Neutral Citation No: [2005] EWCA Crim 31
Case No: 2003 01904 C2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
AS A REFERENCE BY THE CRIMINAL CASES REVIEW COMMITTEE
FROM THE LEEDS CROWN COURT
(HON MR JUSTICE KENNETH JONES)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 19th January 2005

Before :

LORD JUSTICE LONGMORE
MR JUSTICE LEVESON
and 
SIR IAN KENNEDY
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Between :

	ABID HUSSAIN	Appellant	
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	REGINA	Respondent	

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TIM OWEN Esq QC and JULIAN KNOWLES Esq
(instructed by Irwin Mitchell, S1 2EL) for the Appellant
MARTIN WILSON Esq QC
(instructed by The Crown Prosecution Service) for the Respondent

Hearing dates : 7th, 8th December 2004
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JUDGMENT
Lord Justice Longmore: 
Introduction
1.	This is a reference from the Criminal Cases Review Commission (“the CCRC”).
2.	On 12th December 1978 the appellant Abid Hussain then 16, now 42, was convicted before Kenneth Jones J and a jury of the murder of his 23 month old brother Mushtaq Hussain who died on 25th August 1978.  He was sentenced to be detained during Her Majesty’s Pleasure but was released on licence in 1997 after he had successfully argued before the European Court of Human Rights that a prisoner who was detained at Her Majesty’s Pleasure was being detained incompatibly with Article 5(4) of the Convention on Human Rights, see Hussain v United Kingdom (1996) 22 EHRR1.  The jury had been discharged from giving a verdict on alternative counts of causing grievous bodily harm.  Two counts of buggery of the victim were left to lie on the file.  In accordance with the practice prevailing in 1978 in relation to murder charges, these counts had been severed from the original indictment.
3.	Social Services had been involved with the family in June, July and early August when Mushtaq had been hospitalised with suspected non-accidental injuries but the conclusion was that Mushtaq’s injuries could have been caused by a fall and Mushtaq was discharged back into his family’s care on 5th August 1978 in Dewsbury at a time when Abid Hussain had left school but was hoping to go to college to study for ‘O’ levels and, later, ‘A’ levels.
4.	During the summer holidays the mother of the family was in hospital having treatment for malaria.  Abid and Mushtaq’s father, Sabbir Hussain, was out at work from 07.30 to 18.30;  so during the day Abid was in charge of both Mushtaq and other children of the family.
5.	On the evening of Tuesday 22nd August Mushtaq had had his hair cut and appeared to be in good health.  There was no independent evidence of events on Wednesday 23rd August but at 16.50 on Thursday 24th August a young neighbour, Carol Cassidy, saw Mushtaq fall down 3 or 4 of the stone steps outside the family home and then crawl back up to the house.  Shortly after this Abid called to Carol and asked her to fetch her mother to look at Mushtaq.  Mrs Cassidy arrived, saw that Mushtaq was unconscious and called an ambulance who took him to hospital in Dewsbury and then to Leeds General Infirmary.
6.	At the infirmary in Leeds Mr Price, a surgeon, found two large blood clots on Mushtaq’s brain.  He carried out surgery to relieve pressure on the brain and arranged for Mushtaq to be put on a life-support machine.  But the following day the doctors decided Mushtaq was brain dead and the machine was switched off at about midday on Friday 25th August.  The cause of death was certified to be bruising and swelling of the brain and compression of the brain by subdural haemorrhages.
7.	The pathologist, Dr Green gave evidence about the other injuries which Mushtaq had suffered.  These were:-
(i)	24 externally visible bruises to the face and head.  Dr Green believed these had been caused by hard blows from a hand;
(ii)	25 bruises to the trunk and limbs caused, he said, by very hard slapping and gripping;
(iii)	two brain haemorrhages.  These would have been caused by shaking or blows to the head;
(iv)	spinal bleeding.  Dr Green believed this to have been caused by a blow or over-bending, or possibly through shaking;
(v)	splitting of the membrane between the two halves of the brain.  Dr Green thought this would have been caused by repeated blows to the head.  He said he had only ever seen this injury before in boxers.
8.	Meanwhile at 09.00 on 25th August DI Grinstead instructed DC Hirst and DS Richardson to detain Abid following a report of life-threatening non-accidental injuries to Mushtaq by the Coroner’s Office.  At 12 noon, about the same time as Mushtaq’s death, Abid was taken to the police station but not then cautioned by either DC Hirst or DS Richardson.  At 12.30 the police officers interviewed Abid for the first time.  He was not cautioned and no adult was present.  Most of this interview was excluded from the evidence given at the trial save for the officers’ statement that Mushtaq was seriously ill with injuries which had not been caused accidentally and Abid’s reply, to the officers’ request for an explanation, “Maybe it was the wrestling”.
9.	At 17.00 the police requested Abid’s father, Sabbir, to come to the police station.  Sabbir gave evidence that he arrived around 19.00 and was kept waiting before he saw his son.
