09/01/07 - ADVICE ON APPEAL AGAINST CONVICTION AND SENTENCE
CASE NO. T20047219
IN THE CHELMSFORD CROWN COURT BETWEEN:
REGINA -v- RICKY JOHN PERCIVAL, KEVIN NIGEL WALSH And KATIE GRIFFITHS
ADVICE ON APPEAL AGAINST CONVICTION AND SENTENCE
IN THE CHELMSFORD CROWN COURT
T20047219
REGINA
- v-
RICKY JOHN PERCIVAL
KEVIN NIGEL WALSH
And
KATIE GRIFFITHS
1. On 14th December 2007 at Chelmsford Crown Court, the defendant Ricky
PERCIVAL was convicted by a jury, following a twelve week trial, of all ten
counts he then faced on an indictment. It is sufficient for these purposes to
record that he was sentenced to life imprisonment in respect of count 1, with a
minimum term of 28 years, and to life imprisonment in respect of counts 5 to 7
inclusive, with a minimum term of 22 years. The indictment is most
conveniently summarised in tabular form.
Offence
Murder
Defendant
Percival
Date
27.2.01
Notes
Execution of Dean BOSHELL ( 3xgunshot wounds to head at close range)
Offence
Conspiracy to pervert
Defendant
Percival, Walsh, Griffiths
Date
Feb 2001
Notes
By providing false alibi accounts in prosecution witness statements taken shortly after murder.
Offence
Conspiracy to pervert
Defendant
Percival
Date
Sept 2005
Notes
By plan to prevent prosecution witness from attending earlier trial.
Offence
Conspiracy to steal
Defendant
Percival
Date
27.2.01
Notes
Plan to steal skunk cannabis from farm on night of murder.
Offence
Attempted Murder
Defendant
Percival
Date
11.6.99
Notes
Shooting in early hours of morning with pump action shotgun. Apparently, a revenge shooting of Tretton family.
Offence
Attempted Murder
Defendant
Percival
Date
11.6.99
Notes
2nd victim of Tretton shooting
Offence
Attempted Murder
Defendant
Percival
Date
11.6.99
Notes
3rd victim of Tretton shooting
Offence
Possession Firearm with intent to endanger life
Defendant
Percival
Date
11.6.99
Notes
Firearm used in Tretton shootings
Offence
Robbery
Defendant
Percival
Date
19.8.99
Notes
Robbery of Wickford Snooker Club
Offence
Possession Firearm with intent
Defendant
Percival
Date
19.8.99
Notes
Handgun taken to Wickford robbery
A co-defendant, Kevin WALSH, was convicted of the one count he jointly faced (count 2 - conspiracy to pervert the course of justice by providing a false alibi in relation to the murder count 1). Katie GRIFFITHS was acquitted of the same count.
We are asked to advise whether there exist arguable grounds of appeal against conviction and sentence in this case. In short, we unhesitatingly advise that there are. It must be said that this was an extremely large and complex case. The trial lasted for over three months and the verdicts were arrived at very shortly before the Christmas break. That has eaten into the time available to consider and draft Grounds in this case. Accordingly, the Grounds are very much in draft form in order to comply with the notice requirements. We shall need to spend some time perfecting - and perhaps adding to or subtracting from - from the draft Grounds in due course.
In September 2005, the defendant Damon ALVIN alone was charged with the murder (count 1 above). The remaining three defendants were charged with conspiracy to pervert the course of justice by providing a false alibi for ALVIN. During legal argument over the first few days of trial, an application to exclude contact sheets detailing what the deceased BOSHELL had been saying to his handler, in particular about ALVIN's criminal activities, failed.
Their admission before the jury provided the prosecution with a possible motive for ALVIN to have murdered BOSHELL. Two weeks into the trial, ALVIN served a fresh defence statement indicating that he had been present at the murder of BOSHELL but that it was PERCIVAL who had committed the murder. HHJ Ball QC discharged the jury. The prosecution took a witness statement from ALVIN, offered no evidence against him on the murder, and charged PERCIVAL with the murder.
ALVIN was extensively interviewed by the police. He implicated PERCIVAL in a large number of very serious offences, including counts 3 - 10 on the table above. Application to join those counts, though resisted, was successful. The trial began in September 2006 - now with PERCIVAL as the principal defendant and ALVIN the principal prosecution witness.
The asterisks on the indictment table mark those offences in which ALVIN also admitted involvement. He awaits sentence.
The detail of the allegations as put by the prosecution is conveniently summarised in an opening note prepared by prosecution counsel and dated 25th July 2006 (copy attached).
The prosecution case, by September 2006, while long and complicated, with a large number of witnesses, was in reality wholly dependent upon DAMON ALVIN and his credibility. Without ALVIN the prosecution had no case against PERCIVAL in respect of any of the ten counts on the indictment. Leave is sought to appeal all ten convictions.
