Neutral Citation Number: [2005] EWCA Crim 3206
Case No: 200402254/C3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT LEICESTER
His Honour Judge Michael Stokes Q.C 

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13 December 2005
Before :

LORD JUSTICE THOMAS 
MR JUSTICE SILBER
and
THE RECORDER OF CARDIFF
(sitting as a Judge in the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between :

	The QUEEN		
	- and -		
	Douglas John GADSBY		

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Stuart Rafferty (instructed by Crown Prosecution Service) for the Prosecution
Rex Tedd QC  for Mr Gadsby (who do not appear in the Court below)

Hearing dates : 24 June and 4 October 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment
LORD JUSTICE THOMAS : 
1.	On 10 September 2003 Mrs Deborah Gadsby went to bed shortly after 11pm at the matrimonial home at Stocking Farm.  This was about an hour after her normal time for going to bed as she had been watching a programme on television.
2.	She heard a hissing noise in her bedroom.  After a search she found under the bed a device – a two-ring electric hotplate connected to a timer on which there were two bottles of liquid bubbling in a plastic bottle.  The liquid was petrol.  She turned it off and phoned her husband, the appellant.  He came home dismantled the device and poured the petrol away leaving the hotplate and timer downstairs.  The police were then called.
3.	It was common ground that the device was potentially lethal.  This was not because the petrol itself may have ignited if it spilled onto the hotplate, but because the vapour that the petrol gave off would in all probability have been ignited by a spark caused when the thermostat on the hotplate turned the hotplate on and off.  In the circumstances there was little dispute that the person who had placed this device under Mrs Gadsby’s bed had intended to kill her.  The issue was who had placed the device with that intention?
4.	The appellant, the husband of Mrs Deborah Gadsby was accused of putting the device there and the issue at his trial was whether the prosecution had proved that it was him.
5.	After a trial between 15 and 22 March 2004 at the Crown Court at Leicester before His Honour Judge Michael Stokes QC and a jury, the appellant was convicted of the attempted murder of his wife and sentenced to 14 years imprisonment.  He appeals to this court against conviction and sentence by leave of the single judge.  The matter came on for hearing before us initially on 24 June 2005 but for reasons which will subsequently appear, it became necessary for us to adjourn the hearing and direct that further matters be clarified. These were clarified at a further hearing.
6.	It is convenient first to set out the facts that were not significantly in dispute.
i)	In 1994 when the appellant was 29 he met Deborah; she was then 17 and after 18 months they married.
ii)	Prior to her marriage she had a relationship with Mr Andrew Porter.
iii)	In the Autumn of 2002 Mrs Deborah Gadsby resumed the relationship with Mr Andrew Porter; in consequence the appellant and Mrs Gadsby split up.  He moved, living for part of the time in his boat.  He tried to commit suicide.
iv)	Consequent on the appellant’s attempt to commit suicide Mrs Gadsby and the appellant resumed their relationship but it did not last.  In February 2003 they ceased to have sexual relations.
v)	During June 2003 the appellant was prescribed an anti-depressant, he accepted that he felt that matters between himself and his wife were eating away at him.  In August 2003 Mrs Gadsby resumed her relationship again with Mr Porter. The appellant got enigmatic messages and phone calls in respect of that.
vi)	On 31 August 2003 a bunch of keys went missing.  They reappeared through the front door letterbox on 2 or 7 September 2003.
vii)	On 1 September 2003 a small transient window in the house was found to be open.
viii)	On 2 September 2003 the appellant bought a hotplate identical to the one found under the bed.  The appellant’s evidence was that he placed it in the shed of the matrimonial home.
ix)	On the same day, the appellant told his wife he could not open the safe; despite being asked to call the police about this and the previous incident, he did not do so.
x)	On 4 September 2003 when the appellant and Mrs Gadsby were in bed together, Andrew Parker phoned.  The appellant discovered it was Andrew Parker and there was a row.  Mrs Gadsby’s evidence was that the marriage was finished.
xi)	On 9 September 2003 Mrs Gadsby noticed the timer switch was missing from the outhouse; the appellant’s evidence was that it had been removed prior to that date.
xii)	During the day on 10 September 2003, the appellant’s sister Lynn Gadsby, went to the house as usual and did various housekeeping and cleaning duties. She used her key to gain access.
