MANSELL v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Mr Daniel Mansell, is a United Kingdom national. He was born in 1969 and is in prison in HMP Gartree. He is represented before the Court by a firm of solicitors, Birnberg Peirce & Partners, London. The facts of the case, as submitted by the applicant, may be summarised as follows. In early June 1996 two elderly brothers living in Leeds were the victims of a violent robbery. On 13 October 1996 assailants again entered their house and the brothers were seriously injured, the eldest brother later dying of his injuries. In April 1997 the applicant and his own brother, PM, were arrested and charged with robbery of the elderly brothers in early June and on 13 October 1996 and with murder on 13 October 1996. The prosecution’s case was that the applicant and PM had targeted elderly victims following discussions between PM and KC at a time when PM and KC both were in custody. KC specialised in robberies of elderly and vulnerable persons and had been indicted for a number of such offences to which he had pleaded guilty and in respect of which he had given evidence against his own accomplice. While in custody, KC discussed his offences with PM and gave PM the addresses of victims known not to contact the police. KC also discussed such offences with the applicant, the latter of whom had expressed some interest in committing such crimes himself. The prosecution relied on the following elements: (a) KC’s evidence about the applicant’s and PM’s interest in his offences on the elderly and about confessions made to him by PM. The trial judge referred to KC’s motivation in giving evidence in his summing up as follows: “I must also give you a warning in relation to [KC]. I have already said something about him. He is an important cog in the prosecution’s wheel. It is alleged that he has something, much to gain. He says not. But you must consider very carefully his evidence and whether he has any motive for untruthfully saying what he is saying in this case. It is not alleged that he has any grudge against [PM] or [the applicant] or any reason adverse to them for shopping them. It is said, well, all supergrasses are strange people: they have motives of their own. It is the sort of argument that can be addressed in any case in which a supergrass does give evidence. There are particular criticisms of [KC] made, as you know, I have rehearsed some of them, by counsel already. You must consider his evidence with very considerable care.” (b) Ms A’s identification evidence. Ms A, a neighbour of the elderly brothers, had seen two men near her home on 13 October 1996. In her first statement (16 October 1996), she made no reference to the colour of the eyes of either of the men. The surviving elderly brother later described one of the men as having “piercing blue eyes”. In her second statement (20 November 1996), she said that one of the men had “piercing blue eyes”. Ms A had also attended three identity parades. At the first parade (10 November 1996) a suspect (one J. Foley) was included in the line-up. At the second (5 December 1996) PM was the suspect included in the line-up. At the third (1 May 1997) the applicant was the suspect included in a line-up and he was identified by Ms A. The defence had been furnished prior to the trial with material including the results of the second and third identity parade. During the trial (at the latest) the parties also knew that there had been three identity parades in total, that material concerning the first of those parades had not been furnished, that Ms A had not formally identified anyone at the second parade and that she had identified the applicant during the third parade. The applicant’s counsel questioned Ms A in detail about the identity parades, but focussed his questioning on the second and third parades. The extract from the transcript is as follows: “Counsel. Do your remember indicating that a man number eight looked like the person you had seen in the lane? A. I can’t remember if I picked someone out ‘cause I didn’t think I’d pulled anyone out. Counsel. This was not the first parade which I think was in the November, from recollection, this is the second parade which is December. A. No. Trial Judge. Ah, I think she was under the mistaken impression that you were talking about the first parade. ... A. No, I didn’t pull anyone out. Counsel. Not on the first parade this is the second parade. A. No. I didn’t tell them, no. ... Trial Judge. You did not pick anyone out? A. No.” The applicant’s counsel went on to question her about the third parade. The Court of Appeal later outlined Ms A’s evidence at trial as follows: “[Ms A] was a neighbour of the brothers and at about 3.00-3.30 p.m. on the day of the second robbery and the murder she went outside her house to check on her children who were walking the dog in the lane. She went to the back of the house when she heard quick heavy footsteps at the bottom of the road. She positioned herself so that she could see down the road. She saw two men walking quickly towards her. They looked odd. They were dressed in winter clothes, it was a warm and sunny day. The man nearest to her stared at her in a way that