A worrying trend identified.

In an article in the Law section of the Guardian (3 July 2001) Bob Woffinden explores the growing tendency of appeal court judges to refuse to accept the possibility of error, despite the fact that new evidence may have been presented. Instead, the judges presume they know the views a jury would have had on hearing that new evidence.This is a dangerous practice. In effect, the judges assume powers which exceed their true remit.

Siôn Jenkins’ first appeal suffered in precisely this way.

The judges at his appeal acknowledged that there was new evidence which was ‘credible’ and ‘relevant’. However,they then denied him the right to have it heard by a jury at retrial.

Details of the judgement handed down after the first appeal can be viewed here.

Siôn Jenkins’ appeal : December 1999

This section outlines the arguments presented at Siôn Jenkins’ first appeal against his conviction for the murder of his foster daughter Billie-Jo Jenkins.The appeal lasted from 29 November 1999 to 13 December 1999. The judges upheld the verdict of the original jury.

Day One:Tuesday 30 November

The hearing began at 10.30 am, before Lord Justice Kennedy, Mr Justice Dyson and Mr Justice Penry-Davy.

Anthony Scrivener QC, for the defence, announced that there were thirteen grounds of appeal, relating to the forensic evidence and the judge’s misdirection ofthe jury.

He established that there had been confusion caused by the presentation of the Crown’s forensic evidence at the original trial. This evidence, vital in convicting Siôn Jenkins, was seriously flawed.

The Crown case had shown that there had only been three minutes in which Siôn Jenkins could have carried out the attack and driven off with two of his daughters. However, this meant that there was a fifteen minute period during which an intruder could have committed the murder.

Anthony Scrivener also emphasised the fact that there had never been a suggestion that Billie-Jo had been molested.

Mr Camden Pratt, for the prosecution, made a request that the new, critical evidence of Professor Dennison should not be allowed. After consideration, the three judges ruled that it should be heard before they made a decision about whether to take it into consideration.

Siôn Jenkins looked well if, at times, pensive. He was clearly pleased to see the many family members and supporters present in the public gallery.

Day Two:Wednesday 1 December

Professor David Dennison was cross examined for much of the day by Mr. Camden Pratt. Questioning was extremely technical, dealing with anatomical detail, definitions of terms, and precise measurements and timings. Professor Dennison emphasised the need for accurate use of data which reflected the many complex variables in the evidence.

There was also cross examination of Donald Campbell, a consultant neurosurgeon and a specialist in head injuries. His wide experience of such injuries indicates it was impossible that the attack on Billie-Jo would have led to instant death. He stressed that death would have been a gradual process, during which brain function would continue at some level.There would have been abnormal breathing patterns, as a result of which Billie-Jo could have exhaled air, although even to the paramedics who attended the scene she was showing no apparent signs of life. In his view, survival could have continued for as long as fifteen minutes.

This explanation would be consistent with the original evidence of Siôn Jenkins, which was discounted because death was wrongly assumed to have been instantaneous. In conjunction with Professor Dennison’s findings, Campbell’s evidence has profound implications.

Day Three:Thursday 2 December

The detailed cross examination of Professor Dennison continued throughout the morning and for part of the afternoon.

This was followed by testimony from Mr.John McAughey concerning the validity of Professor Dennison’s experiments. Mr. McAughey was the expert whose evidence at the trial last year appeared to prove that it was impossible for Billie-Jo to have exhaled the ‘invisible’ droplets of blood found on Siôn Jenkins’ clothing. Professor Dennison’s 124 experiments now indicate that this evidence was flawed.

Day Four:Friday 3 December

Forensic evidence remained the focus of cross examination throughout the day.The equipment used and the interpretation of results were closely scrutinised. There was testimony from Adrian Wain, whose ‘pig’s head experiment’ was the source of the evidence which convicted Siôn Jenkins. On this occasion Wain was being questioned about Professor Dennison’s work.

Siôn Jenkins’ former wife, Lois, made an unexpected appearance in the public gallery. She took her place with the Hastings Police contingent in the courtroom. This act explicitly communicated a message which seemed at odds with her recent requests to be left to get on with her life.

Day Five:Tuesday 7 December

The week’s hearing resumed on Tuesday afternoon, with cross examination of the prosecution scientist, Professor Widdecombe. He was giving his observations on the experiments conducted by Professor Dennison. His comments related to how accurately the experiments could replicate the functions of a human respiratory system.

Before the defence cross examination of this witness took place, it was agreed that both sides would cross examine Dr. Hill, the pathologist who provided the postmortem report referred to in the trial of 1998. Anthony Scrivener’s questioning elicited the fact that a number of versions of the report had been ‘developed’ over time, as police enquiries had continued. There had, indeed, been at least one further draft produced after the trial and conviction of Siôn Jenkins.

Day Six:Wednesday 8 December

The defence requested an adjournment at the start of the day’s proceedings. This was to allow for the completion of its response to new prosecution reports which had been introduced during the previous day. Anthony Scrivener emphasised the right of the defence to reply to the new points which the prosecution had been permitted to present.

The hearing continued with the recall of Professor Dennison, who was questioned first by Mr. Scrivener and then by Mr. Camden Pratt about the further reports from Dr. Hill and Professor Widdecombe.

The afternoon began with Professor Widdecombe in the witness box. He answered questions from Anthony Scrivener about his evaluation of Professor Dennison’s experiments and findings. In the course of giving his testimony he referred to Dr. Hills’ observation that ‘witnesses to traumatic events do not always notice vital details’. He was briefly questioned Mr. Camden Pratt.

Anthony Scrivener then went on to summarise the range of possible legal responses to what had been heard. He observed that the prosecution had not dealt with the evidence as presented at the trial, that they had, in effect, introduced new elements. He cited a number of precedents which indicate the form a ruling might take. He emphasised the role of the appeal court as a ‘court of review’; its ruling should reflect this remit, and should not be the outcome of a ‘mini-trial’ at appeal.

Day Seven:Thursday 9 December

Reference was made to the forensic evidence, with points of technical detail being raised and examined further.

Anthony Scrivener then introduced the points of appeal arising from the handling of the investigation following the murder, and the subsequent trial.

Siôn Jenkins had no motive for committing the murder. Reference was made to the original statements of his daughters Annie and Lottie, in which they say they were with their father all the time. These statements were not used in the trial. Instead, much later statements, made following further contacts with the police, were offered as evidence. Police had spent considerable time with Lois Jenkins at an early stage, ‘convincing’ her of Siôn Jenkins’ guilt. The ‘welfare’ role assumed by local police officers could be construed as inappropriate.

Important details had been not been included at the trial, e.g. Lottie’s comment that the gate, previously closed, was open on their return. The family had been concerned about prowlers and strange phone calls for some time prior to the murder. The forensic evidence had been confused and possibly misleading.

The prosecution’s cross examination of Siôn Jenkins had included completely unfounded insinuations about the relationship between Billie-Jo Jenkins and her foster father. Reference was made to the relationships between various members of the Jenkins family.

Anthony Scrivener raised the possibility of a retrial as the outcome of the appeal hearing.

Day Eight:Friday 10 December

The hearing moved into its closing stages. The defence questioned the propriety of a number of actions by police officers investigating the murder.

The court was told about unused evidence which clearly suggested that there had been a deliberate strategy to persuade Lois Jenkins that her husband had killed Billie-Jo.

Police treatment of the Jenkins children was shown to have been questionable in manner and manipulative in its effect. Two police officers told all four children that they had evidence that their father had killed their sister, and that they had discovered he had lied about his qualifications. Over several weeks they made visits to the Jenkins home to continue talking to the four children about their father’s guilt. They told the children that Siôn Jenkins had beaten their mother. Transcripts of these interviews, not used in the trial, were read out in court. The children’s response was to dispute the accusations of violence by their father, but this had not been revealed at the time of the trial.

Anthony Scrivener argued that there had been significant abuse of police powers in order to achieve a guilty verdict, and that a retrial was necessary.

Day Nine:Monday 13 December

Anthony Scrivener’s summing up was completed in one hour. He repeated his call for a retrial, saying that the new evidence raised at appeal must be heard by a jury.The judges announced their intention to reserve judgement, anticipating that they would give their ruling possibly by the end of the week, but more likely the early part of the following week.

The decision:Tuesday 21 December

At 10.00 am the three appeal court judges entered court number five. Siôn Jenkins came in, accompanied by a Securicor guard. Mr Justice Kennedy made a few preliminary remarks before curtly announcing ‘The appeal is dismissed’. Siôn Jenkins, was escorted away having spent three minutes at most in the court.

As the statement was made, Jeremy Paine turned, smiled up at the upper gallery, nodded in apparent confirmation, and winked at someone.Paine is the police officer whose media fame derives from his involvement with the case. His subsequent prompt performance in front of the waiting television cameras outside echoed the self-justifying tone of his comments at the time of the conviction.

A written judgement was made available.

The possibility of an appeal to the House of Lords was raised. This would be pursued in January as soon as the court resumed after Christmas.

Mr. Camden Pratt, the prosecution barrister, asked for costs to be met in full by the defence. This request was agreed.

14 January 2000

The three judges who dismissed the appeal in December refused certification which would allow the case to be taken to the House of Lords.

At the hearing Anthony Scrivener QC raised the issue of a conflict of interest on the part of Mr. Justice Penry Davey. A sworn affadavit was presented to the court.

Mr. Penry Davey, formerly Chairman of the Bar Council, is an old boy of Hastings Grammar School, now William Parker, the school at which Siôn Jenkins was employed at the time of the murder.

He has made financial contributions to the school.

He was guest speaker at the school’s Speech Day in December 1997, only months after Siôn Jenkins was charged with the murder, and with deception over falsifying his qualifications to obtain his post at William Parker School.

Mr. Penry Davey had told only Lord Justice Kennedy of his connection with the school. He did not declare the facts.

In court, Lord Justice Kennedy angrily dismissed as ‘absurd’ the suggestion that these associations might have constituted a risk of bias by Mr. Penry Davey. He rejected the idea that this could play any part in a possible appeal to the House of Lords.

His view has provoked much concern.

A spokesman for Liberty said after the hearing: “It is very important that justice should not only be fair, but should be seen to be fair. This case raises questions about whether it is seen to be fair and that damages the criminal justice system.”

Strict guidelines have been issued by the Lord Chief Justice. It is laid down that a judge should withdraw from a case if there is a real possibility of bias or embarrassment to the judge himself.

In this case, where the issue of personal integrity has had a central role, the matter cannot now be brushed aside.