Lord Chief Justice: This is the judgment of the Court
INTRODUCTION
- On the evening of Tuesday 22 August 1961, Michael
Gregsten and Valerie Storie were together in a grey Morris Minor car in a
cornfield at Dorney Reach, Buckinghamshire. It was getting dark, when they
were approached by a man who threatened them with a gun. On his instruction,
the car was driven onto the A6. In the early hours of the following morning,
at a lay-by south of Bedford, Michael Gregsten was shot twice at close range;
he died almost instantly. Valerie Storie was raped and also shot: of
approximately seven bullets fired, five entered her body. Miraculously,
although she was left for dead, she was not killed; she did, however, suffer a
catastrophic injury which resulted in paralysis to the lower part of her body.
She was later able to describe the man responsible and provide considerable
detail both of the events of the night and of what had been said.
- On 14 October 1961, following an extensive police
investigation, James Hanratty was charged with capital murder. Committal
proceedings took place between 22 November and 5 December 1961. He was
indicted only for capital murder; there was no charge in relation to Valerie
Storie in accordance with the then practice.
- The trial commenced before Gorman J and a jury on 22
January 1962. 83 witnesses were called as part of the prosecution case,
James Hanratty and 14 others were called on behalf of the defence and 3
were called in rebuttal (of an alibi disclosed for the first time when
Mr Michael Sherrard, for the defence, opened his case). The trial having
lasted what was then a record 21 days, on 17 February, James Hanratty was
convicted of capital murder and sentenced to death.
- An appeal was mounted before the Court of Criminal
Appeal; it was heard on 13 March 1962 by Lord Parker CJ, Ashworth and Fenton
Atkinson JJ. The grounds of appeal which were pursued were that the verdict of
the jury was unreasonable or could not be supported by the evidence; the
learned judge failed properly or fully to put the defence to the jury; and the
learned judge misdirected the jury as to the evidence and/or failed adequately
or properly to sum up on the issues raised upon the evidence adduced by the
prosecution. There was no application to adduce further evidence.
- As to the first ground, giving the judgment of the
court, Lord Parker CJ observed that “there was abundant evidence which, if
accepted by the jury, would support the verdict”. In relation to the other
points, the Lord Chief Justice went on:
“Mr Sherrard … referred to a number of points which he says
the Judge failed to make and certain evidence to which he failed to refer.
This was a case lasting 21 days … and it would indeed be remarkable if every
item of the evidence were referred to and in which the Judge referred to
every point or comment made by Counsel on either side. Indeed, we would
emphasise that it is no part of the Judge’s duty to refer to all the
evidence or to mention all the points taken and comments made. His duty is
to present the case on each side fairly and impartially to the jury
concentrating of course on the vital issues in the case.”
In dismissing each of the grounds advanced, he went on to observe:
“[T]he summing up was clear, it was impartial, it was not only
fair but favourable to the prisoner and contained no misdirections of law
and no misdirections in fact on any of the important issues in the case. The
Court is of the opinion that this was a clear case.”
- On 4 April 1962, just over 7 weeks after his
conviction and 7½ months after the killing, James Hanratty was executed. It is
worth observing that he was one of the last to suffer that penalty in this
country. On 9 November 1965, by the Murder (Abolition of Death Penalty)
Act 1965, capital punishment was abrogated, initially until 31 July 1970, but
thereafter, by affirmative resolution of both Houses, permanently. It now
offends Article 1 of the Sixth Protocol of the Convention for the Protection
of Human Rights and Fundamental Freedoms.
- In the years which have followed, there has been a
vigorous campaign to establish that the conviction constituted a miscarriage
of justice. In July 1963, Fenner Brockway submitted a dossier to the Home
Office; on 2 August 1963, during an early day motion in Parliament, the
Home Secretary of the day rejected calls for an enquiry into the conviction.
In 1967, following a Panorama television programme, the then Home Secretary
appointed a senior police officer to undertake an inquiry into the alibi
evidence. He reported that the conviction was safe. On 1 November 1967, the
Home Secretary made a Commons statement to that effect. There were further
references to the case in the Houses of Parliament in 1969, 1971 (when a new
inquiry was refused) and 1972.
- In 1974, the then Home Secretary, the Rt Hon Roy
Jenkins, appointed Lewis Hawser QC to conduct an inquiry. Messrs Bindmans (who
continue to act for the Hanratty family) forwarded submissions. On
10 April 1975, Mr Hawser concluded that the case against James
Hanratty was ‘overwhelming’.
- On 13 July 1994, further submissions were made to
the Criminal Cases Unit of the Home Office. On 1 April 1997, responsibility
for considering alleged miscarriages of justice passed to the Criminal Cases
Review Commission (“the Commission”) who took over responsibility for
investigating the allegations as to James Hanratty’s conviction. Having
conducted further enquiries (including obtaining DNA evidence), on 26 March
1999, the Commission referred the conviction to this Court pursuant to section
13 of the Criminal Appeal Act 1995. The Commission stated, in accordance with
the statutory provisions, that there was a real possibility that the
conviction would not be upheld.
- The referral has been followed by Perfected
Grounds of Appeal which rely on 17 grounds. These grounds overlap. Eleven are
based on failures by the prosecution to disclose material to the defence, one
concerns the conduct of the identification parade at which Valerie Storie
identified James Hanratty, one relates to the interviews (and is supported by
E.S.D.A. testing of interview notes) and four deal with directions given
during of the course of the summing up (all but one based on stricter
standards introduced since 1962).
- On 17 October 2000, in the light of the DNA
evidence then available, this Court ordered that the body of James Hanratty be
exhumed for the purposes of obtaining specimens of his DNA. Extensive further
scientific evidence has since been assembled.
- In addition to raising factual issues the appeal
has required us to consider issues of law which are of general importance as
to the role of this Court in relation to fresh evidence relied on by the
prosecution as well as the appellant. The appeal also raises the vexed
question of how the changes in standards over the years affects appeals
against convictions following trials which took place prior to those changes.
We will deal with these issues after we have set out the facts
THE FACTS
- It was about 5.30pm on Tuesday 22 August 1961 that
Michael Gregsten, aged 36, and Valerie Storie, aged 23 (who were both Civil
Servants employed at the Road Research Laboratory at Langley, Buckinghamshire)
met after work. Using a borrowed grey Morris Minor car, 847 BHN, they went to
the Old Station Inn, Taplow, for a drink. They left the Inn at about 8.45pm
and drove to a nearby cornfield at Dorney Reach. About 30-45 minutes later, as
it was getting dark, a man approached the vehicle and tapped on the driver’s
window. Valerie Storie could see from his shoulders to his waist: he was
wearing “a dark suit and a white shirt and a tie - a very smart looking suit”.
Michael. Gregsten dropped the window halfway down whereupon a gun was thrust
through the window and the man said: “This is a hold up. I am a desperate man.
I have been on the run for four months.”
- After taking the ignition key from Michael
Gregsten, the man, whose face was partially covered with a handkerchief, got
into the back of the car. He remained with the couple for a period of about
six hours. Initially, he told them that ‘You will be all right if you do as I
tell you’. They remained in the field until about 11.30pm. Thereafter, the car
went on a rather roundabout journey through the Northwest outer suburbs
(Slough, Kingsbury, St Albans) and on to the A6 where the murder took place.
- A considerable amount of conversation took place
during the following six hours. In the light of the emphasis placed by both
sides on the extent to which what was said did or did not fit with James
Hanratty, it is worth summarising the evidence which Valerie Storie gave about
what he said. This included that:
i) He had not had the gun very long: “This is like a cowboy’s gun:
I feel rather like a cowboy”. … “It is a .38”.
ii) He had never shot anyone.
iii) He was very hungry, he had not eaten for two days and had been
sleeping out the last two nights (which Valerie Storie thought was
contradicted by his appearance); he had been in the Oxford area for the last
few days. On any showing, these facts did not fit with James Hanratty’s proved
movements.
iv) He had never had a chance in life; when he was a child he had been
locked in the cellar for days on end and only had bread and water to drink.
There was no evidence that this applied to James Hanratty.
v) He had been to remand homes and Borstal: he had done C.T. (i.e.
Corrective Training) and the next thing he would get would be P.D. (i.e.
Preventive Detention). He said: “I have done the lot” and that he had “done
housebreaking”. Miss Storie believed he said he had done five years for
housebreaking. The Crown argued that the phrase ‘I have done the lot’ was
slang for the removal of all remission of sentence resulting in a requirement
to serve a full custodial term. James Hanratty was one of only five prisoners
at that time to have ‘done the lot’ in this sense. The defence did not accept
that the phrase bore that meaning. Further, on any showing, James Hanratty was
not then eligible for a sentence of Preventive Detention.
vi) He had been on the run for four months which he later changed to
18 months and that “every policeman in England” was looking for him.
vii) He did not like smoking and did not usually smoke.
viii) Having asked about the positioning of the gears when Michael Gregsten
was driving, Valerie Storie concluded that he did not seem to have much
knowledge of the Morris Minor car. Further, he appeared to be very nervous as
a passenger and said things such as ‘Oh be careful of the lights’. On the
other hand, when asked by the couple whether he drove cars he said ‘Oh yes I
can drive all sorts of cars’.
- Having listened to the man over a very
considerable period of time, Valerie Storie felt able to describe his speech
and voice. She did so in these terms:
“He had got a London type voice. He could not say ‘things’ and
‘think’. He said ‘Fings’ and ‘Fink’. His voice was very quiet very soft
spoken, not a deep voice. I should say from his voice he was ‘twenty-ish’”.
It was not disputed that, in common with many Londoners, James Hanratty
pronounced “th” as “f”.
- During the course of the incident, the man took
their watches and some money (although Valerie Storie was able to hide some of
her money about her clothing); he subsequently returned both watches to her.
At one stage, the man said that he would put Michael Gregsten in the boot and
they got out of the car; in the event, he was not put in the boot. Throughout
this time, Valerie Storie could not see the man’s face as he had a
handkerchief covering the lower part.
- Some time after 11pm, on the instructions of the
man, they drove off and went through Slough. The man said that he knew of a
café where they could get some food. In Slough, Valerie Storie noticed the
time was 11.45pm. Later, they stopped at a garage for petrol and obtained
2 gallons which cost 9.9d. It was paid for with a ten-shilling note.
Valerie Storie said that the garage at which they had stopped was near London
Airport.
- They drove on and the man gave directions. At one
point in the Harrow area the man said, “Be careful: round the corner there is
some roadworks.” Although there was no sign to give any warning, round the
corner there were in fact some roadworks; he then, apparently hastily, added,
“I do not know this area”. In any event, it was Valerie Storie’s evidence that
he did seem to know the area and the prosecution relied on the fact that James
Hanratty’s family then lived at Kingsbury which is in the vicinity.
- There came a time when the man began to say that
he was feeling tired and “wanted a kip”. He said this several times. They
turned off the main road a couple of times, on his directions, the man saying
he wanted to do so to have “a kip”. Finally, again on his directions, they
drove into the lay-by or slip road on the A6 a few miles south of Bedford. All
the lights were turned out. The man repeated that he wanted “to kip” and said
that he must tie them up. The use of the word “kip” and the phrase “to kip”
became significant at the trial. According to the interviewing police officers
(Detective Superintendent Acott and Detective Sergeant Kenneth Oxford), but
denied by James Hanratty, it was used three times during the course of
contemporaneously recorded interviews.
- The man tied up Valerie Storie’s arms. He said to
Michael Gregsten, “I have got to find something to tie you up with”. When it
was suggested that he should use his tie, the man said, “No, I need that”.
Michael Gregsten was made to open the boot of the car and the man found some
cord which, together with Michael Gregsten’s tie, he used to tie Valerie
Storie’s hands. Gregsten returned to the driver’s seat and the gunman returned
to the backseat.
- In the front of the car was a duffel bag. He said
to Michael Gregsten, “Give me that bag up”. Michael Gregsten picked up the bag
with both hands, turned towards the interior of the car and as the bag was
just about to go over the back of the seat, the man fired two shots in quick
succession at his head. Michael Gregsten died instantly. Valerie Storie
screamed and said: “You shot him you bastard. Why did you do that?” His reply
was, “He frightened me. He turned too quick. I got frightened.” Miss Storie
tried to persuade him to get Michael Gregsten to a doctor and on two occasions
he said: “Be quiet will you. I am finking.” The pronunciation of that word was
relied upon by the prosecution. That, together with the direction to the jury
which followed is the subject of argument on this appeal (Grounds 6 and 15).
- Carrying on with the events of the night, the man
asked Valerie Storie to kiss him. She refused. At this time they were facing
each other and while in that position a car passed by lighting up the man’s
face. Miss Storie’s evidence was that this was the first (and only)
opportunity of “seeing what he looked like” and that “this was the only real
proper glimpse of him that I had”. Her evidence to the jury went on, “He had
very large pale blue staring icy eyes.” There was then this exchange:
Mr Justice Gorman: “Very large pale blue staring icy
eyes?”
Miss Storie: “Staring icy eyes. He seemed to have got a pale
face as I should imagine anyone would have having just shot someone. He had
got brown hair combed back, no parting. The light was only on his face for a
few seconds as the vehicle went past and then we were in complete darkness
again.”
She stated that she did not have good eyesight but was wearing her glasses
when this happened. She added to the description that he was a man in his
early 20s, clean-shaven, about her height (5 ft. 3½ ins.) or a little taller,
very quiet and soft-spoken, voice not deep.
- Valerie Storie’s evidence to the jury was that by
threatening her with the gun the man made her get into the back seat. He was
wearing black gloves. He seemed to have difficulty in getting them off and
made her pull one of them off. She could feel that they were of a very thin
nylon type texture. He then raped her. After that, when she tried to persuade
him to go, he again said: “Be quiet will you: I am finking”.
- On the man’s instructions, Michael Gregsten was
removed from the car by Valerie Storie who, with some assistance from the man,
dragged him out to the lay-by. The man asked her to start the car and show him
where the gears were; this she did and she also showed him how the lights
worked. She left the car running. It stopped; she re-started it and again
showed him how the gears worked. He got in the car and she went over and sat
down on the ground beside Michael Gregsten. The man then got out and went over
to her. He threatened to hit her and she gave him a pound and asked him to go.
He started to walk away and when about 6-10 feet away suddenly turned round
and started to shoot. Miss Storie felt one bullet hit her; when the second
bullet hit her she fell over and was hit by two or three more bullets while
lying on the ground. She heard a clicking sound as if he was re-loading the
gun, and then he fired another 3 shots which she thought did not hit her. (She
was in fact hit by 5 bullets and, as we have recorded, was paralysed from the
waist down in consequence.) He came over and touched her; she pretended to be
dead. He then drove off in the direction of Luton. With her right hand she
gathered up some stones and told the jury that she tried to make the words
“blue eyes” and “brown hair”.
- Valerie Storie said that Michael Gregsten was shot
at about 2.00-2.15am and that the man left about 3.00am. After he had shot
Michael Gregsten the gunman asked Valerie Storie again what her name was and
she asked “What shall I call you?”. He thought and said, “Well, you can call
me Jim.” (Valerie Storie said, on at least one occasion before trial, that she
thought that Jim was not his real name though in fact apparently it was the
name by which James Hanratty was known.)
- At about 6.30am Valerie Storie was found by John
Kerr an Oxford undergraduate involved in a road census. According to his
evidence, she told him:
“We were held up by a man with a gun who shot us. He said it was
a .38. We picked him up about 9 or 9.30 at Slough … He is about my own
height. He has large staring eyes. He has light fairish hair”.
John Kerr said that he made a note of Valerie Storie’s name and address,
the description and the number of the car which he gave to the police; the
note was not found. As to the discrepancies, Valerie Storie denied saying
‘light fairish hair’; she also denied ever saying that they had picked him up
because they had not done so. These matters were fully investigated at the
trial.
- Valerie Storie was taken to hospital. While there,
items of her clothing which included two slips and a pair of knickers were
taken from her and submitted for scientific examination. Semen stains on the
knickers were later found to have been derived from a person who was a group O
secretor.
- While at the hospital, Valerie Storie was seen by
police officers. The first two officers to attend at her bedside were
Detective Sergeant Rees and Woman Police Constable Rutland. Notes of what she
then said had happened to her were made. These notes were disclosed after the
trial and are the subject of grounds of appeal (Grounds 1 and 2). The same is
true of the fact that, in addition to making her witness statements, she was
interviewed at length (at which she made certain remarks to which the
appellant attaches significance) and was shown photographs (although it is not
suggested that she was ever shown a photograph of James Hanratty) (Ground 3).
- Returning to the chronology of events, three or
four hours after the killing at about 7am on Wednesday 23 August, a Morris
Minor was seen being driven along Eastern Avenue in the direction of Gants
Hill. As a result of the way it was being driven, John Skillett who was
driving his car to work, with his friend Edward Blackhall in the front
passenger seat, decided to catch up with the car. He pulled up alongside the
Morris Minor when they were almost stationary at a roundabout, leading to
Gants Hill station, to give its driver a piece of his mind. Mr Skillett
said that he had a ‘very good view’ of the driver’s face’. The vehicles were
abreast for about a few seconds. Mr Blackhall, the passenger, also
expressed himself as “certain” that he would know the man again; he identified
the car involved in the incident as the grey Morris Minor 847 BHN from three
strips of red tape on the rear bumper and a torn green label on the rear
windscreen. (The red tape was quite common on Morris Minors of that period and
the appellant suggests that the torn green label might have been seen at the
police station.)
- A little later that same morning, James Trower was
driving his car to work along Redbridge Lane East. He was about to pick up a
friend of his, Paddy Hogan. He parked his car and heard a car being driven
badly. The car, a light grey Morris Minor car passed him and turned into
Avondale Crescent where it stopped. Mr Trower stated that he had a
full-face view of the driver (for about three seconds) who was wearing a dark
jacket and a white shirt. As will become apparent when detailing the defence
evidence, Mr Hogan gave evidence to the effect that Mr Trower only
arrived at his house some twenty minutes or so after Mr Hogan had himself
noticed a Morris Minor turn into Avondale Crescent and come to a halt. Again,
this dispute was fully investigated at the trial.
- As to the presence of the motor car in Avondale
Crescent, this evidence broadly fitted with that of Doris Athoe. She lived at
6 Avondale Crescent and recollected the interest shown by the police in what
was the Morris Minor 847 BHN later on 23 August. She said that she had seen it
“round about 7 o’clock in the morning” and that it remained there on the
occasions (“at least twice”) that she had passed up and down the Crescent. Her
deposition was read and thus the time at which the car was left was not in
issue: the availability of new material on sightings of what may have been the
Morris Minor later that day provides a further ground of appeal (Ground 7).
- On Thursday 24 August 1961, (the day after the
killing), shortly before 9pm, the murder weapon, a .38 Enfield revolver, was
found; it was wrapped in a stained handkerchief. The gun was fully loaded and
was with five boxes of ammunition and some loose ammunition. These items were
all found by a cleaner, Edwin Cooke, underneath the back seat of a 36A bus at
the garage at Rye Lane, near New Cross. (The back seat of the bus had been
checked on the night of Wednesday 23 August 1961 and the gun and ammunition
had not been there at that time.) The prosecution suggested that the gun had
been deposited on the morning of 24 August. Complaint is now made that they
did not call or disclose the identity of the bus conductress, Pamela Patt
(Ground 11).
- There are two aspects of the place in which the
weapon was found. The first emerges from the evidence of Charles France (known
as “Dixie”). James Hanratty was a friend who regularly visited
Mr France’s home in Boundary Road, London NW8 where he lived with his
wife and children, one being a daughter Carol then aged 16. On an occasion
prior to the 21 August 1961, James Hanratty was discussing his activities as a
thief with Mr France and referred to the space under the back seat of a
bus as a receptacle. James Hanratty’s own account, given in evidence at the
trial was that he told Charles France that if he got on a bus with stuff in
his pocket he would sort it out upstairs on the bus and put the good stuff in
his pocket and put the rubbish under the back seat. It is clear that James
Hanratty knew about the space under the back seat and the fact that it was a
good hiding place for anything he might want to dispose of. The second feature
noted during the trial was the route of the 36A bus: it passes along Sussex
Gardens, near the bottom of Sutherland Avenue, Maida Vale, on which is to be
found the Vienna Hotel.
- Although not revealed during the trial, the police
put out an appeal to hotel staff generally requesting information about anyone
behaving strangely. One such report concerned a man, Peter Louis Alphon,
staying at the Alexandra Court Hotel in London. It is not suggested that there
was any evidence implicating Peter Alphon in any way but he was interviewed
and told the police that he spent the night of the murder at the Vienna Hotel
also in London. Thus, and for that reason, this hotel came to be visited.
- On 11 September 1961 (some twenty days after the
killing), two cartridge cases were found in room 24 at the Vienna Hotel,
Sutherland Avenue, Maida Vale; it was later established scientifically that
they had been fired from the murder weapon. The circumstances in which they
came to be found and the evidence given by four witnesses associated with the
hotel (together with other material relating to them which was not disclosed)
are the subject of a number of criticisms (Grounds 8-10). It is sufficient for
present purposes to identify the evidence (agreed by the defence). This is
that James Hanratty had spent the night of 21/22 August 1961 in room 24
at the Vienna Hotel in the bed adjacent to the chair under and on which they
were found (which was in an alcove). He had used the name of “J Ryan” of 72
Wood Lane, Kingsbury (which, according to the evidence at the trial, was an
address at which he had never lived although he had also used it when booking
a hotel in Ireland). Further, it is also important to underline that the spent
cartridges were discovered before James Hanratty had featured in the
investigation: it was their presence in room 24 that caused the police to seek
to identify the “J Ryan”. He had been one of only two people who had
spent a night in that room (which had four beds) in the period between the
week of the murder and the recovery of the cartridges.
- Given the evidence of what was found at the Vienna
Hotel, on or about the 22 September 1961, the police made a public appeal
for Peter Alphon to contact them. As a result, he voluntarily presented
himself to the police on 23 September; he had already been interviewed on
27 August and 7 September and he was interviewed again. He was then put
on two identity parades. The first was on the 23 September (held at Cannon Row
Police Station) when Edward Blackhall, James Trower and Harold Hirons (who was
a garage attendant who served a light coloured Morris Minor with 2 gallons of
petrol at about midnight on the night in question) attended. John Skillett was
away and did not attend. Valerie Storie attended the second parade on 24
September 1961 at Guy’s Hospital. No witness connected with the murder picked
out Mr Alphon. Valerie Storie picked out a man who was in fact a
volunteer; there is an issue about what was said of his description (Ground
4).
- In their search for “J Ryan”, on 25 September
1961, the police received information from a man who had written postcards for
Mr J Ryan who was then visiting Ireland; one of the postcards was
addressed to Mrs Hanratty, the mother of James Hanratty. Thus, for the
first time, the police turned their attention to him.
- At this stage, before continuing the chronology of
the investigation, it is sensible to say something about James Hanratty and to
provide a summary of evidence of his proved movements up to the time of his
arrest. He was born on 4 October 1936 and was thus aged 24 at the time of the
killing and 25 at the time of the trial. He was 5ft. 7in. to 5ft. 8in. in
height and had blue eyes. His hair was brushed back without a parting but he
had what is sometimes described as a “widow’s peak,” or tuft in the centre of
his forehead, which he wore forward (although when he gave evidence, he
accepted that before his last sentence he had worn it back). He had a London
accent. He pronounced “th” as “f”. His blood group was group O and he was in
addition a group O secretor.
- At the trial, at the request of the defence and
doubtless in order to demonstrate discrepancies with the description provided
by Valerie Storie, James Hanratty’s character was put in evidence. He had
appeared before the courts on four previous occasions, all for offences of
dishonesty (taking and driving away or stealing cars, housebreaking, burglary
or larceny). In March 1958 he was sentenced to three years’ corrective
training (C.T.). During the course of this sentence, he committed a number of
serious disciplinary offences and attempted to escape several times as a
result of which he was moved from a training prison to Manchester Prison and
forfeited all his normal remission. (In other words, so the prosecution
alleged, ‘he had done the lot’.) He had not been in a remand home: nor to
Borstal. He had not served a sentence of five years’ imprisonment and would
not in fact have been eligible for a sentence of preventive detention (P.D.)
until he was 30 years of age. There was no evidence that he had been locked in
a cellar for days on end. By his own account at the trial he lived on the
proceeds of housebreaking. He was never convicted of any offence involving
violence or sex. Several witnesses described his general behaviour, including
his behaviour with or towards girls and young women, as proper and
respectable. None had seen any indications of violence. He had been released
from prison in March 1961.
- More information about his appearance was provided
by Charles France’s daughter, Carol. She was a trainee hairdresser who, on the
Bank Holiday weekend of Saturday 5 August, at James Hanratty’s request, tinted
his auburn coloured hair black; his concern was apparently that it was too
conspicuous for a housebreaker. Miss France said she re-tinted it black on
Saturday 26 August as the colour was fading and there was some re-growth
showing at the back. On 3 October 1961 (at a time when he knew the police were
looking for a dark haired man in respect of the killing) he had the dye
removed from his hair in an endeavour to restore it to its original auburn. On
9 October 1961, he had had his hair bleached in Liverpool. The dying and
re-dying and bleaching had caused his hair to take on a vividly unnatural
colouring.
- Bearing in mind that Valerie Storie had described
the gunman as neat and tidily dressed in a suit, clothing was also important.
On 8 July 1961, James Hanratty, giving the address 12 Sycamore Grove,
Kingsbury, ordered a dark suit with a stripe from Hepworths, Burnt Oak. He
collected the suit on 18 August and wore it the whole of the following
week (that is the week in which the murder took place). The jacket to the suit
was never found. The trousers and waistcoat were ultimately seized; the labels
from them had been removed. The prosecution argued that the jacket was the
only part of the clothing likely to have become bloodstained.
- As to James Hanratty’s movements, evidence was
called by the prosecution to the effect that he was at the France’s house on
Sunday 20 August and again on Monday 21 August from about 2.30pm until he
left at about 7pm. Miss France remembered the date as she had a tooth out
on 21 August and the date of the dental appointment was also proved. When he
left, he said that he was going to Liverpool to visit an aunt, and that he
intended to take her to ‘the dogs’. He was wearing the Hepworths suit. In fact
he did not go to Liverpool that night and his aunt, who did in fact live in
Liverpool, gave evidence at the trial to the effect that she had not seen him
for several years. In the light of evidence called by the defence in relation
to a visit to a sweet shop in Liverpool, to which we shall return, whether and
if so, when James Hanratty went to Liverpool at about this time was important
and complaint is now made (as it was on the original appeal) that the jury
were not appropriately reminded of the effect or consequences of this
evidence: this is the one criticism of the summing up which does not relate to
developments of the law since 1962 (Ground 17).
- In any event, James Hanratty agreed that he
arrived at the Vienna Hotel at between 11.30pm and midnight on Monday 21
August and stayed there that night in room 24. We shall return to his
explanation of his movements at the time of the killing. As to the period
thereafter, however, there was evidence to establish his presence in Liverpool
on the evening of Thursday 24 August 1961 because an overnight telegram was
sent by telephone at 8.40pm to Mr France which read:
“Having a nice time. Be home early Friday morning for business.
Yours sincerely Jim.”
The telegram was sent from a telephone bar in the forecourt of
St. George’s Hall opposite the main railway station at Lime Street,
Liverpool. The sender was given as “Mr P Ryan, Imperial Hotel, Russell
Square, London”.
- When giving evidence, James Hanratty admitted
sending the telegram and stated that he returned to London early Friday
morning and went to see the Frances. They said this visit was on the Saturday
26 August, when he arrived at about 9am. According to Mr France, James
Hanratty said that he had been waiting at the station for a couple of hours
because he did not want to disturb them. He went on to say that he had stayed
at the Vienna Hotel on Monday 21 August 1961 and produced the hotel bill.
At no stage did James Hanratty tell any member of the France family that he
had been to Rhyl.
- On 4 September 1961, James Hanratty went to
Ireland, travelling from Heathrow to Dublin using the name Ryan. He stayed at
O’Flynn’s Hotel, signed the register ‘J Ryan’ and gave his address as 72 Wood
Lane, Kingsbury. On 5 September 1961, he obtained an Irish driving
licence and travelled to Limerick where he stayed at the Lomond Hotel. On
6 September 1961, he hired a car and travelled to Cork. On
7 September 1961, he was involved in a road traffic accident. Gerrard
Leonard who met James Hanratty in Ireland and accompanied him on trips in a
hire car described his driving as fast and slightly reckless; it was
Mr Leonard who informed the police of the link between the name
“J Ryan” and James Hanratty.
- There was evidence that James Hanratty was still
wearing the Hepworth suit at the end of September 1961. By the beginning of
October 1961, he was no longer wearing the jacket of that suit but was still
wearing the trousers and waistcoat with a black jacket. At the beginning of
October 1961, James Hanratty broke into two houses in the Stanmore area. From
one he stole a black jacket. He stated that he did this because he damaged the
Hepworth jacket in the course of one of these break-ins and that he disposed
of that jacket (which was never found) in a nearby recreation ground.
- On 5 October 1961, James Hanratty spoke to
Mr France on the telephone and said the police wanted him in connection
with the A6 murder. This led to a series of telephone calls to the police as
to which there was a substantial dispute at trial. The first telephone
conversation on 6 October 1961, was made at about midday from a telephone box
in Soho. The evidence of DS Acott was to the effect that James Hanratty said:
‘I know I have left my fingerprints at different places and some
different things and the police want me, but I want to tell you that I did
not do that A6 murder.’
The second telephone conversation took place at about 11pm on the same day;
that was limited to a discussion about getting in contact with a newspaper and
some conversation about James Hanratty ringing his mother.
- The final telephone conversation took place on 7
October and James Hanratty said: ‘This is Jimmy Ryan again, but you will never
guess where I am speaking from - Liverpool’. According to the officer this was
the first time Liverpool had been mentioned. James Hanratty said that on 21
August he had spent the night at the Vienna Hotel and on Tuesday
22 August he had travelled to Liverpool by train and stayed there with
three friends for five days before returning to London on Friday
25 August. He declined to name the three friends because they had
criminal records. He said that they were receivers of stolen goods and would
not come forward on his behalf.
- James Hanratty’s account of these telephone calls
at the trial was that he had told the police during the first telephone
conversation that he had been in Liverpool on the night of the murder. This
had been a lie that was, in effect, made up “on the spur of the moment” while
on the telephone to which, until the trial started, he had felt committed. On
6 October 1961, he had in fact telephoned Charles France and told him
that he had an alibi for the murder from people in Liverpool.
- On 11 October 1961, James Hanratty travelled from
Liverpool to Blackpool, where he was seen and arrested. He gave the name Peter
Bates but was quickly identified and, on the following day, he was seen by DS
Acott and DSgt Oxford. He was interviewed with DSgt Oxford making what was
described as a “sort of shorthand running note” of these interviews; they were
written in pencil on foolscap sheets although there is an issue as to when and
how this was done (Ground 12). It is not disputed, however, that after being
cautioned James Hanratty said:
“I understand, but, as I told you, I have got a perfect alibi
for the murder … Fire away and ask me any questions you like. I will answer
them and you will see I had nothing to do with the murder.”
- There were two interviews. The ‘perfect alibi’ was
an account of his trip to Liverpool, when he had visited three former prison
cellmates whom he was not then prepared to name. Other aspects of the
interview which James Hanratty accepted he had said included the following
facts:
i) After coming out of prison in March 1961, he had enquired of a man
called Fisher who lived in Ealing about a gun, “a shooter to do some
stick-ups”; in evidence, he also admitted that he wanted to be “a stick up
man”, that he knew where to get a gun if he wanted one but going on to say
words to the effect that he never owned a gun and that the whole thing was
just talk.
ii) His response to being told about the cartridges found on the chair in
the Vienna Hotel was to ask what size the bullets were.
iii) He had stayed at the Vienna Hotel on the night of 21 August, leaving
at 9.00am the following morning of 22 August. He had then travelled to
Paddington by mistake and then he went to Euston and had caught a train to
Liverpool.
- There were also a number of areas of dispute. In
particular:
i) According to the officers, James Hanratty told them that the telegram
had been sent on the Tuesday 22 August, the same day that he said he had
arrived in Liverpool. His account (put to them and repeated in his evidence)
was that he had told them at the first interview that the telegram was sent on
the Thursday but that subsequently DS Acott said to him: “We have
enquired about this telegram Jimmie. You said to me it was Tuesday. It was not
you know.” He had replied: “You have misunderstood me DS Acott. I said
Thursday.”
ii) In the course of the first interview he had said that he had thrown the
Hepworth jacket away after damaging it in the course of a burglary committed
in Stanmore; during the second interview, the officers alleged (although he
disputed this) that he had then said that he had in fact destroyed the
jacket.
iii) More important, the evidence of the officers was to the effect that at
the end of each interview he had spoken of going to “kip”, and in the second
interview used that word not once but twice. This was, of course, a word which
Valerie Storie recollected that the gunman had used on several occasions.
James Hanratty not only denied that he had used the word in interview; he
denied ever using it.
- Although there was an issue about whether James
Hanratty had mentioned his Liverpool alibi to the police on the telephone
(which was an important detail because he explained his late change of alibi
on the fact that he felt that he had already committed himself), on 13 October
1961, his solicitor, Mr Kleinman, certainly wrote and notified the police
of the details of that alibi. It was explained that James Hanratty had gone to
Liverpool on 22 August 1961, had then visited a sweet shop on Scotland Road
and asked for directions to Carlton or Talbot Road and had stayed in Liverpool
until 25 August; he provided details of a visit to the cinema and a visit to
New Brighton on the Wirral.
- James Hanratty had been arrested and interviewed
in Blackpool. Identification parades were then arranged in Bedford and
complaint is made about failure to disclose a concern expressed by DS Acott
about steps which should be taken to cover his (Hanratty’s) hair which was not
reflected in the evidence (Ground 5).
- At an identification parade held at Bedford Police
Station on 13 October 1961, John Skillett, the driver of the car who had
expressed concern about the way in which a Morris Minor had been driven in
Gants Hill, identified James Hanratty as the driver. The passenger, Edward
Blackhall picked out a volunteer. James Trower (who had seen a Morris Minor
turn into Avondale Crescent) also identified James Hanratty.
- The following day, there was an identification
parade at Stoke Mandeville Hospital where Valerie Storie remained confined to
bed (which had to be moved up and down the line). James Hanratty was on the
parade. Valerie Storie subsequently made it clear that she was startled by
James Hanratty’s unusual hair colour: in cross-examination, she agreed with
Mr Sherrard’s evocative description that it stood out “like a carrot in a
bunch of bananas”. Here is an extract from the cross-examination:
“A. I was satisfied after five minutes of the parade.
Q. You were satisfied after five minutes?
A. Yes; but I wanted to be sure – I was not going to make a
mistake this time.”
. . .
Q. Then you asked him to speak, or the men to speak?
A. Yes.
Q. Then you were wheeled up and down again at your
request?
A. Yes.
Q. Again asked the men to speak?
A. Yes.
Q. And then wheeled up and down some more?
A. Yes.
Q. Miss Storie, one appreciates your position of course, but it
is my plain duty to suggest to you, and I do suggest to you that, although
you may be convinced in your own mind, you are nevertheless absolutely
honest, but absolutely wrong. I make that quite plain to you.
A. I do not agree with that suggestion.”
- And from the re-examination of Mr Graham
Swanwick QC:
“Q. You have described the second parade as: being wheeled up
and down; I think you said, asked the men to speak; wheeled up and down
again and asked them to speak again. You said that after five minutes you
were sure. At what stage in the process of being wheeled up and down and
asking the men to speak were you first sure in your own mind?
A. I was absolutely certain as soon as I heard him
speak.
Q. The first time?
A. The first time.”
Mr Mansfield argues that the way in which the ‘aural’ identification
took place was “incurably unfair” (Ground 6) and also points to the failure to
provide what would now be required directions of law both as to the
identification generally and the voice recognition (Grounds 14 and 15).
- On 14 October, after the identification by Valerie
Storie, James Hanratty was charged with murder but that was not the end of the
evidence to become available for the prosecution. On 22 November 1961, a
prison officer overheard a prisoner Roy Langdale talking to another prisoner
on the bus taking them to court. He reported the conversation to the Governor;
this led to an approach by the police. Langdale’s evidence was to the effect
that he had exercised with James Hanratty and become friendly with him. During
the course of their conversations, James Hanratty eventually talked about the
murder, denying, but then admitting responsibility, going on to discuss the
circumstances in terms only consistent with guilt. Needless to say, Roy
Langdale was a man with a criminal record and there were some discrepancies
between his statement and the evidence which he gave. The confession was
challenged in its entirety.
- We turn now to the defence case which we shall
outline in a little detail. First and foremost, James Hanratty denied being
the man who had attacked Michael Gregsten and Valerie Storie, and the man who
had driven the Morris Minor car. He explained that he had dyed his hair to
make it less conspicuous; he agreed that he had told ‘Dixie’ France that if he
got on a bus with (stolen) stuff in his pocket, he would sort it out and put
the less good stuff in the back seat of the bus.
