Robin and Diana Garbutt
Diana Garbutt was brutally bludgeoned to death with an iron bar on 23rd March 2010. Her husband, Robin Garbutt, was arrested on 14th April after previously assisting police as a significant witness. He was charged with her murder on 16th April. North Yorkshire Police conducted a flawed investigation into the incident, which has enabled Robin Garbutt to raise a number of issues suggestive of a miscarriage of justice, however all attempts to appeal his case based on police blunders have failed to produce the desired result.
The Garbutt’s managed a village store and post office. Mr. Garbutt and his wife owned and ran a sub-post office in the small village of Melsonby in North Yorkshire. At some point during the night or early morning of 22nd/23rd March 2010, Diana Garbutt was killed by three blows to her head with what, it was later alleged, was an iron bar. Mr. Garbutt’s account to the police was that the post office had been robbed at 08:35 on the morning of 23rd March 2010 by an armed robber, and that the robber or an accomplice must have killed his wife.
Garbutt’s trial for murder opened on 21st March 2011. The Jury returned at 10:2 majority guilty verdict on 19th April. He was sentenced to life imprisonment. The jury found that, on the evidence, Garbutt’s story about an armed robbery was untrue. Passing sentence, Mr Justice Openshaw was scathing. He said that Garbutt had shown no remorse over the death of his wife, adding:
“He has always accompanied his lies with sanctimonious lies of his love for her. By their verdict, the jury have exposed this as pure humbug. This was a brutal, planned, cold-blooded murder of his wife as she lay sleeping in bed. There was no struggle, she never awoke. He struck three savage blows, smashing her skull and causing her immediate death as clearly, he intended.”
The story of the armed robber he said was ‘ludicrous from beginning to end’.
An appeal was lodged with Criminal Division of Court of Appeal on 11th November. There was a Court of Appeal hearing on 15th May 2012, but the appeal was dismissed. The appeal judges reasoned that the conviction is ‘safe’ and emphasised the jury’s finding that the armed robbery could not have taken place.
The Court of Appeal found that Robin Garbutt’s account of the robbery was implausible and raised many objections to his version of events. The CoA said:
Even if some assumptions were made in G’s favour regarding the alleged robbery, the evidence as to the timing of death and its impact on what must have happened was conclusive. If the robbery had occurred in the way G asserted, the robbers would have had to have been at the premises several hours before appearing and taking the money. It was highly unlikely that robbers would have arrived early, done nothing to further the robbery or have gone upstairs when the money was downstairs in the shop. If the robbers knew of the 08.30-time lock on the safe as suggested that was even less reason to arrive hours before the robbery could be effected, or to go upstairs. Further, it was improbable that the robbers would have killed G’s wife without him hearing anything and that having killed her, they waited for the safe to be opened, or that they would not have been violent towards G who was alone in the shop. If the robbers had a gun as G alleged, it was doubtful that they would have needed an iron bar, which was the murder weapon.
The defence, at trial, relied on the report of another almost identical alleged robbery at the same premises a year earlier, on 17th March 2009. The court heard Garbutt’s account of how, at about 08.30am, he had been confronted by two hooded men, with their faces covered, one pointing a gun at him, as he opened the post office safe.£11,000 went missing and the implication is clearly that this was another story concocted by Robin Garbutt.
Garbutt has made three submissions to the Criminal Cases Review Commission arguing his innocence. All three have been rejected.
Forensic evidence and ‘expert’ witness testimony lie at the heart of Robin Garbutt’s difficulties. An expert witness said that Diana had died between 02:30 and 04:30am. Dr. Jennifer Miller analysed Diana’s stomach contents before expressing her view on the time of death. Robin and Diana had eaten a meal of fish and chips at 8pm. Dr. Miller said that her professional opinion was that Diana died prior to 04:30. Diana was found dead by Robin Garbutt around 08:30 in the morning. Dr. Miller said that death 10 hours after eating the meal was "a very low possibility'' and under oath averred; "I think you would struggle to get ... as far as 10 hours...very unlikely".