xiii)	On the evening of 10 September 2003, the appellant was in the bedroom prior to going out to work.
xiv)	As a result of police investigations, it was not seriously in dispute that no-one had broken into the house through any window.
xv)	 The appellant was asked on the night who he thought might be responsible.  He identified Andrew Porter (to whom we have referred) and Stephen Smith (with whom the family had had an argument in the past).  When asked in interview he mentioned these two and no-one else.  When asked about keys, he said that Andrew Porter had a key and the only other person who had access to the spare door key was his sister, Lynn Gadsby, because she came in once a week and did ironing and a bit of cleaning.  He did not make any allegation that she might have been responsible.  He added subsequently that his 17 year old stepson might have had a motive; there had been teenage difficulties with him.
The trial
7.	When the matter came on for trial on 15 March 2004, the prosecution case relied on the circumstantial evidence which we have set out above and the appellant’s lie in denying buying a hotplate.  As a break-in to the house had been eliminated, the only possibility for access was either on the part of the appellant or someone who held the keys or had stolen them.  As to persons with a motive to commit this sort of crime, the only persons identified were the three to whom we have referred including Andrew Porter.  
8.	No defence case statement was served.  In the circumstances therefore the prosecution case was that the only person who would have committed the crime was the appellant who had bought the hotplate and lied to the police about it and, having eliminated the possibility of a break-in, there was no serious suggestion anyone else had committed the crime.
9.	The defence case was that he had not attempted to murder his wife; the inference the defence sought to draw was that it must have been one of those who had access to the house. They did not seek to say that it was any particular person, but pointed to the fact Andrew Porter had a key to the house and relied on some evidence that he did not want to leave his wife as providing the necessary motive to remove the threat to his marriage. They also pointed to the fact that the appellant’s sister, Lynn, had a key, had been in the house that day and that she might have a motive of revenge for the way in which Mrs Gadsby had treated the appellant, as it could be safely assumed she must have know of the affair Mrs Gadsby was having. She also knew the appellant was going to move from the matrimonial home and she was therefore at risk of losing her part-time employment if Mrs Gadsby continued to live there.
The ruling refusing to admit a previous conviction
10.	On the second day of the trial, without any prior notice to the prosecution or to the judge, defence counsel sought to adduce evidence of the previous conviction of the appellant’s sister Lynn Gadsby for arson. No details were available, save that the conviction was when she had been 16 and she was then 43.  We were told that at the time the application was made, Lynn Gadsby was in the public gallery of the court.
11.	The Judge ruled for reasons to which it will be necessary to refer that the evidence was inadmissible.
12.	The trial proceeded and the appellant was convicted.
The appeal against the ruling 
13.	The primary grounds of the appeal were that the Judge’s ruling was wrong. This was reinforced by an application to adduce fresh evidence in relation to Lynn Gadsby’s conviction for arson. This comprised some documentation and a statement of oral evidence which was to be adduced from the appellant’s mother.
14.	Without prejudice to the question of admissibility, the prosecution were prepared to agree for the purposes of the appeal the following facts in relation to the previous conviction:
i)	Lynn Gadsby was convicted on 29 July 1980 of an offence of arson committed on 22 June 1980 when she was 19.
ii)	After an argument with her mother Lynn Gadsby set fire in the family home to a box containing toys in the bedroom.  Damage to the value of £253 was caused.  The toy box was found ablaze in a smoke filled room.  Family members including Lynn Gadsby and the appellant were in the house when the fire was discovered.
iii)	The prosecuting Inspector told the sentencing court that according to Lynn Gadsby’s mother this was the fifth in a series of fires in the family home.  No prosecution was brought in respect of the earlier fires.
iv)	On Lynn Gadsby’s account she started the fire because “she was fed-up with her mother getting at her”.
15.	The power to admit that evidence is contained in s.23 of the Criminal Appeal Act 1968. S.23 (2) provides:
“the Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to –
(a) whether the evidence appears to the court to be capable of belief;
(b) whether it appears to the court that the evidence may afford any ground for allowing the appeal.
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies from an issue which is the subject of the appeal; and whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings”.

16.	As is clear from s. 23(2) one of the considerations to which this Court must have is the admissibility of the evidence. When more information was available to us at the second hearing as to the course of the first trial, it became common ground that the real issue on this primary ground of appeal was whether the evidence of the previous conviction (as disclosed by information that had been obtained subsequent to the trial as set out at paragraph 14 above) was relevant. We have looked at the evidence available to us because it was fuller and more accurate, as for example by reference to Lynn Gadsby’s age, than that available to the trial judge.
