Gordon, R v  NICA 28 (20 December 2000)
On 13 November 1952 shortly after 2 am the body of Patricia Doris Curran was found lying in shrubbery some 40 feet from the driveway leading to her family house in Whiteabbey, Co Antrim. Her death had been caused by multiple stab wounds inflicted by a sharp implement. The appellant Iain Hay Gordon was subsequently charged with her murder. His trial commenced on 2 March 1953 at the County Antrim Spring Assizes before Lord MacDermott LCJ and a jury. At its conclusion on 7 March 1953 the jury returned a special verdict under the Trial of Lunatics Act 1883 that he was guilty of the act charged against him but that he was insane at the time when he did that act. He was ordered to be kept in strict custody until Her Majesty's pleasure should be known and committed in consequence to an institution, from which he was released in 1960.
No appeal lay at that time against such a special verdict. The appellant made an application in 1998 to the Criminal Cases Review Commission (the Commission) when it was constituted under the provisions of the Criminal Appeal Act 1995, seeking to have his case referred to this court with the object of having the jury's verdict reviewed. The Commission felt some doubt whether it had power under the law as it then stood to refer such a case to the court under section 10 of the 1995 Act, and sought the assistance of the court by referring to it specific questions relating to its jurisdiction. It heard the matter in 1998 and held that the Commission did not have power to refer to the court a special verdict given under the 1883 Act. Parliament then amended the law by the enactment of the Criminal Cases Review (Insanity) Act 1999 and the Commission referred the case on 25 July 2000 to this court. By virtue of section 3(1) of the 1999 Act the reference is to be treated for all purposes as an appeal by the appellant under section 12 of the Criminal Appeal (Northern Ireland) Act 1980. Under section 12(2) of the latter Act the court is to allow an appeal if it thinks that the finding is unsafe and dismiss it in any other case. This is the first occasion on which an appellate court has had occasion to review the proceedings at the trial and the verdict of the jury in this case.
The appellant was given leave under section 25 of the Criminal Appeal (Northern Ireland) Act 1980 to adduce the evidence of several witnesses by way of additional evidence. We also gave leave to the Crown to adduce the evidence of two witnesses. By consent the statements of all these witnesses were accepted in evidence and oral evidence was not given on the appeal. We shall refer to the contents of these statements later in this judgment. The case made on behalf of the appellant was that in the light of the additional evidence, and also on other grounds advanced to us, the appellant's confession should not have been admitted. For that and other reasons relied on by the appellant's counsel, it was submitted that the jury's finding that he was guilty of the act charged was unsafe. Before considering these submissions and examining the additional evidence, it is necessary for us to set out as briefly as we can the evidence given at the trial.
The Trial Evidence
Patricia Curran, the only daughter of Mr Justice Curran, was a student aged 19 years, in the first year of a degree course at Queen's University, Belfast. She lived at the family home Glen House, Whiteabbey, a house situated at the end of a long, dark driveway. The driveway served as access to a couple of houses, the area through which it ran being known as the Glen. Miss Curran travelled daily to and from Belfast, generally by bus. On 12 November 1952 she spent the day in Belfast and had afternoon tea in the City centre with a fellow-student John Steel. He accompanied her to Smithfield bus station and saw her depart on the 5 pm bus for Whiteabbey. She was seen by passengers on the bus to get off at a stop in Whiteabbey at 5.20 pm approximately and turn in the direction of her home. A newspaper delivery boy George Chambers, aged eleven years, also saw her walking towards the gateway to the drive leading to Glen House. A few minutes later he himself proceeded up that drive in the course of his paper round. As he went up the drive he heard a rustling noise in the bushes which sounded like birds in the leaves. At about this time he heard the noise of the factory horn which blew at 5.45 pm each evening. On his way back down the drive he heard a noise like somebody's foot in the leaves, louder than the first sound, which frightened him so that he took to his heels and ran down the drive.
Patricia's parents became anxious as the evening passed and she did not return home. They commenced to make inquiries and instituted a search of the grounds along the driveway to Glen House. The police were contacted and Constable Rutherford arrived at the Glen shortly after 2 am. He encountered Mr Justice Curran in the driveway and was just walking forward to meet him when he heard shouting from the Glen. They ran towards the source of the shouts and saw the light of a torch in the shrubbery off the drive. When they reached the spot they found Patricia's body lying on its back at the foot of a tree, some 40 feet from the driveway. Her brother Desmond Curran was kneeling or leaning over the body. At that point Mr and Mrs Malcolm Davison, family friends of the Currans, arrived on the scene by car, having received a telephone call from Mr Justice Curran at about 1.35 or 1.40 am. They thought that Patricia might still be alive, as Desmond thought that she was possibly breathing, and lifted her body into the car and took it to the residence in Whiteabbey of Dr Wilson, the family doctor. He saw the body at about 2.20 and ascertained that Patricia was dead. He saw a number of small holes in her jumper, which was saturated in blood, and on his cursory examination had the impression that she had been shot with a shotgun. He formed the opinion that she had been dead for a period, which was at least four hours and might have been as long as twelve hours.
The body was examined by Dr AL Wells, a registrar in pathology at the Royal Victoria Hospital. He arrived at Dr Wilson's surgery at 5 am on 13 November and took charge of it. It was almost fully clothed, the right glove, hat, scarf and shoes being missing. The coat was open and the bottom button was missing from it. A piece of lining material was attached to the button when it was later found, and it appeared that it had been torn from the coat. A button was also missing from the cardigan. He commenced his examination on arrival and found the entire musculature fixed in rigor mortis. He formed the opinion that death had taken place about twelve hours before he saw it, an estimate which was not challenged at the trial. Dr Wells carried out a post-mortem examination commencing at 3 pm the same day. He found a total of 37 stab wounds on the body, 21 on the front of the chest. Eight of the stab wounds were so serious that any one of them could have been fatal. One was so violent that it fractured a rib. There were two facial wounds which appeared to have been caused by direct violence from a blunt instrument, by which Dr Wells meant a fist or a boot. He also found bruising and abrasions on the neck.
The place where the body was found was some 260 yards from the road. It was about 40 feet from the edge of the driveway, and the evidence showed that it had been dragged from the driveway through the shrubbery to that place. Patricia Curran's handbag and woollen hat and a portfolio in which she carried books and papers were found close to the edge of the driveway. From experiments carried out by Head Constable Devenney the Crown sought to draw the inference that the portfolio had been placed on the ground rather than dropped, which would have caused the contents to be scattered on the ground. Her shoes were lying just over eight feet from the driveway. One of her gloves and her scarves were near the tree under which her body was found, and the buttons missing from her coat and cardigan were found on the ground. Traces of saliva were found on the scarves. Her brooch was found half way between the driveway and the shoes, with the pin bent and open.
Mrs Mary Jackson, the wife of the Senior Staff Officer of 67 Group of the Royal Air Force, which was based at Edenmore, a large house at Whiteabbey about half a mile from the entrance to the Glen, gave evidence that she was returning from Whiteabbey village about 5.10 pm on 12 November 1952. She dismounted from her bicycle at the gate to Edenmore and commenced to wheel it up the drive. Some 15 or 20 yards from the gate she met an airman whom she recognised as the appellant walking towards the gate. He was a leading aircraftman stationed on the base, and she had known him for some time. She was not sure how he was dressed. She acknowledged that it was dusk and that that part of the drive was in a steep cutting, but she continued to be positive in her identification of the appellant.
Mrs Hetty Lyttle told the court that she left her place of work in the factory in Whiteabbey at about 6 pm on 12 November 1952. She went with another lady Mrs Currie to a newsagent's shop, which was situated on the same side of the main road as the Glen. After leaving the shop she stopped at the gate to the Glen, to cross the road to her house in Harmony Place. It was then about 6.10 or 6.15 pm and the lamp at the entrance to the Glen was lit. She saw a shadowy figure approaching down the Glen driveway. She and Mrs Currie attempted to cross the road, but the traffic was too heavy, and they retreated to the footpath at the gate to the Glen. She saw a man come out of the Glen gate, hesitate and come past her, walking countrywards. She described him in evidence as thin and pale and wearing a "dust coat", by which she apparently meant a light raincoat. On 23 January 1953 she attended an identification parade composed of eight men from the RAF base dressed in light raincoats or light overcoats. Mrs Lyttle did not pick out anyone at first, but asked for each of the men to walk past her. She then said "One chap looks like him" and put her hand on the appellant's shoulder. When asked by the judge at the conclusion of her evidence if she could say whether the appellant was the man whom she had seen on 12 November or if he was only like the man, she replied "Well, I think he was the man".
The police mounted a substantial investigation into the murder and interviewed a very large number of people. The RAF Special Investigation Branch also conducted an investigation among the RAF personnel on the base at Edenmore. SIB staff interviewed airmen on the base on 14 November, asking them to give an account of their movements between 5 and 6 pm on 12 November. The appellant told Sergeant Leathem that he had been in Whiteabbey Post Office at 4.30 pm. He returned to Edenmore and was in the dining hall between 5 pm and 5.10 pm. He walked from there to the billet with Corporal Connor and remained in the billet for some time, then went to his office in the main building. He remained there for some time and then came down to the NAAFI for a cup of tea.
