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 QC’s 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 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 5 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 and TC Graham-Marlow say that when they 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. 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.
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).
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 that, upon arrival at the scene of the murder, there was no electrical activity in her 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. 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:
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 on 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 given to 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 as 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.
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, as he is now styled, 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.
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. The next instalment will be published within the next week or so.
UPDATE: The second article in this four part series can now be read here.
Page last updated: Sunday 5th April, 2020 at 0845 hours
Photo Credits: Press Association, North Yorkshire Police.
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