202302376 B1 - [2025] EWCA Crim 1036

The judge delivered an exemplary ruling on an application to stay the proceedings as an abuse of process and the application to admit the evidence of Dunne as hearsay evidence. He decided to admit it under section 121 and not to exclude it under either section 126 of the 2003 Act or section 78 of PACE. He summarised the evidence which was expected to be adduced by the prosecution in his abuse of process ruling as follows:-

35.

As for evidence against the Defendant, the Prosecution rely upon the Defendant’s admission that he was carrying out burglaries in other villages only a short distance away from Wilden in the days leading up to the murder, and had burgled two empty and unfinished properties, a dwelling house, and a petrol station, within a few miles of the property, the night before. Many of these burglaries were carried out in daylight hours. On two occasions, the Defendant had closed the blinds or curtains of the properties concerned whilst he carried out the burglaries. The blinds of Ms Cartwright-Gilbert’s caravan had been closed and the Prosecution say that this had been done by the murderer. There was no evidence of sexual assault or other motive for the murder and the Prosecution say that the circumstances are consistent with the murder having been committed by a burglar who was disturbed by Ms Cartwright-Gilbert.

36.

The Prosecution also rely upon the fact that the Defendant changed his behaviour after the murder. He stopped his prolific burglary spree and, in the weeks following the murder, he only committed two further burglaries, both at night.

37.

A mark was left on Ms Cartwright-Gilbert’s forehead when she was stamped on. This came from a Nike Screech trainer. The Defendant habitually wore a pair of such trainers. The Defendant’s trainers were examined by Mr O’Shea, the footwear expert, whose view is that there is moderately strong support for the proposition that the trainer which was used to stamp on Ms Cartwright-Gilbert’s forehead was the Defendant’s right trainer. Though the Prosecution do not contend that this is conclusive evidence in support of the contention that the Defendant was the murderer, they say that is important evidence. In four of the burglaries in late 1996/early 1997, to which the Defendant pleaded guilty, he left distinctive footmarks behind at the scene. He had been wearing his trainers when he burgled a property on the evening of 27 February 1997. When he was interviewed by the police, the Defendant lied about how long he had owned the trainers.

38.

The Defendant had owned a red Mini Metro car for four months, which he got rid of shortly after the date of the murder. When interviewed by the police, he lied about when he got rid of it and how much he had used it. The Prosecution say that this is suspicious and that one possible explanation is that the Defendant had used the car to travel to Wilden on the day of the murder and was worried that someone might have seen the car and that this would link him to the murder.

39.

At the first trial, the Defendant put forward a defence of alibi, which the Prosecution say was false.

40.

As for bad character, the Prosecution accepts that there is no evidence that the Defendant was ever violent in the course of a burglary. He was not someone who would seek out a violent confrontation with his victims if disturbed. However, the Prosecution say that there is evidence that he could easily lose his temper when confronted and could become very violent, in a futile or disproportionate way. The Prosecution wishes to rely, in particular, upon evidence of four incidents. The first took place on 29 April 1997, the day on which the Defendant (who was already in custody having been accused of a string of burglaries) was arrested on suspicion of murder. Whilst he was being escorted back to his cell, the Prosecution allege that he ran into another cell, yelled, “I’m not going back to my cell, you cunts”, and resisted attempts to return him to his cell, injuring two prison officers. These are the two counts of common assault. The second incident on which the Prosecution wish to rely took place some years earlier, on 24 September 1994. Whilst on remand and under escort, the Defendant attacked the police officer who was accompanying him, gouging his eyes, before escaping. The Defendant was convicted of escape and grievous bodily harm in relation to this incident. The third incident is alleged to have taken place on the day that the Defendant was sentenced for that matter. A prison officer says that he witnessed the Defendant striking a fellow prisoner in the face. The final incident which the Prosecution seeks to rely upon is an allegation by a former girlfriend of the Defendant, Michelle Sneddon, that he assaulted her on 24 July 1994. The alleged dispute was over the care of the Defendant’s rottweiler dog. Ms Sneddon says that he lost his temper, smashing the windows in her house, punching her in the face, and kicking her whilst she was on the ground, causing a cut mouth and four cracked ribs.