Sergeant Black of the RUC on 17 November took a statement from the appellant, which he wrote out himself. In the course of the statement he said that he had taken the official mail to Whiteabbey Post Office between 4 pm and 4.30 pm on 12 November, then had gone to the newsagents Quierys to collect newspapers. He returned to camp and stayed there the rest of the evening. He was in the Central Registry between about 6.30 and 9 pm, with one visit to the NAAFI roughly between 7.30 and 8 pm. After the appellant had completed the statement, Sergeant Black asked him specifically where he had been between 5 and 6 pm, to which he replied:
"I was having my tea at five pm with Corporal Connor. We both left the Mess and walked towards our billets. Separated before we reached the billets. I then had a wash."
The appellant was seen by police officers on three further occasions in November and December 1952, on all of which he gave essentially the same account. On 29 November Detective Sergeant Jeffery of the RUC and Detective Sergeant Hawkins of the Metropolitan Police asked him again for an account of his movements on 12 November. On this occasion he said that he had parted from Corporal Connor about 5.30 and gone to his billet. He changed into civilian clothes, then went to the Central Registry to practise his typing for a forthcoming test. He had a cup of tea in the NAAFI about 7.30 and returned to the Registry until about 9.30 pm. Detective Constable Davidson saw the appellant on 4 December, in the course of checking the movements of all the men on the base. He gave a similar account of his movements on 12 November. He said that he went to the NAAFI about 7.30 and there saw a girl named Irene. County Inspector Kennedy saw the appellant on 10 December, along with Detective Superintendent Capstick of New Scotland Yard. When asked about his movements between 5 pm on 12 November and 2 am on 13 November, he gave an account on similar lines to his previous statements.
Corporal Connor, when called to give evidence, not only did not support this account of the appellant, but deposed that the appellant had asked him to give a false account on his behalf. He said that he did not have tea with the appellant on the afternoon of 12 November and did not see him between 5 pm and 6.30 pm that day. The appellant spoke to him before the SIB interviewed him on 14 November and asked him to tell them that he and the appellant had had tea together between 5 pm and 5.10 pm on 12 November. He did not give a reason for his request.
Aircraftman Scott told the court that on one of the days following the murder he was waiting with the appellant and others outside the Station Warrant Officer's office waiting to be interviewed about the murder. The appellant said to the others words to the effect "Would you tell the inspectors that you seen me on the night of the 12th of November?" Scott said that he replied that he could not, as he had not seen him on that evening. LAC Cuthbert said that the appellant was in the group waiting to be interviewed when he said to the others "You'd think that you blokes would stand up and say that you saw me." A general discussion followed, at the end of which someone said "Well, it's too serious a matter to lie about."
Aircraftman Walsh said that he had finished work at 5 pm on 12 November, then had tea and played table tennis until about 6.15 to 6.45 pm. He did not see the appellant during that time. Some two or three weeks later he was walking back to camp with the appellant from a supper saloon in Whiteabbey, when the appellant asked him if he had seen him on the evening of 12 November. The witness replied that he had not, whereupon the appellant said to him that if he had a friend, a very good friend, and he was in trouble, even serious trouble, he would be prepared to lie for him.
Evidence was given by Miss Irene Crawford, a counter assistant in the NAAFI at Edenmore, that the appellant came into the NAAFI about 7 pm on 12 November and ordered a cup of tea. He was in civilian clothes, which she described. The next morning he came to the counter before the 10 am break, when the NAAFI was not yet open, and asked Miss Crawford if she was sure that he had been in the previous evening. Her reply was that she was not that daft.
Miss Crawford and Mrs Sadie Smyth, another canteen assistant, both deposed that the appellant came into the canteen about three weeks after the murder looking for a scrubbing brush. It was, however, common practice for the aircraftmen, including the appellant, to make such a request before an inspection, and little or no weight can be placed on it. The appellant's clothing was examined after his arrest in January 1953. Human bloodstains were found inside the right trouser pocket. Stains inside the left pocket and on the left leg gave a presumptive reaction for blood, which was less conclusive. The general appearance of the stain on the leg suggested that the area had been washed. There was a spot of blood on one of his ties and a human bloodstain on the ball of the left thumb of his glove.
A series of interviews took place between 13 and 15 January 1953, at the conclusion of which the appellant made a written statement, by the terms of which he confessed to carrying out the murder. The defence objected to the admission of the several statements made in these interviews, and the judge held a voir dire in the absence of the jury, at the conclusion of which he gave a ruling admitting them all in evidence. They were then all proved before the jury. Counsel for the appellant submitted that they should not have been admitted, particularly in the light of the additional evidence, and also that that evidence showed that they were unreliable.
The appellant attended at the request of the police at the temporary station in Whiteabbey on 13 January, and was interviewed by Detective Sergeant Hawkins and by Detective Head Constable Russell of the RUC from 10 am to 12.15 pm and from 3 pm to 4 pm. DS Hawkins asked him at the outset if he wished to have an RAF officer present, but the appellant declined. It may be noted, however, that earlier that morning DS Hawkins had asked Pilot Officer Popple, who was responsible for welfare at the Edenmore base, if he would permit the appellant to attend for further questioning. PO Popple readily gave permission, but expressed the view that if a written statement was to be taken an officer of the RAF should be present. He thought that it was in the interest of the appellant's welfare, as he was under 21 and it was the general practice of the RAF. He repeated this to the appellant before he left the base that morning.
DS Hawkins had a general conversation with the appellant until about 11 am, then commenced to take a fairly long written statement, which appears to have occupied the remainder of the interviews. The statement dealt in some detail with the appellant's connection with the Curran family, in particular with Desmond Curran. The appellant was not asked any questions on that day in relation to the murder or his movements on 12 November, and the statement does not touch on these matters.
The appellant returned at the request of the police on the following day 14 January. PO Popple said that he again expressed the view on that morning that he should have an RAF officer present. DS Hawkins stated that he told the appellant that he was going to question him about his movements on the day of the murder and asked him if he wished to have an officer present, but he again declined. Another written statement was taken, commencing at 10 am. The taking of the statement went on until 1 pm, then the appellant accompanied the officers to lunch in Belfast, following which the taking of the statement resumed between 3 pm and 4.30 pm.
The statement is long and detailed and contains a denial that the appellant murdered Miss Curran and an account of his movements which places him in the camp from 5 pm onwards on 12 November. In one important respect, however, there is an admission by him that he lied to the police earlier about being with Connor. The portion of the statement in which he discloses this reads as follows:
"I want to tell you the truth about what happened on Wednesday night. On Thursday, 13th November, at about 5.5 p.m. or 5.10 p.m., I was having my tea in the dining-hall. The dining-hall was full. One of the N.C.O.'s – I believe it was Flight-Sergeant Maxey – shouted from the doorway something like, 'Arrange between yourselves who you were with between 5 and 6 last night'. I am almost certain the Sergeant said between 5 and 6. I understood it to mean between 5 and 6 p.m. The Sergeant said we were to report together – those who had been together – to the R.A.F. Police. I am not certain whether the R.A.F. Police were in the room when the announcement was made, but eventually they sat at the far end of the dining-room interviewing the airmen. I understood this was in connection with the murder, although it was not announced. It was the first time that an announcement of this kind had been made. I was not worried at this particular time. Corporal Connor was sitting two or three seats away from me at the time. He came to me and said, 'You say you were with me'. He gave me no reason for saying this. We were fairly friendly, although he was an N.C.O. He never said why he wanted me to say this, but it might have been because he was on his own at the time. Everybody else was discussing between themselves who they were with. I said to Connor, 'I cannot very well say that, because I went straight to the Registry after tea'. Another airman, who was standing by – I do not know who it was; it might have been an airman by the name of Davidson – said 'It won't matter'. To me, it conveyed that it was not a matter of importance who you were with between 5 and 6 p.m. on Wednesday evening. I said to the Corporal, 'What are you going to say?' He said, 'Say you had your tea with me, and walked over to the billet'. I was not too happy about it, but I said to him, 'Are you sure it's all right?' He reassured me that everything would be all right with something like 'Don't be daft' or 'Don't be stupid'. I had serious misgivings about it, but did, in fact, agree to tell the R.A.F. Police a lying story. It was a lie, because I was not with Connor on the Wednesday evening. We both went to the R.A.F. Police together, and told them the same story. I have told you that I was with Corporal Connor in the dining-hall and in the billet on the Wednesday. That is a lie. I do not remember seeing Connor at all that day. That is the truth. It was not for my own ends that I agreed to say that I was with Connor, although I realised it was a murder investigation."
