Neutral Citation Number: [2003] EWCA Crim 3309
COURT OF APPEAL (CRIMINAL DIVISION)
KEENE LJ, RODERICK EVANS, COOKE JJ

Date: 13 NOVEMBER 2003

Before:

KEENE LJ

 - - - - - - - - - - -

	R		
	 v 		
	J		

- - - - - - - - - - -

(Transcript: Smith Bernal)

- - - - - - - - - - -
Judgment

COUNSEL:
P Cosgrove QC and C Mitford for the Appellant;  S Williamson QC for the Crown;  David Auld & Co, Morpeth

 KEENE LJ
(reading the judgment of the court):

[1] On 24 July 1989 after a six day trial in the Crown Court at Newcastle upon Tyne before Simon Brown J, this appellant was acquitted of the charge of murder but convicted of manslaughter. The next day he was made the subject of a hospital order under s 37 of the Mental Health Act 1983, with a restriction order under s 41 of the same Act. He appealed against conviction but that appeal was dismissed by this court, presided over by the Lord Chief Justice, Lord Lane, on 19 November 1990.

[2] On 27 August 2002 the Criminal Cases Review Commission ("the Commission") referred the conviction to this court under s 9 of the Criminal Appeal Act 1995 because it was considered that there is a real possibility that the conviction would not be upheld. By virtue of s 9(2) that reference is to be treated for all purposes as an appeal against conviction.

[3] The conviction arose as the result of the discovery of the body of a woman, L, in her flat in Newcastle at about 6pm on Sunday 28 August 1988. She was found naked and face down on the bed in her bedroom, having been the subject of a violent attack. It was scarcely in issue between the pathologist who gave evidence at trial that she had first been strangled manually, then stabbed once to the chest, piercing her heart, and then finally been the subject of a series of blows (something like ten in number) to the back of the head with some axe-type instrument, probably something like the meat cleaver which was found nearby. A kitchen knife was also found near the body. It was obvious that she had been killed by somebody. The issue at trial was whether it was this appellant.

[4] There was, as the trial judge put it, not a shred of forensic evidence linking the appellant to the crime and, as the prosecution very frankly put it at trial, no evidence at all against him, save for a series of confessions made by him during interviews by the police on the Monday, the day following the discovery of the body.

[5] It was accepted at trial that the appellant was mentally subnormal. A report by a clinical psychologist, Dr Paul Smith, assessed his verbal intelligence as being below the bottom one per cent of the population and his general memory as being extremely poor. He suffered, as the trial judge put it, from arrested or retarded development, and there was evidence that he had a mental age of eight-and-a-half years; he was in fact 49 at the time. The trial judge also described him to the jury as a highly suggestible person, someone who was very ready and anxious to say whatever he thought the police would like him to say. There was also evidence that his suggestibility would mean that once he had produced a particular version of events in interview, he would be likely to adhere to the same broad pattern of description.

[6] For those reasons, and for others to which we shall come, the judge gave the jury a warning to treat the confessions with great caution.

[7] The appellant had a simple job helping stallholders in the market in Newcastle to set up their stalls in the morning and to clear them away in the evening. There was no doubt that he knew the deceased. She was a distinctive figure, suffering, as she did, from a medical condition which caused overeating and weight gain. She frequented a local cafe on a regular basis, but her physical size made her someone who could readily be recognised by those who saw her. This was of relevance in the light of evidence given by a number of witnesses.

[8] There was a degree of disagreement as to the time of her death between the pathologists. Dr McTaggart, called by the Crown, put the time of death as having been between 9pm on the Friday and 3am on the Sunday night, but most probably, he said, about 9am on the Saturday. Dr Sunter, called by the defence, put it as having been between 9am on the Saturday and 3am on the Sunday, his best estimate being at about midnight on the Saturday night.