- He was able to give an account of his movements
over the vital period albeit that this account had changed. It appears that
within a few days of the commencement of the trial, James Hanratty informed
his lawyers that he had lied about being in Liverpool; he then told them (and
he repeated before the jury) that he had been in Rhyl on 22 and 23 August
1961. This information only came to the attention of the police on 6 February,
the twelfth day of the trial, when Mr Sherrard opened the defence case.
- James Hanratty’s account of events on and after 22
August 1961 was broadly as follows. On 22 August, having left the Vienna Hotel
at about 9.30am, he walked to Paddington Station by mistake. He then took a
taxi to Euston Station and travelled by train to Lime Street Station,
Liverpool (arriving at about 4.30pm); his intention was to meet a man whom he
had met in prison, but whom he had not seen for 3-4 years, in order to dispose
of a stolen ring worth £350. The man (Mr Aspinall) was apparently in the
grocery or greengrocery business and James Hanratty believed that he lived in
Carlton, Tarleton or Talbot Road. He had a wash at the station and then left
his suitcase in the left luggage office with a man whose hand was deformed or
withered. Having been directed by a woman, he got on a bus at or near the
station, but then got off it when asked to pay the fare because the conductor
did not know the place he was looking for. He got off in Scotland Road, spoke
to two or three people and walked into a sweet shop asking for directions. He
was told to go back into town because he had come too far. He then walked back
to Lime Street but could not find the road. He had a meal and then came upon a
man standing on the steps of a billiard hall to whom he had tried to sell a
watch but was told that he could not go upstairs because the premises were
licensed. He abandoned his search for Mr Aspinall.
- The account which had initially been provided to
the police was to the effect that James Hanratty then stayed in Liverpool on
the nights of 22 and 23 August with three men (whom, repeatedly, he would
not name he said for fear of exposing their criminal activities), in a flat in
the Bull Ring. When opening the defence, however, Mr Sherrard made it
clear that this account was untrue. He had, instead, gone to Rhyl.
- James Hanratty told the jury that, in fact, he had
left Liverpool on the same evening that he arrived and travelled (at about
7.30pm) by bus to Rhyl, where he stayed for two nights. His object was to find
another man, Terry Evans, but then known to him only as ‘John’, whom he had
previously met in Rhyl and who, he thought, would help him to dispose of the
stolen jewellery.
- In giving evidence, he provided a certain amount
of detail about ‘John’. John worked on the bumper cars on a fairground
operated by a man called Arthur Webber, and James Hanratty had first met him
on about 25 July 1961 when he had travelled to Rhyl and visited the
fairground where John worked. He had asked for a job at the fairground and,
having nowhere else to stay, had spent the night at John’s home. The following
day, John had given him a pair of shoes on the understanding that James
Hanratty would pay for them out of his wages; he did not, however, return to
the fairground and disappeared with the shoes. They had never, in fact, made
contact again.
- James Hanratty also provided further information
about Rhyl. He described the boarding house in which he had stayed, providing
detail of its location and furniture. He spent the following day trying to
find John but did not go to the fairground because he had gone away after he
had been employed there and did not want to go back. Unsuccessful in his
search, on Thursday 24 August, he returned to Liverpool where he saw a film,
‘The Guns of Navarone’. Having tried unsuccessfully to see a boxing match, he
sent the telegram to the Frances (which was, in fact, timed at 8.40pm) and
returned to London on Thursday night. Again, he described the passengers. When
he arrived on the Friday he went to see the Frances. He explained how he had
worn the new Hepworth’s suit save for when it was at the cleaners and how he
had torn the coat (which he had discarded and then stolen a replacement during
the course of a burglary).
- In October, when a description was put out, he
telephoned DS Acott and told him that he was in Liverpool on the relevant
dates; in the second call, he said he was going to Liverpool and in the third
call that he was in Liverpool and that his endeavours to get his friends to
help had failed. He admitted that he had lied but had not understood that he
was being sought as the murderer: he thought the police were looking for a man
who may have slept in the same bedroom as the murderer. On the first occasion
when DS Acott had asked about his whereabouts on 22 and 23 August, he had
been confused and said Liverpool. The approach to the issue of lies is
criticised (Ground 16).
- During the interviews after his arrest, he said
that he had invited the police to ask any questions because he had nothing to
do with the murder; he told them about going to the pictures, the boxing
match, the Vienna Hotel (but not room 24) and the sweet shop. He was told
he had to give particulars of the three men but said he was too frightened to
admit that this was a lie. He agreed that he had had a conversation about a
gun but said that he had never intended to get one, had never become a
stick-up man, had never got a gun and had never shot the man. Further, he
denied ever having said anything in interview about going to sleep and had not
used the word ‘kip’ either in the interview or at all. He said the evidence of
Roy Langdale was untrue.
- A number of witnesses were called to support
different parts of this account. First, Mrs Olive Dinwoodie, an assistant
in the sweet shop at 408 Scotland Road, Liverpool, said that a man who looked
like James Hanratty did call at the sweet shop (of which she was temporarily
in charge), in the afternoon and asked for Tarleton Road: but she was certain
that the incident occurred on Monday 21 August 1961. Mrs Dinwoodie was in
the sweet shop with her granddaughter Barbara Ford, aged 13.
- This evidence was similar to that given by
Albert Harding, a long-distance lorry driver. He had been called by the
prosecution to support their contention that 21 August was the
date that Mrs Dinwoodie was at the shop; he had visited both on Monday 21
and Tuesday 22 August and said that Mrs Dinwoodie was only present at the
same time as he was there on Monday. Bearing in mind that 21 August was
the date that James Hanratty had stayed at the Vienna Hotel, it was the case
for the prosecution that he had not been in Liverpool that day and that he had
found out about someone else who had made the enquiry when he went to
Liverpool to purchase an alibi.
- Robert Kempt, the Manager of a billiard hall
in Liverpool, confirmed his recollection of an occasion when he was standing
at the bottom of the steps near Lime Street Station when a man approached and
asked him to buy a watch. He gave evidence of a conversation in similar terms
to that recounted by James Hanratty: he said it could have happened at any
time between June and September. Similarly, Terry Evans confirmed that in July
1961, James Hanratty had asked for a job and worked for a couple of hours
(which was confirmed by Mr Webber), sleeping at his (Evans’) house. He
said that James Hanratty had no reason to believe that he would be interested
in stolen property.
- The Rhyl alibi received further support from
Mrs Grace Jones, who ran a bed and breakfast house at “Ingledene”, 19
Kinmel Street, Rhyl, and whose own description of her house broadly matched
that which James Hanratty had provided. She went on to say that a young man
had stayed at her house for two nights of 22 and 23 August 1961 and she
believed that it was James Hanratty; she thought he stayed in room 4. It is
relevant to note, however, that Mrs Jones’ credibility as a witness was
damaged when she was seen talking to Terry Evans, notwithstanding the Judge’s
instruction, and was not truthful about what had been discussed (having, in
fact, been talking about James Hanratty’s appearance). Her records also had
discrepancies and she agreed that he could have stayed any time after 19
August. Further, the prosecution called three witnesses in rebuttal who had in
fact stayed in the house on the relevant nights, one of whom (Mr Sayle)
in fact stayed in room 4 on the nights of the 21, 22 and 23 August 1961. The
prosecution also relied on evidence to the effect that there were eight adults
and at least five children staying at the guesthouse during the week of 19-26
August 1961 suggesting that there was no room for James Hanratty in addition.
The police did not, however, disclose other information in their possession
(Ground 13).
- The defence also called:
i) Mary Meaden who had been out with James Hanratty on occasions in
September 1961 and described him as very well behaved.
ii) Mrs Willis, who lived at Knebworth and who had been robbed at
gunpoint on 24 August 1961 by a man who did not resemble James Hanratty.
iii) Mrs Dalal who lived in Upper Richmond Road West and who had been
robbed on 7 September 1961 by a man who had claimed he was the ‘A6 murderer’.
She picked out Peter Alphon on an identity parade.
iv) Two prisoners from Brixton prison (Emery and Blythe) who said that they
exercised with James Hanratty and that they had never seen Roy Langdale speak
to James Hanratty.
v) Three witnesses who confirmed that two houses had been burgled in the
Stanmore area on 1 October 1961 and that a black jacket had been stolen.
- The remaining witness called on behalf of James
Hanratty was Paddy Hogan. He was due to be picked up by James Trower. As
foreshadowed in paragraph 30, his recollection was of a fawn or cream Morris
Minor turning into Avondale Crescent some 20 minutes before James Trower
arrived (and so contrary to Trower’s evidence that the man whom he identified
as James Hanratty drove into Avondale Crescent while he was there). He later
saw the car in Avondale Crescent both that afternoon and evening (when the
police were examining it). In the light of the arguments advanced in relation
to other sightings of the Gregsten Morris Minor, it is worth noting that even
this evidence has the car in Avondale Crescent from early on 23 August. From
the defence perspective at the time, however, Paddy Hogan was inconsistent
with James Trower and so cast doubt upon his very important identification.
Lord Justice Mantell:
SUMMARY OF THE SUBMISSIONS
- When considering the effect of any material which
is now relied upon (whether as new evidence or undisclosed material at the
time of the trial), it is worth bearing in mind how the rival contentions were
advanced at the trial itself. Fortunately, counsel’s speeches remain available
and the arguments advanced (albeit not necessarily in this order) can usefully
be summarised.
- Thus, the prosecution relied on the following
features:
i) The identification made by Valerie Storie, involving as it did not only
his physical appearance but also his voice (including his accent,
pronunciation and use of the word ‘kip’) and his clothing. It is also possible
to point to some of the things which the gunman said as being consistent with
James Hanratty (including the name Jim): on the other hand, a number of the
facts which she recalled did not fit with background information about
him.
ii) The visual identifications by John Skillett and James Trower of James
Hanratty as the erratic driver of the Morris Minor in the vicinity of Avondale
Crescent (where the car used by Michael Gregsten was later found). In that
regard, the prosecution also relied on the fact that Leonard in Ireland and
Carol France in this country also spoke of James Hanratty’s erratic
driving.
iii) In the light of the fact that the gunman appeared to be familiar with
the roadworks in the Harrow area, the fact was that James Hanratty’s parents
lived in Kingsbury with the result that he would, indeed, be familiar with the
Harrow area.
iv) The presence, on 11 September 1961, of the two cartridge cases fired
from the murder weapon, in room 24 at the Vienna Hotel. It was common ground
that the room had been occupied by James Hanratty on 21 August 1961 and, on
the evidence, it appeared that only one of the beds had been occupied on only
one other occasion between then and the date they were found.
v) The fact that the murder weapon together with ammunition, wrapped in a
handkerchief, were discovered under the back seat of a bus, that is, the very
place which it was common ground James Hanratty had spoken of as a place to
dispose of unwanted goods.
vi) James Hanratty’s conduct in removing the dye from his hair on
3 October 1961 when he knew that he was wanted by the police.
vii) James Hanratty’s admissions that he had made enquiries for a gun, his
desire to be a “stick-up man”, and his ability to acquire a gun.
viii) The admitted lies about the stay in Liverpool with the three men on
the nights of 22 and 23 August 1961 and the implausibility of one of the
explanations for these lies (maintained at trial) to the effect that James
Hanratty did not think that he would be able to find the house in Rhyl.
ix) The implausibility of the reason given by James Hanratty for going to
Liverpool and for abandoning the search for the man who lived in Carlton or
Tarleton Road or Street.
x) The evidence that the sweet shop incident occurred on Monday 21 and not
Tuesday 22 August 1961, so not involving James Hanratty.
xi) The implausibility of the reason given for the telegram sent on
Thursday 24 August 1961 (namely that he had promised to write to
Mrs France), and the inference that this was an attempt to provide or
bolster up a false alibi: the telegram had been sent at 8.40pm to arrive the
following morning, at the same time he would have been travelling on the
midnight train.
xii) The confession to Roy Langdale during the course of exercise in
prison.
xiii) The fact that James Hanratty put forward two alibis, one of which was
admittedly false and the other, also implausible, asserted only after the
commencement of the trial thereby limiting the opportunity to investigate.
This compounds with James Hanratty’s failure to take any steps between the 7
and 11 October 1961 (when James Hanratty was in the Liverpool area) to find
the boarding house in Rhyl.
xiv) The implausibility of the reason for the visit to Rhyl, namely to find
a man he had met only once before in order to sell stolen jewellery without
knowing where Terry Evans was to be found or having any good reason to believe
that Terry Evans was interested in buying stolen jewellery.
xv) The unsatisfactory state of the evidence emanating from Mrs Jones
whose description of the house included a green bath (recollected by James
Hanratty) albeit that the bathroom had a bed in it. This evidence had to be
contrasted with the records which revealed only one single room in which James
Hanratty could have stayed (room 4, occupied on 21, 22 and 23 August by a
witness called in rebuttal) and the evidence of the guests who did stay in
Mrs Jones’ house which effectively excluded James Hanratty’s presence on
22 or 23 August.
xvi) The evidence of blood group consistency, namely that James Hanratty
(albeit along with 80% of 40-45% of the male population) was a group O
secretor as was the semen found on Valerie Storie’s clothing (Michael Gregsten
being a group AB secretor).
- The defence described the case as “sagging with
coincidences” and relied on the following features:
i) Valerie Storie had only a limited opportunity of seeing the man.
Furthermore:
a) Her facial identification was weakened by her incorrect
identification of the 24 September.
b) There was a conflict between her evidence and the evidence of
John Kerr (the person who had discovered her); he said that Valerie Storie
had spoken of the man as having light fairish hair and had said that he had
been picked up at about 9.00pm or 9.30pm at Slough.
c) The mispronunciation of “th” was quite common among
Londoners.
d) While some of the things said by the murderer were consistent
with James Hanratty’s personal history, others were not.
e) Her description of the murderer’s knowledge of cars and how
to drive them was inconsistent with James Hanratty’s experience and driving
ability.
ii) The other identifying witnesses (John Skillett and James Trower) also
had only limited opportunity to see the driver of the Morris Minor. Further,
Edward Blackhall (Mr Skillett’s passenger) had picked out another man on
13 October (having already picked out a man on the 23 September 1961) and
James Trower’s evidence was also unsatisfactory and contradicted by Paddy
Hogan who gave evidence for the defence.
iii) Harold Hirons, a garage attendant who put petrol in the car while
Valerie Storie and Michael Gregsten were still in it, had not identified James
Hanratty.
iv) It was unlikely that the murderer would have fired two bullets before
the murder and then dropped or left the two spent cartridge cases in the
Vienna Hotel and that on the probabilities these two cases came to be there
after the murder. The implication of this submission is that these cartridge
cases must have been placed in the room by others, perhaps in an effort to
implicate James Hanratty and exculpate the true culprit, possibly Peter
Alphon.
v) In any event, the witnesses who gave evidence from the Vienna Hotel were
unreliable: room 24 had or may have been occupied by other persons (and, in
particular, by Peter Alphon) in addition to the one other person said to have
occupied the room for one night between 21 August and 11 September.
vi) The use of the space under the back seat of a bus as a receptacle was
not uncommon with the result that the finding of the murder weapon in such a
place was not probative against James Hanratty.
vii) There were a number of concerns about the evidence of the police
officers. More must have been said during the course of the interviews than
was written down and there were challenges as to that which was written. Thus,
there were serious issues about when and how Liverpool and the three men were
mentioned and the conversation about the telegram; further, James Hanratty
denied ever using the word “kip”.
viii) The interview also had to be approached with care in other respects
and allowances had to be made for James Hanratty’s character and personality.
Thus, his admission to the police concerning a gun and about becoming a
“stick-up” man were simply examples of his being boastful. His lies about
Liverpool and the three men occurred on the spur of the moment, when he could
not remember the details of the Rhyl boarding house; his persistence in them
because he was afraid of the consequences of changing his alibi was down to
foolishness rather than anything more sinister.
ix) James Hanratty was the man in the sweet shop incident which could only
have occurred on the Monday 21 or Tuesday 22 August; as there was evidence,
both from prosecution and defence, that he was in London on the Monday it
could only have happened on Tuesday 22 August 1961 which, by itself,
demonstrated that he was not the gunman.
x) Other features of James Hanratty’s evidence were amply confirmed by
independent witnesses. Thus:
a) a conversation in relation to the sale of a watch in
Liverpool was confirmed by Mr Kempt;
b) he correctly described Grace Jones’ boarding house and
despite her confused and unsatisfactory evidence Mrs Jones was telling
the truth when she said that he had stayed at her house on 22 and 23
August.
c) he had previously met Terry Evans and did try and find him in
Rhyl.
xi) The evidence given by Roy Langdale was from a suspect source. It was
controverted not only by James Hanratty himself (and was inconsistent with his
constant reiteration of his innocence) but also by the evidence of two other
prisoners.
xii) As to the scientific evidence, there was neither blood nor fibre found
on any of his clothing. The fact that he was a group O secretor did not
advance the case: some 36% of the white male population were group O
secretors, including Peter Alphon.
xiii) The jury knew about James Hanratty’s record and this incident was out
of character. He had no previous convictions for offences involving violence,
sexual assaults or dangerous driving.
- From the account of the facts which we have set
out, coupled with the summary of the submissions of counsel at the trial, it
is apparent, that the only issue with which the jury was concerned at the
trial was the identity of the person who was guilty of murdering Michael
Gregsten and raping Valerie Storie. By finding James Hanratty guilty the jury
resolved that issue. That on the evidence which they heard, the jury were
entitled to come to this conclusion was made clear by the previous decision of
this Court and the conclusion of Mr Hawser to which we have already
referred (see paragraphs 4,5 and 8). Mr Mansfield does not suggest
otherwise. In addition, he accepts that judged by the standards of 1962 the
summing up of Gorman J, except in one respect, was extremely fair and beyond
criticism.
- With this background the onus must be squarely on
the appellant to establish that the appeal should succeed. Why then is it said
that an appeal which has previously failed should now after all these years
succeed? The complaints which are made are based on non-disclosure for the
purposes of the trial by the prosecution, fresh evidence which was not
available at the trial and, with one addition, omissions from the summing up
of directions which by present day standards, as opposed to those which
existed in 1962, should have been included in the summing up.
- The prosecution do not dispute there was
non-disclosure as alleged and have not relied on the substantial difference
between the duties of disclosure on the prosecution today as compared with
1962. Furthermore, it is not suggested that the appellant’s additional
evidence is not admissible.