41.

The Prosecution also rely on a number of alleged confessions or incriminating statements that the Defendant is alleged to have made to fellow prisoners whilst he was in custody. Stephen Dean made a statement that on 10 August 1997 the Defendant said, referring to Ms Cartwright-Gilbert’s murder, that “I didn’t do the murder. I was near there but I didn’t do it.” This was in contrast to what the Defendant had told the police in interview, which was that he was at home in Wootton, some 13 miles away from Wilden, at the time of the murder. A second prisoner, Antony Hogan, said that the Defendant made a number of incriminating statements and that when Mr Hogan asked the Defendant if he had done the murder, the Defendant indicated that he had by nodding rather than speaking, and added, “the bitch probably deserved it.” A third prisoner, Gary Richards, has said that the Defendant made incriminating statements. Also, Mr Dunne gave a police statement on 18 December 1997. He said that the Defendant had asked to share a cell with him, perhaps because Mr Dunne did not take drugs and so the Defendant would not have to share his drugs with him. Mr Dunne said that the Defendant was a regular smoker of cannabis and that this made him indiscreet. The Prosecution say that they have video footage from the prison dated 15 October 1998 which shows the Defendant’s mother passing him drugs, which they seek permission to adduce by way of third party bad character evidence. Mr Dunne said that on one occasion, whilst the Defendant was under the influence of cannabis, he muttered to himself, referring to Mr Dunne, “he knows I’ve killed her, he’s with the police.” Shortly afterwards, the Defendant checked Mr Dunne’s clothing for recording equipment. Mr Dunne said that the Defendant also described some of the burglaries that he had committed. On another occasion, according to Mr Dunne, the Defendant gave him a description of the burglary of Ms Cartwright-Gilbert’s caravan, saying that he had thought that it was empty. Mr Dunne said, in reference to the Defendant’s description of the murder:

“He said she wouldn’t fuck off, so I had to finish her. He said, “It was fucking ages before she went quiet, it took her a long time to die.”

In summarising the case for the defence at that stage, the judge observed, among other things, that “none of the property taken from the caravan was recovered from the Defendant’s home”. That is a reference to, among other things, a sander machine which the prosecution alleged had been stolen by the burglar/murderer. It was not recovered, but the fact that it was stolen supported the prosecution case that the murderer was present as a burglar, which supported the case against the appellant. This machine featured prominently in the trial until it was discovered from close examination of a photograph taken after the murder that it was still on site, and had not been stolen at all. This discovery was made during the summing up.

The judge cited the decision of the Court of Appeal in R vRiat [2012] EWCA Crim 1509; [2013] 1 Cr. App. R. 2 quite extensively and said this:-

“28.

It is clear that hearsay evidence need not be proved, by other evidence to be reliable before it is admitted. At paragraphs 6 and 8 of its judgment [in Riat], the Court said:

‘6. The true position is that in working through the statutory framework in a hearsay case (below), the court is concerned at several stages with both: (i) the extent of the risk of unreliability; and (ii) the extent to which the reliability of the evidence can safely be tested and assessed….

8.

Although there is no rule to the effect that where the hearsay evidence is the “sole or decisive” evidence in the case it can never be admitted, the importance of the evidence to the case against the accused is central to these various decisions.’”

He then found as follows:

41.

As the Court of Appeal said in Riat, a useful framework for this analysis consists of the factors on 114(2) of the Act. I will consider them in turn.

(a)

how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case.

42.

The high probative value of the evidence, if true, is obvious: it is evidence of a confession to the crime of murder.

(b)what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a)

43.

