House of Lords
Session 1997-98
Publications on the Internet

Judgments - Regina v. Mills
Regina v. Poole


  Lord Goff of Chieveley   Lord Slynn of Hadley   Lord Hope of Craighead
  Lord Clyde   Lord Hutton








ON 24 JULY 1997


My Lords,

     I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Hutton. I agree with it, and for the reasons which he gives I would dismiss both appeals.


My Lords,

     I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hutton. For the reasons he gives I too would dismiss the appeal.


My Lords,

     I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Hutton. I agree with it, and for the reasons which he gives I would dismiss both appeals.


My Lords,

     I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hutton. For the reasons he gives I would dismiss the appeal.


My Lords,

     The issue of law which arises for decision on these appeals is whether the Crown is under a duty to provide to the defence copies of statements made by a person who has witnessed acts of violence in respect of which the two accused have been charged, where counsel for the Crown has reasonably decided that the witness is not a witness of truth and will seek to depart from, or contrive an explanation for, those statements if the witness is called as a witness for the defence, or whether the duty of the Crown is limited to furnishing only the name and address of the witness to the defence.

     The two appellants were convicted on 26 January 1990 in the Crown Court at Bristol before Swinton Thomas J. and a jury of the murder of Hensley Hendrix Wiltshire on the night of 5/6 January 1989 and were sentenced to imprisonment for life. In February 1996 the Court of Appeal (Criminal Division), Otton L.J., Ian Kennedy J. and Keene J., granted extension of time and leave to appeal against conviction to the two appellants. The appeals were then heard and were dismissed on 16 April 1996. The Court of Appeal certified that a point of law of general public importance was involved in the decision to dismiss the appeals, but refused leave to appeal. On 5 March 1997 leave to appeal was granted by your Lordships' House. The appeals were heard together with the appeal in Reg v. Winston Brown, which also related to the Crown's duty of disclosure but where a different point of law arose which is dealt with by your Lordships in a separate judgment.

The Facts

     On the night of 5/6 January 1989 four men were in the room of the appellant Poole in a house at 34 Conduit Street, Gloucester. They were the appellant Poole, the appellant Mills, a man named Ian Christopher Juke and a man named Hensley Hendricks Wiltshire. The appellants and Juke were friends. Shortly before midnight a young woman named Kimberley Stadden came to the room in order to get some amphetamine, and in the room she obtained some amphetamine from Juke. Whilst she and the four men were present in the room Wiltshire sustained very serious injuries. After sustaining those injuries he was taken out of the room and left on the pavement outside the house. An ambulance was sent for and arrived at 12.22 a.m. on 6 January and took Wiltshire to Gloucester Royal Hospital. In the hospital he was examined by a senior house officer who found him to be confused, semi-conscious and unco-operative. The doctor observed some 16 wounds on his arms, legs and face, including ovoid injuries to his lower legs. By reason of Wiltshire's unco-operative attitude the doctor was unable to suture or to record all his wounds. In the hospital a kitchen type knife was found tucked down one of his socks. Wiltshire refused to stay in hospital and was therefore discharged at 4.30 a.m. into police custody as the Metropolitan Police had requested the police in Gloucester to detain him in respect of an alleged offence in London.

     Shortly after his arrival at Gloucester police station Wiltshire was seen by a police doctor who expressed the view that he should return to hospital, which he agreed to do. At the hospital he received further treatment before being discharged a second time into police custody and he was placed in a cell in the police station. He later collapsed in the cell and an ambulance was called and he was taken back to hospital where he died between 2.30 p.m. and 3.30 p.m. on 6 January.

     A Home Office pathologist carried out a post mortem examination on the body of Wiltshire on the evening of 6 January and found the following injuries. There were a number of injuries to the head which could have been caused by a crowbar. There were 17 stab wounds, 13 of them in the pelvic area. There were also ovoid wounds, two on each shin, which could not have been caused either by a knife or by a crowbar, and it was the opinion of the pathologist that they were caused by some object the shape of a drill. There were three fractures of the ribs on the left side and the left fibula was also fractured. The medical evidence called by the Crown at the trial was that the injuries sustained by Wiltshire caused his death because they so damaged his muscles and bones that fatty material entered into the blood stream and led to embolisms which brought about his death.