10.	Between 20.00 and 21.05 Abid, who had apparently been alone since the end of the first interview,  was interviewed a second time.  He was cautioned and the police explained to him in simple terms what the caution meant.  Abid was not offered any legal advice nor was any independent adult present.  The police explained that Mushtaq had now died from a severe brain injury which together with other marks on Mushtaq required explanation.  The police asked if Abid wanted to talk about them and when Abid said that he would, they offered to “wait” until his father arrived but Abid wanted to carry on.  He admitted slapping Mushtaq “maybe six times” or more (while wrestling with him), holding Mushtaq’s legs so tightly that he left marks and kicking Mushtaq’s bottom four or five times “not very hard”.  He further admitted ejaculating and putting his penis a little way into Mushtaq’s bottom.  Sabbir Hussain was eventually allowed to come into the interview;  Abid repeated that he had hit and kicked Mushtaq and, after being prompted by DS Richardson, also repeated the admission about sexual interference with Mushtaq.  Sabbir became upset at this and left.  At the end of this second interview Abid was informed for the first time of his right to legal advice.  His father requested that a local solicitor be contacted.  This interview was before the jury, apart from the parts about sexual activity.
11.	Abid was then provided with a bed and went to sleep, but at 23.30 he was awoken and interviewed for a third time in the presence of two social workers, Ms Jessie Owens and Mr Brian Mettrick.  Jessie Owens had been involved in the earlier investigation in June-July.  In the course of this interview Abid said he had thrown Mushtaq on the couch and he repeated the admissions about ill-treating Mushtaq hitting him and sexually assaulting him saying that that had happened on two occasions.  He also admitted shaking Mushtaq on Thursday after he had spilled some water.  At 00.20 on 26th August the third interview ended.  Abid was asked if he wanted to make a statement and the police officers left the room so that he could talk to Miss Owens and Mr Mettrick.
12.	From 00.31 to 01.26 Abid made a written statement under caution to DS Richardson in the presence of Ms Owens and Mr Mettrick.  In the statement he admitted wrestling with Mushtaq on Wednesday 23rd, putting him over his shoulder, losing his temper, hitting him hard, kicking him about 5 times on the bottom, and dropping him so that he fell and banged his head.  Mushtaq later woke Abid up and Abid said that he then hit Mushtaq on the face.  He said he also hit him on the face on Thursday 24th.  When Mushtaq came inside the house on Thursday, after falling down the steps outside, he “suddenly went jerk and eyes went back”.  These admissions were before the jury after a voir dire was conducted.  He also in this statement admitted the two incidents of buggery or attempted buggery but neither this nor (as we have already indicated) the sexual parts of his previous statements were before the jury.  At 01.30 Abid was charged with murder.  Later that morning he was brought before the magistrates’ court.  That was the first time he met a solicitor;  that was Mr Julian Hallam.  Between 4th and 12th December 1978 he was tried and convicted of murder.  In the course of his trial he agreed that he had made the admissions recorded in his interviews and his statement, but said he had been forced to do so by verbal, racial and physical abuse on the part of the police officers.  He also said he had been overawed by them.
13.	The Trial
For this reason there was a voir dire on 6th December.  There is no transcript of the argument or evidence on the voir dire nor of the judgment;  all that has remained is an abbreviated solicitor’s note of the cross-examination of DS Richardson probably by the late Mr Louis Lawton QC who represented Abid at trial.  From this note, abbreviated as it is, it is possible to see that it was being put to the police officer that Abid had been subjected to violence, name calling and racial abuse, all of which was denied.  It was also put to him that the first interview with Abid had been completed and the second interview had been begun and had continued for some while without attempting to procure that attendance of any adult other than an attempt made to contact Abid’s father.  DS Richardson confirmed that that was so.  This exchange is then recorded:-
“Q.	And you made no effort to have anyone else conforming to Judges Rules present?
A.	No.  If father had been there at 8.00 he could have been in.
Q.	But the fact of the matter is that he wasn’t and you knew he wasn’t.
A.	Yes.”
The Detective-Sergeant then said that he had considered the proper person to be present was Abid’s father (rather than the social workers who were present for the final interview) and that he told Abid and his father that they could have access to a solicitor after the second interview.
14.	Since the trial went ahead, Kenneth Jones J must have ruled that the admissions of violence against the baby made by Abid were made voluntarily. As we have said, much of the first interview was excluded but we cannot now know whether that was the result of agreement between counsel or of a ruling by the judge.  Nor can we know the reason why it was decided that the words “Maybe it was the wrestling” should be before the jury.
15.	Although the prosecution case asserted correctly that Abid had the opportunity to inflict the admittedly non-accidental injuries on Mushtaq and was the only person who could realistically be suggested as the killer, apart from Sabbir whom Abid did not suggest had ever assaulted Mushtaq or even treated him badly, the case depended very largely on the admissions made in the second and third interviews and the statement signed by Abid on 26th August.
16.	The judge began his summing-up on 11th December and completed it on 12th December.  He reminded the jury that Abid’s case was that his confessions were untrue because, according to him, he had been beaten up by the police officers who interviewed him.  The judge then took the jury through the interviews saying that the jury might think that very little had come out of the first interview.  He reminded the jury about the admissions made in the second and third interviews and in Abid’s statements;  he then dealt with Abid’s evidence in court to the effect that he had used no violence towards Mushtaq and moved on to Abid’s evidence about threats made to him in the interviews saying:-
“This is, of course, a very important aspect of the case.  In it, you might find the whole key as to who is telling you the truth here”.
