York St John Law Clinic urge the CCRC to refer Robin Garbutt's conviction to the Court of Appeal
The following letter was posted to Helen Pitcher, Chair, CCRC, on the 10th August. It reports on an investigation by law students at York St John University into the safety of Robin Garbutt's conviction for the murder of his wife, Diana Garbutt, under the supervision of qualified solicitors within York St John Law Clinic. Adding further weight to the call for Robin Garbutt's claim of factual innocence for the murder, it urges the CCRC to investigate this case and refer it to the Court of Appeal.
Helen Pitcher OBE
Criminal Cases Review Commission
23 Stephenson Street
9 August 2022
Dear Ms Pitcher
In the matter of Regina v Robin Garbutt
In March 2022, law students at York St John University, under the supervision of qualified solicitors within York St John Law Clinic, began investigating the safety of Robin Garbutt’s conviction in 2011 of the murder of his wife, Diana.
Following the conclusion of our work, we are writing to urge the Criminal Cases Review Commission (CCRC) to refer Robin’s case to the Court of Appeal on the basis that there is a real possibility that the conviction would not be upheld given the fresh evidence that was not considered by the convicting court.
Principal submissions have been made to the Criminal Cases Review Commission (CCRC) on behalf of Robin by his solicitor, Martin Rackstraw, of Messrs Russell Cooke requesting that the CCRC investigate this case and make a referral to the Court of Appeal. York St John Law Clinic does not act for Robin in those proceedings.
Robin and Diana Garbutt ran the village shop and Post Office in Melsonby, North Yorkshire. Diana, who acted as postmistress, was murdered there on 23 March 2010.
Robin’s case has always been that there was an armed robbery and that the robbers must have killed Diana whilst she lay in bed and Robin was working in the shop downstairs.
Robin had got up around 4:00am, leaving Diana asleep and well, to open the shop. He served more than 60 customers between opening the shop at 4:30am and 8:30am, as recorded on the tills. He was confronted by an armed robber shortly after 8:30am when, as is well-known, Post Office safes are opened by a centrally controlled system. The robber told Robin not to do anything stupid as they had his wife and instructed him to hand over money from the safe, which he did. The robber then left, and Robin ran upstairs to find Diana dead. In considerable distress, he ran for help from his neighbour and called the emergency services.
It is important to note that there had been an armed robbery at the Post Office in March 2009, just over a year before Diana’s murder.
Whilst there was no direct witness or forensic evidence to suggest that Robin was the killer, the prosecution advanced the theory that the couple was in financial difficulties and that Robin was defrauding the Post Office; the theory being, perhaps, that Diana had discovered this, and that Robin had been motivated to murder her as a result. The prosecution said that Robin had fabricated the suggestion that a further armed robbery had taken place to cover up his having murdered Diana.
An appeal to the Court of Appeal in May 2012 failed on the basis that, notwithstanding the prosecution had failed to disclose Post Office records which would have materially undermined its case that Robin had been committing a fraud, the conviction remained safe as the trial jury must have discounted Robin’s suggestion that an armed robbery had taken place independently of the financial evidence.
Messrs Russell Cooke have made substantive submissions regarding the frailties of the evidence relied upon by the prosecution relating to the now well-known faults with the Horizon accounting software system used by the Post Office. They will not be repeated here, other than to say we consider that Messrs Russell Cooke have made strong and compelling submissions that this evidence would have weighed heavily on the jury given its prevalence in the trial judge’s summing up and that it was central to the prosecution’s case as to motive.
This evidence is manifestly unsafe, and we urge the CCRC to review its position that this evidence was not central or essential to the prosecution’s case. It clearly was. The evidence now relied upon to undermine the Post Office evidence is more compelling than that which was considered by the Court of Appeal in 2012, which simply addressed the fact that records which should have been disclosed had not been.
The other evidence central to the case against Robin was that which relates to the time of Diana’s death.
The evidence from the two pathologists in the case, instructed on behalf of the prosecution and defence respectively, was that Diana had likely died at some time after 4:30am. The Home Office pathologist, Dr Hamilton, gives this conclusion at page 2 of the post-mortem report. This is crucial, because from 4:30am onwards Robin was downstairs working in the shop and his movements are effectively accounted for by records of over 60 till transactions between 4:30am and approximately 8:30am, shortly after which Diana’s body was found.
Realistically, he could not have killed Diana once the shop was opened as he would not have known when customers would enter the shop. The shop was busy during this period, and nobody reported finding the shop unattended or having to wait for Robin. Nobody reported him being flustered or anything other than his usual and friendly self.
The only evidence that Diana may have died before 4:30am came from Dr Jennifer Miller. She was not a pathologist but gave compelling evidence at trial that the contents of Diana’s stomach suggested she may have died earlier, at a time when the only conceivable killer could be Robin.
Under cross-examination, Dr Miller maintained that once death occurs the stomach effectively ‘seals’ and that food which had moved into the small intestine could not move back into the stomach. This was important, as her evidence as to time of death rested entirely on the precise contents of Diana’s stomach.
Dr Miller’s experiment was rudimentary given the evidential weight that was placed upon it. She had purchased a portion of fish & chips from the shop where Robin had purchased the couple’s meal the night before the murder and subtracted from that an amount of waste fish & chips, which it was thought were the leftovers of Diana’s meal but which may not have been, and the volume of food in her stomach to arrive at a likely time of death.
There are several significant issues with Dr Miller’s evidence. She is not a pathologist and did not perform the post-mortem. The exact timing and size of Diana’s last meal cannot be precisely known. Moreover, Dr Miller failed to take proper account of the great many variables that determine the speed of the digestion process. Professor Bernard Knight, to whose work Dr Miller referred in her evidence, argues that these include, but are not limited to, whether a person is in fear, suffering an injury or whether they have consumed alcohol. There are innumerable factors that lead to a great variation as to the time in which a stomach digests its contents.
Moreover, Dr Miller has since contradicted her own evidence. During cross-examination in the case of R v Vincent Tabak (concerning the murder of Joanna Yeates) in 2012, Dr Miller did acknowledge that there are variables which can affect the rate of digestion and undermine the accuracy of any attempt to use stomach contents as an indicator of time of death. In that particular case, it was in relation to the consumption of alcohol. Dr David Rouse, Consultant in Forensic Medicine and Pathology, has considered Dr Miller’s evidence and describes it as ‘simply not scientifically correct’; particularly in relation to Dr Miller’s testimony that it was highly likely, based on her experiment, that death occurred some time before Diana was found.
Dr Cooper, the defence pathologist, and Professor Dr Berkhard Madea, a Professor of Forensic Medicine, also make the point that bile from the small intestine can move back into the stomach following death; something which was denied by Dr Miller during cross-examination at Robin’s trial.
We understand that the CCRC has access to reports from Dr Rouse, Dr Cooper and Professor Madea and together they represent fresh and compelling evidence which was not considered at the trial.
Dr Miller’s evidence is not a safe basis on which to draw firm conclusions as to time of death. There is a real risk, given the emphasis placed on Dr Miller’s evidence at trial, that the jury will have placed more weight on it than it ought reasonably to bear.
This is the only evidence in the trial which suggested that Diana could have died before Robin had opened the shop. If this evidence is disregarded, then the evidence of both pathologists suggest Diana likely died at a time when the shop was open and Robin’s movements were accounted for by the many customers he served between that time and finding Diana’s body.
The other evidence relating to time of death was that concerning the onset of rigor mortis and hypostasis. It is said that Robin’s neighbour, who accompanied him back to the scene when he went for help upon finding Diana’s body, found her fingers to be stiffening. It is said that the paramedics noted the onset of rigor mortis and hypostasis and concluded that Diana had been dead for some time. This evidence was relied upon to undermine Robin’s case that an armed robbery had taken place.
In a report dated 3 September 2013, Dr Rouse states that the onset of rigor mortis is a temperature dependent process; it occurs more rapidly in a warm environment that a cold one, for example. Diana was lying on a warm bed when she died. He describes it as the best known but most uncertain and unreliable indicator of time of death.