     It was the Crown case that both appellants had attacked Wiltshire in the room, Mills with a crowbar and Poole with a knife, and both had inflicted the wounds upon him which caused his death. The Crown accepted that on that night Wiltshire had been in an aggressive mood and had picked a fist fight with Mills, but the Crown case was that the violence used by Mills and Poole on Wiltshire was not used in lawful self defence by Mills and in lawful defence of Mills by Poole but went far beyond what was reasonably necessary for such defence. At the trial the principal witness for the Crown was Kimberley Stadden. Her evidence was as follows. When she arrived outside the door of the room she heard shouting inside the room and it stopped when she entered the room. Some time later she was sitting on the settee in the room mixing amphetamine in a glass prior to injecting herself with the drug. Wiltshire and the appellant Mills were sitting on the settee next to her talking about which of them was better at fighting, when Wiltshire got up and jogged her arm and a fight then broke out between Mills and Wiltshire. The fighting was initially punching and kicking but she then saw Mills with a crowbar which he used to strike Wiltshire, who was unarmed, several times to the legs and head. The appellant Poole joined in the fight and kicked Wiltshire twice and also used a knife on Wiltshire's arm. Wiltshire tried to get out of the room through a window but failed to do so and fell back onto a settee and then onto the floor. Mills punched him and Poole kicked him before stabbing him in the buttocks with the knife four or five times. Juke then tried to intervene to stop the violence and then stopped her from seeing any more of the violence by pushing her head into his shoulder so that she could not see. While her head was turned away she heard "a sort of squishing noise". She then saw Juke drag Wiltshire out of the room and onto the pavement of the street outside. She then walked to her flat in Gloucester which was a little under a quarter of a mile away. She met the two appellants just outside her flat and the appellants had a conversation about using a telephone to get a taxi. She noticed that they had blood on their clothing and hands.

     At the trial Mills and Poole gave evidence in their own defence. The evidence of Mills was that when Wiltshire came to Poole's room he was in an aggressive and argumentative mood and wanted to start a fight. At a later stage Wiltshire attacked him and pulled out a knife and started to slash at him. There was a crowbar on the wall so he hit Wiltshire with it a few times to get the knife off him. There was then a pause and then Wiltshire came at him again, and in the course of the struggle Mills got hold of the knife and Wiltshire the crowbar. Wiltshire was on top of him with the crowbar striking at him, so he stabbed Wiltshire in the legs and buttocks. Mills said that he feared for his life and he used the crowbar and then the knife on Wiltshire in self defence. Defence counsel did not raise the defence of provocation on behalf of Mills, but in his summing up the learned trial judge referred to provocation as a possible defence which the jury should consider. In his evidence the appellant Poole said that he had taken no part in the fight with Wiltshire and had inflicted no injuries on him.

     As part of the investigation into the death of Wiltshire the police took two statements from Juke. The first statement was taken on the evening of 6 January 1989 and consisted of eleven typewritten pages. The second statement was taken on 10 January 1989 and consisted of seven typewritten pages. In his first statement Juke described how after Wiltshire arrived in the room it was obvious that he had been drinking. He then successively challenged Poole, Mills and Juke himself to a fight but no fight took place at that point. At a later stage a young woman came into the room and after this Wiltshire pulled out a knife and attacked Mills with the knife and Mills used a crowbar to defend himself. At a later stage Wiltshire got hold of the crowbar and used it on Mills who managed to get hold of the knife and jab Wiltshire in the legs. At this stage he put his hands over the eyes of the young woman to shield her as there was blood everywhere. The statement continued: "Gary was well worked up but he was heavily provoked." At the conclusion of the statement Juke said: "The trouble happened because of Willie's attitude, Willie was definitely looking for a fight, even after he got one beating, two beatings, he still went back." In his first statement Juke made no reference whatever to Poole being involved in the fight and causing any injury to Wiltshire.

     In his second statement Juke said that at one stage when Wiltshire and Mills were fighting together on the floor he saw Poole get up and crouch down behind Wiltshire and using a knife, stab Wiltshire in the buttocks about two or three times. He had not mentioned this in his first statement because he did not wish to involve his friend Tony Poole as he did not really play a very major role in events. He then described how he turned the young woman's head away as he did not want her to see this and he lost sight of the three men. When he turned round again he saw Wiltshire lying on his side with Poole standing away from him and Mills was standing over Wiltshire hitting him on the thigh and calves, mostly on the thighs but not on the kneecaps. The statement continued:

     "Mills kept hitting him with the crowbar saying something each time between blows to Willie. I don't know what he was saying. Gary Mills was giving Willie a severe beating so I said, 'Leave it out, leave it alone'. Although I was worried that Gary Mills might hit me with the crowbar, I went forward because I realised that Willie had to get out of there."

     In this statement Juke then described how he dragged Wiltshire out of the room, into the corridor and eventually out into the street. He then said that as he knew the ambulance was on its way he became panicky and, thinking he could do no more for Wiltshire, he ran off to his home in Gloucester as he did not wish to be involved in another assault having been already involved in one incident before Christmas.

     A short time later a friend of Wiltshire arrived at his home and accused him of letting Wiltshire be beaten up by the others. Wiltshire's friend then left his flat. He was concerned about Mills and Poole and he gave a woman friend a bag of clothes to take to Poole. He then went to another house in Gloucester where he saw Mills and Poole and he noticed that they had both changed their clothing. He then went to Cheltenham to start work at 7.20 a.m. and Poole accompanied him to Cheltenham and Mills joined them in Cheltenham a short time later.

     In a subsequent statement made after the trial to police officers who were conducting an enquiry into the circumstances relating to the death of Wiltshire, Juke said that the contents of his second statement of 10 January about Poole were untrue and had come about as a result of police pressure to implicate Poole, the police having taken a statement from Kimberley Stadden implicating Poole which they wished Juke to confirm. He also said he was put under pressure by the police to explain the ovoid injuries to Wiltshire's legs, the suggestion being made that if he did not implicate Poole the police might have to conclude that as he was the last person to be with Wiltshire at Conduit Street he might have had something to do with those injuries.

     On 23 March 1989 the Senior Crown Prosecutor wrote to Mr. Gadd, the solicitor representing the two appellants, and stated:

     "As per our discussion at Court on the 21 March I informed you that the view of the prosecution was that we are not prepared to disclose the statement of Ian Christopher Juke at this stage. You are aware of his identity, there is no property in a witness and if you wish to obtain a statement from him you are at liberty to do so."

     On 2 May 1989 Juke was interviewed by Mr. Gadd. The interview was recorded by Mr. Gadd on a tape recorder and the interview was then typed out and consisted of twelve pages. The interview was a careful one in which Mr. Gadd asked Juke about what had happened in the room when Wiltshire was injured and about what he had said to the police in his statements, and Juke gave detailed answers to Mr. Gadd. In the interview Juke stated clearly that Wiltshire was picking a fight and was the aggressor, and that Mills acted in self defence. At one stage Mr. Gadd asked Juke if Poole had taken part in an attack on Wiltshire:

     "CG: Now, let me ask you this question. During the attack did Tony Poole have anything to do with it? Did he strike a blow, help Gary in any way?

     "Juke: During the attack?

     "CG: At any time during that evening was he part and parcel of that assault?

     "Juke: Not as far as I can see.

     "CG: Right. Now the girl says that he was. She says that he was involved in cutting him, kicking him, stabbing him in the arse when he was on his knees. Do you remember that?

     "Juke: I think that was when I turned her head around, I saw Tony just get up and then I turned back when I had turned her head around. I thought she'd come down to see Tony not Willie."

     At a later stage in the interview Mr. Gadd asked Juke what he had told the police that would implicate Mills and Poole. Juke gave a lengthy reply in which he said that the police had shown him statements which said that Poole was involved. The police asked him if he had seen Poole move and he replied that he had seen Poole move but he had not seen Poole stabbing. The police told him that Wiltshire had got stab wounds on the buttocks and asked him how they got there if Mills was in front of him. Juke's answer to Mr. Gadd then continued:

     "I told them I wasn't looking at the time. I didn't want to see what was happening and I didn't want the girl to see what was happening, so I looked away . . . I am happy to say I didn't see Tony do anything to him, right. I saw Tony move but I turned my head away."

     It is also relevant to observe that in the course of Mills being questioned by the police the police put to him the substance of Juke's second statement and said to him:

     "Q. I think it only fair to tell you Mr. Mills and see if you wish to make any comment upon it. But it is alleged by witnesses that were in the room and have made statements to us. That when Willie bounced off the window that they gained the impression that you thought he was attacking you again. That you put him to the floor and started to have a rough and tumble with him. It was at this point that Mr. Poole came up behind him and stabbed him in the buttocks on a number of occasions and that you then got the better of Willie, became hot as they call it or lost your cool for the first in reality because they are basically saying you have been quite restrained with the antics of Mr. Wiltshire up until now. But that you then get the crowbar and in their view you go over the top and decide to teach him a lesson and that you rain a vast number of blows aimed on the calves and thighs of Wiltshire and that it is quite clear to the one person in particular that you meant to make him learn a lesson and that he gained the impression that you were intending to break his legs in order to settle the matter once and for all. And that your intention was to teach a lesson for all the trouble he had caused that night I mean that is couched in with the fact that up until then, you had held back in reality, but at that stage you had finally lost your cool and you gave him a lesson he wouldn't forget. That is what the people are saying they saw in the room, again you don't have to make any comment if you don't want to but if you wish to deny that or say anything to it you can.

     "A: No, as I said that's not how I remember the incident. I'm not denying that I hit his legs several times with that bar but that was with a knife in his hand."

     Because the police referred to allegations of "witnesses that were in the room and have made statements to us" it must have been clear to Mills that the police were putting to him what Stadden and Juke had said to them in their statements, and the reference to "the one person" followed by "he gained the impression" must have made it clear to Mills that Juke had told them that in his view Mills was intending to break Wiltshire's legs in order to settle the matter once and for all.

     At the trial Juke was not called as a witness by the Crown or by the defence, although he was present at court during the trial and was seen talking to the defence solicitor. Crown counsel did not call Juke because he believed that if he called him Juke would not be a truthful witness and would depart from the combined effect of his two statements and give evidence to support the cases of the two appellants. Accordingly Crown counsel was entitled not to call Juke, the law on this point being summarised by the Court of Appeal in R. v. Russell-Jones [1995] Cr. App. R. 538 at p. 544G:

     ". . . the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness's evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say 'incredible', then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called . . .