17.	The judge then set out Abid’s evidence of threats which had been made to him particularly by a third officer whom DS Richardson and DC Hirst allegedly brought into the room during the first interview.  He had threatened Abid by saying “if he [viz. Mushtaq] dies, I am going to have you for it” and “If I had the chance I would run you Pakis out of the country”.  The same 3rd officer was also said to have been present at the second interview and said “If he [viz. Abid] cries, I will bang his fucking head against the wall”.  DS Richardson then said “you must tell the truth to this third Officer because he does not like hurting boys like you” and the third Officer said “You had better start explaining quick or there will be trouble”.  There was then said to have been a series of serious physical assaults by the third officer as a result of which Abid began to make admissions.  After he had made these admissions, it was said that the police put down the words of his statement and merely asked him if he agreed to their words and he had said ‘Yes’ in answer to every question.
18.	When the judge came to juxtapose the evidence of Abid and that of the police officers, he said:-
“If he [Abid Hussein] is right, those Police Officers were party to callous threats couched in obscene language.  Brutality.  They are guilty of concealing altogether the fact that a third Officer was present at the interview.  They are guilty of creating – and I use the word deliberately – creating a Statement by this Defendant which is wholly false and then coming before this Court and committing deliberate perjury.  And they have done all that to procure a false verdict of guilty against this Defendant.
Members of the Jury, it is probably difficult to imagine more serious charges that could be made against Police Officers.  It is nonsense, I think, for it to be suggested that it is understandable for Police Officers to act in this way because a baby had been injured.  Members of the Jury, they are, if he is right, guilty of conduct which should result in their immediate dismissal from the Police Service.  They are not fit to be Police Officers.  That is what is involved in his evidence.  You will think about it and you will think about those Police Officers.  You have seen them.  Do you believe there is a word of truth in those allegations?”
19.	The judge then pointed out that if the jury thought that Abid may have been telling the truth, his confession was entirely valueless and continued:-
“If, on the other hand, you think that the Defendant was telling you a pack of lies, particularly about this conduct of the Police Officers towards him in this case, then you probably would not attach very much importance to his denial before you that he had used violence towards his young brother.  You would be left then only with the evidence of the Police Officers as to what he said to them in the Statement.  Treat that all under one heading as a confession.
You would be left with his confession to the Police of having used considerable violence towards his baby brother.  It would then be for you to decide whether you felt dissatisfied in acting upon his confession.  You, of course, can only attach weight to a confession, if you feel that it was voluntarily made.  Voluntarily, freely, made so it sets out what this Defendant really wanted to say at the time.  The Prosecution must satisfy you that it was freely made.  If you have any real doubt about that, then you would attach little or no weight to any confession.  If you felt that it was freely made, as the Police Officers say that it was, then you are entitled to rely upon it and to regard it as being genuine and truthful.
The suggestion has been made by the Defence – perhaps a somewhat half-hearted suggestion – that you cannot be satisfied that this confession was freely and voluntarily made because, in some way, the Defendant is a young lad of sixteen who was frightened of the Police Officers – not because he had been beaten up (I am assuming you have rejected his evidence on that) – apart from that, simply because he was a young man at the Police Station and his father was not there to look after him.  That, in some way, you should regard him as being frightened – overawed by the Police Officers.  Mr Lawton has referred you to Home Office Directions that young people under seventeen should be interviewed only in the presence of parents or some other independant [sic] person who can look after their interests.  Well, these are directions given to the Police Officers.  They are not the law of the country, Members of the Jury and, of course, directions like that cannot cover every case which comes before the Court.  Every case must be examined carefully and, as I say, the matter you have to decide is, in this case, was this confession made freely and voluntarily by this Defendant?  You may think it is not so important what his age is.  What is important is what type of young man he is.”
This latter paragraph refers to the Administrative Directions, attached to the Judges’ Rules at the date of trial, requiring that any interview with a juvenile be conducted in the presence of an appropriate adult.  There is no separate reference in the summing-up to the fact that the jury should also take into account the fact that Abid had not been offered any opportunity to take legal advice until after the second interview.
20.	In due course after further guidance in response to a question about intention the jury returned a verdict of guilty.
21.	The First Appeal
There was then an application for leave to appeal but before that application was heard there was an investigation into allegations made by Abid after his trial.  These allegations were not merely that the police had obtained admissions by oppression but also that Sabbir Hussain had been responsible for the death of Mushtaq but had encouraged Abid to take the blame.  These investigations are summarised in the CCRC reference but took the matter no further and in due course leave to appeal was granted and the appeal heard on 5th March 1980.  The principal grounds of appeal presented by Mr Peter Taylor QC (as he then was) were these:-
(1)	That the judge had misdirected the jury in respect of the intent necessary to support a charge of murder in that he had not given them adequate directions on the relevance of the Appellant’s age to that issue.
(2)	The summing-up was hostile and therefore the conviction unsafe because:
(i)	The trial judge should not have commented about the consequences for the police officers if the Appellant’s allegations of mistreatment turned out to be true (cf. Culbertson (1970) 54 Cr App R 310.
(ii)	The judge had failed to give the jury adequate directions about the Judges’ Rules, in particular the interviewing of juveniles without an adult being present, and had been overly dismissive of them in his summing up.
22.	In dismissing the appeal, the Court of Appeal held:-
(1)	The first ground would have appealed to them but for the fact that the Appellant had admitted in evidence that he did appreciate that the things he was alleged to have done to Mushtaq would be likely to cause really serious injury.
(2)	While disapproving the remarks about the police officers, the Court said that persons who make complaints about police officers could not complain if the judge commented severely about unjustified attacks on police officers.  Also, although some judges may have gone further than Jones J in dealing with the absence of an adult, the issue had been left to the jury.  Overall, the fact that in one passage of the summing-up the judge went further than he should have done and in another did not go as far as some might have done did not make the verdict unsafe or unsatisfactory.