- In opposing the appeal the prosecution unusually
wish to rely on fresh evidence, in the form of DNA findings which do not
directly address the grounds of appeal but which the prosecution contend as a
result of scientific developments clearly establish the guilt of James
Hanratty. The appellant challenges the admissibility and relevance of the DNA
evidence which was obtained from a piece of fabric from Valerie Storie’s
knickers and from the handkerchief which was found with the murder weapon
under the back seat of the bus. They also seek to give an explanation for the
findings consistent with James Hanratty’s innocence by alleging that the
exhibits on which the tests were conducted could have been contaminated due to
the failure to preserve them in the way they would be today.
THE LAW
The Role of the Court of Appeal
- In support of the contention that the DNA evidence
is not admissible or relevant, Mr Mansfield submits that it is the jury and
not the Court of Appeal which, as the tribunal of fact, has the responsibility
of determining the guilt or innocence of the defendant. He contends that if
this Court were to rely on the DNA evidence they would be usurping the role of
the jury. He adds that the Court of Appeal’s role is one of review and fresh
evidence which does not relate to and is independent of fresh evidence relied
on by the appellant cannot assist this Court in the performance of its task as
a court of review.
- On behalf of the prosecution, Mr Sweeney argues
that the DNA evidence is admissible and we should rely on it, if we are
satisfied that it establishes James Hanratty’s responsibility for the murder,
as part of our reasoning for rejecting each of the grounds of appeal. Mr
Sweeney suggests that the DNA evidence clearly establishes the correctness of
the decision of the jury and proves beyond doubt that there has been no
miscarriage of justice.
- On the hearing of the appeal we allowed the
evidence as to DNA to be placed before us, but indicated that we would give
our decision as to whether we would admit the evidence in the course of giving
this judgment.
- The issues on this appeal and, in particular, the
dispute as to the admissibility of the DNA evidence raise in acute form the
question as to what is the precise role of this court when hearing an appeal
and the extent of its discretion to admit fresh evidence. This question is
undoubtedly one of general importance, but it is also one on which the
authorities now provide considerable assistance, even though Mr Mansfield
is right in submitting that they do not provide binding authority as to the
relevance and admissibility of the DNA evidence.
The statutory provisions
- The starting point for our consideration of these
issues are the relevant statutory provisions. On references by the Criminal
Cases Review Commission under section 9(1)(a) of the Criminal Appeal Act 1995,
the references are to be treated in accordance with section 9(2) of that
Act as an appeal against conviction under section 1 of the Criminal Appeal Act
1968.
- Fortunately, the role of this Court on an appeal
under the 1968 Act has recently been considered by the House of Lords in R
v Pendleton [2002] 1 WLR 72 Lord Bingham of Cornhill referred to the
legislative history of that section and in particular section 4(1) of the
Criminal Appeal Act 1907, which is the predecessor of section 2 of the 1968
Act. He described that provision as being the “core provision” and added that
the section “clearly expresses Parliament’s overriding intention that the
interests of justice should be served (by this Court) and also its expectation
that this Court would have to grapple with potentially difficult factual
issues;” (paragraph 7). Lord Bingham then went on to state that:
“Although the 1907 Act has been repeatedly amended, the scheme
of the Act has not been fundamentally altered. The most notable change has
been the granting by the Criminal Appeal Act 1964 and the extension by the
Criminal Justice Act 1988 of a power, on the allowing of an appeal against
conviction, to order a retrial. The core provision contained in section 4 of
the 1907 Act is now expressed more shortly and simply in section 2 of the
1968 Act as substituted by section 2(1) of the Criminal Appeal Act 1995:
“(I) Subject to the provisions of this Act, the Court of Appeal- (a) shall
allow an appeal against conviction if they think that the conviction is
unsafe; and (b) shall dismiss such an appeal in any other case.”
The most important lesson to be learnt from this part of Lord Bingham
speech is that Parliament’s overriding intention in the 1907 Act, and now in
the 1968 Act, is that it should be this Court’s central role to ensure that
justice has been done and to rectify injustice.
- The next provision to which it is necessary to
refer is section 23 of the 1968 Act as amended by sections 4(1) and 29 of, and
Schedule 2 paragraph 4(1)(3) and Schedule 3 to, the 1995 Act. The section is
in these terms:
“(1) For the purposes of an appeal under this Part of this Act
the Court of Appeal may, if they think it necessary or expedient in the
interests of justice- (a) order the production of any document, exhibit or
other thing connected with the proceedings, the production of which appears
to them necessary for the determination of the case; (b) order any witness
who would have been a compellable witness in the proceedings from which the
appeal lies to attend for examination and be examined before the court,
whether or not he was called in those proceedings; and (c) receive any
evidence which was not adduced in the proceedings from which the appeal
lies.
(2) The Court of Appeal shall, in considering whether to receive
any evidence, have regard in particular to- (a) whether the evidence appears
to the court to be capable of belief; (b) whether it appears to the court
that the evidence may afford any ground for allowing the appeal; (c) whether
the evidence would have been admissible in the proceedings from which the
appeal lies on an issue which is the subject of the appeal; and (d) whether
there is a reasonable explanation for the failure to adduce the evidence in
those proceedings.
(3) Subsection (1)(c) above applies to any evidence of a witness
(including the appellant) who is competent but not compellable.
(4) For the purposes of an appeal under this Part of this Act,
the Court of Appeal may, if they think it necessary or expedient in the
interests of justice, order the examination of any witness whose attendance
might be required under subsection (1)(b) above to be conducted, in any
manner provided by rules of court, before any judge or officer of the court
or other person appointed by the court for the purpose, and allow the
admission of any depositions so taken as evidence before the
court.”
- A feature of section 23 is that it makes the
discretion which the section gives to this Court to receive fresh evidence,
subject to an express requirement that this Court shall consider it is
“necessary or expedient in the interests of justice” to do so. Thus, the
section echoes the “core provision” identified by Lord Bingham which is
implicitly a part of section 2 of the 1968 Act. Subsection (2) does no more
than identify the different considerations to which the Court is required
to have regard when exercising that discretion.
- Mr Mansfield referred us to the legislative
history of section 23 in its present form. He pointed out section 23 is
derived from section 9 of the 1907 Act. He argues the amendments which were
made to section 23 restrict the discretion of the court to admit fresh
evidence. We do not accept that this is the position. The changes simplified
the language of the section but did not affect the overriding purpose of the
section which was, and is, that the power to admit fresh evidence should be to
assist this Court in its task of furthering the interests of justice.
- In performing this task the Court should have in
mind that, in the same speech, Lord Bingham also emphasised, that while the
Court of Appeal is entrusted “with a power of review to guard against the
possibility of injustice”, it should not intrude “into the territory which
properly belongs to the jury” (paragraph 17). He also endorsed the approach in
Stafford v DPP [1974] AC 878. What made a decision “unsafe” was to be
determined by deciding what was the effect of the fresh evidence on the minds
of the court and not by asking what might be the effect that the evidence
would have on the mind of the jury. This Court has, however, to bear “very
clearly in mind that the question for its consideration is whether the
conviction is safe and not whether the accused is guilty”. The Court has also
to remember that it should not become the primary decision-maker as it has not
heard the evidence which the jury heard. So it is perfectly in order for “the
Court of Appeal in a case of any difficulty, to test their own provisional
view by asking whether the evidence, if given at the trial, might reasonably
have affected the decision of the trial jury to convict. If it might, the
conviction must be thought to be unsafe” (paragraph 19). To cite Lord Bingham
again:
“Trial by jury does not mean trial by jury in the first instance
and trial by judges of the Court of Appeal in the second. The Court of
Appeal is entrusted with a power of review to be exercised with caution,
mindful that the Court of Appeal is not privy to the jury’s deliberations
and must not intrude into territory which properly belongs to the jury”
(paragraph 17).
- On this aspect of the law, Lord Bingham’s views
were endorsed by all the other members of the House and they deserve our
particular attention. (Lord Hobhouse of Woodborough delivered the only other
separate speech and (at paragraph 35) he expressly agreed with this aspect of
the speech of Lord Bingham.)
- The decision in Pendleton was subsequently
applied by this Court in R v Hakala (19th March 2002: case number
2000/03307/Z4). In his judgment, Judge LJ made this statement, which is
particularly relevant to the issues before us:
“The judgment in “fresh evidence” cases will inevitably
therefore continue to focus on the facts before the trial jury, in order to
ensure that the right question - the safety, or otherwise, of the conviction
- is answered. It is integral to process that if the fresh evidence is
disputed, this Court must decide whether and to what extent it should be
accepted or rejected, and if it is to be accepted, to evaluate its
importance, or otherwise, relative to the remaining material which was
before the trial jury: hence the jury impact test. Indeed, although the
question did not arise in Pendleton, the fresh evidence produced by the
appellant, or indeed the Crown, may serve to confirm rather than undermine
the safety of the conviction. Unless this evaluation is carried out, it
is difficult to see how this Court can carry out its statutory
responsibility in a fresh evidence case, and exercise its “powers of review
to guard against the possibility of injustice”. However the safety of the
appellant’s conviction is examined, the essential question, and ultimately
the only question for this Court, is whether, in the light of the fresh
evidence, the convictions are unsafe”(emphasis added).
The Admissibility of Fresh Evidence and the Two Different Grounds for
Allowing an Appeal
- Assisted by these authorities it is clear that the
overriding consideration for this Court in deciding whether fresh evidence
should be admitted on the hearing of an appeal is whether the evidence will
assist the Court to achieve justice. Justice can equally be achieved by
upholding a conviction if it is safe or setting it aside if it is unsafe.
- Here it is important to have in mind that a
conviction can be unsafe for two distinct reasons that may, but do not
necessarily, overlap. The first reason being that there is a doubt as to the
safety of the conviction and the second being that the trial was materially
flawed. The second reason can be independent of guilt because of the
fundamental constitutional requirement that even a guilty defendant is
entitled, before being found guilty, to have a trial which conforms with at
least the minimum standards of what is regarded in this jurisdiction as being
an acceptable criminal trial. These standards include those that safeguard a
defendant from serious procedural, but not technical, unfairness. A technical
flaw is excluded because it is wrong to elevate the procedural rules that
govern a trial to a level where they become an obstacle as opposed to an aid
to achieving justice.
- Fresh evidence which is of sufficient quality and
is relevant to the question of guilt will usually contribute to the question
of the safety of the conviction and so will be legally admissible if in its
discretion the court decides to admit it. Where what is in question is not the
evidence of guilt but the procedural quality of a trial, evidence relating to
guilt will usually not be admissible because it will not address the defect in
the trial unless it helps to place the defect in context. Evidence as to what
happened at the trial may on the other hand be very important as to the extent
to which the trial is flawed. It follows that relevance of the fresh evidence
may not be capable of being determined until after the purpose for which it is
said to be relevant has been ascertained. The approach to procedural and
evidential issues will not be the same.
- It is also necessary to distinguish between
procedural flaws which are technical and those which are not. Clear guidance
as to this distinction has also been provided by Lord Bingham in the recent
Privy Council decision of Randall v R (16 April 2002) [2002] UK PC 19
at paragraph 28:
“While reference has been made above to some of the rules which
should be observed in a well-conducted trial to safeguard the fairness of
the proceedings, it is not every departure from good practice which renders
a trial unfair. Inevitably, in the course of a long trial, things are done
or said which should not be done or said. Most occurrences of that kind do
not undermine the integrity of the trial, particularly if they are isolated
and particularly if, where appropriate, they are the subject of a clear
judicial direction. It would emasculate the trial process, and undermine
public confidence in the administration of criminal justice, if a standard
of perfection were imposed that was incapable of attainment in practice. But
the right of a criminal defendant to a fair trial is absolute. There will
come a point when the departure from good practice is so gross, or so
persistent, or so prejudicial, or so irremediable that an appellate court
will have no choice but to condemn a trial as unfair and quash a conviction
as unsafe, however strong the grounds for believing the defendant to be
guilty. The right to a fair trial is one to be enjoyed by the guilty as well
as the innocent, for a defendant is presumed to be innocent until proved to
be otherwise in a fairly conducted trial.”
We would also refer to the way the subject was encapsulated by Carswell LCJ
in R v Iain Hay Gordon [2002] unreported CAR (3298) at paragraph
29:
“It seems to us that it is now possible to formulate two
propositions in respect of irregularities at trial, which formed the subject
of a good deal of argument before us:
1. If there was a material irregularity, the conviction may be
set aside even if the evidence of the appellant’s guilt is clear.
2. Not every irregularity will cause a conviction to be set
aside. There is room for the application of a test similar in effect to that
of the former proviso, viz whether the irregularity was so serious that a
miscarriage of justice has actually occurred.”
The Effect of the Passage of Time
- The non-technical approach is especially important
in references by the Commission such as this since standards may have changed
because of the passage of time. For understandable reasons, it is now accepted
in judging the question of fairness of a trial, and fairness is what rules of
procedure are designed to achieve, we apply current standards irrespective of
when the trial took place. But this does not mean that because contemporary
rules have not been complied with a trial which took place in the past must be
judged on the false assumption it was tried yesterday. Such an approach could
achieve injustice because the non-compliance with rules does not necessarily
mean that a defendant has been treated unfairly. In order to achieve justice,
non-compliance with rules which were not current at the time of the trial may
need to be treated differently from rules which were in force at the time of
trial. If certain of the current requirements of, for example, a summing up
are not complied with at a trial which takes place today this can almost
automatically result in a conviction being set aside but this approach should
not be adopted in relation to trials which took place before the rule was
established. The fact that what has happened did not comply with a rule which
was in force at the time of trial makes the non-compliance more serious than
it would be if there was no rule in force. Proper standards will not be
maintained unless this Court can be expected, when appropriate, to enforce the
rules by taking a serious view of a breach of the rules at the time they are
in force. It is not appropriate to apply this approach to a forty year-old
case.
- Another difference between a case such as this and
a case which has only been tried recently is that this Court can expect in the
latter type of case to be provided with an explanation for situations which
give rise to a suspicion of possible impropriety. There may be an explanation
for what happened which shows there is no cause for suspicion, but this may be
impossible to discover due to the passage of time. This has to be borne in
mind, particularly where to draw an adverse inference could reflect, as in
this case, on the integrity of those who are not alive. (Here this is true of
DS Acott and D Sgt Oxford.)
- The question of whether a trial is sufficiently
seriously flawed, so as to make a conviction unsafe because it does not comply
with what would be regarded today as the minimum standards, must be approached
in the round, taking into account all the relevant circumstances, and this is
what we propose to do notwithstanding the fact that Mr Sweeney did not seek to
rely on the different standards which existed at the time of the trial and the
standards today.
Admitting Fresh Evidence at the Request of the
Prosecution
- It is now necessary to concentrate on situations
in which it can be appropriate for this Court to receive fresh evidence at the
request of the prosecution, such as the findings of the DNA tests on which the
prosecution are seeking to rely in this appeal. It is Mr Mansfield’s
contention that if this Court is not to exceed its role as a Court of review
it can only receive fresh evidence on behalf of the prosecution if that
evidence is being relied upon to rebut fresh evidence introduced on the appeal
by an appellant. In support of his contention, Mr Mansfield focuses upon
section 23(2). He points out correctly that the subsection contains a
mandatory requirement, and that the requirement as to (b) in particular is
only likely to be complied with by an appellant and not the prosecution. The
prosecution are not going to submit evidence which will undermine the
conviction. He therefore submits that evidence cannot be allowed to be placed
before the Court by the prosecution unless the evidence on which the
prosecution relies is to be used in order to evaluate or rebut fresh evidence
that the appellant has adduced.
- We do not accept this submission. Subsection (2)
is subordinate to subsection (1). It is subsection (1) which confers a general
discretion on the Court to be exercised in the interests of justice.
Subsection (2) identifies the considerations to which this Court is required
to have regard when exercising its discretion under subsection (1). If this
Court has regard to the matters referred to in subsection (2), the Court has
done its duty irrespective of how it exercises its discretion. If it is the
prosecution which wishes to introduce fresh evidence which is intended to
weaken the appeal this does not mean that the evidence cannot be admitted. All
that section 23(2)(b) requires is that this Court, when exercising its
discretion, has regard to the fact that the evidence will not “afford any
ground for allowing the appeal” but on the contrary support the conviction. To
apply subsection (2) as Mr Mansfield contends would mean that the Court would
be unable to admit evidence even if the admission of that evidence is very
much in accord with the interests of justice and its rejection could result in
injustice. In addition, it would undermine the public’s confidence in the
justice system.
- Furthermore Mr Mansfield’s approach to section
23 is inconsistent with the decisions of this Court in Gilfoyle [1996]
1 Cr App R 302 and in Craven [2001] 2 Cr App R 12. In Craven
there was a failure by the prosecution to disclose certain material which
could have been of relevance to the defence at the trial, and in an important
passage in the judgment, Latham LJ stressed:
“. . . that this Court, empowered as it is under section 23 of
the Criminal Appeal Act 1968 to consider the jury’s verdict in the light of
fresh evidence, should do so in the light of all the fresh evidence that is
available to it. We are entitled, as it seems to us, to consider whether the
material which was withheld could have affected the jury’s verdict in the
light of all the facts now known to this Court. If it could have done, the
conviction would be unsafe. If, on the other hand, the material that has
been withheld has not, on a proper analysis of the facts known to this
Court, undermined in any way the verdict of the jury, then the conviction
will be safe. In evaluating the significance of the evidence that has been
withheld in the context of all the information now available, we consider we
properly secure the rights of the defence for the purposes of article 6 of
the Convention and serve the interests of justice. We acknowledge that in
carrying out this exercise we are trespassing upon what at trial would be
the function of the jury. But that is the inevitable consequence in any case
involving fresh evidence. It seems to us that if on a proper analysis of the
information available to this Court, the only reasonable conclusion is that
the conviction is safe, in that the jury’s verdict in the light of all the
relevant material was correct, this Court would not be carrying out its
statutory obligation if it did give affect to that conclusion.”
- Mr Mansfield argues that the approach of Latham
LJ is inconsistent with the decision of the House of Lords in Pendleton
and therefore we should not follow it. We do not agree. Latham LJ did not have
the advantage that we have of the decision of Pendleton but his general
approach can be satisfactorily reconciled with that of Lord Bingham. It is to
be recognised that the evidence was not being introduced to remedy a trial
which was fatally flawed because, for example, the trial was an abuse of
process or should have been stopped on a submission of no case to answer for
lack of evidence, but so that the question of the correctness of the
conviction could be considered in the round.
- Applying this reasoning we came to the
conclusion that the DNA evidence on this appeal is evidence which we are
entitled to admit under section 23. Furthermore we conclude that in our
discretion we should admit the evidence while recognising:
(1) that its weight, if any, will depend on whether the
appellant may be right that the explanation for the DNA findings is
contamination.
