Robin Garbutt
In this article, Sophie Hawkins presents a detailed analysis of the Statement of Reasons issued by the Criminal Cases Review Commission (CCRC) informing Robin Garbutt that they were not going to refer his case back to the Court of Appeal. She concludes that the case of Robin Garbutt is one example of why the CCRC is in need of urgent reform or replacement, as their efforts do not reflect a body that is committed to investigating claims of innocence by alleged victims of wrongful convictions from the perspective of championing truth, innocence and justice.
I am writing this article from the standpoint of a University of Bristol student volunteer with Empowering the Innocent (ETI). Before being given the case of Robin Garbutt to research and write about for CCRC Watch, I underwent training by way of readings and seminars on the criminal appeals system, the establishment of the Criminal Cases Review Commission (CCRC), the problem of prisoners maintaining innocence and the key causes of miscarriages of justice as evidenced by successful appeal against criminal convictions.
In the article that follows, I, firstly, give an overview of the ETI campaign and its call for the CCRC to be reformed or replaced with a body that can ensure that all innocent victims of wrongful conviction can overturn their convictions. Then, I move on to the main failings of the CCRC from the perspective of dealing with applications from alleged innocent victims of wrongful conviction and/or imprisonment and ETI’s proposals. Against this background, I will evaluate the case of Robin Garbutt with reference to the Statement of Reasons (SoRs) issued by the CCRC to justify not referring his conviction for the murder of his wife, Diana Garbutt, back to the Court of Appeal.
I conclude that the case of Robin Garbutt is one example of why the CCRC is in need of urgent reform or replacement, as their efforts do not reflect a body that is committed to investigating claims of innocence by alleged victims of wrongful convictions from the perspective of championing truth, innocence and justice.
ETI campaign overview and intentions
Empowering the Innocent (ETI) is a targeted campaign for the urgent reform of the Criminal Cases Review Commission (CCRC), or for its replacement with a new body that is fit for the purpose of assisting innocent victims to overturn their wrongful convictions.
While there are alleged victims of wrongful convictions who, for a variety of different reasons, claim to be innocent when they are not, the criminal justice system is not perfect- making it inevitable that factually innocent people are wrongly convicted and imprisoned (Naughton and Tan, 2011). This became apparent through notorious cases such as the Guildford Four and the Birmingham Six, which spurred a public crisis of confidence in the entire criminal justice system. The CCRC was set up as a response. The CCRC took over responsibility from the Home Secretary on the 31st of March 1997 (Naughton and Tan, 2013), and has since been the last resort for innocent victims of wrongful conviction. However, it has become increasingly obvious that the CCRC is not the extra safety net for innocent victims of wrongful convictions that it was originally intended and hoped to be.
Failings of the CCRC
The CCRC does not pursue truth behind claims of innocence, but rather acts as a filter for the Court of Appeal (Criminal Division) (CACD). This is due to the CCRC being bound to the CACD through the ‘real possibility’ test under s.13(1) of the Criminal Appeal Act 1995, and the fresh evidence criteria under s.23 of the Criminal Appeal Act 1968 (Naughton and Tan 2013), which have to be considered when reviewing an application. The problems that accompany these requirements will now be discussed.
The CCRC can only refer cases to the Court of Appeal if there is a ‘real possibility’ that the conviction will be quashed. The test means that the CCRC has to keep in mind how the Court of Appeal may rule, constantly second-guessing its own judgement. The original role of the CCRC was to refer cases that the public, press, the non-judiciary and the CCRC itself thought were miscarriages of justice, as a challenge to the Court of Appeal (Naughton and Tan 2013). However, the ‘real possibility test’ has allowed for the balance to shift, producing a collaboration between the two and disconnecting the CCRC from its original purpose (Naughton, 2012).
While the definition of fresh evidence as ‘evidence not adduced at trial’ (Naughton and Tan, 2013:17) is in itself unproblematic, the strict interpretation of the test by the Court of Appeal and CCRC means that evidence that was, or could have been, available at the time of the trial is not considered to be fresh evidence (Naughton and Tan, 2013). For example, evidence supporting innocence that was not used due to a mistake or poor trial tactics by defence lawyers is not considered to be ‘fresh’, despite being unheard in court. This substantially disadvantages and procedurally bars victims of miscarriages of justice from having their convictions overturned. Furthermore, even if fresh evidence is available, as an appeal is not a rehearing, the evidence is considered in isolation and not in addition to any other evidence proving innocence (Naughton and Tan, 2013). If the Birmingham Six applied to the CCRC now, the evidence of their innocence may not be considered as fresh and their convictions may not be referred, as conceded in 2005 by CCRC Commissioner John Weedon (Naughton, 2019).
The criterion for a referral creates a total lack of independence, and in fact, subordination to the Court of Appeal that prohibits the CCRC from fulfilling its intended purpose. The legal safety of a conviction - whether the trial was fair in terms of compliance with the prevailing criminal justice procedures - is of utmost importance to the Court of Appeal, thus also to the CCRC as a knock-on effect of the aforementioned criterion. As a result, the CCRC carries out ‘desktop reviews’ and does not make use of its wide investigatory powers to undertake thorough investigations into claims of innocence. Moreover, this focus on legal safety means that the CCRC assists those who are factually guilty on the basis of technicalities (Naughton and Tan, 2013).
In recognition of the limitations of the existing criterion in overturning the convictions of factually innocent victims of miscarriages of justice, a Free Pardon under the Royal Prerogative of Mercy remains as an available route. Incorporated into the Criminal Appeal Act 1995, the CCRC is permitted to refer applications to the Secretary of State where there is a lack of necessary legal grounds to support an applicant that is thought to be factually innocent (Naughton and Tan, 2013). Since the establishment of the CCRC, it has not once used its powers to ask for a Free Pardon (Naughton and Tan, 2011).
The CCRC has referred less than 4 percent of the overall 13,000 plus applications it has received (Naughton and Tan, 2013). The referral rate of the previous system for dealing alleged miscarriages of justice that failed in appeal prior to the establishment of the CCRC was 10 percent, which was considered to be inadequate. With each successive CCRC chair there has been a decrease in referrals to the Court of Appeal, ‘a trend that has rendered miscarriages of justice effectively non-existent as an official legal category’ (Naughton, 2019) and brought referrals down to less than 1 percent. This does not reflect a body that is committed to investigating and championing innocence.
Proposals for reform
There is a growing consensus that the CCRC needs to be unshackled from the Court of Appeal so that it is truly independent in its review and decision-making process, and thus improving the standard of its case review process. The following proposals for reform are taken from the Empowering the Innocent (ETI) website:
The urgent repeal of the ‘real possibility test’. This would uncouple the CCRC from the Court of Appeal so that it is free to conduct truly independent and impartial investigations into claims of factual innocence by alleged victims of wrongful convictions in the interests of truth and justice;
In these investigations, any evidence not presented to the jury at trial is to be considered as fresh or new, as it should be as it has not been heard by a jury, and if it undermines the reliability of the evidence that led to the conviction or validates a claim of innocence then the conviction must be quashed by the CCRC;
This requires the CCRC to also have its own authority to overturn wrongful convictions and not have to send cases that it finds are wrongful convictions backwards to the Court of Appeal which previously refused to overturn the alleged wrongful conviction.