23.	This reference
On 26th March 2003 the CCRC after an exhaustive investigation referred Abid’s case to the Court of Appeal under section 9 of the Criminal Appeal Act 1995 and thereby set in motion this (second) appeal.  There are basically two grounds of appeal but each ground is divided into a number of sub-grounds.  They are as follows:-
(1)	The manner in which the Appellant was detained and interviewed resulted in serious and significant breaches of the Judges’ Rules and other protections which the appellant should have enjoyed.  The principal breaches were:
(i)	He was detained without legal advice or being told he had the right to legal advice;
(ii)	he was interviewed without any, or any effective, appropriate adult being present;
(iii)	he was not cautioned before the first interview during which he made admissions;
(iv)	he was a vulnerable 16 year old and was held incommunicado for nine hours.
As a consequence, the admissions made by the Appellant were procured by oppression and/or were unreliable and should not have been admitted by the learned judge.  Accordingly, the verdict is unsafe.
(2)	The summing-up was defective or deficient in the following respects:
(i)	the judge failed to direct the jury on the potential effect of the breaches of the Appellant’s rights;
(ii)	he failed to give an adequate direction on the Appellant’s good character;
(iii)	he made comments about the police officers which were prejudicial to the Appellant;
(iv)	he failed to give a Lucas direction on lies;
(v)	he made comments about the Appellant’s personal characteristics which were unfair and misleading.
24.	The Law
These grounds of appeal rely heavily on the legal principle that where, between conviction and appeal, there have been significant changes in the common law or in standards of fairness, the Court is required to apply modern legal rules and procedural criteria even though they were not and, could not reasonably, have been applied at the time.  This legal principle is set out in paragraph 5 of the judgment of this court in Bentley (31st July 1998) [2001] 1 CAR 307 where Lord Bingham CJ added:
“This could cause difficulty in some cases but not, we conclude, in this.”
The reasons why no difficulty arose in Bentley was that there were errors in the summing-up in relation to the burden of proof, the standard of proof and the directions on joint enterprise which rendered the summing-up defective in the light of both the law and procedure at the time of trial.
25.	Lord Bingham CJ returned to this point in the case of Ashley King [2000] 2 CAR 391 where the applicant had confessed to a killing during an interrogation in breach of the rules in force at the time.  He had not been cautioned nor had he been charged when he first admitted to the substance of the charge;  he had been detained against his will although he was not under arrest and was not advised of his right to receive legal advice until after two interviews in which he had made extensive admissions.  All this was at a time, unlike the present case, when the Police and Criminal Evidence Act 1984 was in force.  The court was invited to consider the correct approach if a suspect were investigated and detained at a time when the statutory framework governing investigation, interrogation and detention was different from that in force at the time of any appeal.  Lord Bingham CJ gave the following guidance:-
“We remind ourselves that our task is to consider whether this conviction is unsafe.  If we do so consider it, section 2(1)(a) of the Criminal Appeal Act 1968 obliges us to allow the appeal. We should not (other things being equal) consider a conviction unsafe simply because of a failure to comply with a statute governing police detention, interrogation and investigation, which was not in force at the time.  In looking at the safety of the conviction it is relevant to consider whether and to what extent a suspect may have been denied rights which he should have enjoyed under the rules in force at the time and whether and to what extent he may have lacked protections which it was later thought right that he should enjoy.  But this Court is concerned, and concerned only, with the safety of the conviction.  That is a question to be determined in the light of all the material before it, which will include the record of all the evidence in the case and not just an isolated part.  If, in a case where the only evidence against a defendant was his oral confession which he had later retracted, it appeared that such confession was obtained in breach of the rules prevailing at the time and in circumstances which denied the defendant important safeguards later thought necessary to avoid the risk of a miscarriage of justice, there would be at least prima facie grounds for doubting the safety of the conviction – a very different thing from concluding that a defendant was necessarily innocent.”
26.	This guidance is far from saying that a contravention of a safeguard which has only become applicable since the time of conviction will be enough to render a conviction unsafe and is, to that extent, a recognition that the principle set out in Bentley cannot be taken too far.  The essential question is whether the conviction is safe and it would be surprising if the mere fact that (for example) a “good character” or “lies” direction had not been given in the terms which are conventional to-day would be enough to enable a court to doubt the safety of a conviction.
27.	This was also, we think, the approach adopted in Hanratty [2002] 2 CAR 419 at page 450 where under the heading “The Effect of the Passage of Time” Lord Woolf CJ said:-
“98.  . . . . . . For understandable reasons, it is now accepted in judging the question of fairness of a trial, and fairness is what rules of procedure are designed to achieve, we apply current standards irrespective of when the trial took place.  But this does not mean that because contemporary rules have not been complied with a trial which took place in the past must be judged on the false assumption it was tried yesterday.  Such an approach could achieve injustice because the non-compliance with rules does not necessarily mean that a defendant has been treated unfairly.  In order to achieve justice, non-compliance with rules which were not current at the time of the trial may need to be treated differently from rules which were in force at the time of trial.  If certain of the current requirements of, for example, a summing-up are not complied with at a trial which takes place today this can almost automatically result in a conviction being set aside but this approach should not be adopted in relation to trials which took place before the rule was established.  The fact that what has happened did not comply with a rule which was in force at the time of trial makes the non-compliance more serious than it would be if there was no rule in force.  Proper standards will not be maintained unless this Court can be expected, when appropriate, to enforce the rules by taking a serious view of a breach of the rules at the time they are in force.  It is not appropriate to apply this approach to a 40-year-old case.”
