Blind in one Eye

Much has already been written on this website about the well-publicised innocence claim of Robin Garbutt, convicted of brutally murdering his wife in April 2011 (read here). A jury at Teesside Crown Court found that, a year earlier, he had bludgeoned his wife to death whilst she lay sleeping in bed above the village shop and post office that they jointly ran in Melsonby, North Yorkshire.

His alibi was that robbers, armed with a gun and an iron bar, had first killed his wife upstairs then, a short time later, robbed the post office safe and shop till before making good their escape, at the busiest time of the day, unseen by another living soul.

There have been numerous attempts to overturn the verdict, all unsuccessful. The first, when the Court of Appeal ruled in 2012 that the conviction is safe; the fourth, and latest, is a third application to the Criminal Case Review Commission (CCRC) made on 5th December, 2019 (read more here).

One of the publications appearing to overtly support the Garbutt campaign is satirical magazine, Private Eye. They ran (for them) a lengthy piece on the case in their edition 1514 at the end of January, 2020. The author was the award-winning Heather Mills. It was not, it might be said, either her, or the Eye’s, finest hour. The article appeared to be grounded in the work of another investigative journalist, the late Bob Woffinden, whose efforts had, largely, led to the first two failed CCRC applications, in 2015 and 2017, with the new, and latest, angle being a perceived connection to the Post Office Horizon software scandal.

There were a number of basic errors in the first Eye piece and they have steadfastly refused to respond to repeated exhortations to correct them. Even the location of Melsonby village, in North Yorkshire, was wrongly identified. That simple mistake, naturally, gives rise to concerns about the authenticity of the rest of their offering.

Whether they choose to admit the errors and correct them is, of course, is entirely a matter for them, but it does see history repeating itself for both the same journalist and publication, as they were also supporters of the long-running, high profile, Simon Hall miscarriage of justice campaign which ended with him confessing to the murder, then taking his own life.

Recycling matters already heard by the jury, and later considered by both the Court of Appeal and the CCRC, does not assist any reader minded to take an impartial view of the case. These include time of death, contaminated crime scene evidence, ‘lost’ evidence, and the shop finances (read more here).

The Eye does not appear to have understood, either, that the prosecution did not have to prove motive. That is not a requirement in a criminal trial. Nor have they grasped that Robin Garbutt talked himself into prison, without assistance from anyone else. He lied to the police and he lied to the court from the witness box. Ultimately, the jury did not believe the ‘armed robbery’ story, or that all was well in the Garbutt marriage and their business, and that is why he is serving a life sentence.

The latest piece in the Eye in their late July, 2020 edition, numbered 1527, sees the main focus on the Horizon software issue upon which Garbutt’s legal team now appear to pin most of their hopes of a referral, by the CCRC, back to the Court of Appeal. The remainder of the article is taken up with an almost verbatim repeat of the issues articulated in the January article.

Further submissions in connection with the third application to the CCRC were made by Garbutt’s legal team on 24th July, 2020. The watchdog acknowledged receipt, in writing, four days later. It appears that the Eye received a copy of those submissions at the same time as the CCRC. It is said they relate to issues raised by the High Court judgment of Mr Justice Fraser handed down on 16th December, 2019. The magazine does not explain the lengthy delay in Garbutt’s lawyers making their additional points.

Private Eye correctly alludes to the forty-seven Horizon miscarriage of justice cases already referred to the Court of Appeal by the CCRC. What they do not mention is that ten of the alleged miscarriage cases have not been referred. The applicants having received a Provisional Statement of Reasons indicating that there will not be a referral unless there is more compelling evidence that has not yet been made available to the criminal justice watchdog. Four more cases remain under review at the present time. This information would have been readily available to the Eye with a quick phone call or email to the CCRC press office.

The Post Office Horizon scandal does not, therefore, guarantee an applicant to the CCRC a golden ticket to the Court of Appeal. Each case is considered by the watchdog strictly on its merits.

The Eye has previously, and wrongly, opined that they expected all the Horizon cases to be referred to the Court of Appeal.

These are the closing seven paragraphs of the Court of Appeal judgment handed down in May, 2012. It deals with the Post Office part of the prosecution’s case as well as the main plank of the defence claim: That a robber, or robbers, killed Diana Garbutt. The view of the three senior judges is unequivocal and appears to slam firmly shut the Post Office Horizon door through which Garbutt hopes to walk:

The numbering of the paragraphs is the same as in the judgment:

“(25). The premise on which this appeal has been so well argued is that the jury may have proceeded from theft to murder. We have asked ourselves anxiously whether that might be so. We are clear that it cannot be. The Post Office irregularity evidence could not by itself prove theft. It became important once it was known that there was nothing in the safe and the defendant’s explanation for the absence of money there was the robbery that he said had occurred. It was important because it provided an alternative explanation consistent with there having been no robbery. But the evidence before the jury, we are quite satisfied, that the possibility of there having been the robbery which the defendant described must have been rejected quite independently of the financial evidence [Emphasis added].

(26). In arriving at that conclusion we have thought it right to make a number of assumptions in favour of the defendant [Emphasis added]. First, the evidence of the sighting of the defendant on the village green the previous night, whilst if accurate it would prove him a liar, might simply be an entirely innocent mistake. Second, the fact that nobody saw any robber(s) leaving might well be sheer chance; no-one was looking out for a stranger and all had their own affairs to concentrate on. The two ladies who had lines of sight to the back door might not have been looking that way at the right time. However, it is the evidence of the timing of the death and its impact on what must have happened which leads us to our conclusion.

(27). If the robbery which the defendant asserted had occurred, the robber(s) must have been at the shop from sometime at least an hour before a man appeared through the internal door and made the defendant hand over the cash. On the evidence of the timing of the death, he or they had probably been there several hours before appearing. There is no reason why anyone bent on robbery would arrive so early and do nothing to further the robbery. Nor would there be any reason for such person(s) to go upstairs to the living quarters when they were after the money in the post office and shop. The only possibility suggested is that the robber(s) knew of the time clock on the safe and that it could not be opened before 08.30hrs. Accordingly, It is suggested, he or they might have arrived and taken up station silently upstairs to wait for the audible beep of the time clock being operated. We make the assumption in favour of the defendant that it might be possible for a robber to know this, as it may be that the system is (or was) common to many post offices. But if the robber(s) did know this, there was even less reason to get there hours before the robbery could possibly be accomplished. Still less would there be any reason to go upstairs, where it would be obvious on the merest reconnaissance, that since there was only the defendant about downstairs, there might be someone else present.

(28). Next, if the robbery occurred as the defendant asserted, the robber(s) must, having gone for whatever reason upstairs, then have encountered Mrs Garbutt, he or they must then almost instantly, and silently, have killed her, for she raised no alarm and the defendant downstairs heard nothing at all. That is highly improbable. Still less likely is it that having done so, the killer(s) would remain in the upstairs living quarters with the body, patiently waiting for the safe to be open, when at any time the defendant might have to come upstairs. Equally improbable is it that, having once killed, he or they should offer no violence whatsoever to the defendant when finding him alone in the shop.

(29). If the robbery occurred as the defendant suggested, the robber(s) must also have taken to the scene the iron bar which was used to kill Mrs Garbutt, and which did not belong in the house or shop. That might be done, even though, if the defendant is right, there was doubtful need of it since he, or they, had a gun. The iron bar must then have been placed on the wall outside the back of the premises. It is extremely difficult to see this occurring either in the haste of flight or, even more improbably, by leaving the premises, depositing it, and returning.

(30). To those considerations must be added the facts that the defendant, who had suffered a previous robbery, (a) left the back door unlocked despite warning his staff never to do so, (b) having had silent alarms fitted to the shop with a series of panic buttons which he instructed staff how to use, did not make any attempt to touch any of them and (c) gave evidence which was directly contradicted that he did not know the alarm to be silent. Those facts would not be conclusive alone or together, but they support our clear conclusion. [Emphasis added].

31.For all those reasons we are quite satisfied that this conviction is not unsafe and that the late disclosure of the additional post office records does not render it so. The appeal must accordingly be dismissed. [Emphasis added].”

On plain reading, there is nothing in either of the two Private Eye articles, or elsewhere in the public domain, that will overturn that judgment. Add to that, the recent startling assertion by campaign leader, Jane Metcalfe, in a publicly available podcast (see here), that there had been two other armed robberies before the Garbutts took over the post office premises in 2003. A claim, it must be said, entirely unsupported by evidence and now proved, conclusively, by the police, to be another Metcalfe lie (read here). But if that is the (mistaken) belief of Robin Garbutt, then it makes the unlocked door (and the failure to activate the silent alarms) even more remarkable and strikes further at his own credibility.

A more recent development relied upon by the Eye does not assist the Garbutt campaign, either: The discovery that the iron bar, used as the murder weapon, was not in the position it was ultimately found, on the day after the murder, makes it even more unlikely that the CCRC, or judges in any future appeal, would be persuaded that the murderer(s), robber(s) returned to the scene, two days after the heinous crimes, to carefully place the bar in its position on the top of a nine foot high wall so close to the murder scene, in a location that was, by then, swarming with police and forensic officers.

The bottom line in this troubling case is that either Neil Wilby or Heather Mills, backed by her magazine, Robin Garbutt’s campaigners and his lawyers, is wrong: The former has spent approaching 500 hours on the innocence claim and written well over 40,000 words on the topic. The latter appears to rely on what she is being told, selectively, by the campaigners, without applying the same independent, evidence-based approach of her journalist contemporary.

The eagerly-awaited decision of the CCRC will go a long way to providing the answer.

In the meantime, Garbutt’s lawyers, Martin Rackstraw of Russell-Cooke Solicitors and leading criminal barrister, Jim Sturman QC, involved in this case for over 7 years, may wish to remind themselves of the  statutory criteria for admitting fresh evidence. They are, of course, those set out in section 23 of the Criminal Appeal Act 1968. Ultimately, the court has to consider whether or not it is necessary, or expedient in the interests of justice, for such evidence to be received. The court is required for this purpose to have regard, in particular, to the matters set out in s.23(2)(a), (b), (c) and (d). Read that section of the Act in full here.

For the purpose of exercising its statutory function, the appeal court has to balance two competing principles:

The first principle is that it is incumbent on a defendant to present his whole case at trial (the one trial principle). It is, in general terms, contrary to the proper administration of justice for a defendant to advance on appeal a case different from, or other than, the case he is able to present at trial. On plain reading of the trial judge’s summing up, at no point did Garbutt’s defence team advance Post Office software discrepancies, or resultant cash shortfalls, as the reason for the empty safe in the shop. Indeed, Garbutt confirmed at trial that the amount he alleged was stolen from the safe tallied with the shop accounts.

The second principle, however, is that it is generally abhorrent to the proper administration of justice that a defendant may have been wrongfully convicted.

The court has to weigh carefully both these two matters, and all other relevant matters (including those specified in s.23(2)(a) to (d)), in deciding whether or not to receive the proposed fresh evidence.

The Court of Appeal reminded itself in R v Slade and others [2015] EWCA Crim 71 that the impression sometimes given by appellants – and, on occasion, perhaps, was sometimes given in the arguments advanced before them on behalf of the appellants in that particular case – that if only the fresh evidence may afford a ground for allowing an appeal then that of itself justifies its reception into evidence. But, demonstrably, the consideration has to be wider than that: The ultimate question being, whether it is necessary or expedient, in the interests of justice, to receive the evidence.

Dennis Slade, the lead appellant in the cited case above, and, by all accounts, a career armed robber, featured in another very recent article on this website (read here). That, in part, explains the choice of that particular cited legal authority. The other factor is that, by way of balance, the appeal succeeded and the conspiracy to murder convictions were quashed.

Right of reply was offered to the Garbutt campaigners, the Private Eye and Heather Mills. None of them even acknowledged the communications.

There is a similar eerie silence from Martin Rackstraw and Jim Sturman QC.

However, Mark Stilborn, Garbutt’s brother-in-law made this post, dated 6th August, 2020, on the Robin Garbutt Official website:

“Last week everything was finally submitted to the CCRC after the covid hold-up. The Private Eye magazine have done a very supportive article in there (sic) current publication highlighting some of the facts.

“One of the main points being the prosecution relied heavily on evidence from the post office specialists to try and implicate Robin was stealing from the post office although no physical proof of this.

“However following recent high court rulings it has seen the CCRC send over 45 cases (sic) back to the court of appeal stating the Post Office evidence can not be relied on.

“If this is the case then surely the evidence against Robin must be deemed unreliable thus removing the case for theft from the equation.

“This been (sic) the case then there is no case against Robin as the prosecution always maintained whoever stole the money killed Di.”

Apart from the glaring factual errors, beginning with the date when further submissions were made by the Garbutt team to the CCRC, Mark’s outpourings and muddled thinking further demonstrate that the family, at least, really have no clue at all about the case against Garbutt and the very high hurdle they face in ever overturning the conviction.

Page last updated at 1020hrs on Tuesday 20th October, 2020 at 1910hrs.

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Photo credit: J D Butler

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