HC Deb 24 January 1975 vol 884 cc2212-24

3.27 p.m.

Mr. Patrick Jenkin (Wanstead and Woodford)

I am grateful to have the chance of raising the case of my constituent Patrick Colin Murphy. I very much appreciate the presence of the Minister of State, Home Office, who has had a hard night, having replied, I believe, to no fewer than three Consolidated Fund Bill debates.

Patrick Murphy is at present serving a 12-year term in prison following his conviction in June 1970 for armed robbery of a post office at Newington Green and for grevious bodily harm to the postmaster, this robbery having taken place on 20th May 1969.

My purpose in raising the case is to try to persuade the Home Secretary to exercise his power under Section 17 of the Criminal Appeal Act 1968 to refer the case to the Court of Appeal so that the court can consider whether these convictions should stand.

I fear that the case is a little complex. As the burden of my argument turns primarily upon the chronology and precise sequence of events, I am justified perhaps in spending a couple of minutes setting out briefly the history of the matter.

I have already referred to the raid on the Newington Green post office. There were in fact three post office raids involved in this case. The first was that on 20th May 1969 at Newington Green. The second was a raid on a post office in Middleton Road, Wood Green, also in North London, on 7th July 1969. The third, in September 1969, was a raid on a sub-post office in Luton when the sub-postmaster was murdered.

Patrick Murphy was first charged with the last of those three crimes—the Luton murder—and in March 1970, six months after the date of the murder, he was tried, convicted and sentenced to prison for life with the recommendation that he should serve at least 20 years. Throughout he protested his innocence of the charges in connection with the Luton murder and, as I think is now well known, following a good deal of publicity, his case was later referred by my right hon. Friend the Member for Carshalton (Mr. Carr) when he was Home Secretary to the Court of Appeal. In December 1973, after Mr. Murphy had served over four years, his conviction was quashed and he left that court freed of the offence.

However, the pardon was by then no use to him because he was in the meantime in prison having been charged in connection both with the Middleton Road and the Newington Green raids. Evidence against him in respect of the Middleton Road raid was that one defendant, Edwards, who pleaded guilty, was driving a car lent to him by Mr. Murphy. In the event the case against Mr. Murphy was dismissed at a preliminary stage so that he did not stand trial for that offence. He stood trial, however, for the Newington Green raid and the case was heard in June 1970—three months after he had been sentenced for the Luton offence. Moreover, since two of the defendants in the Middleton Road charges were also charged with the Newington Green raid, the cases involving the two raids were heard together. It may be questionable whether that was right. Mr. Murphy was charged on only one of them. However, the Court of Appeal did not support as a ground for appeal the argument that the judge should not have allowed the two cases to be tried together, so I do not base my case on that today.

The upshot was that Patrick Murphy, already convicted of murder three months earlier, was brought to trial on a charge in connection with the Newington Green raid in the company of the other defendants one of whom pleaded guilty to another raid with which Murphy was being implicated though he was not charged with any offence.

At the outset of that trial, the jury were, of course, quite unaware of the Luton conviction. But—this is the central ground of my case today—they came to know of it during the course of the trial. Afterwards, when they went to the jury room they knew, or some of them knew, that Murphy had already been convicted of another post office raid and had presumably come to the court from his prison cell not as a prisoner on remand but as a convicted criminal.

It came out like this. During the trial his fiancée, Miss Marlene Baker, was called upon to give evidence on behalf of a co-defendant of Mr. Murphy's, a Mr. Fenwick. It was put to her in cross-examination that at an earlier trial—of course it was not disclosed which trial, but it was the Luton trial—she had given evidence of an alibi and she had not been believed. She admitted this. Counsel for each of the other defendants proceeded to ask her whether it was their client who had been involved in the earlier trial to which reference had been made, and in each case she answered "No". Naturally, the only counsel who did not question her on that occasion was counsel for Murphy, because she would have been bound to answer "Yes".

But at least one juror drew the deduction—the inevitable inference—from what transpired that it was Murphy who had been the defendant at that earlier trial and that presumably he had been convicted. One juror has subsequently made a sworn statement to the effect that he could see—I quote from the affidavit it was obvious that Murphy had been in another raid before". One might have thought that that would have been sufficient by itself to have required a new trial, but not so. Mr. Murphy was granted leave to appeal in October 1971, but when it came to the Court of Appeal in December 1971 his appeal was dismissed.

