In this issue
Welcome
Financial Criminal Appeals
Hong Kong Case Summaries
Caribbean Case Summary
Criminal Cases Review Commission And The Case Of Wang Yam
Appeals against conviction - England and Wales
Criminal Cases Review Commission And The Case Of Wang Yam

By Kirsty Brimelow QC 

 

“The Criminal Cases Review Commission has become one of the critical safeguards for our human, and thus fallible, criminal justice system, stepping in where things might have gone wrong.”  

Sir Brian Leveson CCRC Annual Lecture April 2018

 

In this article I consider my experience of working with the CCRC on Wang Yam, an appeal against a murder conviction.

 

The Criminal Cases Review Commission (CCRC) celebrated its 20 -year anniversary in 2017. It is set against a background of miscarriages of justice in the 1980s and emerged from the Runciman Commission which was appointed in the barely settled dust of the quashed convictions of the Birmingham Six. The Home Secretary's Criminal Cases Unit (CCU) was dismantled and the CCRC, an independent body free of executive attachments, was constructed. It was envisaged that the CCRC would not be smoothed or cowed into constitutional deference to the Court of Appeal (CACD) and would investigate and refer more cases.

 

A fundamental criticism of the CCU was that it referred too few cases. If CCRC’s success is measured against the number of cases it has referred to the Court of Appeal, it is failing. 96% of cases are not referred. However, the CCRC’s success rate, once referrals are made, keeps a steady 70%.

 

Powers

 

An application may be made to the CCRC for it to refer a case back to the Court of Appeal pursuant to section 9 of the Criminal Appeal Act 1995, where there is a “real possibility that the conviction … would not be upheld” if this application was referred to the Court of Appeal (section 13(1)(a) Criminal Appeal Act 1995) and the real possibility arises “because of an argument … not raised in the proceedings which led to [the conviction] or on any appeal” (section 13(1)(b) Criminal Appeal Act 1995) and the applicant has already appealed unsuccessfully (section 13(1)(c) Criminal Appeal Act 1995.[1]

 

When applying the “real possibility” test the CCRC seeks to predict what the CACD’s response would be if the case were to be referred. To quote the CCRC’s former chairman, Professor Zelick:

 

What is absolutely essential, it seems to me, is that, whatever statutory test Parliament--that is to say you--imposed, it has to be one that articulates with the test that the Court of Appeal itself has to apply. If you break that link and you establish an asymmetry between the two tests, you would be creating an absurd situation. It would create tension between the Court of Appeal and the Commission, it would raise expectations, it would cause confusion, and it is difficult to see what possible public interest could be served by referring cases on a basis that had no relationship to the test employed by the Court itself.”

 

Extension to the powers of the CCRC

 

The Criminal Cases Review Commission (Information) Act 2016, which came into force on 12 July 2016 extended the CCRC’s powers. Under s.17 of the Criminal Appeal Act 1995, the CCRC had the power to seek and obtain documents from “public bodies”. However, whilst including police and local authorities, it was narrowly interpreting and excluded trial lawyers. Section 18A amended the Criminal Appeal Act 1995 by allowing the obtaining of information from those who are not within public bodies. If there is a refusal, or resistance, the CCRC has the power to apply to the Crown Court for an order that a person gives access to a document or other material in that person’s control. The CCRC must satisfy the court that the document may assist the CCRC in the exercise of its functions. The Order may direct that the person against whom it is made must not destroy, damage or alter the material. In a new legal world of heavily redacted material, it would have been useful for this section to have explicitly set out the court’s power to direct the lifting of redactions, where the underlying material might assist the CCRC in the conduct of its functions.

 

 

Wang Yam

 

Wang Yam was convicted of the murder of Allan Chappelow, an 86-year old man and biographer of George Bernard Shaw, after two trials. In trial one, the jury was unable to reach verdicts in relation to counts of murder, burglary and theft and it was discharged on 1st April 2008. At his retrial, on the 16th of January 2009, Mr. Yam was convicted of murder, burglary and theft by a majority of 9 to 1. The convictions were upheld on appeal. This is the first and only murder case where a substantial part of the evidence was heard in camera, pursuant to Crown Court Order, section 11 of the Contempt of Court Act 1981, made on 15th January 2008 and varied on 27th February 2014 (Wang Yam [2010] EWCA Crim 2072; R (in the application of Wang Yam) vs CCC and another [2015] UKSC 76).

 

At the beginning of June 2006, the HSBC bank reported to the police suspicious activity around Mr. Chappelow’s bank account. The police attended Mr. Chappelow’s home in Downshire Hill in West Hampstead, North London and forced entry. They explored with the use of a torch but did not discover Mr. Chappelow. On 12th June 2006, police attended with a sniffer dog who signalled the body. Alan Chappelow’s was buried under half a ton of Yale University page proofs in a room at the back of the house. He had been battered to death and possibly tortured. He had been dead for weeks with larvae of bluebottle flies providing the evidence as to time of death.

 

The evidence against Mr. Yam was circumstantial. In outline, from 22nd May 2006, he was captured on CCTV in the HSBC bank attempting to cash 4 cheques which belonged to Mr. Chappelow. There was evidence that he used Mr. Chappelow’s bank card and Mr. Chappelow’s sim card was used in Mr. Yam’s telephones. Mr. Yam gave evidence that he took the property from individuals - “gangsters” - and that he did so to “get alongside them”. The motivation was evidence in camera and cannot be speculated upon.