(2) that if the appellant is able to show that because of lack
of disclosure or the misdirections in the summing up the trial was still
fatally flawed the DNA evidence will not rescue the conviction.
THE DNA EVIDENCE.
- We turn to the DNA evidence. As already noted
seminal fluid was found on Valerie Storie’s knickers and one of her slips. At
the time all that could be shown was that the rapist’s and hence the
murderer’s blood group was O secretor. So was James Hanratty’s and Peter
Alphon’s together with 40% of the male population. The handkerchief found with
the murder weapon bore traces of nasal mucus. Mucus was not capable of being
analysed for blood type. Evidence based upon the comparison of hairs and
fibres was inconclusive. Apart from some seminal staining on James Hanratty’s
striped trousers, said to be part of the Hepworth suit, that was the extent of
the scientific evidence at trial.
- During the 1980s and 1990s important work was
carried out in the field of genetic profiling based on a complex chemical
found in cells throughout the human body, the shorthand for which is DNA. As
is now well known, DNA carries genetic information which determines the
physical characteristics of the individual. The information comes in equal
measure from each parent. It is the same in all body fluids and tissues, so,
for example, DNA from a person’s blood will be the same as that found in his
or her saliva and hair roots. Identical twins apart, each individual’s DNA is
unique. In attributing DNA to a particular individual, however, success will
depend, in part at any rate, on the completeness or otherwise of the profile
obtained. Techniques for recovering genetic profiles gradually improved
throughout the 1990s. Those employed in 2000 were much more sensitive than
were available in 1995.
- No doubt conscious of developments in this area
there came a time in 1995 when the Hanratty family were anxious to apply DNA
testing to such of the exhibits as had survived and which might show one way
or the other whether James Hanratty had been responsible for the murder of
Michael Gregsten and the rape of Valerie Storie. Attempts made in March 1995
were unsuccessful. However, in November 1997 after much consultation further
DNA analyses were commissioned this time using highly sensitive DNA
amplification techniques. The test was conducted on the small remaining piece
of fabric from the knickers (part having been used in the 1995 experiment), a
piece of material from one of the slips and the areas of staining from the
handkerchief. This time the experiment did produce results in that profiles
were obtained both from the fabric and from the handkerchief which could be
compared with samples taken from James Hanratty’s brother, Michael, and his
mother, Mary. These comparisons confirmed that the male contribution to the
profiling from the knickers almost certainly came from either a son of Mary or
a brother of Michael. It was also shown at a much lower level of probability
that it was a son of Mary and a brother of Michael who had been responsible
for depositing the mucus stains on the handkerchief.
- Following the order of the court on 17 October
2000, James Hanratty’s body was exhumed and samples taken from which it has
been possible for Dr Whitaker of the Forensic Science Laboratory to state with
what a non-scientist would regard as equivalent to absolute certainty (or
almost absolute certainty as makes no difference) that the DNA profile
recovered from the fragment of knickers and the DNA profile recovered from the
mucus staining on the handkerchief have come from James Hanratty. That is not
in dispute and, indeed, it is conceded by Mr Mansfield on behalf of the
appellant that, should it transpire that all possibility of contamination can
be excluded, the DNA evidence points conclusively to James Hanratty having
been both the murderer and the rapist.
Contamination.
- As was so clearly explained by Ms Woodroffe, an
independent scientific consultant and a most impressive witness, DNA may
migrate from one surface to another by a variety of means. Primary transfer is
what happens when there is direct contact between a donor individual and a
recipient individual or surface as might occur during sexual intercourse.
Secondary transfer is what happens when the DNA is moved via an intermediary
as where a contaminated and an uncontaminated surface are brought into contact
with one another. Then there may be movement of DNA again via an intermediary
where perhaps the same hand first touches the infected surface and then
another surface which had hitherto been uncontaminated as might happen where
exhibits are handled without proper precautions in the witness box. Having
said that, usually one can expect a greater quantity of DNA to be transferred
as a result of primary as opposed to secondary contact. But it is always
necessary to allow for particular circumstances as where the DNA is dry, as in
the case of hair, or wet, as in the case of seminal fluid. Similarly, regard
must be had to the duration of the contact. Up to the happening of the crime
event, accidental movement of DNA in this way is referred to as “transfer”;
after the crime event as “contamination”. We are only concerned with the
latter, but for ease of expression we shall use the terms interchangeably.
- In this case it may be helpful first to identify
the relevant exhibits or objects and then to trace their history through to
their first examination in 1995 by which time it is accepted that there was no
longer any risk of contamination.
- Quite clearly the knickers (exhibit 26 at trial)
and later the fragment cut from the crotch area and the handkerchief (exhibit
35) are of first importance. So too, as possible contaminators, are James
Hanratty’s intimate samples and items of clothing which may have borne traces
of his DNA.
- The knickers arrived at the Metropolitan Police
Laboratory (MPL) on 23 August 1961 where they were examined by Dr
Nickolls, the director and his assistant, Henry Howard. They were found to be
stained with seminal fluid in the area of the crotch and at the back for five
inches upwards from the crotch. Vaginal fluid from Valerie Storie was also
present. There were smaller quantities of seminal fluid of blood group AB
assumed to have come at some earlier stage from Michael Gregsten. Although the
laboratory records are not dated, the notes are numbered sequentially and we
are confident that the knickers were examined almost immediately and in any
event no later than 23 September 1961 when the notes show that certain
samples taken from Peter Alphon were examined at the laboratory. The
handkerchief came to the laboratory on 25 August, was screened for blood
and semen and, none being found, seems to have been put to one side.
- On 7 October 1961 a suitcase containing James
Hanratty’s clothing was seized from the home of his girlfriend, Louise
Anderson. It was received at the laboratory on 9 October. Amongst other items
it contained a pair of dark pinstriped trousers (part of the Hepworth suit)
and a green jacket and trousers. Some hairs and fibres were removed from the
outside of the dark trousers as was a sample from a seminal stain on the
inside of the fly. A suggestion, which has not been contradicted, is that the
seminal stain may have been washed out and retained in the form of a liquid.
On 13 October, the laboratory received samples of James Hanratty’s blood and
saliva. It was only at this point that the police became aware of his blood
grouping. The records are incomplete but there would seem to be no reason for
any of James Hanratty’s items of clothing or for his intimate samples to be
present in the laboratory at the same time as the knickers or the
handkerchief. There is, of course, the possibility that all the exhibits were
stored in the same place, albeit separately packaged, which, it is submitted,
might have provided the opportunity for secondary contamination. Dr Nickolls
is dead. Mr Howard is still alive though in poor health. His recollection
is that the dangers of contamination were recognised even in 1961 and that the
practice was to take elementary precautions such as making sure that clothing
from victim and suspect were not examined on the same day.
- All the exhibits, including those mentioned,
were produced at the committal proceedings which took place between 22
November 1961 and 5 December 1961. If the usual procedures of the time were
followed it would seem doubtful that any one of the exhibits, barring possibly
the gun and certain of the cartridges, would ever have been removed from its
packaging or container. Even so, as Mr Mansfield points out and the respondent
concedes, the possibility that there was contact between the various exhibits
cannot be excluded altogether.
- As a result of correspondence between James
Hanratty’s then solicitors and the DPP, arrangements were made for the
pathologist, Dr Grant, to have access to James Hanratty’s intimate samples and
also to certain of the exhibits. It appears from the records that Dr Grant
examined the green jacket and trousers on 28 December 1961 and Valerie
Storie’s slips and knickers the following day. It was on this latter occasion
that a portion of the crotch area of the knickers was removed and thereafter,
as seems clear, stored separately from the other exhibits including the
knickers from which it had been excised. As also seems clear, a fragment of
the excised portion was retained by the laboratory having first been placed in
a small envelope made of cellophane and sellotape which was in turn put into a
small brown envelope and the small envelope into a larger envelope before
being treasury tagged to a laboratory file. It was so placed when rediscovered
in 1991.
- At the trial which took place between 22 January
1962 and 17 February 1962 all the exhibits with the exception of a portion of
the slip and the fragment of the knickers referred to previously were produced
and in due course, taken out by the jury on retirement. Thereafter, on 9 April
1962, James Hanratty’s suitcase and clothing were returned to his father and
on 22 May 1962 Valerie Storie’s slips, her knickers and various samples were
all destroyed.
- The handkerchief seems to have remained with the
Bedfordshire Constabulary until September or early October 1997 when it was
discovered in the course of enquiries made on behalf of the Commission. It was
in the original envelope inside another envelope marked with the exhibit
number ‘35’.
- The file containing the fragment from the
knickers was discovered in 1991 by Jennifer Wiles. It was still packaged as
described except that the cellophane package was no longer intact. Also found
in the file were some broken slides and slide holders possibly having
contained hairs and fibres collected at the scene of the murder. There were
also two polythene bags each containing hairs thought now to have come from
Alphon. There was another polythene bag containing a number of bullets and
significantly, so Mr Mansfield submits, a polythene bag containing a small
rubber bung and fragments of glass including a curved piece suggesting that
the polythene bag had at one time contained a glass vial or tube.
- Mr Mansfield submits against that background
that the respondent has not been able to exclude the possibility of
contamination. In making that submission, he is supported by Dr Martin Evison
who is a senior lecturer in Forensic Biological Anthropology in the Department
of Forensic Anthropology at The Medico Legal Centre in Sheffield and has many
academic achievements and publications to his credit. He told the court that
he had not been able to exclude “the realistic possibility of contamination”.
Dr Evison seems to accept that in the case of the knicker fragment the
contaminant would have to be semen. That really limits the possibilities to
(1) contact between the knickers and the Hepworth trousers and (2) contact
between the contents of the broken vial and the fragment held on file. That
would mean, so far as the first possibility is concerned, contact between the
knickers and the fly area of the trousers in the laboratory, during storage or
on production at committal. The mechanics are difficult to visualise and we
gain the impression that it is neither Mr Mansfield’s nor Dr Evison’s
preferred explanation. Contact could not take place any later than that
because, as we know, Dr Grant cut out the fragment from the knickers before
the trial took place and the fragment itself was not exhibited. The second
possibility involves a hypothesis in which the broken vial contained a
solution of James Hanratty’s semen (extracted from the Hepworth trousers)
which upon the vial being broken escaped in such a way as to invade the
insecure packaging in which the fabric from the knickers was being kept. One
of the respondent’s witnesses, Mr Roger Mann, who has thirty-two years
experience as a forensic scientist, gave evidence that he has never come
across a vial or tube containing liquid being retained on a file and we are
bound to say that, without having any kind of scientific experience at all, it
would seem a curious method of storage. Mr Greenhalgh, who saw the file and
examined the fabric in 1995, told us that he considered the risk of
contamination to the fabric to be very low. We quote from his evidence.
“As I examined the item, the piece of blue material from the
knickers was in a sealed packet inside the two envelopes. I did not observe
any damage to that packaging which I considered likely to be a risk of
contamination. As far as I was concerned they were sealed, although the
outer envelopes were not sealed there was no indication of any liquid damage
on the brown paper envelopes, as might have been expected if a liquid sample
had leaked onto them.”
- That said we should also record that not one of
the respondent’s witnesses excluded the possibility of contamination. They
have expressed themselves in different ways but the general tenor of the
evidence has been that they each considered the possibility to be remote.
That, of course, has to be contrasted with the opinion of Dr Evison who never
moved from his original position as stated in this judgment.
- As far as the handkerchief is concerned, it will
be remembered that when first examined it was considered to be of no
scientific interest. No blood or semen was detected. When John Bark, a
forensic scientist working at the Forensic Science Laboratory in Birmingham,
examined the handkerchief in 1997 he found that:
“The handkerchief appears to be stained with some body fluid,
cellular material which has bonded strongly to the cotton fabric over a
number of years. There is no microscopic evidence that semen is
present.”
That conclusion is supported by Roger Mann who subjected the handkerchief
to chemical screening though he acknowledges the test carried out would not
necessarily detect semen deposited by a male who did not produce spermatozoa.
Realistically, however, it would seem to follow that the contaminant would
have to be something other than semen and almost certainly liquid in form.
- The handkerchief was placed in an open buff OHMS
envelope from which, no doubt, it was produced both at the committal
proceedings and at trial. It was not examined by Dr Grant. In those
circumstances the opportunities for contamination would seem to be extremely
limited. However, in common with the approach taken in the case of the knicker
fragment, the respondent’s experts are prepared to accept that there has been,
at least, a theoretical risk of contamination.
- Making it quite clear that for the time being we
are simply considering the risk of contamination of a neutral surface without
regard to the DNA profiles which were eventually obtained, we, too, accept
that there was at least a theoretical possibility of both the knicker fragment
and the handkerchief having been in contact with a surface bearing DNA
contaminants from James Hanratty.
- But that is to ignore the results of the DNA
profiling. With regard to the knicker fragment we have what Dr Whitaker would
describe as a typical distribution of male and female DNA following an act of
sexual intercourse leading to the obvious inference that the male contribution
came from James Hanratty. For that not to be the case we would have to suppose
that the DNA of the rapist, also of blood group O, had either degraded so as
to become undetectable or had been masked by James Hanratty’s DNA during the
course of a contaminating event. Moreover, we would also have to suppose that
Valerie Storie’s DNA had remained in its original state, or at least
detectable, and had escaped being overridden by DNA from James Hanratty. The
same would have to be true of the DNA attributed to Michael Gregsten. Finally,
we must visualise a pattern which is wholly consistent with sexual intercourse
having taken place in which Valerie Storie and James Hanratty were the
participants.
- Much the same reasoning would apply to the
handkerchief. The only DNA extracted from the handkerchief came from James
Hanratty. The only places on the handkerchief from which his DNA was extracted
were the areas of mucus staining. It is to be expected that whoever was
responsible for the mucus staining would have left evidence of his DNA. If the
explanation for James Hanratty’s DNA being found on the handkerchief is
subsequent contamination it must follow that either the original DNA had
degraded so as to become undetectable or James Hanratty’s DNA has in some way
overwhelmed the original deposit so that the original is no longer capable of
being traced. More than that the transfer must have taken place in such a way
as to affect only the areas of mucus staining and not the unstained part of
the handkerchief which was not found to bear DNA from James Hanratty or anyone
else. In our view the notion that such a thing might have happened in either
case is fanciful. The idea that it might have happened twice over is beyond
belief.
- Accordingly, we reject the evidence of Dr Evison
where it is in conflict with the additional evidence of the respondents,
agreeing as we do with the submission made by Mr Sweeney that the DNA evidence
standing alone is certain proof of James Hanratty’s guilt.
- By way of postscript we should record that it
has been agreed by Mr Sweeney and Mr Mansfield that on the evidence now
available Peter Alphon could not have been the murderer. It is understood that
this agreement arose out of the DNA evidence.
Mr Justice Leveson:
THE GROUNDS OF APPEAL
Valerie Storie
- The first four grounds of appeal concern
non-disclosure of material relating to the evidence of Valerie Storie. Before
embarking upon an analysis of these grounds it is useful to make the following
points:
(1) These questions fall to be judged against the background of
contemporary common law rules, as exemplified by decisions such as R v
Mills and Poole [1998] AC 382 and R v Ward 96 Cr App R 1, in the light of the analysis of
the proper approach of the court.
(2) The law and practice relating to disclosure at the time of the trial
differs from what it is today. It is summarised in Archbold, 35th
edn. (1962) as follows:
“Where the prosecution have taken a statement from a person whom
they know can give material evidence but decide not to call him as a
witness, they are under a duty to make that person available as a witness
for the defence, but they are not under the further duty of supplying the
defence with a copy of the statement which they have taken: R. v. Bryant
& Dickson (1946) 31 Cr.App.R. 146. … Where a witness whom the
prosecution call or tender gives evidence in the box on a material issue and
the prosecution have in their possession an earlier statement from that
witness substantially conflicting with such evidence, the prosecution
should, at any rate, inform the defence of that fact … . In certain cases,
particularly where the discrepancy involves detail, as in identification by
description, it may be difficult effectively to give such information to the
defence without handing to them a copy of the earlier statement: R. v.
Clarke (1930) 22 Cr.App.R. 58.”
- The four facts which Mr Mansfield contends
should have been disclosed relating to Valerie Storie are (a) that she had not
been consistent, in her description of the gunman as having icy blue eyes; (b)
her previous assertion that her opportunity to see the gunman had been when
she was in the back of the car (whereas at trial she said that her view was
when she was still in the front seat of the car); (c) that, when interviewed,
she had said that her memory of the man was “fading”; and (d) the fact that
the man she identified on the first parade (on which Peter Alphon appeared)
had dark eyes. We deal with them in turn.
- As to the first, Mr Mansfield points to two
documents which the defence were not given (which today they would have been).
The first contains a description given on 23 August, that is the very day on
which Valerie Storie was admitted to hospital, to two police officers who were
doubtless concerned that she might not survive. That description (as recorded)
describes voice, hair, face, complexion, nose, height, dress and age. As to
eyes, it records “Large, not deep set but face level”. This interview
concluded at 1.30pm and one of the officers then spoke to Sergeant Absolam who
purported to record what he was told. He included a reference to the eyes as
brown. The next recorded occasion on which Valerie Storie supplied a
description of the gunman was on 26 August to Inspector Mackle (who
constructed the identikit image) when she described the gunman’s eyes as
‘blue’. Thereafter, her written statement of 28 August and other descriptions
refer to ‘icy blue large saucer-like eyes’ which is a phrase which achieved
prominence in the trial.
- There is no doubt that the defence was aware
that a man with ‘deep set brown eyes’ was being sought by the police. The
national press and the Police Gazette of 24 August were used for the purposes
of cross-examination in an attempt to identify its origin. In fact, there was
little room for challenging Valerie Storie: the best evidence of what she had
first said contains nothing about the colour of the eyes and, from
26 August 1961, she had certainly been consistent. In addition, it will
be remembered that at the scene she had attempted to write blue eyes and brown
hair on the ground and as her veracity was never in dispute this really
reduces the point to no more than a breach of the rules. Further, we agree
with Mr Sweeney’s submission that this material was of minimal value in
the attack on Valerie Storie’s accuracy compared to the other features
carefully placed before the jury, namely variations between her evidence at
the trial and that given in the committal proceedings, the difference between
her evidence and that given by John Kerr, the identikit picture which showed
the gunman’s hair as flat and straight and brushed back from the forehead
without a widow’s peak and, most importantly, the incorrect identification on
24 September 1961. Neither, in all the circumstances, do we accept that DS
Acott’s answer that Valerie Storie had always been consistent in her
description throws doubt upon his honesty. There is nothing to show this was
anything other than an innocent mistake.
- The second ground concerns the same note of the
initial discussion on the day of the killing which records Valerie Storie as
telling the officers:
“I did have a good look at him when I was in the back of the car
when I was trying to soften him up. I think I would be able to identify him.
In fact I am sure I would.”
This is to be contrasted with her evidence at the committal and at trial
(and, incidentally, the undisclosed interview of 11 September to which we
shall come) that the “only real proper glimpse” was when she was in the front
of the car, wearing her glasses as a car “came along from behind and lit up
his face”.
- Mr Mansfield points not only to the difference
between the front and the back seat but also to the fact that when on the back
seat of the car, which was the time when the gunman raped her, Valerie Storie
could not see clearly because she was very short-sighted and was not wearing
her glasses. Thus, not being shown this note (which, by any standard, should
have been disclosed) deprived the defence of the opportunity to throw doubt
both on her ability to have had a clear view of the gunman’s face and on her
reliability and consistency as a witness.
- There is no doubt that questions could have been
asked about this discrepancy but the point must be put into context. The
defence did not doubt Valerie Storie’s honesty (nor could they) and
cross-examining her against an account within 12 hours of the horrific events
to which she was a witness, while she was in hospital gravely ill, is unlikely
to have had any serious impact on anyone’s view of her reliability. As to
consistency, it should be noted that after referring to the “real proper
glimpse” from the front of the car, the deposition does record other, albeit
less significant, sightings in these terms:
“When I got in the back of the car there may have been cars
passing. I think there were some heavy lorries. I only had an opportunity to
see a side view, possibly a three quarters view whilst I was in the back
when any vehicle went past. I can’t really say how many vehicles went past –
not more than about 6 or 8 but I didn’t really count them. Their headlights
would illuminate the man’s face for less than 10 seconds.”
- The third ground of appeal concerns the
non-disclosure of an interview with Valerie Storie on 11 September which took
the form of a long series of recorded questions and answers over nearly five
hours and covering 74 typed sheets. Mr Mansfield points to two features the
non-disclosure of which he contends deprived the defence of highly significant
evidence in relation to Valerie Storie’s ability to identify the gunman. The
first is an interruption of DS Acott explaining that he intended to show her
photographs when she said “My memory of this man’s face is fading” to which he
responded “Yes but if you see the face, it will come back to you”. The second
is the photographs to which she was referred and, in particular, the one
photograph which she said was “most like him”.
- The first point to be made is that although this
interview would be disclosable by present standards it is far from clear that
it necessarily fell to be disclosed by the standards of the day. In fact, the
defence knew full well that Valerie Storie had been interviewed many times and
at length because the first questions asked by Mr Sherrard at the committal
were directed to that issue. Valerie Storie said:
“I have been interviewed by police officers on numerous
occasions since this dreadful thing happened. … On one occasion I was
interviewed by DS Acott for a little under 5 hours.”
There is no suggestion that Mr Sherrard then made, let alone pressed, an
application to see whatever record there was. This is not a criticism of him
but the fact that he did not may provide insight into the extent to which this
type of material was, on what the law was then understood to be, then
considered disclosable.
- In any event, the observation about fading
memory has to be taken in the context of a gravely injured young lady,
traumatised by her experience, concerned to do her best to help the police to
catch the killer and anxious about her ability to deal with identification. In
the same interview, when shown the identikit picture which she had helped to
compile, she observed that “it is similar and a good guide to the man I
remember so well”. She later explained that what worried her was that when
confronted with the man “I may not be able to pick him out”. The fact is that
she found her fear unfounded because she did make a positive identification in
the circumstances described when she was cross-examined about it (see
paragraph 57 above). The care which the jury had to take was emphasised and we
have no doubt that this feature is of far less significance than the
differences to which we have already referred (paragraph 132).
- The same is so for the photographs which she was
shown. At its highest, Valerie Storie identified one as “most like him”, a
phrase utterly subjective in content and of very little forensic value in the
absence of a lengthy examination of every photograph and the features to which
she was then referring. Given that the photograph she picked out was
apparently of a man with blue eyes and light brown hair, this point is
unlikely to have advanced the defence case.
- The fourth ground of appeal concerns the failure
by DS Acott to disclose a note which he had made in his notebook to the effect
that the man identified by Valerie Storie on the first identification parade
(on which Peter Alphon was standing) had ‘dark eyes’. A note to that effect
was written in the back of his notebook (that is, not in the sequence of
events that he recorded whether for evidential purposes or otherwise).
Mr Mansfield also submits that this feature is relevant to the attack on
the Superintendent’s credibility because when asked to describe the man, the
officer only said: “I can tell you this from my own knowledge: 5ft 9in, dark
short cropped hair, about 27 years of age and he was heavily built”. Other
aspects of the noted description also omitted from his evidence included ‘long
round face, square chin, pale complexion, … born 7.12.35’.
- The notebook would fall to be disclosed under
contemporary common law rules; it is less clear that it represented an
inconsistent statement by 1962 standards. Further, it would have been open to
the defence to require that the identified man be brought to court. Mr
Sherrard asked if he was available to be brought and was told:
“He was some time ago, but I cannot say off-hand.”
The officer was not pressed further.
- As to DS Acott’s answer (omitting ‘dark eyes’),
it is only fair to him to record that he was prepared to give a description
(which in the light of his earlier evidence is likely to have come from his
notebook) saying:
“I think I had better give it in detail from start to finish
then.”
He was then asked whether it was the result of his own observations and he
responded, “Not all of it”. Mr Sherrard, clearly concerned about what the
officer might say, was prepared to leave the matter but the judge pressed. The
answer upon which Mr Mansfield relies comes after a request both from
Mr Sherrard and the judge to restrict himself to his own knowledge. Given
that the Superintendent had specifically said that not all of the description
came from his own knowledge and we do not know why this description was in the
back of the notebook, it would be wrong to conclude that of his own knowledge
he could describe the man’s eyes as ‘dark’.
- Finally, the evidence about the man whom Valerie
Storie had identified was not consistent on this point. Dr. Rennie, who had
treated Valerie Storie, was present at this parade and was asked if he could
recall the appearance of the man whom Valerie Storie had identified. He
stated: “As far as I remember he had rather fairish hair and bluish eyes”. In
our view, there was no great mileage for the defence in this point. The most
important feature (namely that Valerie Storie had identified a volunteer on
the parade who could not have been involved) was fully deployed before the
jury.
The Identification Parade
- The next two grounds of appeal concern the
identification parade. The fifth ground raises another issue of non-disclosure
which, it is alleged, demonstrates that DS Acott was aware that the
distinctive colour of James Hanratty’s hair at the time of the identification
parades on 13 and 14 October 1961 unfairly placed him at a disadvantage.
- The facts can be shortly stated. The officer
caused a message to be sent on 12 October concerning the arrangements for
the identification parades. This reveals that he advised that skull-caps
should be obtained to be worn by the parade participants and suggested those
worn in operating theatres. In the event, the advice was not followed by the
Bedfordshire officers who arranged the first parade on 13 October or the
Buckinghamshire officers who arranged the parade attended by Valerie Storie in
her bed at Stoke Mandeville Hospital on the following day. It is worth adding
that this message would not have fallen to be disclosed in 1962 albeit that it
now would be.
- It is clear from the brief particulars of all
the members of the second parade that men were chosen with hair variously
described as fair, auburn, brown and ginger. There is no doubt that James
Hanratty’s hair was different. On 3 October or thereabouts the
appellant had his hair dyed a deep auburn colour and by the time of the parade
it was a vividly unnatural colour. In her deposition Valerie Storie said of
the identification parade:
“I was startled by the most unusual colour of the hair of the
accused. I had never seen hair quite that colour before.”
At the trial she agreed with Mr Sherrard’s suggestion that the appellant
stood out like “a carrot in a bunch of bananas”.
- It is far from clear that DS Acott was concerned
that the parade would be unfair to James Hanratty; his instruction is equally
consistent with a concern that his hair might be off-putting to an identifying
witness who would be sure that the killer (seen by Valerie Storie) and the
driver (seen by John Skillett, Edward Blackhall and James Trower) did not have
hair of the colour of James Hanratty. In any event, DS Acott’s view is not to
the point. The parades were organised by independent officers charged to
ensure that every precaution is taken to eliminate unfairness as described in
the Home Office guidance then governing the procedure. It was conducted in the
presence of James Hanratty’s solicitor who made no complaint at the time and
the fairness of the parade was fully explored at the trial.
- The sixth ground of appeal relates to Valerie
Storie’s request to hear the members of the parade speak and criticises the
fact that she was allowed to do so based on H.O. Circular 109/1978 (which was
promulgated many years after this case had concluded). We have referred to her
evidence as to her state of mind (see paragraphs 56 and 57) and,
notwithstanding answers provided in re-examination to the effect that absolute
certainty came after she had heard the men speak, she had previously made it
clear that she was satisfied after five minutes. Thus, if asked whether she
could identify the man on the basis of appearance in accordance with the
circular, it seems clear that she would have replied in the affirmative
because she was making her request to enable her to confirm the preliminary
identification she had already made. So hearing James Hanratty’s voice went to
confirm her view and was, in a way, a protection against her selecting the
wrong person. Thus, non-compliance with the circular is of very limited
significance.
- Furthermore, if Valerie Storie had been
depending only upon voice identification, then not to have on the parade
volunteers who had a similar accent to James Hanratty would have been a
mistake. Valerie Storie was looking for the right appearance and then the
right voice, and this being the position the criticism of not selecting those
on the parade from the point of view of their voices loses considerable force.
In the circumstances of this case, we do not believe that the questions asked
on the parade caused any unfairness. We return to the absence of direction
when dealing with the summing up.
- Having completed the review of all the grounds
affecting Valerie Storie, one further point ought to be made. Although we have
set out our views as to the impact of these various non-disclosures, neither
that nor the conclusion that we have reached about the DNA evidence (which
necessarily has the effect that Valerie Storie’s identification was, in fact,
entirely accurate) is decisive of these grounds of appeal. The fact is that by
contemporary standards all this material should have been available to the
defence and, even by the standards of the day, at least a large part should
have been. We shall return to the overall effect of these failures in the
context of the fairness of the trial as a whole having analysed the other
complaints.
Identification of the Driver of the Morris Minor
- One of the important planks of the prosecution
case was the identification of James Hanratty by John Skillett and James
Trower, the drivers who had seen a Morris Minor being driven erratically along
Eastern Avenue in the direction of Gants Hill and near Avondale Crescent at or
around 7am on 23 August. With the evidence of Doris Athoe that the car found
by the police later that day (which was the car Michael Gregsten had been
driving) was in Avondale Crescent from about 7am, there was a direct link
through the car between the killing and James Hanratty.
- The seventh ground of appeal concerns the fact
that (not disclosed to the defence) there were other reported sightings of the
Morris Minor car during 23 August 1961 in different parts of the country and
evidence that a different light grey Morris Minor had been parked directly
opposite where Mr Gregsten’s car was recovered. This evidence consists of
the following:
i) At 6.30am on Wednesday 23 August, William Lee saw a grey Morris Minor
being driven by a man wearing a woollen pom-pom hat on the A6 near Matlock in
Derbyshire. He wrote the registration number down as 847 BHN which was the
registration of Michael Gregsten’s car in the boot of which there was such a
hat (although there is no evidence that the murderer otherwise was seen
wearing it).
ii) At 12 midday on the same day, John Douglas, a petrol pump attendant at
a garage at Birstall, north of Leicester, made a mental note of the
registration number of a bluish grey car as 847 BHN occupied by a man and a
woman. The man spoke with a southern accent which sounded to him as coming
from Somerset.
iii) Other sightings of a car with the registration number 847 BHN were
noted at 1.00pm between Hitchin and St. Ippollits (which would mean that the
car stayed in the vicinity of Bedford all morning) and at 5.25pm in Coventry
(which given the time the car was seen by the police in Avondale Crescent is
simply not possible).
iv) Doreen Milne said she parked her grey Morris Minor in Avondale Crescent
at 8.15am opposite where Michael Gregsten’s car was subsequently found without
recalling any car parked opposite hers. Margaret Thompson saw police interest
around what she called a grey Morris 1000 at 8.00pm and reported that it had
not been there at 5.30pm when she passed with her three year-old son.
Needless to say, the sightings in Matlock, Coventry and north of Leicester
are inconsistent with the Morris Minor being seen in Eastern Avenue, near
Avondale Crescent, or in Avondale Crescent by 7am although it is somewhat
difficult to visualise for what purpose the gunman might have made these trips
and then returned to Ilford (as he must have done) using a car which he would
have known the police would be seeking as soon as Michael Gregsten was
identified and the car he was driving ascertained.
- There is no doubt at all that this material
would fall to be disclosed by contemporary standards: the contrary is not
suggested. In our judgment the names and addresses of these witnesses also
fell to be disclosed under the more restrictive regime described in R v
Bryant & Dickson. We are not in a position to say why that did not
occur although DS Acott may have discounted these identifications, at least in
part, because of other material which was also not disclosed (and about which
the appellant also complains).
- Unknown to the defence at the trial was the fact
that a record was kept by Michael Gregsten of the mileage when he put petrol
in the car. On 22 August 1961, the odometer was recorded as
51,875 miles. When the vehicle was recovered in Avondale Crescent, the police
noted the odometer reading to be 52,107 miles. Thus, 232 miles had been
travelled in the period which elapsed. Depending on when petrol was put in the
car, this may have included Michael Gregsten’s driving that day
(57.4 miles) but must include the drive from the cornfield at Dorney
Reach to Deadman’s Hill on the A6 (58-65 miles) and, at the very least, the
minimum distance from the A6 to Avondale Crescent, Ilford (48.6 miles).
We say ‘at the very least’ because there is, of course, no direct evidence of
where the gunman went having left Valerie Storie for dead on the A6 and
neither do we know that, in any event, he took what present investigation
reveals would then have been the shortest route. These distances are
comfortably within the distance which, if the record is correct, the odometer
recorded.
- The most impressive evidence of sighting must
surely be that of Mr Lee in Matlock. The straight-line distance from Deadman’s
Hill to Matlock and then to Redbridge is estimated at 268 miles. That itself
exceeds the 232 miles record and takes no account of the trip from Dorney
Reach to Deadman’s Hill. A route planner puts that total distance as 333.3
miles. Thus, if the odometer readings are correct, this identification must
also be flawed. Mr Sweeney makes the same point about the identification north
of Leicester.
- In any event, Mr Sweeney argued that this
evidence would not have been utilised by the defence who were arguing that the
presence of the cartridges found at the Vienna Hotel was explicable on the
basis of the involvement of Peter Alphon who had been seen at the hotel during
the morning of Wednesday and so could not have been driving the car around the
country. Whether Mr Sherrard would have changed his strategy, however, or
at least tested the evidence rather differently (bearing in mind that Mrs
Athoe’s account was read to the jury and thus not put in issue at all) is one
which we are simply not in a position to determine and neither should we.
- Having said that, none of this evidence was
without its difficulties for the defence and although this represents the high
watermark of non-disclosure in this case we do not consider that, on its own,
this feature reveals such fatal unfairness as itself to render the conviction
unsafe. We return below to the question of the impact of this material, taken
with the other complaints about the trial, and in the context of the DNA
evidence, upon the overall safety of the conviction.
Concealment of the Gun
- The 36A bus route ran from Rye Lane Depot in New
Cross to Victoria, Hyde Park Corner, Marble Arch, Edgware Road, Maida Vale and
West Kilburn. It passed Sussex Gardens (the home of James Hanratty’s friend
with whom he occasionally stayed) and Sutherland Avenue (the location of the
Vienna Hotel). On the morning of 24 August (ie over 24 hours after the
killing), Pamela Patt was the bus conductress. After the gun was found that
evening, she made a statement describing one unknown passenger going to the
top deck of the bus. The eleventh ground of appeal is that neither her
statement nor her name and address were disclosed. We proceed on the basis of
a failure to comply with contemporary standards of disclosure and the relevant
standards of the time.
- The gun was found under the back seat on the top
deck of the 36A bus on the night of 24 August by a cleaner, Edwin Cooke. He
had cleaned the bus the previous evening and said that it had not been there
then. Because James Hanratty had sent a telegram from Liverpool to London at
20.40 on 24 August, it was the prosecution case that he had deposited the gun
during the early morning run on 24 August when Arthur Embleton was the driver.
He referred to being accompanied by woman conductor Patt.
- Pamela Patt’s statement (taken on 26 August
1961) was to the effect that the passengers during the northern part of the
journey to West Kilburn were all regulars, with one exception. At 6.10am a
young man of dirty appearance, wearing a dirty raincoat got on near the
Grosvenor Hotel and went to the upper deck, where he was the only passenger
for a time. On the return journey the bus was full between Harrow Road and
Victoria. When giving evidence, DS Acott agreed that there would have to have
been nobody sitting on the back seat of the bus for it to have been lifted
sufficiently to allow the gun to be deposited. He also agreed that the murder
weapon and the boxes of cartridges were bulky items.
- Mrs Patt was due to appear at the committal
proceedings, but was unwell. The prosecution must, therefore, have considered
her evidence probative but did not serve it as additional evidence.
Mr Mansfield argued that it was significant because, according to her,
the only person who would have had an opportunity to deposit the gun and
cartridges was the man whom she described and whose description was not
consistent with that of James Hanratty. Had the defence been provided with her
statement, he suggests that steps could have been taken to find out if she
recognised the appellant as the person she observed (notwithstanding the fact
that by seeking to call her at the committal, the prosecution most certainly
did not believe that she undermined their case).
- By the standards of the time (which would have
required disclosure of name and address only), the defence had the relevant
information in the statement of Arthur Embleton (with the result that if they
had wished to trace her, it would not have been a difficult exercise). In any
event, her description of the man (about 25, 5 ft. 7 ins., medium build, thick
wavy hair, mousey colour, clean shaven) is unlikely to have taken the defence
very far and it would have been remarkable had they sought to call this
witness to make a positive non identification and risk her cross-examination
on the various features of similarity. We nevertheless refer below to the
effect of this failure by the prosecution.
The Vienna Hotel
- Three grounds of appeal (8-10) relate to the
non-disclosure of material from witnesses linked to the Vienna Hotel. The
first concerns earlier statements of Juliana Galves, who lived and worked at
the Vienna Hotel, and Robert Crocker, the manager of the parent hotel. They
both gave evidence at the trial of finding, on 11 September 1961, two spent
cartridge cases (which had been fired by the gun used in the killing) on a
chair next to a bed in an alcove of room 24, where James Hanratty, using the
name Ryan, had stayed on 21 August. They had, however, made earlier
statements (in the case of Mrs Galves prior to the finding of the
cartridges) about the movements of the man Durrant (Peter Alphon).
