Grit yer teeth Tyler:
"I would like to tell you about the burglary I committed with Jeremy ."
At that point she was cautioned and told that she did not have to say anything but she went on to give the police details of that burglary. Having dealt with that matter, she then revealed that she had also committed the cheque fraud with Susan Battersby.
Susan Battersby was also being interviewed on the same day and at the same time and she independently admitted the cheque book fraud to the police. She made a written statement to the police under caution. That statement commenced by expressing her belief that she would not be taken before the court as a result of making the statement. She added:
"I have made a witness statement relating to the death of five people and I understand my credibility is important."
All these facts were clearly known to the defence and they were in a position to make such use of them as they saw fit. The first document that Mr Turner submits is significant and which had not been disclosed to the defence is a police action form (Action no. 148) dated 13 September 1985. The nature of the action is given as:
"Two officers to investigate cheque offences admitted by Mugford...take possession of this property where ever it may be."
Included within the section for the result of the action is the account number for the relevant account and there then appears the following passage:
"Please note – Battersby has supplied this information even though she is an accused person. I have given her one week from 23/9/85 to change banks so that she will be inconvenienced as little as possible."
On 4 October, Susan Battersby and Julie Mugford went to the bank. They saw there Alan Dovey, an accountant with the bank who was acting as Branch Manager. A statement from Mr Dovey recording this visit was served upon the defence. Mr Dovey's statement included:
"I can say that on 4 October 1985 Miss Battersby came to the bank to see me with another girl who I know as a Miss Julie Mugford. Miss Battersby then informed me that she had not lost her cheque book but had been dishonest. Both stated that they were involved in the passing of the cheques. As a result of what they said I accepted their offer of paying the money back to the bank. In fact £320 has been paid to date and arrangements have been made for the outstanding amount to be paid at the rate of £50 per week. I can say that the bank was the loser in this matter and not the shops who accepted the cheques.
I am authorised on behalf of the bank to say that in view of the fact that the girls have confessed and agreed to pay back the monies the bank do not wish to prosecute in this case."
Julie Mugford gave evidence to the jury about the visit to the bank. She said that she had gone to the bank to explain what had happened and she said that this was not on the advice of the police.
When the judge dealt with this aspect of the matter in his summing up (Transcript page 19C), he said:
"It is the defendant's case, of course, that Julie Mugford's evidence in this case is fabricated, and that she is a brazen, blatant liar, so Mr Rivlin introduced the matter of her previous cheque offences in order to suggest to you then that it was shown that she has been dishonest in the past and so that you can bear in mind that part of her character when assessing whether to believe her not on the evidence she has given in this trial. That is the degree to which that evidence is relevant. Of course, the fact that a person has committed some offence, or has at some time lied in the past, in no way proves that they can never again tell the truth and you might think particularly so, on oath in a murder trial. It does not prove that at all. It is merely there for you to have in mind when you come to weigh up her evidence.
In considering whether her past dishonesty affects your assessment of her as a witness in this case, no doubt you will bear one or two things in mind, namely that she volunteered her past offences to the bank who had lost the money when she went to them about a month after she had made her statement to the police in this case, and volunteered to them that if they look back they would find frauds for which she was responsible. She told you that she went there voluntarily and re-paid the money that had obtained, and it seems, does it not, that without her voluntary revelation of her own part in those offences, she would never have been caught for them. They would have never come to light, and it was in those circumstances that she was not in fact prosecuted for them. She received a police caution."
Apart from Action no. 148, the appellant relies on evidence available from the acting bank manager, Mr Dovey. On 20 March 2002, he was asked to recall the events which had happened over sixteen years before. He explained that he had made notes about the meeting in bank reference books and that he wished to consult those notes. Unfortunately it transpired that the records were no longer in existence having been destroyed in the course of the bank's normal processes. Mr Dovey had, therefore, to rely on his unaided memory. He indicated that when Susan Battersby and Julie Mugford saw him on 4 October 1985 he had received an internal phone call telling him that Susan Battersby was coming to see him and following the meeting he should report back to the Chief Inspector's Department. When Susan Battersby had arrived, she had been accompanied by a police officer in plain clothes and by Julie Mugford. The officer had introduced the other two and indicated that Susan Battersby had something that she wished to say. Miss Battersby had then revealed the cheque fraud and offered to repay the money defrauded. He then said:
"Once I had finished dealing with Miss Battersby, the officer then told me that Miss Battersby was to be a witness in a court case some months in the future, and that she did not want this matter, i.e. the cheque and cheque card, weighing on her mind. I got the distinct impression that the emphasis was on the girls, and it was their consciences that led to the meeting. I had been asked today if the officer, either directly or indirectly, put me under any form of pressure to take a certain course of action e.g. not to prosecute. I can say quite happily that he did not. He did condense the girl's desires, and said words to the effect that the girls wanted to come in and tell the truth, wanted to pay the money back, not be branded thieves, and hopefully not to be prosecuted."
Mr Dovey said that he had made the decision not to prosecute himself and then had discussed the matter with someone in the Chief Inspector's Department who had given approval for the course of action he proposed. Arrangements were then made for the repayment of the money over the following weeks and the girls then left.