 

 The prosecution case was that Mr. Chappelow had been leaving his house when he had discovered Mr. Yam stealing his mail and that there had been confrontation whereby Mr. Chappelow had “hightailed” into the back room in the house, been pursued by Mr. Yam and brutally murdered. This theory did not fit with the evidence which included that Mr. Chappelow walked with a stick and was increasingly frail, glasses were found near his body (he did not wear them going out), he was not wearing the distinctive long mac he always wore when he went outside, and his feet were partly under the furniture. There was no forensic evidence to link Mr. Yam to the property or Mr. Yam’s property to Mr. Chappelow. The forensic evidence was that there was “blood everywhere”. There were 8 cigarette stubs in the room next to the body with unknown DNA and unidentified footmarks on the paper and the body. Importantly, Mr. Yam presented as a man who would talk himself out of a situation and had no previous convictions or history of violence.

 

During appeals of the Contempt of Court Order, which, we submitted, in two High Court hearings (application back to trial Judge Ouseley and then a judicial review) and in the Supreme Court, was impeding Mr. Yam’s right to petition the ECtHR contrary to Article 34 of the ECHR, the reporting by Duncan Campbell of The Guardian resulting in contact being made by another resident of Downshire Hill, Jonathan Bean.

 

Mr. Bean informed us that he had contacted the police, about 9 months (mid February 20017) after Mr. Chappelow’s murder, when he had disturbed a mail thief in his porch. The man brandished a knife at him. Mr. Bean shut the door quickly. The man threatened him, shouting through the door that he would kill his wife and baby if he reported the matter to the police.  He was a dark skinned man with a London accent. When Mr. Bean was sure that the man had gone, he went out into the porch. His mail had been stolen. He and his wife contacted financial institutions to prevent any fraud. Whilst reporting the crime, Mr. Bean expressed fear and concern to the police that the burglary might be linked to Mr. Chappelow’s murder. He was frightened that the murderer was about to strike again.

 

 The police reassured Mr. Bean that there was no link as the person who had committed the murder was in prison. At that time, Mr. Yam was awaiting his trial, having pleaded not guilty. One of the officers who took the report had attended Mr. Chappelow’s home address the previous year. The crime report noted that Mr. Bean had been told there was no link to Mr. Chappelow’s murder. But the crime report was not added to the unused material schedules, nor was it disclosed to the prosecution lawyers in Mr. Yam’s case and so was not disclosed to his defence lawyers. Shortly after this incident Mr. Bean and his family moved to New York. It was upon their return when Mr. Bean read about Wang Yam’s fight against his conviction that Mr. Bean contacted The Guardian.

 

My instructing solicitors took two statements from Mr. Bean and an application was made to the to the CCRC. One general criticism I have seen of the CCRC is that it does not include the applicant’s lawyers in its investigations. My experience was the opposite. However, it might be unusual for the same lawyers to be representing the applicant some 10 years later. The work was substantial and, of course, completely unfunded for the lawyers.

 

I worked alongside the CCRC case review manager, Phil Pledger. My first contact with him was greeted by an extremely grateful email that I was the only one who had replied to him after months of his trying to contact others involved in the case, including the prosecution.  It is a concern with these cases that lawyers in the prosecution move on and there does not appear to be a corporate prosecution memory. I struggled in a similar way with the civil actions.

 

Work with Phil included email correspondence and telephone conferences. He updated me on his investigations and I poured through my 160 Advices, Notes, Legal Arguments, draft admissions, email correspondence, disclosure applications, draft closing speeches, half time submissions, cross-examination preparation, examination-in-chief preparation, experts analysis, evidence of all the neighbours from Downshire Hill and started to formulate the arguments as to why Mr. Bean’s evidence would have made an impact upon the jury which would likely have resulted in a Not Guilty verdict. Mr. Yam had waived legal privilege and so I forwarded documents to assist.  From my defending in the trials, I did not consider that he might have affected the verdict or that there was a possibility of this evidence affecting the verdict, rather, he would have made the difference to that majority conviction.

 

The case went before three CCRC Commissioners in 2016 and they decided to refer it back to the Court of Appeal. As the publicity continued around the civil actions I was heading up to the Supreme Court, a further witness contacted the press – this time the Camden New Journal – to provide information about Mr. Chappelow which contradicted the prosecution case that he was a recluse.

 

The Court of Appeal upheld the convictions. Where that went wrong is not the subject of this article. Wang Yam continues to write to me as he counts the days of his 20-year tariff, doubtlessly taking cold comfort from being one of  the 4% to succeed with a CCRC referral.

 

 

Kirsty Brimelow QC was junior counsel in trials one and two with Geoffrey Robertson QC and Geoffrey Cox QC respectively.  After her appointment as QC in 2011, she acted as leading counsel for Wang Yam (leading Nik Grubeck and joining with David Pannick QC in the Supreme Court) until 2017.  Currently, she is pursuing the successful application to the ECtHR. A book has been written about the case “Blood on The Page” by Thomas Harding. She remains grateful to the work of Case Review Manager Phil Pledger.

 

   

If you would like to talk to Kirsty Brimelow QC about any of the issues in this article please email here



[1] The CCRC is expressly authorised to overlook two of the limitations to its own authority in exceptional cases. So, in such exceptional cases, it can make a reference even where the case has not previously been subject to appeal or are relying on arguments which have previously been considered and rejected at earlier appeals.