28.	It will, therefore, often be important in disposing of appeals made by way of references from the CCRC in comparatively old cases for this court to decide whether the facts complained of constitute a breach of rules in force at the time of trial or only of rules and standards that have subsequently become required by law or thought to be desirable.  If, moreover, a breach of the rules existing at the time is established, such breach will usually have been brought to the court’s attention.  If it has been, the court’s reaction to such breach and its directions, if any, to the jury will be important matters to which regard should be given.  It may be that at the time of trial the breach will have been regarded as less important than it would to-day.  In the light of the authorities cited it is the current approach to such breaches that should govern the matter.
29.	Individual grounds of appeal
With these principles in mind, we turn to the individual grounds.
30.	(i)  Detention without the offer of legal advice
For the Crown Mr Martin Wilson QC accepted that Abid was not offered legal advice until after the end of the second interview and that the third interview took place and Abid’s statement was made before it was practicable for any legal adviser to attend.  He pointed out, however, that this fact was elicited on the voir dire and submitted that the judge must have expressed himself satisfied that the admissions had been made voluntarily.  It is a striking fact that nothing was made of this point when Mr Peter Taylor QC came to present Abid’s appeal.
31.	The elementary right to legal advice when facing an interview which may lead to a serious charge existed, of course, in 1978.  It would be fair to say that it was assumed in (rather than granted by) the Judges’ Rules 1964.  The introductory part states:
“These Rules do not affect the principles . . . . 
(c)	that every person at any stage of the investigation should be able to communicate and consult privately with a solicitor.  This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused . . . .”
It may not be quite correct to say that, in 1978, the police were obliged to “offer” a suspect legal advice since, as far as we can remember, there was no duty solicitor scheme as such in those days.  But when the police raised the question of legal advice, Mr Sabbir Hussain had no difficulty in identifying a solicitor he wished to consult.
32.	Junior Counsel for Abid, Mr Julian Knowles did some overnight research on the legal position in 1978 and we were referred to the cases of Lemsatef (1977) 64 CAR 242, Allen [1977] Crim LR 163 and Elliott [1977] Crim LR 551.  In Lemsatef the appellant had been detained and interrogated in relation to a drug importation between 3.30 and 4.20 am and then said he would not answer further questions until he had seen his solicitor.  The customs officer conducting the interrogation said he could not see a solicitor at that time of the morning.  The appellant’s wife got in touch with a solicitor in the afternoon of the same day but the solicitor was not allowed to see the appellant before his interrogation had ended in oral admissions and a statement amounting to a confession.  Judge Henry Scott QC sitting at Wakefield decided that the admissions were made voluntarily.  On 2nd July 1976 the Court of Appeal decided that there was nothing to indicate that the judge had exercised his discretion wrongly.  After Lemsatef was decided but before it was reported, MacKenna J sitting at Reading on 27th September 1976 excluded evidence of an interview after a suspect had been refused access to a solicitor on the ground that the answers had been unfairly obtained (Allen), while Kilner Brown J sitting in Newcastle in June 1977 declined to follow McKenna J’s lead saying that a statement obtained before a suspect had received legal advice was not to be excluded because it was obtained in breach of the Judges’ Rules “if it has not thereby been rendered unreliable” (Elliott).  It is perhaps permissible to speculate that the approach of Kilner Brown J was more widely regarded as correct in the profession and that, whether he knew of these actual authorities or not, Mr Peter Taylor QC did not think there was much mileage in attacking Kenneth Jones J’s exercise of discretion in relation to the absence of legal advice.
33.	The Royal Commission on Criminal Procedure (Cmnd 8092, published January 1981) recognised the right of access to legal advice as it then existed but proposed that it be strengthened in certain respects (paras 481-93).  Section 58 of the Police and Criminal Evidence Act 1984 now provides:-
“58 Access to legal advice
(1)	A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.
(2)	Subject to subsection (3) below, a request under subsection (1) above and the time at which it was made shall be recorded in the custody record.
(3)	Such a request need not be recorded in the custody record of a person who makes it at a time while he is at a court after being charged with an offence.
(4)	If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that delay is permitted by this section.
(5)	In any case he must be permitted to consult a solicitor within 36 hours from the relevant time, as defined in section 41(2) above.
(6)	Delay in compliance with a request is only permitted—
(a)	in the case of a person who is in police detention for a serious arrestable offence; and
(b)	if an officer of at least the rank of superintendent authorises it.
(7)	An officer may give an authorisation under subsection (6) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.”
The remaining sub-sections deal with the circumstances in which an officer of appropriate rank may authorise delay in complying with a request to see a solicitor.  The generosity with which these provisions are construed in favour of the suspect can be seen from R v Samuel [1988] QB 615 in which at page 630E Hodgson J called the right of access to a solicitor “one of the most important and fundamental rights of a citizen”.
34.	For the moment we leave this matter there and turn to the absence of an independent adult.
35.	(2)  Absence of independent adult
The position as to this in August 1978 was governed by Home Office Circular 89/1978 dated June 1978.  Appendix A to that Circular set out the Judges’ Rules as they had been formulated in 1964.  Appendix B to the Circular contained what were called “Administrative Directions on Interrogation and the Taking of Statements”.  Direction 4 was headed “Interrogation of children and young persons”.  (Abid Hussain was 16 years old both at the time of Mushtaq’s death and at the time of trial.)  Direction 4 said:-
“As far as practicable children and young persons under the age of 17 years (whether suspected of crime or not) should only be interviewed in the presence of a parent or guardian, or in their absence, some person who is not a police officer and is of the same sex as the child.”