[9] A considerable number of witnesses testified to seeing the victim, L, alive on the Saturday afternoon or even later. At least six of them referred to seeing her at the local cafe during that period. Two of them, a woman and her grandson, both worked at the cafe and gave evidence that they came on shift at 5pm on the Saturday afternoon and saw L at about that time, and again for a period of time after 6.30 or 7pm. The owner of a fish and chip shop said that he saw her at some time that evening between 7pm and midnight, although he could not be more precise than that, and a taxi clerk testified that she saw L walking towards the bus station at about 10:45 or 11pm.

[10] The relevance of this evidence was twofold. First, the appellant in his confessions said that he had killed the victim at 11am on the Saturday, although he sometimes did refer to this as being 11 o'clock in the afternoon. However, since he began work extremely early in the day, there seemed to be no suggestion that he meant anything other than 11am. Secondly, and of greater significance, there was considerable evidence that the appellant had had no opportunity to visit the deceased's flat from about 6.30pm on the Saturday evening. It was indeed the Crown's case that she had met her death before then, earlier on the Saturday when the appellant did have such an opportunity. But if these various witnesses were right and were reliable, then L had still been alive until after the time when, realistically, the appellant could have killed her.

[11] What weighed against this evidence, both when the appeal was heard and no doubt also powerfully in the minds of the jury, were the appellant's confessions and, in particular, the detail contained in them. It was the Crown's case, accepted by the jury, that no one but the killer could have made these confessions in the form in which they were made. We turn, therefore, to the circumstances surrounding those confessions, dealing with them first as the evidence stood at the time of trial.

[12] The appellant turned up on the Monday morning, 29 August, outside the block of flats where the deceased lived. He rang the intercom and called out her name in a distressed manner. The police were already there and an officer came and spoke to him. The officer told the appellant that CID officers would like to speak to him. As a result he went with police officers to the police station, arriving there at 9.35am. Between that time and 11am he was in discussion with two officers: Acting Detective Sergeant Thornton and Detective Constable Dunn. As the judge reminded the jury, all the police involved with the appellant had themselves been fully briefed about the details of the killing at a 9am briefing and so these two officers knew those details. The post-mortem had taken place during the night. No record was made of these discussions between the officers and the appellant during the period 9.35am to 11am. He was not under caution, and no appropriate adult was present.

[13] At 11 o'clock that morning the same two officers began taking a witness statement from the appellant. In it he described having met the deceased about six months earlier, since when he had visited her in her flat about once a week when she would masturbate him. He said that the last time he had been in the flat was on Thursday. He described his movements on the Saturday, not referring to any visit then to the flat. He made no admission as to killing L in this statement, which the officers finished taking at 12.25. According to the evidence of the officers at trial, it was only on completing this statement that they realised he could not read or write. The trial judge summarised the officer's evidence as to their appreciation of his mental abilities at this stage as follows:

"They realised he was not intellectually acute. Quite the contrary, that he was obviously relatively simple. He, for instance, could not tell them his date of birth. He could not even tell them his age. He said he thought he was about 45 or 50 years old, but they regarded him as streetwise at least and able therefore to tell them his story."

Despite that, the witness statement in its heading gives his age as 49 and his date of birth as 25 February 1939. How and why that was done is something to which we shall come.

[14] Acting DS Thornton's evidence was that he then decided to clarify certain points, particularly as to the precise nature of the sexual relationship between the appellant and the deceased. This questioning to clarify began at 12.40pm. The appellant then became very agitated and began to shout. Both officers gave the same evidence at trial, to the effect that the appellant said that he had only fucked her once and that about a week before he had buggered her. He added, "Look, I've told you what happened, can we leave it at that?"

[15] DS Thornton then said this, according to his evidence:

"Mr J, L has been murdered. You realise that, don't you? Obviously we are trying to get to the truth of this matter. I feel, we both feel, that you are not telling us all you know."

According to the officers, the appellant then shouted out:

"Look, I grabbed her by the neck. She said Eli was better than me."