If it is not possible to reform the CCRC in these ways, Empowering the Innocent (ETI) calls for the replacement of the CCRC with a new body with these functions that is fit for the purpose of assisting the innocent to overturn their convictions.
It is simply unjust to have a criminal justice system in which innocent victims can be, and are, routinely wrongly convicted and imprisoned and do nothing to rectify the failures of the CCRC in dealing with applicants claiming factual innocence.
It is not acceptable for the CCRC and its defenders to argue that the CCRC is merely working within its governing statutes and there is nothing that can be done about it.
Finally, when thinking about alleged wrongful convictions, it must always be remembered that when innocent victims are wrongly convicted that the guilty perpetrators of those crimes remain at liberty with the potential and reality (as shown in research) to commit further crimes. This adds an important public protection dimension to the work of Empowering the Innocent (ETI).
In addition to making the CCRC a body more adequate in assisting the innocent, these reforms would also potentially save millions of pounds of taxpayers’ money by shortening the length of prison time for those wrongly incarcerated (Naughton and Tan 2013).
The Conviction of Robin Garbutt
Amongst the growing list of cases that have been refused a referral by the CCRC, despite serious doubts regarding the evidence that led to conviction, is the case of Robin Garbutt.
Robin Garbutt and his wife Diana Garbutt owned and ran a post office and shop in Melsonby, North Yorkshire. The couple’s living quarters were situated above and behind the shop itself, with a door from the shop leading to the living premises. At some point during the night of the 22nd/23rd March 2010, Diana Garbutt was killed as a result of blows to the head.
At Teesside Crown Court in April 2011, Mr Garbutt was charged with the murder of his wife Diana. He was convicted by a majority verdict of 10:2 and sentenced to a statutory life sentence with a minimum tariff of 20 years, which he is currently serving at HMP Frankland.
Mr Garbutt’s account of events
Mr. Garbutt testified at trial that his wife’s murder was the aftermath of an armed robbery having taken place at the post office. According to Mr. Garbutt, on the night of the 22nd, he and Diana ate fish and chips and watched a DVD before he went to bed between 9.00pm and 10.00pm. Diana stayed up to do the books and to prepare the business VAT Returns for the post office and shop.
At the usual time of around 4.00am Mr Garbutt went down to the shop and prepared to open, at which time Diana was in bed and unharmed. He began serving customers at 5.00am. At around 6.10 am, Mr Garbutt heard two bumps from the living part of the property and then heard a voice call “Robin”, to which he called back his wife’s name. Mr Garbutt was serving a customer at the time and did not think Diana was in any distress or need of help. At around 6.45am, Mr Garbutt was serving another customer, Mr Hird, who said in evidence that he heard a woman’s voice calling “Robin” which seemed to come from the living premise of the property, and again Mr Garbutt calling back his wife’s name.
At about 8.30 am, M. Garbutt opened the timed lock on the post office safe by keying in the code on its keypad. His account was that he turned to see a man in a balaclava holding a gun. The man said “Don’t do anything stupid. We’ve got your wife.” He was told to lock the shop’s front door and turn out the light. He stated that he filled a bag with money from the post office safe, a total of around £16,000, and from the shop till, and that the robber then left by the back door.
Mr Garbutt’s account was that he then ran upstairs and found Diana unconscious in the bed in the spare room, where the couple had been sleeping temporarily. He called 999 at 8.37am and then ran to the house opposite the back of the post office, which was occupied by David and Pauline Dye. He returned to his own property with Pauline Dye, and they remained with Diana until the paramedics arrived at 8.45am.
Mr Garbutt had reported a previous robbery on the post office in the spring of 2009. On that occasion, he stated, Diana had been upstairs, and two men had come into the post office, one armed with a gun.
The Prosecution’s argument
This section will outline the main planks of the prosecution’s case, and comment where these are contested.
Time of Death
The prosecution case at trial was that Diana Garbutt was likely to have died several hours before 8.30am when the robbery allegedly took place. This was based on the following:
1. The paramedics who attended the shop very shortly after Mr Garbutt called 999 noted hypostasis and rigor mortis on Diana’s body. While neither was considered to be a determinative indication of exact time of death, the presence of both indicated that death had occurred several hours before 8.30am.
2. The prosecution pathologist, Dr Hamilton, found that due to the presence of hypostasis and rigor mortis, death could not have occurred immediately before the discovery of the body but, rather, at least one hour prior and more likely several hours.
3. Dr Miller examined the partially digested contents of Diana’s stomach - based on the assumption that Diana had consumed a final meal of fish and chips on the evening before her death. She 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 finding on the amount of undigested food content of the stomach and allowing for uncertainties and variables inherent in analysis by this method, Dr Miller suggested that Mrs Garbutt had died at some point six to eight hours after consuming the fish and chips. She found a window of opportunity for the attack to be as much as eight hours, but the volume of food in Diana’s stomach suggested that digestion had stopped about four to six hours after consumption- 2.30am to 4.30am.
Katherine Googe
The witness stated that on the night before the murder, she had been walking across Melsonby Village Green at about 10.00pm. She stated that she saw Mr Garbutt and called out to him, but he made no answer. He was carrying a dark holdall. Mr Garbutt denied that it was him whom Mrs Googe had seen.
Marital Difficulties
Evidence was called from John Illingworth, of him having had a drunken sexual encounter with Diana in 2008, from Craig Hall, who said that Diana had confided that her marriage was sexless, and Kevin Heapey, who was married to Diana’s cousin, who described a “developing relationship” between the two of them ending up in them kissing at a party. A laptop taken from the Garbutts’ home revealed that Diana had a site on ‘Badoo’, an internet dating site, and that she had accessed this on the day before her death.
Mr Garbutt accepted that there had been difficulties in the marriage, although he did not know about the ‘Badoo’ site, but he denied that they were as serious as suggested by the prosecution.
The Post Office Alarm
It was agreed at trial that the post office premises had a panic alarm installed with four panic buttons. Mr Garbutt accepted that, when confronted by the robber on the morning of 23rd March, he did not think to press any of the buttons but, also, that he did not know the system was in fact inaudible in the shop when activated. The prosecution called two engineers, Brown and Findlay, who stated that Mr Garbutt was in fact aware that the system was silent.
The murder weapon
On 25th March 2010, PC Darren Thompson and PC Greg Davies were carrying out searches near the post office. They searched the nearby premises of Nixon’s garage and on a wall, seemingly placed across the top, PC Davies found a metal bar. It was not disputed at trial that this bar was the murder weapon.
The prosecution expert, Sara Grey, swabbed the bar and the swabs were further examined by Dr Klaentshi. DNA samples matching Diana Garbutt and PC Thompson, as well as low level background traces which did not allow for meaningful comparison, were found. Another prosecution expert, Valerie Whitford, compared the rust particles that had been found in Diana’s hair and in the room where her body was found, with rust on the bar and found them consistent visually with the same chemical composition.