17.	We will therefore consider the issue of the relevance of that evidence on that basis at the outset. If that evidence was irrelevant, it was accepted that the judge’s ruling was in the result right and the application to admit the fresh evidence was bound to fail. 
The issue of relevance
18.	 We turn first to the ruling made by the Judge. In the course of submissions made to him, it was contended:
i)	The defence believed that Lynn Gadsby had a conviction for arson. Apart from some evidence that the conviction had occurred when Lynn Gadsby was a youth and therefore the conviction was many years ago, no details of that conviction had been obtained or were available. 
ii)	It was not the defence case positively that she did it, but that it was highly relevant that someone who had access to the house on the day in question with such a conviction should be investigated as she might have done it.
iii)	The conviction was therefore relevant and should be admitted.
19.	In a ruling given that day (which was subsequently reduced to writing) the judge declined to admit the evidence.  His reasons were as follows:
i)	Lynn Gadsby was not a witness in the case and no allegation was made against her that she had committed this offence; placing the conviction before the jury could only suggest that she was or might have been responsible and it could serve no other purpose.  
ii)	On the basis of the decision of the Court of Appeal in Randall (2003), the facts of this case were far removed from the facts of that case.  There would be no balancing exercise possible in the present case as the jury would not see Lynn Gadsby or have any information about the previous conviction.
iii)	Admitting the evidence would be in breach of the spirit of the Rehabilitation of Offenders Act and of the Practice Direction of the Lord Chief Justice.
iv)	Admitting such evidence would amount to the jury being invited to speculate.  Although the defence could properly point to others who had the opportunity but no motive, introducing the conviction would be a red herring and give rise to speculation.
v)	The evidence was not therefore relevant to any issue in the case.
20.	It is convenient to consider in turn the grounds upon which the judge based his ruling. The first was that Lynn Gadsby was not a witness. Unfortunately, the attention of the learned judge was not drawn to the decision of the House of Lords in Randall [2003] UK HL 69; he only had the decision of the Court of Appeal.  The issue before the House of Lords in that case concerned the question as to whether, where two accused were jointly charged and each blamed the other, one could rely on the criminal propensity of the other.  The Court of Appeal had held that in the particular circumstances of the case, the evidence of previous convictions could be admitted, but upheld the general principle set out by Devlin J in R v Miller (1952) 36 Cr App R 169, 171 that
“the fact that [the defendant] has committed an offence on one occasion does not in any way show that he is likely to commit an offence on any subsequent occasion. Accordingly, such questions are, in general, inadmissible, not primarily for the reason that they are prejudicial, but because they are irrelevant.”
21.	The House of Lords upheld the decision of the Court of Appeal. For present purposes, what is important is first the approval by Lord Steyn. In paragraph 24 of his speech, he referred to the following passage at paragraph 8.244 of the 2003 edition of Archbold:
“Cross-examination of – typically – the investigating police officer to establish the bad character of a person who is neither a party nor a witness commonly occurs in practice.  The most obvious example is in cases of homicide.  Where questions as to character are put to a witness (especially if he is the defendant), the standard view is that their relevance is to credibility.  The reality, however, is that where the defence to a charge of murder is self-defence and it is elicited that the deceased had a series of convictions for serious offences of violence, the relevance of this evidence is that it goes to disposition (and see R v Lee, 62 Cr.App.R.33,CA – evidence admitted, on charge of burglary, of bad character of persons not called who had access to premises).  If the charge were only one of wounding with intent, contrary to s.18 of the Offences against the Person Act 1861, and similar matters were put to the alleged victim, it is submitted that they should be regarded as relevant both to disposition and credibility.”
Lord Steyn commented:
“This is a good example of the potential relevance of a propensity of an individual to the issues in a criminal case.”
22.	We do not therefore agree with the first reason the judge gave for holding that the conviction of Lynn Gadsby should not be admitted; if the evidence was relevant, it can have made no difference that the person in question was not a witness.  