36.	The Royal Commission thought that the provisions of this Direction were broadly right although they pointed out that it was more important that the adult should be known to the juvenile rather than that he or she should be the same sex as the juvenile.  They gave their reasons for saying that it was essential for an adult to be present in these words (para. 4.103):-
“Juveniles may not as readily understand the significance of questions or of what they themselves say and are likely to be more suggestible than adults.  They may need the support of an adult presence;  of someone to befriend, advise and assist them to make their decisions . . . . This presence is, however, no substitute for having access to legal advice and the right to that applies equally to a juvenile.”
The Commission recognised that social workers would often attend interviews of juveniles and said this about them (in para. 4.108):-
“. . . whether or not the juvenile is in care and whether or not the social worker is standing technically in loco parentis the social worker should have the same function as the juvenile’s parent, of providing support and advice and he should have an opportunity to speak with the juvenile in private.  Generally the social worker should be present to ensure that the person being interviewed . . . understands the questions that are being put to him.  He should not attempt to act as his legal adviser.”
37.	The concept of an “appropriate adult” is now familiar as a result of the Police and Criminal Evidence Act 1984 and the Code of Practice for the Detention Treatment and Questioning of Persons by Police Officers (Code C) issued pursuant to that Act.  Para. 1.5 of the current version of the Code requires all those who appear to be under the age of 17 to be treated as juveniles.  Para. 1.7 defines an appropriate adult.  Para. 3.15 requires the appropriate adult to be informed as soon as practicable of the grounds for detention and be asked to come to the police station and para. 11.15 provides that a juvenile must not be interviewed or asked to make a written statement in the absence of an appropriate adult unless delay would cause immediate risk of harm to persons or serious loss or damage to property.  Para. 11.17 states that the purpose of the presence of an appropriate adult is:
first, to advise the person being questioned, then to observe whether or not the interview is being conducted properly and fairly, and thirdly to facilitate communication with the person being interviewed.
38.	Para 11 C of the Notes for Guidance in the current version explains why appropriate adults are necessary and what their role should be.  They acknowledge that juveniles are often capable of providing reliable evidence but point out that they may be
“prone to provide information which is unreliable, misleading or self-incriminating”.
39.	In the light of the comments of the Royal Commission, the provisions of Code C and its accompanying Notes for Guidance, the report of the inquiry into the Confait case and case law such as Downing [2002] EWCA Crim 263, we consider that the CCRC is justified in saying (para. 7.25.3 of the Reference) that there have been developments in the understanding of the vulnerability of suspects and in particular of juvenile suspects since Abid’s trial in 1978.  This is particularly true in relation to admissions or confessions made by a juvenile when alone in police interviews.  The question for us is whether it is right to take into account these developments in assessing whether Abid’s conviction is safe.
40.	In this connection we note:
(1)	Abid was interviewed twice without any adult being present.  That was a breach of paragraph 4 of the Administrative Directions annexed to the Judges’ Rules in force at the time of trial;
(2)	Abid was held at the police station alone, apart from the police officers interviewing him, from 12.00 until about 21.00 when his father was invited into the interview room during the second interview;
(3)	A moment’s reflection would have shown that Abid’s father could not be expected to give him effective support.  The father had just heard that his infant son, Mushtaq, had met a violent death:  his first instinct would be to discover how this had come about.  The interests of his other son, the suspect, would inevitably take second place in his mind.  Unsurprisingly, when the police asked Abid to repeat in front of his father what he had told them and Abid’s father then heard him admit that he had hit and kicked Mushtaq, and saw him go on to gesture how he had masturbated over the baby, Abid’s father left the room.  But there was another reason why this father might well not have been the most suitable independent adult.  At the stage of interview the police ought to have kept open all possibilities in relation to Mushtaq’s death and, if Abid were convincingly to deny that he was responsible, his father would be the only other realistic candidate;
(4)	Abid was woken up to have a third interview at 23.30;
(5)	the social workers Ms Jessie Owens and Mr Bryan Mettrick were invited by the police to attend this third interview;  there is no reason to suppose that they could not have been called earlier;  Abid was not given any opportunity to talk to them privately before the third interview, although he did talk to them privately before he made his statement;
(6)	the one question which the interview notes record Ms Owens as having asked Abid in the course of the third interview was:-
“Why did you do it, are you homosexual?  Have you done this thing before with other boys?”
We think this would today not be regarded as a suitable intervention by an appropriate adult and gives some support to the submission made to us that Ms Owens may have been more concerned to find out what had happened to Mushtaq, rather than to protect the interests of Abid.  We do not say this by way of criticism.  As we have already indicated, the concept of an “appropriate adult” was unknown in 1978 in that phrase.  (The Administrative Directions referred merely to “parent or guardian or, in their absence, some person who is not a police officer”.)  Even since 1984 the role of the “appropriate adult” has developed considerably;
(7)	Mr Mettrick, junior to Ms Owens, is not recorded as having said anything in interview.  We were invited to receive in evidence pursuant to section 23 of the Criminal Appeal Act 1968, a statement from him given to the CCRC in 2002.  We have decided that it is appropriate to do so.  He said that in 1978 he had a more limited understanding of his role than he does today.  He said in particular that he did not then regard it as his duty to advise Abid, although he would have intervened to stop abusive behaviour.  Although we think it right to admit his statement in evidence, it does not take matters very far.  Any useful advice would mainly have been that Abid should consult a solicitor;  no social worker would or should take it on himself to give any legal advice.