At that stage the officers cautioned him for the first time and began a formal record of interview. They recognised that it was incumbent upon them to tell him that he might obtain legal advice if he wished, but they did not tell him that. Acting DS Thornton's evidence was that he was too excited by the thought that he was about to be told about a murder, and he forgot to advise the appellant as he should have done.

[16] The trial judge noted that the police, in any event, ought not to have interviewed the appellant or, indeed, taken even the witness statement from him in the absence of an independent adult, because he was mentally handicapped. But, said the judge, the police did not regard him as such. They did not have the benefit of the medical evidence available at trial.

[17] We would add at this point that at trial there was an application by the defence to exclude the formal interviews, in which the appellant confessed to the killing, because of these several breaches of the Codes of Practice, in particular of Code C. There was a voir dire during which reliance was placed upon s 76 of the Police and Criminal Evidence Act 1984 (PACE), but we do not have a transcript of that. It is, however, clear that the judge ruled that the evidence of the confession was admissible. According to the Commission's Statement of Reasons for the reference, there is a handwritten note in the CPS files indicating that the judge decided that, despite the breaches of PACE, the evidence should go to the jury because of their vividness and their similarity to the way in which the killing was actually carried out.

[18] That is a reference to what the appellant is recorded as having said in his first four interviews, all of which took place on that Monday. None of those interviews were tape-recorded but were recorded in manuscript and subsequently read over to the appellant. The first of those interviews lasted from 12.50pm to 1.15pm, a period of 25 minutes, and is brief and dramatic. For that reason it is convenient to read it in full. The questions were put by Acting DS Thornton:

"Q. Do you understand what I have just said?

A. It means the court will know.

Q. That is right, what you tell me I'll record. You have just said you want to tell the truth?

A. I, I killed L.

Q. Why was that?

A. Because she was laughing at me because I couldn't have a fuck with her. She had been wanking me off and I couldn't fuck her.

Q. What did you do?

A. I grabbed her by the throat. She passed out and I stabbed her.

Q. What did you use?

A. A knife. I took her into the bedroom and stabbed her. I put her on her stomach and used a little axe.

Q. Where did you get the axe from?

A. It's L's I think. I only hit her once or twice with it.

Q. Where did you stab her?"

In fact, the appellant then indicated to the officer where he had stabbed her, indicating the left breast.

"Q. What did you do then?

A. I washed my hands and left."

The record then indicated that the appellant started to cry and the interview was terminated.

[19] It was the description of the sequence of the attacks - that is to say the strangling, the stabbing and then the blows to the back of the head, plus such detail as stabbing to the left breast, and putting the victim on her stomach - which were of such critical importance in the case, because they accorded with the evidence of what had actually happened. Those details had not been made public at that stage.

[20] Two more senior officers then interviewed the appellant at 1.30pm. Again, his right to legal advice was not explained to him and no appropriate adult was in attendance. He gave a broadly similar account to that given in his first interview, though now he said that he had lost his temper because L had said, "Eli had a better one" than him, and he demonstrated the stabbing as having been to her abdomen. He also initially described leaving her on the couch in the living room rather than in the bedroom, but changed that when his version was challenged by the police. He also described her as wearing a brown overall, although, as indicated already in this judgment, she was found naked.

[21] Immediately after this interview, at 2.38pm, the appellant was arrested on suspicion of murder. According to the arresting officer, he replied:

"I didn't mean to hurt her. Will I get bail?"

At that point the custody record was opened. The appellant was now informed of his right to a solicitor but initially declined, and then, after a short time, changed his mind and requested one.

[22] His third interview took place in the presence of a solicitor, but with no appropriate adult present. It began at 5.50pm. The appellant responded to the first question: "Q. Did you kill her?" by saying, "No, no, sir." But on further questioning he repeated his earlier confession, saying that he had gone to L's flat at about "11 in the afternoon", in the daytime not when it was dark. This time he described hitting her with the chopper in the living room and said, on being pressed, that he was sure that it was there.