There is no other evidence that can be given in relation to this cell confession. There was no other witness to it. There is other evidence in support of the Prosecution’s case that it was the Defendant who murdered Ms Cartwright-Gilbert. I have described this evidence in the abuse of process ruling. It includes the footmark evidence, though there is, at best, only moderately strong support for the proposition that the training shoe that made the mark on Ms Cartwright-Gilbert’s forehead was the Defendant’s. There is also evidence that Ms Cartwright-Gilbert was murdered in a burglary gone wrong, and that the Defendant was committing burglaries in the vicinity of Ms Cartwright-Gilbert’s home in the days and nights before the murder. There is circumstantial evidence, including that the murderer might have closed the blinds in Ms Cartwright-Gilbert’s caravan, and that the Defendant closed curtains or blinds in two other properties that he burgled. There is other cell evidence, from Mr Hogan, about another cell confession, and from Mr Dean.

44.

In these circumstances, I reject the suggestion in the Defence written submissions that this is “sole and decisive” hearsay. In any event, as Riatand other authorities (eg R v Spraggon[2002] EWCA Crim 128) make clear, even if hearsay evidence is potentially sole and decisive, that does not necessarily mean that it should be excluded.

(c)

how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole.

45.

Notwithstanding the other evidence against the Defendant, this is potentially important evidence, if it is accepted by the jury. It would mean that the Defendant admitted committing the murder.

The evidence of Mr. Hogan did not go before the jury and the evidence of Mr Dean was that in a conversation in a cell in August 1997 the appellant had said that he did not do the murder, but that he was near there but did not do it. His evidence was that he was at home, 13 miles away. It is hard to describe either of these pieces of evidence as having had any significant impact on the case, whatever may have been anticipated at the admissibility stage.

The judge, having admitted the hearsay evidence of Dunne, and, we might add, Adam Plummer, did not carry out the required assessment in section 125. Had he done so, he might have revisited the supposed supporting evidence and would, we think, have been driven to the conclusion that the confession was the decisive evidence on which the prosecution could rely in order to prove its case. We have not heard argument directed to the sufficiency of the other evidence, but it is clear that in its absence there was no evidence on which the jury could convict, or, at least, that such other evidence as there was, was tenuous and weak (Footnote: ²). We refer to the summary of the other evidence we describe at [73] above, and the judge’s summary of the evidence for the purposes of the abuse ruling at [84]. At the section 125 stage, just before speeches, the judge would have been able to see whether the direction which he proposed to give provided the jury with an understanding of the importance of the confession to the outcome of the case and of the various ways in which they could assess its reliability. He would have had to ask himself whether it was unconvincing with the result, given its importance to the case against the defendant, that any conviction would be unsafe.

The evidence as adduced at trial was not the same as that anticipated when the admissibility decision had been made. Mr. Dean, Mr. Hogan, and Mr. Richards to whom the judge then referred were either quite neutral (Dean) or, for various reasons, absent (Hogan and Richards). The evidence about the sander was the clearest evidence that something had been stolen and tied in with Dunne’s evidence that the appellant had talked to him about seeking “power tools”. This evidence disappeared entirely, as we have explained. The evidence of Adam Plummer, or at least the use to which it was put, had not been anticipated at the admissibility stage but was, for the reasons we have given, a cause of significant concern. All of this would have required attention when considering the impact of section 125 at the close of the evidence. The suggestion that the sander had been stolen, because of mistaken evidence which had been adduced by the prosecution, had not been shown to be wrong by that stage, but did require attention once its true status was identified.

The direction given by the judge about hearsay in the legal directions was in these terms:

“The evidence of Mr Dunne. Christopher Dunne provided a witness statement to the police on the 18^th of December 1997 in which he said that while he and Mr Plummer were sharing a cell in Bedford Prison, in about June 1997, and whilst Mr Plummer was under the influence of cannabis, Mr Plummer confessed to the murder. Mr Plummer denied that he confessed to the murder. Mr Plummer says that Mr Dunne’s account of what he said to him, whilst they were sharing a cell together is untrue and was invented.