- As we outlined at paragraph 35 above, it was not
revealed that enquiries had been directed to the Vienna Hotel, not because of
the recovery of the cartridges but because of the behaviour of Peter Alphon at
another hotel, as a result of which he was interviewed on 27 August, when he
asserted that he had stayed at the Vienna Hotel on the night of 22/23 August.
It was this claim to an alibi that led to the original statements. Other
statements to do with the register were also not disclosed although it was
clear from the cross-examination of DS Acott that because of questions
Mr Sherrard put, he was aware that Juliana Galves had changed her
evidence about the occupation of the room subsequent to 21/22 August.
- Also undisclosed at the time of the trial was a
police log, dated 6 September 1961, which recorded a message confirming
that Peter Alphon (using the name F. Durrant) had stayed at the Vienna Hotel
arriving at 11.30pm on 22 August. The message goes on “Statement will be
forwarded”. The box “Action taken” has then been completed:
“Please make perfectly sure that it is a positive fact that
Durrant was in the hotel at 11.30 p.m. on 22nd August 1961 –
Include this in the statement please.”
There is then (presumably written by a different person) “Will be done!!”.
- A statement to that effect (albeit later
modified by the witness) was taken. Mr Mansfield submits that this is
evidence of police malpractice, as was the failure to disclose statements and
the log (which would only be by contemporary standards and not those
appertaining at the time). Mr Mansfield argues further, that it is legitimate
to infer that the hotel register had been altered to conceal the entry in
relation to Ryan and that the defence were deprived of the opportunity to
submit that the police were prepared to tailor the evidence to fit the theory
that Durrant/Alphon was guilty, that someone with knowledge that Alphon was
under investigation had planted the cartridge cases; and that the hotel record
had been altered in some way.
- Whereas there was a failure to disclose material
to which we shall have to return, we do not accept that the events bear this
construction, or give rise to the possibility of that type of submission. The
police log does no more than underline the importance to whoever was charged
with taking a statement that it should cover the time of his arrival at the
hotel. Far from implicating Peter Alphon, the effect of the requested
statement would exonerate him at a time when there was no other suspect. There
was no reason for anyone to alter the hotel register. Finally, this material
provides no support for the proposition that anyone (let alone the police who
had the gun and the ammunition from 24 August) planted the cartridges.
They were, after all, found at a time before James Hanratty had entered the
frame of possible suspects but when Alphon, according to the message recorded
on the log of 6 September, appeared to have an alibi and so was about to leave
it. The circumstances in which they were found (and the discrepancies
involved) were fully ventilated at the trial.
- The next ground of appeal concerning the Vienna
Hotel relates to undisclosed inconsistent interviews of William Nudds and
Florence Snell (although inconsistent statements were disclosed and were the
subject of detailed cross-examination at the trial). Mr Mansfield argues that
this failure deprived the defence of material affecting the credibility of two
important prosecution witnesses.
- These inconsistencies go to the time at which
these witnesses saw Peter Alphon at the Vienna Hotel and whether, in fact,
they provided him with an alibi for the killing and would have provided
additional ammunition with which to damage their credibility although the
prosecution, the defence and the Judge all warned the jury about the care
needed in relation to what they said. In that context, it is worth adding that
there is, in fact, no evidence that Peter Alphon was in any way involved (and
it was common ground that the DNA findings are inconsistent with his being the
murderer/rapist).
- The only other evidence given or confirmed by
these witnesses upon which Mr Mansfield relies as demonstrating
unfairness in the trial is the account, which is disputed of how, when James
Hanratty left the hotel, he asked for directions to Queensway and was advised
by William Nudds (partly corroborated by Florence Snell) to walk to Harrow
Road and catch a 36 bus. We do not consider that this evidence, even if
accepted, took the prosecution anywhere. This request, if made, was on the
morning of 22 August, that is before the killing, and provides no link
with a trip on a 36A bus to abandon the gun and ammunition. On the prosecution
evidence, this was two days later on the morning of 24 August.
- The final ground of appeal concerning the Vienna
Hotel relates to the date when the hotel register was seized by the police and
the failure to disclose a note in DS Acott’s notebook to the effect that he
did so on 20 September. Mr Mansfield argues that DS Acott’s evidence to
the jury (that he did so on 11 September when the cartridges were found) was
thus untrue, thus raising further doubts about his credibility and about the
integrity of the evidence in relation to the finding of the cartridge cases.
- In 1962, there would have been no question
within the current rules of prior disclosure of the notebook although had the
officer used it to refresh his memory while giving evidence, Mr Sherrard would
have been entitled to see it. Under present rules, it would fall to be
disclosed. In fact, however, there was evidence in the form of a statement
from DSgt Oxford to the effect that the register was seized on 20 September
(which militates against the Superintendent deliberately lying as Mr Mansfield
implies). The fact is that James Hanratty agreed that he stayed at the Vienna
Hotel on the night of 21/22 August and there would be no reason, after the
finding of the cartridges, for the hotel register to be forged by anyone.
- More significantly, we do not accept that this
material impugns the integrity of the evidence relating to the cartridge cases
in any way. We have already referred to the state of the investigation at the
time that they were said to have been found. The police had the gun; they had
no reason to look further at Peter Alphon or the Vienna Hotel, let alone think
about James Hanratty. Whatever coincidence this was, there is nothing in this
error to support any theory of fabrication or plant.
Interviews and the ESDA Evidence
- After the appellant had been arrested in
Blackpool on 11 October 1961, the following day DS Acott and DSgt Oxford
interviewed him. During two interviews DS Acott asked the questions while DSgt
Oxford made notes of the questions and the appellant’s answers. The notes were
recorded on a bundle of loose foolscap size pieces of paper. The notes
indicated that the first interview began at 7.45am and finished at 9.30am, and
that the second interview began at 2.15pm and concluded at 2.45pm. The notes
also record that they were read and checked by DS Acott in the presence of
DSgt Oxford, in the case of the morning interview, at 11am and, in the case of
the afternoon interview, at 4.30pm. The notes extended over 20 pages. The two
officers jointly corrected and initialled the notes. The notes were
subsequently reproduced in the officers’ respective notebooks.
- During the trial both police officers were
cross-examined as to the manner in which the notes had been recorded. For
example, DS Acott denied the suggestion that he had altered his notebook and
DSgt Oxford refuted the suggestion that the notes were not honestly recorded.
The point was made that the appellant was not given an opportunity to confirm
the accuracy of the notes. However, it was not suggested that there were major
differences between what is recorded and what was actually said.
- On the hearing of the appeal, Mr Mansfield
primarily directed his criticism of what is recorded as having been said by
the appellant at the end of both interviews using the word “kip”. At the first
interview he is recorded as saying “OK I’ll go to ‘kip’” and at the second
interview he is recorded as saying “I’m going to have a good ‘kip’” and “No,
I’m not tired but I can always ‘kip’ any time and place”.
- Mr Mansfield directed his attention to the use
of the word “kip” because Valerie Storie recalled the murderer using the word
“kip”, and because the use of that word was relied upon by the prosecution to
identify the appellant as the murderer (see paragraph 20 above). The appellant
gave evidence that he was not in the habit of using the word ‘kip, and that he
did not use the word ‘kip’ during the interviews.
- After the trial, evidence was obtained from an
expert in forensic document examination, Dr David Baxendale, that certain
parts of the notes had been rewritten. He was able to give this evidence
because he subjected the notes which had been produced at the trial, as
exhibit 117, to an ESDA test. An ESDA test reveals whether a document has been
written when positioned over another document by enabling the indentations in
the lower document which such writing can cause to be visible to the naked
eye. This feature is the basis of the twelfth ground of appeal.
- Dr Baxendale gave evidence before us on this
appeal. He explained that you could expect, if someone was writing on a pad of
pages that the impressions made by writing on the first page could be detected
on the second page and so on. So here, by using ESDA, he found that page 2
reveals the impressions from the handwriting on page 1 and page 3 bears the
impression of the handwriting on page 2. However, Dr Baxendale was not able to
detect any impressions from page 3 on page 4. Instead he detected on page 4
some faint impressions which came from page 20. On page 5 more than one set of
impressions were identified but the only feature of significance were
impressions which suggested that there was more than one previous page 4. The
differing impressions on page 15 established that there had been more than one
version of page 15. The same was true of page 19. Dr Baxendale was of the
opinion that pages 4, 15 and 19 in exhibit 117 had been rewritten. In
addition, that page 4 in exhibit 117 had been under page 20 at the time that
that page was written. Otherwise his findings on the different pages were
generally in accordance with what you would expect if the notes had been
recorded in a straightforward manner and no second copies made.
- We accept Dr Baxendale’s evidence, but we do not
consider that his evidence establishes that it is probable there was anything
improper about the manner in which the notes were recorded. Taking fully into
account the evidence of the two officers at the trial, it is our opinion that
there could well be a wholly innocent explanation for Dr Baxendale’s findings.
What we regard as significant is that Dr Baxendale found no evidence that
anything had been added or removed from the notes in the course of pages being
rewritten. This does not rule out alterations but it does suggest that while
the copying was being done, material changes to the content of the notes were
not being made. The impressions which were found of what was on the missing
pages do not always follow the same pattern as that on the pages constituting
exhibit 117. This could be due to the position of the page underneath not
being precisely the same as that of the page above at the time when the
writing took place, or it could be an incidental consequence of the copying
process.
- For the officers to have deliberately inserted
the word “kip” into the notes without it being used by the appellant would
have been serious misconduct. However, it was misconduct which could equally
have been achieved without rewriting the pages of the notes and it is not
obvious if this was what was wanted why it could not have been more simply and
less laboriously achieved.
- The impressions, which Dr Baxendale found, were
from the upper half of the page. This is apparently not unusual. What the
notes confirm is that during the course of the interview, there were
substantial pauses. While this is speculation, a possible explanation for the
findings was that DSgt Oxford was taking advantage of the pauses to rewrite
more clearly what he had previously written. It has to be remembered that it
was only the pages, which were agreed and authenticated by the two officers,
which were reproduced in their notebooks. The position may not even be
different today, but, it is our belief that at the date of the interviews
importance would not have been attached to the rewriting (as long as this was
done in the same terms) of the notes taken in the course of an interview prior
to the notes being reproduced, in accordance with the then practice, in the
officers notebooks.
- If at the trial the defence had been aware of
the rewriting, then no doubt this would have been explored in
cross-examination. However, it is unlikely that this would have been a matter
of any significance since it was accepted by DS Acott that nothing said
by the appellant could be considered a confession. We do not accept that Dr
Baxendale’s evidence demonstrates, as is suggested in the perfected grounds of
appeal, that the evidence given at the trial by each officer was, at least in
part, untrue.
- Reduced to its proper significance this ground
of appeal is of peripheral, if any significance.
The Rhyl Alibi
- Mr Mansfield does not advance any attack on
the conduct of the prosecution in relation to that part of James Hanratty’s
alibi which concerned his departure from London and his arrival and initial
movements in Liverpool. The jury heard evidence about the train times from
London Euston to Liverpool Lime Street (12.15pm arriving 4.45pm) and it was
for them to evaluate the evidence of Olive Dinwoodie and Albert Harding as to
the incident in the sweet shop.
- Following Mr Sherrard’s opening speech to
the effect that James Hanratty had left Liverpool by bus on the same day that
he arrived and gone to Rhyl, it is not surprising that the police commenced
enquiries. By the end of the day on which the speech was made, they had
obtained details by telex of the bus service from Liverpool to Rhyl. This
showed there was a double-decker bus, which departed at 6pm and arrived at
8.19pm. The appellant asserts that this information was not disclosed; in
common with other, similar, claims, the prosecution invites the Court to
proceed on the basis that this is correct.
- Although there is no doubt that under modern
common law rules, this material should have been disclosed, it is arguable
whether the information (not in the form of a statement from a person whom the
prosecution know can give material evidence) fell for disclosure at the time.
To the initiated, it must have been clear that Mr Swanwick had been given
information on this topic for he cross-examined as to the name of the carrier,
whether it was a single-decker or a double-decker, and its colour.
- Whatever is the true position, we do not
consider that this failure is of significance in itself or adds anything to
the other allegations where breach of the rules is established. Furthermore,
emphasis of the timing serves to underline the little time available to James
Hanratty while he was in Liverpool. Thus, in the 75 minutes between the
arrival of the train and the departure of the bus, his evidence was that he
has left the train, had a wash in the station, deposited property in the
left-luggage office, made enquiries outside the station about Carleton,
Tarleton or Talbot Road, got on and off a bus, gone to the sweet shop in
Scotland Road, walked back to Lime Street, looked for but been unable to find
the road, gone for a meal, discussed the sale of a watch, decided to go to
Rhyl, presumably collected what he had left at the left luggage office, found
the bus station and got on the bus. It was his evidence, of course, that he
only left Liverpool at 7.30pm.
- The real issue under this thirteenth ground of
appeal concerns three other witnesses which the investigation of the Rhyl
alibi revealed. These are Margaret Walker, Ivy Vincent, and Christopher
Larman. First, on 8 February 1962, a statement was taken by police from
Mrs Walker. She said that she lived in South Kinmel Street and that one
night during the third week of August 1961 at between 7.30pm and 8.00pm (when
it was dark), she was standing by the gate of her home, when a young man
wearing a dark suit aged between 24 and 27 years-old asked if she could put
him up for a night or two nights. She noticed that he had dark hair ‘but
streaky, funny, not all the same colour’. She had no room, but referred him
across the way to Mrs Vincent.
- In accordance with the practice at the time,
this statement was not disclosed to James Hanratty or his advisers, although
her name and address were. Unfortunately, neither files of the correspondence
between the Director of Public Prosecutions and James Hanratty’s solicitor
have survived the passage of time but a letter dated 19 February 1962 (which
would have been the Monday following conviction on the Saturday) from enquiry
agents to the solicitors makes it clear:
“Mrs Walker was one of the persons out of the six, supplied
to you by the D.P.P.’s Dept. She had gone to the police and made a
statement. When seen by us she was not definite in anything but gave the
impression she wanted to be in on it.”
For our part, the only proper conclusion to draw is that her name and
address had been provided before the end of the trial.
- Mr Mansfield acknowledges the strength of
that inference and further accepts that early interview of Mrs Walker
would have led to Mrs Vincent (whom Mrs Walker mentions). The same
is not so in relation to Christopher Larman who came to the attention of the
police as late as 15 February (after the summing up had started but
before the jury retired on 17 February). At 8.15pm, a Detective Sergeant in
Staines reported a message he had received apparently from
“Mrs Christopher Edward Larman” (although the telephone subscriber at the
given address was Mrs Margaret Smith. The name provided may be a typing
error for Mr Larman) to the effect that he was in Rhyl on 22 August
1961 when a man asked if he could find him digs; he directed him to a house
opposite the Windsor Hotel. He described him as “a man in his 30s, 5 ft. 5½
ins, hair bronze or black, the sun was shining on it and I could not see the
colour properly”. The message was passed to DS Acott and was annotated:
‘Copy of message handed to Det Supt. Acott at 9.10pm 15/2/62 on
the instructions of D.Supt. Barron. Det. Supt. Acott said he would see that
the information was handed to the defending counsel in the
morning’.
- Mr Sherrard QC has written to the
appellant’s solicitor about this note in these terms:
“I am morally certain that no such information either oral or
written was conveyed to me at the trial. 16 February 1962 was a Friday and
the Judge was summing up. Had this statement or anything like it been
brought to my attention, even at that stage, I would surely have asked the
Judge to give me a little time to consider the implications of some
information which had been provided to me. The transcript will show that at
no stage did I make such an application.
I am quite sure that if there had been need to communicate
information of this kind to me, it would have been done by prosecuting
counsel. I am sure that this did not happen with regard to the Larman
material.”
We have no hesitation in accepting Mr Sherrard’s recollection which is
entirely consistent with the careful way in which he marshalled material
during the trial. Equally, we do not doubt that prosecuting counsel would have
acted in accordance with their duty. Unfortunately, DS Acott is now dead
and cannot be asked specifically with the result that we do not know precisely
what went wrong.
- A full statement was taken from Christopher
Larman by the police on 16 February. The statement is to the effect that
at approximately 7.15pm on 22 August, he left a hotel on the
corner of Kinmel St., when he was approached by a man aged in his late
twenties, wearing a dark suit who asked him if he knew a place where he could
get bed and breakfast. Mr Larman pointed him towards Ingledene. Although
he described the man’s hair as black observing ‘but as he walked away from me
with the sun shining on it, his hair had a bronze effect in parts of it’, he
also made it clear that he would not be able to recognise the man if he saw
him again.
- Neither this statement, nor Mr Larman’s
name and address, were disclosed to the defence team by the prosecution.
Mr Mansfield submits that it may be inferred that it was deliberately
suppressed by DS Acott. He goes on to argue that had the statement of
Mrs Walker been disclosed to James Hanratty before the conclusion of the
defence case at trial, then she could have been available to give evidence at
the appropriate time. A statement could also have obtained a statement from
Mrs Vincent, who was named in Mrs Walker’s statement. Had
Mr Larman’s statement been served, then an application could have been
made to the trial judge to allow this evidence to be given before the jury
retired notwithstanding the fact that the time for calling evidence had
passed. In that regard, the prosecution accept that Gorman J, anxious to be as
fair as possible to the man on trial, would certainly have allowed time for
such an application to be considered. Mr Mansfield concludes that the
non-disclosure of this and the other statement itself deprived James Hanratty
of the opportunity to call important evidence and so deprived him of a fair
trial.
- That the failure to disclose represents a breach
of standards is clear but before considering the effect of such a failure, it
is important to record what happened after the conviction. Statements were, in
fact, obtained by James Hanratty’s legal advisers from these witnesses. On
19 February, Mrs Walker provided a statement to the effect that she
had been approached at about 7.30pm by a man in a dark suit asking for
somewhere to stay. She was shown photographs of the appellant and stated: ‘The
photographs you have shown to me are very like the man who called here, but
the hair was dark.’ She repeated what she had told the police that the man’s
hair ‘was not quite natural, as though it was streaky or tacky.’ As to the
date, she stated “It was definitely the Tuesday before the 25 August,
because I had some personal news of something that was to happen on the
Friday”.
- On the same day, a statement was taken from
Mrs Ivy Vincent. She stated that about the third week in August there was
an occasion when a man had approached her, having come from Mrs Walker’s
house, and asked if she had any vacancies. She said that she did not and
suggested that he try further up South Kinmel Street and, failing that, that
he try Kinmel Street. She stated that she had seen the appellant’s photograph
in the paper and “I seem to recognise his face”.