[23] His fourth interview took place between 7pm and 8.15pm on that Monday, again in the presence of a solicitor. This time he said that he had been mistaken earlier in saying that he had got angry because she had asked him to fuck her and he could not. He had got angry because she would not let him fuck her. As in the third interview, he described hitting her with the chopper on the couch in the living room and not the bedroom. But when the police officer told him that the blood marks showed that the chopper was used in the bedroom, he said that it had been in the bedroom. He was told that L had not been wearing a brown housecoat when found and he agreed that she must have taken it off. He again said that he had seen her at about 11am on the Saturday.

[24] Finally, he was interviewed the following day, 30 August, in the presence of a solicitor, and this time he denied killing her. He said that he had been out all day grafting with the barrows and that "the two detectives made him say that", in other words say that he had killed her. He was then charged. Since that time he has consistently denied killing the deceased.

[25] We have dealt with this sequence of interviews in some detail because they lie at the heart of this case. Despite the changes in the accounts given by the appellant, and despite some discrepancies between those accounts and what was known to have happened, the description of the three separate attacks and their sequence was obviously regarded by the jury as very compelling. The trial judge very properly summarised for them the main discrepancies between the appellant's account and the known facts-the number of blows with the chopper, the time of killing, and such matters as where the knife had been left-but the jury must have been impressed by the appellant's knowledge of the basic details of the killing. Acting DS Thornton had told the jury that none of the details known to the police were discussed with the defendant before the recorded interviews began, and the jury must have accepted his evidence. As the Court of Appeal said in rejecting the appeal:

"If that information which he retailed to the police had not been fed to him by the police, then it seems inevitable that he must be the killer."

Patently, he could not have invented such details. As Mr Cosgrove, on behalf of the appellant, puts it: that remained the prosecution's trump card throughout.

[26] Consequently, despite the appellant's mental subnormality and high suggestibility, and despite the numerous breaches of Code C, the conviction was upheld on the appeal. The Court of Appeal Criminal Division paid tribute to the careful directions given by the trial judge.

[27] On behalf of the appellant, Mr Cosgrove relies upon the crucial part played by the confessions, upon the appellant's mental handicap and his suggestibility, upon the breaches of Code C and on the time spent by the two officers, Messrs Thornton and Dunn, with the appellant before even a witness statement was taken. He also draws attention to the length of time taken for the first interview, 25 minutes, during which, according to the record, only eight questions were asked and answered. All of that happened, he points out, with no solicitor and no independent adult present. Emphasis is also placed on the evidence of those witnesses who testified that they had seen the victim L alive after the time when the appellant said he had killed her. In particular, he has emphasised that four of those witnesses gave evidence that she was alive after the time when the appellant had any opportunity of killing her. He had a solid alibi from about 6.30pm on the Saturday.

[28] However, Mr Cosgrove rightly recognises that all those were matters known to the jury at the time, and indeed to the judge on the voir dire. The principal plank of his case on this appeal rests upon the emergence of new evidence identified by the Commission which, it is said, casts doubt upon the credibility of the two officers who conducted the initial and crucial interview. Their credibility was vital, because they had had the knowledge and the opportunity to feed the basic details, even inadvertently, of the killing to the appellant. They gave evidence at trial that they had not regarded the appellant as mentally handicapped, even though he could not tell them his age or date of birth. It is to their veracity in that respect that it is said the new evidence goes.

[29] At the forefront of the appellant's case is a document which has come to light since the trial and the subsequent appeal, namely a computer printout from a system used by the Northumbria police, known then as the Criminal Intelligence System. We shall refer to it as the "CIS printout". It is dated 29 August 1988, the Monday when the appellant was first at the police station, and it bears the time marking 11.11, which would be shortly after the two officers started taking the appellant's witness statement.