He added in a later passage:
"I have no idea where Corporal Connor was on the afternoon of the murder. I do not know why he approached me about the alibi. It did not occur to me that he may have had a reason for approaching me."
The following morning 15 January DS Hawkins again saw the appellant at the temporary station. He had been told that Detective Superintendent Capstick wished to interview him. DS Hawkins again asked him if he wished to have an officer present, and again he declined. DS Hawkins left the room at that point to take a telephone call, leaving the appellant with District Inspector Nelson, who had just arrived. Mr Nelson asked the appellant how he was, to which the latter replied that he was unhappy because he had not told the truth about some things. DI Nelson told him that it was unwise to tell the police lies, because once he told one lie he would have to keep on telling them. He counselled him "Whatever you do, don't tell lies."
Mr Capstick saw the appellant between 10.20 am and 1.15 pm. No other officer was present during any part of this interview. The appellant was not cautioned at any stage. Mr Capstick in his evidence in chief in the voir dire described the discussion as having been about "matters other than the murder". At one stage Mr Capstick appeared to claim that the interview did not take place by design, as it had been intended that DS Hawkins would continue interviewing the appellant that morning, but later stated that he had previously decided to see him himself on 15 January. He commenced by telling the appellant that he was not satisfied about his statement concerning his whereabouts on 12 November, that if he was telling lies this would greatly handicap their inquiries and that he expected the appellant to tell them the truth.
It became clear in Mr Capstick's cross-examination that the interview was directed towards the appellant's sexual proclivities, specifically suggestions about homosexual tendencies, and that he had already asked him about these matters in the interview on 10 December. His note of the interview read:
"10.20 am, the 15/1/53, saw Gordon at office. Dist. Inspr. Nelson left him and I questioned him at length re masturbation, gross indecency, sodomy."
Counsel for the appellant put it to Mr Capstick that his objective in introducing such matters was to put pressure on the appellant. The following question and answer were recorded:
"MR McVEIGH: Q. 723. How far do you think it is legitimate to go on questioning an accused about sexual matters outside the scope of a case?
A. Question him about sexual matters to see if he speaks the truth. If he won't speak the truth on sexual matters he won't speak the truth on the murder. That is my attitude."
The witness denied that he had put pressure on the appellant, but the cross-examination went on:
"Q. 739. He had already been broken down on one incident the day before, on the Connor incident?
Q. 740. And I put it to you that you were trying to break him down on the 15th about the rest of the matter?
THE WITNESS. The rest of what matter?
Q. 741. A confession about the murder?
A. He was broken down on masturbation; he later admitted a gross indecency with another individual, and sodomy; and he denied the lot and eventually admitted them and quoted them then to me."
An argument ensued about whose the words "broken down" were, but it is apparent from the transcript that Mr Capstick accepted the phrase when put to him by counsel.
At the end of the cross-examination the witness gave the following answers in reply to questions from the judge:
"THE LORD CHIEF JUSTICE: Q. 874. Mr. Capstick, during the three hours in which you were conversing with the prisoner on the morning of the 15th, you told us you were referring to sexual matters – masturbation, indecency, and matters of that kind? A. Yes, my Lord.
THE LORD CHIEF JUSTICE: Q. 875. Those were matters which the prisoner naturally would not wish to be given publicity? A. Yes, my Lord.
Q. 876. Were you doing that for the purpose of getting any hold over him, or introducing in statements about his movements – relative in any way to this? A. No.
Q. 877. Are you quite clear about it? A. Quite clear. My purpose was absolutely to find out what type of boy this was, and what he was doing, and if he could tell me the truth about matters like that, I could depend upon him to tell us other things, and he eventually did tell me the things he had been committing; and he was speaking to me quite openly and freely, and not keeping things back."
County Inspector Kennedy came into the room some time after 1 pm and he had lunch together with Mr Capstick and the appellant. He left the room about 2.20 pm and returned shortly after 2.30 on receipt of a message from Mr Capstick. Capstick said "Gordon has told me that he will now tell us the truth about the murder." CI Kennedy said that he was glad to hear that he was going to tell the truth, whereupon the appellant said "I did it when in a black-out." CI Kennedy cautioned him and commenced to take a written statement from him. Mr Capstick wrote out the caution, which the appellant signed. Capstick then wrote the body of the statement, which he and CI Kennedy both stated to the judge was taken at the dictation of the appellant. The statement, to which we shall refer for convenience as "the confession", was in the following terms:
"I left the camp at Edenmore shortly after 4 p.m. on Wednesday afternoon, the 12th of November, 1952, to deliver the mail to Whiteabbey Post Office. I was in there from five to ten minutes, then went to Quiery's paper shop in the main street to collect the camp newspapers. I would not be very long in there. I believe I called in at the bookies – approximately opposite Quiery's but off the main road. I placed a bet there on a horse for one of the airmen at the camp. I forget his name. I think I then went back to the camp with the newspapers. I probably had my tea at about 5 p.m. It took me about five minutes for my tea. I think I then changed into my civilian wear of sports coat and flannels. I then walked back alone to Whiteabbey and met Patricia Curran between the Glen and Whiteabbey Post Office. She said to me, 'Hello, Iain', or something like that. I said, 'Hello, Patricia'. We had a short general conversation. I forget what we talked about but she asked me to escort her to her home up the Glen. I agreed to do so because it was fairly dark and there was none of the family at the gate to the Glen. I can understand anyone being afraid of going up the Glen in the dark, because the light is completely cut out because the trees meet at the top. I noticed Patricia was carrying a handbag and something else – I just forget what it was. It appeared to be wrapped up whatever it was, books or something. She was wearing a yellow hat. It was just about the Glen entrance where she first spoke to me. We both walked up the Glen together and I think I was on her left hand side. After we had walked a few yards, I either held her left hand or arm as we walked along. She did not object and was quite cheerful. We carried on walking up the Glen until we came to the spot where the street lamps' light does not reach. It was quite dark there and I said to Patricia: 'Do you mind if I kiss you?' or words to that effect. We stopped walking and stood on the grass verge on the left hand side of the drive. She laid her things on the grass and I think she laid her hat there as well. Before she did this she was not keen on me giving her a kiss, but consented in the end. I kissed her once or twice to begin with and she did not object. She then asked me to continue escorting her up the drive. I did not do so as I found I could not stop kissing her. As I was kissing her I let my hand slip down her body between her coat and her clothes. Her coat was open and my hand may have touched her breast, but I am not sure. She struggled and said: 'Don't, don't, you beast', or something like that. I struggled with her and she said to me: 'Let me go or I will tell my father.' I then lost control of myself and Patricia fell down on the grass sobbing. She appear to have fainted because she went limp. I am a bit hazy about what happened next but I probably pulled the body of Patricia through the bushes to hide it. I dragged her by her arms or hands, but I cannot remember. Even before this happened, I do not think I was capable of knowing what I was doing. I was confused at the time and believe I stabbed her once or twice with my service knife. I had been carrying this in my trouser pocket. I am not quite sure what kind of knife it was. I may have caught her by the throat to stop her from shouting. I may have pushed her scarves against her mouth to stop her shouting. It is all very hazy to me but I think I was disturbed, either by seeing a light or hearing footsteps in the drive. I must have remained hidden and later walked out of the Glen at the gate lodge on to the main road. As far as I know, I crossed the main road and threw the knife into the sea. I felt that something awful must have happened and quickly walked back to the camp. I went to my billet and arrived there at roughly 6.30 p.m. There was no one in the billet at that time and I saw I had some small patches of Patricia's blood on my flannels. I took a fairly large wooden nail brush from my kit. I got some water and soap from the ablutions and scrubbed the blood off my flannels. I must have done this but I do not quite remember. As far as I know, no person saw me doing it. I then went to our Central Registry and did some typing as I was preparing for an examination. I went to bed at between 9.30 p.m. and 10 p.m. I got up roughly at about 7 a.m. on Thursday, the 13th of November, 1952. I had my breakfast and did my routine duties. At between 8.15 a.m. and 8.30 a.m. that day, the postman was delivering mail to our camp and he told me that Mr. Justice Curran's daughter had been found dead in the grounds. He may have said she had been shot. I cannot just remember. At about 4 p.m. that day, the R.A.F. police came to the camp, checking on our movements for the previous evening. They also turned out our lockers and I saw them have a quick examination of my clothing and the contents of the lockers. On Friday, the 14th of November, 1952, members of the R.U.C. and R.A.F. police came to the camp. One of the R.U.C. men asked me where I had been during the evening of Wednesday, the 12th of November, 1952. I told him I was in camp the whole of the evening from 5 p.m. I failed to tell him I had met Patricia Curran near the Glen at about 5.30 p.m. that day. Police visited our camp on a number of occasions and I was asked to name any person who saw me in the camp after 5 p.m. on the 12th of November. I was unable to do so, and I asked about twenty people from the camp if they could, or would, say they saw me in the camp between 5 p.m. and 6 p.m. on the day of the murder. I suggested to about six or eight airmen from my billet that they should say they had seen me in the billet between 5 p.m. and 6 p.m. on Wednesday, the 12th of November, 1952. I did not expect them to do this because I knew I was not there, and that they did not want to get mixed up in anything. Corporal Connor from the camp and I agreed to say that we were in the camp together and had tea; that as soon as we had finished tea, we went to the billet together. We both told this story to the R.A.F. police although it was untrue."
