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O'Brien & Ors, R v [2000] EWCA Crim 3 (25th January, 2000)
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[2000] EWCA Crim 3
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O'BRIEN, HALL and SHERWOOD, R v. [2000] EWCA Crim 3 (25th January, 2000)
Case No: 98/6926/27/28/S1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CARDIFF CROWN COURT
(MICHAEL DAVIES J)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 25th January 2000
B e f o r e :
LORD JUSTICE ROCH
MR JUSTICE KEENE
and
MR JUSTICE ASTILL
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|
REGINA
|
|
-
and -
|
|
O'BRIEN,
HALL & SHERWOOD
|
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr G Elias, QC & Mr GD Treverton-Jones appeared on behalf of the
Crown
Mr E Fitzgerald, QC & Mr T Owen appeared on behalf of the appellant
Hall
Mr M Mansfield, QC & Mr T Owen appeared on behalf of the
appellant
O'Brien
Mr Marshall-Andrews, QC & Mr G Summers appeared on behalf of the
appellant
Sherwood
Judgment
As Approved by the Court
Crown Copyright ©
Tuesday, 25 January 2000
JUDGMENT
LORD JUSTICE ROCH:
On the night of Monday 12th October 1987 Philip Saunders, was attacked and
robbed as he returned to his home at 12, Anstee Court, Canton, Cardiff. In the
attack he received injuries from which he died five days later on the 17th
October. He was last seen alive outside a public house close to his home at
1105 p.m.. At 11.19 p.m. a neighbour made an emergency telephone call to the
police having heard the attack on Mr Saunders.
Mr Saunders was 52 years of age. He owned three kiosks in the centre of
Cardiff from which cigarettes, newspapers, sweets and so forth were sold. It
was his routine to call at his kiosk at the Central Bus Station in Cardiff each
evening at about 9.30 p.m. to collect the days takings which he would take home
with him. The police when they arrived at the scene of the attack following
the emergency call, in addition to finding Mr Saunders lying in the little
front garden of his home severely injured, also found a spade, a £10 note
and a £1 coin in the garden. No money was found on Mr Saunders.
The unchallenged evidence of the pathologist, Professor Bernard Knight, was
that Mr Saunders must have received five blows to the head causing extensive
fractures of his skull. Very great force was used. The skull was shattered.
The spade found in the garden, in Professor Knight's opinion, could have caused
all or any of the injuries to Mr Saunders' skull.
The police mounted a major investigation, which involved the arrest and
questioning of 42 suspects. Three of those suspects were the appellants. They
were arrested and interviewed at the end of October of that year, and all three
were released on the 2nd November. The three appellants were released despite
the fact that the appellant Hall had made admissions of being involved in the
attack on Saunders, which admissions the police clearly doubted at that stage.
Following further enquires said to have produced evidence incriminating the
appellants Sherwood and O'Brien, the three appellants were re-arrested on the
10th November and following further interviews were charged with robbing and
murdering Mr Saunders.
The Appellants' Trial
The appellants were tried before Michael Davies J at the Cardiff Crown Court in
June and July 1988. At the outset of the trial on the 27th June Hall pleaded
guilty to robbery, Count 1 in the Indictment and tendered a plea of guilty to
manslaughter with regard to Count 2 in the Indictment which charged the
appellants with murder. The Crown accepted the plea of guilty to robbery but
would not accept the plea to manslaughter.
The trial concluded on the 20th July 1988 after 15 days of hearing. The jury
convicted O'Brien and Sherwood of robbery and all three appellants of murder.
The verdicts were majority verdicts of 10 to 2. Following those convictions
the judge passed sentences of custody for life on all three appellants, they
all being under the age of 21; O'Brien being then 20 and Sherwood and Hall 19.
For the robbery Hall was sentenced to 6 years concurrent and O'Brien and
Sherwood to 8 years concurrent.
On the 16th March 1990 the full court refused the appellants' renewed
applications for leave to appeal against conviction. Their present appeal
comes before this court by way of a reference by the Criminal Cases Review
Commission under s. 9 of the Criminal Appeal Act 1995.