The prosecution asserted that Mr Garbutt had placed the bar on the wall after killing Diana. Their case was that it was unlikely that a fleeing robber would have had any time or any reason to do this. News footage of the street the day after the murder appears to show no sign of the metal bar lying across the wall, casting doubt on the claim that Garbutt had hidden it there the night before.
There was no forensic evidence linking Mr Garbutt to the crime.
The absence of eyewitnesses to the robbery
The prosecution were able to point to the evidence of a number of civilian witnesses who were near to the shop at the time of the robbery but who saw nothing suspicious. Pauline Dye who, with her husband David, lived across a small back yard at the rear of the post office, confirmed that from 8.30am when her husband left for work, and 8.43am when Mr Garbutt knocked on her door, she was in and out of her house hanging washing in the yard which faced the back door of the post office. She did not see anyone enter or leave the post office.
However, there were a number of witnesses who gave reports to police of witnessing erratic driving by at least one car in the village on the morning of the murder, and it can be taken from the unused materials that more than one witness observed something he or she considered suspicious nearby that day. The defence were also able to point to the fact that a number of customers came into the shop on the morning of the murder and did not observe anything unusual in Mr Garbutt’s manner.
The post office accounts and the Garbutt’s finances
The prosecution relied heavily on evidence that suggested that Mr Garbutt had been stealing money from the post office business, and that he and Diana were in personal and business financial difficulties. Mr Garbutt and Diana had booked a holiday to the United States to take place shortly after Diana’s death. It was suggested that if they had taken this holiday then a relief postmaster would have taken over the running of the post office whilst they were abroad who might have discovered that Mr Garbutt had been stealing from the post office business. Therefore, it was suggested that Mr Garbutt needed to prevent the holiday from occurring. The prosecution also alternatively suggested that Diana might have discovered Mr Garbutt’s thefts on the night she died and that this led to a violent confrontation.
The prosecution relied on their witness Teresa Bentley, an investigator from North Yorkshire Police Financial Investigation Unit, who asserted that:
1. Mr Garbutt’s credit cards had balances outstanding of nearly £32,000 respectively and that his HSBC count was overdrawn. Jointly, the Garbutt’s had debts of £44,120 which allegedly represented a significant increase since 2006, when their joints debts had been £12,647.
2. The couple’s assets were limited, and, in any event, not easily realisable.
3. The Garbutts relied heavily on credit cards to buy stock for the shop, and therefore to keep the business afloat. Mr Garbutt’s credit card balances were never cleared. In addition, cash payments were made to credit card accounts, which could not be accounted for on an analysis of the cash takings from the shop.
The prosecution alleged that there had been ongoing thefts of cash from the takings over a period of time. There appears to have been no direct evidence that these alleged thefts had been committed by Mr Garbutt as opposed to by Diana, or if by Mr Garbutt without Diana’s knowledge. The prosecution asserted that the overnight declarations of cash by the post office were false, that he had requested suspicious sums of cash from the post office and failed to comply with requests to return cash and that he had contrived to avoid any outside audit of the post office accounts over the previous two years. This was taken from evidence given by Andrew Keighley (Post Office Retail Cash Manager) and Paul Whitaker (Post Office Investigator), who analysed the cash held at the post office overnight and cash requests made by the Garbutts.
In evidence, Mr Garbutt denied any theft from the post office. He maintained that the overnight cash declarations were correct, denied that he has contrived to avoid any audit, and explained the shortfall in cash in the safe identified in the audit carried out following Diana’s death by the fact that the money had been taken in the robbery that morning.
Police failings?
New experts instructed by the defence team concluded that the DNA of PC Thompson may well be among the mixed samples found in the rust on the pillow of the bed where Diana was found. As the officer was not on duty on the day of Diana’s death, the findings suggest that at best, evidence has seriously been contaminated.
In addition, scene-of-crime photographs picture a clearly visible clump of hair that does not appear to be either Diana or Robin Garbutt’s, however, this was lost. The prosecution claimed at trial that it did not matter as there had been no sign of a struggle, despite a bedside lamp, mirror and pictured being knocked over.
A balaclava and handgun were found and discarded 16 miles away but were never tested for any link to the crime.
Applications to the CCRC
First Application
An application to the CCRC was submitted by Mr Garbutt’s then solicitors, Bindmans LLP, on the 11th March 2015. The application relied upon the following:
1) Fresh evidence as to the time of death, which casts doubt on this aspect of the prosecution’s case;
2) The evidence of David Andrews, which undermines the alleged sighting of Mr Garbutt by Katherine Goodge on the night before the murder;
3) A further analysis of the prosecution’s assertions relating to the financial evidence in this case. It was submitted that the evidence called on the Garbutts’ personal and business finances was unsatisfactory. Particularly, the CCRC was asked to obtain financial evidence, in the form of invoices and cash books, which, it appears, was not made available to the defence before trial.
Fresh evidence relating to time of death
Time of death was critical to the prosecution case, as they argued death had occurred some hours before the robbery, which was claimed by Robin Garbutt to have taken place just after 8.30am. The prosecution alleged that death had occurred some time before this, countering Mr Garbutt’s claim of Diana being alive when he got up at 4.00am.
The prosecution expert, Dr Jennifer Miller, gave evidence about the time of death, as previously discussed, which was central to the prosecution case. Those acting for Mr Garbutt instructed Dr David Rouse to prepare a report that specifically comments on Dr Miller’s findings, and is relied on in support of this application. He concluded that 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. Therefore, he concludes that time of death may have been substantially later. It was submitted that the findings of Dr Rouse alone raise a compelling doubt about the safety of Mr Garbutt’s conviction.
Those representing Mr Garbutt also obtained transcripts of the evidence given by Dr Miller in another murder trial, R-v-Tabak (Bristol Crown Court 2011). In Tabak, Dr Miller gave evidence regarding a victim who had eaten half a portion of ‘cheesy chips’ with alcohol. The stomach contents examined consisted of 125ml of semi solid food. She found that it was very likely that digestion, due to sudden trauma or death, had occurred within eight to ten hours of the last meal. The stomach contents of Diana Garbutt also had a volume of 125ml, however, 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, the difference in findings as to time of death is stark.
The facts in these cases are not identical, in terms of the kind of food consumed, the amount, and the consumption of alcohol. However, 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. It is also possible that the victim in the Tabak case had consumed a meal of less volume. Furthermore, on Mr Garbutt’s account, it would have been usual for Diana to drink alcohol with her last meal, with an open bottle of red wine with at least one glass having been poured in the premises on the morning of the murder. It was submitted that the evidence of Dr Rouse rendered the conviction unsafe.
David Andrews
At trial, the prosecution relied on Katherine Goodge, who stated that she has seen Mr Garbutt walking on the Melonsby village green, carrying a bag, on the night before the murder. Although it is not clear how the alleged sighting actually incriminated Mr Garbutt, it is posed that the prosecution, and likely the jury placed considerable emphasis on this piece of evidence.
A Mr David Andrews gave statements to Mr Garbutt’s defence lawyers that he was walking on the green at the same time that Mrs Goodge stated that she saw Mr Garbutt, and at one point picked up his dog. He confirmed that he bore a physical resemblance to Mr Garbutt.
