to explain that the Internet activity focussed upon by the prosecution had nothing to do with, nor was it relevant to, the disappearance of Danielle because it was only a snapshot taken out of context" (skeleton paragraph 65). We acknowledge the difficulty, but it was of the appellant's own making. Understandably he chose not to try to introduce other material in an attempt to show that the snapshot was taken out of context, but that was his decision. Mr Borrelli also submitted that the Internet material was more prejudicial than probative. That, of course, was for the court to decide.
- As Mr Pownall submitted, and as can be seen foreshadowed by Lord Herschell in Makin and by Mustill LJ in Wright, one of the well-established exceptions to the general rule that evidence of misconduct on other occasions will not be admitted is -
"Where it is necessary to place before the jury evidence of part of a continual background or history relevant to the offence charged in the indictment, and without the totality of which the account placed before the jury would be incomplete or incomprehensible" (Pettman 2nd May 1985 unreported at page 14F).
As Mr Borrelli submitted in reply, Pettman was an unusual case in which the appellant was one of a group said to have committed a series of armed robberies. Evidence of an expedition to Brighton was admitted in relation to an offence at Acton even though the purpose of the earlier expedition was to commit burglary because the evidence was relevant. It connected the appellant with a car and a stolen cheque book used on other occasions in furtherance of the alleged conspiracy, and it was not found to be more prejudicial than probative. We agree that the facts of Pettman were unusual, but the principle set out by Purchas LJ in the words quoted above is clear, and it has been applied in a number of subsequent cases. The evidence which the defence sought to exclude in the present case illuminated the relationship between the appellant and Danielle. It helped to establish motive, and it also went in a legitimate way to rebut the appellant's stance when interviewed, namely that his was a normal relationship with his 15 year old niece.
- In our judgment the judge was right to rule as he did. The evidence which the appellant sought to exclude was relevant to establish the motive for the offences charged in the indictment, and evidence of motive is always admissible to show that it is more probable than not that the accused committed the offence charged (see R v Ball  AC 47 at 68).
- It was also admissible because without it the account of the critical relationship between the appellant and Danielle which the jury would have received would have been incomplete and capable of being distorted. Indeed, in the light of the evidence which they heard, the jury may well have concluded that the appellant did begin that process of distortion when he was interviewed. Of course the evidence was prejudicial, but for the reasons we have outlined it was highly probative, and we see no reason for it being excluded on the basis that it was more prejudicial than probative.
- So, as we said at the end of the hearing, neither of the grounds of appeal having been established the appeal against conviction must fail and it was therefore dismissed.