- Finally, on 21 February a statement was taken
from Christopher Larman. Although the account which he provided was broadly
similar to that given to the police, namely that he had spoken to the man at
about 7.30pm on 22 August 1961, there was one very significant
difference. Whereas to the police he had made it clear that he would not be
able to recognise the man again, in this statement, he said:
“On Sunday, 18th February 1962, I saw photographs in
the Sunday Papers of James Hanratty and I immediately remembered that I had
seen him before and also the occasion when and where I had … I particularly
remember this man because of his hair, which was most outstanding being
brown and dark in parts…The photographs I have been shown are definitely of
the man I saw and spoke to at about 7.30 p.m. on Tuesday 22nd
August 1961.”
- It follows that statements from each of these
witnesses were in the possession of James Hanratty’s legal advisers well
before the 13 March 1962 when the matter came before the Court of Criminal
Appeal. Following an article clearly critical of the way in which James
Hanratty had been defended, in a letter to the Sunday Times dated 30 September
1968, his solicitor, without divulging matters covered by professional
privilege, explained the reason for the decision not to seek to call that
evidence before the court on the basis that the statements were not consistent
with the evidence which James Hanratty had given. He went on:
“Quite apart from inconsistencies as to identification and
detail (as well as some mutually contradictory features) there was no point
in seeking to rely on the evidence of Mr Larman, Mrs Walker and
Mrs Vincent because their statements (even without the test of
cross-examination) did not match Hanratty’s evidence on the crucial issue of
time. He could not have spoken to any of these people at 7.30 p.m.
because his evidence on oath was that he did not leave Liverpool by coach
for Rhyl until after 7.30 p.m. and that when he arrived at Rhyl it was late
evening and dark. It was, of course, not dark at Rhyl at 7.30 p.m. That the
statements in other respects did not find support from Hanratty himself
added substantially to the difficulties.”
In his letter, Mr Sherrard added that, after the trial, he did see
statements of Mr Larman and other potential witnesses which were
considered for the purposes of appeal. He goes on to add that he need not
rehearse the reasons for not seeking to adduce any of this evidence at the
appeal.
- Mr Mansfield challenges the solicitor’s
reasoning in his letter pointing to the consistency of description (with two
commenting on the unusual hair consistent with the evidence regarding the use
of dye), recognition of photograph, the fact that two had reasons to fix the
date and James Hanratty’s evidence that he had enquired “on five or six
occasions” about bed and breakfast accommodation. He argues that witnesses are
notoriously unreliable about time and that had the legal team known of the bus
time table, they would have appreciated that James Hanratty would have arrived
in Rhyl at 8.19pm (sunset being 8.30pm according to the information supplied
by Mr Swanwick from his diary during cross-examination) so that the
timing was not as awry as might have been thought. In the circumstances, he
submits that the court should receive the evidence of the three witnesses
under section 23 Criminal Appeal Act 1968 on the grounds that it is expedient
in the interests of justice.
- Implicit in this submission is a criticism of
the failure to seek to call the evidence before the Court of Criminal Appeal
by which time, after all, there was nothing to be lost in pursuing every
possible point. We have no doubt that most anxious thought was given to this
line. It is unlikely that the times of buses were unknown to the defence team
(given that it is clear they had made their own enquiries about train times);
a consequence of emphasising the 6.00pm departure is to underline the extent
of James Hanratty’s necessary activity in the preceding 1¼ hours. Further, two
of the witnesses speak specifically about 7.30pm whereas James Hanratty could
not have arrived in Rhyl until 8.19pm and his evidence was that he found it
very hard to find accommodation, that he had travelled in and out through
other streets and it was dark at the time when he came upon a small private
house with the ‘Bed and Breakfast’ sign. Time discrepancies are one thing;
differences between light and dark, another. Finally, the solicitor’s
observation that “the statements in other respects did not find support from
Hanratty” cannot be ignored; his reasons are unknown although his
instructions, in the end, would be conclusive. In the circumstances, we do not
criticise the decision not to seek to call this evidence before the Court of
Criminal Appeal.
- If that decision was legitimate, it is almost
inconceivable that a different view would have been taken had this material
been available before the Judge concluded his summing up. At that time, the
verdict was still in the future. Seeking to call further evidence carries real
risks and if there was appropriate concern about whether it should be called
at the appellate level, that concern would have been much greater at the
trial. In the circumstances, we do not accept that the failure to disclose
such material as the police had in relation to Rhyl would have made any
difference to the way in which the trial was conducted.
- As to the application under section 23 Criminal
Appeal Act 1968 now to rely upon the same evidence (which goes to the question
of the identity of the killer), the DNA evidence to which we have referred
leads conclusively to the view that this material does not render the verdict
unsafe.
Lord Chief Justice:
The Summing Up
Identification
- We now come to the summing up and the fourteenth
and fifteenth grounds of appeal. While Mr Mansfield accepts that in general
the summing up was of high quality and very fair measured by the standards of
1962, it is equally not in dispute that by today’s standards the summing up
would be regarded as defective. This is particularly true of the manner in
which the judge dealt with the critically important issue of identification.
- The decision in Turnbull [1976] 63 Cr App
R 132 which increased the scale of the warnings which were to be included in a
summing up as to identification had not yet been decided. In any event this
case required a particularly careful and full direction as to identification.
This is because Valerie Storie, in making her identification, relied at least
in part on her ability to recognise the murderer’s voice. As to this aspect,
the appellant relies upon the unreported decision of this Court in
Hersey (1 December 1997, No. 1996/8495/Y3) in which it was stated
that the warnings which are appropriate in identification cases apply equally
to voice recognition cases. These points are linked to the points we have
dealt with already in relation to the identification parade and the
appellant’s vivid rainbow-coloured hair.
- If the trial had taken place today, a judge
would be required to give fuller warnings than were given by Gorman J. In
particular it would be necessary for there to be a greater explanation for the
reason for the warnings (see Reid v R [1990] AC 363). But the way the
question of identification was dealt with by the judge did provide substantial
protection for James Hanratty. The summing up appropriately stressed the
importance of Valerie Storie’s evidence. The jury was also reminded of the
evidence of Mr Skillet and Mr Trower and the matters that might undermine
their evidence. There are references to the considerations which the jury
should take into account in assessing the reliability of the evidence of
identification, including the opportunity of the identifying witness to
observe the person subsequently identified. There are also references to the
need for caution in approaching the identification evidence. The judge
reminded the jury that Mr Blackhall had failed to pick out James Hanratty. As
to which he said, “All this …must go to impress on you the carefulness, which
one has to consider the identification evidence in this case.” He also stated
in relation to Valerie Storie’s evidence that; “One has to be very sure of an
identification”.
- As to the appellant’s complaint about his hair
(as we have already explained) this is very much a matter which is as likely
to have been in James Hanratty’s favour, as against him, since it would
certainly make him look different from the person who attacked Miss Storie.
- Non-directions of the categories relied on in
this case can result in a conviction prior to the date of the decision in
Turnbull being quashed today (see Johnson [2001] 1 Cr App 26).
Whether in pre-Turnbull cases this should be the consequence, involves
not merely asking whether there has been a breach of the Turnbull rules
but assessing the risk of the jury failing to understand the dangers in the
context of the facts of the particular case. Here, the assessment has to be
made against the knowledge that the jury was aware that Valerie Storie
herself, and other witnesses, had either made a mistaken identification or not
identified James Hanratty. The jury could not but have appreciated that honest
witnesses could be unreliable in relation to identification. Furthermore,
although there was no specific warning about voice identification, the fact is
that Valerie Storie had heard her attacker speak for six hours so she was in
an excellent position to identify him by his voice, as the jury would
recognise having heard him give evidence. They were in an excellent position
to assess whether his voice was likely to help identification.
- In our judgment if the non-directions stood
alone, even without the DNA evidence, they would not justify the quashing of
the conviction.
Absence of an Explanation of the Significance of Lies
- Today a judge is required when this is desirable
to point out to a jury that the fact that the defendant lied does not mean he
is guilty of the offence with which he is charged. But here this is a
technicality. The sixteenth ground of appeal goes to the change of alibi.
James Hanratty gave his explanation for the change and the jury was told that
if the second alibi might be true he could not be guilty. They needed no more
than that. The explanation and the second alibi were linked. We do not
consider this ground of appeal is of any substance.
Inaccurate Summary of the Evidence of Charles France and Carole
France
- The judge’s summing up can properly be
criticised (and is in the seventeenth ground of appeal) for not being entirely
accurate in relation to Mr France and his daughter, Carole, but the inaccuracy
only goes to whether the appellant was in London on 21 August. The other
evidence that he was in London on that date, as he said, is overwhelming and,
in common with the views of the Court of Criminal Appeal before whom this
point (with others) was taken, we consider that there is nothing in it.
CONCLUSION
- We have already stressed the importance of
looking at a case such as this in the round. The grounds of appeal are of
differing significance and although we have dealt with them individually it is
also necessary to consider them collectively in asking ourselves the critical
question is the conviction of James Hanratty of murder unsafe either on
procedural or evidential grounds? As to the evidential issues they all
ultimately relate to the single issue which dominated the trial and this
appeal, the identity of the killer. In our judgment for reasons we have
explained the DNA evidence establishes beyond doubt that James Hanratty was
the murderer. The DNA evidence made what was a strong case even stronger.
Equally the strength of the evidence overall pointing to the guilt of the
appellant supports our conclusion as to the DNA.
- Mr Michael Sherrard apparently opened the
defence at the trial by saying appositely that this was a case “sagging with
coincidences”. Just let us consider some of the more striking coincidences in
the light of the DNA evidence if James Hanratty was not guilty. He was wrongly
identified by three witnesses at identification parades; first as the person
at the scene of the crime and secondly (by two witnesses) driving a vehicle
close to where the vehicle in which the murder was committed was found; he had
the same identifying manner of speech as the killer; he stayed in a room the
night before the crime from which bullets that had been fired from the murder
weapon were recovered; the murder weapon was recovered from a place on a bus
which he regarded as a hiding place and the bus followed a route he could well
have used; his DNA was found on a piece of material from Valerie Storie’s
knickers where it would be expected to be if the appellant was guilty; it was
also found on the handkerchief found with the gun. The number of alleged
coincidences means that they are not coincidences but overwhelming proof of
the safety of the conviction from an evidential perspective.
- As we have seen, even by contemporary standards
of the time, there are criticisms of some substance which can be made as to
the procedural defects, but these criticisms have to be seen in the context of
the case as a whole. On the appeal we focus on what are alleged to have been
defects in the trial process. This is particularly true in relation to
non-disclosure. However, when we consider whether this was a flawed trial we
have to consider the sum total of the defects against the backcloth of what
was undoubtedly a thorough exploration of the real issue, namely was James
Hanratty the killer and on that issue the jury came to the right answer. In
making this comment we are not ignoring the two different grounds for saying a
conviction is unsafe. We are recognising those two grounds but also
acknowledging that the purpose of the rules is to ensure that an individual is
not wrongly convicted and in the case of the procedural errors in this case
this involves taking into account whether they interfered with the ability of
James Hanratty to defend himself by raising a doubt as to his guilt. In that
context we are satisfied the procedural shortcomings fell far short of what is
required to lead to the conclusion that the trial should be regarded as flawed
and this conviction unsafe on procedural grounds. The trial still met the
basic standards of fairness required. We are satisfied that James Hanratty
suffered no real prejudice.
- The appeal must therefore be dismissed. However
before we end this judgment it is right we should mention the Hanratty family
and their supporters. Throughout the appeal we have observed that they have
attended in significant numbers and followed the proceedings behaving
impeccably. Although their cause, to establish the innocence of James Hanratty
has failed, we consider they deserve commendation for the extraordinary
loyalty and commitment they have shown to what they thought was a just cause,
to right an injustice. They have also been remarkably well served by the
lawyers who acted on their behalf.
- Finally we appreciate the immense amount of
diligence shown by the Commission. We do not consider it would be right to
attempt to judge the Commission with the benefit of hindsight in relation to
this case. We do however emphasise that there have to be exceptional
circumstances to justify incurring the expenditure of resources on this scale,
including those of this Court, on a case of this age.
Friday, 10 May 2002
Court 4
Royal Courts of Justice
JUDGMENT SUMMARY
(This summary forms no part of the judgment of the Court)
The judgment in this case is of considerable length and this summary only
provides a brief outline of the reasons for the Court’s decision to dismiss
the appeal. The judgment commences with an introduction (paras 1-12);
it then refers in detail to the relevant background facts (paras
13-81). There is then a section on the law as there were points of
general importance argued with regard to the role of the Court of Appeal upon
which the Court was required to give a decision; namely what is the correct
approach to:
• the safety of a conviction when hearing an appeal,
particularly where the trial took place many years ago when the rules of
practice were different from those which exist today?
• allegations that a conviction is unsafe on (a)
evidential and (b) procedural grounds?
• the admissibility of fresh evidence on which the
prosecution wishes to rely to show that the conviction should be upheld as
being safe? (paras 81-105)
The Court having decided that the DNA evidence is admissible then gives its
decision as to the effect of that evidence: (paras 106-128) and having done so
proceeds to consider the merits of each of the 17 grounds of appeal (paras
128-210) and finally sets out its conclusions. (paras 211-215).
The Background
- On the evening of Tuesday 22 August 1961, Michael
Gregsten and Valerie Storie were together in a grey Morris Minor car in a
cornfield at Dorney Reach, Buckinghamshire. It was getting dark, when they
were approached by a man who threatened them with a gun. On his instruction,
the car was driven onto the A6. In the early hours of the following morning,
at a lay-by south of Bedford, Michael Gregsten was shot twice at close range;
he died almost instantly. Valerie Storie was raped and also shot: of
approximately seven bullets fired, five entered her body. Miraculously,
although she was left for dead, she was not killed; she did, however, suffer a
catastrophic injury which resulted in paralysis to the lower part of her body.
She was later able to describe the man responsible and provide considerable
detail both of the events of the night and of what had been said.
- On 17 February 1962, after a trial lasting 21 days,
James Hanratty was convicted of the murder by shooting of Michael Gregsten. On
13 March 1962, an appeal against conviction was dismissed by the Court of
Criminal Appeal and, on 4 April 1962, James Hanratty was executed.
- Over the 40 years which have followed, a vigorous
campaign has been mounted to establish that the conviction constituted a
miscarriage of justice. A police enquiry into the alibi in 1976 declared the
conviction safe, and, in 1975, Lewis Hawser QC considered the case against
James Hanratty ‘overwhelming’. In 1994, submissions were placed before the
Criminal Cases Unit of the Home Office and, on 1 April 1997, responsibility
for the further investigation was assumed by the Criminal Cases Review
Commission. On 26 March 1999, the Commission referred the conviction to
the Court of Appeal on the statutory ground that there was a real possibility
that the conviction would not be upheld. Following an order of the court on 17
October 2000, the body of James Hanratty was exhumed and samples of his DNA
obtained.
The Grounds of Appeal and the DNA Evidence
- The 17 Grounds of Appeal include eleven based on
failures by the prosecution to disclose material to the defence, one concerns
the conduct of the identification parade at which Valerie Storie identified
James Hanratty, one relates to the reliability of the evidence of his
interviews (supported by ESDA testing of the interview notes) and four concern
directions given during the course of the summing up (of which one repeats a
complaint made and dismissed at the original appeal and three are based on
standards introduced since 1962). The Crown have sought to rely on the results
of DNA analysis of a fragment of Valerie Storie’s knickers (kept on the
forensic file since 29 December 1961) and the handkerchief in which the murder
weapon was found wrapped on the day following the killing. It was contended by
the prosecution that the DNA evidence proves conclusively that James Hanratty
was, indeed, the murderer. Mr Hanratty’s family argue that the DNA evidence
was not admissible on the appeal and, in any event, the Court cannot exclude
the real possibility that the results are due to innocent contamination from
articles of James Hanratty’s clothing and from a suitcase of his belongings
seized after his arrest.
- The Court decided that the DNA is admissible. This
is under section 23 of the Criminal Appeal Act 1968, that makes the
over-riding consideration whether the evidence would assist the Court to
achieve justice, bearing in mind that the conviction could be unsafe either
because there was a doubt as to the guilt of the appellant or because the
trial was materially flawed. [A trial is materially flawed if it does not
conform with at least the minimum requirements of a trial to which every
defendant is entitled.]
- As to the effect of passage of time, the Court
decided that although current standards of fairness must be applied
irrespective of when a trial took place, this does not mean that because
contemporary rules have not been complied with, a defendant has been
necessarily treated unfairly so that a conviction must be quashed. The
question whether a trial is sufficiently seriously flawed so as to make a
conviction unsafe must be approached in the round, taking into account all the
relevant circumstances.
Conclusion
- While some of the 17 grounds of appeal are shown to
be of little or no significance when considered in context, other grounds,
particularly when judged by contemporary standards, are material. However,
there was no dispute that DNA from James Hanratty was found on a fragment from
the knickers and the handkerchief and Mr Mansfield QC (for the appellant)
conceded that, should it transpire that all possibility of contamination could
be excluded, the DNA evidence would decide conclusively that James Hanratty
was the murderer and rapist. The Court rejects the possibility of
contamination and accepted the prosecution’s submission that the DNA evidence,
standing alone was, in fact, certain proof of James Hanratty’s guilt.
- The DNA evidence does not “stand alone” and the
Court refers to some of the more striking coincidences in the light of the DNA
evidence if James Hanratty was not guilty. He would have been wrongly
identified by three witnesses at identification parades; first as the person
at the scene of the crime and secondly (by two witnesses) driving a vehicle
close to where the vehicle in which the murder was committed was found. He had
the same identifying manner of speech as the killer. He stayed in a room the
night before the crime from which bullets that had been fired from the murder
weapon were recovered. The murder weapon was recovered from a place on a bus
which he regarded as a hiding place and the bus followed a route he could well
have used. His DNA was found on a piece of material from Valerie Storie’s
knickers where it would be expected to be if he was guilty; it was also found
on the handkerchief found with the gun. The Court concludes that this number
of alleged coincidences mean that they are not coincidences but provide
overwhelming proof of the safety of the conviction from an evidential
perspective.
- The Court deals in turn with each ground of appeal
and places the allegations made on behalf of the appellant in their proper
context. It then decides that neither the individual grounds nor the ground
collectively establish that the trial was so seriously flawed or unfair as to
make the conviction procedurally unsafe. In the circumstances, the appeal is
dismissed.
- Finally, the Court commends the Hanratty family
for the manner in which they have logically but mistakenly pursued their long
campaign to establish James Hanratty’s innocence. The Court does not criticise
the Commission, but points out that a case of this age must be exceptional to
justify this level of expenditure.