The three appellants, both in their answers in interview and in the evidence
they gave to the jury were agreed that on the night of the attack on Mr
Saunders they were together at the time the attack took place. Their evidence
was that they had left the home of the appellant Sherwood's sister, Mandy
Purcigo at 1, Maitland Place, in the Grangetown area of Cardiff at about 10
p.m. with the intention of taking one or more motor vehicles without the
consent of the owner, and that the three had remained together until they had
separated some time after 11.30 p.m. in the Fairwater area of Cardiff, at a
point approximately 1½ miles from the home of Mr Saunders. The appellant
Hall had gone to the home of a bus driver whom he knew, Gerard Peter Baynham
arriving sometime after 11.30 p.m. Mr Baynham gave evidence before the jury
that the appellant Hall was his usual scruffy self. O'Brien and Sherwood
maintained that they had gone to the home of a friend of theirs, Richard Yates,
who also lived in the Fairwater district of Cardiff, arriving at his home
between 11.30 and 11.45 p.m. Richard Yates gave evidence to that effect adding
that both Sherwood and O'Brien were perfectly normal in appearance and
demeanour. There was no blood on either of them, nor was there anything
unusual about them.
The gist of the appellant Hall's case and evidence before the jury was that he,
O'Brien and Sherwood had left 1, Maitland Place to look for cars to take
without the owner's consent. He had suggested to the other appellants that Mr
Saunders should be robbed. He had realised some harm might come to Mr Saunders
but had not realised that really serious harm could have come to Mr Saunders
still less that he would be killed. He, the appellant Hall, had acted as a
lookout. O'Brien and Sherwood had gone into Anstee Court and were the people
who had attacked Mr Saunders. They had taken a bag of money from Mr Saunders,
and he, the appellant Hall had had some £70 of that money. Consequently
he had pleaded guilty to robbery and had been prepared to plead guilty to
manslaughter.
The gist of the case presented by the appellants O'Brien and Sherwood and of
the evidence that they gave to the jury was that the three men had left 1,
Maitland Place to go to Fairwater by way of the Canton area of Cardiff,
intending to take a car on the way. At no time that evening had they been to
Anstee Court. They had had nothing to do with the attack on Mr Saunders; they
had not robbed him. Hall had been with them throughout and Hall too was
innocent of playing any part in the attack on Mr Saunders. After they had
parted from Hall in Fairwater Grove, they had met Richard Yates and with him
had taken a Ford car from Pencisely Crescent in Cardiff.
In short the appellants O'Brien and Sherwood were proclaiming the innocence of
the appellant Hall, when the appellant Hall was proclaiming his own guilt and
theirs of the offence of robbery and his own guilt in the killing of Mr
Saunders, at least to the extent that he, Hall, was guilty of manslaughter.
That, as the judge pointed out to the jury, was the unusual feature of this
case. The judge reminded the jury of the observation of prosecuting counsel
that the case of Sherwood and O'Brien, in that respect, flew in the face of
common sense, because if Hall was not guilty of anything, he would have said so
in his evidence to the jury and would have relied on the evidence of O'Brien
and Sherwood to provide him with an alibi. He would not have given evidence
which made it certain that he would be punished for manslaughter and robbery
and which involved him in the risk of being convicted of murder.
The Prosecution's Case against Hall
The prosecution case against the appellant Hall consisted of his answers when
interviewed by the police, a short conversation he had had with a prison
officer whilst on remand in custody pending his trial, and the evidence of
Ricky Shane Forde of conversations between himself and Hall whilst both were on
remand at Cardiff prison. Forde maintained that Hall had told him that
Sherwood and O'Brien had attacked Mr Saunders with a shovel and he, Hall, had
stolen money out of Mr Saunders' pocket. Hall had added that at his trial he
would say that he was in the passage way and Sherwood and O'Brien had stolen
the money.
The Prosecutions' case against Sherwood
The prosecution's case against the appellant Sherwood started with the evidence
of Christopher Chick who said that on the Sunday before the murder, he and
Sherwood had had a conversation on a railway embankment in which Sherwood had
asked Chick to join him in getting some money by "knocking someone off". Chick
said he had refused and Sherwood's response was to say that he would get his
brother-in-law to help him. The appellant O'Brien is Sherwood's brother
-in-law. Chick's evidence was that Sherwood stated he had been watching a man
who had a shop in the Central Bus Station for weeks and the man carried the
takings from his shop home each night.