Mr Andrews was not called by the defence at the trial, and was in France at the time. Mr Garbutt accepts that a decision was made, during the trial, not to call him. However, it was submitted that Mr Andrews’ evidence is both credible and significant.
Financial Evidence
The prosecution case at trial relied heavily on the twin assertions that:
The Garbutts were struggling financially, both personally and in terms of their business; and,
Mr Garbutt was stealing cash from the post office to keep the shop business and their joint lifestyle afloat.
The Post Office
The prosecution relied on the evidence of post office investigators who stated that the overnight cash declarations by the Melonsby post office were suspicious and indicative of fraud. This was challenged by the defence.
The CCRC was referred to the Post Office press release and accompanying report dated 8th July 2013, and BBC report dated 9th September 2014. It is now in the public domain that the post office accounting software Horizon, which was installed at the Garbutt’s post office, is suspected by many sub-post masters to be faulty. Despite initial post office reluctance to acknowledge this, it was submitted that as a result of public and parliamentary concern that the post office may have wrongly accused sub post masters of theft, the post office appointed a company ‘Second Sight’ to investigate the alleged failings in the Horizon system. While their investigation was ongoing, at the very least there remained concerns as to whether the system operated accurately at all times.
The Shop
The prosecution’s evidence that the Garbutts were struggling to keep their personal finances and the shop business healthy, was also challenged. Those representing Mr Garbutt wished to instruct forensic accountant, Noel Lindsey, to review the documentation in this case, and the evidence relating to the shop finances in particular.
The investigator from North Yorkshire Police, Teresa Bentley, in preparing her report which formed the basis of the prosecution case on the issue at trial, referred to what appear to be the shop cash books, and ring binders containing shop invoices and documents. She relied on the contents of this material to reach her conclusions that the Garbutts were in financial difficulties, and in particular that the shop was not profitable and was being kept afloat by injections of cash into credit card accounts. It was submitted as a concern that these documents do not appear to have been disclosed to the defence prior to trial. While Mr Garbutt challenged the figures, it is difficult to establish how Bentley reached her conclusion without access to the material. Those representing Mr Garbutt wished to access this material and to provide it to their instructed forensic accountant for review. The position at the time of the application was that the police would not supply any further material to those representing Mr Garbutt unless requested to by the Commission.
In summary, it was submitted in the first application to the CCRC that these aspects of the prosecution case be re-investigated. If the Horizon software was not completely reliable, then the conviction is potentially unsafe. In addition, it was submitted that access to the material on the shop finances to allow it to be forensically examined was essential.
Further background
The first application to the CCRC also highlighted some of the more obvious weaknesses and gaps in the prosecution case at trial to add context, some of which have already been noted in this article.
1) The prosecution were never able to identify with confidence a specific motive to murder his wife. The evidence of marital difficulty was weak, speculative, and hardly a strong motive for violent murder. Alternatively, if Mr Garbutt had been concerned that the thefts he had allegedly committed might be discovered by the post office, or had been discovered by his wife, killing her would not have been an effective way to cover up those thefts. If he was concerned that a relief postmaster would discover the thefts while the couple were away on holiday, it would have been simpler to make an excuse and cancel the holiday. In short, it was posed that even if it could be established beyond doubt that Mr Garbutt had been stealing from the post office, it would still not provide a convincing motive for murder.
2) There was no forensic evidence to link Mr Garbutt to the attack on Diana. In particular, there was no DNA or fingerprint evidence to suggest that he had been in contact with the bar which the prosecution identified as the murder weapon.
3) There was no blood spatter on Mr Garbutt or his clothing. The prosecution case was that the lack of blood spatter at the scene, and the nature of the injuries inflicted on Diana, meant that it could not be expected that there would be blood transference to Diana’s assailant. There was limited blood splatter found on one of the two bedside lamps and on the pillow next to Diana.
4) There were a number of concerns regarding the thoroughness of the police forensic evidence and the examination of the crime scene. Prosecution witness Mark Bates accepted that the bedside mirror and the carpet next to the bed were not examined for blood spatter at the time. It also appears that the two bedside lamps were put in a wardrobe by police and only tested some time after the murder. In addition, the police found a clump of hair on the bed where Diana was found. This was subsequently lost. As there is no evidence that there was a struggle during the course of the killing, it is not clear where this came from.
5) The independent witness, Mr Hird, stated in evidence that he had heard a voice which, unless he was lying or mistaken, must have been Diana’s, several hours after the prosecution alleged, she had been killed.
6) Several witnesses were served by Mr Garbutt in the shop on the morning of the 23rd March. None of them suggested that his behaviour was anything other than normal.
Decision by CCRC not to refer
The application discussed above was refused by the CCRC in a Statement of Reasons in March 2016. The CCRC decided that there were no grounds to refer Mr Garbutt’s conviction to the Court of Appeal, as there was no real possibility that the conviction would be overturned.
CCRC’s analysis and reasons for rejecting Robin Garbutt’s first application
Time of Death
The CCRC responded that in comparing the cases of Mrs Garbutt and Tabak, it is possible one woman consumed more than the other, and therefore it could not be accepted that a similar stomach volume being found in each of the deceased provides any indication that digestion must have been ongoing for a similar period of time.
In addition, in considering Dr Rouse’s report, which made it a real possibility that Mrs Garbutt did not die until later in the morning, it was questioned whether or not this undermined the safety of the conviction. The CCRC responded that Mr Garbutt stated in evidence that he unloaded items from his car between 4.30 and 6.30, making about 10 trips in all. The CCRC concluded that this meant he was able to leave the shop untended on several occasions.
Moreover, the CCRC contended that while the prosecution case was that she had been deceased for some hours by the time she was found, the Full Court noted the fact that a robber must have been at the shop for ‘at least an hour’ before he revealed himself to Mr Garbutt. While they went on to say that the evidence indicated he had ‘probably’ been there for several hours, it was not accepted that the prosecution evidence on the time of death was a major factor in rejecting Mr Garbutt’s evidence, as it appears the Court concluded that the lapse of even one hour between death and the robbery raised questions in their minds. On these grounds, it was decided that even if Mrs Garbutt was murdered some hours later than the 4.30 indicated by Dr Miller as the latest possible time, this would not undermine the safety of the conviction.
Furthermore, the CCRC stated that the Court of Appeal expects any expert witnesses to be called at the trial rather than permitting further experts to give evidence on the same point at a later stage. For these reasons, the CCRC took the view that it was unlikely Dr Rouse’s evidence would be seen as either admissible or as affording a ground for overturning Mr Garbutt’s conviction.
David Andrews
The CCRC responded that the Court of Appeal stated that they had made a number of assumptions in favour of the defendant, including the fact that the evidence of the sighting of Mr Garbutt on the village green could be an innocent mistake. In light of the fact the Court had already found that if Mr Garbutt’s version of events in regard was true, it was not relevant to the safety of his conviction, the CCRC found there to be no real possibility that any further investigation would assist.
Furthermore, the CCRC noted that as Mr Andrews’ ability to give evidence on this point was known prior to both trial and appeal, it is not new and cannot form the basis of a referral.