There were several grounds, but while counsel was arguing the ground that it would be unsafe to let the conviction stand because the jury might have been influenced by the knowledge that Murphy had been previously convicted the court cut short counsel's argument with what must be by any standards a remarkable judicial observation. It was said: This was unfortunate and a bit of bad luck which follows if you have committed a crime before. At the time we are talking about, December 1971, Mr. Murphy was still in prison serving a life sentence for the Luton murder. It was not until two years later, in December 1973, after a good deal of publicity and a good deal of pressure, much of which was exerted by the former Member for Ilford, North, Mr. Tom Iremonger, that the conviction was referred by my right hon. Friend the Member for Carshalton back to the Court of Appeal, which quashed the conviction.

I find it impossible to believe that, if the Luton conviction had been quashed before the Newington Green appeal, any court, any judge, let alone the Court of Appeal, could possibly have uttered those words. I would regard it as scarcely credible that the Court of Appeal would not have felt bound to allow the appeal on the ground that the Newington Green conviction could not possibly be allowed to stand.

That a defendant should be prejudiced by a previous conviction becoming known is bad enough. But that he should be prejudiced by a conviction that later turns out to have been erroneously arrived at and subsequently quashed is intoler able. It is not, in the words of the Court of Appeal, a bit of bad luck"; it is an affront to justice. It is an affront which I am asking the Minister of State, who is to reply to the debate, to put right.

That is the principal ground on which I ask that the Home Secretary should exercise his discretion under Section 17 to refer the case back to the Court of Appeal. I must, however, add that it is not my only ground. There are at least three other reasons why it is unsafe to allow the conviction of Patrick Murphy for the Newington Green raid to stand.

The first reason is that the only witness who was able to identify Patrick Murphy as being involved in the raid was a short-sighted lady who claimed that she had seen a man with a helmet standing in the post office at the time of the raid. She later claimed to identify Patrick Murphy as the man with the helmet.

No one else said that there was more than one man with a helmet, whereas there was evidence before the court that one of the customers at the post office at the time of the raid was a building worker who was buying stamps. He was wearing his helmet as a mark of his trade. He was the only man with a helmet. Therefore, there must at any rate be a question mark about the lady's identification.

Secondly, Patrick Murphy's father could have given evidence at his trial and reinforced the alibi which Patrick Murphy sought to establish before the court, namely, that he was elsewhere at the time of the raid, engaged in the transaction of buying and selling a car with his uncle, a Mr. Collins.

Patrick Murphy's father, Mr. Stephen Murphy, was, in the event, not called because counsel decided—I certainly do not criticise this decision in the light of the situation with which he has faced—that in view of the cross-examination of Marlene Baker, which had tended to throw doubt upon her evidence when she gave it in support of Mr. Fenwick, the same thing might happen if Mr. Stephen Murphy went into the witness box on behalf of his son. Therefore counsel decided that, rather than reinforce what might then be in the jury's mind—the knowledge that Patrick Murphy had stood trial for another offence and had gone to prison—he would not call Stephen Murphy. That is a second ground on which perhaps it would be unsafe to let a conviction stand.

The third is perhaps a point of more general interest in view of the statement made by the Home Secretary last year about identification parades. Between his arrest and trial for the Newington Green raid, Patrick Murphy was put on no fewer than 27 separate identity parades in connection with several raids which had taken place at about the same time. Out of the 27 separate identity parades Patrick Murphy was identified only once, and that was by the short-sighted lady who thought that he was the man in the helmet, who was a customer at the Newington Green raid.

Section 17 of the 1968 Act does not constrain the Home Secretary's power in any way. The case may be referred to the Court of Appeal if the Secretary of State "thinks fit".

This young man served four years of the sentence for a conviction which was eventually quashed. He has now been in gaol for over five years. It is doubtful, to say the least, whether he ought to have been there for five minutes.

This is surely a case in which, in the interests of British justice and of the liberty of the subject, and indeed of the integrity of our legal system, the courts should be given another chance to put the matter right.

3.42 p.m.

The Minister of State, Home Office (Mr. Alexander W. Lyon)

The right hon. Member for Wanstead and Woodford (Mr. Jenkin) has argued with conviction for the exercise of the Home Secretary's powers to refer back to the Court of Appeal the case of Patrick Murphy. He has read out to the House the appropriate words of the section which give wide discretion to the Home Secretary to act in this way. The way in which that power is used has been constrained over the years by the constitutional position in relation to the courts and to the Home Secretary's powers, not only under Section 17 but under the exercise of the Prerogative powers.