Chick and his partner Helen Morris gave evidence of meeting Sherwood and
O'Brien later in that week whilst shopping at Cardiff market. On that occasion
Sherwood had told Chick that they had robbed Mr Saunders and he, Sherwood,
described how he had hit Saunders with a shovel. Chick's evidence was that
both Sherwood and O'Brien had rolls of bank notes in their possession on that
occasion. O'Brien had said to Chick that Chick should have listened to
Sherwood and come with them. He would have had money in his pocket. Helen
Morris gave similar evidence, about meeting Sherwood and O'Brien in Cardiff
market, and a conversation between Chick, Sherwood and O'Brien of which she had
heard bits and pieces. In those bits and pieces that she heard, Sherwood and
O'Brien were saying that they had attacked a man with a shovel and that they
had got money. Chick gave evidence of a later occasion when he had met
Sherwood at a water tower where he and Sherwood used to hide property they had
stolen. Sherwood had shown Chick a shovel which was splattered with blood and
had hair stuck to it. That shovel was, according to Chick, different in shape
from the shovel found in Mr Saunders's garden.
A Catriona Morgan, who had known Sherwood and O'Brien for several years, gave
evidence of a conversation she had had with Sherwood. She had asked him about
the night of the murder and why he had gone to Anstee Court. Sherwood had said
"To nick a car" and that he had been with Michael O'Brien and Darren Hall.
Sherwood had told her he had had nothing to do with the murder. The
significance of this evidence was that it conflicted with Sherwood's account of
his movements on the night of the murder.
The next witness whose evidence implicated the appellant Sherwood was Robert
Michael Bradley. He told the jury he had been visiting a man called Chapman at
Cardiff prison just before the new year. In the next cubicle to Chapman in the
visiting room was Sherwood. Sherwood was being visited by his sister Mandy
Purcigo. He, Bradley, had asked Sherwood why he was in prison and Sherwood had
replied that he was on a murder charge. Sherwood's sister had then asked him
who had committed the murder. She had asked that question a few times.
Sherwood had replied "Mike done it; we were there." It was Bradley's evidence
that he did not know who Mike was.
Another witness who maintained he had heard Sherwood make an incriminating
statement was Ricky Shane Forde. He had been on remand at the same time as
Sherwood and had spoken to Sherwood about the murder of Mr Saunders. He had
told Sherwood that his girlfriend had told him that Sherwood's mother had found
blood on a tee-shirt under Sherwood's bed. Forde said that he told Sherwood he
should have got rid of the tee-shirt and he would have got away with murder.
Sherwood replied that that was partly true and partly untrue.
Paul Lewis gave evidence against Sherwood to the effect that on the Tuesday
night the 13th October he had gone with Sherwood, Hall and Richard Yates to
take a car. He had been arrested. He had borrowed a jacket, which Sherwood
had given him, taking it from the banister in 1, Maitland Place. Lewis
maintained that that jacket was exhibit 50. Exhibit 50 was subjected to
forensic examination and revealed traces of blood on the left cuff and left
hem. The traces were insufficient for grouping.
Another witness David Colin Smith gave evidence about Sherwood having money.
It emerged that the occasion to which Mr Smith was referring pre-dated the 12th
October. Consequently the jury were directed to ignore his evidence.
A Clive Malcolm Butcher gave evidence that after the attack on Mr Saunders he
had seen Sherwood with money. Apparently Mr Butcher is an alcoholic and the
judge suggested to the jury that even were they to accept his evidence it was
not very powerful or important.
Sherwood gave accounts to the police of his movements on that Monday night.
His initial account was in the form of a witness statement. The police were
able to demonstrate that Sherwood had lied about the movements of himself, Hall
and O'Brien that night. Moreover Sherwood had told O'Brien to tell the same
story as that originally told by Sherwood. Sherwood made no admission when
interviewed by the police.
The final and perhaps most powerful piece of evidence against Sherwood was that
of DI Lewis that on the 10th November Sherwood and O'Brien were placed in
neighbouring cells at Canton Police Station where they were able to communicate
for the first time following their arrest at about 8 a.m. that day. He, DI
Lewis, had overheard a conversation between Sherwood and O'Brien in which
O'Brien had said not once but three times that he could not hold out much
longer and he might have to tell the police the truth. Sherwood had told him
not to do so because if he did they would be facing life sentences. Being on
remand meant nothing. The conversation had ended with O'Brien asking Sherwood
why didn't he tell the police what had happened and Sherwood replying "I can't
can I? If Hall hadn't opened his mouth we wouldn't be here." DI Lewis's
evidence was that he had made a contemperaneous record of that conversation on
an expenses claim form consisting of two pieces of paper.