Financial Evidence
The CCRC responded that it had been stated that errors in the Horizon system had led to unexplained losses in the branches of some Sub-Postmasters, and resultantly their prosecution for either false accounting or for theft. In Mr Garbutt’s case, the CCRC stated he had the insurmountable problem that he does not accept any money was missing. It was contended that if the Melonsby branch was suffering unexplained losses, the information was not evident from the Post Office accounts, which could only have happened if the accounts had been falsified. In light of the fact that the only money or stock found to be missing after the murder was the money that Mr Garbutt said was taken from the safe by the robber, any concealment of losses could only have been done by inflation of the ‘cash on hand’ amounts. If Mr Garbutt was then saying there were Horizon errors, he would have been effectively stating that he and his wife owed money to the Post Office, which one or both of them had committed a criminal offence to conceal. It was the understanding of the CCRC that this was not what Mr Garbutt was saying, and that he was rather maintaining his trial position that the full amount of money reflected in the accounts was in the safe and was stolen.
Therefore, the CCRC found there to be no real possibility of the Court of Appeal finding submissions relating to Horizon making the conviction unsafe, as it would replace the motive of concealment of theft with another, concealment of losses and forged accounts.
In order for the CCRC to obtain the requested documents, the documents must be necessary for the review of Mr Garbutt’s application - in the view of the CCRC. It was the view of the CCRC that the Court of Appeal had explicitly stated that the decision of the jury that there had not been a robbery was not dependent on the financial evidence and there was, therefore, no real possibility that further arguments relating to the financial situation would lead to an unsafe conviction being found. On these grounds, the CCRC saw no need to obtain the requested documents.
Mr Garbutt had the opportunity to make further comments in response to the decision before it became final.
Further Submissions
Those representing Mr Garbutt replied with further submissions in the hope the CCRC would re-consider their decision, in particular urging them to carefully re-consider their reasoning in so far as the financial ‘evidence’ was concerned. It was stated that it was inappropriate to on one hand rely on the financial evidence where it could be said to damage the case for Robin Garbutt, yet on the other hand when other aspects relevant to that evidence might assist him, to conclude that the financial evidence was in effect irrelevant.
It was submitted that if the CCRC was to proceed on the basis that the financial irregularities in the Post Office is irrelevant because there was other evidence that the ‘robbery’ never in fact took place, then the approach must be rigorous and the then entirety of the financial evidence must be stripped out from the reasoning. It was posed that would be left is a very tenuous case, not least because the motive would be gone.
It was submitted that doubts regarding the accuracy of the Horizon system make the ‘financial evidence’ troubling. If the figures given at the time were unreliable, that is the clearest indication that the ‘financial motive’ cannot bear scrutiny. Mr Garbutt wished to emphasise that if the historic pattern of cash deliveries to the Post Office were considered, the last year of he ran the Post Office would show the cash deliveries were in fact down. That is hardly consistent with stealing from the Post Office and would have assisted his defence.
The CCRC were invited to remind themselves of the trial Judge’s sentencing remarks where he outlined various findings to the effect that the defendant had been ‘stealing cash from the Post Office Safe’, and that his ‘thefts would have been exposed’. It was submitted that access to the requested material may have been highly damaging to the conclusions reached by the Judge.
It was submitted that the CCRC’s decision was flawed and unreasonable, not just on the facts but also because of the failed application of the appropriate test as regards to those aspects of the case that relate to further evidence that has been discovered since the trial. For the purposes of an appeal, or an application for leave to appeal, the Court of Appeal may, if they think it is necessary or expedient in the interests of justice, receive any evidence which was not adduced in the proceedings from which the appeal lies. The power to admit evidence on appeal that was available at the time of the trial is discretionary, and the case law clearly establishes that even if there is not a ‘reasonable explanation’ for failing to adduce the evidence at trial, this is not determinative of the issue and the discretion still remains to admit the evidence where a conviction may be unsafe.
It was submitted that the evidence of Dr Rouse is clearly credible and in itself could provide a basis for the Court to quash the conviction and order a retrial. Therefore, it would be wrong for the CCRC to refuse to refer the case back to the Court of Appeal, when the vagaries of time and death evidence had never been considered, and the expert evidence that had become available casts grave doubt on the evidence adduced by the prosecution at trial.
Those representing Mr Garbutt acknowledged that whilst it was of course the case that a court could not be certain as to how much either of the two deceased ate, the evidence does at least tend to suggest that Miss Yeates (the victim in Tabak) consumed less food than Mrs Garbutt.
Further, it was emphasised that the significance of the time of death evidence was obvious from the summing up, but was also touched upon by the trial Judge in his sentencing remarks when he observed:
‘He must have waited until Diana Garbutt was asleep in bed, and in the early hours of the morning crept silently into her bedroom… Then, still in the dead of night, and long before the shop opened for papers at about half past four, he must have left the house, crossed the road and put the bar on top of the wall of Nixon’s garage opposite.’
From these remarks, it is obvious that the learned trial Judge, having heard the evidence, concluded that the time of death was ‘long before’ 4.30am. The evidence now available demonstrates that there is support for the time of death being as late as in the region of 6.30am. It was also highlighted that the trial Judge made the point in the summing up that the till roll shows that Mr Garbutt must have been in the shop continuously from 04.45am and would not have had the opportunity to commit the crime after 06.45am - as proved by the till roll.
In addition, the judgement of the Court of Appeal relied upon the evidence of the time of death, considering it to be central, when upholding the conviction ‘it is the evidence of the timing of death and its impact on what must have happened which leads us to our conclusion’.
It was concluded that the proper test was whether the new evidence may afford a ground to allow the appeal, and if it might then it must be necessary or expedient in the interests of justice to admit the evidence. Therefore, it was submitted that it was clear that this was a case that should be referred back to the Court of Appeal.
Refusal
Having considered both the initial and further comments, the CCRC made a final decision not to refer the conviction to the Court of Appeal in a Statement of Reasons dated 16th June 2016.
Financial Information
The CCRC reiterated their view from their Provisional Statement of Reasons, that there is no real possibility that an argument relating to Mr Garbutt’s financial situation would lead to the Court of Appeal finding his conviction to be unsafe.
The CCRC indicated in the PSOR that obtaining further financial documents was not necessary for the review of Mr Garbutt’s application, and then went on to confirm that this was due to the view of the CCRC that the financial evidence is irrelevant. As it was deemed that financial enquiries are not required in the case of Mr Garbutt, the CCRC was unable to provide the documents to the defence.
Time of Death Evidence
The view of the CCRC remained as detailed in the PSOR, namely that DR Rouse’s report does not create a real possibility that the Court of Appeal would find Mr Garbutt’s conviction to be unsafe.
Judicial Review
On behalf of Mr Garbutt, an application for judicial review of this decision was made, and permission was granted. In response to the Judicial Review Pre-Action Protocol Letter, the CCRC asserted that its decision not to refer the Claimant’s conviction was an entirely reasonable and rational decision to make, and was in keeping with the Court of Appeal’s judgement. The Commission rejected that its SOR contained fundamental errors, irrationality, or that its decision not to refer was unlawful in any way and asserted that if proceedings were commenced the Commission would vigorously defend them.
