Shillibier v R

Police operational categories, including trace, interview and eliminate classifications, do not alter the distinction in Code C between suspects and non-suspects. A person must receive the full caution only where reasonable grounds exist to suspect that person of an offence. Search warrants are relevant to that assessment but do not automatically make their subject a suspect.

Further expert evidence should not be received on appeal where it could reasonably have been adduced at trial and does not create a real possibility of a different verdict. An attempt to reinforce trial evidence with a second available expert is not a legitimate use of the appeal process.

The appellant was convicted of murder at Cardiff Crown Court after a trial before Aikens J and a jury. The prosecution relied, among other matters, on alleged lies told during police questioning on 9 March 1999, when the appellant attended voluntarily and was treated as a trace, interview and eliminate individual rather than as a suspect.

His appeal challenged the admission of that questioning. He also sought leave to add a ground based on further geological evidence attacking the prosecution expert’s comparison of mud from his car seat covers with mud from the body-recovery site. The fresh-evidence application fell to be determined under section 23 of the Criminal Appeal Act 1968.

1. Appeal dismissed; leave to add the fresh-evidence ground refused.

2. Code C draws an essential distinction between suspects and non-suspects. A suspect must be cautioned, using the full form then in paragraph 10.4 and now in paragraph 10.5, before relevant questions are asked. A non-suspect need not be cautioned. The police could, for operational purposes, classify non-suspects as trace, interview and eliminate individuals, significant witnesses or ordinary witnesses. That classification could not displace the protections due to a person who ought properly to be treated as a suspect.

3. Aikens J had correctly concluded that there were no reasonable grounds to suspect the appellant when he was questioned. The evidence about the deceased’s movements was conflicting, and it was not certain that the appellant was the man seen with her. Search warrants were a relevant circumstance, but their statutory criteria differed from the Code C test and could assist both investigation and elimination. The appellant’s previous acquittal could not properly support suspicion. Since no caution was required, the incomplete caution given under the local policy created no breach of the Code.

4. The court stressed that a trace, interview and eliminate categorisation must not be used to evade protections for suspects. Such misuse could raise bad-faith issues, but none arose on these facts.

5. Under section 23 of the Criminal Appeal Act 1968, the further expert material should not be received. Dr Jeans’s new statement added no material matter that could not have been advanced at trial. Dr Moncrieff was an available second expert whom the defence could have instructed. The mud issue was subsidiary and the remaining evidence was sufficiently weighty that the new material gave no real possibility of a different verdict or any doubt about the conviction’s safety.

6. The observations in R v Gray [2003] EWCA Crim 1001 concerning subjective assessments in facial mapping did not establish a general prohibition on experts expressing degrees of support. Such an opinion required a proper factual basis and fair presentation to the jury.

• Court of Appeal (Criminal Division): In Shillibier v R, [2006] EWCA Crim 793, the court dismissed the appeal against conviction and refused leave to advance the further fresh-evidence ground.
• Cardiff Crown Court: Aikens J and a jury convicted the appellant of murder on 18 December 2000 and imposed life imprisonment.