The Prosecution's Case against O'Brien
The prosecution's case against O'Brien consisted of the evidence of Chick and
Morris as to the conversations between Chick, Sherwood and O'Brien at Cardiff
market on either Tuesday or Wednesday 13th or 14th October. There was in
addition O'Brien's false accounts of his movements and those of Hall and
Sherwood on that Monday night. Subsequently O'Brien admitted going to Anstee
Court in a police interview, but qualified that admission by saying that he,
Sherwood and Hall had gone to Anstee Court to look for a car to take. He
thought that they would have arrived there after Mr Saunders had been killed.
He was to take the police to Anstee Court, and whilst there said that he
recognised a Morris Minor parked in the car park for Anstee Court which had
been there on the night of Monday 12th October. The officers who accompanied
O'Brien to Anstee Court spoke of his retching when in the car park of Anstee
Court and of his being sick some time later.
Finally in relation to O'Brien, the prosecution relied upon the evidence of DI
Lewis of the conversation between O'Brien and Sherwood in the cells at Canton
Police Station.
Hall's Evidence:
The cases against Sherwood and O'Brien were greatly strengthened when Hall gave
evidence. It is, perhaps surprising that two members of the jury should not
have been convinced of the guilt of all three appellants having heard a
detailed account of the events of that evening from a man who claimed to have
planned the robbery of Mr Saunders; to have acted as look-out; to have heard,
whilst acting as look-out, sounds that one might expect to hear if a person was
being struck by a metal shovel; and to have received £70 from the money
stolen. It is true that counsel for the appellants Sherwood and O'Brien were
able to demonstrate to the jury that Hall had, when interviewed by the police
started by lying about his movements that night, if his evidence to the jury
were true; that when making admissions he had given a number of quite different
accounts of the robbing and killing of Mr Saunders, some of which were patently
untrue and indeed bizarre. For example at one time Hall claimed to have killed
Mr Saunders himself by striking Mr Saunders with a brick.
Hall's conduct following his conviction and sentence
Following his conviction, the appellant Hall continued to assert the guilt of
himself and Sherwood and O'Brien for a number of years. With the exception of
one occasion in July 1991 the gist of these assertions was broadly in line with
the evidence he gave at his trial; namely that the physical attack on Mr
Saunders was carried out by Sherwood and O'Brien, and that he was the person
who had planned the offence and had acted as look-out. However, on the 22nd
July 1991 the Head of Medical Services at Dartmoor Prison recorded Hall as
admitting hitting Mr Saunders twice and then "taking off" at a stage when Mr
Saunders was still alive. Hall said that his two friends then beat Mr Saunders
to death. Hall claimed to have watched and to have observed that Mr Saunders
was a prime target. Hall expressed no remorse.
In a report dated the 21st July 1993 by the Acting Senior Medical Officer at
Dartmoor Hall is recorded as giving an account of the offences similar to the
evidence he gave at trial. On that occasion Hall claimed to have spoken to the
victims son and to have apologised for what had occurred. Further Hall claimed
that the victim's son had accepted his apology but had said that Hall would
have to live with the death on his conscience for the rest of his life. The
significance of that report is two fold; first, Mr Saunders did not have a son
and second, Hall's account appears to have been accepted without question by
those to whom he was speaking.
On the 9th March 1994, Hall was notified by the Tariff Unit of the Life
Sentence Review Section of the Prison Service of the tariffs set in his case by
the trial judge and the then Lord Chief Justice and by the Secretary of State
together with the essential reasons for such tariffs being set. The tariff set
by the Secretary of State was 12 years, but as a result of a House of Lords
judgment the Secretary of State invited written representations from Hall as to
the appropriate tariff in his case.