At that point the appellant said that that was all. It was read over to him and he read it for himself. When asked to sign it, he hesitated and said that he would like to have time to think about it before signing. He was told that he could have as much time as he wished. Mr Kennedy summoned Sergeant McCutcheon and the appellant went with him to a room on the ground floor.
The appellant paced up and down in that room, then after a couple of minutes said to the sergeant "Do you mind if I speak to you about this murder?" Sgt McCutcheon, who told the court that he did not know that the appellant had been cautioned in the interview, agreed that he could speak to him if he wished. The appellant hesitated for a moment and said "I am very worried about it: I don't know what to do". At that Detective Sergeant Devenney (as he then was) entered the room and Sgt McCutcheon told him that the appellant was very worried. The appellant asked DS Devenney if he was the policeman who was the friend of Desmond Curran, to which DS Devenney said that he was. The appellant then asked him if he would answer some questions, but the latter refused to do so. The appellant continued pacing up and down, talking to himself, then when DS Devenney made to leave the room the appellant repeated that he was very worried and did not know what to do, and asked him what he should do. DS Devenney stated in evidence that he said to him words to the effect "If it is an advice you want, I would say, go to Mr Kennedy and tell him the truth." The appellant then looked at him and replied "I will do that." It was put to Sgt Hutchinson and DS Devenney in cross-examination that they had said a number of things to the appellant which could be regarded as inducements to make admissions, but these were all denied and the appellant did not give evidence in the voir dire. DS Devenney did accept, however, that the appellant said at one stage that he would admit if he was sure that his father and mother would not know.
The appellant returned to the interview room about 15 minutes after he had left and said that he was going to sign the statement, but before he did so he wished to add something to it. He said that he wanted to choose his words carefully, and asked Mr Kennedy to take down his words in pencil. The latter did so and gave the appellant the rough pencil note. The appellant then dictated the final part of the statement, basing himself on that note. The final part read:
"I am very sorry for having killed Patricia Curran. I had no intention whatsoever of killing the girl. It was solely due to a black-out. God knows as well as anybody else that the furthest thing in my mind was to kill the girl and I ask His forgiveness. I throw myself on to the mercy of the law and I ask you to do your best for me so that I can make a complete restart in life. I should like to say how sorry I am for all the distress that I have caused the Curran family. I have felt run down for quite some time and the black-out may have been the result of over-studying and worry generally. I am also sorry for the distress and worry I have caused my dear father and mother. I ask my parents' forgiveness and if I am spared I shall redeem my past life."
At the end of Mr Capstick's evidence the judge asked him whether he at any time asked him questions during the course of the statement, to which he replied:
"No, my Lord, there was no question asked by myself or Co. Inspr. Kennedy. When the statement commenced, he went right away there with it."
The Attorney-General asked the same question of CI Kennedy in his examination in chief, to which the latter replied:
"No, the only question I remember – and it was not really bearing on what was in the statement – Mr Capstick asked him how he spelt 'Queries', when he spoke about being at the newspaper shop. I actually spelt it out for him."
The matter was raised again with Mr Kennedy when he proved the statement in the presence of the jury. The following exchange took place:
"MR. HANNA. QS 1,555. You have already told us that Mr. Capstick was taking this down at dictation from the accused?
WITNESS. A. Yes.
QS 1,556. Was there a long paragraph, and then that written down; or was the sentence written down, do you remember? Was it taken sentence by sentence, or paragraph by paragraph? A. Just sentence by sentence. At times the sentences were longer than others, because he spoke rather quickly, and I asked him to take his time and watch Mr. Capstick's hand, so that he could get down what he was saying.
LORD MacDERMOTT. QS 1,556a. Well, during the taking of this statement, Mr. Kennedy, are you quite certain that, with the exception of the question put by Mr. Capstick as deposed yesterday, as to how one spelt the word 'Queries'' that no questions were put to the accused at all?
WITNESS. A. I am quite positive, my Lord.
QS 1,557. And this statement represents what he dictated to Mr. Capstick? A. Yes.
QS 1,558. And towards the end, from the words, 'It was untrue', what he dictated to Mr. Capstick, from the pencil note you had taken, dictated to Mr. Capstick what he had said? A. Yes.
QS 1,559. Now, are you quite clear – I don't want any doubt later – are you quite clear as to there being no other questions? A. I am quite clear, my Lord."
When the statement was completed Mr Kennedy arrested the appellant, charged him with the murder of Patricia Curran and cautioned him again. The appellant replied "It was not a wilful murder."
DI Nelson told the court that when he had escorted the appellant to the prison and he was being searched, the appellant said "I'm glad I took your advice: I feel happier now I have told the truth." Evidence was given by Constable Herdman about remarks made by the appellant when depositions were being taken at Whiteabbey Petty Sessions. When a witness was giving evidence about a knife, it fell to the floor. The appellant looked at it keenly when it was being handed up to the resident magistrate and back again, then said "That's not it". He went on to add further remarks, but was not cautioned before he did so. The judge ruled out the further remarks, and we can disregard them for the purposes of this appeal.
The appellant's counsel submitted to the judge that none of the statements should be admitted, on the ground that they were not voluntary, since they were the product of inducement, fear and pressure. After hearing from the Crown the judge admitted in evidence all the statements, verbal and written, with the exception of the further remarks made at Whiteabbey Petty Sessions to which we have referred and the evidence of the episode on the afternoon of 15 January when DS Devenney advised the appellant to tell the truth. He found that the confession taken on 15 January was not procured by interrogation. He held that it was not unfair that the appellant did not have an RAF officer present, in the circumstances of the case. He was satisfied that the confession as a whole was a voluntary statement. He rejected the contention that in the interview on the morning of 15 January Mr Capstick had brought up sexual matters in order to put pressure on the appellant on the basis that if he made a full and true statement about the murder the facts about his sexual life would not have to be made public. That allegation had been denied and the judge held that there was no substance in it. He therefore held:
"I, therefore, think that this statement [the confession] is admissible as a voluntary statement, and I see no reason to think that it was taken unfairly or in a manner, which, in the exercise of my discretion, would justify me in excluding it."
Having so ruled in relation to the main statement, the judge held that the other written statements and casual statements, with the exception of those to which we have referred, were all admissible. The trial proceeded and the statements which had been admitted were duly proved before the jury.
The defence called a number of witnesses, whose evidence was largely directed towards establishing the defence of insanity which the jury in the end accepted. The appellant did not give evidence.
The evidence of one defence witness requires somewhat more detailed consideration, as it was the subject of submissions on the appeal. Dr Rossiter Lewis, a consultant psychiatrist, was called on the issue of the appellant's mental condition. He expressed the opinion that the appellant was suffering from the disease of the mind known as schizophrenia, together with a condition named hypoglycaemia. He concluded further that on 12 November 1952, and also at the time of his examination on 8 and 9 February 1953, he was suffering from a defect of reason due to disease of the mind.
An essential part of Dr Lewis' investigation was to establish to what extent the appellant's memory of an incident which he had forgotten could be restored. To that end he administered thiopentone, a drug then popularly known as the truth drug. The transcript of his evidence in chief contains the following passage:
"MR. AGNEW: Q.2462. What is the effect of such a test, Doctor? A. The effect of giving this test is to restore a memory for an incident which has been forgotten. If that incident did not register properly in consciousness on account of insanity, it would not, in my opinion, be possible for any memory of it to be brought back. I found that I could restore his memory for the early incidents on the grass verge, and I am of the opinion that at that particular time an assault with his fist took place, but that no knife was used then; neither was there any question of any sexual assault.
THE LORD CHIEF JUSTICE: Q.2463. Well, do you mean by that that having applied this drug you restored his memory for what he must have known at the time? A. Yes.
Q.2464. And that included in what he must have known at the time was an assault with the fist but not with the knife? A. That is so, my Lord.
Q.2465. Well, it follows from that, if I understand your evidence correctly, that, in your opinion, he knew he hit Miss Patricia Curran with his fist when he was doing it? A. Yes, my Lord."
It appears clearly from this passage and from the cross-examination of Dr Lewis that he was retailing what he had been told by the appellant, which was confirmation that he had assaulted Patricia Curran at the scene of the crime. It is equally clear that by this stage of the trial the defence had ceased to dispute that the appellant had killed Patricia Curran and were concentrating on persuading the jury to return a verdict of insanity. Certainly during his cross-examination by the Attorney-General Dr Lewis recounted what the appellant told him he remembered as being a correct account of what had in fact occurred.