Mr PERCIVAL should be advised that there is now only one recognised ground of appeal, namely that the conviction is 'unsafe'. That said, there are a number of topics which we must consider during this Advice and accordingly, we have sub-divided into different headings for ease of reference only.
(a) Apparent judicial bias.
This is a case in which the unattractive topic of judicial bias has reared its head on a number of occasions during the twelve weeks of trial and indeed long before the 2006 trial began. It is always regrettable, particularly in an extremely serious case such as this, when a defendant forms the impression that the trial judge is very much less than impartial and that, as a result, he cannot receive a fair trial. It is by no means an unusual reaction. It is rarely justified.
After careful and considered reflection in this particular case, however, we have come to the view that, on an objective appraisal, there is here a legitimate fear that the judge may have given the appearance of unfair bias. That is not a view we take lightly.
(i) During the course of legal argument conducted within the first week of the trial in September 2005, HHJ Ball QC had prosecuting counsel and two officers in the case into his Chambers so that he could be made privy to some of the unused material in the case. That unused material included some intelligence surrounding the identity of the murderer of Dean BOSHELL which was clearly not to PERCIVAL's advantage. Counsel for PERCIVAL were not invited into Chambers and were unable to make representations. There was, in fact, a dearth of intelligence as to the identity of die murderer. It is understood that only the intelligence accusing PERCIVAL was put before the judge in his room.
(ii) Prosecution Counsel made it plain that he had no application ex parte for public interest immunity. In those circumstances, the judge ought not to have granted the prosecution team a private audience mid trial on a topic which was so clearly unfavourable to PERCIVAL when there was no ex parte application. It was a material irregularity (R v Smith (David James) [19981 2Cr.App.R.l CA. The fact that counsel for ALVIN may have agreed that the judge should take the course he did does not save it from being unwise and improper.
(iii) The rationale behind Smith is the need for openness and for justice to be seen to be done. At this critical stage in the first trial when ALVIN looked like he might be starting to consider changing his instructions and accusing PERCIVAL of the murder, it was vital that the judge played no part - and was seen to play no part - in the decisions to be made by the prosecution.
(iv) A partial transcript has been obtained of what was said by the judge to the prosecution in his Chambers. Defence counsel for PERCIVAL were given no indication of what had been redacted from the transcript or why, or whether any public interest immunity application was made as a result of the redaction. What is clear from the unredacted passages of the transcript is that the judge had apparently given prosecuting counsel his opinion that they might like to reconsider the 'central' direction in which the prosecution were heading. The meaning is clear to anyone who was involved in the first trial. The judge thought that it should be PERCIVAL facing the murder charge.
(v) In due course the Judge was to permit the co-defendant ALVIN as much time as he needed to re-consider his defence statement, grant the prosecution's application to adjourn, discharge the jury and preside over the new charges brought against PERCIVAL. It was deeply unfortunate that the judge appeared to have any hand at all, let alone a private hand during discussion with the prosecution alone mid-trial, in the decision to prosecute PERCIVAL for the murder.
(vi) An application was made that the judge recuse himself from presiding over the second trial. At the time, the transcript of the 'ex parte' meeting had not been obtained and defence counsel for PERCIVAL were unaware of what the judge had said in his room. The application failed.
(vii) Against that background, it was essential, if there was to be public confidence in the fairness of the proceedings, that the trial judge took particular care to ensure his summing up at the end of the case was balanced. The complaint in that regard is not that he made strong comment adverse to PERCIVAL. The judge was entitled to and he did. The fatal problem was that the overall effect of the summing up appeared so weighted in favour of the prosecution that it could not be said to provide a balanced summing up. It did not do justice to the defence case and paid only cursory lip service to some of the most important points raised on PERCIVAL's behalf. Mr Bright QC addressed the judge in the absence of the jury after half a day of summing up to point out that the effect of the summing up (a narrative summary of events based wholly on ALVIN's account of events as if accepted - at least by the judge) was to validate the lay client's concern about apparent judicial bias. ALVIN's credibility was the issue in the case. The judge, in summing up, adopted ALVIN's account as the basis for his factual narrative of the case. He thus lent ALVIN's account a judicial weight. The failure to reflect cardinal lines of defence during the summing up and the inadequacy of the summary of PERCIVAL's own evidence as compared with the lengthy analysis of ALVIN's is dealt with under a separate heading ('summing up').