In July 1994 Hall was moved to Grendon Prison which has the facility for
prisoners to take part in group therapy. At Grendon, Hall began to give a very
different account. First, he said that the motive for the offences was not
simply robbery. He, Hall, had been a rent boy in Cardiff and had lived with a
man called George at George's flat. George had introduced him to Mr Saunders
who was homosexual. After the relationship between Hall and George had ended
Hall had been raped by two men in the presence of Mr Saunders and possibly at
Mr Saunders's instigation. By December of 1994 Hall was saying that he had
killed Mr Saunders himself and that his role had not simply been that of a
lookout. These confessions were accepted as being true revelations by those in
charge of the course of psychotherapy Hall was undergoing at Grendon. They
spoke of Hall's courage in admitting his true role in these offences and the
reasons why he had played that role and of his being "overwhelmed with guilt
and remorse". The reports record that consideration of the consequences of
these admissions for the appellants Sherwood and O'Brien who had always
maintained their innocence was the "first matter of concern for those in charge
of Hall's case". By January 1995 Hall was asking to see a rape counsellor
after some "7½ years of denial". In January 1995 Hall asked his trial
solicitor, Mr Mumford to come to see him and confessed to Mr Mumford that he
had committed the murder using a stone or paving stone. A report by a
probation officer to the Local Review Committee at Grendon Prison dated the
31st January 1995 recorded that Hall wanted to stay at Grendon and continue
with the therapy. It also recorded that Hall was aware that his confession to
being the murderer might be released in the media and that he would need to
tell his parents about his role in the murder. The report expressed the view
that were Mr Hall's parents to react adversely to his confession to being the
person who killed Mr Saunders it would have a devastating effect on him. In a
report dated March 1995 a vivid account of Mr Saunders's murder given by Hall
at that time is recorded. One of the details was that Hall claimed that he had
taken the shovel he used to kill Mr Saunders with him to Anstee Court. That
was contradicted by the evidence of one of Mr Saunders's neighbours that the
shovel found by the police in Mr Saunders's garden with blood and hair on it
had been there prior to the murder. Another detail added by Hall to that
account was that Sherwood and O'Brien had intervened to pull him away from Mr
Saunders. Subsequent investigation has produced no evidence that Mr Saunders
was a homosexual. On the contrary, it was established that Mr Saunders had had
a long standing intimate relationship with a member of the opposite sex.
By October 1995 there is evidence in the form of a complaint form filled in by
Hall that Hall was becoming dissatisfied and restless at Grendon Prison. Hall
had been seen by a BBC producer minded to make a programme raising the question
of the safety of the convictions of Sherwood and O'Brien in August 1995. On
that occasion Hall had claimed to be responsible for Mr Saunders's death. On
the 12th January 1996 Mrs Olive Tunstall, a consultant psychologist, had
interviewed and assessed Hall for the BBC with the agreement of Hall's
solicitor. At that interview, Hall told Mrs Tunstall that he had killed Mr
Saunders. By the 17th May 1996 Hall had withdrawn from therapy feeling he was
unable to continue with the pressure. On that day a memorandum from the
Governor of Grendon recorded that the Wing Therapy Team did not consider that
Hall had made sufficient progress to be reviewed for a re-categorisation at
that time. That withdrawal from therapy had followed a visit to Hall by his
father in April 1996 in which for the first time, according to Mr Hall Senior,
he asked his son point blank whether he had committed the murder and his son
broke down in tears and said he had not had anything to do with it and neither
had his co-defendants.
Hall was moved to Gartree Prison on the 4th December 1996. At the end of his
stay at Grendon a report by the Medical Officer dated the 12th November 1996
indicates that the prison authorities were aware that Hall had been involved in
a BBC Wales television programme in which he had maintained his innocence. The
Medical Officer observed that Hall "Certainly has difficulties separating fact
from fiction, some of this is as a result of fantasising to fill gaps in his
impoverished life". The recommendation was that Hall should be moved as soon
as possible into the general prison system. By March 1997 Hall was telling the
prison authorities and the Parole Board that he was in prison for a crime he
had never committed and that he and his co-accused were innocent. In written
comments to the Parole Board dated the 31st March 1997 Hall asserted that he
was not guilty; that he knew his change of stance jeopardised his chances of
parole; that he was coerced by the police to give them what they wanted and
those police officers were the same group of officers who had been involved in
two other cases where the police had acted in the same oppressive manner. The
papers before us do not reveal from what sources Hall received the information
about these other two cases both which he identified. On the 12th May 1997 the
Parole and Lifer Group of the Parole Board expressed the view that Hall was not
suitable for an open prison.
The grounds of appeal
The grounds of appeal in the case of Hall are: first, that his pre-trial
confessions and his evidence at trial were and remain unreliable. That fact
alone renders his convictions unsafe. A subsidiary issue under this ground is
whether this court should receive fresh evidence, that evidence being of two
types. First, three lay witnesses namely Mr Hall Senior, the deputy headmaster
of Hall's school and Hall's trial solicitor. The second group are three expert
witnesses . At the outset we heard evidence from six of these witnesses and
from Dr Thomas-Peter a clinical psychologist instructed by the respondents
without deciding whether we should admit such evidence under s. 23 of the
Criminal Appeal Act, 1968. We also received and read a statement from the
deputy headmaster. Second, the way in which Hall was detained and interviewed
at Canton Police Station rendered his answers in interview either inadmissible
or unreliable. That in turn tainted the evidence that he gave at his trial.