23.	Nor do we agree with the view that it was necessary for the defence to allege that Lynn Gadsby was the person who had committed the crime. It was an essential part of the prosecution case, given the circumstantial nature of the evidence, to adduce evidence on which the jury could conclude that it was the appellant and not another person with access to the house who had placed the device under the bed. If there was evidence that cast doubt on this, such as the opportunity and motive of another person, the defence could adduce that evidence in relation to another person without alleging that person had committed the crime. Nor do we consider that the Rehabilitation of Offenders Act was a good reason for declining to admit the conviction, if it was relevant; the judge’s attention was not drawn to the decisions of this court in R v Evans [1992] Crim. LR 125  and R v Corelli [2001] Crim LR 913.
24.	However those were not the principal grounds on which the judge decided the application. As the judge rightly concluded, the real issue was one of relevance. At paragraph 20, Lord Steyn summarised the principles of relevance in these terms:
“ … relevance in cases such as the one under consideration is a more subtle concept: Cross & Tapper on Evidence, 9th ed (1999), 55-56. Article 1 of Stephen's Digest of the Law of Evidence, 12th ed (1936), explains relevance as follows:
"any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other." 
In R v Kilbourne [1973] AC 729, Lord Simon of Glaisdale put the position more simply, at p 756 D - E:
"Evidence is relevant if it is logically probative or disprobative of some matter which requires proof . . . relevant . . . evidence is evidence which makes the matter which requires proof more or less probable." 
A judge ruling on a point of admissibility involving an issue of relevance has to decide whether the evidence is capable of increasing or diminishing the probability of the existence of a fact in issue. The question of relevance is typically a matter of degree to be determined, for the most part, by common sense and experience: Keane, The Modern Law of Evidence, 5th ed (2000), at 20.”
25.	Thus in the present case where the issue in the case was whether the appellant had been the person who placed the device under his wife’s bed, evidence would be admissible if it was capable of increasing or diminishing the probability of facts indicating some other person had done it.  Thus evidence that showed that another person had both the opportunity of, or the motive for, placing the device under the bed was clearly relevant.  It is no doubt for that reason, once the possibility had been excluded of someone breaking into the house, it became relevant to provide evidence to the jury of the persons who had the keys.  Evidence of that fact was properly admitted.
26.	If, in addition to a person having the keys, that person had a propensity or motive to commit the crime in question, then evidence relevant to those facts would become admissible.  It was in that context therefore that it was argued, in the appeal before us by Mr Rex Tedd QC, (who did not appear at the trial) that the evidence on the previous conviction should have been admitted as relevant evidence as it would render more probable the fact that  Lynn Gadsby had commit the offence by reason of her propensity, even though it was not necessary for that to be proved.
27.	We do not agree. If the conviction had been one that was not over 20 years old and had been in circumstances other than following a row between a mother and her daughter, there might have been room for argument that the conviction was relevant as showing that it was more probable that the person had committed the offence with which the appellant was charged by reason of her propensity. It would depend on the circumstances of the previous conviction; as was observed by Lord Steyn it is a matter of degree. 
28.	However, considering the issue of relevance in the light of the various questions propounded, we do not consider that it was capable of increasing or diminishing the probability of the fact in issue – whether, given she had the opportunity, she might have been the person responsible. 
29.	The circumstances relating to the  previous offence did not in our view show a propensity to commit the crime with which the appellant was charged. It was an offence more than 20 years old. Although the fire which Lynn had started was in the bedroom, it arose out of an argument she had had with her mother and the damage was to the toys. Given the length of time that had passed and the entirely different nature of the attempt to cause an explosion under Mrs Gadsby’s bed and the age of Lynn Gadsby at the time, evidence of that previous conviction was not likely to make more probable her committing the offence by reason of propensity.
30.	We therefore consider that the Judge was correct in his ruling; the evidence was rightly excluded and there is no basis for admitting the evidence under s.23 of the Criminal Appeal Act 1968. This principal ground of the appeal therefore fails.
The lateness of the application to the judge
31.	If we had concluded that the evidence was relevant, then we would have had to consider whether there was a reasonable explanation for the failure to adduce the evidence at the trial.