(b) Other material irregularities during the trial
While not providing anything like an arguable ground of appeal on its own, it is unfortunate having regard to the matters listed above, that on 17th November 2006, well into the trial, all those in Court watched a juror returning to the body of the court from the judge's room. It was apparent that no short hand writer had been present at the meeting. It transpired that the juror had not been feeling well so the judge, without reference to anyone, had simply arranged for the juror to be brought into his room for a private discussion. Mr Percival should not imagine that the judge would have said anything inappropriate to the juror. But it was perhaps unwise for the judge to have private and informal meetings in his room with an individual juror near to the end of the evidence in a case such as this.
The prosecution called a witness to the Tretton shootings, one Carla EVANS. During the course of her evidence, (which was not particularly favourable to PERCIVAL in that she was to suggest he had threatened to rape her), she said that the man with the shotgun had blue eyes. PERCIVAL happens to have brown eyes. The judge permitted Mr Jeremy QC for the prosecution to treat the witness as hostile without more and to cross-examine her. That was wrong. She had given no indication that she would fail to give her account or come up to proof. She simply gave an answer that did not suit the prosecution case. As a result it was suggested to her that she had been intimidated into trying to help PERCIVAL. When prosecuting counsel suggested to Miss EVANS that she was expecting to be 'invited to Ricky PERCIVAL's victory party', the judge repeated the same rather florid phrase in his summing up.
Corroboration
This was a case which cried out for a careful and specific direction about the special need for caution before relying upon the evidence of ALVIN. He had every reason to falsely accuse PERCIVAL of murder (and all manner of other crimes to support that account). It was his only chance of securing his own escape from prosecution for the murder. It worked.
In 2003, ALVIN had been due to appear before the Court for supplying cocaine. He had been caught with over 1 kg of it. He set about constructing an elaborate and entirely false account in mitigation in order to secure for himself a lighter sentence. That account involved arranging for his wife and his mother-in-law to cut out letters from newspapers and construct 'ransom' notes to themselves to suggest that he had been acting under duress. A wreath was even 'sent' to ALVIN's wife (by ALVIN's brother). ALVIN also gave intelligence to the police about PERCIVAL (although he said nothing about any of the offences he was now alleging PERCIVAL had committed). The ruse worked. ALVIN received 30 months imprisonment instead of the 6 years he had expected.
Against that background, and although formal corroboration warnings are no longer obligatory, this was a case in which a strong direction was absolutely essential. The Judge should have directed the jury to look for supporting evidence, identify the evidence that was in fact capable of supporting ALVIN's account (and specifically indicate where there was no supporting evidence) and to warn them of the need to exercise caution before relying on his evidence alone. ALVIN's ulterior motives should have been squarely put before the jury. Instead, the judge sought to persuade the jury during the summing up that ALVIN had no good reason to invent a false account to the detriment of PERCIVAL because he had thereby implicated himself in more offences than he needed to. In all the circumstances, we take the view that the judge failed to give an adequate warning in respect of ALVIN's evidence. Such warning as he did give was so watered down as to be wholly ineffectual. On the facts of this case, that was Wednesbury unreasonable. Chan Wei-keung v R [1995]2 Cr.Avp.R. 194 PC
PERCIVAL was now facing allegations of the gravest nature which were 5 years old (murder), and 7 years old (attempted murder / robbery). He had no previous indication before October 2005 that he would be facing them. There were real disadvantages caused by the delay. None of them were of his own making. Two of the witnesses from the Tretton shootings were dead (from later unconnected causes). There was material to suggest that at least one of those eye witnesses might have given evidence that PERCIVAL was NOT the gunman. Another had made a statement, only part of which survived (the police apparently having lost one crucial page) which was to PERCIVAL's advantage.
It was an appropriate case to give a specific direction aimed at addressing the very obvious disadvantages caused to PERCIVAL by the delay before trial. Such direction as the judge did give was grudging and, insofar as it seemed to relate to the defence at all, drew their attention to the possibility (which clearly did not exist in this case) that a defendant 'may behave in such a way it is impossible to get his trial done sooner / going underground'.
The witness ALVIN arrived at Court in an armoured car escorted by police vehicles with flashing lights and sirens. Chelmsford Crown Court was guarded at the main entrance by a large number of policemen carrying machine guns. More armed police officers guarded the doors to the Court room itself. During the course of the trial they would often walk across or stand in front of the glass panes in the door to the Court immediately opposite the jury. The jury were permitted to hear evidence from ALVIN of an alleged plot hatched by PERCrVAL to bribe and / or do physical harm to the jury in the previous trial. In addition, the counts on the indictment and photographs in the case showed very unpleasant images - of fingers and hands being blown off in the TRETTON shootings (in a room containing a small child) and of the execution style murder of BOSHELL. The very fact that all the allegations (of counts on the indictment and various miscellaneous pieces of bad character / criminal conduct not charged) were being tried together by the same jury meant that the risk of prejudice suffocating all other considerations in the case was obvious. This was not a trial short on sensation and prejudice. Notwithstanding that, the judge appears to have given no appropriate direction in that regard at all.