41.	For the moment we leave the question of appropriate adult and turn to the third failure of which complaint is made.
42.	 (3)  Failure to caution Abid before his first interview
Mr Owen QC for Abid submitted that, despite the exclusion of most of the first interview from the trial by reason of the police’s failure to caution Abid, there was material unfairness because Abid had made incriminatory statements in the first interview which led to the similar (but more seriously) incriminating statements in the second and third interviews.
43.	The only explanation which emerged from the first interview and was put before the jury was Abid’s statement “maybe it was the wrestling”.  What the jury did not know was that further answers had been given by Abid in the first interview which were more seriously incriminatory viz:-
(1)	“I remember now throwing baby into the couch end, he bounced and banged his head . . . at the back”;
(2)	In answer to questions whether he had shaken the baby when he was wrestling with him or dropped him otherwise than on the couch, Abid twice said “I might have”.
Either counsel had agreed or the judge had ruled (correctly in our view) that these were incriminatory admissions which had not been made under caution and should not, therefore, go before the jury.
44.	After Abid had been cautioned at 20.00, DC Hirst, at the beginning of his questions, said it looked as if the baby had been gripped by the shoulder and shaken and asked Abid whether he had done that.  This was the same question as that which Abid answered by saying he might have done in the excluded part of the first interview.  This time Abid replied “Maybe I did. I don’t know” and the interview with its subsequent admissions proceeded from there.
45.	In Neil [1994] Crim LR 441 this Court said:-
“Where there is a series of interviews and the Court excludes one on the ground of unfairness, the question whether a later interview which is of itself unobjectionable should also be excluded is a matter of fact and degree . . . . it is likely to depend on whether the objections leading to exclusion of a first interview were of a fundamental and continuing nature and, if so, if the arrangements of a subsequent interview gave a defendant a sufficient opportunity to exercise an informed and independent choice as to whether he should repeat or retract what he said at the excluded interview or say nothing.”
Here there was no opportunity to exercise an informed and independent choice;  all that happened was that the caution was administered to Abid at a time when he had no solicitor and no independent adult to advise or support him.  This point, although comparatively small in itself, shows how important the presence of a solicitor or an appropriate adult is.  They would have been entitled to know what Abid had already said before advising him whether to continue to be interviewed.  As it was the questioning effectively took over from where it had been left earlier in the day and Abid may well have thought that he had little option to continue in the same vein.  It is in just such circumstances that the exclusion of the first interview will often not be enough.
46.	It can thus be seen that the submissions about the absence of a solicitor, the absence of an independent adult and the failure to caution cannot be considered in isolation from one another.  The combination of these failures had the consequence that without any of the support which Abid ought to have had (even in 1978) he came to make the admissions which constituted the main part of the prosecution case.
47.	We were asked to admit in evidence on behalf of Abid an independent psychological report of 7th October 2004 on Abid Hussain written by a consultant clinical and forensic psychologist, Peter S Pratt.  He concluded that there was substantial first hand evidence
“that the totality of the situation which faced Abid Hussain at the age of sixteen was such that he should, by any criteria, have legitimately been considered as extremely vulnerable and . . . not therefore capable of making a freely offered statement unless he had been interviewed strictly in accordance with the later introduced PACE requirements.”
It seems to us that interviewing a 42 year old to establish his frame of mind or vulnerability when he was 16 years old is such a doubtful exercise that it would not be right to admit this evidence.  In this respect we do not consider that the provisions of section 23 of the Criminal Appeal Act 1968 are satisfied and, in our discretion, have, therefore, declined to admit this new evidence.
48.	The fact, however, that the courts now have a greater general understanding of the vulnerability of juvenile offenders who make admissions or confessions is a matter which according to Bentley we ought to (and therefore do) take into account.  What Lord Bingham CJ there called standards of fairness have significantly changed.  It is, we think, unlikely in the extreme that to-day admissions by juveniles made in the absence of legal advice and without the present of an appropriate adult would ever be put before a jury, particularly when the juvenile has been effectively held incommunicado for a period of 9 hours and has then been woken up to undertake a third interview and make a statement at 11.30 at night.
49.	There are, therefore, to use the words of the judgment of Lord Bingham CJ in Ashley King at least prima facie grounds for doubting the safety of the conviction by reason of a combination of the first 3 grounds of appeal under head (1) of the grounds of appeal.  We do not regard the fourth ground as a independent ground of appeal.  The fact that Abid was a juvenile and was held incommunicado for 9 hours are, however matters that we have taken into account in considering the absence of any appropriate adult.
50.	We would stress that it is unnecessary to decide whether any of these 3 grounds of appeal would on their own render Abid’s conviction unsafe on the particular facts before us.  It is the combination of them that cause us to say that prima facie grounds for doubting the safety of the conviction exist.