[30] It does not appear to be in dispute that it was printed out at a local police station and not at the headquarters of the force. It is marked "Printed for the use of officer 2165". That officer was DS Dunn, one of the two who first questioned the appellant at the police station. Marked on the printout in block capitals against the entry "warnings" is the word "MENTAL". It also gives the appellant's date of birth as 25/02/39, although subsequently someone has amended that in manuscript to 25/04/39. The significance of that is that the earlier date is incorrect, yet it is that incorrect date which appears on the witness statement taken from the appellant between 11am and 12.25pm. The true date was discovered somewhat later when his birth certificate was obtained.

[31] Mr Cosgrove submits that this document should have been disclosed at trial and that, if it had been, it would have provided the defence with powerful material for attacking the credibility of the two officers, Thornton and Dunn, which was central to the case. It would have cast doubt on their assertion that they did not realise that he was mentally handicapped. Moreover, if there was doubt as to their credibility, it might well have led to a different ruling from the trial judge as to the admissibility of the confessions.

[32] We have had the benefit of hearing from DC Dunn (now DS Dunn) in the witness box on this appeal. It seemed to us to be right, once we decided to admit the fresh documentary evidence as satisfying s 23 of the Criminal Appeal Act 1968, to hear from DS Dunn on these matters. He was duly called by the Crown and cross-examined on behalf of the appellant.

[33] His evidence was that he had been based at another police station in Newcastle at this time, but had been brought in to assist in this inquiry. He had attended the briefing that morning, but could not recall anything about it. All he could remember about the conversation with the appellant that Monday, between 9.35am and 11am, was that they had talked about who the appellant knew, whether he had known the deceased, and what he had been doing. DS Dunn did say that the details of the briefing would not have been discussed with the appellant, and then he asserted that they were not discussed. He could not remember there being any break between 9.35am and the time when the appellant's first formal interview finished at 1.15pm, although he frankly admitted that he could not really recollect it now. We comment that that is scarcely surprising after an interval of some 15 years.

[34] His evidence was that he and DS Thornton had regarded the appellant as slow but no more. DS Dunn was asked about the CIS printout, as to which he said that he could not say when he initiated it, or indeed whether he had initiated it. He raised the possibility in his evidence-in-chief that some other officer at the police station might have sought the information on his or her own initiative, using DS Dunn's service number, because he was involved in the interview.

[35] We find that last suggestion impossible to accept. This was not his police station, whereas DS Thornton, who was the more senior officer of the two, was based there and, as DS Dunn acknowledged, would have been better known to the other officers there. Had the printout been obtained as a result of some independent initiative on the part of another officer at this police station, the natural thing to have done, if not using their own number, would have been to use that of DS Thornton, not that of DS Dunn. Moreover, we heard evidence from DCS Christopher Machell, who told us that the officer's number put into the computer would be that of the officer who requested the information or generated the request. In those circumstances, we reject the possibility that the printout was not initiated by DS Dunn.

[36] As he accepted, it was normal practice to fill in the personal details of a witness making a statement at the outset, and he said that there was no reason why that should not have happened here. That means that very soon after the officers started taking the witness statement from the appellant at 11am, they would have discovered that they did not have the details of the appellant's date of birth or his age because he could not provide them. DS Dunn agreed that one would find that information out by looking on the computer. That, of course, is what in fact happened at, or very shortly before, 11.11am.

[37] DS Dunn did not recall either officer leaving the interview room during the period they were with the appellant, and he asserted that they had no reason to do so. But there clearly was a reason, in that the appellant could not give them his date of birth. The officer could not even remember which interview room they were using, and since it would require only a few moments to go and get a colleague to make the necessary inquiry of the computer, it seems to us highly likely that he did leave the room for that very brief period and for that purpose. He could not recall when he had seen the printout and suggested that he might not have seen it during the whole inquiry. The gist of his evidence before us was that he had not seen it prior to the first formal interview with the appellant which began at 12.50pm.

[38] We have to say that we find that very difficult to believe. Someone in that police station printed out those details at 11.11am for the use of DC Dunn (as he then was) and it would have been natural to have brought the printout into the two officers in the interview room. But, in any event, there is another document which DS Dunn accepted would have been filled in while he and DS Thornton were with the appellant, and that is a personal descriptive form. Indeed, DS Dunn said that the sooner that form was filled in the better. That too bears the incorrect date of birth of the appellant and a reference to the police national computer, so it is to be inferred that someone brought that information into the interview room during that time, or went out from the room and obtained it.