During the course of his cross-examination of the defendant, David Jeremy QC for the prosecution, made the point several times that, while the Supergrass ALVIN had agreed to waive legal privilege so that his previous solicitors' notes could be disclosed to all parties, PERCIVAL had chosen not to waive his legal privilege. That was an improper line of questioning and comment. It ought to have been firmly and squarely corrected with the jury in the judge's summing up. It was not. Although the judge did address it briefly, he said PERCIVAL " told Mr Jeremy he hadn't waived his privilege and the prosecution have not seen HIS preparation for trial. That's his right. He doesn't have to help them in any way". Legal privilege in the hands of a defendant remains a sacrosanct right. Not so with ALVIN, who had become the principal prosecution witness and whose account for the prosecution relied in part upon things he had said to his erstwhile solicitor and she had allegedly said to him. To suggest that PERCIVAL could have, like ALVIN, chosen to 'help' out by waiving privilege, but had not, was wrong.
The most fundamental aspects of the defence were that:
(a) ALVIN must have murdered BOSHELL or he would not be doing what he was doing - to escape conviction;
(b) There was evidence that ALVIN knew of BOSHELL's informant status, whereas PERCIVAL did not and the surviving contact sheets revealed that ALVIN was the principal target of BOSHELL's information;
(c) ALVIN did commit crime with guns (according to the contact sheets). The police found an air rifle, a stun gun and a Tazer gun at his address when arresting him earlier;
(d) ALVIN was lying and attempting to deceive the Court by blaming PERCIVAL for the murder. To lend credibility to that all important theme ALVIN accused PERCIVAL of a number of other crimes that ALVIN had knowledge of. There could be no better example of what ALVIN was capable of in order to achieve his own ends within the criminal justice system than the fact that he had previously successfully deceived a Court in 2003. He had placed before the judge a complicated and detailed account of duress to get away with a lighter sentence. His wife had been in on the deceit and they had arranged ransom notes, injuries to ALVIN, delivery of funeral wreaths and cards - all designed to persuade the Court that ALVIN was a cocaine addict acting under something very close to duress and terrified for his family.
(e) It was at the heart of the defence case that ALVIN was extremely cunning and intelligent. He rehearsed for his first trial by cutting out flash cards containing questions and answers for himself about the case. His prison cell had resembled a CID investigation team room with telephone billing and charts taped to the walls. On the other hand, PERCIVAL had a very low IQ and had the reading age of an 8 year old. Two psychologists reports were read for the defence.
The judge failed to mention any of those matters. They were cornerstones of the defence case. The credibility of ALVIN and his wife were under scrutiny. The judge's failure to mention (d) above adequately or at all in connection with the case for the defence was wholly unsatisfactory. The only reference the whole episode merited was the barest' ALVIN admitted the mitigation on the cocaine was nonsense'.
In relation to (e) above, the judge made the barest mention of ALVIN's demonstrated abilities to rehearse and perfect his story. He completely forgot to mention the psychological reports in respect of PERCIVAL, returning to summarise them in a complete vacuum when he had dealt with the rest of the defendants.
Finally, it was suggested by the defence that there was evidence indicating the murder may have been committed at a later hour than that selected by the prosecution and ALVIN, namely 11pm. Those witnesses adduced under that heading were dismissed by the judge in his brief summary of each as 'things that go bump in the night'.
Late into the prosecution's case, a notice of additional evidence was served consisting of statements taken from the two counsel retained by ALVIN, Mr John Black QC and Mr Christopher Paxton. Both Counsel were called. During the course of their evidence they both volunteered their respective opinions that ALVIN, once he had changed his instructions, was 'telling the truth'. That was deeply unfortunate. It was very close to the end of the prosecution case and no application was made to discharge the jury. Discussion was had between defence counsel for PERCIVAL and the judge as to how best to deal with the evidence and it was agreed that no specific direction should be aimed at the undesirability of counsel giving their opinion as to the truthfulness of a lay client. The danger was that it would simply draw attention to the point. However, in summing up the evidence of the two barristers to the jury, the judge , no doubt trying faithfully to echo the words used in evidence, used the word 'truth' so often that attention was drawn to the problem without any direction to deflect it.
In all the circumstances we take the view that there are arguable grounds of appeal against conviction and we attach draft Grounds accordingly. We will welcome the opportunity to consider further the draft Grounds and make amendments once we have had more time to consider the transcripts of the summing up.
The minimum terms of 28 years for the murder, Count 1, and 22 years for the attempted murders (counts 5-7) were too long having regard to the age of the offences and the relevant sentencing guidelines applicable at the time.