Dr Rouse also points out that the evidence of the neighbour and Home Office pathologist, Dr Hamilton, contradicts the evidence of the paramedics as to the presentation of hypostatic staining. Hypostasis, or pooling of the blood at lower extremities of the body once the action of the heart has ceased, has fallen into disrepute as a determinant of time of death. In Dr Rouse’s opinion, ‘it is not possible to determine how long hypostasis takes to develop or when this fixation of hypostasis would occur’. He argues that it must be taken together with blood staining and bed compression to indicate that she had died face down and laid there for a period of time which could have been very short, even just minutes, before she was discovered. He concurs with Dr Cooper that, taking everything together, death could have occurred after 6:45am.
Now, when assessing the safety of Robin’s conviction, it is important to avoid the temptation to hypothesise or speculate about a positive alternative version of events. The task before us is to evaluate the safety of the evidence upon which Robin was convicted and to consider whether there is fresh or compelling evidence that would mean there is a real prospect that the Court of Appeal will overturn the conviction. For the reasons outlined above, we argue there clearly is.
However, in the first appeal, the Court of Appeal did fall into this trap. One of the reasons given for concluding that Robin’s conviction remained safe notwithstanding the failure to disclose Post Office records was that the court found it difficult to accept that a robber would have entered the premises some time before carrying out the robbery, murder Diana and lie in wait until the Post Office central system opened the safe at 8:30am. Why would they arrive in advance?
It must be remembered that there had been an armed robbery just over a year prior to Diana’s murder. It is perfectly conceivable that the robber on this occasion was either someone involved with that first robbery or a person who was given information by someone that was involved. Now, there were two safes in the premises. One downstairs that was centrally controlled by the Post Office and which could not be opened before 8:30am, and one upstairs in the spare room where Diana was sleeping and which was not centrally controlled. Anyone planning a robbery with information about the premises would know to deal with this safe first, so that they could then deal with the downstairs safe when it was opened and quickly leave the premises. They would not, however, have expected to find Diana in the spare room. She was there because the couple was packing to go on holiday to the USA shortly afterwards, and having a kitchen renovation, and space was temporarily being taken up in their main bedroom.
So, imagine that you are a robber with detailed information about what to expect on the premises, perhaps under great pressure from other criminals as to what must be brought back. You get into the spare room to tackle the safe there, expecting to find the room empty, only to find Diana lying asleep in the bed. How do you deal with her quickly and quietly so that you can continue with the robbery?
There is forensic evidence to suggest that someone may have stood in the corner of the room for some time. What if that was the robber contemplating their unexpected situation? We know that Diana was killed by three very rapid, forceful blows to the head. Perhaps they were calculated to ensure that Diana could not raise the alarm.
The pathological evidence, disregarding that of Dr Miller, is consistent with Diana’s death occurring a short while before she was found.
We do not argue that this speculative hypothesis is what happened. We do not need to be sure about a positive alternative version of events before we can conclude that Robin’s conviction is unsafe. We offer it only to counter the speculation of the Court of Appeal as to why a robber may have arrived at the premises and gone upstairs before making an attempt on the main safe.
Were Robin’s trial to take place today, with a jury able to consider all that is now known about the Post Office records and systems and the wealth of evidence that calls into question the safety of Dr Miller’ conclusions and other evidence relating to time of death, it is inconceivable that any jury could be satisfied so that they were sure of Robin’s guilt.
The evidence of Dr Rouse, Professor Madea and Professor Knight, coupled with the evidence relating to the Post Office about which robust submissions have been advanced by Messrs Russell Cooke, amount to fresh and compelling evidence which lead to a very real prospect that Robin’s conviction would be overturned if referred on appeal.
It must be emphasised at this point that even taking account of the evidence which we have sought to discredit, the entire case against Robin Garbutt is circumstantial. There is no direct witness or forensic evidence which corroborates that Mr Garbutt killed his wife. It is difficult to think of a weaker case for murder that has resulted a conviction.
We respectfully urge the CCRC to investigate this case and refer it to the Court of Appeal.
Chris Smith JP, LLB (Hons), Solicitor, FHEA
Director of Professional Practice in Law
York St John University
  EWCA Crim 1167