frightened her. From the moment she first saw them they were in full view. The vision conditions were perfect and she had an unobstructed view of them for the 50-60 yards distance as they walked towards her. She gave meticulous descriptions of the men. The man who had been nearest to her had very scruffy, long, brown hair, a pale complexion and sunken blue eyes. He wore a jumper, jacket and scruffy trainers and gloves. The other man was broader and older, he had dark brown long, straight, scruffy hair, but was not as pale. In evidence she described how she had attended an identification parade on the 1st May to see if she could identify the man with the blue eyes. She picked out [the applicant]. She had been on two parades previously, she said she had been very frightened on those. She had not identified anyone on those occasions.” The trial judge confirmed, in his summing up, that Ms A had been on two identity parades prior to the parade when she had identified the applicant, that she had been frightened, that there was someone on one of those parades that she thought might have been one of the men she had seen but that she was not sure about that and “so she did not identify anybody.” The trial judge also stated that: “[Ms A’s] evidence is obviously important, because on the correctness of her identification a lot in this case clearly rests ... you can see that the importance of [Ms A’s] statement cannot be overstated. It is very important evidence indeed”. (c) The presence of a foot-print in blood in the elderly brothers’ house made by the same make and the same size as the footwear found in the applicant’s garden shed on the day he was arrested and the relevant supporting scientific evidence. (d) A map of Leeds found in KC’s possession (on it were hand-written notes of KC’s offences and directions to the elderly brothers’ home) together with the applicant’s evasive answers when questioned about the map (which suggested that it was his handwriting). PM’s fingerprints were on the map. A piece of paper upon which the word “Boris” was written had been found at PM’s home: Boris had been a target of KC and his name had been marked in the above-mentioned map of Leeds. (e) PM’s admission that he had gone to visit another of KC’s targets. (f) The applicant and PM had given differing accounts in interviews and evidence of their movements on the 11 June and 13 October 1996. The applicant denied the offences and submitted that the evidence was flawed. He stated that he had never met KC, although he had visited PM in prison. He asserted that KC was unreliable as a man of bad character who had committed a large number of offences himself and who had a self-serving motive having done a deal with the prosecution to obtain early parole. Covert tapes had shown KC to be a liar and the applicant questioned why, if KC was feeding information to the police, the police did not listen into and tape telephone calls. He denied that it was his hand-writing on the map of Leeds and submitted that the addresses of the victims would have been known to other criminals too. There was no forensic evidence pointing to him: his boots were too worn to have left the footprint found. He lied about his movements during police interviews as he did not want to be associated with PM who was being accused of murder. However, he had then quickly given a correct account of his movements on 13 October 1996 to the police which was consistent with his later evidence and the later evidence of PM. He also took issue with Ms A’s evidence: he had short hair, was tanned after a holiday at the relevant time and had a distinctive tattoo on his neck whereas she had said that he had long hair and was pale-skinned and she had failed to remark a tattoo on his neck although her evidence was that he was wearing a low-necked pullover at the time. On 27 February 1998, following a trial of 20 days, the applicant and PM were convicted by a majority verdict (of 10-2) of robbery on or about 11 June 1996 and of murder on 13 October 1996 and by a majority verdict (11-1) of robbery on 13 October 1996. The applicant was sentenced to life imprisonment for murder and to 10 years’ imprisonment for the robbery offences, the latter sentence to run concurrently. The applicant applied for leave to appeal to the Court of Appeal. The matter came before the Court of Appeal on 30 April 1999 when it was adjourned to enable further investigations to be made about the applicant’s first ground of appeal: he alleged that approximately 100,000 pounds sterling (GBP) had been spent by the prosecution or the police in providing a new identity to KC and that that information had not been disclosed during the trial. The allegation had been included in a newspaper article published the day after the applicant had been sentenced and he submitted that this constituted evidence relevant to the credibility of KC which should have been disclosed. The Court of Appeal considered ex parte a public interest immunity application of the prosecution on this matter. The prosecution was represented by counsel, but the applicant and his representatives were excluded from the hearing. The applicant’s solicitor’s notes of the decision of the Court