Third, had Hall's answers in interview been excluded as being either
inadmissible or unreliable, there would have been no case against Hall for the
prosecution to put before the jury.
Five grounds are relied upon by the appellant Sherwood. First, that the hub of
the case against him, Hall, can no longer be relied upon as a basis for a
guilty verdict. Second, the other evidence against Sherwood is flawed and
tainted and could not, on its own form the basis of safe convictions. Third, a
substantial part of the remainder of the evidence said to be corroborative or
confirmatory of the evidence of Hall has been retracted. Fourth, there are
significant doubts about the alleged cell conversation overheard by DI Lewis.
In addition there are significant issues concerning the credibility of that
witness both in the circumstances of this case and arising out of the role he
played in the case of
R -v- Griffiths and Others. Fifth, the
disappearance of certain documents cast doubt on the integrity of the police
investigation into the issue of the guilt or innocence of the three appellants.
First the original notes of the police interviews of Hall could no longer be
located in 1994. At that time the original notes of the police interviews with
Sherwood and O'Brien were available. In 1998 those notes could not be found.
The note made by DI Lewis of the alleged cell conversation likewise cannot be
traced. There was a further ground based on an attack on the character of the
senior investigating officer and then head of the South Wales CID which was not
pursued before us.
The grounds of appeal in the case of O'Brien are first, that fresh evidence,
not available at the trial, establishes that Hall suffers from a mental
abnormality or personality disorder which pre-disposes him to lie and
fantasise. Knowledge of Hall's mental state and his tendency to lie and
fantasise would have significantly affected the jury's assessment of his
reliability as a witness. Second, the circumstances of Hall's detention and
interrogation whilst in police custody would have further undermined the
reliability of his admissions and evidence in the eyes of the jury. Third, it
can now be shown that Hall has altered his account of the events of that
evening whilst at Grendon Prison and, later has retracted his admission that he
had taken part in the robbery and killing of Mr Saunders. Fourth, a
substantial portion of the evidence which provided support for Hall's trial
testimony has been retracted. Fifth, O'Brien's interviews with the police
should have been excluded either under s.76 or s. 78 of the Police and Criminal
Evidence Act 1984 because of the numerous breaches of the Act and the relevant
Codes of Practice. In addition there is now fresh evidence of O'Brien being
handcuffed to a radiator and to a table whilst in police custody. Sixth,
O'Brien relies on the ground which is Ground 4 of those relied upon by
Sherwood. Seventh, O'Brien relies upon the fifth ground of those relied upon
by Sherwood. Eighth, the direction of the trial judge to the jury with regard
to O'Brien's character was defective. This ground was added at a time when Mr
Mansfield had completed most of his submissions on O'Brien's behalf. It was
not a ground which impressed this court. The judge did in the summing-up
remind the jury that O'Brien had no previous conviction and no previous court
appearance. The judge directed the jury that O'Brien was entitled to ask them
to give such weight as the jury thought fit to that fact particularly when
considering whether O'Brien was telling the truth. The judge pointed out that
the absence of previous convictions did not of itself mean that a defendant was
innocent anymore than the existence of previous convictions meant that a
defendant was guilty. When giving evidence O'Brien had admitted that on the
night in question he had gone with Hall and Sherwood to take a car without the
owner's consent, and had later taken part in the taking of a car with Sherwood
and Yates without the owner's consent. He also admitted that on occasions
prior to the 12th October he had taken cars without the owner's consent. In
those circumstances, in our judgment O'Brien could not have complained had the
judge declined to give any direction based on good character. The direction
which the judge did give simply cannot, in our view amount to a ground for
saying that O'Brien's convictions were unsafe. Consequently, we say no more
about that ground.
Appellants' Police Interviews
Before turning to the Grounds of Appeal, it is necessary to give some account
of the arrest, detention and interviewing of the three appellants. We start
with the appellant Hall. Hall was seen by the police and gave a witness
statement on the 27th October 1987. In that account Hall spent the afternoon
and evening at 1, Maitland Place leaving between 8 and 8.30 p.m. From there he
went to the main bus station in Wood Street, Cardiff and at 9 to 9.30 p.m. he
caught a bus to Ely going to the home of Martin Cleaver's sister at 18,
Highbury Road where he spent the night. Martin Cleaver had arrived at the
house at about 10.30 p.m. Neither he nor Cleaver had left the house that
night.
Martin Cleaver was a suspect in the case. The police obtained information
concerning Cleaver's movements that night which contradicted the account given
by Hall. Consequently on the 31st October 1987 at 10.30 a.m. Hall was seen at
the Canton Police Station by DS Fenton and asked about the accuracy of his
statement dated the 27th October 1987. Hall confirmed the statement's
accuracy. The additional information the police had concerning Cleaver's
movements that night were then put to Hall who admitted lying in his statement.
Hall gave a second version of his movements saying that he and Cleaver had
travelled from 1, Maitland Place to the centre of Cardiff where they had then
separated. Hall had reached 18, Highbury Road at about 11.45 p.m. and Cleaver
had arrived there some 20 minutes later. At 10.40 a.m. DS Fenton arrested Hall
on suspicion of murdering Mr Saunders. At 11.15 a.m. Hall sought an interview
with DS Fenton. That interview was not contemporaneously recorded. In that
interview Hall gave a third version namely that he had not been with Cleaver
that night at all. He had said he was with Cleaver to protect Cleaver. He,
Hall, had been helping a mate move a cabinet that night. That interview took
place between 11.15 and 11.35 a.m.
There was a second interview between 1.30 and 5.30 p.m. on the 31st October.
The interviewing officer was DS Fenton. Hall is recorded as saying that he was
prepared to be interviewed without a solicitor. In that interview Hall gave
three further versions of his movements that night in all of which Hall was
saying that he returned to 18, Highbury Road where he spent the night. His
explanation of the differing versions was that he was trying to cover up for
Cleaver. In that interview Hall was asked about his knowledge of Mr Saunders
and said that whilst he had known of Anstee Court he had not known that Mr
Saunders lived there. He had seen Mr Saunders at the Central Bus Station on
that Monday and had bought a Mars Bar from Mr Saunders's kiosk.
There was a third interview between 6.40 and 6.50 p.m. that evening when Hall
gave a seventh version of his movements that night saying that he had left 1,
Maitland Place at 9.30 p.m. and walked through Canton, through Atlas Road and
Lansdowne Road reaching 18, Highbury Avenue at 10.30 p.m. He was not able to
say at what time Martin Cleaver got to 18, Highbury Avenue as he, Hall, had
been asleep.
In a fourth interview between 7 and 7.20 p.m., the interviewing officers now
being DI Lewis and DS Rogers, Hall produced an eighth version of his movements.
He admitted being in Anstee Court but said it was with the intention of taking
a car or committing a burglary. He had left 1, Maitland Place around 9.30 p.m.
and had been on his own. Later in that interview he was to say that he had
been with "Sherwood, Tony a half caste, and Richard from Fairwater", referring
to Richard Yates, that evening. They had gone to Anstee Court to take and
drive away a vehicle in order to break and enter a club in Radyr. Hall said
that he had not known that they were going to kill Mr Saunders. Hall was
outside round the back of Anstee Court when Sherwood, Richard and Tony had gone
inside. They came running out and told him to go. Hall then changed his story
saying that he had been alone. He had waited for Mr Saunders. He had done a
snatch. Mr Saunders had tried to stop him and Hall had hit him with a house
brick. He, Hall, had killed Mr Saunders. He had thrown the brick away in the
river. He stole £200 and had spent it all. He was lying when he had said
Sherwood was involved. He would not say whether Cleaver had been with him.
Hall added that he had been to Anstee Court a few times and he had watched Mr
Saunders.
There was a fifth interview between 8 and 8.35 p.m. by DS Fenton. At that
interview Hall produced an eleventh version of his movements that night. He
said he had left 1, Maitland Place at 11 p.m. with Sherwood, Tony and Richard
to take a vehicle. They decided to try Anstee Court. He had been told to keep
watch. The other three had gone around the back of Anstee Court. Hall saw Mr
Saunders pull up in a white van. He saw three shadows come from the back of
Anstee Court. Mr Saunders went towards the back of the van and then four
shadows went into Anstee Court. Then one of the others shouted "Run" and Hall
ran down Lansdowne Road. They had met up in Cowbridge Road. All of them were
clean. They decided to continue to look for cars and had walked up Clive
Street but could not find anything so had walked to Fairwater and split up.