In his statement, Mr Dovey recalls that at that stage the officer said that he would be back with "a typed statement" for him to sign in the next couple of weeks and that he too had then left.
He said that an officer, he believed that it was the same officer who had come before, came back with a prepared statement which he read and after satisfying himself of its contents signed. The statement, which is not typed but hand written, is dated 14 October, ten days after the visit to the bank.
Mr Dovey in his statement finally repeated that he had not been put under any pressure to reach a conclusion one way or the other.
The officer who wrote the statement signed by Mr Dovey in October 1985 was DS Jones. Mr Turner draws attention to the fact that there are two alterations to that statement, each of which are initialled by the witness and each changes the description of Mr Dovey's position within the bank from bank manager to accountant. He submits that an inference can be drawn from these alterations that the statement was prepared at a time when Mr Dovey was not present and was as Mr Dovey himself recalls only taken to him for signing after preparation.
The prosecution have explored whether the statement made by Mr Dovey in March 2002 is right. Further statements have been taken from Julie Mugford (now Julie Smerchanski), Susan Battersby and DS Jones. Each of the girls insist that there was no police officer present when they went to see Mr Dovey. DS Jones asserts that he was not present on this occasion and produces his diary that shows that he had a rest day on the day when the visit was made to the bank. Miss Battersby said that she could not remember how the visit came about but she thought that she must have telephoned the bank and asked for an appointment with the manager.
During preparation for trial, the defence solicitor wrote to the DPP asking to be supplied with "a list of all the occasions on which there has been oral communication between the police and Julie Mugford, with a brief description of the purpose of such communication against each date".
We have been shown a letter addressed to the DPP in which the police dealt with this request. They suggest that it was "totally unreasonable" to have to provide a list of all communications. They said that a list would be made available at trial listing "all personal visits to the witness". That list when it was made available, did not record any contact on the day of the visit to the bank.
Although this aspect of the case was advanced in the ground as a straightforward example of non-disclosure, Mr Turner contended that in the alternative the court should hear the evidence of Mr Dovey as fresh evidence and should conclude that the jury had been misled in an important regard by the evidence of Julie Mugford; that if the true position had been known, the judge's summing up in this regard would have been very different; that the list provided to the defence had been deliberately misleading; and that such matters meant that Julie Mugford's evidence, an important part of the prosecution case, may not properly have been assessed thereby rendering the convictions unsafe.
We considered first the question of non-disclosure. So far as Action no. 148 is concerned, bearing in mind that police actions were not normally disclosed at that date, there was nothing in its contents which in our judgment demanded that it should be brought to the attention of the defence. It revealed no more than that a witness, Susan Battersby, who had admitted criminal offences whilst purporting to assist the police in respect of a major inquiry into five deaths which might have been murders, had been shown a degree of consideration by a police officer. In all the circumstances, we find it difficult to see how that could properly have been the subject of any criticism that might have had the slightest impact upon the outcome of the case. Since it would not, there was no requirement that this fact should be drawn to the attention of the defence.
As to all other matters, the prosecution case was, and still is, that no police officer attended the bank. There was no evidence available to the prosecution to contradict their case in this regard and accordingly there was no requirement for disclosure. It seems to us that this aspect of the case falls to be considered as a straightforward instance of fresh evidence apparently contradicting an aspect of the prosecution's case as presented at trial.
Whilst we had grave doubts as to whether even if these matters were made out, they could possibly lead to a conclusion that the verdict was unsafe, we nonetheless thought it to be in the interests of justice to permit Mr Turner to call Mr Dovey to give evidence before us. We have no doubt that Mr Dovey was an honest witness doing his best to assist the court but a great deal was being asked of his unaided recollection in recalling matters so long ago. There were differences between his evidence in the witness box and the statement which he made in March 2002. In the witness box he said that he did not know of any connection between the matters he was dealing with and any police inquiry. He further said when speaking of the phone call from the Chief Inspector's Department that he only "vaguely remembered" getting such a call. None of this surprises us after such a lapse of time particularly when the notes which he made in order to remind himself if necessary of these events are no longer available. There was, however, no doubt in his mind that a police officer had been present.
Having heard Mr Dovey, we had to decide whether it was necessary to hear further evidence from the prosecution witnesses. We concluded that it was not. In our judgment it is now impossible after such a long lapse of time to resolve this factual conflict. Material which might have been of critical importance has been destroyed. All concerned, and not simply Mr Dovey, are relying on memories which in matters of detail are almost certainly imperfect. But even if the court could resolve the factual conflict, we think it impossible to draw any satisfactory conclusion as to what was happening at the time. As, Lord Woolf, CJ observed in Hanratty [2002] EWCA Crim 1141; [2002] 2 Cr App R 30 at paragraph 99:
"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 that there is no cause for suspicion, but this may be impossible to discover due to the passage of time."
We think that it is of the greatest possible significance that Mr Dovey has said throughout that no sort of pressure was brought to bear upon him to take any particular course of action. Mr Dovey also said that during the meeting he got the impression that the girls said what they did out of a sense of guilt. He said that it was highly unusual for those who had defrauded the bank to make offers of repayment and that it was these factors, and these factors alone, that had a bearing on his decision.