51.	Mr Wilson for the Crown reminded us that this court has already decided that breaches of the rules in force at the time of trial did not render Abid’s conviction unsafe.  He referred us to R v Thomas [2003] 1 CAR 168 and R v Mills [2004] 1 CAR 78 as authorities for the proposition that, in the absence of new evidence or new argument, it would need “exceptional circumstances” to justify a second appellate court in departing from a first appellate decision.  We are, of course, bound by these decisions but the argument presented to the first appellate court was confined to the absence of an independent adult alone.  The argument in the present case has been presented on the basis of the combination of the absence of legal advice and the failure to caution Abid as well as the absence of an independent adult;  moreover it is the combination of all 3 factors taken together that has persuaded us in the present case that there are prima facie grounds for doubting the safety of the conviction.
52.	Moreover in any case where what we may call the Bentley principles apply, whereby the safety of a conviction has to be assessed according to modern legal rules and procedural criteria, there may have occurred what the first chairman of the CCRC, Sir Frederick Crawford, has called the “jurisprudential drift” referred to in paragraph 74 of Thomas.  This may of itself be justification for a departure from a previous decision of this court.
53.	Second group of submissions in relation to the summing-up
The first of these grounds that the judge failed to direct the jury on the potential effect of the breaches of Abid’s right to have access to a solicitor and to have an independent adult present at interview is an extension of the first group of submissions.  The judge did not refer to the breach of Abid’s right to have a lawyer present but did refer to what he called the “Home Office Directions”, that young people should only be interviewed with an independent person “who can look after his interest”.  He described these as being directions given to police officers not the law of the country.  That was correct at the time;  no such direction could be given to-day.  He correctly said that the question for the jury was whether the confession was made freely and voluntarily by the defendant.  We do not think that this ground of appeal can have life independent of the first group of submissions.  On the other hand neither do we consider that what the judge did say to the jury about the absence of an independent adult can be said to detract from the conclusion which we have reached that there are prima facie grounds for doubting the safety of the conviction.
54.	The remaining heads of submission under this ground do not, in our judgment, afford any ground for allowing this appeal.  They are all examples of cases where to-day in 2004 a summing-up would be delivered in different terms from those in which it was in fact delivered in 1978.  In such cases, as Lord Bingham CJ said in Ashley King, the question will be whether the conviction was safe.  A complaint that in 1978 a failure to give both limbs of the good character direction now required by Vye (1993) 97 CAR 134 or that a “lies” direction was not given in accordance with Burge and Pegg [1996] 1 CAR 173 will very seldom give rise to doubt about the safety of a conviction and they would not do so here either separately or in combination, if these complaints stood on their own.
55.	Directions about the consequence for police offers could be in a different category.  The direction we have cited above which referred to the police being guilty of conduct which, if Abid was right, “should result in their immediate dismissal from the Police Service” would be the subject of severe criticism of given in any summing-up to-day, see Culbertson (1970) 50 CAR 310 and Bentley [2001] 1 CAR 307 at paras. 50-53.  We do not, however, think that this ground could be determinative in the present case.  This ground was specifically considered by the Court of Appeal in 1980.  At page 10 of the judgment Lawton LJ did criticise the direction in the light of Culbertson but said that the judge was entitled to invite the jury’s attention in strong terms to the issues which arose.  He then said that attacks on the police were becoming all too common and added:-
“When they are made without justification, accused persons must not complain if the judge comments severely upon what they have done, provided always the judge leaves it to the jury to determine who is to be believed . . . .”
This with respect is circular reasoning.  The whole issue for the jury is whether it is the police or the defendant who are to be believed.  At the time of his direction the judge ought not to presume that attacks are made without justification so as to justify the severity of his comments.
56.	Nevertheless if Abid had been provided with proper safeguards in the form of legal advice and the presence of an independent adult at the right time, we cannot think that any resulting conviction could be rendered unsafe by the judge’s directions in relation to police credibility.  Of course, if the safeguards had been provided, it would be most unlikely that Abid’s defence would have taken the form which it did.
57.	Safety of the conviction
The position therefore is that there are prima facie grounds for doubting the safety of the conviction.  Is it in fact unsafe?
58.	Mr Wilson for the Crown submitted that the prosecution case did not depend on Abid’s admissions alone.  It depended on the fact that Abid had the opportunity and the fact that it was never suggested that the only other person with any opportunity (Abid’s father) had in fact been responsible for the killing.  Mr Wilson invited us to receive into evidence a report which recounted the result of a penile plethysmographic test conducted on Abid in 1995.  This was said to show that his largest response to age-gender slides was to young boys, but the report did not say how young such boys were.  We fail to see, however, how the results of this test can be relevant to the charge of murder which was the only charge the defendant faced in 1978.  We are extremely dubious that it could ever have been (or be) relevant to the buggery charges which remain of the file.  In these circumstances we do not admit that new evidence.
59.	Taking all the above considerations into account we cannot regard this conviction as safe.  Much the most cogent evidence was Abid’s own admissions obtained in breach of the Judges’ Rules.  They would not be regarded as admissible to-day and, despite the fact that they were admitted into evidence in 1978, we cannot, in the light of the approach laid down in Bentley and Ashley King, regard them as reliable.  If they had been ruled inadmissible in 1978, it is impossible to imagine that the prosecution could realistically have continued.
60.	We are conscious that it was never suggested at trial that any other person killed Mushtaq and that it is only since Abid’s conviction that Abid has begun to suggest that Sabbir was Mushtaq’s killer.  The CCRC was not able to deal with this suggestion;  neither can we.  We would only echo the observations of Lord Bingham in Ashley King that having grounds for doubting the safety of a conviction is a very different thing from concluding that a defendant is necessarily innocent.