His thesis was that the attack upon Miss Curran could be divided into three distinct stages. In the first the appellant assaulted her at the verge of the driveway, striking her with his fist or some implement and knocking her unconscious. The second stage consisted of dragging her into concealment in the undergrowth, probably because of the approach of the paperboy George Chambers. The third stage was the stabbing, which Dr Lewis thought took place under the tree. He considered that the appellant lost his memory of the first stage, but that it was restored in consequence of his treatment involving the administration of thiopentone. He went on later in his cross-examination, in reply to Question 2781, to spell out the relationship between the schizophrenia and hypoglycaemia from which he diagnosed the appellant to have been suffering:
"I think that the first assault was the result of a schizophrenic outburst – an uncontrollable kind of action – from which there was some short recovery. I am of the opinion that when he had taken the body behind the bushes to the tree that the full effect of the low blood sugar came into play and that what he did then – if it could be distinguished – was more due to hypoglycaemia than to schizophrenia; and that is why, in my opinion, he had no memory which could be restored for that particular event, namely, the actual stabbing; and my reason for saying that is that the schizophrenic sometimes does remember the details of his crime – and often quite clearly – sometimes he does not; but the hypoglycaemic, since his brain cells have been affected at the time, because of lack of sugar, is unable to register what is happening; and therefore there is no proper memory for the event; and that connects that with my findings under the influence of the truth drug."
The Crown called one medical witness in rebuttal. Closing speeches followed, then the judge summed up to the jury and sent them out to consider their verdict. They returned after an absence of two hours with a verdict which they recorded as "Guilty but Insane". The judge ordered that the appellant be kept in strict custody until Her Majesty's pleasure should be known.
The Issues in the Appeal
The written grounds of appeal formulated on behalf of the appellant were voluminous and multifarious, but those which were argued by Sir Louis Blom-Cooper QC and Mr Larkin at the hearing before us may be grouped into four categories. The theme of their argument was that the jury's verdict was unsafe, judged by modern standards, on four main grounds:
1. The appellant's confessions should not have been admitted in evidence.
2. The confessions were unreliable and should not have been accepted as true.
3. The evidence linking the appellant with the crime was unreliable, especially that which related to the time of death.
4. The irregularities of procedure, allied to defects in the judge's summing-up, were such as to make the trial unfair.
We gave the appellant leave to adduce the evidence of a number of witnesses. By consent the report or reports of each witness were admitted without proof, and no oral evidence was given at the hearing before us. No factual issue was raised about the correctness of the reports and we accepted their contents as undisputed. The reports so admitted on behalf of the appellant were as follows:
(a) Report dated 26 February 2000 of Professor Gisli Gudjonsson and further comments dated 10 October 2000.
(b) Report dated 9 June 2000 of Professor Malcolm Coulthard.
(c) Report dated 3 July 2000 of Professor Michael Kopelman.
(d) Report dated 17 October 2000 of Professor Jack Crane.
(e) Report dated 17 October 2000 of Mr Brian Craythorne.
(f) Report and notes of Dr Desmond Curran based on his examination of the appellant in April 1957.
We gave leave to the Crown to adduce two reports:
(i) Report dated 23 October 2000 of Dr JP French.
(ii) Report dated 2 October 2000 of Dr IG Hanley.
We also received in evidence a number of statements taken by the police during the investigation of the crime which had not been disclosed to the defence, in order to determine whether the non-disclosure of any of these had a material effect on the fairness of the trial.
The Test of an Unsafe finding
The test to be applied under section 12(2) of the Criminal Appeal (Northern Ireland) Act 1980, as amended by the Criminal Appeal Act 1995, is whether the Court thinks that "the finding is unsafe", the same criterion as that specified by section 2(1) in the case of a conviction. The degree of uncertainty which persisted for a period after the 1995 Act came into force about the interpretation of the word "unsafe" has now been largely dispelled. There was some doubt whether it was still possible to allow an appeal against a conviction on the ground of a material irregularity in the course of the trial, one of the grounds specified in the earlier legislation which had been replaced by the single test whether the conviction or finding was unsafe. We do not find it necessary to rehearse the series of decisions of the Court of Appeal in England and this court in which the ambit of the test is discussed, because the principle to be applied has been clarified by the recent decision of the former court in R v Togher, Doran and Parsons (2000) The Times, November 21. The court concluded, following its earlier decision in R v Mullen  2 Cr App R 143 in preference to that in R v Chalkley and Jeffries  2 Cr App R 79, that the amendment to section 2 of the Criminal Appeal Act 1968 (the analogue of section 2 of the Criminal Appeal (Northern Ireland) Act 1980) was intended to codify the previous provisions and to re-state the practice of the Court of Appeal prior to the amendment. A similar conclusion was reached by this court in R v McArdle (2000, unreported). This then replaces the several discrete grounds for allowing an appeal specified in the former provision and removes the logical difficulties in their interpretation highlighted by Sir John Smith QC in an article in  Crim LR 920.
It seems to us that it is now possible to formulate two propositions in respect of irregularities at trial, which formed the subject of a good deal of argument before us:
1. If there was a material irregularity, the conviction may be set aside even if the evidence of the appellant's guilt is clear.
2. Not every irregularity will cause a conviction to be set aside. There is room for the application of a test similar in effect to that of the former proviso, viz whether the irregularity was so serious that a miscarriage of justice has actually occurred.
The Application of Current Standards
An issue was raised at the outset of the appeal about the standards by which the conduct of the trial, the admission of the confession and the direction to the jury should be judged. Sir Louis Blom-Cooper relied upon the statement of Lord Bingham CJ in R v Bentley  Crim LR 330, which he submitted applied mutatis mutandis to the present case:
" Rarely has the court been required to review the safety of a conviction recorded over 45 years earlier. In undertaking that task we conclude:
(1) We must apply the substantive law of murder as applicable at the time, disregarding the abolition of constructive malice and the introduction of the defence of diminished responsibility by the Homicide Act 1957.
(2) The liability of a party to a joint enterprise must be determined according to the common law as now understood.
(3) The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.
(4) We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.
Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time. This could cause difficulty in some cases but not, we conclude, in this. Where, however, this court exercises its power to receive new evidence, it inevitably reviews a case different from that presented to the judge and the jury at the trial."
Sir John Smith QC in his commentary on the decision in  Crim LR 330 described the position at which the court arrived as having "alarming implications", because of the number of convictions which could be upset if appellate courts applied current standards to decisions made even 20 years ago, so great have been the changes in recent years in accepted procedural standards.
It could be argued that the statement in R v Bentley which we have quoted was obiter, since the decision itself turned on the misdirections of the trial judge, which were deficient by the standards of 1952, when the trial was held. The English Court of Appeal has, however, adopted and reaffirmed it in several decisions. One might have thought that the court was endorsing a different approach in R v Gerald  Crim LR 315 when it accepted the correctness of a statement of Glidewell LJ in R v Ward (1993) 96 Cr App R 1 at 23. In R v Johnson (2000) The Times, 21 November, however, the Court of Appeal unequivocally supported the Bentley statement of the law. In his judgment in that case, which involved a pre-Turnbull identification, Lord Woolf CJ stated at paragraphs 25-6 of his judgment:
"25. We do not regard the approach of this court in Gerald as watering down what was said by Lord Bingham CJ in Bentley. The Act makes it clear that today we are only concerned with the question of whether a conviction is safe or not. However, in determining whether a conviction is safe, regard has to be had to the procedures which were followed at the trial and to irregularities which took place at the trial. Account has to be taken of whether there has been a proper direction to the jury on the law and on the evidence and the court has to take into account the consequences of any unfairness which may have occurred.
26. The test which this court is required to apply is to approach the issues in the round. In doing so, it can only apply the standards which this court adopts today. No one can be criticised for applying standards which were current at the time of any trial. If, however, as a consequence of doing that the trial is properly regarded by this court as unsafe, this court must intervene. That is the approach which we see Bentley laying down. We do not find that Gerald is inconsistent with that approach. That is the approach which we adopt to this appeal. We regard the appellant's conviction as unsafe. Although his trial took place a long time ago, and although he served the sentence which was imposed upon him, we feel that we have no alternative but to quash his conviction."