Recently we discussed the exercise of the Prerogative powers in relation to the Shrewsbury pickets. Somewhat similar considerations arise in relation to the exercise of my right hon. Friend's powers under Section 17, which is that the courts must in the end be the arbiters of the factors which are brought before them in relation to any criminal trial, both in relation to conviction and in relation to sentence. If the Home Secretary of this country ever took upon himself the powers of deciding either guilt or appropriate sentence, the independence of the courts would be undermined. Therefore, in the exercise of these powers it has always been the position that the Home Secretary should not act unless there was some factor which came into the case after the courts had considered the matter, which, had they already considered it, might have led to a different conclusion. Where that factor obviously points in the direction of innocence the Home Secretary can act of his own volition in taking a view that the man was probably innocent, and he could exercise his prerogative power of saying that the conviction should be quashed or that the sentence should be remitted. However, if there appears only to be doubt about the matter, and the factor may have been one which would have, and perhaps should have, influenced the court, he ought to use the powers which are contained under the Act to refer the matter back to the court.

Even the right hon. Gentleman does not argue that the factors which he has relied upon today are such as to entitle the Home Secretary to change the verdict. It is simply that those factors give rise to the kind of arrangement that should be argued out again before the Court of Appeal. What the right hon. Gentleman must show is that these factors are so different from anything that has occurred before the Court of Appeal or before a lower court that they ought now to be referred to the court again. There is little in what the right hon. Gentleman said that falls into that category.

The three factors that the right hon. Gentleman raised—the question of identification, the question whether Mr. Murphy should have been called at the trial, and the nature of the identification parade—were all matters raised at the trial, or could have been. The question of the short-sightedness of the lady was before the jury. They knew about it, it had been argued before them and, in the end, they decided against the defendant. Members of the jury knew about the criticism of the identification parade, but none the less decided that it was a proper parade, and they seemed to have been persuaded that the evidence was cogent enough to convict.

In relation to Mr. Murphy, senior, they did not hear that gentleman but his evidence was available. However, counsel of his own decision decided not to call him. It has long been the rule of the Court of Appeal that it will not interfere where evidence was available to a defendant's legal advisers but where those advisers, on their own decision, decided not to call it. If that is the rule, it would be useless to refer back to the Court of Appeal because in those circumstances the court would decide not to hear Murphy.

Mr. Patrick Jenkin

The Minister will recall that Miss Baker was cross-examined on the basis that she had been disbelieved in the earlier trial. In the end Patrick Murphy was found to be innocent of the Luton murder—and, on Miss Baker's alibi; her evidence turned out to be true. So it may have been that if Stephen Murphy had been called by counsel and had been cross-examined what he said might have turned out to be true, and he would have been able to substantiate his son's alibi. It seems to me that if the Minister is right there is a considerable block to the achievement of justice in the kind of case which I have put before the Minister.

Mr. Lyon

I shall come to Miss Baker's evidence in a moment. The decision about calling Mr. Murphy, senior, turned on the way he was cross-examined. I accept that there are similar considerations in respect of both those witnesses. This is the existing rule in the Court of Appeal and, unless it is changed by legislation, it is the kind of attitude which the Court of Appeal will apply to this witness. Therefore, unless the rule were changed, it would be valueless to send the case back to the Court of Appeal simply on the issue whether Mr. Murphy should have been called.

I now come to the question of Miss Baker. The right hon. Gentleman did less than justice to the Court of Appeal. I see some force in his argument, but it was a matter argued before the Court of Appeal that this was a method whereby the previous conviction could have been brought before the jury. Indeed, it was argued that it had been brought before a particular juryman to the effect of persuading him that Mr. Murphy had a previous conviction. The Court of Appeal, again in accordance with the long-standing rule, has said that it could not investigate the motives whereby a jury came to a particular conclusion, and it would not allow a situation in which a juryman was allowed to disclose what went on in the jury room. Therefore, again one is bound by the rules which have bound the Court of Appeal in its application of the law to this kind of case.

In questioning Miss Baker, the Treasury counsel who was presenting the case on behalf of the prosecution—a very experienced counsel—in a line of questioning which I am bound to say has never appealed to me but is not unacceptable under the rules of evidence and was not stopped by the judge or criticised on appeal, asked her: Would you answer this question 'Yes' or 'No'. Have you given somebody an alibi in a previous trial? Miss Baker answered, "Yes." The following exchange then occurred: Were you disbelieved? A. I do not know. Do you not? The alibi failed, did it not? A. It was true. It failed in fact. A. It was true. But the jury did not believe it, did they? A. I do not know. They convicted the person concerned; just answer 'Yes' or 'No'. A. Yes. There is nothing in that to indicate in any way that Mr. Murphy was the one for whom she gave the alibi. There was nothing in the subsequent questioning by other counsel in the case which again could lead irresistibly to that conclusion.