32.	It is an essential part of the process of a criminal trial that there is proper and adequate preparation by the prosecution and defence prior to a trial. The purpose of a pre-trial hearing, such as the Plea and Directions Hearing held in this case, was to ensure that the issues in the case were examined and defined. It was the duty of the prosecution and defence to ensure that they were ready by the time of the trial and all avenues of investigation had been completed. Unless there were exceptional circumstances which explained that the late emergence of evidence was not the result of a failure to prepare for the case early and properly, and none existed in this case, a judge would have had to consider whether it was in the interests of justice that new issues were introduced during the course of a trial. He would have, of course, had regard to the interests of the defendant. But he also would have given due weight to the interests of the victim and other witnesses in the case and the public interest in the timely and efficient determination of trials. None of these would have been served by adjournments to or delays in trials. A trial judge was and is entitled to be firm about late applications and to know, as this court said in R v Jisl [2004] EWCA Crim 696, that he will be supported in this court. That was the position prior to the reforms to criminal procedure in April 2005. The position is even clearer now.
33.	In the present case: 
i)	there was no defence case statement.  
ii)	There was no explanation for the fact that the application was made late.
34.	It would have, in the circumstances, been difficult for the appellant to show that the requisite diligence had been exercised.
Criticisms of the summing up
35.	There were criticisms of the summing up made in the grounds of appeal. It was contended that the judge had not dealt in his summing up with either the central thrust of the appellant’s defence – the likelihood of others having committed the offence or the opportunities Lynn Gadsby and Andrew Porter had for committing the offence and the possible motives of each. 
36.	In the course of his very clear summing up, the judge drew attention to the issue of access to the house and pointed out the access that both Andrew Porter and Lynn Gadsby had to the house. He reminded the jury that the defence case was that there was little more to point the finger at the appellant than at the others who might have had the opportunity to do it; that the appellant was not the only person who was the candidate for switching on the device. He rightly pointed out that 
“it was not for the defendant to establish who did this or might have done it or to point the finger at anybody. The burden is the other way round.  It is for the prosecution to make you sure that he placed the device under his wife’s bed, that he brought about its coming on, whenever it did come on, and that he intended by doing that to kill his wife.”
37.	We have carefully considered the whole of the summing up and are satisfied it set out a clear and fair summary of the evidence in the case and of the way in which the appellant put his case; no material evidence was omitted. There was no evidence of animus against Mrs Gadsby or the appellant on the part of Lynn Gadsby. It was not necessary for the judge to invite the jury to engage in the speculation that had been put forward by the defence. This ground of appeal also fails. 
Sentence
38.	In sentencing the appellant, the judge made it clear, as he was entitled to on the verdict, that the appellant had carefully planned to kill his wife in a most horrific manner; it was not done in the heat of the moment and was as far removed from a crime of passion as one could get. It was a deliberate, cold blooded and premeditated attempt to kill her by causing an explosion.
39.	The appellant was treated as a man of good character. Although he had suffered from depression, a psychiatric report obtained some 4 months before his trial he was not suffering from clinical depression.
40.	It was submitted on behalf of the appellant that he had not been treated well by his wife. He acted not for any financial gain or to remove his wife to provide room for a new lover. He had appeared at trial as a somewhat placid man. No injury or damage had been caused.
41.	He is described in the prison report as a model prisoner; he complies in all respect with the prison regime and is hard working.
42.	In Ellis (1995) 16 Cr App R (S) 773, this court extensively reviewed a number of earlier decisions of this court where an appeal had been brought against sentences for attempted murder. It is clear from that review that the Courts had taken into account a number of factors, including in particular:
i)	the degree of premeditation
ii)	the degree of preparation
iii)	 the prospect of success
iv)	the degree of any provocation
v)	the absence of injury
vi)	the prospect of financial gain or other benefit. 
43.	In  Ellis, this court upheld as “not a day too long” a sentence of 15 years on a husband who had carried out a premeditated plan to electrocute his wife, so that he could continue in his liaison with his girl friend and obtain a significant sum of money. The fact that the wife was not injured was of little benefit to the appellant:
“Where electrocution is the chosen instrument of death, the line between success and failure is thin.”

44.	In the present case, the appellant chose a method of attempting to kill his wife, where if the petrol had exploded, death would have been highly likely. The facts we have set out show that it was carefully planned over a period of some days. It is, however, clear that there was no evidence of discernable financial benefit and the appellant did not want to rid himself of his wife in favour of a lover; on the contrary he was the victim of the adultery of his wife. Although those further aggravating factors were not present, this was a carefully planned and premeditated crime. We cannot, taking into account all the circumstances conclude that the sentence of 14 years, even though at the very top end of the scale, was manifestly excessive.
45.	The appeal against sentence also fails.