You must first decide whether you are sure that Mr Plummer did say this to Mr Dunne, taking account of all the evidence which bears on this point, namely the evidence of Mr Dunne, the evidence of Ms Miller, formerly DC Branagan, the evidence of Mr Plummer and the evidence of how far information about the murder circulating amongst the public and amongst prisoners in Bedford Prison. In relation to Mr Dunne’s evidence, there is a further important consideration. This is that his evidence takes the form of a witness statement that he made on 18^th December 1997, and which was read to you. He was not available to give evidence in the witness box because he has since died.

The defence does not accept that Mr Dunne’s evidence is true, and would have wished to have cross-examined him, if he was still alive. You must decide what weight, if any, you give to the evidence of Mr Dunne, and when you’re doing so, you must bear in mind that this evidence has a number of limitations. First, although Mr Dunne signed a formal declaration at the beginning of the statement, that it was true and that he knew that he could be prosecuted if he deliberately put something into the statement that was false, his statement was not made under oath or affirmation.

Secondly, if Mr Dunne had given evidence in court, he could’ve been cross-examined, and you do not know how Mr Dunne and Mr Dunne’s evidence would have stood up to that. There is a further relevant matter, you were told that Mr. Dunne had a number of convictions, these are summarised in the agreed facts at paragraph 69. Most of these were offences of violence, or driving offences, but they include offences of dishonesty. The defence say that these convictions make it more likely that Mr Dunne was not telling the truth in his statement. These convictions are something which you should take into account when evaluating Mr Dunn’s evidence, it is for you to decide how much weight to give them. Unless you are sure that Mr Plummer did say what Mr Dunne said in his statement that he said, you must taken no account of it at all. If, on the other hand, you are sure that Mr Plummer did say it, then you must go on to decide whether it was true. If you are sure it is true, then you can rely upon it. If you are not sure it is true, then you must ignore it altogether.”

This, it may be said, is quite generic. It does not tell the jury that the whole case depended on whether they accepted that the appellant had made the confession to Dunne. This was not the view the judge had taken when deciding to admit the confession evidence but in our judgment it had clearly become true by the time the judge gave the jury the directions. Neither does it, for example, say that the jury should decide whether Mr Dunne may have been seeking some benefit by making his disclosures, and if so, whether that may have affected his reliability. The direction does not suggest that a comparison of the notes with the statement should be carried out in order to assess the reliability of the statement. The direction does not in detail address the ways in which the jury can test and assess the evidence (given that it is not demonstrably reliable) and what material may have existed for that purpose which may not now exist. There had been a direction about the relevance of delay in the case generally, but this did not address the evidence of Mr Dunne in particular.

The way in which the judge dealt with these issues was to sum up the facts relating to Mr Dunne’s evidence with care and in some detail. He did this by summarising the relevant evidence, and the points made by the prosecution and the defence about why it was, or was not, reliable. This did capture the relevant material, but was not phrased as a judicial direction as to the proper approach to this evidence, and the relevant matters which the jury should consider. In particular, the judge did not indicate at this stage either that the decision the jury made about the evidence of Dunne was critical to the outcome of the case.

The Crown Court Compendium 2025 at 14-16 provides guidance with the legal direction required in such cases. The Compendium warns of the greater risk of unreliability in such cases stating ‘it will be incumbent on the judge to give a very clear jury warning about the enhanced dangers. The jury will need to be directed about each link in the chain of hearsay’. The Compendium is not a source of law, but does contain sound advice to judges which seeks to reflect the law and we consider that a warning of this kind is required in a case where multiple hearsay is the decisive evidence against a defendant.

What the legal direction did not do was;

The principal matters, which the jury had to consider in assessing or testing Dunne’s reliability, were:

Certain matters affecting the appellant were also relevant: