THE CRIMINAL CASES REVIEW COMMISSION,
ALPHA TOWER,
SUFFOLK STREET,
QUEENSWAY,
BIRMINGHAM,
B1 1TT.
OUR REF.: H/W/C
YOUR REF.: 00136/2004
21/12/06
Dear Sirs,
KEVIN CRAIGIE
You will recall that we act for the above client, and that we have made a series of detailed representations on his behalf in a series of attempts to persuade you to refer this matter back to the Court of Appeal. We write once again to invite you reconsider this matter. You should treat this letter as a further application by us on behalf of our client to refer his convictions back to the Court of Appeal on the basis that they are unsafe and should be set aside. We make the following points:
1. You should treat all of the previous representations that we have made as being repeated within this letter.
2. The fact of the case are amply set out in your own decision letters and in our representations. Accordingly we shall not repeat them in this letter.
3. The new evidence in this case consists of the various new interviews with Fuller, the evidence of Barbara Parn, and the evidence of Professor Crane. None of this evidence has ever been before a Court, and all of it has been obtained since our client was convicted.
4. One of the overriding problems that we have faced in the past was the admission of Parn’s evidence, and the evidence contained in the interviews of Fuller. You have always taken the view that they are hearsay.
5. In our view the importance of the evidence of Parn cannot be overstated. The statement which Fuller gave to her was given after consideration. As far as we can tell it was volunteered and no pressure was exerted upon him. Further, it was recorded by Parn, and it was then taken away, and a statement was produced and sent to Fuller. He then signed it and sent it back to Parn. She caused a copy of it to be put onto both Craigie’s file and the file of Fuller. Accordingly he had plenty of time to consider it, and he could have refused to return it. He did not do that. Having considered it in detail, without any pressure being brought to bear upon him, he approved it and returned it to Parn.
6. The importance of the Parn statement is three fold. The first point is that Fuller accepts that he panicked and that he was the only party to strike any blows. He accepts that he killed Rothwell. Whilst he maintains that the robbery or theft was a joint enterprise, he absolves Craigie from any liability for the murder. The second point is that it makes clear that even if there was a joint enterprise- and Craigie denies that as he always has- it was a joint enterprise to steal or rob, with no earlier intention to kill or commit serious harm. Fuller in his actions went well beyond any agreement there may have been with Craigie, and accordingly there can be no liability on Craigie for the murder. The third point is that it is entirely consistent with all of the forensic evidence, which in summary suggested a frenzied attack and indicated that the blood smattering on Fuller’s clothes suggested that he was the attacker.
7. There is a further point in the statement, which we have only just noted when re-visiting the matter. The murder weapon has never been found. Some of the injuries to the deceased’s head left unusual marking. The forensic evidence in the end suggested one weapon that changed shape was used. Parn’s statement says this: “……He (Mark) picked up a piece of wood, which was lying on the floor (house being renovated), and struck the victim on the head..” Parn goes on to say that “I recall noting that the piece of wood used in the attack was an ornate stair spindle and that this explained the unusual compression injuries sustained by the victim and referred to in the disclosures. The weapon had not previously been identified”. This particular detail is vital. It identifies a weapon never previously referred to. It could only be known by Fuller and possibly Craigie. Assuming that forensic evidence confirms that such an implement could have caused those injuries, then it indicates the veracity of this account, and negates the comments later made by Fuller in various interviews when he no doubt feared the implications to himself of fully taking the blame for the murder.
8. Professor Crane has already given a report on this case. We would suggest that he be instructed again to consider whether the compression injuries on the head of the deceased are consistent with the implement used by Fuller. If they are we would suggest that there is virtually no doubt that he killed Rothwell and that there was no joint enterprise to kill or seriously injure involving our client. All of the other evidence supports this conclusion.
9. When we have previously argued about the admissibility of Parn’s evidence and the statement of Fuller you have taken the view that it is inadmissible as hearsay. However, Sections 114- 116 of the Criminal Justice Act 2003 are now in force. You will know that by virtue of Section 114 the Court is able to admit hearsay evidence where it is satisfied that it is in the interests of justice to do so. The factors it takes into account in making that decision are detailed in Section 114 (2). Among the factors are the probative value of the statement and the level of importance it has in understanding other evidence in the case; the importance of the evidence in context of the case as a whole; and the circumstances in which the statement was made. Quite simply the evidence is fundamental to correcting a serious injustice that has been done to our client. We have already explained the importance in this letter and our previous representations to you. Section 116 deals with the situation where a witness is unavailable. We work on the assumption that Fuller will not give evidence, as you have in your past decisions. By Section 116 further conditions of admissibility are laid out. Clearly conditions (1) (a) and (b) are satisfied. Condition 1 (c) of the section refers to 5 further conditions in subsection (e). That section allows the admission of the evidence where the person making the statement does not give evidence through fear. By subsection (3) of the section “fear” is to be widely construed and (for example) includes fear of death or injury or of financial loss. Quite clearly, Fuller will not give evidence for fear of the implications to him. That would include the fact that having been released he would have to give evidence in a case likely to draw significant publicity. Further, it is at least possible that in evidence facts may emerge which may cause the Probation Service to review whether he is suitable to remain on life license. Accordingly, the statements of Parn and Fuller are now admissible.
10. In these circumstances we invite you once again to refer his matter to the Court of Appeal for further consideration.
Yours faithfully
HANNAFORDS