Dr Jennifer Miller
Dr Miller concluded that digestion appeared to have continued for six to eight hours after consumption until stomach functions ceased as a result of death or severe trauma. Basing her findings on the amount of undigested food content of the stomach and allowing for uncertainties and variables inherent in analysis by this method, she had found “it is quite feasible to suggest that Mrs Garbutt died or was subject to severe trauma to cause hypostasis pylorospasm (i.e., to stop her stomach actions working) at some point six to eight hours after consuming [the fish and chips]. Her findings, therefore, suggested that the time of death was therefore some time, and probably some hours, before 8.30am, i.e., between 02:30 and 04:30.
In rejecting Garbutt’s appeal, the CoA seemingly placed great reliance on Dr. Miller’s testimony and said: “it is the evidence of the TOD [Time of Death] and its impact on what must have happened that leads us to our conclusion.” [COA Judgment Vol 1. Tab 3 Pg 8 para 25:26]
A pathologist also gave evidence for the prosecution. He was less dogmatic on TOD than Dr. Miller. Dr. Hamilton stated, “the presence of confluent hypostasis which remained evident at the front of the body for a number of hours after the body was turned is in my view incompatible with an individual who had died immediately prior to the body being turned over.”
Dr. Hamilton also found that rigor mortis was well established in the large muscle groups by the time of the post-mortem on 23rd March. The paramedics had noted a degree of rigor mortis shortly after 8.30am, which Dr Hamilton stated, “suggests that it is unlikely that the death had occurred shortly before the discovery of the body.”
In summary, Dr Hamilton found: “I am of the view that death could not have occurred immediately before the discovery of the body and given the above discussed factors I am of the view that death occurred at least one hour prior to that and taking into account the other factors it is more likely that death occurred several hours previously” (Hamilton report page 3).
Thus, from the prosecution evidence it appears that Diana Garbutt was murdered several hours before her body was discovered. Paramedics attending at around 08:45 am described seeing evidence of rigor mortis.
Garbutt’s campaign to prove his innocence is now focused on disputing the pathological evidence.
Fresh evidence relating to time of death
Time of death was critical to the Prosecution case. Mr Garbutt’s defence was that his wife must have been killed by the robber(s) who stole the cash from the till. The robbery was just after 8.30 am, as established by the timing mechanism on the safe. If death had occurred some hours before this, as the Prosecution alleged, then Mr Garbutt’s account was simply not plausible because, according to him, Diana was alive when he got up at 4.00 am.
The Prosecution expert, Dr Jennifer Miller, gave evidence about time of death, based on her analysis of Diana’s stomach contents (summing up page 84 onwards). She stated that severe trauma stops the digestive process. On the agreed basis that Diana’s last meal had been fish and chips at 8.00 to 8.30 pm on the night before she died, she stated that digestion was most likely to have stopped 6 to 8 hours later – that is at about 2.30 to 4.30 am (summing up page 85). Even with the acceptance that time of death is rarely an exact science, she stated that death occurring as long as 10 hours after eating the meal was a “very low possibility” (summing up page 87).
Plainly, if the jury accepted Dr Miller’s evidence, they would have in all likelihood also rejected Mr Garbutt’s account that Diana was alive when he got up and left her at 4.00 am and that she had been killed after that by the robbers. Her evidence was central to the Prosecution case.
Those acting for Mr Garbutt instructed Dr David Rouse to prepare a report specifically commenting on Dr Miller’s findings. Dr. Rouse is a highly qualified pathologist with circa 20 years’ experience.
Dr Rouse accepts that timing of death is “a notoriously difficult subject and the general consensus is that the best parameters are between the times when the deceased was last seen alive and when found dead.”
Dr Rouse has commented on Dr Miller’s findings and the literature she referred to in reaching those findings. He concludes that, in fact, Dr Miller’s statement as to the probability of death occurring within certain given timescales is incorrect. His review of the literature concludes that, where the stomach contents contain an estimated 20% of the final meal consumed, then a timescale for death up to 12 hours would be within the 95 % confidence limit. In short, he finds that “time of death may have been substantially later and may have been just after 0645 as would have been suggested by Dr Cooper “[defence expert instructed prior to trial].
In a submission to the CCRC, Garbutt’s lawyers said:
“Dr Rouse’s conclusion is stark and, given the centrality of time of death in the evidence in this case, highly significant. It is submitted that his findings alone raise a compelling doubt about the safety of Mr Garbutt’s conviction. Those representing Mr Garbutt have also obtained transcripts of the evidence given by Dr. Miller in another recent murder trial, R-v-Tabak (Bristol Crown Court 2011). The evidence given in this case, admittedly on differing facts, is potentially illuminating.
In Tabak, Dr Miller gave evidence regarding a victim who had eaten half a portion of “cheesy chips” for lunch, with alcohol. She examined the stomach contents which consisted of 125 ml of semi solid food mixed with stomach lining material. She found that it was very likely that digestion, due to sudden trauma or death, had occurred within eight to ten hours of that last meal (transcript page 7). In the case of Diana Garbutt, her stomach contents also had a volume of 125 ml (statement 28.4.10 page 11). Her last meal was fish and chips. Yet, as stated above, Dr Miller estimated a likely time of death at between six to eight hours after the meal had been eaten. Even allowing for the presence of alcohol in the victim’s stomach in Tabak (transcript page 11) the difference in the witness’s finding as to time of death are striking.
It is accepted that Dr Miller’s conclusions as to likely time of death were, in the above case and in her evidence in Mr Garbutt’s case, dependent not just on the kind of food consumed in the last meal, but the amount, and the consumption or non-consumption of alcohol. The facts in these cases are not identical. However, it does appear that Dr Miller’s evidence in Tabak suggests a greater latitude or window of possible timings for the point at which digestion stopped and death occurred than she allowed in Mr Garbutt’s case. In the Tabak case, it appears that the victim had consumed a meal not dissimilar to that which Diana Garbutt had consumed (in fact possibly less volume) and that 125 ml of food was still present in the stomach eight to ten hours after the meal was consumed. It should also be noted that on Mr Garbutt’s account, it would have been usual for Diana to drink alcohol with her last meal. Also, there was an open bottle of red wine with at least one glass having been poured from an open bottle of Amaretto, in the premises on the morning of the murder.
To emphasise the significance of this aspect of the case, we again refer the Commission to paragraph 27 of the judgement of the Court of Appeal. In dismissing the appeal, which had been based on the fresh accounting evidence, the Court stated “On the evidence of time of death, he or they [the robbers] had probably been there [in the post office] several hours before appearing. There is no reason anyone bent on robbery would arrive so early and do nothing to further the robbery.” Plainly, not only the jury but the Court of Appeal considered the Prosecution evidence on time of death a major factor in rejecting Mr Garbutt’s account. It is submitted that the evidence of Dr Rouse now renders the conviction unsafe”.
The CCRC appears unable to accept the significance of Dr. Rouse’s evidence, or the fact that it totally negates what Dr. Miller said at the trial. The CCRC said:
"It is the view of the Commission that even if it transpired that Mrs. Garbutt was murdered some hours LATER than the 04.30 hours indicated by Dr MILLER as the latest possible time, this would NOT undermine the safety of Mr. Garbutt's conviction."[i]
The Statement of Reasons dated 17/07/2017 rejected Garbutt’s submission based on the following logic:
74. As stated above, the CCRC 'has reviewed Mr. Garbutt's case on the basis that Dr. Rouse's report is correct, that Dr. Miller was in error and that, according to the stomach content evidence alone, Mrs. Garbutt could have died at any time up to the moment she was found.
75. It is also accepted by the CCRC that, as suggested by Mr. Garbutt's solicitors, paragraphs 25-28 of the Court of Appeal Judgment make it clear that it was the time of death evidence that was determinative of the appeal.
76. It has been suggested by Mr. Garbutt that once Dr. Miller's evidence is disproved, the prosecution would be unable to rule out the possibility that the robbery occurred shortly after Mrs. Garbutt was killed and that it was reliance on Dr. Miller's evidence as to the time of death window which assuaged the Court of Appeal's concerns about the financial evidence and satisfied them there had not been a miscarriage of justice.
The CCRC concluded:
84.In light of paragraph 27 of the Court of Appeal judgment, in which the Court laid out their view of the inherent implausibility of the actions that must have been taken-by the robbers, it is the view of the CCRC that unless there were to be fresh evidence which disproved the evidence of the pathologists that Diana Garbutt had been dead for at least an hour when her body was found, their evidence alone would provide a sufficient basis on which the Court of Appeal would uphold Mr. Garbutt's conviction. Therefore, it is the view of the CCRC that in the absence of any new evidence relating to the evidence of Dr. Hamilton and Dr. Cooper there is no real possibility the Court of Appeal would find Mr. Garbutt's conviction to be unsafe based on the report of Dr. Rouse.
Dr Miller is not a pathologist; she is an academic. An Associate Professor at Nottingham Trent University. She is course leader for the MSc in Forensic Science and module leader for Forensic Casework Examination (BSc Year 2), Suspicious Death Investigation (BSc Year 2), and Forensic Bioarchaeology (MSc). Her research areas are listed as:
Stomach contents analysis to determine last foods consumed, duration, timings & other events for criminal investigation.
Gastric transit and digestion in infancy for forensic application.
Forensic archaeology: methods for search & problematic human remains recovery.
Refining interpretation of non-standard & environmental forensic evidence.
Scene examination including interpretation of taphonomy, environmental indicators of contact, duration & timings.
Her listed publications are revealing and informative. 24 listed articles on botany and 1 technical paper in 2009, ‘Technical paper for the Home Office Forensic Regulator and UK Police Forces’. Thus, it appears that Dr. Miller is in reality a botanist with an academic interest in one aspect of crime scene processing and at the time of giving evidence in the Garbutt case, not very experienced. It appears that someone for the prosecution thought that they needed some expert evidence that undermined Robin Garbutt’s account of events and Dr. Miller fitted the bill perfectly. Perhaps significantly, Dr. Miller appears to have published nothing since 2009 on the subject of estimating time of death from stomach contents, which does not suggest the output of an expert.
Professor Bernard Knight CBE.
Further opinion on Dr. Miller’s testimony has been sought from the acknowledged expert, Professor Bernard Knight CBE. On 3rd August 2013 he wrote:
"In regard to the evidence in the case of Robin Garbutt, I have the following observations to make: The main issue is about the time of death and the prime prosecution witness was Dr Jennifer Miller. Having re-read her extensive statement, I appreciate her meticulous approach and as regards the matter of the stomach contents (identifying the nature of the meal as that of the last fish and chips) I am in no position to dispute anything, as this is a specialist forensic science matter which she seems well qualified to handle. The report is very detailed, to the point of overkill, and I wonder with whether it is really necessary for an expert witness to set out all the laboratory procedures for use in court, as no one except herself would really be able to follow them. However, this is hardly relevant.
What does puzzle me is that the evidence about the time of death, extrapolated from the stomach contents, was given by a witness who is basically a botanist and archaeologist, as such evidence is normally given by a forensic pathologist and where necessary, a hyper-expert such as a clinical gastroenterologist. It seems unusual for no medical witness to have given any evidence about the time of death based on gastric contents, unless the pathologist himself covered this matter.
Having been involved in many thousands of post-mortems, I have had the opportunity of seeing an equal number of gastric contents and have observed the great variation in quantity and state of digestion, including those where the time of the last meal and the time of death were not in dispute.
This has led me to be very wary of setting strict time limits on the time of death for a wide variety of reasons. I say this because I feel it is really the province of a forensic pathologist to offer opinions on the time of death derived from a variety of means, including gastric contents. To have the prime evidence given by a forensic scientist who has never performed a postmortem examination (on humans) and thus never had the chance to note the timing discrepancies that arise, seems an unusual situation.
Nothing in Dr Miller's statement is intrinsically incorrect, but I feel that she has not appreciated the full extent of variables, which dog all attempts at determining the time of death. In a number of places, she rightly offers references to other scientific publications, almost all by pathologists, a number of these being my own ... and in fact, she alludes to the uncertainty expressed by those. In all these, pathologists endlessly point out the dangers of being too dogmatic in using fixed parameters based on gastric contents, which have often proved fallacious.
If the evidence of Dr Miller is to be further scrutinised and possibly challenged, I would have thought it necessary to obtain such expert opinions from those people who know most about the passage of food through the intestines.”[ii]
The CCRC appears embarrassed to acknowledge that Dr Miller was not a reliable forensic expert witness. The CCRC’s approach to such issues was summarized by the CCRC as follows:
Selection and Instruction of Experts
2.4 Criticised expert witnesses, lawyers, or other professionals
2.4.1 An application to the CCRC may include an assertion that the expert opinions or evidence at the time of the original trial were flawed. If so, the CCRC may contact the expert(s) at trial and invite a response to any such criticism.
2.4.2 In order to assist in assessing the validity and strength of any such criticism, the CCRC may obtain a report from a new expert. If so, the trial expert(s) may be invited to comment on any such report.
The CCRC has declined to obtain a report from a new expert.
Thus, despite the evidence of Dr Miller now being regarded by the CCRC as unreliable, they have simply reverted to the testimony given by the pathologist Dr Hamilton, who said that at 08:30 am Diana Garbutt had been dead for at least an hour and possibly longer.
However, the CCRC has no way of knowing what impression Dr Miller made upon the jury or the judge and whether her testimony was in fact the crucial factor in Robin Garbutt’s conviction.
Perhaps of greater significance is the fact that the CCRC has not reported the shortcomings of Dr Miller’s testimony to any other body in an attempt to prevent her from giving similar problematic evidence so emphatically in other criminal trials.
The CCRC policy is stated thus:
Disclosure by the CCRC
20 Material Which Indicates Significant Misconduct or Negligence
20.1 There may be occasions where the CCRC discovers evidence of significant misconduct or negligence by a police officer, or an officer or other person employed by an investigatory authority, or by any other person working in the Criminal Justice System. Careful consideration will be given as to whether disclosure can and should be made to an appropriate person / body.
Surely, if the CCRC was a serious authority on criminal appeal matters, it should have reported the failings of Dr Miller’s approach to relevant authorities?
As Professor Knight said: “What does puzzle me is that the evidence about the time of death, extrapolated from the stomach contents, was given by a witness who is basically a botanist and archaeologist”. Professor Knight pointed out that the Police and/or Crown Prosecution Service (CPS) had obtained expert witness testimony to bolster the case against Robin Garbutt, perhaps wishing to utterly negate any suggestion that Diana Garbutt was murdered by the alleged post office robber(s).
Perhaps the police/CPS were not willing to rely on the evidence of the pathologist, Dr Hamilton, who was less favourable to the case against Robin Garbutt about time of death.
Additionally, the fact that Dr Miller gave very detailed (and unnecessary) evidence about the scientific procedures involved in her work methodology could only have impressed the jury even further that she was an important scientific expert in the topic she was outlining – which was not in fact the case.
It should be the duty of the so-called miscarriage of justice ‘watchdog’ to question the Crown Prosecution Service as to why such important evidence was sought from someone who cannot in any sense be regarded as a reliable expert witness. Was the use of Dr Miller in giving evidence an act of deception on the part of the prosecution?
The apathy of the CCRC means that it has failed to ensure that the botanist Dr Miller does not give crucial pathological evidence in murder trials. Clearly, as Professor Knight says, it is utterly inappropriate for an academic botanist who has never conducted an autopsy to be regarded as an expert witness regarding time of death questions.
The CCRC should be actively seeking the cooperation of the CPS in preventing such fraudulent practices as used by the prosecution in the case of Robin Garbutt. Especially so as it is well known that the Court of Appeal frowns upon the suggestion that the defence may find a “bigger and better expert” at the appeal stage to counteract the original trial expert. Such guidance from the CoA encourages the CCRC to ‘protect’ the original expert witness from criticism by refusing to countenance the new evidence of a ‘bigger and better’ expert such as Dr Rouse.
The fact that the police and the CPS can get away with such flawed practices in relation to expert witness testimony can only serve to prolong allegations of miscarriages of justice by alleged victims such as Robin Garbutt, which if true can leave innocent victims languishing in prison unable to overturn their wrongful convictions.
Despite being established with the express task of finding the truth of claims of innocence by alleged victims of miscarriages of justice, by not objecting to this practice the CCRC is contributing to the problem rather than resolving it.
Bill Robertson has researched alleged miscarriages of justice for around 20 years and advised on several cases, including the most recent application to the CCRC by Jeremy Bamber. He serves as Deputy Editor of CCRC Watch.
Please let us know if you think that there is a mistake in this article, explaining what you think is wrong and why. We will correct any errors as soon as possible.