The proceedings were settled when the CCRC agreed to concede on limited grounds. The CCRC were to address areas where it had erred, and re-determine the decision based on the case as a whole. They established that there was no obligation to reconsider issues that had been fully considered and where the Commission stood by its judgement and reasoning. In addition, it was stated that once the case was re-opened, the Commission would be amenable to accepting any new submissions. Whether that would have an impact on previous issues considered to warrant further investigation would be a matter for the new Commissioner to determine, and any new decision would take full account of all submissions made.
Fresh Application (Official First)
The fresh application, which counted officially as the first application, was submitted on the 25th January 2017. On the 19th April 2017, the CCRC gave its Statement of Reasons for deciding not to refer Mr Garbutt’s conviction and invited further submissions before reaching its final decision.
In their further submissions, those representing Mr Garbutt made the following observations from the outset. They stated that the new decision was required to be and undertaken to be ‘fresh’, following a concession that the previous decision should be withdrawn. Despite that, the decision takes its summary of facts from the earlier, withdrawn decision. An explanation was requested as to why the decision-maker had access to the earlier decision, had relied on part of it, and how, having seen that earlier decision, his decision-making was protected from contamination by the earlier flawed analysis. The same case worker was also allocated to this decision as to the earlier, withdrawn decision, again calling into question the decision being ‘fresh’.
In addition, following the reasoning of the Statement of Reasons, only death immediately prior to discovery of the body would mean that the conviction was unsafe. This was argued to be an unfair reading of the Court of Appeal judgement and as impossible to square with the way in which the prosecution put their case, the way in which the judge left the case to the jury, and their question during retirement. Furthermore, it was contended not to be consistent with the judge’s description in his sentencing remarks that the murder occurred ‘in the early hours of the morning... long before the shop opened for papers at about half past 4’. The CCRC contends that death after 6.45am would still render the conviction safe. This was claimed to be perverse, as it was the defence case that the murder occurred after 6.45am. To suggest that even if the defence case was accepted, the conviction is safe, was posed to be untenable.
The following further submissions were also made.
Time of death
The CCRC now accepts that time of death evidence is critical to the safety of the conviction. This is supported by the fact that the jury asked only a single question during their retirement, which was to request a copy of Mr Hird’s statement in which he said he heard a female voice at about 06.45 am.
In light of that being the jury’s only one question, and taking a fair reading of the Court of Appeal judgement, the CCRC’s conclusions were argued to be unsustainable. It was submitted that the one-hour minimum was not the crucial plank of the time of death evidence that led to the rejection of the appeal. Rather, it was Dr Miller’s time of death evidence that the time of death was hours before paramedics attended that underpinned the Court’s decision. It was submitted as unfair and improperly selective for the CCRC to alight on the phrase ‘at least an hour before’ in isolation and interpret it to mean time of death an hour before discovery still renders the conviction safe.
It was argued it was only because time of death was limited by Dr Miller’s evidence to a period so much earlier than a time consistent with the defence case that the Court of appeal considered the conviction to be safe. Time of death between 06.45 am and 07.45am is fundamentally different from death occurring between 2.30am and 4.30 am and would have entirely different ramifications on the defence case and on the Court of Appeal’s reasoning. In summary, it was contended that a conviction based on death after 06.45am, as the CCRC seems to consider would be acceptable, must be unsafe and therefore a referral to the COA should be made.
Financial evidence
The CCRC’s Statement of Reasons rejects the submission that the flaws now identified with the Post Office’s Horizon software system bear on the financial evidence given in Mr Garbutt’s trial because:
‘The prosecution were not relying on Horizon’s reporting of the cash holdings’ and Mr Garbutt’s ‘trial defence did not rely on a missing sum of money and any problems with the Horizon system (is such issues do exist) could not be relevant to Mr Garbutt’s financial position.’
The CCRC posed that because Mr Garbutt was contending that the robbers had stolen cash from the safe, the prior financial evidence was irrelevant. However, it was submitted that that analysis completely failed to take into account that the prosecution case was that Mr Garbutt was stealing from the Post Office, and that discovery of the theft by Mrs Garbutt was the motive for murder.
The Horizon evidence is clearly relevant to whether, prior to the night of the murder, cash had in fact gone missing, which in turn is relevant to the prosecution case on motive.
Refusal (Official First)
The result of the ‘fresh’ review was that it was refused in a second Statement of Reasons dated 7th July 2021.
Time of Death
The CCRC stated that the review had been conducted from a starting point of Dr Rouse’s evidence being accurate. If Dr Rouse’s report were to raise a real possibility the Court of Appeal would find Mr Garbutt’s conviction to be unsafe, then the CCRC said it would seek independent expert advice to confirm or rebut the content of this report.
It was also accepted by the CCRC that, as suggested by Mr Garbutt’s solicitors, the Court of Appeal Judgement make it clear that it was the time of death evidence that was determinative of the appeal.
The CCRC contended that it was unable to accept, as suggested by Mr Garbutt, that once Dr Millers evidence was disapproved, 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 Millers 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. Rather, the CCRC contended that even if the stomach content evidence is discredited, this does not affect the evidence of the pathologists. They contended that the fresh evidence submitted by Mr Garbutt indicates that the stomach contents cannot be relied upon, however, he has made no attempt to address the evidence of the two pathologists, Dr Hamilton and Dr Cooper. It was suggested by Mr Garbutt that the evidence of the pathologists was based on hypostasis and that Dr Hamilton had stated it was ‘useless for any estimation of the time since death’. The CCRC countered that Dr Hamilton has said that the ‘extent of hypostasis present at the time that the paramedics saw Diana Garbutt was not compatible with someone who had just died’, and that while an estimation of the time since death could not be determined from hypostasis, it could be used to determine whether someone was freshly deceased.
In addition, it was posed by the CCRC that Dr Hamilton gave evidence that he had taken into consideration body temperature and rigor mortis as well as hypostasis in setting a likely time of death and that his expert opinion was that Diana Garbutt had not died shortly before she was found, but rather had been deceased for at least an hour and probably several hours by that time.
It was 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 that the Court of Appeal would find Mr Garbutt’s conviction to be unsafe based on the report of Dr Rouse.
Financial Evidence
The CCRC submitted that it had been suggested by Mr Garbutt that the financial evidence used in his trial relied on Horizon’s reporting of the cash holdings at the Melonsby branch office, which had been claimed to have underlying faults which incorrectly show money to be missing. The CCRC contended that the prosecution were not relying on Horizon’s reporting of the cash holdings, but rather on signed accounts from either Mr or Mrs Garbutt in which it was confirmed the Horizon figures were accurate.
Mr Garbutt stated throughout the trial that the sum of £16,000 was in the safe until it was removed by the robbers. Therefore, his trial defence did not rely on a missing sum of money, and any underlying problems with the Horizon system, if they were to exist, would not be relevant to Mr Garbutt’s financial position, as posed by the CCRC. If Mr Garbutt was then saying that he was suffering from unexplained losses as a result of Horizon errors, it was not consistent with the monthly accounts submitted to Post Office Limited, and therefore would be accepting that either he or his wife committed the criminal offence of false accounting. It was the view of the CCRC that even if the money was ‘lost’ to supposed Horizon errors rather than stolen, the criminal offence that must have been committed to cover up such losses and the fact that the missing money was owed to POL would provide a motive for false robbery very similar to that put forward by the prosecution at trial.