[39] The evidence points strongly, in our judgment, to the CIS printout having been in the hands of the interviewing officers before the first formal interview. At the very least, there was powerful evidence that that is probably what happened. If that is so, then the word "MENTAL" on the form would have been difficult to miss, even on a casual skimming of the document. DS Dunn accepted in cross-examination that that word was a warning to any officer reading it, and that it would have alerted an officer to problems about the mental capacity of the person in question, and that a prudent officer would have taken steps to have had a responsible adult present.

[40] This casts a very different light on the failure, which in fact occurred, to ensure that a responsible adult was present. The judge and the jury at trial seem to have accepted that there was no good reason why the officers should have suspected the appellant to have been mentally handicapped. Had they had such a suspicion, then, by virtue of Code C para 1.4, they would have been obliged to treat him as mentally handicapped with all that would then follow from that.

[41] It seems to this court that, had the trial judge and jury had this CIS printout, then it is likely that they would have concluded that it was at least probable that these two interviewing officers did at least suspect that the appellant was mentally handicapped. That would have meant that there was a much more flagrant breach of the Code than was apparent at trial.

[42] On behalf of the Crown, Mr Williamson QC acknowledges that he can do little to seek to persuade the court to find that this conviction is safe. He does emphasise the very clear directions given by the trial judge to the jury, and emphasises that the failings on the part of the officers, in terms of the breaches of Code C, were recognised at trial and indeed were referred to on the original appeal. But Mr Williamson very frankly accepts that he faces substantial difficulties, at the very least at the stage of the voir dire that took place, had this fresh evidence been available at that time.

[43] We accept Mr Cosgrove's submission that the credibility of the two officers, DS Thornton and DS Dunn, was crucial to this case. If the jury had had reasons to doubt their credibility, then the detailed descriptions of the killing given by the appellant may well have been less compelling as evidence of his guilt. It is to be remembered that there was considerable evidence suggesting that the appellant could not have carried out the killing at the time when it seemed to have taken place. But one does not get into the position of applying the test in Pendleton [2001] UKHL 66, [2002] 1 All ER 524 and asking whether this evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict. There is an antecedent issue, which is that of the admissibility of the confessions in the first place. Under s 76 of PACE, if a confession may have been obtained:

". . . in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond a reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid." Section 76(2 ).

[44] The words "notwithstanding that it may be true" are important and have been repeatedly said by this court to show that what the court is concerned with on admissibility is the reliability of the confession, given the circumstances in which it was obtained, and not its veracity: see Kenny [1994] CLR 284 and Cox [1991] CLR 276. The proposition was well put by the then Lord Chief Justice, Lord Taylor, in the case of Paris [1993] 97 CAR 99, at 103:

"What matters is how the confession was obtained, not whether or not it may have been true."

The circumstances in which this confession was obtained must, in any event, have been close to those requiring its exclusion: it was one made by a mentally subnormal man, with very high suggestibility, without a responsible adult present, with no solicitor present for the first two interviews and without him being told that he could have legal advice. It must, in our view, have been a finely balanced decision at trial to rule that this evidence was admissible.

[45] Under s 76 the onus would have been on the Crown to show beyond a reasonable doubt that the confession had not been obtained in circumstances which were likely to render it unreliable. Had the trial judge had this additional evidence available to him and, in particular, the CIS printout, it seems to us that he would undoubtedly have decided to exclude the confession evidence from going before the jury. That would have been bound to have tipped the scales. Had that been his ruling, there would, as we indicated earlier, have been no case against the appellant.

[46] It follows that one is bound to conclude that this conviction is unsafe and we do so conclude. The conviction will, therefore, be quashed.

DISPOSITION:
Judgment accordingly.