We note also that the High Court of Justiciary in Scotland has adopted the Bentley reasoning in a case concerning the sufficiency of a judge's direction in 1948 on corroboration. In Boncza-Tomaszewski v HM Advocate 2000 SCCR 657 the Lord Justice General (Lord Rodger of Earlsferry) stated at paragraph 5 of his judgment:
" The transcripts and other documents in the case transport the reader back to a very different era of ration books, coal-houses, domestic service and permanent waves. It may be that, similarly, there are more or less subtle differences in the approach which a trial judge and the appeal court would have adopted in 1948 from the approach which they would adopt to the same matter today. In 1998 the Court of Appeal Criminal Division, presided over by Lord Bingham L.C.J., were called upon to consider the conviction of Derek Bentley who was tried and convicted of murder in 1952 and executed the following year after his appeal to the Court of Criminal Appeal had been dismissed. In 1998 the Criminal Cases Review Commission referred the conviction to the Court of Appeal under Section 9 of the Criminal Appeal Act 1995. In R. v. Bentley  T.L.R. 492, the Court of Appeal held that they required to deal with the matter on the basis of the standards applied by the courts in 1998 rather than by reference to the standards of 1952 or 1953. Similarly, they require to apply their current understanding of the common law. We respectfully adopt their Lordships' reasoning and deal with the issues in this case on the basis of our current understanding of the common law and on the basis of present-day standards. This approach may involve the risk that we seem to criticise our predecessors by reference to criteria which are different from those which they were applying. But that risk is inherent in Section 194B which is specifically designed to allow this court to reconsider the soundness of a conviction even though it was subject to appeal. The operation of that section would be both artificial and ineffective if the court were forced to consider the issues by reference to the practice and legal approach of a bygone age. The purpose of the section must be to permit the court to re-examine cases to see whether, by the common law and standards of the time when the reference is considered, there has been a miscarriage of justice, even if, due to their understanding of the common law or by the standards applied at the time of the original proceedings and appeal, the appeal court would then have reached a different conclusion."
It appears, however, from the remarks of Lord Bingham CJ in R v King  Crim LR 835, that there may yet be some areas in which the appellate court is not to look at a conviction in the light of modern law. At page 12 of the transcript of his judgment Lord Bingham said:
" We were invited by counsel at the outset to consider as a general question what the approach of the court should be in a situation such as this where a crime is investigated and a suspect interrogated and detained at a time when the statutory framework governing investigation, interrogation and detention was different from that now in force. We remind ourselves that our task is to consider whether this conviction is unsafe. If we do so consider it, s.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.
We can illustrate our approach by giving two examples. Suppose, per impossible, the court were to entertain an appeal against a conviction entered before 1898, at a time when a defendant was not permitted to testify in his own defence. The fact that he could not testify would not of itself render the conviction unsafe. But, depending on all the other evidence, the fact that a defendant had had no opportunity to give his account to the jury in his own words might afford a ground for considering the conviction unsafe.
We give a second example. Suppose an appellant complained of unfairness in a summing-up to a jury in a case tried many years ago at a time when the need for balance in the summing-up was less generally recognised and honoured than it is today. Suppose further that the summing-up represented a strong and rhetorical speech for the prosecution. If a defendant were convicted after such a summing-up, the lack of balance would not of itself render the conviction unsafe. But if the case were one in which public feeling ran high and there were points fairly to be made for the defendant, which were not adequately presented in the summing-up, then, depending on all the evidence in the case, there might be grounds for holding the conviction unsafe."
On the view which we have taken on the issues in the present appeal, we do not need to give further consideration to the possible difficulties in this statement of the law (as to which see the commentary in  Crim LR at 838-41). We shall content ourselves with saying that there appear to be matters which await clarification in future decisions.
Whether the Finding was Unsafe
With these principles in mind, we must consider the issue whether the finding of the jury was unsafe, in the light of the additional evidence and the submissions advanced to us about a number of matters relating to the conduct of the trial, the failure to disclose matters to the defence and the admission of the confession statements.
On the evidence presented to the jury at trial, the prosecution case that the appellant murdered Patricia Curran was one of formidable strength. It centred round a detailed confession, which he did not retract or attempt to explain away, the content of which was confirmed by the matters which the appellant had told Dr Lewis and which had been retailed by the latter to the jury. It was supported by the evidence of witnesses who claimed to have identified the appellant near the scene of the crime before and after the time relied upon by the prosecution as being the time of the murder, by evidence that the appellant had attempted to set up an alibi by asking RAF colleagues to give false evidence and by the forensic evidence about the finding of bloodstains on his clothing. Given this evidence, the jury had more than ample material on which to come to the conclusion that he had committed the murder. Once the confession was admitted in evidence by the trial judge, the defence were in effect compelled to fall back upon the defence of insanity as the only means of escaping a verdict of guilty. On the appeal before us, the appellant's counsel sought to undermine the prosecution case in several ways, by attacking the veracity and reliability of the evidence, submitting that essential planks of the Crown case should have been excluded, and by contending that there were material irregularities sufficient to impeach the fairness of the trial. It was submitted on behalf of the appellant that this process removed so much of the evidence at the heart of the case that what had appeared to be an irrefragable Crown case became too insubstantial to sustain.
It was apparent at the hearing of the appeal that the admissibility of the confession was the factor of most importance in considering the safety of the verdict. The confession was at the heart of the case, and if it was wrongly admitted the rest of the prosecution evidence was insufficient, as Crown counsel accepted, to sustain the jury's finding. Several other issues were debated before us, but they were of lesser consequence, and when Crown counsel informed the court that he did not propose to present arguments in support of the admission of the confession, the result of the appeal was plain and the other matters receded into the background.
The Conduct of the Trial
We shall consider first these other issues, commencing with the matters relating to the conduct of the trial. In accordance with the prevailing practice the closing speech for the prosecution was given after the closing speech for the defence. This practice has since been changed, so that the defence would now have the last word. Counsel submitted that the former practice was unfair and that the change in procedure constituted a recognition of that. We take this into account, but bear in mind that when the real focus of the defence case was by that stage concentrated upon the insanity issue the loss of the opportunity of the last word may have been rather less significant than it might have been if the primary defence was based on an attack on the prosecution evidence linking the appellant with the crime.
The judge commenced to sum up to the jury at 6.20 pm on the final day of the trial. They retired to consider their verdict at 8.45 pm and returned to court to give it at 10.45 pm. It would now be regarded as undesirable to keep such sitting hours: on this issue see our judgment in R v McMoran  NI 50. There were no specific factors which tended to show, as, for example, in Re Bradley  NI 192, that there was a risk that the jury was not put in a position to give a sufficiently considered and reasoned finding. It was nevertheless a very late sitting by modern standards, and we should now scrutinise a verdict reached at that hour with some care. Moreover, the jury were informed in a remark made by the judge during the summing-up that they could not have any food or drink once they retired to consider their verdict – although the judge did in fact have a discretion to order otherwise – and it was suggested that this would give them a feeling of being under pressure. These are factors to put into the scale when considering the case as a whole in order to determine whether the verdict was safe.
The Judge's Summing-up
Two matters in the judge's summing-up were the subject of submissions on behalf of the appellant. It was pointed out, first, that he did not give the jury the type of direction regarding identification evidence which is now standard practice since the decision in R v Turnbull  QB 224. He said in relation to the evidence of Mrs Hetty Lyttle "Evidence of identification is an important matter in many cases, and one has to be very sure about it." He did not give a warning about the dangers of identification evidence or adjure them to look carefully at the opportunity which the witness had to observe the appellant, both of which would now be part of the instructions which the jury would receive from a trial judge.
The second matter concerned a remark made by the judge when directing the jury on assessing the weight which they should place on the confession statement. He referred to suggestions made by the defence that the appellant had been cross-examined and pressed unfairly during interview, saying:
"It has been suggested – a grave question – that even after he was cautioned – even after he said he wanted to tell the truth – that they cross-examined him. It has been said that they brought undue pressure to bear; it has been suggested that they were extracting information from someone who was tired and unable to defend himself. Now, all those suggestions have been made – they are easy to make. You will have to weigh in your minds as to whether they have been proved to your satisfaction."
It was submitted by the appellant's counsel that this may have conveyed to the jury that the burden of proof was reversed and that he had to prove that something was wrong with the way in which the statement was taken, whereas the burden remained with the Crown to prove the truth of the statement. Matters might be raised which cast doubt upon its reliability, but it was still for the Crown to prove that its contents were true, which might involve dispelling doubts raised about the circumstances in which it was taken. The point made on behalf of the appellant is, of course, correct in principle, and taken by itself the judge's phrase might be capable of giving an incorrect impression of the law. It was nevertheless a passing remark in a substantial charge, at the beginning and end of which the judge properly directed the jury that the burden of proof was on the Crown and that they had to be satisfied beyond reasonable doubt that the appellant killed Miss Curran before finding him guilty.
We have looked at these matters carefully, but one must bear in mind that they have to be taken as part of a long charge, which must be regarded as a whole. We do not consider that the lack of direction on identification or the possible misdirection on the confession statement were sufficiently substantial matters on their own to make the verdict unsafe.
Dr Lewis' Evidence
Counsel for the appellant contended in their skeleton argument and in their submissions before us that Dr Rossiter Lewis' evidence should have been ruled inadmissible by the judge, for it contained evidence of what the appellant had told Dr Lewis during his examination. Professor Kopelman expressed the view that statements made following the administration of sodium thiopentone are now known to be highly unreliable and should not be used in evidence. Dr Hanley also supported this view.
Mr Weatherup QC for the respondent pointed out, however, that Dr Lewis' object in administering sodium thiopentone was not to obtain positive statements from the appellant which could be regarded as truthful – the lie detector test – but to ascertain by restoring as much memory as possible what was still left unrestored. He further submitted that since the evidence of Dr Lewis was adduced by the appellant's advisers as part of the case which they made in support of a finding of insanity, it must when adduced be admissible for all purposes.
We consider that the arguments for the respondent are correct. The appellant's advisers deliberately introduced the evidence of Dr Lewis in order to give the support needed for establishing a case of insanity, in which they were successful. Once the evidence was before the court, it was admitted for all purposes, and the prosecution were entitled to rely on it as constituting admissions by the appellant of his presence at the scene of the murder. No doubt it was very damaging to that part of the defence in which it was denied that the appellant had attacked Miss Curran. Sir Louis Blom-Cooper criticised the conduct of the defence in this and a number of other respects, but we do not consider that such criticism is justified. The appellant's advisers must have been under pressures and may have been subject to constraints at which we can only guess, and they had to make tactical decisions in consequence by which they incurred a detriment in order to gain an advantage. The adduction of Dr Lewis' evidence seems to us to be a good example of this.
We have to bear in mind, however, that it is possible that the positive evidence given to Dr Lewis in the barbiturate abreaction session was, to some extent at least, the product of false memory, as Dr Hanley accepts. We shall return to this when considering the reliability of the confession in general.
Disclosure of Documents
Counsel for the appellant advanced considerable criticism of the failure on the part of the prosecution to disclose a number of documents, which they submitted should certainly be disclosed under modern practice and probably also under the rules prevailing in 1953. Their complaints centred mainly round four areas of evidence, statements taken from persons who were in Whiteabbey in the late afternoon of 12 November 1953, investigations made among the RAF personnel in Edenmore camp, statements taken from the Steel family and statements taken from Marcella Devlin.
Statements from persons in Whiteabbey
The Commission pointed in its reference to statements taken by the police from four persons whose evidence might have been of assistance to the defence, Patrick Mulrine, Richard Gould, Sarah Elizabeth White and Andrew McKeown. The statement of Mr McKeown is missing and it cannot now be said what it contained. The burden of the other statements is that although they were in the vicinity of the bus stop in Whiteabbey around 5.10 to 5.20 pm on 12 November they did not see the appellant or could not remember seeing him. Under present practice these statements should be disclosed, but it is questionable how much assistance such negative evidence would have afforded to the defence, when set against the more positive evidence of Mrs Jackson and Mrs Lyttle.
Statements from RAF personnel
The Commission referred to a number of statements taken from RAF personnel who had been questioned by the SIB in Flight Sergeant Maxey's office on 13 November 1952 and who do not state that the appellant tried to get them to give him a false alibi. Again we consider that this negative evidence is not likely to have been of much significance or assistance to the defence.
The Commission also expressed some concern about the fact that statements made by LAC James Killen Spence were not disclosed to the defence. Spence said in his first statement on 17 November 1952 that he saw the appellant come into the NAAFI about 6 pm (which was before Mrs Lyttle said she saw him emerge from the Glen). In a later statement, however, taken by DS Hawkins and DI Nelson on 22 January 1953, he said that he had thought the matter over and discussed it with other RAF personnel, and now felt that it was later than 6 pm when he saw the appellant in the NAAFI. He has since deposed in an affidavit made in 1998 that he felt pressurised by the officers when he made the second statement. It was submitted on behalf of the appellant that these statements should have been disclosed, since they could have been helpful to the defence. We agree that they should on present practice be disclosed and it is at least arguable that Spence's name should have been furnished to the defence under 1957 practice. It is less certain that the defence would have benefited significantly, for if they had called Spence he would have been faced with conflicting statements, and it may be noted that his evidence about seeing the appellant was in conflict with the version of his movements which the appellant retailed in his statement made on 14 January 1953.
Statements from the Steel family
The documents now disclosed show that Mr Justice Curran telephoned the police barrack at about 1.45 am on 13 November 1952, to inform them that he had phoned some friends and had learned that his daughter had been left to the 5 pm bus for Whiteabbey. Mrs Curran telephoned about 1.50 am and repeated that Patricia had been left to the bus station at about 5 pm. Mr Malcolm Davison deposed in evidence that he and his wife were wakened by a telephone call from Mr Justice Curran about 1.40 am. In his statement made on 17 November 1953 and given by him to the police and in that taken from Mrs Doreen Davison on 25 November 1952 it is stated that she took the call (which she places at about 1.35 am) and that the judge told her, inter alia, that Patricia had caught the bus for home at about 5 pm.
John Steel and his parents were interviewed at length by the police and were adamant that the judge telephoned their house at a time which they put between 2.05 and 2.10 am, being quite positive that it was not before 2 am. He spoke first to Mr Sydney Steel and then to his son John, whom he asked about Patricia and what bus she had caught. John told him that he had left her to the bus at 5 pm. Mr Justice Curran says in his statement that this news came as a great shock to him and the clear implication from the Steels' statements is that he did not know it until he asked John about the bus time. Mr and Mrs Steel adhered very firmly to the time which they gave when the matter was pursued with them by the police. Initially John confirmed the time, though at the end of a long interview with Messrs Capstick and Kennedy he admitted the possibility of some doubt.
The suggestion which the Commission and counsel for the appellant made arising out of the discrepancy in times is that the murder did not take place at or about 5.45 pm, the foundation of the prosecution case, but at some later time in some circumstances of which the Curran family were aware before they telephoned the Davisons. They ally to this the additional evidence of Professor Crane, who points out the weaknesses in the estimate of the time of death formed by Dr Wells and enlarges the possibility that it may have occurred at a rather later time.
It is clear from the disclosed documents that this discrepancy was a source of concern to County Inspector Kennedy, who was reluctant to subject Mr Justice Curran or his wife to further distress by asking them to give evidence at the trial. The contemporaneous notes of the Attorney-General, whose handwriting is proved by the report of Mr Brian Craythorne, a questioned document examiner, show that he also was alive to the discrepancy. The Crown nevertheless did not disclose to the defence the statements of Mr and Mrs Steel or that part of John Steel's statements which related to the time of the telephone call from Mr Justice Curran. The evidence of John Steel adduced at trial dealt only with matters up to his seeing Patricia Curran on to the Whiteabbey bus.
It is incontestable that these matters would be disclosed under modern rules and possibly also under those prevailing in 1953. The effect on the safety of the conviction is more debatable. The rest of the evidence points so strongly to the murder having taken place at or about 5.45 pm that it is difficult to suppose that it would have profited the defence to pursue the issue. They were, however, entitled to have the opportunity, and it was an irregularity that the evidence was withheld.
Marcella Devlin's statement
The prosecution failed to disclose the evidence of a girl named Marcella Devlin, whose statement has now been made available. She was aged eleven years in 1952 and lived in Whiteabbey. She had known Patricia Curran since she was four years old. She describes in her statement taken on 19 November 1952 seeing Miss Curran on three occasions in the company of a man aged about 30 years, with a conspicuous scar on the left side of his face. On the first occasion, in August 1952, it was in the Glen, when Patricia got out of the man's car. On the second occasion, a few days later, the same man confronted her on the avenue leading to the Curran house and spoke to her sharply. On the third occasion, in October 1952, he stepped out of a doorway in Whiteabbey in front of Patricia and said something to her, which caused her to look frightened. He then ran off up the avenue leading to the Curran house and she followed at a walking pace.
If the contents of Marcella Devlin's statement are true, that could have furnished a possible line of defence, in the form of another suspect, something otherwise lacking. It is very difficult to know at this distance whether this evidence is reliable, but the investigating officer took it seriously enough to have the girl interviewed by her headmistress. We consider that the statement should have been made available to the defence. Even under the practice enshrined in R v Bryant and Dickson (1946) 31 Cr App R 146, which was current in 1953, we think that the girl's name and address should have been furnished to the appellant's advisers, to let them make what they could of it and the failure to do so was another irregularity.
Questions are raised by these matters of disclosure over the safety of the conviction. Despite the strength of the evidence against the appellant, it remains possible that the defence might have been able to affect the run of the case by following a line of inquiry based on one or more of them. Because of the opinion which we have formed on the admissibility and reliability of the confession, however, we do not need to come to a definite conclusion on these questions.
The Admissibility of the Confession
The admissibility of the confession was challenged at the hearing before us on three main grounds:
(i) The procedural safeguards to which a suspect would now be entitled were not afforded to him.
(ii) The confession was not taken by dictation, as Messrs Capstick and Kennedy deposed in evidence, but by question and answer.
(iii) It was not voluntary, because of the pressure put upon the appellant and the fear which operated upon his mind.
The procedural safeguards
The appellant was not offered the opportunity of having legal advice at any stage during the interviewing which took place between 13 and 15 January 1953, nor was a solicitor present at any interview. He was offered the opportunity to have an RAF officer present, but declined. He was not told, however, that PO Popple had specifically requested that this should be done. These are safeguards which would now be required, though they were not mandatory at the time. We would not necessarily regard the lack of them as affecting the safety of the conviction in all cases, but in the present case they were of particular importance. We think it unlikely that a solicitor if present would have allowed the interview which Mr Capstick held on the morning of 15 January 1953 to take the course which it did, and the whole course of the interviewing might have been profoundly altered.
The mode of taking the confession
Both Detective Superintendent Capstick and County Inspector Kennedy deposed in positive terms, as we have set out, that the confession had been taken by dictation from the appellant, and not by question and answer. Professor Coulthard in his report casts a substantial degree of doubt upon the correctness of the officers' averments, as do Professor Gudjonsson in his report of 26 February 2000 and Dr French in his report of 23 October 2000. If those averments had been shown to be wrong, it would have had a substantial adverse effect on the credit of both witnesses, as well as establishing a significant breach of the Judges' Rules. There can be little doubt that if counsel had had this additional evidence before them, they would have vigorously pursued the issue, which might well have had a considerable effect on the willingness of the judge to admit the confession as a voluntary statement. It would also have had a considerable bearing on the issue, to which the evidence of Professor Gudjonsson and Dr Hanley is material, whether the confession truly represents the appellant's own recollection or is what the former describes as a "coerced internalised" type of confession.
Pressure and fear
Both Mr McVeigh QC in presenting submissions on behalf of the appellant and the Lord Chief Justice in giving his ruling on the admissibility of the confession adverted to the relevance of pressure upon him in determining its voluntariness. The concept of oppression, developed more fully since that time, was adumbrated in the classic passage in the judgment of Lord Coleridge CJ in R v Fennell (1881) 7 QBD 147 at 150, where he adopted the principle laid down in Russell on Crimes:
"… a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence."
To the elements of fear of prejudice and hope of advantage contained in Lord Sumner's formulation in Ibrahim v R  AC 599 at 609 there was added oppressive conduct or circumstances, which was confirmed by our Court of Criminal Appeal in R v Corr  NI 193. It came to be the accepted doctrine that oppressive conduct or oppressive circumstances which induce the making of a statement will prevent it from being regarded as voluntary as surely as promises and threats will do. The burden accordingly rests upon the Crown to exclude the operation of any oppression along with that of promises and threats as a causative factor in the making of the statement which it seeks to have admitted.
The type of pressure which may so operate was described in R v Corr at page 211 as "a degree of pressure which saps his will and makes him talk." Lord MacDermott himself in 1968 propounded a definition of oppressive questioning in an address to the Bentham Club as –
"questioning which by its nature, duration or other circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have stayed silent."
In R v Prager  1 All ER 1114 at 1116 the Court of Appeal adopted this definition. It also approved the definition by Sachs J in R v Priestley (1967) 51 Cr App R 1:
"to my mind, this word in the context of the principles under consideration imports something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary. … Whether or not there is oppression in an individual case depends upon many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world."
It seems to us clear that Detective Superintendent Capstick set out to achieve just this type of sapping of the appellant's will when he conducted the interview on the morning of 15 January 1953, and we think it likely that he succeeded in his object. The phrase "broken down" used by counsel in cross-examination and accepted by Mr Capstick in our view represents the state which he sought to bring about. If the appellant had not been questioned at length about his sexual proclivities on the morning of 15 January, he would not have been so ready to make the confession after lunch that day. We think that the effect on his will to stay silent is likely to have substantial and that the fear of having his sexual activities revealed to his family and the world is likely to have affected his mind. We therefore could not regard the confession as having been proved to be voluntary in the eyes of the law. It seems to us doubtful whether it could have properly been so regarded in 1953, for the same common law was applicable. But now that the law has been more clearly developed, we have no hesitation in saying that the admission of the confession cannot be sustained on the application of modern standards.
The additional medical evidence
This conclusion is reinforced by the evidence contained in the reports of Professor Gudjonsson, Professor Kopelman and Dr Hanley. Professor Gudjonsson in his report of 26 February 2000 deals at some length with the psychological state of the appellant in 1953, but it is sufficient to set out paragraphs 8 and 9 of his conclusions:
"8. The confession Mr. Gordon made to the police on 15th January 1953 is very vague, lacks much specific detail, and descriptions are prefaced by indefinite remarks suggesting that Mr. Gordon was not confessing to an event of which he had a clear recollection. The content of the confession is consistent with a false confession of the 'coerced internalized' type. The confession reads as if it was elicited by questioning rather being a free narrative account, which contradicts the testimony of Detective Superintendent Capstick during the trial. In addition, Mr. Gordon was clearly placed under considerable pressure during lengthy police questioning and I think it is very probable that the extensive questioning about Mr. Gordon's sex life was instrumental in getting him to confess to the murder of Miss Curran. I am in no doubt that this method of questioning would have placed him under considerable additional pressure, irrespective of whether or not it was intended. Questioning young suspects about their sexuality can act as extreme pressure and result in a false confession (Gudjonsson and MacKeith, 1990).
9. The present assessment indicates that Mr. Gordon possesses strong psychological vulnerabilities which make him susceptible, under certain circumstances, to making an internalised false confession. These include a highly abnormal degree of suggestibility, including the inability to cope with interrogative pressure, and a tendency towards confabulatory responding. Of course, Mr. Gordon was not tested psychologically prior to his trial in 1953 and we do not know for certain what his scores would have been on the tests at that time. However, there are strong grounds for inferring from colleagues and reports that in 1953 Mr. Gordon was an unassertive individual who would have been open to suggestion and unable to cope with interrogative pressure. My other concerns are that at the time of his interviews with the police he was in a particularly difficult predicament, because he had been deceptive about his alibi and he was sensitive about his sexuality, and his alleged homosexual experiences in particular. Taken together, all these factors would have made him psychologically vulnerable to giving potentially unreliable self-incriminating admissions under pressure. It would have been quite possible for the police to persuade Mr. Gordon that he had committed the murder, even if he had no memory of doing so. Once he had begun to believe that he might have committed the murder he would then have tried to reconstruct in his own mind, perhaps with the assistance of the police interviewers, what could have happened."
Professor Kopelman dealt largely with the evidence of Dr Rossiter Lewis, but also expressed agreement with Professor Gudjonsson's conclusions. His summary of his views reads:
"In summary, I do not think that the diagnosis of schizophrenia, inadequate psychopath, or spontaneous hypoglycaemia, put forward at the original trial, are now acceptable: the evidence put forward in their support would not fulfil modern diagnostic criteria. Secondly, the use of sodium thiopentone in medico-legal settings is extremely hazardous, as recent literature on false confession has indicated, because erroneous memories are likely to arise and the subject is vulnerable to suggestion unless the interview is very carefully conducted. Details and transcripts concerning the interview under sodium thiopentone do not seem to have been given to the Court, and Dr Lewis certainly did not provide any caution to the Court about the interpretation of his findings from this interview. I concur with Professor Gudjonsson that such interviews are highly unreliable, and, in this case, the interview may even have inculcated false memories into Mr Gordon's mind. In this connection, it is notable that Mr Gordon's confession is replete with qualification words, as if he were not at all confident about what he was recounting. In the light of this, I agree with Professor Gudjonsson's opinion that the confession appears to be unreliable."
Dr Hanley disputes the validity of Professor Gudjonsson's psychometric results, because of dissimulation on the appellant's part. He does express agreement, however, with the latter's conclusion that the appellant was psychologically vulnerable to making a coerced internalised false confession. He concurs with his view that the confession reads like one which has been elicited by questioning and his overall conclusion that there are serious questions about the reliability of the confession and the appellant's self-incriminating admissions. Dr Curran in his 1957 report also concluded that the appellant was a very suggestible and gullible subject and suggested that the sequence of events bore a strikingly close parallel to confessions obtained in other jurisdictions by "brain-washing".
If the Lord Chief Justice had had this additional evidence before him at the trial we have very little doubt that he would have felt impelled to reject the confession as inadmissible. We consider that we must hold now that it should be ruled out, a conclusion which Mr Weatherup did not seek to resist.
The Safety of the Finding of Guilt
It then has to be considered whether the finding of guilt is safe once one removes the confession, which was at the heart of the Crown case. Doubts have been cast by Professor Kopelman on the reliability of the matters stated by the appellant to Dr Lewis, because, as he put it, erroneous memories are likely to arise and the subject is vulnerable to suggestion. In any event, if the confession had been ruled out, it is most unlikely that the defence of insanity would have been advanced or Dr Lewis called to give evidence – always supposing the Crown case survived a submission that there was no case to answer. The remainder of the evidence against the appellant consists of a certain amount of circumstantial evidence and some suspicious behaviour on his part. We do not consider that if that evidence stood alone the conviction would be safe, and again Mr Weatherup did not seek to argue to the contrary.
We therefore conclude that the jury's verdict cannot stand. There can be no question of ordering a retrial after this length of time and we therefore allow the appeal and quash the finding of guilt.