Each of the counsel for the other accused in the case got on his feet in cross-examination and said "It was not my client on behalf of whom you gave evidence in the earlier trial, was it?" Miss Baker answered "No". Mr. Murphy's counsel did not ask that question. By a process of elimination it was possible to argue that it was Mr. Murphy on behalf of whom she had given earlier evidence, but it was not the irresistible conclusion.

I come now to what is really the high point of the right hon. Gentleman's case. It is the case that afterwards one of the jurymen was heard to say that he had assumed that Mr. Murphy did have a previous conviction, and he gave a statement to the solicitors for Mr. Murphy to that effect. It is noteworthy that he never said how he voted in the course of that statement. There was a divided jury which returned a majority verdict by 11 votes to 1.

But even if that consideration was not valid in the consideration of this case, the question arises how the Court of Appeal would look upon that point when it was argued before it. The right hon. Gentleman referred to an expression of opinion that was given in the course of argument by one of the Appeal Court judges. It does not appear in the transcript of the Court of Appeal. What appears in the transcript is this judgment of the point that was argued: The other contention was that the jury should have been discharged because Miss Baker, called to prove an alibi for Murphy, was cross-examined on having been disbelieved when she gave evidence of an alibi in connection with an earlier Post Office robbery. It was suggested that the jury must have been aware that that earlier alibi was offered for Murphy and therefore that he had been convicted previously of a Post Office robbery. There was no evidence that the man then concerned was Murphy—it might have been anybody. What is said is that the jury must have realised that it was Murphy because each of the other counsel elicited from Miss Baker that his client was not the man in question whereas Murphy's counsel remained silent. In our view the fact that a jury may draw a certain inference from the fact that a question is not asked cannot be a ground for discharging the jury. On that basis it refused to intervene when at that stage the earlier conviction for murder stood.

What the right hon. Gentleman argues is this. As the earlier conviction had been quashed because other evidence came to light about it, and since it is arguable therefore that Miss Baker was telling the truth in the earlier case when she gave evidence in relation to an alibi, the questioning of the prosecuting counsel in the later case was fallacious, and indeed it could have been argued that since she had given truthful evidence in the earlier case she gave truthful evidence in this case.

But the right hon. Gentleman would have to carry the Court of Appeal a long way in achieving success on that argument. It took the view that the jury could not have been influenced in relation to its verdict in the second case by what was said in the course of the cross-examination of Miss Baker. If it took the view, it follows that the later quashing of the earlier case would not, in the Court of Appeal's view, have affected the jury's mind. This is the crucial point in determining whether we should refer the matter back to the Court of Appeal. It would not, in our view, be likely to change its view about the evidence of Miss Baker, and, therefore, it seems impossible for us to refer the matter back.

I will deal as quickly as possible with the substantive case against Murphy, but I shall come to that later.

Mr. Patrick Jenkin

I am not sure how appropriate that would be in seeking to deal with the question whether the case should be referred back. The hon. Gentleman must do what he thinks right.

However, on the question of the Court of Appeal and its attitude to the matter, does the hon. Gentleman really believe that any court which knew that the earlier conviction had been quashed—supposing it had been quashed before the Newington Green appeal—and that Murphy stood innocent of any convictions could possibly have taken the view which it did? The crucial fact is that, although juries do not know about previous convictions, judges do, and the Court of Appeal judges did. Therefore, they were dealing with a man who, so far as they were aware, was validly serving life imprisonment for a very serious crime. Is it impossible to believe—I use the hon. Gentleman's own words—that that did not affect their minds?

Mr. Lyon

The right hon. Gentleman is being a little too devious. He knows full well that if the Court of Appeal did not place any weight on the effect of the cross-examination of Miss Baker in the earlier case and did not think it relevant to the way in which the jury arrived at its decision, the fact that the earlier conviction for murder was quashed would not affect its judgment about that matter in any subsequent rehearing.

I have no reason to believe that the Court of Appeal would take any different view in this case. There was substantial evidence against Murphy on the count on which he was charged and convicted. He was identified. The identification was contested. None the less, the jury accepted it. There were circumstances about the way in which he was arrested in a car containing the other men and the kind of things he and Miss Baker said in relation to the police which together make up a formidable case against him, quite apart from the question whether the cross-examination of Miss Baker prejudiced the jury's mind in any way. It is conceivable on the evidence that the jury could have come to the conclusion which it did and which the Court of Appeal later decided was unappealable.

In those circumstances, although I do not have the time to go into the evidence against Murphy in detail, we cannot on balance find any good reason for returning the case to the Court of Appeal.

Question put and agreed to.

Adjourned accordingly at one minute to Four o'clock.