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:
- 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".
- He had never
shot anyone.
- 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.
- 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.
- 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.
- 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.
- He did not
like smoking and did not usually smoke.
- 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:
- 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.
- His response
to being told about the cartridges found on the chair in the Vienna Hotel
was to ask what size the bullets were.
- 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:
- 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."
- 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.
- 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
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:
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:
- Mary Meaden
who had been out with James Hanratty on occasions in September 1961 and
described him as very well behaved.
- 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.
- 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.
- 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.
- 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.
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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The evidence
that the sweet shop incident occurred on Monday 21 and not Tuesday 22 August
1961, so not involving James Hanratty.
- 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.
- The confession
to Roy Langdale during the course of exercise in prison.
- 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.
- 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.
- 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.
- 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:
- Valerie Storie
had only a limited opportunity of seeing the man. Furthermore:
- Her facial
identification was weakened by her incorrect identification of the 24
September.
- 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 has said that he had been picked
up at about 9.00pm or 9.30pm at Slough.
- The mispronunciation
of "th" was quite common among Londoners.
- While some
of the things said by the murderer were consistent with James Hanratty's
personal history, others were not.
- Her description
of the murderer's knowledge of cars and how to drive them was inconsistent
with James Hanratty's experience and driving ability.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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".
- 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.
- 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.
- Other features
of James Hanratty's evidence were amply confirmed by independent witnesses.
Thus:
- a conversation
in relation to the sale of a watch in Liverpool was confirmed by Mr Kempt;
- 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.
- he had previously
met Terry Evans and did try and find him in Rhyl.
- 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.
- 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.
- 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] 1WLR 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 that 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 then 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 or 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 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.
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: