Case Digest: R v Robin Joseph Garbutt [2012] EWCA Crim 1167

Summary

Irregularities in an offender’s post office accounting records could not prove theft and did not provide the motive for his wife’s murder. Therefore, the admission of fresh evidence seeking to explain those irregularities did not affect the safety of his conviction for murder, as it was clear that the jury had rejected his explanation that his wife had been killed by robbers independently of the accounting records or any other financial evidence. 

Abstract

The appellant, Robin Garbutt (G), appealed against a conviction of murder.

G’s wife had been murdered in the living quarters above the post office that they ran. It was G’s case that there had been a robbery at the post office and that the robbers had killed his wife. He had gone downstairs to open the shop some time after 04.00 and opened the post office safe at 08.35. A masked robber armed with a gun told him that they his wife was being upstairs, and ordered him to fill a bag with money. G found his wife dead upstairs and called the emergency services. It was the Crown’s case that G had killed his wife and falsely reported a robbery to cover it up. Expert evidence confirmed that the death had occurred hours before G’s call at 08.37. The post office safe electronics showed that the safe was openable again at approximately 08.36; and G’s call was 79 seconds later. Therefore, the events as described by G had to have occurred, within 79 seconds. The Crown also alleged that G and his wife were in financial difficulties; there were irregularities in the post office accounting records which went back to 2009; the absence of money in the safe was because of theft over a period of time by G; the overnight cash declarations were significantly higher than the post office head quarters computerised model suggested they should be; even though there were requests for payment of the surplus cash back to headquarters, no cash except surplus coinage was sent. At the trial, the jury had the accounting records from 2009 onwards. After trial, it transpired that the accounting records went back to 2004. Those records and information regarding variable limits for cash requests were admitted at G’s request at the instant appeal.

G submitted that (1) the pattern of accounting identified in the records from 2009 onwards could not be relied upon as demonstrating theft because a similar accounting pattern was identified in the 2004 to 2008 records which were deemed satisfactory in a 2008 audit, and that if the jury had the earlier records it would have taken a different view of his credibility; (2) the alleged theft from post office funds was put forward as the motive for murder.

Held

Appeal dismissed.

(1) The additional evidence about variable limits to requests for cash did not affect the safety of G’s conviction. G should have had the additional accounting records at trial. That would have allowed him to make additional points, including that he had always made returns showing larger sums of cash than the computer-generated model had suggested, which although not challenged, could have been verified. However, that would not have meant that the accounting records could not be relied upon by the Crown to show the real likelihood of defalcations. That the records went back several years before a satisfactory audit in 2008 did not mean that they had not been taken advantage of from 2009 onwards to use post office funds dishonestly. G’s explanation for non-compliance with the computer-generated requests for remittances had been unsatisfactory (see paras 22-23 of judgment). (2) The evidence of the accounting irregularities could not of itself prove theft. It was important in that it gave an alternative explanation consistent with there having been no robbery, but the evidence before the jury demonstrated that the possibility of a robbery as described by G had been rejected independently of the financial evidence. Even if some assumptions were made in G’s favour regarding the alleged robbery, the evidence as to the timing of death and its impact on what must have happened was conclusive. If the robbery had occurred in the way G asserted, the robbers would have had to have been at the premises several hours before appearing and taking the money. It was highly unlikely that robbers would have arrived early, done nothing to further the robbery or have gone upstairs when the money was downstairs in the shop. If the robbers knew of the 8.30 time lock on the safe as suggested that was even less reason to arrive hours before the robbery could be effected, or to go upstairs. Further, it was improbable that the robbers would have killed G’s wife without him hearing anything and that having killed her, they waited for the safe to be opened, or that they would not have been violent towards G who was alone in the shop. If the robbers had a gun as G alleged, it was doubtful that they would have needed an iron bar, which was the murder weapon. However, if that was the case, it was difficult to see why they would have placed it on the wall at the back of the premises in their haste of flight. In addition to those improbabilities, G, who had been robbed before, had left the back door open despite warning his staff not to, had made no attempt to press any panic buttons which triggered the silent alarms, and had given evidence contradicting the fact that he knew the alarms were silent. Those facts all supported the clear conclusion that G’s conviction was safe (paras 24-31 of judgment).

Bench: Hughes LJ; Hedley J; Maddison J

Counsel: For the appellant: James M Hill QC, Martin P Towers. 
For the respondent: David W Hatton QC.

Copyright: Westlaw UK

Date first published: May, 2012

Dr Truthseeker loses her moral compass

Over the past three months, a number of articles have been added to this website on the subject of a murder, in 2010, at Melsonby Village Store and Post Office in North Yorkshire. At the conclusion of a criminal trial that took place a year later, at Teesside Crown Court, the judge and jury found that Robin Garbutt had brutally killed his postmistress wife, Diana, as she lay sleeping, striking her around the head three times with a rusty iron bar.

Garbutt has always maintained his innocence, despite being proved to have lied to both the police and the jury. His alibi of armed robbers killing his wife, then making off with the contents of the post office safe and shop till, leaving him unharmed and free to raise the alarm, was described as ‘ludicrous’ by the judge, Mr Justice Openshaw.

A series of appeals launched by the murderer and his campaign team have seen his sister, Sallie Wood, and brother-in-law, Mark Stilborn to the fore. The first was to the Court of Appeal in 2012, which was comprehensively dismissed, followed by three applications to the Criminal Case Review Commission in 2015, 2017 and 2019. The latest of which is still under review by the miscarriage of justice watchdog (read more here). Neither of the previous applications has merited an investigation by the CCRC. It is very likely that the latest one will be closed in the same way (read the reasons why here).

Garbutt has scrupulously avoided publication of the reasons for those failed applications and appeal.

Since the end of 2018, the Garbutt innocence campaign has been led by 57 year old York resident, Jane Metcalfe, who works in Learning Support at nearby Askham Bryan College. She has achieved considerable success in raising the profile of the case, both within the miscarriage of justice fraternity and in print and broadcast media.

Regrettably, that has come at a cost as she, like the man to whom she now devotes her life, has proved to be, at best, economical with the truth and, at times, an outright liar. Most notably, with her now abandoned mantra: “Robin has only ever told the truth“. The appearance of the first Garbutt article on this website (read here) blew away that myth and, thankfully, she has not repeated it since.

The campaign under her leadership, has acquired a motley crew of fellow travellers, developing an unpleasant edge by attacking and smearing anybody who criticises the Garbutt/Metcalfe narrative. Those bold enough to ask questions, however innocuous, are insulted, blanked or blocked on social media (read more here).

But, most notably, this is an enterprise in which there is scant regard for the victim and her family: Diana’s mother, Agnes Gaylor, is resolute in her belief that the right man is in prison for killing her beloved daughter. She tires of hearing ‘Robin is such a nice man, he couldn’t possibly have done it‘.

Mrs Gaylor is airily dismissed by Metcalfe and others as “not being in possession of the full facts”, despite attending every day of the four week murder trial – and hearing, and seeing, all the evidence. Jane, on her own admission, did not attend Crown Court for even a single day and has little or no knowledge, or experience, of the criminal justice system.

It is against this background that, on 7th June 2020, Midlothian-based author, researcher and alternative therapist, Dr. Sandra Lean, chose Jane Metcalfe to feature in the pilot episode of a new podcast venture billed as ‘The Truthseekers‘.

Dr Lean is best known for her support of the unsuccessful innocence campaigns involving two other murderers, Luke Mitchell and Gordon Park. The latter recently had a posthumous appeal dismissed by three law lords which, effectively, brings that campaign to a close. Park committed suicide in HMP Garth in January 2010 but the troubling murder spawned two books: One by Douglas ‘Dick’ Binstead, the other by Lean.

Explaining his motivation, Mr Binstead told his local newspaper, the Carlisle News and Star: “I had contemplated writing the book for some years, because I had always been fascinated by the mysterious and unique case of Gordon Park.

“What finally provoked me into actually putting pen to paper was a 2015 book ‘No Smoke! The Shocking Truth About British Justice,’ which singles out the case in question and seeks to depict it as an example of flawed police investigation, a totally misconceived decision to prosecute it, and finally a wrongful decision by the jury to convict the accused.

“As I had been involved in the case as a prosecutor and was very familiar with the evidence on which the case was based, I strongly felt that I should redress the balance.”

The Binstead account is fiercely critical of the Sandra Lean book. He states: “Whatever merits her book, and her appraisal of the evidence in the Park case may have, they are, to my mind, completely eclipsed by her entrenched and overwhelming antagonism towards, and her disdain for, the way that the organs of the criminal justice system operate and conduct their affairs.”

That she should choose Robin Garbutt as her next marquee case, given its own recent troubled history, demonstrates extraordinarily poor judgement as this brutal dismantling of her Jane Metcalfe interview amply demonstrates. Nevertheless, the words of Dickie Binstead prove highly portentious.

Dr Lean has also been associated with the innocence claims of another wife-killer, Adrian Prout; the late Simon Hall and Matthew Hamlen. The latter spawning another notably unsuccessful podcast series entitled ‘Justice in Jeopardy‘.

Prout admitted the crime in 2011, following a four year campaign to clear his name. He took police to where he had buried the body.

Hall committed suicide in prison in 2013 after confessing to murder. It followed a prolonged, high profile innocence campaign. His widow, Stephanie Hall, a regular miscarriage of justice commentator, maintains that Robin Garbutt has ‘groomed and conned’ Jane Metcalfe and that Sandra Lean, whom she knows quite well, has exploited her in what is an opportunistic, bandwagon-jumping interview. They may well both turn out to be portentious observations.

This is a verbatim transcript of the Lean/Metcalfe podcast with corrections, observations inserted in bold type by Neil Wilby, who has spent over 400 hours on a ground up, independent investigation of the Garbutt innocence claims.

The Truthseekers, Episode One. 7th June, 2020.

Dr Sandra Lean with Jane Metcalfe

Sandra Lean: Would you like to kick us off just by giving us some background to this case?

Jane Metcalfe: Hi Sandra, thanks very much for having us.  Robin and the family are really chuffed about the whole thing, it’s great.  We feel really very honoured, so it’s great.  So thank you for wanting Robin’s story on here.  Yeah, the background to this case, if I could maybe start by saying how I know Robin.  Many, many years ago, Robin’s long-term girlfriend was a really close friend of mine.  They were together for a quite a long time.  So that’s how I initially knew Robin.  Then they parted company and sold the house that they had.  Then Robin went on to buy another house.

As will be repeated many times in this piece, Jane struggles to tell the full truth: Her interest in the case was sparked by her close friend, Clare Bradley, giving evidence for the defence at the murder trial. To the effect that Clare had a normal relationship that ran its natural course and Garbutt had never been violent towards her. The trial judge placed due emphasis on that important point in his summing up. Jane, as will be seen later in the interview, didn’t even know the name of Garbutt’s mother, who gave evidence at the trial and whose name and picture appeared on television and in the press at the time.

JM: The background of him and Diana is that they met and Diana moved into his house when they met.  Then they bought the Melsonby Post Office in North Yorkshire in 2003, which is when they got married.  They wanted to set up a business together and live and work together.  In Melsonby the Post Office is right on a busy junction, it’s a gorgeous little village of 700 people, approximately.  So the Post Office was a real hub of the village.  It was where everybody did their meeting, everybody knew everybody, and all the children would gather there on a morning before they got the bus to school.  Robin would start serving customers from 4.30 in the morning.  It was a really http://unclear.  It was on the junction of the A1 so lots of people came off the motorway onto the little link way where the post office was. Everything was good.

 – There is no ‘little link way’ off the A1, as Jane describes it. At the Barton interchange (just north of Scotch Corner) it is necessary to join the B6275 towards Piercebridge and then take a left turn onto a minor road towards Melsonby. The Black Bull pub and St James Church were, and are, the hubs of the village. The junction of East Road, Moor Road and West Road is busy at school time in the morning and afternoon, during term time. The picture painted by Jane was not so rosy, in reality. A village shop, off-licence, newsagent, post office, opening 7 days a week from early morning until 6pm, was taking, on average, a meagre £570 per day. Diana soon lost interest in the post office, and the business was put on the market in, or about, 2005. At one point, the murder trial jury heard, Robin had told Diana, at least once and in the hearing of a customer, “to get up off her fat arse and do something”. She would, habitually, not rise from her bed before 8.30am, despite the shop having been open for around 4 hours by then. Everything, plainly, was not good.

JM: It’s worth mentioning before Robin & Diana bought it, the Post Office was robbed…. had two armed robberies before they bought it.  It’s important to know that.  And then, sadly they were robbed in 2009.  17th March 2009, which was a Tuesday, which is the day Robin didn’t have any staff in on a Tuesday, he worked on his own, and they were robbed then.  There was never any suggestion at that point that the robbery was anything other than a genuine robbery.  The Post Office agreed and the Police agreed that there was never anything to suggest anything otherwise.

There is no trace on the internet of two other armed robberies at Melsonby post office, prior to 2003. This was not raised either at trial, on appeal and in acres of press coverage both at the time of the murder and the subsequent criminal trial. There is no reference to these highly significant events on the ‘Robin Garbutt Official’ website, either. Further enquiries are being made at Post Office Ltd, North Yorkshire Police and the Northern Echo. As far as the alleged 2009 robbery is concerned, whilst an enquiry to the Post Office Ltd press office is awaiting response, it can be stated categorically that the police did not agree it was ‘a genuine robbery’. After Garbutt was sentenced, the Echo also raised the question of a fake robbery in 2009, based on the evidence of a witness in the trial (read the full article here). That piece, tellingly, made no mention of any previous robberies, either.

JM: Shall I go on to say about what happened on the 23rd of March in 2010?

SL: Yeah, that lets everybody know why we’re here and what this is all about.

Dr Lean asks no questions about the financial health of the business, the roles of the Garbutts within it or, more crucially, about the alleged armed robberies prior to 2003. This is important information, not previously in the public domain, or available to a resourceful investigative journalist. These issues, all highly relevant to the Garbutt case, should have raised a modicum of interest from the interviewer: When, by whom, how, type of weapons produced by the robbers, upstairs, downstairs, daylight, dead of night, injuries, proceeds, witnesses, scale of manhunt, capture, prosecution, sentence, enhanced security measures post-robberies? But from Sandra? Nothing.

JM: Yeah, so life was really good for them, everything was happy, they had a nice life.  Happy people.  And then tragically on the 23rd of March 2010, so it’s almost a year to the day, also on a Tuesday, they suffered another armed robbery.  Only this time the robbers had gone upstairs into their private quarters and Diana was killed by three blows to her head from a metal bar.  The reason that the robbers would have gone upstairs was because upstairs in the living quarters was a second safe.  It could be seen from downstairs in the shop through the- in the ceiling, it was built into the ceiling.  So the only reason anyone would go upstairs is for that reason, to go to the second safe.

‘Happy people, nice life’ says Jane in her familiar glib style. But that was not the picture painted at the murder trial, where evidence was heard from 87 witnesses. Diana was far from happy, constantly looking for other men, and sexual satisfaction, that Robin was either unable, or unwilling, to provide. The business was in financial trouble and had been up for sale for a number of years. The Metcalfe narrative concerning the second safe is highly speculative and, in parts, nonsensical. Anyone with knowledge of criminal methods, such as the journalist/court reporter writing this article, would know that robbers frequently go upstairs in search of handbags, purses, wallets, credit cards, cash, watches, jewelry, silver or gold, cameras, mobile phones, car keys, to name but some of the common targets. When Diana was murdered, none of those items were taken. The second safe was untouched. It had not been used for some years as the key was said to have been lost, the court heard. Matters that, understandably, raised significant suspicion with the police. Robin Garbutt had no cogent answer when these points were put to him by the police, in interview, and by the prosecutor at trial. Other than a random psychopath just happened on an unlocked door down an obscure ginnel, had gone into the property and perpetrated a brutal, apparently motiveless, attack on a sleeping woman. Then hung around for a couple of hours, at least, risking capture. Unsurprisingly, the jury and the appeal court judges did not accept that scenario.

JM: Leading up to the robbery, Diana and Robin were having… if I could just quickly say what the lay out of the Post Office was, it might be useful.  Downstairs was a very large kitchen, their kitchen.  Next door to it was the actual shop itself, so the little Post Office, the little shop, it was only small.  Little Post Office, little shop and outside on the ground floor was a little yard and then from the back door you’d go either into the kitchen or straight upstairs into the living quarters.  At that time they were having a big – they were having all the kitchen redone like a – they were having the kitchen redone anyway.  They’d spent money on the kitchen.  So everything was upstairs from the kitchen, in the living quarters and they were also getting ready to go on holiday to America two weeks later, I think it was.  To see Diana’s family but also they were going to renew their marriage vows.  And in preparation for them going on holiday, Diana had all their cases laid out in their bedroom, so the bedroom they’d normally sleep in had become – it was just covered in cases and Diana was getting ready to iron and pack everything away. So they were sleeping in the spare bedroom at this time, which wasn’t normal for them to do that.  So anybody who’d been doing a cursory ‘recce’ on the place would have expected nobody to be in the spare bedroom where the safe was.  So they were sleeping in the room where the safe was, which wasn’t what they normally did.

A collection of photographs of the rooms, interior and exterior layout can be viewed here. It adds important context, both here and later on in this piece. It is a large property as can be seen both from the internal and external photographs.

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This is the shop area after a recent refurbishment.

At trial it was heard that there may have been another reason for the cases to be on the bed in the master bedroom: Either Diana was leaving Robin to live elsewhere, as she had planned to do only a short time before, or she was throwing Robin out (the property was, apparently, in her name). The proposition of ‘a cursory recce’ revealing the layout of the upstairs of the property, and the location of a safe concealed in the floor of one of the rooms, is just another example of how contrived the present version of the Garbutt/Metcalfe narrative is. The fact that Dr Lean doesn’t intervene, and seek clarity, reveals at an early stage how weak and mediocre this ‘interview’ is. It ill-serves the rest of the miscarriage of justice fraternity.

JM: So, on the morning of the 23rd, Robin got up and left Diana in bed and came downstairs, unlocked the door at 0430.  Delivery men and everything arrived with the newspapers, Milkman and (audio unclear) customers are coming in, slowly at that time, 4.30, but they’re trickling in.  Then at 0830 the gunman arrives and says to Robin “Don’t do anything stupid, we’ve got your wife” and Robin does what he says, gives him what he asks for which was to empty the till, empty the safe and then he leaves by the backdoor does the robber and then he (Robin) runs upstairs and he finds Diana.  He rings 999 and the operator- in fact it’s interesting, you can hear the 999 call, it’s available.  One of the ladies on a conference, messaged me, they played it on a news clip recently and she said to me, Michelle said to me “I’ve always felt that Robin was, from what you’ve said at different conferences that Robin was obviously innocent” but she said “If I had any doubts and then heard that 999 call, it would have, you know – it was clear that the man was in a terrible state.”  So it’s…

This section of Jane’s version of events is, again, deliberately misleading. The facts are, as evidenced at trial, that the till roll recorded the first customer at 5.15am. Garbutt’s testimony was that the wholesaler had already delivered the newspapers and he opened the back door at 4.30am to finish offloading the stock purchased the previous evening at the cash and carry. According to the murderer, the door remained unlocked, thereafter. He couldn’t explain to the court why he would take such a risk with the security of his business, his wife and himself. If, as Jane infers, ‘the gunman’ arrives at 8.30am then neither he nor his alleged robber accomplice could have killed Diana Garbutt. She had been murdered long before then.

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SL: I will add the 999 call as a link to this so that people can hear it.

– Dr Lean has not added the 999 call. But it can be reviewed at this link here. Again, a complete abdication from the most obvious lines of enquiry do not serve her at all well. It is also a moot point as to whether the 999 call aids Garbutt. It spawned a TV documentary, in 2016, called ‘Killer on the Line: Robin Garbutt(watch here). The programme posits quite clearly that the emotion of the call was faked. The police, the prosecutor, the jury at the murder trial must have also taken that view. Michelle Feather’s message, a Facebook post on the Robin Garbutt page, against that backdrop is almost totally irrelevant. Especially, if the probative case papers have not been thoroughly absorbed. Of the two neighbours from whom Garbutt sought aid during that call, Pauline Dye gave evidence for the prosecution at trial. Her husband, David, had gone out a short time earlier. Pauline had been putting out washing in the shared yard with its view of the back door of the post office. She did not see the alleged robbers leave. Neither did the other occupant of the shared yard.

JM: It’s a really powerful, awful, heartbreaking phone call.  So he’s clearly in a terrible state, so the operator advises that he goes – is there anyone that can help him and he says that he’s got neighbours downstairs.  At the back of the post office is only a small little yard and they shared – Robin and Diana shared the little yard with two other houses.  So there wasn’t a big area at the back of the house, at the back of the Post Office.  So Robin ran downstairs and got help from the neighbour who came upstairs and helped him turn Diana over and clearly she was no longer alive.  And then the ambulance came and confirmed that she was dead, and that was the beginning of the nightmare really, that was the beginning.

The murder trial heard that the beginning of the nightmare for Robin Garbutt was arguing with the paramedic who attended Diana over the state of the body and how long she had been dead. He continued that curious, and suspicious, debate with the two police officers who were first on the scene.

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The ginnel that leads from West Road into the yard at the rear of the shop and by which route the robbers are claimed to escaped.

SL: Ok.  So from that point, it sounds like we’ve had a robber come in one door and hold up Robin and another has gone upstairs and attacked Diana?

– The very fact that Dr Lean rehearses this nonsensical proposition demonstrates one point very clearly: She has done no meaningful research on the Garbutt case.

JM: Yeah.

Jane blithely agreeing agreeing with that proposition, knowing it to be completely untrue, is a devastating indictment both of her inability to tell the truth and her willingness to draw anyone into the lazy Garbutt narrative who is gullible enough to accept its manifest flaws.

SL: So how do we get from there to where we are today?

JM: If I give a quick brief of the timeline, so people know what the timeline was and then we’ll go back and talk about individual parts of it.  So the robbery – the first robbery was in 2009, March 2009.  The second robbery was on 23rd of March 2010, which is when Diana was killed.  Robin was arrested three weeks later and then the trial was the following spring in 2011, so almost a year later it went to trial and then obviously Robin was convicted at trial.  Then the following year, the following June, I think it was, they then went to appeal, they appealed and they got to the appeals court.  Tragically, the appeal was upheld, no – it wasn’t upheld, we didn’t win, we didn’t win at appeal.  And then the following year Robin applied to the CCRC, which is the Criminal Case Review Commission and was unsuccessful.  That went on for probably 18 months, to-ing and fro-ing with the CCRC but that was unsuccessful. We now have another application in which was put in in December of last year, December 2019.   So that’s kind of a timeline as to where we are now and where Robin’s come (audio unclear).

– It is difficult to reconcile Jane’s assertive demeanour when discussing the case with the number of basic errors she makes. The appeal against conviction was dismissed by the Court of Appeal in May, 2012. In essence, three very senior judges emphatically affirmed the jury verdict that the robbery did not take place. As set out in the opening paragraphs of this article, the first CCRC application was not ‘the following year’ (2013) as Jane claims, it was in 2015. She omits mention of the second application which was quickly dismissed by the criminal justice watchdog in 2017. Another demonstration of a complete avoidance of uncomfortable truths.

JM: So at the very beginning, the prosecution’s case against Robin was two parts.  The prosecution case was that Robin had been stealing from the Post Office and that was his motive to kill Diana because they were going off on holiday two weeks later.  So the prosecution’s case was that a temporary Post Master would come in and look after the Post Office while they were away and at that point there would be an audit.  So what the prosecution said was Robin had been stealing – his theft was going to be revealed in this audit so that gave him his motive for killing Diana.  There’s lots that doesn’t ring true with that; firstly, Diana was actually the Postmistress, so Diana did all the books, so Robin didn’t – Robin was very much involved in the business, but Diana was the bookkeeper.  Also, there’s been a huge judgment now, to do with the Post Office Horizon scandal which was where the Post Office were prosecuting people wrongfully, accusing them of theft.  That also has a big link in there too.  There’s also an audit that should have been available to them at trial, from the Post Office which would have helped Robin massively, but the Post Office said it wasn’t available.  It only became available after trial.  So we’ve got Robin being accused of theft, and then the second plank of the prosecution case was time of death.  Initially, the Police said that Diana was still probably alive at 0630, 0700, 0630-ish, but then they changed tack further into the investigation, and I suspect it was because it became obvious that Robin had an alibi after 0430 because Robin had opened the Post Office at 0430.  He had customers coming in.  So the prosecution’s time of death was- they brought in a so-called expert, who was an expert on food analysis in the stomach contents of somebody who’d died.  She gave a very specific window of death; that Diana had been killed between 0230 and 0430 which if that was the case, it could only have been Robin.  There was only Robin in the building, so it was very powerful.  And apparently this expert was, according to Sally & Mark and the family who were at the trial, she was a really, really powerful witness.  She wouldn’t be moved from this 0230 to 0430.  So they were the two main planks of the prosecution’s case.

– These are the facts as rehearsed at trial and upon which the jury reached their verdict. A very different narrative to the rose-tinted view put forward by the Garbutt team: The prosecution did not have to prove motive for the murder, that is not a necessary ingredient of a criminal trial. They did, however, seek to give the jury an explanation as to how, or why, the Garbutts came to have so much cash available that they were able to enjoy a millionaire lifestyle with, in the year preceding the murder, nine holidays including trips to Paris and Amsterdam, or lavish weekend breaks where they would spend around £1,000 each time. There was also the unknown source of the substantial funds needed to refurbish the very large kitchen (see picture below), to which there is no reference by Jane, and, in the words of the appeal court judges, ‘scant explanation’ for the large sums of cash sent by Garbutt to his bank every month by special delivery post. The murder trial heard evidence from the Home Office pathologist, Dr Stuart Hamilton, that the death of Diana was likely to have occurred ‘in the early hours of the morning’. The pathologist retained by the defence came to a similar conclusion and was, for obvious reasons, not called to give rebuttal evidence. The expert testimony of Dr Jennifer Miller, regarding the fish and chip supper, was supplemental to the more conventional Home Office evidence on time of death and it is unclear whether the jury took any account of it. As crucially, the court heard from an expert neurologist, Dr Daniel du Plessis, who said that it could have taken Diana up to an hour to die from her injuries. Although ‘it was likely to be minutes, rather than hours’ was his evidence.

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There were a couple of other little smidgens that were going on as well.  The prosecution case was so, so… they cherry picked the investigation.  Cherry picked, and ignored huge pieces of evidence and cherry picked.  It was an incredibly weak case and I don’t think anybody ever thought that there was ever going to be a conviction.  I think everyone was quite confident that there was nothing on Robin; nobody had anything to worry about.  Lots of us thought it would never even get in a court room, never mind a conviction.  Lots of people have said since, people in the village that ‘we didn’t realise, we should have gone back and said more’ or some of their witness statements.  For example, some of the witness statements from when the police were gathering evidence from the local friends in the village, a few people said it felt like a ‘Robin hunt.’  It didn’t feel like they were investigating a robbery, an armed robbery at the Post Office and a murder.  It felt like they were more interested in what was going on with Diana and Robin, what they did in their private lives.  It didn’t feel like a – one lady said that she asked the police why is ‘xyz’ missing from my statement.  And they said ‘Oh don’t worry, it’s going in another report.’  So there was things missing from – but nobody really realised the importance of that at the time because nobody really thought that Robin was ever, there was ever going to be a conviction.  There was never any evidence on him.

In terms of ‘cherry-picking’ and ‘ignoring huge pieces of evidence’ it could very well be argued that no-one in the history of innocence claims is better at it than Jane Metcalfe. Who now, it seems, places herself in the campaign team at trial, despite not being the, and speaks for ‘everyone’ and ‘lots of people’. The petition on the Garbutt campaign website has amassed 54 signatures; his Facebook campaign page has 134 friends; the campaign Twitter account (@hanksoff03), run by her, has 190 followers. The conclusion, therefore, is that there is very little public support outside of their own tiny bubble and no visible political support, either. For the avoidance of doubt, the only evidence of note, from any of the villagers, that would have assisted the murderer was: ‘I saw the robbers enter (leave) the post office. This is a description of the men. This is the direction from which they entered (left). Not one of the 500, from whom statements were taken, did that. Either in regard to the alleged 2009 robbery, or the 2010 renewal. Jane also betrays her lack of knowledge as to how a murder hunt, and resultant house to house enquiries in the proximity, is conducted; principally building a picture of the victim and those closest to her. Robin Garbutt had put himself in the frame with his suspicious behaviour from the outset and he was never supplanted as prime suspect. That was entirely down to him, and no-one else.

SL: I’d like to come back to that bit about witness statements later but rather than interrupt your flow, if we carry on with the defence case and all the other bits and pieces that happened in this case.

Dr Lean doesn’t ask, either, of what ‘the cherry picking’ consisted or what were ‘the huge chunks of evidence’ that were missing. She simply allows her interview subject to make these wild, exaggerated, unsubstantiated claims, completely unchecked.

JM: Right. Yeah.  So the prosecution’s were ‘theft’ and ‘time of death’ and then there were a couple of other little smidgens, which one was that Robin couldn’t possibly, from the moment that the safe was opened to phoning the 999 call was, I think it was 79 seconds, and the prosecution tried to say that that was- it was impossible to do.  Well, it was possible to do.  The defence team were able to prove that the clocks were out on the till, the clocks were out on the safe.  So it wasn’t an exact science.  Remember that the Post Office is tiny, the shop’s tiny, the stairs are just through the door.  So for Robin to… you know, if someone’s got a gun to your head and tells you that a loved one is in danger you could move mountains in 79 seconds.  And the defence barrister and lawyer went round to the house and they repeated it.  And did it several times where they ran up and down the stairs more than once within the 79 seconds.

– This is the relevant section of Garbutt’s police interview (watch here) in which he describes what happens from the moment the alleged gunman arrived in the shop to the answering of the 999 call. The jury, unsurprisingly, did not believe this version of events. Neither did the Court of Appeal judges, or the CCRC, or the Crown Prosecution Service, or the police, or Diana’s family. Judge for yourself if what takes Garbutt four minutes to describe could be acted out in 20 seconds (not 79 seconds), as he emphatically claimed at trial. Jane states that the robber put a gun to Garbutt’s head. He says that the gunman kept the weapon down by his side the whole time – and couldn’t describe the gun to police (he changed that evidence in the witness box at court). He also told the police, strangely, that he ‘wasn’t worried’ by the sudden appearance of the gunman in his shop. Which ran counter to his later evidence in that ‘the agony of the moment’ prevented him setting off any of the four silent alarms, in the shop and post office, that were connected directly to an emergency control room. The Metcalfe assertion that ‘the clocks were out on the safe and on the till’ is not the evidence heard in court from Post Office experts: They were correct to the nearest second.

Dr Lean, for her part, is, once again, not even remotely curious about these crucial points, and glaring inconsistencies, that rail strongly against the Garbutt innocence claim.

There was also a lady on the green who said that she thought she’d seen Robin the night before carrying a bag under his arm, sort of suggesting that he was out hiding some money.  Again, it came to nothing.  Well, it was used in court.  It was used in court but there was another gentleman – what she said was that she was surprised because Robin didn’t speak to her and the reason he didn’t speak to her was because it wasn’t Robin.  Robin was at home in bed across the green and it was another man who apparently resembled Robin a lot who’d picked his little dog up and that’s what that story was.

SL: Did that other man come forward?

JM: He did, he did.  And Mike Naughton who was a private investigator employed very early on in the original investigation said it was shocking how like Robin he was.  But he was away on holiday, he was away abroad when the trial hit and there was always a query as to why he wasn’t told either he couldn’t go on holiday or usually if a witness is important… and of course he was a very important witness, because Mike Naughton he was incredibly like Robin, he could have been his brother.  They were the same height.  He said it was a striking resemblance.  So he was away abroad.

 – This is another Metcalfe red herring. Reports of such a likeness has never emerged, previously, at either the trial or the appeal, or on the Garbutt website. Nevertheless, the judge in his summing-up gave the jury the usual legal direction regarding identification evidence after defence counsel had, quite rightly, made significant play on the point during his closing speech: An honest, truthful witness can be mistaken when identifying a person fleetingly. There was no corroboration. The jury were, quite correctly, directed to treat such evidence with caution. If, as Jane asserts, the witness was so very important to the defence then he would have been at the murder trial. Robin Garbutt would have made sure of that. Holiday, or not. However, the Court of Appeal also gave Garbutt the benefit of doubt on this point when handing down their judgment saying it could have been ‘an honest mistake’ on the part of the lady on the village green. 

SL: It sounds like the defence, it should have been cut and dried for the defence.  They’ve got very little to actually defend against.

 – Once again, Dr Lean’s intervention borders on the incredible. To make such an assertion means she has not read either the summing-up transcript or the Court of Appeal judgment. Or, if she has, she doesn’t recognise their significance. The Garbutt trial turned on the armed robbery fantasy. The judge made that plain in his sentencing remarks, as did the three appeal court judges in upholding the conviction as safe. 

JM: Yes.

SL: So, tell me about the defence.  Tell me what they argued and how they tackled the case.

JM: Yeah, ok.  I think it needs to be said as well that everything that could have gone wrong , everything that could have gone wrong for Robin, went wrong.  The investigation was incredibly poor.  The crime scene wasn’t protected.  There was all sorts which we’ll go back to about the crime scene and then the court case…  Everything’s gone wrong.  Of course, when you choose a defence team for a murder- I mean, how many people do you know have to choose…? In our lives we might be able to get recommended an estate agent because many of us move house and we can recommended a good estate agent or a bad one.  “Stay away from them.”  But you don’t do that when you employ a defence team, do you?  How many people do you know who’ve needed a defence team for something like this?  So you don’t know until it’s too late that you’ve not got a very good defence team.

Did you want me to talk about the defence overall with the evidence to http://unclear Robin’s innocence?

– The fact that the police investigation was sub-optimal is accepted on all hands. It is covered in considerable detail in this article posted elsewhere on this website (read here). The defence barrister, James Hill QC, took full advantage and described it to the jury as ‘a comedy of errors’. The judge was rather more restrained, but summed it up by saying North Yorkshire Police showed ‘a regrettable lack of professionalism’. The jury were aware of all the police failings that the Garbutt team constantly re-heat, as was the appeal court. Both made their decisions in that light. When blaming the defence team, Peter Furness of Darlington solicitors, Clark Willis, and Mr Hill, Jane does not, as usual, go into specifics. Particularly, where they departed from the instructions of Robin Garbutt, by which both lawyers would be ethically and professionally bound. More crucially, Messrs Furness and Hill, the latter a very experienced and well regarded QC in defending murder allegations, had a client who had not told the truth to police and then, plainly, lied to the court; a disgruntled wife with a constantly roving eye; unexplained, lavish expenditure against a backdrop of a failing business and whose defence centred on an ‘armed robbery’ that very clearly did not take place. An independent observer might take the view that the defence team did very well in persuading 2 of the 12 jurors that Garbutt may not have been guilty. It is also a matter of public record that the defence team were praised by very senior judges for the way they presented the case at the Court of Appeal. This ‘sour grapes’ ground of discontent amongst the campaigners has never before been raised publicly and, again, does them very little credit. Dr Lean, of course, does not ask any specifics regarding the alleged defence team failings: What did the lawyers actually do wrong and where, specifically, did they ignore their client’s instructions?

SL: Yeah, actually I think it might be better if we go back before we come to that and talk about the actual evidence that was available that pointed away from Robin.  So tell me about things like the hair and the DNA and things like that.

JM: Ok.  Well initially at the crime scene, we know that the Police thought it was or decided that it was Robin very early on, probably within days.  We know that for a fact.  We can evidence that. But things like at the crime scene, in the bedroom where Diana’s hand was, there was a clump of hair and it wasn’t Diana’s.  Diana had dark hair and Robin had very short grey hair.  This was a mid-brown clump of hair and it was massively important because from that there could have been DNA harvested from it, and of course it was lost.  They were never able to use it because it was lost.  It was bagged and moved away but it was lost.  They showed it on a huge photograph in the courtroom but it wasn’t allowed because it wasn’t there in evidence.

 – The jury were made fully aware of the missing clump of hair and its potential significance. As evidenced by the use of the relevant crime scene photograph in the jury bundle. That is factored into their verdict. It is clear, also, that Robin Garbutt became a prime suspect a very short time after the body of Diana was discovered. The evidence of PC’s Reed and Graham-Marlow at trial bear that out. As does his first interview at Northallerton Police Station a few hours later.

What they’d said was that Robin had killed Diana while she was asleep.  But the crime scene photographs show that- oh, because they said there’d been no evidence of a fight, of a struggle but in fact the contrary because in the crime scene photographs you can see that on the bedside cabinet that the lamp’s fallen over, the mirror’s fallen over and the witness who came to help Robin had to pick things up to get across the bedroom to help because there was stuff all over the floor from a fight.  There was also a very strange thing; there was- The Police said there was no blood spatter.  There was never any blood on Robin.  When they examined his clothes there was no blood. And the Police, when they’d interviewed Robin at some point, said that there would have been a lot of blood, the bed was soaked in blood but there was none on Robin.  And there was two bedside lamps, nobody realized they’d gone missing but the Police had said there was no blood spatter to be found.  But months later some experts in London were looking at these crime scene photographs and said ‘where are these lamps?’  So a Police officer had to go back to the crime scene, because nobody was allowed to go anywhere near the crime scene – it was cordoned off and had been locked up and of course, Robin had been arrested by then.  So when the Police officer went back with another officer to look for these lamps, they’d been put on the top of a wardrobe, on the top shelf of a wardrobe.  So we don’t know why anybody would have done that.  They’d actually moved – and when they had examined them, there was blood spatter on them.  So whoever had harmed Diana would have been – they certainly would have had blood spatter on them.

 – This narrative also bears strikingly little resemblance to what was evidenced in court. The jury heard that there was no significant disturbance in that bedroom. Diana was laid face down IN the bed and had been struck three blows from behind. One to each side of her head and the one that was probably fatal, across the top of her skull. That was the wound that bled onto the pillow, not soaked all over the bed as Jane falsely claims. A forensic crime scene/blood staining expert, Joanne Millington, gave evidence at the trial and she told the court that there would be little or no blood spatter from the one wound that punctured the skin on top of Diana’s skull. That opinion was aided by the re-construction of a head, using a mannequin. The Garbutt campaign’s proposition that there was a fight between Diana and the killer overlooks the fact that she spent 7 years in the Army, latterly in close protection security, where she received unarmed combat training and, in her later civilian career, was used to handling prisoners from high category prisons, again with appropriate training. Diana’s body, hands or face showed no injuries consistent with a struggle. But, most crucially, it would have been, by necessity, a soundless altercation with no noise heard in the shop immediately below – and she then got back in bed, laid her head on the pillow and allowed the attacker to bludgeon her to death. Once again, Dr Lean sees no reason to challenge Jane’s ridiculous, contrived account. 

The other thing about the crime scene, massively important, is that none of Robin’s DNA.  The crime scene was a pillow where Diana had died and there was none of Robin’s DNA on the crime scene.  However, there was a mixed profile, of at least three males on there as well as another profile of somebody else that we’ll maybe talk about that’s connected to the little bar, the murder weapon.

 – One of the enduring mysteries of this case is how Robin Garbutt’s DNA is NOT on the pillow in a bed in which he says he slept with his wife on the morning of the murder. Dr Lean failed to take up that point.

This is a private bedroom.  This is a private bedroom.  And also the murder weapon was a rusty bar.  It was quite – the bar was used to murder Diana with.  And it was put – I knew I’d do this, you go round and round in circles and there’s so much to tell ‘While I’m talking about that, I need to tell you about that as well’ so I apologise.  So, the murder weapon.  Can we talk about the murder weapon?

SL: Yes, please.

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JM: The murder weapon was found two days after the murder.  So the murder was on the 23rd, on a Tuesday and there was Police everywhere from that moment on and there was fingertip searches going on in the village. But this murder weapon wasn’t found for two days.  And it was found on a very, very high wall. Eight and a half, nine foot wall, right at the back of the Post Office, across the road.  I’m talking a small road, not a great big motorway road, a little village road.  And the Police said ‘this was the murder weapon.’  Initially they said there was DNA on it a full http://unclear male profile.  But they said this was the profile of the wielder.  Whoever had held the weapon and hit Diana with it.  Then it turned out that the DNA was actually belonged to a Police officer.  Robin’s DNA isn’t on it.  But the Police officer who was there when it was found, his DNA was on it.  The troubling thing about all of this is that, when the pillow case was investigated for DNA, it became apparent that there was a linear void in the pillow case which has come from a bar, so what we think’s happened is that whoever’s hit Diana, at some point they’ve gone to hit Diana but they’ve missed and hit the pillow case that she was laying on.  In this linear mark, rust mark, is DNA and in that DNA is a profile of the same officer.  Well, that officer wasn’t on duty that day.  He didn’t come on duty until the 25th.  So how on earth does DNA from an officer who doesn’t come on duty for two days appear on a crime scene that he’s never been in? He doesn’t go in the crime scene.  Which could surely only point to cross-contamination at some point.  Which can only render that there was so much wrong with the investigation and the trial.  It’s incredibly worrying that that’s happened.  That somehow there’s been cross contamination after… How did they come together?  The pillow and the bar after the…  We may never know how that happened.

 – The jury at the murder trial heard of how and where the iron bar was found and about the cross-contamination of evidence. The officer concerned, PC Darren Thompson, gave evidence and was cross-examined. Yes, Jane, the investigation was poor. But, Jane, the trial was conducted with that in full view of the jury and an open goal for the defence. However, the jury still found that Garbutt was lying about the armed robbery. That’s the reality.

SL: I think as well there’s something about, there was still photography of the wall on the 24th and the bar wasn’t there?

JM: That’s right. Yeah, yeah.  There was film footage of the actual wall and the camera pans across the top of the wall and this was found a long time after trial.  This was probably found after the appeal.  And people took still photographs of the wall which have been examined and people have examined the video footage and we know for a fact that this was on the 24th, the day before the bar was found, and the bar isn’t on the wall.  It’s not there.  So at some point the bar’s been placed.

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 – Jane’s proposition appears to be two-fold: Robin isn’t tall enough to reach the top of the wall from the West Road side of it and that someone has placed the iron bar on top of the wall two days after the murder in the expectation that it would then be found. The unspoken inference is that the police were responsible when the more likely scenario is that Garbutt, or an associate, has delivered the bar to that location, wiped clean of his DNA and, thus, throwing suspicion away from him. Of one thing the reader, Jane and Dr Lean can be certain: Two armed robbers, who have also senselessly beaten a woman to death for the sake of £16,000, did not return to Melsonby, swarming with police and with vehicle checks in situ, and place the iron bar, with the victim’s DNA still on it, less than 20 metres from the crime scene. 

What the prosecution case said was Robin had murdered Diana in the dead of night, while she was asleep and then he’d crept downstairs, ran across the wall – ran across the road, sorry, then placed this iron bar on top of the wall.  There’s all sorts wrong with that.  They never said a time, they just called it the dead of night.  It’s not something anybody would do.  I don’t know why anybody would do that.  I mean, if Robin had done what they say he had, I don’t think he would have run across the road and hide his – I think he’d find somewhere…  Why would he do that?  Why would you do that?  And also, not only that, Mike Naughton who is the private investigator we met a long time after.  We met him in 2018 by pure coincidence, but that’s another story.  But he was the private investigator employed by the original defence team, back in April, March-April 2010.  He went back and he recreated, tried to recreate the bar on the wall.  Because we knew the exact spot where the bar was found from police photographs, and it can’t be done.  He’s the same height as Robin and he- we photographed him trying to do this, and it can’t be done.  Robin would have had to climb up the wall, lean across a telegraph pole, and then lean as far as he could, and he still couldn’t reach the place where they said the bar was.  And the bar was placed strategically across the top.

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The other side of the wall – this side of the wall is 8 and a half, 9 foot, but the other side drops down to a – there’s a hill at the other side that drops down to about 3 foot, and the people that worked in the garage – there’s a garage on the other side of the wall – and the people who worked in the garage that day said that they were looking over the wall, watching all this story unfold, all the ambulances and Police, people cordoning off the road, and nobody saw the bar on the wall.  Because if anything had been left on that wall they’d have moved it because children pass, people pass, it wasn’t… so there’s huge doubts surrounding all of that for Robin.

SL: So one of the other things, from memory, they said that there was no suspicious people around in the area.  There’d been no suspicious activity in the area, either on the day of the murder or in the lead up to the murder, but that’s not true either is it?

 – This was not heard in evidence at either trial or the Court of Appeal. Dr Lean had plainly been primed by Jane Metcalfe to push that point.

JM: No, no. That’s anything but true.  There was tonnes of criminal activity around.  Not only was there suspicious activity, Sandra, there was known criminals in Melsonby on the 23rd of March 2010.  We talked about this the other day, Robin and Diana were massive creatures of habit and really were creatures of habit.  Every Monday night, Robin would go to the cash and carry and pick up fish & chips.  He’d go home, they’d have fish & chips and he’d take out the expensive stuff out of the little car outside in the back yard and then the following morning,  Tuesday, he’d get up, open up, let his delivery men in and then serve his customers in between emptying the rest of the goods from the car from the night before from the cash & carry.  On this particular night, the night before the murder, when Robin went to the cash & carry, four CCTV cameras picked up a car following Robin to the cash & carry.  We’ll not say following.  It was the same car picked up on four cameras on Robin’s journey to the cash & carry.  The same car is picked up on his return journey from the cash & carry.  And also, a fortnight before, there was some- when they’d been robbed in 2009, it really upset Robin, it unsettled him a lot and they did talk about leaving and moving because it really frightened him.  But they didn’t and lots of people persuaded them to stay and they loved their life there.  So there was things like- there was a noticeboard outside the window of the shop & the Post Office and the Parish Council agreed to move it, because Robin was nervous and he didn’t have a very good view out of his window so the Parish Council were really good and they moved it, they understood his fears.  The Post Office wouldn’t put any security in, that wasn’t what the Post Office do.  They were going to get CCTV but unfortunately… the money was going to be spent on something else, they didn’t spend the money on the CCTV, it was going to go on this fabulous new kitchen they were having done.

 – ‘Tonnes of criminal activity around’ says Jane. In a village that had one of the lowest crime records in a county that is shown, statistically, to be the safest in the country. The court heard that community police visits were reduced to one every four weeks, such was the peaceful nature of Melsonby. Garbutt couldn’t explain to the jury, and Jane doesn’t attempt to explain either, why spending £1,500 on a compact, but reasonably sophisticated, CCTV system for the interior and exterior of the shop was placed behind spending £10,000 plus on a refurbished kitchen. In the light of Jane’s recent claim that there had been three prior armed robberies, it would strike the independent observer as inherently absurd that such a decision could be taken by a postmistress and her shopkeeper husband. Unless, of course, Garbutt was already planning to repeat the 2009 ‘robbery’. There appears to be no other plausible explanation.

Two weeks before the murder, there was some shady characters came into the Post Office and other customers were in at the same and actually said to Robin ‘they look dodgy, they weren’t here to shop.’  And when Robin had said to them ‘excuse me, can I help you?’ they just picked up something and bought it just to sort of- but they were looking round, they were casing the joint.  And Robin made a diary note of it, he used to keep a diary in the shop and he diaried – he noted the day and the time.  I’m not sure if he got a car number, I don’t know if it went into that much detail but it was logged. There was also a strange car that was seen.  People had spotted a blue car and somebody crouching down in the car.  There was a motorbike involved and there was some criminals that had been convicted criminals, they’d done a hole in the wall, you know, like the cashpoints ‘hole in the wall’.  They were convicted http://unclear for that.  And they were actually in the village on the morning and it showed on the Sat Navs where they’d been and they just talked it away.  They just said they’d been pricing a job up.  They lived miles and miles away, the other side of Darlington somewhere.

 – None of this was heard at trial or at the Court of Appeal, apart from the blue car. Garbutt’s diary was not produced in evidence. Jane appears unclear about what it did, or did not, contain. If it was so crucial, she would know.

The other important point on that one was, after the murder there was an anonymous phonecall to the Crimestoppers.  There was a Crimestoppers thing, I think it still exists now; you can ring up with information for the Police.  This is all documented by the way, this isn’t hearsay, this is all in black and white. Somebody phoned and actually named – this was on the 24th, this was hours after the event -named somebody, gave them a name and said this guy – which I won’t name, has- was seen in a crackhouse yesterday with a load of cash and said he ‘didn’t mean to kill her, that was never- that was never what he wanted to do, he didn’t mean to kill her.’  That information was given to the Police and the Police said ‘we know it wasn’t him (the name) because he was under surveillance by the Police.’  No-one’s ever seen evidence of that.  No-one’s ever seen anything to show that that was true.  So there was lots of – there was a car that was burnt out later on that day, or the following day a few miles away.  There was a car that was found burnt out.  There was a ski mask and a ‘BB gun’, a ball bearing gun, they look very much like guns but they’re not real guns.  They were found behind a working men’s club about 17 miles from Melsonby.  And I think it was Cleveland Police that found it and they said ‘we’ve had no suspicious activity in our area’, knew there’d been a robbery in North Yorkshire so passed it to North Yorkshire Police.  It’s never even been tested for – Mike Naughton, the private investigator’s tried to request for them – they’ve never been tested.  They’re still – as far as we know in a box in a cupboard somewhere in wherever North Yorkshire Police keep their… I don’t know what they’ve done with it, they’ve never been tested.

– ‘No-one’s seen any evidence of that’ says Jane about the clearing of the Crimestoppers suspect. Nor are they likely to. For very obvious reasons, details of covert policing operations are shielded from the public eye. But if the CCRC did ever decide to investigate the Garbutt case further, they would have access to that material. No report of a burnt-out car appeared in the local press at the time of the murder and its alleged existence was not put before the Garbutt trial a year later. Jane omits to say whether the vehicle was found 5 or 50 miles from Melsonby. With regard to the ski mask, and the BB gun to which Jane alludes, these are the facts: The ski mask was of a completely different type, texture to the balaclava described by Garbutt to police at the time of the murder. He confirmed this from the witness box. In that same cross-examination he said that the gun exhibited, and shown to him in court, was of a similar square type, and colour, to the one used in the robbery. This ran counter to his evidence in many hours of police interviews, when he repeatedly said he couldn’t describe the gun. It is not known whether Cleveland and/or North Yorkshire Police tested either item for biometric samples. It would be utterly remarkable if they did not, in the context of other enquiries unconnected to the murder of Diana Garbutt.

SL: You can’t call it evidence because they didn’t use it? They didn’t test it?

 – Another ludicrous interjection from Dr Lean. Both items were used in evidence in court. Highly significant evidence as it happens, as Garbutt’s credibility before the jury crumbled once again.

JM: Yeah

SL: So, just to go back to – you mentioned the fish & chips there –

JM: Yeah.

SL: This ‘so called’ expert on the stomach contents…

JM: Yeah.

SL: This was based on the fish & chips that Robin and Diana ate on the night before?

JM: Yeah.

SL: But they even managed to mess up the collection of that, didn’t they?

JM: Yeah, they did.  The Police take the fish and chip wrappings from the communal yard and weigh them and then this ‘so-called’ expert is then going to decide, from the scraps that are left, how much Diana ate.  But initially, the first time they tried to do it, they chose the neighbours’ fish and chip wrappings, they didn’t even get the right – Diana’s fish & chip wrappings were still in the house, in their kitchen in a black bin liner, ready to go out into the bin.  But what they did was they – so she, the expert reckoned she can give an exact time for the time of death – which it’s not an exact science – she kind of makes out she can. In the – I’m sorry, I’m losing my thread there a bit.  I’m thinking about the appeal court and how we’ve been able to prove how her evidence has now been – shall I talk about how her evidence has now been…?

Jane correctly alludes to another North Yorkshire Police blunder, but it does not impact on the evidence heard at court, the conviction, the appeal or any applications to the CCRC. 

SL: Yeah, that’s the obvious next place to go.

JM: Yeah, the two main planks of the prosecution case are theft and time of death.  The first one is theft, and at appeal with an audit they were able to prove that Robin hadn’t stolen anything, at all, ever.  The business was a healthy, thriving business.  Newspapers have peddled that they were in debt.  They weren’t in debt.  It was all managed, they didn’t owe anybody any money, other than what they borrowed legally.  And there was no letters from anyone saying ‘you owe us any money’.  It was just a story they peddled.  So they were able to prove at appeal that no money had ever been taken.  The business was actually healthy and the Court of Appeal accepted that, but then Court of Appeal said ‘however, we think it was the time of death the jury convicted on, so off you go back to prison, we’re not – we accept there’s no theft.  We can wipe that clean, no theft, but you’re left with this one plank, time of death.  So Robin – that was it, back to prison.

 – The business was not healthy or thriving. Extensive evidence, including cross-examination, over two days at trial from two fraud experts made that plain to the jury. With regard to debts, they owed £43,000 in credit card and bank loans. Plus a £60,000 mortgage on a property for which they paid £105,000. Jane’s assertion that the appeal court made a finding that Garbutt ‘hadn’t stolen anything, ever’ is completely without foundation. Another Metcalfe lie. In six paragraphs (out of thirty-one) the appeal court judges summarise why they found that the conviction was safe. Central in that is the finding by the jury that the armed robbery did not take place, even after allowing a number of concessions in Garbutt’s favour.

So then there was lots of investigating done on the time of death.  And what it turns out happens is this expert, she actually turned out – it turned out her expertise was archeological digs.  That’s where he expertise lay.  But she – eventually another expert, a Home Office pathologist worked along with Robin and we discovered that this expert contradicted herself in another trial and had she used the same method with Robin as she had in another murder, she would have got a totally different result.  And also she got her science completely wrong, her science was completely wrong.  Now also, second plank; time of death has been completely wiped.  Rubbished her science, the science was wrong.

– The issue of the time of death is much simpler than Jane makes it out to be. As rehearsed above, the evidence of the Home Office pathologist (and that of the neurologist) was very likely to have had more impact on the jury than Dr Miller’s. A more recent expert brought in by the Garbutt team, Dr Brian Rouse, asserted that Dr Miller was ‘incorrect’, based on her allowing a greater margin of error in an almost identical case at which she gave evidence. His conclusion was that the time of Diana’s death MAY have been substantially later than 4.30am. POSSIBLY after 6.45am. That lack of certainty does not advance the Garbutt innocence claim or undermine sufficiently the evidence heard at trial regarding time of death.

The other interesting thing about that was in the court room, in the trial, this expert, the ‘time of death’ expert, the ‘stomach contents’ expert is pitched alongside this very reliable witness who came into play on the day of the murder.  A gentleman who lived in the village gave a statement to the Police saying he heard Diana call to Robin at 0645 on the morning.  He went to the shop every day, he used to go in every morning on his way to work, for the paper.  He remembers exactly why and what for.  He went straight to the Police when all hell let loose, and everybody arrived at this awful, awful morning.  He went straight to the Police and said ‘I heard Diana call to Robin from the back of the shop.’  Not – she wasn’t alarmed.  It was a, you know ‘Robin!’ She wouldn’t ever come through to the shop when she had her pyjamas or anything on.  And Robin just acknowledged and said ‘Yeah, in a minute Di, in a minute Di’ he was serving customers, and she wouldn’t come in until the customers left.  So in the court room, what they did was, we’ve got this very reliable witness who said he heard Diana, he wasn’t friends with Robin and Diana, he was just a gentleman who lived and worked in the village.  So he’s heard Diana’s call out at 0645.  What they did in the court room is, they said ‘we’ve got this evidence from this expert about time of death, who’s saying that Diana was killed between 0230 and 0430.  Now we’re not saying this gentleman is lying, who said he heard Diana at 0645, but clearly he’s mistaken.’  So they don’t pooh-pooh his evidence, but they undermine it because they’re pitching him against this expert.

 – The witness who gave evidence at trial was Brian Hird. He told the court that he didn’t know Diana and wouldn’t recognise her voice. His evidence was that he heard a female call out through a closed door at 6.45am. According to Mr Hird, Garbutt had replied ‘Yes, dear’ or ‘Yes, Di’ (not the embellished version Jane pushes). The murderer had never previously mentioned this to police, before the court hearing over a year later. Extraordinary in the circumstances considering that, if true, it would have been the very last time he heard his wife alive. He couldn’t explain, either, why he hadn’t spoken to Diana after that interchange, once customers had left the shop. Another damaging blow to his credibility. The jury were highly alert to Mr Hird’s evidence as, shortly after retiring to consider their verdict, they sent a question to the judge concerning Mr Hird’s witness statement. Nevertheless, they still found Garbutt guilty.

SL: But he had very good reason to remember, to know it was this particular day, didn’t he?

JM: Sorry Sandra, I didn’t hear what you said then, sorry.

SL: That witness that, they said he might have been mistaken, probably meaning it might have been another day.  But he had very good reason to remember why it was that particular day, didn’t he?

JM: Yeah, yeah.  Well he did.  I think he used to work full time, he worked for the environment and he used to go on a different – to do a different job.  He used to go and do some voluntary down by the – to do some environmental work.  And he was a keen bird watcher, listener.  So he was a keen bird – so he knew what he’d heard and he was specific about… And he’d gone that day, he went to the Police that day.  He didn’t go to them four days later and say ‘I can’t remember, I think I heard – actually went to the Police that day.  And I think he had to go to them twice before they came to get a statement from him.  As I say, we know that the Police had made their minds up – they cherry picked – they made their mind up that they had their man in Robin and they didn’t investigate so much more that could have been investigated.  And I can never get my head round that ‘Why?’  Why would they do that?  Why would they do that?  But it’s been put to me that, you know, they weren’t very experienced with murder cases in North Yorkshire and the inexperience – also they wanted to shut it down as quick as possible because the previous year, in the same – in North Yorkshire, not far from York, or in fact, in York there was the Claudia Lawrence case, which was a chef who worked at York University who went missing. And her case was criticised.  They criticised the investigation. You know, the Police were criticised highly because of that.  So maybe they wanted to shut this down.  Maybe they wanted – maybe that’s why they did it.  That was their motive for shutting this down.  You know? ‘We’ve got our man, we don’t need to look at anything else.  And we’re not going to throw the net any wider because we’ve got the man.’

 – The police were drawn to Robin Garbutt as a prime suspect by his own suspicious behaviour, as rehearsed above. 

SL: So, that then brings us to your involvement, and I have two questions for you.  The first is, why do you do this?  Why do you continue to do it?  How – why are you so involved in trying to get this – the details of this case, the facts of this case out before a wider public?

 – Jane Metcalfe is not determined to get the facts out at all: She and her fellow Garbutt campaigners have a lengthy history of concealing facts. Particularly those that run counter to whatever narrative they happen to running at a given time. She has been aided, in recent months, by journalists not applying the necessary rigour and simply accepting the highly distilled Garbutt narrative. 

JM: A couple of reasons.  One reason has become, it kind of evolves doesn’t it?  I was saying to Sally yesterday ‘we never set out to do a campaign.  We didn’t think ‘Ooh, let’s do a campaign.’  It wasn’t that.  I think they’d come to the end of the line. They’d gone through appeal.  We’d applied to the CCRC.  My God, that’s it.  You’re on your own. There’s nobody out there to help.  There’s no official body who’d come in to help you.  So, my reasons have sort of changed.  Now, part of the reason we do it is because public perception has to change.  People have to know that wrongful convictions are not rare.  They happen.  And not only do wrongful convictions happen, to overturn that wrongful conviction is virtually impossible.  The system works against you.  You’re one man/one woman, on your own and you’re working against this massive, massive machinery of the Police, the CPS,  and then beyond, beyond that.  I once likened it to – I couldn’t think of an analogy of how to describe what goes on in the justice system and I thought about – when several washing machines break down, bear with me, when several washing machines break down, and a few people’s kitchens get set on fire they do a recall.  They recall that machine and say ‘anybody who this Bosch number 64321, stop using it, we’re going to send an engineer in, or we’re going to take it off you and we’re going to replace it.’  We need the justice system to have something similar, that when it becomes obvious that there’s a massive doubt over a conviction there should be a team, some- a flag that’s raised, some professionals go in and sit around a table, with the family maybe or the victim himself and talk about it, and help.  And work towards that –  we’ve got some wonderful people in the miscarriage world, yourself, Sandra for one, and Dr. Naughton and Glyn Maddocks, and Dennis Eady.  People who are just incredible people who work so hard to make changes although against a big machine.  Maybe it will come, maybe we’ll get the changes.  So that’s one reason we felt it was really important to get the public perception changed because that would help Robin.

 – No changes to the criminal justice system will come about as a result of either Jane Metcalfe’s involvement, or Dr Lean’s for that matter. Except, perhaps, for the conduct of this campaign to be marked as vexatious, and oppressive to Diana’s family. It is also an abuse of the criminal appeals process on every level. Those involved with it need to take a long, hard look at themselves.

When they reached the end of the line, and I’ve known the family for a long time, I knew Robin from years ago but got back in touch with him, obviously, when all this happened.  My (audio unclear) with his mum and I wrote to his mum after the trial, and nobody thought Robin would get convicted.  Nobody thought they’d even get into a court room.  All his friends, nobody believed it.  And I got in touch with his mum, I wrote to his mum and she rang me.  I didn’t for a minute expect to hear from her.  I knew she was inundated with letters and calls from people and support.  She phoned me.  I wrote on the letter – I didn’t know her first name, so I just wrote ‘Dear Robin’s mummy.’  I got this call one day, picked up the phone and this lovely voice said ‘Is that Jane?’ ‘Yeah.’  She said ‘It’s Robin’s mummy’ and I couldn’t believe that she’d phoned me and we had a long conversation and from that we just became really close friends and became a close family friend with Robin, Sallie and Mark and the kids.  And when you watch your friends going through something like this and you know there’s not – and the more of the case that was revealed to me, actual statements and… I used to sit at home and read it and think ‘No, this is just unbelievable.  There’s nothing – there’s just so much evidence pointing away from Robin.  Overwhelming, shocking amount of evidence to support Robin’s innocence.

 – Jane falls between two stools again. She claims she has known Garbutt and his family for a long time, but didn’t know the name of his mother, or anyone who could give her that information until well after the trial. 

Sallie and I went to a meeting together, a wonderful meeting, United Against Injustice in Liverpool (UAI).  They don’t actually do your case, but they put you in a room with people who can help you.  That really was a starting point.  So, Sallie and I went to this meeting and my little girl came with me, my daughter came with me and the CCRC were there which was terrifying.  We, we – from there, we met other people who have advised us what to do and there was people up there telling their stories and you cried watching these people because you knew what they were facing.  And I said ‘Sallie, these are the people’ and she said ‘I could never do that.  I could never stand up there.’  And I said ‘I will.  I will.’  And when you love your friends, and I do love my friends, you’d do anything for them.  Wouldn’t you?  And even if – and I hate doing this, I don’t like being – I’d rather… But we had a joke actually about the – there was an awful photograph that was picked up of me.  It was a photograph and it wasn’t very flattering and I said to everybody – we wanted to publicise this meeting, this case and we had to use this photograph and I looked at it thinking ‘Which is most important, this awful photograph going out in the world or Robin’s justice, and I said you owe me with this horrible photograph.’  So I don’t enjoy doing it, I don’t like doing it but I’d be better at it than Sallie. Sallie would be a gibbering idiot – I shouldn’t say that, you’re not a gibbering idiot, Sallie.  She’s incredible.  They’re all incredible, the paperwork that they’ve had to do.  And that’s another thing; you could employ people, there’s so much work to do.  You could employ two or three people full-time to trawl through all the work, but you have to do it by yourself.  Rely on friends to help you do that and fortunately for Robin he has got some – a wonderful family and some fantastic friends from the village – people from Melsonby who are still there, never gone away.  They write to him all the time.  So I do it because I love them and I want to help and I want to – and it’s something that we’ve done quite well in.  We’ve met some great people who’ve – who want to guide us and help us, which is just amazing.

‘Sallie would be a gibbering idiot’ says Jane, without a trace of irony. United Against Injustice (UAI) is an organisation that has been riven with infighting for many years. It is now run by Kevin McMahon, an ex Merseyide Police civilian officer with a conviction for witness intimidation. His co-founder, Andrew Green, a lecturer in law at Sheffield University and noted miscarriage of justice advocate, was driven out in 2016. Jane has denied that she is romantically involved with Robin Garbutt but loves him and his family.

SL: So, you say you’ve become close to the family and you love them.  What is it that convinces you that Robin is innocent?

JM: Well, everyone says, and it’s true, Robin is the nicest man.  You will not meet a nicer, funnier guy.  He’s genuine, he’s non-judgemental.  While he’s in prison now, he’s doing so much work to help other kids, other lads in prison, it’s – but even if he was the most miserable, middle-aged, grumpy old – unsociable, unlikeable character, the evidence is absolutely overwhelming.  It’s stacks up all by itself.  If Robin Garbutt was just a (audio unclear) wasn’t a nice person, the evidence supporting his innocence is overwhelming.  So, I always knew he was innocent.  We always knew that, you know, if he’d done it, he would put his hands up to it.  There’s no way on God’s Earth that he would put his mum and his step-dad and his sister, his family through this.  No way would he do it.  If he’d have done it – maybe we’ve all got a breaking point, maybe we all know we all have a point where something gets that bad but – they loved each other.  They loved each other very much.  There was a few – there was talk at the beginning of – the newspapers peddled the story that Diana was having affairs.  They weren’t really affairs.  She had a couple of flirtations within the drink, she’d had too much to drink and she kissed somebody and there was something else – the thing was, it couldn’t be used against Robin because Robin didn’t know about them.  Robin knew about the thing with the cousin.  He knew about that and it caused trouble, it caused trouble.  But that was the year before.  That was all done and dusted.  Life was good, it was happy.  But the evidence stacks up all by itself.  Stands alone.

 – The court heard from seventeen defence witnesses who all spoke well of Robin. But none of them brought testimony that could assist him in respect of the alleged armed robbery taking place. The court also heard that Diana had told one of the men with whom she was romantically involved, Kevin Heapey, that her marriage was ‘doomed’ and what they had ‘was something special’. They were planning a life together once both of them had removed their ‘baggage’ (existing relationships). Jane repeatedly states that ‘the evidence stacks up, it’s overwhelming’ but doesn’t point to any that the CCRC or Court of Appeal would find persuasive. Another conundrum ducked by Jane is that in the first Garbutt police interview, conducted on the day that Diana was killed, he refers to the murder having taken place in ‘Di’s bedroom’ then quickly corrects himself to ‘our bedroom’. (Watch the 4 minute clip here).

SL: One other thing that I wanted to bring in, the Post Office – so, there’s been this big case about all these people that were accused, some of them convicted for stealing from the Post Office.

JM: Yeah.

SL: It was actually the Post Office’s own software that had introduced that was miscalculating and making it look like there was money missing when it wasn’t, and they’ve had quite a success in the courts, the Postmasters that took that case that case to court.  So, just to clarify, was that the system –

JM: Yes.

SL: That was in place in Robin and Diana’s Post Office?

JM: Yeah. Yeah, exactly the same system.  And at appeal we were able to prove there was no – at appeal we were able to talk about that. But the Post Office Horizon case is massive.  I don’t want to say too much about it really because it’s kind of ongoing.  Because Robin had – Robin’s team – Robin has – another application has gone into the CCRC, the Criminal Case Review Commission, with lots of new evidence in it.  And hopefully this time the CCRC will see that this man is innocent and even though they’ve had previous applications, this one’s got more clarity in it.  The lawyers are as we speak, preparing an addendum, which is in addition to the CCRC application because Robin’s application went in in December and the judgment didn’t come through for the Post Office Horizon until after the application had gone in.  So there’s another being prepared now.  But the CCRC have referred loads of cases, which is fantastic.  Loads of Post Office Masters – and as you say, some of them went to prison.  Their lives were ruined by – and the most troubling thing of all is the Post Office knew, the Post Office knew for ten years what the – and they used to tell individual Postmasters.  They’ve had a massive programme on Radio 4, anyone can find it now, it’s out there.  It’s called The Great British – The Great Post Office something or other, it’s been on Radio 4 everyday.  Nick Wallis is one of the investigators who worked on it, a journalist, I’m not sure if he’s a journalist but, anyway, he’s a documentary maker.  He’s a great guy.  I think there’s a programme coming in the next few nights on television about it.  In fact, he wanted to cover Robin’s case.  He contacted me and said ‘How come we’ve never known about this case of Robin Garbutt? I can’t believe I don’t know about this case.’  And there’s hope that sometime we’ll do something on the case.  He’s just been so wrapped up in what they’re doing now with the Post Office Horizon – that at some point there’s a chance that he will do a piece on Robin’s case as well, because it all ties in.

 – This is the biggest red herring of all. The bare facts are these: On both the occasions of the alleged 2009 and 2010 robberies the sums said to be taken from the safe – £11,300 and £16,150 – tallied with what was in the post office accounts. That was Garbutt’s evidence at court. There was no shortfall as a result of malfunctioning software. There was an empty safe on two occasions, with a total of £27,450 missing, with threadbare accounts of robberies, at peak school and commuter time, that not one single person witnessed apart from Garbutt in either 2009 or 2010. It is probably not a coincidence that the amount spent on holidays, luxuries and the new kitchen would reveal a figure close to the amounts said to be robbed from the safe. A mystery that Dr Lean doesn’t pursue is that if the Post Office judgment was made public on 16th December, 2019 (eleven days after the submission of the third Garbutt CCRC application) why it has taken six months to prepare ‘an addendum’ to that application? 

SL: Yeah, you had another very well known writer/journalist do some work on Robin’s case earlier on –

Dr Lean and the ‘very well known writer/journalist’ were close associates – and two of the driving forces behind the Gordon Park innocence claim. Sandra ill-serves her listeners by not disclosing that.

JM: Yeah, we did.  We had  – Sallie, Robin’s sister- after they failed at the appeal and it was devastating for them.  The work that Sallie and her family have done is incredible, but Sally came across and contacted an incredible guy Bob Woffinden who’s an investigative journalist and he’s written several books and – incredibly highly thought of, and he put so much work into Robin.  He completely believed it was a miscarriage and we’ve got so much paper work that we hand out – we use it now – that’s a photograph of Robin, but we have handouts that we give, it’s a seventeen page document that Bob did.  He went to the village, he went to Melsonby, he met friends by http://unclear of Robin’s, spoke to villagers and stayed over with Sallie.  He visited Sallie and Mark.  He never got to meet Robin, unfortunately, and he did so much work.  He wanted to take Robin’s case to the Houses of Parliament http://unclear miscarriage.  But Robin was advised by the legals not to do that.  Legals, solicitors are often very guarded, nervous about being public about things.  We need to say as well that Robin doesn’t have the same legal team that he had in the beginning now – they’re no longer there.  But Bob works so hard and… But sadly, Bob died two years ago.  I think it was two years in May.  2018, 1st of May, so massive loss to his family and his friends, but also to the miscarriage world because he really made a difference.  He made a massive difference and worked – but we do say now Bob’s still working.  He’s still working for us, because we still use his work all the time and it carries so much credit.  We were really, really lucky a few months ago, that private investigator Mike Naughton – we’ve got two Mike Naughtons in our life.  We’ve got a private investigator, and we’ve got Mike Naughton from Bristol who’s the founder of Empowering The Innocent who we’re involved with as well.  But Mike Naughton, private eye, contacted Private Eye. And Private Eye contacted us which was fantastic.  And because Bob had done this work it gave the story so much credit and Heather Mills, the journalist at the Private Eye, who’s lovely, as soon as she saw Bob’s work she knew it was credible because she knew Bob.  So it’s like Bob’s still… although he’s not here he’s still – his work still helps Robin a lot.

 – It is true that Bob Woffinden was a well-regarded journalist. But the Garbutt case was not his finest hour (neither was the Park case for that matter). His piece in the Inside Time magazine, to which Jane refers, is written from the standpoint of campaign supporter, not independent investigator, and adopts some of Garbutt’s more absurb propositions. It does not address the gaping holes in the murderer’s account of an alleged armed robbery, or why he lied successively and repeatedly to the police and the court. The most telling thing that can be said of Bob’s work on the Garutt case is that it led to two applications to the CCRC, neither of which were even strong enough to move the case off first base despite the family’s high expectations. To continue to rely on that platform is, on any view, bizarre. But in keeping with how much of the rest of campaign is conducted.

SL: So if you could say something to people who find themselves in the position that Robin and his family found themselves in at the beginning, what would you say to them?

JM: If they knew now what they knew then [sic] it would be – it would have been a totally different story.  I suppose when it happens to you, anything can happen to anybody, you could get involved in a car accident, you could be in a fight you could – somebody said to me quite a long time ago ‘why are you involved?’  http://unclear I said ‘can you imagine, you get burgled, your house is burgled and in that burglary you find your loved one has been murdered in that burglary.  Imagine dealing with that.  Then imagine three weeks later the Police come for you and say ‘it was you, you did it.’ And that can happen to anybody, at any point, and if the Police decide to make it fit for you then you – you’re against the Police, you’re then against the Crown Prosecution Service and the court room.  I’d say that you’d take it very seriously.  Take it very seriously and don’t – I think what – they didn’t know they were sitting on their laurels but what they assumed, what we all assume is, the truth will out.  We don’t have anything to worry about with this because in the court case, as it all unravels, the truth will come out and everyone will know what really happened.  I mean – Sallie said, Robin’s sister said ‘in that court room, everybody knew Robin was innocent.’  The courtroom was packed.  The gallery was packed.  Everybody knew.  And she said ‘even when the verdict came in, even the prosecuting barrister, even he looked as shocked as everybody else was’.  Nobody really thought there was going to be a conviction of guilt.  And also, don’t forget that there was 12 jurors, 2 of them- it was a 10-2 jury, they took the majority, so it wasn’t a – it wasn’t an outright 12 jurors.  And poor Robin said that at the time when the jurors came out, when they came out to http://unclear he knew straight away it was guilty because two of the jurors were crying, and he knew then what the result was going to be.

 – In that courtroom ‘everybody knew Robin was innocent’ says Sallie Wood (and now Jane). That excludes Diana’s family, those villagers who gave evidence against the murderer, the press, ten of the jury, the police, the Post Office employees, the prosecution team, the expert witnesses, and the judge. 

But it can happen to anybody and you’re on your own.  You need to do as much homework as you can.  It’s kind of like if your child was poorly in hospital, you’d ask every question there was, you wouldn’t take everything for granted, you’d have to keep asking questions.  The doctors say ‘we’re going to do this’ and you’d say ‘Why? Why are you going to do that?’ And the thing that happens is you put the lawyers maybe on a pedestal and you assume they all know what they’re doing.  You assume they’re all very, very good at what they do.  And sometimes they’re not and you have to ask and question ‘Why would you do that, why would you do that? Why are you doing that?  And why are we not doing this?’  Like for example, Mike, private eye Mike Naughton, he was employed by the defence team right at the very beginning, and he came up with loads of stuff.  I mean, if we’d still got his reports – his report was massive.  He then passes it on to the defence team, Robin’s lawyers.  Robin never met Mike Naughton.  Robin’s family never met Mike Naughton, so he’s gives his report to the defence lawyers; they don’t use half of it.  You know, they didn’t use it.  Maybe they didn’t think we needed to use it.  Maybe they thought ‘it’s so obvious that this man’s innocent, we don’t have to really fight very much.’  But you have to tick every – you’ve got to make sure you do absolutely everything by the – you’ve got to fight.  Fight, you know?  And poor Mark, Mark’s Robin’s brother-in-law, he said a few times during the lead up to the trial, said to the solicitors ‘are you sure you can do this?  Are you sure you’re up for this?  It’s a big murder trial, are you sure?’  And they kept saying ‘Of course we are, of course we are.  Of course.’ Once they got the wrongful conviction – sorry, a conviction, we were stuffed.  There’s no way back.  That door’s closed.  To overturn that is – and poor Mark said he went into the chambers afterwards and was crying, as you can imagine, it must have been absolutely terrible and said ‘You’ve just managed to get the most innocent man in Britain convicted of the worst crime there is.’  But there’s no going back.  You can’t, you can’t undo that.  You can in – and the other thing to note as well is that in famous miscarriages of justice they had to go through at least three appeals before they overturned – you know the Birmingham Six, I think, were they seventeen years?  Seventeen years, the Birmingham Six fighting for. (name unclear) was seven years.  People fight for years, it takes years and anyone that thinks that they’re not working – I suppose people might think that Robin’s case, it’s all gone quiet, well it’s not quiet at the moment but, ‘gone quiet’ – he must have done it, he must have been guilty because he’s still in prison, we don’t put innocent people in prison, but we do.  We do keep innocent people in prison and that family have been working on this case every day since.  There’s not a day that goes by – I think Robin sometimes has to put it down and move away from it for a couple of weeks to then come back to it and read it again, go over it again.  But it’s – the system is broken, the system is broken.  It needs mending.  We need to mend it.

 – One of Jane’s less attractive habits is conflating the Robin Garbutt case with other miscarriage of justice claims. He talked himself into a guilty verdict without aid from anyone else. No empty safe, no alleged robbery, no conviction. As for Michael Naughton, the special constable turned private investigator, caution would need to be advised when relying on anything he says. Thoroughly exposed as a liar and a charlatan in this piece here.

SL: My final question for you, Jane, because we’re almost out of time; would you, prior to this, would you have believed this can happen?

JM: No, not really.  No.  I think I would have thought it was very, very, very, very rare.  Joyce, Robin’s mum said the same thing.  When you saw on the television news, when there’d been a murder enquiry and then later on you find out who’s done it it’s –  it was the husband or the brother or whatever and everyone goes ‘Oohh, the father did it then.’  And you just assumed he’s been found guilty, he’s guilty.  I never would have believed, never would have believed that not only can you get a wrongful conviction, which are really not anything but rare, but then once you get the wrongful conviction, you can’t overturn it.  You have to rely on the system, there’s a huge system that doesn’t recognise innocence.  You’re guilty in their eyes and hopefully things are getting better, but – this application’s in to the CCRC now with Robin and we’re praying that – they have referred quite a few lately that – their numbers have been really low for referrals.  Maybe they’re creeping up, well they are creeping up.  Let’s pray that they will see this for what it is.  It’s blatantly obvious to anybody that Robin is innocent, and we just need to get him home for his mum.  And we need to get him back – back to his family.  But no, I never would have believed it Sandra, never in a million years.

 – ‘It’s balatantly obvious to anybody’ says Jane. Except those that have researched the case thoroughly and independently. Convictions are quashed by the Court of Appeal as she well knows. The brother of her friend and supporter, Michelle Diskin, was cleared of the murder of BBC presenter, Jill Dando. Barry George was also assisted by Bob Woffinden. Which, if nothing else, shows how tightly networked those involved in miscarriages of justice are. 

SL: Jane, thank you so much for joining us today.  For telling us about the case, you’ve done a great job filling everybody in with all the details and helping people to understand that this happens to ordinary people.

‘You’ve done a great job’ says Dr Lean. Completely overlooking the gaping holes in Jane Metcalfe’s story about a cold-hearted psychopath who appears to have groomed his latest ‘victim’ into projecting a campaign grounded in half-truths and blatant untruths. 

JM: It does, yeah.  Ordinary people with no convictions, no – not even a parking ticket.  Nothing.  We said before, that you can understand it when there’s been a grey area if someone’s already had quite a few convictions, you can understand a grey area there, but not when it’s somebody who’s – They gathered 500 statements, the Police gathered 500 hundred statements about Robin.  500 hundred.  Not one, not one said anything negative about him, and actually it counts for nothing in the end.  It didn’t mean anything in that court room.  His character didn’t count for anything, it was just this evidence that was so flimsy.  And now with the – what the Private Eye said, the lady who did the Private Eye piece, I wish I could have read it out to you really.  She finishes saying ‘I wonder now what that jury would think.  If that jury heard this story now, the real story, what would they make of it?’  And that’s how she leaves it there.  She leaves the – that little piece that she wrote.  And what would they make of it?

SL: I’ll put that Private Eye piece on the website as well so that people can go and read that.

 – The Private Eye piece, by Heather Mills, largely regurgitates the Bob Wooffinden narrative, but linking it to the Horizon cases is hopelessly misconceived. That will be revealed in the fullness of time. Not the Eye’s finest hour, either.

In summary, either wittingly or unwittingly, Dr Sandra Lean has allowed the broadcast of an innocence narrative that is, essentially, grounded in deceit. It is also completely absent of consideration for the victim of this heinous crime, Diana Garbutt, and her family. Likewise, if the convicted murderer is innocent then where is the drive, or impetus, to catch the real killer(s)?  In a broadcast lasting one hour, no mention at all is made of either. It is all about “Poor Robin”.

Moreover, if this is a fair example of the general quality of Dr Lean’s research, or oversight, then she must stand discredited. This podcast is a genuinely appalling misrepresentation. As for Jane Metcalfe this is behaviour entirely in keeping with the disgraceful way the Garbutt campaign is, and has been, run. But the end will soon come for them. It is very doubtful that the third CCRC application will spark an investigation of their claims and, even if it did, it is unlikely it would lead to a referral back to the Court of Appeal. Even less likely that that three law lords would quash his conviction.

Robin Garbutt, unless he changes his tune, will spend the rest of his life in prison.

For those with an hour of their life to waste, this is the YouTube version of the interview.

Dr Lean and the Garbutt campaigners were offered right of reply. They have, unsurprisingly, not responded. Jane Metcalfe has, however, disappeared from Twitter. Her last post about the innocence claim was on 14th June, 2020 having previously been very prolific.

Garbutt’s brother-in-law, Mark Stilborn, has, since this article was published and updated, claimed in interview that Jane’s campaign is ‘independent’ of the ‘Robin Garbutt Official‘ campaign run by him and his wife, Sallie Wood. Although Mark acknowledges that the family are ‘grateful for her getting the publicity in Private Eye’. A curiosity given the appearance of the three of them together on network television as recently as March, 2020.

The Garbutt defence team at trial have also been contacted for comment. The communication did not even receive the courtesy of an acknowledgement.

Page last updated on Wednesday 9th September, 2020 at 1205hrs

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Photo credits: J.D. Butler, ITV, Press Association

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

© Neil Wilby 2015-2020. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

‘A regrettable lack of professionalism’

In an article published recently on this website, ‘That dubious constabulary merits careful investigation‘ (read in full here) a section referred to a number of catasrophic investigative failings, by North Yorkshire Police, following the murder of Diana Garbutt at Melsonby post office in March 2010.

Her husband, Robin Garbutt, was convicted in Teesside Crown Court just over a year later. He was sentenced to life imprisonment and is currently held in a high security jail near Durham, HMP Frankland.

The case has, over the years, attracted a large amount of publicity, most recently as a result of a third application to the Criminal Case Review Commission. He continues to protest his innocence.

This is an amplification of the catalogue of blunders from the previous article (the numbering of the paragraphs is the same):

(i) Police claimed a soiled, bloodstained pair of boxer shorts found in an outside rubbish bin belonged to Robin Garbutt. They belonged to a neighbour. This ‘evidence’ enabled the police to persuade Northallerton Magistrates’ Court to refuse bail at the committal hearing and have Garbutt held on remand at Holme Hall prison. Garbutt had protested vehemently they were not his. A matter that could have quickly, and easily, been checked, by the police, if they had checked the size, they were too big. Had they needed to, of course. It also later transpired that the shorts had been found in the neighbours’ bin, not in the one used by the Garbutts. This does not go to the guilt, or innocence, of Garbutt, but revealed a troubling, prejudiced police mindset against him that threads through the investigation all the way to trial.

(ii) An iron bar – said to be the murder weapon – has caused consternation over the years, both regarding the circumstances of its alleged discovery, two days after the murder, and the results of DNA tests taken from it four months after its discovery – and only at the insistence of the Crown’s barrister prior to the pre-trial review in September, 2010. Until that hearing, the defence were completely unaware of the murder weapon. The fact that a police officer’s DNA showed up on the bar was also, at first, concealed from Robin Garbutt’s lawyers. The officer involved in the discovery of the iron bar on 25th March, 2010 did not make a witness statement until 12th October, 2010.

The bar has Diana’s DNA on one end, the DNA of the police officer at the other end and the DNA of one other unknown male is also present. There is no DNA of Robin Garbutt on the bar, a point upon which the Garbutt campaigners, quite rightly, place great emphasis. When it was first forensically examined, the officer’s DNA was also classed as an unknown male DNA. The Police Forensic Scientist, Sarah Gray, clearly states that the DNA on the bar is in keeping with the carrier not wearing gloves. Once it was established that DNA on the bar was linked to a North Yorkshire Police officer, the forensic expert made a supplemental statement to say the DNA could have been transferred onto the bar through cross-contamination. This sequence of events is concerning on any level. But there is more.

The police officer whose DNA is present on the rusty iron bar, PC Darren Thompson, says he cannot remember which of his colleagues he was paired with during the search, but he can remember the colleague who first found the bar and called him over to it. The officer can also remember which of his other colleagues was talking to garage owner, Bill Nixon, as he was also part of that conversation. He assumes there would probably have been another colleague present whilst searching, as they always search in pairs, but he cannot recall who that was. This begs the obvious question of why pocket note books, or duty rosters, or the policy book was not checked. Mr Nixon told the court at the murder trial that he had never seen the bar before on his premises. He also asserted that members of the press used that section of the wall as a vantage point for taking photos of the scene outside the post office.

On Friday 26th March, 2010, a local newspaper reported that underwater search teams had been focusing on a beck and gullies for evidence of a discarded weapon and bin collections had been suspended in the village. Other searches had been taking place in the area and motorists were being stopped and questioned by officers. Some of this activity appears to have taken place after the alleged discovery of the iron bar the previous day.

(iii)  Much has been written already about the strands of hair recorded on camera by a Crime Scene Investigator, on the morning of the murder. They were on a pillow, next to a bloodied hand print. They never made it to the forensic science labs after being captured on scenes of crime photographs. A DNA expert, under cross-examination at the subsequent murder trial, said it could have given DNA evidence [if the follicles were present] to prove that there was someone else in the bedroom, and that Robin was telling the truth. This clump of hair was allegedly lost by North Yorkshire Police. It is clear from the photographs that the clump is not the colour of Diana’s or Robin’s hair.

This is not new evidence and will not assist the Garbutt campaigners in the third application to the CCRC. Indeed, I would go further and say that it is very unlikely to have been pulled, by a drowsy female in her night attire, from the head of a man wearing a balaclava, holding an iron bar as a weapon in a surprise attack. With an accomplice, according to Robin Garbutt’s account, equipped with a handgun.

There is also the possibility that it was not even human hair. Or planted there to cast suspicion away from the killer. We will never know.

The claimed loss of this potentially case changing exhibit, by the police, is seriously troubling, altough to one with an in-depth knowledge of this particular force, not entirely surprising. Anyone with basic knowledge of preservation of a crime scene, handling of evidence and continuity, will know that evidence does not disappear without trace, or satisfactory explanation. It needs a willing hand to do so. At the end of the trial NYP should have referred its disposal to the police watchdog, and another force appointed to criminally investigate what has the appearance of an attempt to pervert the course of justice. Perhaps, a more robust approach from Mr Justice Openshaw (as he was then) would have ensured that happened?

(iv) DNA tests taken from the pillow are now the subject of further challenge by the Garbutt campaign team over potential cross-contamination with biometric samples taken from the murder weapon. They say that the policeman’s DNA found on the bar may also have transferred onto the pillow near the bloodied head of Diana Garbutt. Rust samples were found in her matted hair.

(v) Two bedside lamps were removed by the police from their position within the crime scene, and placed in a cupboard. There were signs of blood spots on at least one of them. At trial it was heard that there was no disturbance at all in the bedroom where Diana died, she was struck as she lay sleeping. Campaigners now say, reported by The Justice Gap, that they were picked up from the floor. This is, curiously, at odds with what is reported on the Robin Garbutt Official website.

Screenshot 2020-04-13 at 11.51.48

(vi) A bedside mirror and carpet beside the bed were also not tested for blood spatter say the campaigners. There was no blood spatter on any of Robin Garbutt’s clothing.

(vii) The defence team assert that the fish and chip wrappers, containing the remnants of the couple’s supper on the evening before the murder, were the wrong ones. Police recovered some wrappings from an external bin. The actual wrappers were still in a waste bin inside the house. This casts doubt on the analysis of the food decomposition in Diana’s stomach by the police’s chosen expert.

(viii) Questions for Melsonby villagers, interviewed during post-incident house to house enquiries, included confirmation of their hair and eye colour, whether they wore body piercings, or a watch. Householders were also asked ‘intrusive’ questions about neighbours. It did not emerge at trial why these questions were asked but were likely to have been for entry onto the HOLMES major enquiry database. Another line of enquiry was that there was a ‘swingers club’ in the village.

(ix) Detectives issued an appeal regarding owners of white vans, and a number were interviewed and eliminated. But a similar appeal was not made about a metallic or electric blue car seen driving erratically around the village on the morning of the murder. Or a vehicle seen parked near the entrance to Low Grange Quarry, about a mile from the post office along West Road.

(x) According to CCTV evidence, a vehicle following Robin Garbutt was picked up eight times on the journey to Stockton-on-Tees and back, via Darlington, on the night before the murder. The campaign team say that the driver was not traced and the vehicle was sold four days after the murder.

(xi) Police and prosecutors claim that no struggle between Diana and the killer took place before the murder. That is disputed by the Garbutt campaigners whom, variously claim, pictures were knocked over and two bedside lamps were also knocked over.

(xii) A heavy knit balaclava and a ball-bearing handgun (these replicas are usually indinguishable from the live round-firing versions) were found by Cleveland Police in Thornaby, 19 miles from Melsonby, on 24th March, 2010. The campaigners say there was no attempt to link them forensically to the Garbutt murder and armed robbery.

(xiii) At first, the police accepted the time of death of Diana Garbutt was 6am at the earliest. This stance was changed at trial, which started a year later, based on expert evidence from a forensic archeologist, Dr Jennifer Miller. She calculated a time of death between 2.30am and 4.30am based on rate of consumption of a fish and chip dinner eaten by the couple on the previous evening.

(xiv) Neighbour Pauline Dye was allowed to wash her bloodstained hands in the Garbutts’ bathroom sink after handling the body of Mrs Garbutt. This, yet again, demonstrates a baffling lack of understanding of the the importance of crime scene management or even basic policing procedure.

At the murder trial, Mr Justice Openshaw said during his summing-up that the police’s management of the crime scene showed ‘a regrettable lack of professionalism‘. He was being generous, on any independent view. There is no evidence that he wrote to the chief constable either during or after the trial to request an enquiry into these failings. If he didn’t, then he failed in his public duty to maintain confidence in the criminal justice system.

Efforts to establish whether a review into the actions of Senior Investigating Officer, Detective Supertindent Lewis Raw, and the rest of the Operation Nardoo team, was ever carried out has, so far, produced no meaningful response from North Yorkshire Police (read here).

From a personal standpoint, I can say with some certainty that policing chaos appears to run in the family. His brother, Allan Raw, was an inspector in the infamous Professional Standards Department in West Yorkshire Police in 2010 (the year his brother played a leading role in the bungled Garbutt murder investigation) when I had extensive dealings with him over what one might consider a simple, straightforward issue: If three police officers each give a different account of the same event, how many are telling the truth? His answer of ‘all of them’ was unsustainable on any independent view.

As discussed in the fourth article in this series (read in full here), this dreadful catalogue of police failures warrants further investigation in order to maintain public confidence in the police and the criminal justice system.

Readers may be assisted by referring to an at-a-glance timeline of the key events before and after this troubling crime. Read here.

Page last updated: Monday 13th April, 2020 at 1600 hours

Photo Credits: ITV News, PA, Daily Mail.

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

© Neil Wilby 2015-2020. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Fourth time lucky?

This is the fourth in a series of six articles that comprise the deepest dive yet into the murder of Diana Garbutt, by her husband Robin, in March 2010. She was bludgeoned to death in the living quarters above Melsonby Village Store and Post Office as she lay sleeping in bed.

The first article, headlined ‘Don’t do anything stupid, we’ve got your wife‘ can be accessed here.

The second, ‘That particularly dubious constabulary merits careful investigationhere.

The third, which is an amplication of the list of investigative failings which forms a part of the second article, ‘A regrettable lack of professionalism’, here.

The fifth looks at the appalling conduct of the campaigners behind this innocence claim, here.

The sixth is an in-depth analysis of an interview by Dr Sandra Lean of the lead campaigner, Jane Metcalfe, here.

From his cell in HMP Frankland, 54 year old Robin Garbutt continues to vehemently deny the crime of which he was convicted at Teesside Crown Court in April, 2011. A stance he has never varied since the day he was arrested, three weeks after his wife was so tragically and brutally killed.

His protestations have spawned a well-publicised miscarriage of justice campaign, led by Garbutt’s close friend, the aforementioned Jane Metcalfe, and his sister and brother-in-law, Sallie Wood and Mark Stilborn.

Robin Garbutt campaigners - ITV package
Jane Metcalfe (left) discussing the case with fellow campaigners during a televised interview with ITV reporter, Jon Hill.

The catalyst for recent widespread coverage of the case is a third application to the miscarriage of justice watchdog, the Criminal Case Review Commission (CCRC). The first was submitted in 2015, the second believed to be in 2018. These applications followed an unsuccessful appeal to the Criminal Division of the Court of Appeal in May 2012. Three senior judges, led by Lord Justice Hughes, ruled that the conviction was ‘safe’.

Details of the previous Garbutt applications, and the CCRC’s Statement of Reasons for rejection, are scarce. On the campaign website there is a brief mention of the 2015 application being made, but nothing thereafter. Curiously, there isn’t a single mention of the specific grounds upon which those two prior applications were made, or why they were dismissed, in any of the multitude of press and television reports. The suspicion is, absent of explanation from the campaigners, that the grounds were not strong enough for the CCRC to even launch an investigation.

That surprising omission is a case in point in an ‘exclusive’ given to The Metro newspaper on 6th March, 2020. But, it appears, from reading Sam Corbishley‘s piece, that the grounds for the latest Garbutt application are as follows:

(i) DNA evidence: When the murder weapon, a 58cm rusty iron bar, was first swabbed, it was found to contain a full DNA profile belonging to an unknown male, and another which later matched one of the police officers present when it was discovered, PC Darren Thompson. The campaigners now suggest, following further testing, that the same constable’s sample could potentially be among a mixed profile, of at least three unknown males, recovered from a rust mark on a pillowcase in the bedroom where she was killed – despite the officer not being on duty when the scene was examined – suggesting key evidence may have been contaminated.

~ This part of the application may meet the test for ‘fresh evidence’, not before the jury at the murder trial, if the techniques for DNA profiling have changed since. Otherwise, the CCRC will, quite legitimately, ask why the testing was not carried out pre-trial and the issue of alleged cross-contamination raised there by the defence team. They will, one presumes, also look at what evidence was presented to the jury regarding the murder weapon, the competing arguments during closing speeches and how they were directed on the law on that specific item and, most crucially, whether the campaigners’ fresh information would have impacted on the jury’s route to verdict. The answers to those questions appear to be (a) The weapon has been tested post-facto by a different scientist with results that do not go much further than speculation. (b) The jury was aware that there was no Garbutt DNA on the weapon and there was DNA of the police officer, and at least one other unidentified male identified on it. The defence argued strongly that this was a crucial strand supporting Garbutt’s claimed innocence. (c) The jury was also aware of rust specks on the pillow and cross-contamination onto Garbutt’s clothing. The judge directed them to disregard that piece of scientific evidence. (d) The jury’s finding was that the armed robbery alleged by Garbutt didn’t take place. Largely, as a result, one might fairly infer, of hearing Garbutt’s testimony in the witness box. Which led, immediately afterwards, to the judge revoking his bail mid-trial. This new DNA evidence, if that is how the CCRC classify it, would make no difference at all to the verdict. Particularly, in the light of the DNA on the murder weapon not matching any biometric data on the Police National Computer (PNC). It would be highly unlikely that perpetrators of such a brutal, random, murder and armed robbery would make the quantum transition from ‘clean skins’ to serious, highly dangerous criminals in a single leap. It would also be at least as remarkable that they would have returned to a law-abiding life, having escaped detection from the killing of Diana Garbutt and a successful £16,000 raid on a rural post office.

Conclusion: It is doubtful that this ground would persuade the CCRC that the ‘reasonable prospect of success’ test is met and a referral of the case back to the Court of Appeal would be appropriate. It does, however, raise further grave concerns about the conduct of the police investigation [see also ground (iv) below].

(ii) Time of death: The food digestion scientist who gave expert evidence at trial, Dr Jennifer Miller, has since, the campaigners say, been contradicted by a Home Office pathologist. Jurors heard her proposition that Diana may have died between 2.30am and 4.30am. Well before the Post Office central locking system de-acivated the alarm and allowed the safe to be woken up, at 8.30am. Dr Miller’s report may have further persuaded the jury that Garbutt’s claims of a robbery gone wrong was false, but given that it concerned, bizarrely, the rate of consumption of a fish and chip supper there can be no certainty about that. Especially in the light of the other more conventional scientific evidence put before the jury. The expert now instructed by Garbutt’s legal team, Dr David Rouse, has concluded the time of death may have been much later than 4.30am – possibly even after 6.45am.

~ The matter of the timing of Diana’s death was well ventilated at trial. The key evidence was from the pathologist who examined Diana’s body at the scene, Dr Stuart Hamilton. He was a prosecution witness and gave testimony to the effect that death occured at least one hour before Diana’s body was discovered, and possibly, in the early hours of the morning. Cross-examined by defence counsel, he said that it was “reasonably possible” for death to have occured later. It also emerged that a second pathology report had been commissioned by the Garbutt defence team – and its conclusions were, more or less, the same. A short time after retiring, the jury asked to see the statement of a witness, Brian Hird, who said he heard Diana speaking through a closed door at 6.45am, even though he didn’t know her. As a matter of law, the request was refused, but the jury was plainly alert to the significance, or otherwise, of that evidence and, more widely, the other expert assessments concerning time of death. The new opinion does not appear to alter the position at all.

Conclusion: For all those reasons set out above, it is more likely than not that the CCRC will reject this ground.

(iii) Horizon Software scandal:

Defects in the Post Office’s Fujitsu-driven IT system culminated in them recently settling a high profile High Court case. A consolidated claim, brought by over 500 former postmasters and, unoriginally, known as The Post Office Group Litigation, was heard before Mr Justice Fraser and, ultimately, after a bitter fight, resulted in an award of £58 million in damages (read full judgment here). Although Robin Garbutt is not one of the 56 postmasters who applied to the CCRC, regarding criminal prosecutions brought against them, following thefts alleged by the Post Office, it is said that his campaigners hope the added weight of the scandal will help force the criminal justice watchdog into action. 39 cases have already been referred by the watchdog to the Court of Appeal.

~ The attempt to piggyback the scandal by the Garbutt campaigners has been successful to a degree: Their latest application to the CCRC has attracted more press and television coverage than it might otherwise have done. The downside to the strategy is that the resort to leveraging public support in this way simply invites closer attention to how weakly grounded the rest of the application really is. On the The Justice Gap website, they report that the campaigners now assert that similarities in the Horizon failings existed in the Melsonby post office accounts at the material time. That is to say, in simple terms, the software showing more cash deposited in the safe than was actually held there, and the assumption by the Post Office, in all cases, that the difference was pocketed by postmasters. The difficulty for the campaigners, within the terms of this application, is that Robin Garbutt asserted that the sum in the safe – and allegedly stolen by the armed robber – tallied with the accounts. There was no apparent discrepancy. If there was no armed robbery and an empty safe, then the only explanation left is that Robin helped himself to the cash. The CCRC will also be alert to fact that he admitted false accounting during the course of his evidence (“not all the business [receipts] went through the till” he said under cross-examination).

Conclusion: Based on what is set out in the Court of Appeal judgment, regarding the impact on the jury of the Post Office evidence at the murder trial, and the applicable law regarding the proving of motive, this ground appears to be misconceived.

(iv) Television footage of West Road, Melsonby on 24th March, 2010:

This, apparently, shows the wall outside Nixon’s Garage (see blue map pin) where the murder weapon was found the following day. The iron bar is not there. A fact, it is said, confirmed by at least one journalist who sat on the same wall, as a vantage point, on that day. Bill Nixon says he had never seen the bar before on his premises, and that members of the press were stood on that section of wall taking photos. On some television footage, there appears to be a mobile police cabin (from which a forensic science officer emerges) positioned as close as six to eight feet from where the bar was found. It was more or less opposite the rear entrance to the Village Store and Post Office premises.

Screenshot 2020-04-07 at 20.08.22

~ This, again, may meet the fresh evidence test. But the CCRC may adopt a counter argument and say: Why didn’t the defence team challenge more rigorously the peculiar circumstances in which the rusty iron bar was discovered? By, for example, obtaining police and press photographs, and TV film, between the pre-trial review on 28th September, 2010, when the existence of the weapon was first disclosed to them, and the start of the trial in March, 2011? The question is also likely to be asked by the watchdog as to why the journalist(s), or indeed the film crew, didn’t come forward with this vital information in the period between the time the discovery of the iron bar became public knowledge and the early part of 2020? A gap of over 9 years.

Nevertheless, the CCRC will have to anxiously consider these two competing arguments within their overall assessment of the application: (a) Campaigners rightly point to the flawed prosecution hypothesis regarding the murder weapon, in that Robin Garbutt had placed the iron bar on top of the wall after bludgeoning Diana, together with an oblique suggestion that he had scraped his knuckles, that morning, scaling the eight foot high wall. Those factors advance both the arguments that the case against him wasn’t entirely well grounded – and that he suffered further prejudice. (b) On the other hand, conversely and perversely, the absence of the iron bar, for two days after the murder, further undermines the claim, by Garbutt, that the murder was committed by an armed robber. It would be far-fetched in the extreme to expect a criminal of that class to, firstly, hold on to a weapon, with the victim’s DNA upon it (and possibly his own), then, secondly, stealthily return it to a position around 20 metres from the scene of the murder, two days later. Even without the latest evidence, the jury found that Garbutt had lied about the armed robbery and before that, the trial judge, Mr Justice Openshaw, was so concerned about his evidence in the witness box that he revoked his bail and had him remanded in custody for the remainder of the trial. There is, then, the matter of positioning this ‘new evidence’ in the matrix of (c) the overall police conduct of the investigation, which is covered in great detail in two earlier articles on this website: Is police impropriety a factor in the belated discovery of the iron bar so close to the murder scene? No doubt the North Yorkshire force will have plenty to say to the CCRC on that topic, with the considerable benefit of their submissions being made well away from public scrutiny.

Conclusion: This ground is the one that should trouble the independent reviewer the most, and is the only one that may go close to persuading the CCRC that the appropriate test is met. But, irrespective of the watchdog’s ultimate decision, as with ground (i) the latest mystery around the ‘discovery’ of the iron bar raises further serious concerns about the police investigation.

Will the CCRC refer the case back to the Court of Appeal

The key points the CCRC consider, in determining an application, are whether there is a ‘real possibility’ the appeal court would overturn a conviction, sentence or
finding and whether this real possibility is due to evidence or argument (or in
the case of sentences, evidence or information) which was not put forward in
the trial or appeal. This is generally referred to as the need for ‘new [or fresh] evidence’.

‘Real possibility’ was assessed by the High Court in the case of R v CCRC ex
parte Pearson [2000] 1 Cr.App.R. 141 as being “more than an outside chance
or a bare possibility but which may be less than a probability or likelihood or a
racing certainty. The Commission must judge that there is at least a
reasonable prospect of a conviction, if referred, not being upheld.”

The CCRC cannot perform a ‘re-run’ of a trial just because the evidence of the defence was not accepted by the jury and the evidence of the prosecution was. They have to be able to present to the appeal court a new piece of evidence or new legal argument, not identified at the time of the trial, that might have changed the whole outcome of the trial if the jury had been given a chance to consider it.

As set out in the previous Robin Garbutt articles on this website, the jury had two main points to resolve, the approximate time of the murderous attack and did the armed robbery actually take place? The Court of Appeal, in 2012, was asked to rule on new evidence brought before them. This was Post Office Ltd records dating back to 2004. At trial, only the records dating back to 2009 were made available to the defence. There was also new evidence, of marginal significance, in regard to variable limits for cash requests, made by postmasters to HQ, which would trigger an enquiry or request for justification. The appeal court ruled that the conviction was not unsafe, as the Garbutt legal team argued. Lord Justice Hughes underscored the jury decision, with comprehensive reasons set out in six lucid paragraphs (26 to 30 in the judgment), that the robbery did not take place, and was one in which they would be very slow to interfere. Those reasons included three generous assumptions in Garbutt’s favour.

Taken individually, or together, the grounds in the latest re-application do not appear, from what is in the public domain, to be compelling enough to meet the real possibility test of overturning that finding by both the jury and three law lords. It is also clear from the action taken mid-trial that Mr Justice Openshaw did not believe Garbutt was telling the truth, either.

The overall conclusion, therefore, is that Robin Garbutt and the campaign team face further disappointment. One that is completely at odds with the bullish statement of solicitor, and honorary QC, Glyn Maddocks: ‘The way in which the forensic work has been handled and dealt with is disgraceful. It’s absolutely disgraceful and no-one could possibly argue otherwise’. He adds, ‘It’s just such a shocking case. If it was you, or your relative, you’d be absolutely horrified.’ With the key planks of the original prosecution case having seemingly disintegrated, Mr Maddocks says he is not even sure the Court of Appeal would pursue a retrial if the case is referred back to them.

One thing is abundantly clear; either lawyer, Glyn Maddocks, or journalist, Neil Wilby, will have egg on their face when the CCRC make their decision. The reader can take their pick. But, either way, the public deserve to know, and understand fully, what went wrong with this investigation and why.

Oversight of North Yorkshire Police and the Robin Garbutt investigation

Two of the principal reasons that North Yorkshire Police staggers from crisis to crisis, and from one bungled major investigation to another is a complete lack of oversight from those either elected to provide it, or paid from public funds to do the job.

North Yorkshire’s Julia Mulligan is amongst the four worst police and crime commissioners in the country (two of her friends and policing area neighbours, Barry Coppinger and Mark-Burns-Williamson, also feature in the list) providing almost ZERO oversight. Since she was elected in 2012, in almost every serious situation requiring the holding of the chief constable to account, she has failed miserably. It is a startling dereliction of her statutory duty and one of the reasons that grandees in the Conservative Party decided to unceremoniously dump her as their candidate for the next election.

The top brass in NYP just do as they like, knowing that she has neither the basic knowledge of policing (she was a car salesperson and a media strategist before entering full-time politics) or, more crucially, the will to take strong action.

The so-called police watchdog, the Independent Office for Police Conduct (IOPC), is already widely regarded as even worse than its failed and disgraced predecessor, the Independent Police Complaints Commission (IPCC). There has always appeared to be a special relationship between the regional office of the IOPC/IPCC at Wakefield and North Yorkshire Police, whereby even the worst cases of misconduct, or even criminality, are whitewashed away.

Completely divorced from the latest CCRC application, and in order to maintain public confidence in the police, this murder investigation, codenamed Operation Nardoo, really ought to be referred, urgently, to the IOPC by the police commissioner, who should in turn request Her Majesty’s Inspector of Constabulary to recommend an external metropolitan police force, such as Northumbria or West Yorkshire, to thoroughly review the case from start to finish – and re-open it at any time if that is where the evidence takes them.

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Interior view of HMP Frankland

When will Robin Garbutt be released from prison

In April 2011, he was sentenced to life imprisonment with a recommendation that he serve not less than 20 years. He will receive credit for the time he spent on remand at HMP Holme Hall between the committal hearing at Northallerton Magistrates Court and the pre-trial review at Teesside Crown Court. There will also be a credit allowed for the time he spent on remand, during the latter stages of the murder trial, after the judge dramatically revoked his bail.

Garbutt would be eligible for parole, therefore, near the end of 2030, under normal circumstances, and provided he had undertaken the necessary rehabilitation programme. The difficulty he faces is that, if he continues to protest his innocence, the parole option falls away and he faces the rest of his life in jail. He would also be denied the opportunity for his detention to be re-classified from the high security Frankland jail to a less rigid regime and, ultimately, an open prison in preparation for a phased release back into society. That prison holds some of the most dangerous offenders in the country.

After a failed criminal court appeal, and three subsequent applications to the CCRC, it is difficult to see how the campaign can sustain if the latest incarnation is also refused. As seems more than likely for all the reasons rehearsed in this article.

Timeline

An at-a-glance timeline of events leading up to the murder and all that happened since can be viewed here.

Footnote

The Robin Garbutt Justice Campaign has been exposed, in the course of this investigation, as more white noise than substance. Jane Metcalfe, in particular, whose true attachment to Robin Garbutt she has yet to reveal, is very active on social media and her output is almost entirely confined, in terms, to ‘There is nothing left of the prosecution case’ (without, it seems, understanding what, precisely, it was); ‘Robin is such a nice man he couldn’t possibly have killed Di’ (every single person at trial spoke well of him so there is some substance to that) and, absurdly, ‘Robin Garbutt has always told the truth‘. The latter is, as Sir Peter Openshaw DL (as he is now styled) and senior Crown Prosecutor, Xanthe Tait, observed from their privileged vantage points, a grotesque misrepresentation: He lied to the police; he lied on oath in court and his evidence before the court was, in other aspects, repeatedly unimpressive. Particularly, the belated embellishment in court of accounts he had had given to the police, previously, over many hours of interviews, regarding Diana calling out to him through a closed door and the description of the weapon.

Those characteristics chime with the campaigners‘ modus operandus of ignoring and/or denigrating anything, or anybody, that doesn’t conform to the Garbutt innocence narrative. Including the author of this piece and the CCRC. This behaviour concerns me, having never encountered anything like it before (read more here). The unpleasantness and ready resort to personal abuse by such as Michael Naughton, a private investigator who describes Robin Garbutt as his client, simply adds an even bigger question mark to their activities. If a group is campaigning against a miscarriage of justice then a foundation stone has to be an open book policy, nothing to hide. There is only one version of the truth.

On another troubling tack, Mark Stilborn publicly claims that the Garbutt case is the worst miscarriage of justice he has ever seen. Which begs the question of how many has he actually studied, with the appropriate rigour and objectivity, and how is he is qualified to judge, in any event? On this website there is a very widely read and shared piece concerning a genuine miscarriage of justice that appears to have passed Mark by; the utterly tragic case of Stefan Kiszko (read in full here). A case that, for many years, has been recognised as one of the worst in criminal justice history. On any independent view, Robin Garbutt’s case comes nowhere close. He is, largely, the author of his own misfortune.

The adverse impact on Diana’s family caused by this style of campaigning, headed of course by her mother, Agnes Gaylor, is incalculable. They thought they had closure at the trial; Agnes is is no doubt, whatsoever, about the verdict that marked her son-in-law as the perpetrator of the murder of her daughter. She said recently that she attended every day at the trial and tried to put herself in the place of a juror with an open, independent mind considering only the evidence she had heard in court. The conclusion was inescapable.

This series of articles, of over 40,000 words, are the fruits of an open-minded, independent investigation. They have been almost entirely grounded in the summing up of the trial, running to 106 pages; the Court of Appeal judgment; and piecing together what key witnesses said, verbatim, from contemporaneous newspapers reports during the trial. The entry point was my unique knowledge of the shortcomings of the police force that investigated this shocking crime. The miscarriage of justice campaign seemed credible enough in the beginning, but that confidence soon ebbed away as straight answers to straight questions were repeatedly ducked.

After spending well over 400 hours on the case since January 2020, my conclusion is that Garbutt did not tell the truth about a number of key issues, the central one being the armed robbery. I cannot be quite so emphatic about whether he actually struck the fatal blows to his wife’s head. But if he didn’t, then he knows who did. Otherwise why invent the robbery story?

Finally, the justice campaigners, and those that blindly support them without being adjacent to the facts, would do well to better understand that Robin Garbutt is not the victim in this case. That mantle, very tragically, falls to Diana and her close family. Nobody twisted an arm to invent the story of the robbery, without which he would probably not have been convicted of the murder of his wife.

Page last updated: Thurssday 2nd July, 2020 at 0810 hours

Photo Credits: ITV News, THIIS.

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

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© Neil Wilby 2015-2020. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

 

 

‘That particularly dubious constabulary merits careful investigation’

No-one, over the past six years, has come close to writing more words challenging the conduct of North Yorkshire Police than the author of this piece. On this website alone there are 32 articles, on social media there are thousands of posts. I have taken them, and their disgraced Police and Crime Commissioner, both to county court and information rights tribunal and defeated them at each venue.

A highly attritional relationship

The relationship between investigative journalist and a police force that utterly resents any form of scrutiny is, at all times, highly attritional.  It is in no way an exaggeration to say that I played a not inconsiderable role in the professional demise of NYP’s previous chief constable, the hugely over-rated Dave Jones and the soon to depart, disgraced, and deeply unpleasant PCC, Julia Mulligan.

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The latter is benefiting from an ill-deserved reprieve, as a result of police and crime commissioner elections being deferred, by a full year, whilst the country deals with the Corona virus epidemic. She was de-selected as a candidate by her own political party last year and should, in all decency, have resigned there and then. ‘In post, but not in power’ as one of her political opponents succinctly puts it.

Time and again, the reputations of both were trashed as I uncovered, within this police force, and the police commissioner’s office, a trail of mind-boggling incompetence, discredited major criminal investigations, dishonesty, leadership failings, cronyism, profligacy, and persistent, mendacious law breaking – and an unsavoury tendency to use precious police resources and public funds to smear, bully, vex, annoy and harass critics.

The propensity to cover up, rather than address and rectify, the force’s many failings is constant and, at times, seriously shocking. Another very senior NYP officer, Tim Madgwick, was in the vanguard of a significant number of the force’s catastrophes and, most regrettably, it took Jones far too long to work this out. His deputy left the force after 30 years service without any of the fanfare one might usually expect – and no valediction from his boss, or any other senior colleague. For his last three months at NYP, Madgwick had been removed from operational duties and given a project to occupy his time.

When Madgwick was, quite amazingly, awarded the Queen’s Police Medal (QPM) in 2016, at the height of the scandals and exposés, Jones made one of the most ludicrous assertions in recent policing history: ‘Tim has led teams through some of the most serious incidents North Yorkshire Police has dealt with, in recent years, in an exemplary way‘ (read more here).

In 2012, when Mrs Mulligan was elected as the county’s first ever PCC, Madgwick was acting as chief constable after the departure of the discredited Grahame Maxwell, whose best known line during his tenure as top man in NYP was: “I’m a chief constable, I can do what I want“. This was during an Independent Police Complaints Commission investigation in which he was ultimately found guilty of gross misconduct.

PCC Mulligan, understandably, decided that she wanted a new chief, not steeped in the rotten culture that pervaded within NYP, and, in April 2013, appointed an assistant chief constable from the Police Service of Northern Ireland, whom she described as ‘a tough man for a tough job’. Jones had served with Greater Manchester Police for the first 22 years of his career. Whose record in producing sub-optimal chief constables in other police forces should have sounded loud alarm bells in the ears of the PCC.

Madgwick, having tasted life at the top table, was pushed back down the ranks. Given the opportunity to fight his corner in a court witness box, under cross-examination from me, he chickened out. Aided by a supine tribunal judge who refused my application to serve a witness summons, on the single ground that he had retired from NYP earlier that year, nearly two years after the information rights case in which Madgwick was absolutely central (as Gold Commander) had been launched. It is fair to say he would have faced a struggle extricating himself from the web of deceit that had been woven around the case by the force and two of its lawyers.

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Dave Jones was awarded the QPM himself, exactly a year later, but was under a constant barrage of well aimed, and highly justified, criticism from this quarter and, ultimately, the pressure told. At the end of March, 2018 he broke his contract with more than two years to run, did a ‘moonlight flit’ and has never been sighted publicly, since. He claimed that his ‘retirement’ was ‘to spend more time with his family’. The ‘tough man’ had gone soft. Julia Mulligan was spurned, in the end, by the man she both idolised and resolutely defended through some mind-boggling scandals.

Amid this turbulence, it might not be so surprising, therefore, that a well-publicised miscarriage of justice campaign, with NYP at its heart, slipped the net.  

In October, 2019 I attended, as an observer, a conference in Liverpool, organised by United Against Injustice. I have known the leading lights in UAI for some years, but this was my first conference visit to their annual gathering. The fact that three representatives from the Criminal Case Review Commission were due to give a presentation, and be available to answer questions afterwards, was at least one compelling reason to justify the journey.

The Melsonby post office murder

One of the cases on the conference agenda was the murder of Diana Garbutt, by her husband, Robin Joseph Garbutt, at the village store and post office they ran in Melsonby, North Yorkshire. He was found guilty after a four week trial at Teesside Crown Court in April, 2011 and sentenced to life imprisonment. The miscarriage of justice campaign was launched soon after. 

Fully committed elsewhere, it was not possible to engage with the Garbutt case at that time. But the publicly accessible documents, which always form the starting point in any investigation I undertake, have since been obtained: The summing up and sentencing remarks at trial; and the Court of Appeal judgment. They provide a shortcut to the best arguments of both sides; the police and Crown Prosecution Service on the one hand and the defendant (appellant) and his legal team on the other. 

It also gives an experienced reviewer a firm handle on how high the bar is set in order to overturn a conviction. Most crucially, if the necessary ‘new evidence’, as strictly defined in section 23 (2) of the Criminal Appeal Act, 1995 [read here], is likely to be available. To an extent that it would persuade the law lords that the conviction is ‘unsafe’, and quash it, under powers vested by way of section 2(1)(a) of the same Act.

Following the trial in 2011, the murder conviction was challenged by Robin Garbutt at the Court of Appeal, in May 2012. The appeal was dismissed. Even though new evidence, that the judges agreed had not been available to the defence team at the trial, was before the appellate court. This was in the form of Post Office HQ records between 2004 and 2009. The three law lords ruled that, whilst conceding that Garbutt may have suffered some prejudice at trial, in the event, the irregularities in the drawing of cash from HQ, asserted by a Post Office fraud investigator who gave evidence, could not, on its own, prove theft. It only became important to the police, and later the prosecutors, once it was known that the safe was empty and Garbutt’s explanation was the armed robbery.

The core of the defence submission was that the alleged theft was advanced by the Crown, at trial, as the motive for murder – and that the jury took that route to their guilty verdict. 

The three senior judges, presided over by Lord Justice Hughes, were satisfied that the jury had rejected the possibility of the robbery having taken place at all, independently of the financial evidence. For that reason they say the conviction is safe. That sets the bar very high in terms of any future appeal that may reach the same court: The task facing Garbutt and his lawyers is now, effectively, to persuade a reviewing body, to the criminal standard, that the alleged armed post office robbery did take place, in order to disturb the Court of Appeal stance. That is one of the inherent iniquities of the modern criminal justice system in England and Wales. As is the perennial reluctance to go against jury findings in the lower court.

The original powers of the Criminal Court of Appeal, under the 1907 Act, gave it an unrestricted power to quash convictions: ‘….if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any grounds there was a miscarriage of justice’ (section 4(1)).

The 1907 Act had no restrictions on the admission of new evidence. Those disappeared after the 1968 revision. A catastrophic sea change for those fighting against wrongful convictions.

The three Garbutt appeals to CCRC

In the Garbutt case, two subsequent rejections of appeals to the Criminal Case Review Commission (CCRC), a product of the 1995 reforms of the Act, did not appear to have received very much publicity at the time. It has not been possible to gain access to the submissions made by the Robin Garbutt team and the consequent decisions by the ‘watchdog’.

The CCRC Statement of Reasons are not published, as one might expect, on the Garbutt campaign website (see here). Indeed, the submission of the first appeal, in March 2015, is mentioned, but there is no reference at all to the second. Either the date of its submission or when the decision was subsequently communicated to Robin Garbutt’s legal team, headed by Martin Rackstraw at Bindmans. The CCRC press office has disclosed that the first appeal was closed in June, 2016 and the sceond appeal, submitted in February, 2017 was closed in July, 2017.

Nevertheless, neither application met the ‘real possibility test’ of overturning the conviction, in the opinion of the Commissioner(s) reviewing the applications, and making the final decisions. As set out on their own website (see here), it is not the function of the CCRC to facilitate a replay of a criminal trial on the basis that the defence evidence was not accepted by the jury and the prosecution evidence was. A point the Robin Garbutt campaigners appear, at all times, slow to accept.

More recently, a third application has been submitted to the CCRC and this has attracted a welter of publicity, both in the press and on regional television in the Yorkshire and Tyne Tees area. This time, it seems, the Garbutt campaign team are much less reticent about the grounds for the appeal. They will be covered in detail in a fourth article in a series of four to be published shortly on this website. The first was published earlier this week (read here). This is the second in the series. The third is a deeper dive into the police failings in the Garbutt investigation.

Briefly, they appear to be another challenge to the time of death; proven flaws in the Post Office computerised accounting system (Horizon); cross contamination of evidence; and ITV news film from the day after murder that shows the murder weapon was not in the place where the police say they found it one day later. 

An independent investigation – a search for the truth

These four articles are viewed through an almost entirely different lens to those appearing elsewhere. These are not of the news item genre, or a cheerleading boost to the justice campaigners. They are an extensive, informed, well-grounded, independent, open-minded search for the truth. Aided in this case by an exceptional knowledge of the police force, and a number of the dramatis personae, involved in the murder and armed robbery investigations.

For reasons that are unclear to me, at least, the Robin Garbutt campaigners have taken exception to this investigation. A curiosity when one considers their frequent, almost monotonous, war cry of ‘Robin has always told the truth‘. If that were the case – and it very plainly isn’t, given what was heard in court – then there should be nothing to hide from a search for the same truth, by a journalist who is adjacent to the criminal justice system every single day: Who killed Mrs Garbutt and, if there is a killer still on the loose, then press the authorities very hard for the case to be re-opened as a matter of urgency. 

 

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The murder of 40 year old Diana Garbutt took place on 23rd March 2010. The scene was the living quarters above the post office in Melsonby, in the Richmondshire district of North Yorkshire. The village, with its remarkably low crime rate, lies 1.2 miles to the west of the A1 trunk road and 1.2 miles north of the A66 route towards Penrith in Cumbria. The well known, and very busy, Scotch Corner interchange is just over 3 miles away.

Diana, brought up in Eggborough near Selby, was struck by three heavy blows from a blunt instrument, a rusty iron bar, according to the evidence heard at the criminal trial the following year. The assailant attacked her to the top of the head and once on each side.

One of the blows was fatal and she was found, wearing only a camisole, some time after the murder, by her husband, with her head in a pool of blood, face down on top of the duvet cover in the spare bedroom. Moments after an alleged armed robbery had taken place in the post office area of the village store. This is a tape recording of the 999 call made to the police:

That robbery would have been the second, almost identical attack, within 12 months. On 18th March, 2009, just before 8.30am it is said that two hooded young men, aged between 20 and 25 years old, wearing dark clothing, one of them armed with a handgun, threatened Robin Garbutt with the weapon, before making off with more than £10,000 in cash and an A4 book of postage stamps. Garbutt, who made no comment to the local press at any time after the first attack, was said by police to be ‘shocked, but unharmed’.

Detective Inspector Heather Pearson, who led that investigation and features elsewhere in this piece, in the section covering the disastrous Operations Rome and Hyson, said at the time of the robbery: “The area [around the post office] was busy with people driving to work or taking their children to school”.

“We are still appealing to passers-by who possibly noticed suspicious individuals or vehicles in the vicinity of the post office to come forward as a matter of urgency.”

There was no description of the getaway vehicle, or its direction of travel, given by Garbutt in the aftermath of the incident. No sightings of any persons matching the descriptions given by the shopkeeper. He told police that the robbers had entered the post office through the front door of the shop and made their exit the same way, one a short time before the other, after the safe containing an A4 Post Office book of stamps and around £10,000 in cash was emptied. It was said Mrs Garbutt was upstairs at the time and heard nothing. She rarely rose from her bed before 8.30am.

The police made no public appeal regarding the handgun allegedly pointed at Robin Garbutt in the course of that robbery. Or, it seems, gave any warnings not to approach the men if they were suspected of involvement in the Melsonby robbery. An imitation firearm was recovered during what, police said, were extensive enquiries, but not linked to this crime. No one was ever identified as a suspect, or arrested, in connection with the robbery and the incident is still logged by police as an unsolved crime. Following a general police appeal for information, two days later, it appeared that the trail had gone completely cold and nothing, it seems, was subsequently reported upon, in the local press, until Diana Garbutt’s murder. 

At the murder trial, the issue of whether the 2009 raid actually occurred was not pursued by prosecuting counsel, David Hatton QC, in cross-examination, but, in his closing speech to the jury, he briefly oulined that it may have given Garbutt the idea for the alibi for his wife’s murder, almost exactly a year later. Both on a Tuesday morning, at the same time, at 8.35am just after the school bus had left the village. Two young(ish) robbers, similar physical descriptions, dark clothing, one armed with a handgun. No details of the getaway in either instance. The robbers vanishing into thin air.

A prosecution witness at the murder trial, fraud investigator Andrew Keighley, also gave evidence concerning another similarity: In the months leading up to both reported robberies, Post Office Limited recorded an increase in requests from the Melsonby branch for extra money to be delivered.

It may never be known if the requests in 2009 were needed to replace misapproprated cash, as police believe happened in the time leading up to Diana Garbutt’s murder. One of the foundation stones of the investigation that the justice campaigners feel they have since undermined.

‘A comedy of errors’

The court heard of a number of North Yorkshire Police blunders, some of which were described by defence counsel, James Hill QC, as a ‘comedy of errors’ but. of course, not at all funny to the man in the dock. The trial judge, Mr Justice Openshaw said, in turn, that the stewardship of the crime scene demonstrated ‘a regrettable lack of professionalism’. Briefly, these were or are:

(i) Police claimed a bloodstained pair of boxer shorts found in a rubbish bin was Garbutt’s. They belonged to a neighbour. This ‘evidence’ enabled the police to persuade a Magistrates’ Court to refuse bail and have Garbutt held on remand at Holme Hall prison.

(ii) An iron bar – said to be the murder weapon – has caused consternation both regarding the circumstances of its alleged discovery, two days after the murder, and the results of DNA tests taken from it four months after its discovery. The fact that a police officer’s DNA showed up on the bar was, at first, concealed from Robin Garbutt’s lawyers.

(iii) Strands of hair found on the pillow near an outstretched hand of Diana were said to be ‘lost’ by the police. They never made it to the forensic science labs after being captured on scenes of crime photographs. As a consequence, they were never available for DNA testing. Providing, of course, the follicles were still present.

(iv) DNA tests taken from the pillow are now the subject of further challenge by the Garbutt campaign team over potential cross-contamination with biometric samples taken from the murder weapon . 

(v) Two bedside lamps were removed by the police from their position within the crime scene, and placed in a cupboard. There were signs of blood spots on at least one of them.

(vi) A bedside mirror and carpet beside the bed were not tested for blood spatter. There was no blood spatter on any of Robin Garbutt’s clothing. 

(vii) The defence team assert that the fish and chip wrappers, containing the remnants of the couple’s supper on the evening before the murder, were the wrong ones. This casts doubt on the analysis of the food decomposition in Diana’s stomach by the police’s chosen expert.

(viii) Questions for Melsonby villagers, interviewed during post-incident house to house enquiries, included confirmation of their hair and eye colour, whether they wore body piercings, or a watch. Householders were also asked ‘intrusive’ questions about neighbours. 

(ix) Detectives issued an appeal regarding owners of white vans, and a number were interviewed and eliminated. But a similar appeal was not made about a metallic or electric blue car seen around the village on the morning of the murder. Or a vehicle seen parked near the entrance to Low Grange Quarry, about a mile from the post office along West Road.

(x) According to CCTV evidence, a vehicle following Robin Garbutt was picked up eight times on the journey to Stockton-on-Tees and back on the night before the murder. The campaign team say that the driver was not traced and the vehicle was sold four days after the murder.

(xi) Police and prosecutors claim that no struggle between Diana and the killer took place before the murder. That is disputed by the Garbutt campaigners who claim that pictures were displaced and bedside lamps were knocked over. They say that Diana with her armed forces background would have fought an attacker.

(xii) A balaclava and ball-bearing handgun were found by Cleveland Police in Thornaby, 19 miles from Melsonby, on 24th March, 2010. The campaigners say there was no attempt to link them forensically to the Garbutt murder.

(xiii) At first, the police accepted the time of death of Diana Garbutt was 6am at the earliest. This stance was changed at trial, which started a year later, based on expert evidence from a forensic archeologist.

(xiv) Neighbour Pauline Dye was allowed to wash her bloodstained hands in the Garbutts’ bathroom sink after handling the body of Mrs Garbutt.

This is, on any view, a truly shocking catalogue of serious investigative failures and is much more extensively reviewed in a seperate analyis on this website (read in full here).

Confirmation bias

In this light, Robin Garbutt can safely say that he suffered prejudice at the criminal trial as a result. In that sense, there is merit in the argument of his campaign team that there has been, potentially, a miscarriage of justice. But not an unsafe conviction.

Without the armed robbery story, Garbutt would, very likely, NOT have been convicted of the murder. Indeed, the police and prosecutors, absent of a confession, may well have struggled to get even a charge against him, let alone a trial. There was simply no evidence linking him to it, forensic or otherwise.

A well known retired senior police officer and commended detective, who spent his entire career with a large metropolitan police force, told me that the smaller county forces didn’t have the well-oiled machinery and the know-how of their big city cousins to roll out an effective, efficient investigation in the ‘golden hours’ just after a serious crime had been committed. They often didn’t have the required personnel, either. The cream of the crop tended to be skimmed off by the larger forces. 

Another friend, of even higher rank, was actually brought up in Melsonby village. He is also scathing of the abilities, of what was his local police force, to conduct major investigations.

Defence barrister, James Hill QC, put it this way to the jury in his closing speech: “You can’t just cherry-pick the evidence. You can’t just ignore the parts of the evidence that you don’t like, in order to put forward a theory. I’m going to suggest that the prosecution case is nothing more than that – a theory. Ever since, they’ve been trying to make that evidence fit that theory.”

North Yorkshire Police had 30 officers assigned to the murder investigation, closed off the village, and set up a mobile facility in Moor Road, adjacent to the gate at the rear of the village shop premises. But, almost from the moment the first officer arriving on the scene, Traffic Constable Chris Graham-Marlow, had spoken to the paramedic, Michael Whitaker, the husband was the main suspect and it seems, particularly to the Garbutt campaign team, that police activity only concerned their man – and focused on evidence that supported their hypothesis and ignored anything that went against it. A well-discussed policing phenomenon of confirmation bias.

That bias, and the narrow, rigid mindset and weak organisational culture that accompanies it, is a recurring feature of almost every high profile NYP investigation – and has led to some tragic failures, most notably during Operation Cabin, the first, bungled, investigation into the disappearance of Claudia Lawrence.

Nevertheless, after having heard ample evidence of the poor police investigation, the rubbishing of it by the defence barrister and the more restrained, but damning, criticism  from the trial judge, the jury found Robin Garbutt guilty of the murder of his wife.

In a piece published earlier this week (read in full here) it sets out in considerable detail the two crucial decisions that the twelve members of the panel had to decide. Namely the time of death and whether, in fact, there was truth in the assertion, by Robin Garbutt, that an armed robbery had taken place moments before he had discovered the bloodied body of his wife. The article, in which is embedded a police film of Garbutt’s first account of the robbery, is said to be a compelling read.

More neutrally, if the earlier 2009 robbery was also a fake, it raises the probability that, had North Yorkshire Police uncovered this at the time, a murder could have been prevented. That is the view of Diana’s mother, 70 year old Agnes Gaylor, who sat through every hearing day of the trial at Teesside Crown Court, and is convinced of Robin Garbutt’s guilt. Nevertheless, as a matter of legal correctness, the presumption of his innocence must prevail over the 2009 incident. 

In fairness to the police, and in the absence of CCTV nearby, proving the robbery didn’t take place would be next to impossible. Nevertheless, in policing circles, it would have been surprising if Robin Garbutt’s ‘card hadn’t been marked’ as the local saying goes: The failure to activate the silent alarm and the complete absence of any sightings of robbers or getaway vehicle, in the busiest part of the day in this village, would, doubtless, have troubled them.

Mrs Gaylor was interviewed, very briefly, by the media, after the Garbutt sentencing and alongside Detective Constable John Bosomworth (watch short video clip here). Based with Northallerton CID, DC Bosomworth read from a statement prepared on behalf of the family in which the murder investigation was warmly praised, particularly for its ‘care and compassion’. This is a recurring NYP trait. The rest of the country knows that this was a quite appalling investigation from beginning to end, and still with huge question marks against it, and their first, and persistently irritating, instinct is self-praise.

More recently and, perhaps, less surprisingly Agnes told ITV News: “I attended every day of the trial and after listening to every word said and with great effort to put myself mentally in the jury box, with an open mind, I am beyond confident that Mr Garbutt is in the right place. I understand why his family and friends would love to see him freed, but all I hear is – he’s such a nice man he couldn’t possibly have done such a thing. But nice men, sadly, do”.

But this wasn’t the only police investigation in which DC Bosomworth was centrally involved around that time and his underperforming NYP colleagues were later the subject of fierce, and highly justified, criticism by those pursued by them. As in the Garbutt case (criticised by the trial judge), in this case the force was criticised by a senior officer from another constabulary, appointed by the police watchdog, to assess an appeal into a quite disgraceful internal investigation by NYP (read press report in full here). That case involved a mother being falsely, and, on the evidence, perversely and irrationally accused of the attempted murder of her own disabled young daughter. None of the officers concerned in this case was properly held to account.

As far as Operation Nardoo is concerned, the police codename for the calamitous Garbutt investigation, a review into the failings of North Yorkshire Police handling of the murder probe was promised in a statement to the local press, shortly after the trial concluded. There is no trace of such an inquiry ever taking place and, as a consequence, the force has been tasked with providing details, by way of a freedom of information request (read here). The Gold Commander for Nardoo was ACC Tim Madgwick, whose command team portfolio at the time included criminal investigations. A bitter and protracted battle is expected with the police force to extract that information and place it in the public domain.

Madgwick was also Gold on Operation Cabin, later reviewed internally by NYP in an operation codenamed Essence, which highlighted some of the failings of the original investigation into the disappearance of Claudia Lawrence after leaving her York home to travel to work at the city’s university. No arrests were made during this investigation. An inaccurate photograph of Claudia was issued by the police at the outset. Failure to establish basic facts such as distances and timings. Failure to preserve Claudia’s home as a crime scene. Failure to eliminate a suspect vehicle by using even the most rudimentary investigative techniques. Obsession with a theory based around Claudia’s love life. Bull in a china shop approach to locals in the area where Claudia lived. Disaffecting members of Claudia’s family. 

The 2009 reported armed robbery at Melsonby post office took place on the last day that Claudia was seen alive. The pre-occupation with her disappearance, reported by her father, Peter, on 20th March, 2009 may well have resulted in the investigation into the alleged robbery fizzling out quickly.

Operations Rome and Hyson (one flowed into the other) feature extensively on this website as one of the biggest investigation failings in police service history. Yet again, Madgwick was at its very heart as Gold Commander of Rome, upon which almost £1 million of public money was squandered in a farcical, meandering, highly partial investigation into what they resolutely maintain concerned ‘alleged harassment’, that lasted 7 years and resulted in not one single arrest. He remained as the controlling mind, and chief ‘cover-upper’ of Hyson, even though his subordinate, ACC Paul Kennedy, was nominally Gold. Heather Pearson played a signifant part in that investigation, as Senior Investigating Officer, at least for part of the time that the investigation ran, exceeding her powers and exhibiting an alarmingly closed mind when ordering the arrest of a citizen journalist, Timothy Hicks, over his criticism of the force. Tim is a professional man, a chartered accountant and certified fraud examiner, of exemplary character. His detention at a York police station, followed by pointless and utterly irrelevant questioning, had an Orwellian look to it.

Rome ran from 2008 until 2014, Hyson 2014 until 2016. Lord Maginnis of Drumglass was refused a meeting with Theresa May, Home Secretary at the time, to raise grave concerns over Operation Rome and the way North Yorkshire Police was running it. She refused, so he raised the matter in Parliament. He told those assembled on the red benches: ‘That particularly dubious constabulary merits careful investigation’. 

That startling submission was on 15th May 2012, less than a month after Robin Garbutt was sent to prison. It is a quote, entirely factual, that police force and its senior leaders came to resent and detest.

The Private Eye magazine eventually featured the scandal in August, 2016 with a near full page article headlined ‘North Yorkshire Boors‘. It signalled, thankfully, the beginning of the end for Tim Madgwick. Who, curiously, has lived around the Easingwold area (the names of two of the villages are known, but it simply would not be right to publish them) since he moved north to join NYP from his Hampshire origins; the same area of York in which Robin Garbutt grew up and lived in, Tholthorpe and Huby respectively, before he and Diana bought the post office in Melsonby. 

This is far from an exhaustive list of NYP failures; in my time spent scrutising the force they run well into double figures. Including serious allegations, supported by employment tribunal findings, of being a racist and sexist organisaion. But it gives the reader a flavour of just how low the ethical and professional bar is set in this police force. Add to that a breathtaking level of incompetence, layered over with ingrained, overbearing arrogance and superiority, that seeps into almost every business area, and the scale of the problems within this organisation begins to crystallise. It is almost certain that justice campaigners such as the Garbutt team, and their legal team, will recognise these unpleasant, and wholly unacceptable traits, as they have battled to uncover the truth behind a grotesquely failed Operation Nardoo investigation.

Robin Garbutt campaigners - ITV package

Obtaining disclosure of relevant materials will also be a constant thorn in the side of the campaigners, led by Jane Metcalfe (on the left in above pic), his sister Sallie Wood and brother-in-law, Mark Stilborn, as it is for anyone who deals with the force on a professional level, such as lawyers and journalists. Best exemplified by this case, wherein the Lord Chief Justice was blistering in his condemnation of, amongst others, the Chief Constable of North Yorkshire Police. Sir John Thomas described the force’s conduct as ‘reprehensible’. At one point, Dave Jones was summoned to appear before the law lords in London. The full handed down judgment can be read here. The only officer ever held to account was an inexperienced detective constable, recently posted in a department that was widely known for its failings and, of course, in true NYP style, the decision makers and top brass escaped any censure, whatsoever.

So, we come to the key questions:

 ~ Did Robin Garbutt get a fair trial in April, 2011 at Teesside Crown Court?

Emphatically not, in my submission. A police investigation so inept it borders on the criminally negligent; a senior leadership and detective mindset mired in confirmation bias: a threadbare prosecution absent of anything other than circumstantial evidence and accompanied by the almost standard disclosure failings that, seemingly, weave through every operation conducted by North Yorkshire Police.

~ Did the jury come to the right verdict?

It should first be said that I am not an advocate of majority verdicts. Until 1967, a jury had to reach a unanimous finding, ‘beyond reasonable doubt’. Now a 10-2 or 9-1 verdict, where the jury is ‘sure’ of the defendant(s) guilt is within the law (Juries Act, 1974). On the evidence heard in the Garbutt trial, summed up by an experienced, senior judge and properly directed on the law, it was not surprising to the neutral observer that they concluded Garbutt was guilty of the murder of his wife. Such a conclusion must have embraced at least one of the two main planks of the prosecution case: (i) The robbery at the post office did not take place (ii) The time of the murder was before Robin Garbutt served his first customer in the shop at around 5.15am that morning (according to the till roll).

~ Was the Court of Appeal wrong to dismiss Robin Garbutt’s claims of a miscarriage of justice at the hearing in May 2012?

For my own part, every judgment that this court delivers is read, as part of learning how to understand and assess other cases. I have also been in the press seats at the Royal Courts of Justice to hear an appeal in which I was assisting the person convicted of murder, and his family, and, in fact, made a successful oral application to Lord Justice Davies, from the press seats, to live tweet those proceedings. From that informed perspective, the refusal to quash the Garbutt conviction was routine, given what was before the court. The defence team, still led by James Hill QC and praised by the law lords for their skilful submissions, had a mistaken grasp of the very probable route to verdict taken by the jury. Their majority decision says the robbery didn’t take place and, on the only alternative put to them by the prosecution, Robin was found to have killed Diana. That is the legal position and, as I say to every single person who seeks out my view, the appellate courts are almost always where law is decided, not justice. That has been the position, for better or worse, since 1968.

 ~ Will the Criminal Case Review Commission refer the case back to the Court of Appeal after the third application by Robin Garbutt?

The conclusion reached on that discussion is reserved for the fourth article in this series, in which I set out the grounds, as I know them, and my reasoned views as to if, and why, they do, or not have merit. It would take just one compelling ground for a referral out of the four believed have been advanced by his legal team for the CCRC to make the prized referral.

Timeline 

An at-a-glance timeline of events leading up to the murder and all that happened since can be viewed here.

The Robin Garbutt justice campaigners were contacted for comment. They did not respond.

 

Page last updated: Thursday 11th June, 2020 at 2035 hours

Photo Credits: ITV News, Press Association, North Yorkshire Police, North Yorks Enquirer

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‘Don’t do anything stupid. We’ve got your wife’

As one who frequently sits in court press seats, directly opposite jury boxes, it might be said that I am moderately qualified to pass comment on the vagaries of a system that sees the fate of defendants, accused of serious crimes, decided by twelve of their community peers.

The prosecution present the case as to why the Crown (or State) believe the accused is guilty, then the defence barrister will answer the allegations. Each will usually bring witnesses to speak either for, or against, the defendant(s) and there are often exhibits in the form of documents, records, clothing, photographs, and sometimes, weapons. Experts, of varying qualification and authority, can be deployed to give evidence for either side.

It is what is known as an adversarial system. Where the most refined arguments on the applicable law and the more compelling evidence of fact succeed, in theory at least. Compared to, for example, an inquest, or courts in some other European countries, where the process is inquisitorial. A search for the truth.

At the end of the evidential stage of a trial, counsel (barristers, or Queen’s Counsel where the charges are serious) for both the prosecution and defence will each make a closing speech, addressed directly to the jury, which comprises the best of their arguments and highlights the evidence that they believe falls in favour of either the Crown or the defendant. Often, and for very good reason, they are highly emotive – and regarded by many as the key components in a trial.

Immediately following the speeches, the trial judge ‘sums up’ the arguments and evidence. Stressing all the time, that he, or quite often she, these days, is the arbiter on law only; decisions on facts are for the jury alone. What a judge may consider important points the jury may not, and vice versa.

Having given the jury directions on the law – and how it applies in the particular case being tried – a jury bailiff is sworn in and the twelve men and women, from all walks of life, are sent to the jury room to deliberate. Under strict instructions not to discusss the case, except when they are all together in that room. They are also warned about researching any details about the case on the internet, or discussing it at home or with friends. Their verdict is reached only on the evidence they have heard  in court – and the judge will remind them that it for the Crown to prove guilt, not for the defendant to prove his innocence.

The judge will also urge them to reach a unanimous verdict when they are sure the defendant is either guilty or not guilty. If the jury is ‘hung’, that is to say not all of them agree on a verdict, the judge will take soundings from both prosecuting and defending counsel as to how long must pass before the court should allow a verdict based on the majority of jurors. Either 10-2, or 11-1, if all 12 jurors are still sitting.

If the jury finds the defendant guilty, the judge hears from both counsel again – and then passes sentence: The prosecution will present the views of the victim, often in the form of an impact statement, and advocate for what is believed to be an appropriate sentence, within the guidelines. Defence counsel mitigate, as best they can, on behalf of their client. In the case of a not guilty verdict, the defendant is released from the court dock soon after the verdict and free to go about his daily business, no doubt chastened by the experience. The guilty take the slow walk down the dock steps to custody.

Nothing about the deliberations of the jury can be made public, either during or after the trial. But the judge, using his experience and knowledge of the case, will apply their fact finding when passing sentence and making his accompanying remarks. In the higher profile criminal cases, the ‘Sentencing Remarks’ are made public and widely distributed.

Following a four week trial in Teesside Crown Court, during March and April, 2011, a 45 year old man, Robin Joseph Garbutt, was found guilty of the murder of his wife, Diana, at the village store and post office they ran at Melsonby, in the Richmondshire district of North Yorkshire. The jury were split 10-2, a majority verdict. They had deliberated for over thirteen hours, but took only a very short time after the judge released them from their obligation to return a unanimous verdict.

The heinous crime was committed just over a year earlier, on 23rd March, 2010, and attracted a large amount of press attention; not least because it was said that an armed robbery had taken place, in which a large amount of cash was stolen. The widely held assumption, at that time, was that Mrs Garbutt had been killed by those same robbers during the raid. The local police force were under enormous pressure to ‘get a result’.

At first, it appeared that the police had accepted Robin Garbutt’s account of the robbery, and the circumstances in which Diana had died. But three weeks later, the innocuous, well-liked and respected local man was arrested by North Yorkshire Police in an early morning swoop, held in custody and questioned for 3 days. After which, he was charged with his wife’s murder.

Garbutt, it later emerged, had been suspected of a false narrative, by the police, within a short time of them arriving in the picture postcard village: PC Mark Reed, the second officer to arrive, said that his account was ‘jumbled, all over the place’. TC Chris Graham-Marlow, the first officer on the scene, was concerned that he continually questioned the opinion of the paramedic attending the body of Diana who had told him that rigor mortis had set in and there were also clear signs of hypostasis (blood pooling in tissue where her heart had stopped), indicators that death had occurred at least an hour earlier and, more likely, several hours previously. There appeared to be no good reason, when apparently almost hysterical over the death of his wife, why he would do so. The nett effect was to invite closer attention to the armed robbery narrative.

PC Reed says that when he and another officer drove him to Northallerton police station, at lunchtime on the day of the murder, Garbutt again returned to the subject of the time of death and the state of the body.

At the time of his arrest, the police said that there were inconsistencies in his account of what had taken place on the fateful day, and the background to it. Exactly a week after the murder, Detective Superintendent Lewis Raw said “The investigation is very complex and it will take some time to complete all avenues of investigation”. The first sign, publicly, that the police were not treating this as an armed robbery gone wrong.

At trial, it emerged that Garbutt had further aroused police suspicions by painting a rosy picture of the marriage and the village store business. But, in reality, the prosecution presented the jury with a very different picture: A woman sexually unfulfilled and with a constantly roving eye – and the couple had rising debts which, at the time of the murder, amounted, jointly, to over £44,000, plus a £60,000 mortgage on the property for which they had paid £105,000. They had seven credit cards between them, all running at or near the credit limit.

Diana, it was heard in court, ‘had lost interest in the business’ and it had been on the market for around 5 years, with little or no buyer activity. Robin admitted that he was heard, at least once, to tell her to ‘get off her fat arse and do something’.

She had told one of her male dalliances, in an email message, that her marriage was ‘doomed’. She told another that the marriage was going through ‘a rough patch’. The court also heard that the Garbutts had seen a Relate counsellor, regarding their sexual incompatibility, and discussed splitting up, with Diana renting a room elsewhere in Melsonby village. At trial, Robin dismissed this as being ‘long in the past’ even though it was just over a year ago. His wife had visited a dating website several times on the day before the murder, including just a few hours before she was bludgeoned to death.

Comprehensive and highly forensic analysis of the personal finances of the couple, the village shop and the post office was put before the jury and they heard live evidence from Teresa Bentley, a specialist economic crime investigator who had full access to all the couple’s personal and business bank accounts, credit card accounts. She was, also, assisted by a Post Office fraud investigator, Andrew Keighley. The jury heard from the latter that there were ‘irregularities’ over the Post Office record keeping and unusual requests for cash from HQ. Mrs Bentley told the court that there were regular, substantial cash sums sent to the bank, via special delivery. Her reports, included in the jury bundle, tended to show that it was these cash deposits, about which there was scant explanation from Robin Garbutt, that were keeping their business and personal finances afloat.

In 2009, the couple, who married six years earlier, had eight holidays, including weekends in Amsterdam, paying two visits to the Hard Rock Cafe, and trips to York, Paris and Northumberland. Two of their other weekend trips to Bolton Abbey cost £1200 and £800 respectively. Diana went with a friend on a trip to the Glastonbury Festival. A week or so after the murder they were due to fly to the United States for a three-week holiday at a cost of £3,000 (Diana’s father was American and she had dual nationality. The plan was to visit her sister Victoria in California, before travelling to see her 94-year-old grandmother, Rose, in Virginia). When the prosecution advanced the view, in cross-examination, that the Garbutts were living well beyond their visible means, Robin denied that. He told the court that not all the business takings went through the till [which, of course, means that VAT and income tax returns were, demonstrably, false]. Diana’s Post Office salary was £14,500 and the shop was, at best, showing a very small profit. In the months leading up to the murder the shop was losing a significant amount of money, according to the police analysis, although defence counsel, James Hill QC, did question the actual amount that was put before the jury (around £14,000).

There was no countervailing expert, or forensic, analysis of the accounts, or cash transactions, put forward by the defence. They relied, almost exclusively, on cross-examination of Ms Bentley and Mr Keighley.

The trial, and the verdict reached by the jury, appeared to turn on just two key findings: The time at which the murder occurred and whether, or not, the alleged armed robbery took place. The judge, in his summing up, had made it clear that the Crown did not have to prove motive, only the charge on the indictment. That is the law as it stands.

Much of the witness evidence heard at trial, on behalf of the prosecution, was to dispel the widely held myth in the village that all was perfect in the Garbutt marriage – and their business enterprise was flourishing. The court also heard many glowing personal testimonies about the couple, and Robin; and the judge, of course, drew equal attention to those.

He also explained that, in the circumstances of this particular case, a verdict of manslaughter was not available to the jury.  Robin Garbutt was either guilty, or not guilty, of the murder of his wife, Diana. If he didn’t commit the crime, then the jury verdict would point to the armed robber(s). That was how the police and prosecutor had, some might say very cleverly, constructed the case. Their strategy, for example, excluded the possibility that there was a third party involved in a conspiracy to murder, who may well have struck the fatal blows whilst Garbutt was serving in the shop downstairs.

David Hatton QC, prosecuting, said propitiously: “One of the questions you will have to consider, if you accept this evidence [of a robbery taking place], is the likelihood of a robber, or robbers, being prepared to violently kill a female sleeping in her own bed, at all; but then, having done so, to wait for [four to six hours]* before going downstairs to rob the post office.

“And then, it has to be said, having been prepared to bludgeon the lady to death upstairs and wait for that length of time, to leave the defendant himself unharmed and unrestrained to raise the alarm.”

The timing* of the murder has, before, during and after the trial, created huge controversy. The prosecution say it happened between 2.30am and 4.30am, the defence assert that it was after 6.45am. Those competing arguments, along with the other matters around which the Garbutt miscarriage of justice campaign is focused, is the subject of analysis in a separate article in which I conclude from, it must be strongly emphasised, a non-scientific standpoint, but after weighing all the evidence heard in court and the counterclaims regarding the food digestion analysis since the trial, that the attack occured between 5.40 and 7.10am.

The first paramedic on the scene, Michael Whitaker, gave evidence to the effect that, upon arrival at the scene of the murder, there was no electrical activity in Diana’s heart and her arm was solid with rigor mortis. The court heard: “I assumed that the lady had been deceased for quite some time.” Under cross-examination, Mr Whitaker told Mr Hill that he could not say for certain how long she had been dead for.

The issue of whether the robbery took place, or not, is more compact, does not involve complex science, and amounts, quite simply, to whether the account of Robin Garbutt can withstand scrutiny. So, readers of the present article are invited to put themselves in that jury box, test the evidence and reach their own verdict.

The narrative account of the robbery given to the police on the day of the murder was repeated, more or less, in the witness box at trial. With the apparent exception that, on the morning of the murder, Garbutt told the police that the armed robber had entered the shop from the upstairs living quarters.

It boils down to what took place between and 08.35.54 and 08.37.13 on Tuesday 23rd March, 2010. A total of 79 seconds.

During that time, from when the opening of the safe became possible, recorded both within the deposit box itself and centrally at Post Office HQ, and the 999 call being answered, this is what is said to have happened:

~ Garbutt was in the post office booth, within the shop, having just opened the safe, when he heard a noise from behind the shop door that connected to the staircase leading up to the living quarters.

~ After opening the safe, but before he was disturbed, he had removed the A4 book containing postage stamps. He had also removed the compartmentalised tray containing the coins that fitted in the post ofice till.

~ He left the booth and moved towards the door thinking he would be greeted by his wife. Instead he was met by a masked man, in dark clothing, holding a gun down by his side.

~ The robber told Garbutt: “Don’t do anything stupid, we’ve got your wife upstairs”.

~ He was then instructed to turn off the lights in the shop and lock the front door. In court, it was heard that he slid across the top bolt on that door.

~ He then returned to the booth and filled a black holdall with over £16,000 in denominations of £20, £10 and £5 notes. They were in bundles on a shelf in the safe.

~ Emerging from the booth, he then went around to the back of the shop counter and emptied the contents of the till (about £150) into the holdall, on the instructions of the robber.

~ At this point the armed robber left the shop, via the connecting door and the back door to the premises, which Garbutt says he had left unlocked when offloading stock for the shop, from his car, earlier that morning between 4.30am and 6.00am.

~ Garbutt was warned by the armed robber not to move.

~ The back door, apparently, had not been locked by the robber(s) after they gained entry.

All of the above actions, mostly by a man seemingly paralysed by fear, and with one eye on the gun in the robber’s hand, had taken just 20 seconds, says Garbutt. Emphatically.

This is a picture of the interior of the shop which may aid readers’ understanding and assessment:

Screenshot 2020-03-29 at 14.16.53

The silent alarms, which connected to the police control room via a central monitoring station, had not been activated. One was in the booth near the safe, another was next to the shop till and a third was by the connecting door. Garbutt explained this to the police, and later in court, by saying, firstly, that ‘he was caught in the agony of the moment’ and, secondly, he did not know the alarms were silent, despite the court hearing evidence that he had been instructed at least three times in their use by two different Post Office technicians. It also emerged in court that he had taught one of his shop assistants, Linda Sharp, some months earlier on how to use the alarms and explained their effect (the court heard that she was also told in strong terms to make sure she always kept the back door to the premises locked).

~ After the robber had left, and without having sight or sound of any other robber whom, according to the thief in the shop, was holding Diana captive, Garbutt says he raced upstairs, passing the silent alarm button near the connecting door.

~ He arrived in doorway of the spare bedroom to see his wife face down in the bed, her head in a pool of blood that had spread out on the pillow beneath her.

~ The husband of the wife he told the court he adored, did not offer any first aid, or even check whether she was dead or alive.

~ From there he went to the living room on the first floor and dialled 999 to report the robbery and injuries to his wife. He did not tell the emergency operator whether she was dead, or not.

~ Garbutt told the emergency services operator that the robber(s) had made good their escape, although he had no knowledge of that. He did not check the direction in which they were headed or whether they were, in fact, lying low on or around his property. No other person in the village, or elsewhere, had sight of them at any time on that morning. His next door neighbour, Pauline Dye, was in and out of her house, hanging out the washing in the back courtyard, at around the time the robbery took place. She saw or heard nothing.

There is no account of Garbutt searching for, or calling out to, the other robber(s) said by the gunman to be holding Diana captive. Or arming himself to confront or defend himself from an attack from the second robber that he must have believed was present, and armed, with his wife, thus ensuring compliance with the instructions from the robber who appeared in the shop. Garbutt told the police, when later interviewed as a suspect, that the robber did not have the iron bar in his hand. Also, he could not explain how the robber had, apparently, no blood on his clothing.

This is a short film of the account Robin Garbutt gave of the alleged robbery. It was taken by police a few hours after the discovery of his dead wife.

The defence, at trial, relied on the report of another almost identical robbery at the same village shop, exactly 53 weeks earlier, on 17th March, 2009. The court heard Garbutt’s account of how, at about 8.30am, he had been confronted by two hooded men, with their faces covered, one pointing a gun at him, as he opened the post office safe. They escaped with around £11,000 in cash and a valuable A4 book of stamps. Garbutt did not activate the silent alarms on that occasion, either. Diana, the court heard, was upstairs in the living quarters and heard nothing. No-one in the village saw or heard anything, either. It remains an unsolved case. The prosecution elected not to take a view on whether the robbery described by Garbutt took place, or not. It was left for the jury to decide as part of their fact-finding matrix.

Unknown to the jury, Mr Justice Openshaw took the unusual step of remanding Garbutt in custody after hearing his evidence. Prosecutor David Hatton QC said that it “bordered on the absurd”.

Robin Garbutt has always vehemently denied murdering a woman he says he loved so very dearly. His soulmate, whom the jury heard was ‘as close as close could be’. He has also consistently maintained that both armed robberies DID take place and one of the robbers in the second raid (or later distilled at trial to a single robber) killed Diana as she lay in her bed. 10 of the 12 jurors did not believe him. They had the benefit of hearing evidence from 68 prosecution witnesses and 18 defence witnesses, plus the testimony of Garbutt himself across two hearing days.

Neither does Diana’s mother, Agnes Gaylor, who sat through the entire criminal trial. The village of Melsonby is still split over the verdict.

Passing sentence, Mr Justice Openshaw pulled no punches. He said the defendant had shown no remorse over the death of his wife, adding: ‘He has always accompanied his lies with sanctimonious lies of his love for her’.

‘By their verdict, the jury have exposed this as pure humbug.’

‘This was a brutal, planned, cold-blooded murder of his wife as she lay sleeping in bed.’

‘There was no struggle, she never awoke. He struck three savage blows, smashing her skull and causing her immediate death as clearly he intended’.

The story of the armed robber he said was ‘ludicrous from beginning to end’.

The defendant was sentenced to life imprisonment, with a recommendation that he serve at least 20 years. Sir Peter Openshaw DL is a judge with whom I am particularly familiar, in terms of style, tone, compendious knowledge of the law and procedural rules. Having been in his court for very many days of the hearings of the first Hillsborough trials across a period of over two years.  There has never been any criticism of his handling of the Garbutt trial, or the way it was summed up, except that he was keen to keep it on track in terms of length of trial. That also featured in all the hearings at Preston Crown Court, and so it does in every other Crown Court on my beat. It is what judges do: Effective listing and timetabling are significant parts of their oversight role. Openshaw ran his courts with almost military precision, matching that familiar stiff gait to and from his seat on the bench.

Xanthe Tait, Deputy Chief Crown Prosecutor for North Yorkshire and Humberside, said after the trial: ‘Diana Garbutt’s life was cut brutally and tragically short. Her family is left to forever mourn her loss.

‘She was violently bludgeoned to death. A callous crime motivated by the basest of human characteristics.

‘Robin Garbutt went to great lengths in creating a cover story involving a robber with a gun: a story he maintained throughout the trial – lying about his finances, lying about his relationship with his wife and lying about the robbery – to conceal his appalling crimes.

‘We have worked closely with the police to build a robust prosecution case and secure justice for Diana. Our thoughts are with her family and we hope that today’s conviction will bring them some measure of comfort and peace.’

Ms Tait, for the past several years, has led a three-force collaboration group which aims to bring the legal services departments of Cleveland, Durham and North Yorkshire Police together in a project codenamed ‘Evolve’. She was a high-achieving prosecutor, widely respected by her peers.

Since his incarceration, a highly visible campaign group has formed around Robin Garbutt. They are energetically, and passionately, led by Jane Metcalfe, a friend from the time when he lived in York, together with Garbutt’s sister, Sallie Wood, and brother-in-law, Mark Stilborn. Jane and Robin are in constant touch by phone.

In the past few months, regional and national newspaper coverage, an article in Private Eye, and packages on the two local TV news programmes, ITV Calendar and Look North, has kept the miscarriage of justice claim very much in the public eye. A third application to the Criminal Case Review Commission (CCRC) is the trigger for the publicity. An appeal to the Criminal Division of the Court of Appeal was dismissed in May, 2012. Two subsequent applications to the CCRC were also dismissed.

A website set up and maintained by the campaigners can be viewed here. Whereas the presentation is rudimentary, the message is very strong: Robin has always told the truth and he could not possibly have committed the crime. It promises so much, but delivers surprisingly little by way of references to substantive evidential material.

The ever-present assertion of unwavering truthfulness of Robin Garbutt has little or no basis in fact. Whilst those same campaigners, and the convicted murderer, have refused me access to his witness statements to the police, the merest examination of his witness box testimony reveals gaping holes and alarming contradictions in his story.

Why deny a journalist, approaching the case as one who has very good, and well evidenced, reason to doubt just about anything that North Yorkshire Police do or say, over a very lengthy period, access to any of the case materials? Unless there is something to hide from an independent investigator?

Another journalist, the late Bob Woffinden, also contributed significantly to the campaign in 2016, before his sad passing in May 2018, and his article (read in full here starting on page 14) certainly raised its profile and credibility at the time. However, to locate his work on the internet requires a little persistence. There is no link to it from the campaign website. It is, with all due respect to Bob, a very popular and capable journalist, a partial piece that adopts the cause of the convicted murderer.

A petition protesting Robin Garbutt’s innocence, propagated from the website, has gathered just 54 signatures. William Hague (now Baron Hague of Richmond), who retired in 2015, is listed as Robin Garbutt’s MP. In fact, his representative now is the very high profile Chancellor of the Exchequer, Rishi Sunak MP.

The past and present MP’s have both have been contacted for comment on the campaign and to establish whether they have added support in any way. A response is awaited and will, very understandably, be delayed in the case of Mr Sunak.

The Garbutt campaigners declined to provide a statement for this article, despite being prolific elsewhere. A request for answers to a series of straightforward questions about the background to the events of 22nd/23rd March 2010 was also declined. It has taken a considerable amount of additional time and effort to dig them out, but almost all of those answers have now been obtained from other sources. Several of them now cast further doubt on the Garbutt narrative, particularly in relation to the weapon that the armed robber held in his right hand as he entered the shop.

Dr Michael Naughton, an academic whom, it is claimed, supports the campaign, did not acknowledge or reply to an email asking for details of his analysis of the case, or the grounds upon which he has based his support by way of a relatively new venture, Empowering the Innocent. Dr Naughton does, of course, have at least one blemish on his miscarriage of justice record; the case of Simon Hall for whom he was the leading advocate for five years. The convicted murderer actually confessed to the crime in 2013 (read BBC report here). The parallels with the Garbutt case are, on any independent view, stark. The discomfort when this is drawn to the attention of his campaigners is palpable. Naughton claims he has never seen the signed confession and is reported to continue to cast doubt on its existence. A search to find a case to which he has been attached professionally, and has succeeded at the Court of Appeal, has drawn a blank.

By way of a carefully framed, plainly expressed freedom of information request, North Yorkshire Police were asked on 30th January, 2020 to provide basic details of the murder probe, the usual foundation stones of a properly grounded journalistic investigation. Over two months later, they are yet to respond to the request, or an application for internal review (read in full here). Those that check out the details will see that NYP are prepared, arguably, to commit a criminal offence to avoid disclosure. That, it might be said, is a measure of the habitual fear they have of the type of relentless scrutiny they face from this quarter. The lurking presence of Xanthe Tait, as the ultimate arbiter of that disclosure decision, and particularly with her colours now firmly nailed to the NYP mast, cannot be overlooked.

Screenshot 2020-03-29 at 19.25.53
Xanthe Tait, formerly Deputy Chief Crown Prosecutor and, more latterly, deeply embedded in North Yorkshire Police.

As it happens, most of the requested details have been obtained from independent sources about Operation Nardoo, the police codename for the calamitous Garbutt investigation, which form the basis of the third article, in a series of at least three, covering the Garbutt case. The product of almost 200 hours, over the past two months, invested in this most puzzling case and one in which the judge expressed serious, and well justified, concerns about the police management of the crime scene: ‘A regrettable lack of professionalism’.

It is safe to to say, supported by a lengthy and highly attritional history (for example, I have taken them to court twice and defeated them), that NYP will not enjoy the intensity of the spotlight that I routinely turn onto them.

The police press office was not contacted, as it is some years since they responded to any enquiry from this quarter, despite my press accreditation by the National Police Chiefs Council and, of course, their lawful obligation to do so by way of section 39A of the Police Act, 1996.

This, as the reader may have gleaned already is a story with some way to run.

UPDATE: The second article in this four part series can now be read here. The third article here and the fourth article here.

Timeline: An at-a-glance timeline of events leading up to the murder and all that happened since can also be viewed here.

Page last updated: Thursday 2nd July, 2020 at 0625 hours

Photo Credits: Press Association, North Yorkshire Police.

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