of Appeal, it appears of December 1999, record as follows: “We have considered ex parte application on part of Crown [regarding the evidence] given by [KC]. [We have] read letter 3.11.99 from West Yorkshire police and [heard] evidence of 2 policemen, one of very senior rank. We are satisfied that when [KC] came to give evidence in the trial of [PM and the applicant], he had no expectation of reward. Consequently his evidence was not tainted in that regard. [We are] also satisfied having considered letter of 21.4.99 [regarding the] newspaper reports and read [the] newspaper, ... that there is no substance in that account. Arrangements were made long after conviction in February.” The applicant did not therefore pursue this ground of appeal and the Court of Appeal proceeded to hear the remaining grounds of appeal in the leave application. The second ground of appeal concerned three items of information which had not been disclosed by the prosecution prior to or during the trial and which had come into the applicant’s possession thereafter. He considered the information highly relevant to the reliability Ms A’s evidence and that it should have been disclosed at trial. The three items were as follows: (a) A pro-forma information sheet attached to the E-Fit image of one of the men Ms A said she had seen. The E-Fit image had been produced at trial but not the information sheet. The latter document read as follows: “From Cognitive Interview. Witness only able to give 60% mark. Treat image with CAUTION – the E-Fit [image] is the best the witness could produce being very vague on facial features – only really saw from a distance.” The Court of Appeal described the relevant defence submissions as follows: “There is considerable uncertainty concerning the E-Fit pro-forma [information sheet]. It is far from clear that this document was served on the defence. It is true that there is a reference in the 9th schedule of the unused material dated 29th January 1998 to a “force intelligence report” although on its face the schedule does not specify that this is a separate document in addition to the E-Fit. For the purposes of this application we are prepared to accept that this document did not find its way into the possession of leading counsel then appearing on behalf of this applicant. There is no record of service of this material on the file of the applicant’s solicitor at trial. Moreover, we have little doubt that if the document had been in leading counsel’s possession he would have referred to it in cross-examination. The significance of this document is that it appears directly to contradict the evidence of [Ms A] that she observed the face of the man she later identified as [the applicant] at close quarters.” (b) A document called a CID7 was also made by the author of the E-Fit image. The Court of Appeal described the defence submissions on this document as follows: “There is some doubt as to whether the CPS received the document CID7 and this would explain why it was not served on the defence. It appears to be accepted therefore that there was non-disclosure of this document. The significance of this form [is] that the reference to the eyes of the suspect records a description of “oval light” and: “the witness somewhat vague on facial features and having only had a limited look at suspects faces”. In [Ms A’s] original statement of 16th October there was no reference to the colour of the suspects eyes. In her statement of 20th November she made specific reference for the first time [to] “piercing blue eyes”. This description proved to be of considerable importance in the prosecution’s case, because of the reference in [the surviving brother’s] statement to the “very piercing blue eyes” of one of his attackers on the earlier occasion in June [1996]. [Defence counsel] submits that no reference was made in cross examination of [Ms A] to the fact that it was only in her later statement that the blue eyes description first emerged. However, he contends, without any material to show that she had previously been asked to describe the eyes, the defence ran the risk of underlining a damaging feature of the case against the applicant. The fact disclosed in the CID7 that, when first asked about the eyes she made no mention of the supposedly striking feature, throws substantial doubt on this important aspect of her evidence. Had it been explored in cross examination at trial it could have formed the basis for a suggestion that she had heard of the reference to blue eyes from another source.” (c) Documents relating to an identity parade on 10 November 1996. The applicant had discovered after the trial that Ms A had identified a decoy during the first parade on 10 November 1996. The Court of Appeal described the relevant defence submission on this point as follows: “[Defence counsel] attaches even more significance to the non-disclosure of the [first] identity parade material. The CPS served some of the documentation in relation to the 10th November parade. In their bundle of material served at this hearing the Crown have included additional material from the 10th November parade. From this it appears that from that parade [Ms A] wrongly identified one of the “decoys”. The material part reveals: “Q: Is the person you saw on Sunday 13 October 1996 on the parade? Note reply A: Yes Number 3. (i)Q: Was J. Foley identified? A: No. [Defence counsel] points out that the first identification parades were referred to in evidence but the full significance of the [first] parade could not have been appreciated in the absence of the full documentary evidence. In cross examination, [Ms A] stated: “I didn’t think I had pulled anyone out”. It was then clarified that she was being asked the questions about the December [1996] parade. She then reaffirmed that she had not identified anyone. In the summing up the learned judge directed the jury that [Ms A’s] evidence was that she had not picked anyone out. It is difficult for this court to determine whether or not counsel at trial were aware of the identification of a decoy. However, we are satisfied that if defence counsel had been aware of this information it would have been of obvious importance. We are prepared to assume for the purposes of this application that this information was not imparted to the defence.” A photograph of the identification parade on 10 November 1996 was also disclosed to the Court of Appeal and the defence submitted that the man picked out by Ms A looked nothing like the applicant. In its judgment of 13 December 1999 the Court of Appeal found as follows as regards the failure to disclose these three classes of document concerning Mrs A’s evidence: “We consider it most unfortunate that these three classes of document were not revealed to the defence, or if they were then that they did not find their way into the possession of counsel. We are equally satisfied that if counsel had had access to this information it would have been deployed in cross examination. We doubt whether the manuscript endorsement on the E-Fit pro-forma would have materially dented [Ms A’s] credibility in the light of the evidence she gave as to the opportunity of observing the men over a distance of some 50–60 yards. This evidence was not inconsistent with her previous statements. Counsel would have had more success with endorsement on the CID7 of the description of the eyes as “oval light”. This may have caused [Ms A] to reflect upon her evidence and whether she wished to retract her testimony. We take a more serious view of the non-disclosure of the [first] identity parade material which clearly shows on its face that far from not identifying anybody [Ms A] made a positive identification of a decoy. This might well have cast considerable doubt on [Ms A’s] positive identification of [the applicant] on the 1st May 1997.” Even so, we do not consider that these irregularities, on their own, would be such as to render the convictions unsafe if leave to appeal were granted.” The Court of Appeal then rejected the remaining grounds of appeal which challenged the trial judge’s direction to the jury concerning separate verdicts against PM and the applicant, his alleged failure to warn the jury of the danger of concluding guilt from a rejection of the applicant’s defence, his direction concerning PM’s previous convictions and his direction as to whether the two men whom Ms A had seen were the two robbers. The appeal court also rejected the appellant’s challenge to the trial judge’s failure to discharge the jury following threats made to jurors by third parties. Finally, the Court of Appeal reviewed the case against the appellants as a whole in order to determine whether the matters complained of collectively rendered their convictions unsafe. It noted as follows: “We are satisfied that they do not and that there was evidence which, if the jury accepted it fully justified each of the convictions. Suffice it to say that the evidence of [KC] was corroborated in several respects. The relevant telephone conversation[s] with [KC] were all proved. [PM] admitted in interview that he had [visited another of KC’s targets]. A piece of paper was found at PM’s home upon which was written the name “Boris”. The [map] had [PM’s] fingerprints upon it [and] the addresses of the brothers and Boris were noted or ringed. Both defendants lied in interview about being with each other in [the applicant’s] car on the afternoon of 13 October. PM set up a false alibi in relation to the 13 October and involved his wife ... and sister-in-law .. in making false statements supporting his false alibi. The identification evidence of [Ms A] including her positive identification of [the applicant] on 1 May 1997. The finding of a boot print in blood which corresponded to a size 8 “Kicker” boot. [The applicant] had such a boot and wore it at about the material time. In evidence both defendants accepted that they had been together on 11 June 1996 and on 13 October 1996”. The Court of Appeal concluded therefore that, in light of the strength of the case against PM and the applicant, there was no realistic prospect of a successful appeal. Their applications for leave to appeal were rejected. The Court refers to the outline of the domestic law and practice concerning the prosecution’s duty of disclosure of material to the defence contained in Rowe and Davis v. the United Kingdom [GC], no. 28901/95, ECHR 2000-II.