R v Peter Walker & Ors

A reluctant prosecution witness may be called without a signed statement where disclosed police records and earlier accounts give the defence a fair understanding of the expected evidence. A breach of the timing requirement for a witness-summons application does not automatically invalidate the summons where delay is justified and no material prejudice results. A witness’s later change of stance, including after detention, does not itself make the evidence unfair. The jury may assess reliability through cross-examination and appropriate directions. Although section 139 does not permit a witness to refresh memory from unverified material, that does not necessarily require exclusion under section 78. The judgment also confirms restrained appellate review of bad-character, hearsay and sentencing decisions.

Peter Walker, Melissa Stubbs, Aaron Stubbs and Stephen Strutt were convicted at the Crown Court at Liverpool on 23 April 2021 of murdering Warren Glover. Their principal appeal concerned the prosecution’s use of Andrew Carney, a reluctant eyewitness who had declined to sign a statement, later refused to answer questions, and eventually gave evidence after being detained and receiving legal advice.

Melissa Stubbs and Aaron Stubbs also renewed applications concerning further bad-character evidence about the deceased and WhatsApp messages relating to Aaron Stubbs’s apparent state of mind. Melissa Stubbs separately renewed an application for permission to appeal against sentence. The central issues concerned the fairness of calling Carney without a signed statement, the use of previously unverified material, the admissibility of the additional evidence, and the sentencing judge’s assessment of culpability and mitigation.

Appeals dismissed. The convictions were not unsafe. Melissa Stubbs’s renewed application for permission to appeal against sentence was refused.

1. Witness summons. An application for a witness summons under the Criminal Procedure (Attendance of Witnesses) Act 1965 was not dependent on an earlier application under Schedule 3 paragraphs 4 and 5 of the Crime and Disorder Act 1998 for a deposition. The procedures were not mutually exclusive. Although the application was made later than required by Criminal Procedure Rules 17.3, the judge was entitled to issue the summons because there was evidence that Carney was a material witness, a reason for the delay had been given, and the defence suffered no sufficient prejudice. There was no basis to withdraw the summons.
2. Calling the witness. Carney was not called “blind”. The defence had police statements, contemporaneous notes and the emergency call, which disclosed the substance of his expected evidence. That material was second best to a signed statement but provided a sufficient basis for cross-examination. The court distinguished the concern identified in R v Khan, Dad & Afsar [2002] EWCA Crim 945. The comparison with Ascough [2014] EWCA Crim 1148 was relevant to the use of recorded material.
3. Fairness and memory. A witness’s initial refusal to answer, followed by a change of stance after detention, did not make a fair assessment impossible. The defence could explore compulsion, the method by which the statement was obtained, the witness’s memory and the scope for error. Section 139 of the Criminal Justice Act 2003 did not permit Carney to refer in the witness box to documents he had not made or verified when they were created. That did not itself require exclusion under section 78 of the Police and Criminal Evidence Act 1984, since the relevant risks could be tested in cross-examination and addressed by the jury.
4. Other conviction grounds. The judge was entitled to refuse further evidence of the deceased’s bad character where the evidence already before the jury adequately supported the proposed inference and the principles in Braithwaite (Stephen) v R [2010] EWCA Crim 1082 had been applied. The WhatsApp messages were admissible for context rather than for the truth of their contents. Alternatively, their admission under section 114(1)(d) of the Criminal Justice Act 2003 was within the judge’s discretion. The general direction given to the jury was sufficient.
5. Sentence. The trial judge had correctly identified the statutory starting point, considered aggravating and mitigating features, and made findings about the relative culpability of the offenders. Personal mitigation had limited weight in a case of this gravity. There was no error in maintaining only a modest difference between the sentence imposed on the principal assailant and that imposed on Stubbs.

• Court of Appeal (Criminal Division): appeals against conviction dismissed and Melissa Stubbs’s renewed application for permission to appeal against sentence refused: [2022] EWCA Crim 1488.
• Crown Court at Liverpool: the four appellants were convicted of murder on 23 April 2021.