Practice and Procedure


PUBLISHED October 23, 2003

The appeal against conviction for murder was dismissed as relevant evidence concerning motive had properly been admitted, the jury had not been misdirected and the defendant's solicitor's advice in police interviews was not open to criticism.Appeal by the defendant ('P') against his conviction for the murder of his wife ('N'). It was not disputed that N had died at home by drowning in her bath and that she had been murdered, but P claimed that he had been asleep in his soundproofed office on another floor of the house at the time and only discovered her body the following morning. N's body bore marks consistent with restraint by handcuffs and two pairs of handcuffs were found in a fancy dress bag at the house. P claimed that the previous night N had had an altercation with another man outside the house and that he had entered the house and killed N. The house was fitted with extensive security systems but the system had not been activated at the time of death, the only door by which entry could have been gained was locked and bolted and there were no signs of an attempt to gain entry. P argued that N must have opened the door to someone or failed to close it properly so that entry was possible, and he claimed that the door was wide open before the time of death and the next day when he discovered N's body. He also claimed that the alarm had gone off during the night and had been turned off by him. P raised four grounds of appeal: (i) the prosecution ought not to have been permitted to adduce evidence as to the breakdown of P's marriage and alleged threats by P to kill N; (ii) the prosecution evidence that handcuffs similar to those found at the house could have been used did not mean that the handcuffs found at the house were used and the judge erred in not referring in his summing-up to an alternative theory put forward by P and in not directing the jury that the case stood or fell on that question if there was evidence that other restraints could have been used; (iii) P's solicitor had been wrong in view of the strength of the evidence against P to initially advise a 'no comment' police interview and, despite the judge's direction concerning adverse inferences, P had been seriously prejudiced by his solicitor's erroneous advice; and (iv) the judge had misdirected the jury in his summing-up concerning the prosecution's pathological and DNA evidence as to the handcuffs found at the house.HELD: (1) The first ground of appeal failed. The essential question was the relevance of the evidence as to the state of P's marriage which turned on the circumstances of each case. That evidence was clearly relevant both to rebut P's claim that the marriage was a happy one and as to motive. Although the motive was an irrational one in this case, it remained a motive, and P's claim that the marriage was happy was an assertion that he had no motive to kill N. The evidence was therefore relevant to the sole issue in the case, which was whether it was P who killed N. Also relevant was any safe and reliable evidence that P had previously contemplated killing N, although admissibility of such evidence would be limited by remoteness. Proper directions had been given to the jury concerning the evidence relating to the marriage and the judge was entitled to conclude that it would be artificial and unrealistic to exclude this evidence. (2) The second ground of appeal failed. The overall case against P was strong and it appeared that the jury understood that they were being asked to decide whether they were sure that P had murdered N using the handcuffs found and would not have been deflected from that by the omission of the judge to mention an alternative theory in his summing-up. The judge was correct not to direct the jury to acquit if they were not sure the handcuffs had been used. The jury were entitled to reach the conclusion that P had used other restraints. (3) The third ground of appeal failed as there was no basis on which to criticise P's solicitor's advice during the police interviews. Even if that advice had been wrong, it would not, on the facts of this particular case, have rendered the conviction unsafe. (4) The fourth ground of appeal failed. Even if the judge had erred in his summing-up, he had not done so significantly, and he had given counsel the opportunity to correct any errors afterwards but none of them raised the points.Appeal dismissed.

[2003] EWCA Crim 1379