Consequently, it was the view of the CCRC that submissions relating to Horizon do not amount to ‘fresh evidence’ in relation to the financial position of Mr and Mrs Garbutt. In any event, it was also the view of the CCRC that the Court of Appeal had found that the decision of the jury that there had not been a robbery was not dependent on the financial evidence. Therefore, they saw no real possibility that any further financial evidence would lead to the Court of Appeal finding Mr Garbutt’s conviction to be unsafe.
It was the view of the CCRC that any errors made or concerns regarding the thoroughness of the police investigation, and the lack of blood splatter on Mr Garbutt did not by themselves raise a real possibility that the Court of Appeal would overturn Mr Garbutt’s conviction.
Further Analysis and Reasons
The CCRC submitted that it was agreed that Mr Garbutt’s case would be re-opened and reconsidered by a Commissioner who had no prior dealings with the case, however, they contended that it was never suggested by the CCRC that the new Commissioner would not have access to the previous review, nor was this ever requested by Mr Garbutt’s representatives.
It was submitted that as agreed, the relevant issues have been considered by a Commissioner who has had no prior involvement with the case. The CCRC challenged that he ‘relied on part of the earlier decision’ as suggested, but rather, the facts of the original trial and appeal had been copied from the previous SOR to the current document for reasons of efficiency. The CCRC noted that Mr Garbutt’s representatives gave no indication in the course of the first review that these facts were disputed, and no indication was given in the course of the review that his position had altered.
It was posed that the Case Review Manager had no involvement in the making of the decision and therefore it was not accepted by the CCRC that the review being allocated to the same person could affect the decision-making process.
Time of Death Evidence
The CCRC did not accept that it was only the evidence of Dr Miller that supported the conclusion of ‘several hours’ - even with Dr Miller’s evidence removed, they said that there remains pathology evidence that Mrs Garbutt had probably been dead for one or some hours by 08.30am.
The CCRC noted that it had been suggested by those representing Mr Garbutt that if death had occurred between 06.30am and 07.45am, it could not be said that the conviction was safe as the Court of Appeal’s key query (‘why would the robbers lie in wait for hours before the robbery?’) would no longer arise. The CCRC does not accept this as correct. They submitted that even if there was evidence that the murder could only have occurred after 06.45am (and the CCRC does not accept that this is the case), the meaning behind the query would still be relevant and unanswered. It was submitted that the envisaged scenario of the Court of Appeal based on the trial defence allowed for the presence of the robber for ‘at least an hour’. The till evidence, which was submitted to demonstrate that Mr Garbutt could not have murdered his wife after 06.45 am, is not taken into consideration, due to the previous assertion that death after 06.45 am was ‘considerably less likely’.
It was accepted by the CCRC that the Trial Judge’s sentencing remarks indicate that he had concluded that Mrs Garbutt was killed in the early hours of the morning. However, it is the view of the CCRC that the Court of Appeal Judgement makes it clear that this was not the basis on which the Court of Appeal found the conviction to be safe.
The CCRC did not find that Mr Garbutt’s conviction was based on death after 06.45 am but, rather, was of the view that even if Dr Miller’s evidence were to be removed from the case, there is no real possibility that the Court of Appeal would find Mr Garbutt’s conviction to be unsafe in light of the other evidence detailed in the Court of Appeal judgement, namely:
a. The evidence of the pathologists which meant the robber(s) must have been at the shop for at least an hour before robbing the safe.
b. The lack of any reason for a robber to go upstairs.
c. The lack of any violence offered to Mr Garbutt.
d. The taking of an iron bar to the scene despite there being doubtful need of it since the robber(s) had a gun.
e. The placing of the murder weapon on the wall, which the Court of Appeal found to be difficult to see occurring, either in the haste of flight or by leaving the premises, depositing it, and then returning.
f. The failure to use the silent alarm and the evidence given by Mr Garbutt of his lack of knowledge that the alarm was silent which was directly contradicted by the prosecution.
g. The leaving unlocked the back door by Mr Garbutt despite his warnings to his staff not to do so.
The CCRC concluded that there was no real possibility that fresh evidence relating to the time of death would lead to the Court of Appeal finding Mr Garbutt’s conviction to be unsafe.
Financial Evidence
The view of the CCRC in regard to the financial evidence remained as outlined in the SOR. The CCRC found there to be no real possibility of the Court of Appeal finding that the submissions based on the financial evidence meant Mr Garbutt’s conviction was unsafe.
Second Official Application
A second application to the CCRC was made in December 2019, and since then there have been a number of addendums. The following application is based on fresh evidence relating to Horizon and its unreliability as an accounting software package from which impeachable accounting data may be extracted and relied on in judicial proceedings. It submits that the evidence further and fatally undermines this part of the case against Mr Garbutt.
The High Court Judgement
It was submitted that the contents of the judgement were not available until it was handed down on 16th December 2019 and was, therefore, not available to Mr Garbutt’s representatives when the first application was prepared, and was certainly not available at trial. It was submitted that the High Court has concluded emphatically that Horizon had numerous substantial operating flaws, including during the period leading up to 2010 which was the period that the prosecution at Mr Garbutt’s trial alleged he had been stealing from the Post Office. The High Court had found that the Horizon system installed in individual sub-post offices could be operated remotely without the sub-postmaster ever being aware. It was contended that these findings relating to the reliability of Horizon have direct bearing on the safety of Mr Garbutt’s conviction, as is explained below.
The prosecution alleged that the Garbutts were in financial difficulties, and that the Post Office accounting evidence established that someone had been stealing cash from the post office safe or till for a period of some years. It was submitted that evidence presented was lacking in forensic clarity in several respects, yet it was this theft/fraud by Mr Garbutt that was said to be the likely motive for the murder by him of his wife.
It was suggested that the Garbutts were shortly due to take a holiday in the USA and that Mr Garbutt knew that any relief sub-postmaster who would manage the branch in their absence would carry out an immediate audit which would expose the fraud. However, it would also have been obvious to Mr Garbutt that staging an armed robbery at the would also lead to a full audit. It was submitted that the robber story, if false, did not need a murder to lend it credibility.
It is submitted that the extent to which the prosecution’s case relied on this central evidential assertion can be seen by the time spent on the evidence called to try and establish it, which involved no less than four expert witnesses, and the proportion of the summing up which was devoted to it (15 pages of the transcript).
With regards to the actual evidence supporting the assertion of theft/fraud by Mr Garbutt, the prosecution relied on the evidence of Post Office Retail Cash Manager Andrew Keighley, and the Post Office Investigator Paul Whittaker. Their findings were drawn upon by the police financial investigator, Teresa Bentley, to reach her conclusions regarding the overall state of the Garbutts’ finances. Keighley and Whittaker examined the data extracted from Horizon relating to the Melonsby Post Office’s cash declarations and cash requests. They concluded that:
i) the overnight cash declarations by the Melonsby branch, and by implication Mr Garbutt, were false, and included for example a suspicious number of £20 notes;
ii) the requests for cash remittals to the branch were suspicious. Several requests were made even though the branch should have already been holding sufficient reserves. In the months before 22nd March, whilst requests for substantial cash remittals had been made, only limited sums (coins in pouches) had been sent back;
iii) specific requests for returns of cash from the branch were not complied with; and.
iv) the Garbutts had contrived to avoid an outside audit of the branch for two years.
It was Mr Keighley who summarised the accounting evidence amounting to a ‘sustained and developing fraud’, and Mr Whittaker described the pattern of overnight cash declarations as one that he had ‘seen replicated across many Post Office Limited fraud cases in the past.’
There was no actual forensic trail in the accounts that evidenced thefts or fraud, no specific fraudulent entry or transaction. That data was drawn from Horizon and, it was submitted that it now needs to be viewed in a very different light. It was submitted that a Court knowing what is known now might well exclude this evidence and that that in itself should compel the CCRC to refer this case back to the Court of Appeal to allow submission to be made that there is no case without this section – unreliable and discredited- evidence.
The High Court judgement addresses the reliability and functionality of Horizon, over a period from around 2000. Among many issues including communication glitches and bugs, the Court found that sub-post masters might believe incorrectly, that they had correctly balanced the accounts when this was not the case. The evidence showed that it was possible for errors or defects to cause discrepancies to shortfalls relating to sub-postmasters’ branch accounts or transactions, and also to undermine the reliability of Horizon to accurately process and to record transaction as alleged by the claimants. In addition, the Judge found that the Post Office had the ability to remotely operate and manipulate Horizon in relation to individual branches in a way which was concealed from sub-post masters. It was submitted that if the Court of Appeal had had before it the material the CCRC had to consider, a different result would have been reached, and, therefore, the opportunity must be given for them to reconsider the case.
The CCRC previously held the position that any flaws do not undermine the prosecution case because that case had rested on Mr Garbutt’s own reporting of the financial position of the sub post office, not on Horizon generated data. However, it was submitted that this is an oversimplification of the role that the Horizon system played in the provenance of the accounting evidence that the prosecution relied upon.
It is correct that the evidence in Mr Garbutt’s case did not revolve around discrepancies between the Horizon balances and the cash/stock held in precisely the same way as the large number of convictions of sub-postmasters that the CCRC has now referred back to the Court of Appeal.
In his case, data generated by Horizon was used to assert a pattern of fraud and that data was purportedly extracted from declarations that the Garbutts had made. However, as has been submitted, all of the data upon which the prosecution based this central park of their case, was entered into and extracted from Horizon. Therefore, it was submitted that the test for referral to the Court of Appeal in Mr Garbutt’s case is comfortably met in the light of the High Court judgement. The Horizon generated evidence was, as has been explained, central to the prosecution case, and that evidence is now undermined.
However, in the event it is not accepted by the CCRC, it was submitted that this application cannot be rejected without further expert investigation into these issues. At the very least, it was submitted that the CCRC should exercise its power under s21 Criminal Appeals Act 1995 and instruct a computer expert and/or forensic accountant to report on the specific implications.
The CCRC was also requested to review the relevant section in the First Application relating to Miller’s evidence, in conjunction with this Application. It was submitted that this would allow the CCRC to review the submission in the Application in the context of the evidence in this case as a whole, with the Post Office accounting evidence being not the first, but the second central plank of the prosecution case that must now be considered unreliable.
Most recent status
The CCRC sent a SOR not to refer Mr Garbutt’s application but have extended the time to reply. The application is still live, however, it looks like it will also be refused.
Conclusion
To conclude, the analysis of applications to the CCRC on behalf of Robin Garbutt, coupled with the responses from the CCRC, clearly demonstrate that the CCRC does not pursue truth behind claims of innocence, but rather acts as a filter for the Court of Appeal (Criminal Division). As cited in the Statement of Reasons, the ‘real possibility test’ binds the CCRC to that CACD, preventing it from being the independent body it was intended to be. The case of Robin Garbutt is one example of why the CCRC is in need of urgent reform or replacement, as their efforts do not reflect a body that is committed to investigating claims of innocence by alleged victims of wrongful convictions from the perspective of championing truth, innocence and justice.
Neither the author, nor ETI, is on the side of the alleged factually innocent victims of wrongful conviction and/or imprisonment who ask us to highlight their cases. However, we take all claims of factual innocence seriously, in the public interest. It is important to fully investigate all claims of factual innocence - firstly, for the alleged innocent victims who may be innocent and languishing in prison, and, equally, because if the alleged innocent victim is innocent, it means that the real perpetrator is at liberty and able to commit further crimes.
Bibliography
Naughton, M. (2019) ‘Please forgive me, but I won’t be holding my breath’, The Justice Gap. https://www.thejusticegap.com/please-forgive-me-but-i-wont-be-holding-my-breath (last visited 19 July 2022).
Naughton, M. (2012) ‘The Criminal Cases Review Commission: Innocence versus safety and the integrity of the criminal justice system’, Criminal Law Quarterly, 58: 207-244.
Naughton, M. (2010) ‘Why “safety in law” may fail the innocent- the case of Neil Hurley’, The Guardian. https://www.theguardian.com/uk/2010/feb/11/neil-hurley (last visited 19 July 2022).
Naughton, M. (2009) ‘Students for justice: the Innocence Network’, The Guardian. https://www.theguardian.com/uk/2009/may/08/innocence-network (last visited 19 July 2022).
Naughton, M. (2008) ‘Factual Innocence versus Legal Guilt: The Need for a New Pair of Spectacles to view the Problem of Life-Sentenced Prisoners Maintaining Innocence’, Prison Service Journal, 177: 32-37. http://www.innocencenetwork.org.uk/wp-content/uploads/2011/11/Michael_Naughton_Factual_Innocence_Legal_Guilt_PSJ_May_2008.pdf (last visited 19 July 2022).
Naughton, M. (2006) ‘Wrongful Convictions and Innocence Projects in the UK: Help, Hope and Education’, Web Journal of Current Legal Issues, 3: http://www.innocencenetwork.org.uk/wp-content/uploads/2014/09/wrongful-convictions-innocence-project.pdf (last visited 19 July 2022).
Naughton, M. and Tan, G. (2013) ‘Report of the Symposium on the Reform of the Criminal Cases Review Commission.’, INUK. http://www.innocencenetwork.org.uk/wp-content/uploads/2013/01/CCRC-Symposium-Report.pdf
(last visited 19 July 2022).
Naughton, M and Tan, G. (2011) Claims of Innocence: An introduction to wrongful convictions and how they might be challenged, University of Bristol: Bristol. http://www.innocencenetwork.org.uk/wp-content/uploads/2012/05/Claims-of-Innocence.pdf (last visited 19 July 2022.
Sophie Hawkins volunteered with Empowering the Innocent (ETI) as a researcher between October 2019 and July 2022 when she was an undergraduate student in Sociology at the University of Bristol.
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