Hall stayed at a friend's house for the night. Then Hall told the officer that
he was schizophrenic. He had done it. It was the other way round he had hit
Mr Saunders whilst the other three kept watch. He had hit Mr Saunders with his
bag of money which was full of silver. He had also used stones and bricks.
Then Hall told the police officer that the four of them had gone to Anstee
Court but only to take cars. He had not seen any murder committed.
In a further interview on the 1st November 1987 between 10.15 and 11.51 a.m.
Hall enlarged on his thirteenth account of his movements that night. Hall
identified the house where he had spent the night of the 12th October, the home
of Mr Baynham, at 9, Fairwater Grove East. Hall stated that he did not know
anyone called Michael O'Brien. At a seventh interview on the 1st November 1987
between 3.15 and 4 p.m. Hall identified Michael O'Brien from a photograph as
being one of the people who had gone out with himself and Sherwood on that
Monday night.
At an eighth interview, between 8.25 and 9.20 p.m. on the 1st November, Hall
told the police that Sherwood, O'Brien and himself had decided to rob Mr
Saunders on that Monday night. They changed their mind on their way to Anstee
Court but decided to go there and take a car. Hall had stood at the entrance
of the Court and Sherwood and O'Brien had gone into the court. A few minutes
later Hall saw Mr Saunders's van pull into the Court. Sherwood and O'Brien
were in there for 6 or 7 minutes before they came running out, both of them
saying "Run". A little later Hall elaborated his account by saying that he had
heard three slams in quick succession like metallic clanging sounds before
Sherwood and O'Brien had come running out. They had run along Lansdowne Road
and into St John's Square to look for a car. Sherwood had got into a Ford
Capri but had left it because the front lights of a house were on. Hall had
asked them what had taken them so long in Anstee Court and they had replied
"Nothing much". Hall said that later when he had found out that Mr Saunders
had been hurt he mentioned it to Sherwood and O'Brien but they had not
commented. Hall said that he knew that Mr Saunders would be coming home at
about that time because he had followed Mr Saunders home one night, three or
four weeks earlier, on a racing bike he had stolen. He had intended to rob Mr
Saunders that night but had not been able to go through with it. Hall said
that O'Brien had looked shaken and Sherwood had looked normal after they had
run from Anstee Court. Hall had not seen blood.
There was a ninth interview between 12.25 and 1.50 p.m. on the 2nd November.
This was the first interview at which a solicitor representing Hall was
present. Hall denied the truth of all his previous accounts. He said that the
police had not let him have "a brief so I told you seven different lies".
Hall denied going to Anstee Court at all on the 12th October. When asked how
he had been able to describe hearing sounds of the kind that would have been
made in the attack on Mr Saunders he refused to comment.
Mr Hall Senior gave evidence that he was telephoned by the police and asked to
go to Canton Police Station. This must have been on the 2nd November 1987.
When he arrived he spoke to DI Lewis and was told that his son had admitted
some involvement in the murder. DI Lewis indicated, according to Mr Hall, that
he did not think that Mr Hall's son was involved. The officer suggested that
Mr Hall should ask his son whether he had been involved in the murder. Mr
Hall's evidence was that he went into the room where his son was; found him
handcuffed to a radiator and wearing paper overalls as his clothes had been
taken for testing. Mr Hall said his son looked worn out. Handcuffed where he
was, his son was not able to sit down. His son made complaints as to the way
in which he had been treated. He asked his son had he done it and was told
that he had not. Mr Hall Senior said that he told the Detective Inspector this
and that his view of his son was that he was not capable of being violent or
involved in murder. The Detective Inspector said that he did not believe
Hall's involvement either and told Mr Hall Senior that he could take his son
home.
The appellant's O'Brien and Sherwood were both arrested at 8.30 a.m. on the 1st
November. Sherwood had already made a statement on the 29th October 1987 that
he and Hall had left 1, Maitland Place between 9 and 10 p.m. on the 12th
October and had walked to Fairwater Grove by Way of Sloper Road. There they
had parted. He had called for Richard Yates. He and Richard Yates had
returned to 1, Maitland Place arriving between midnight and 1 a.m.
Following his arrest on the 1st November Sherwood was interviewed between 9.40
a.m. and 1.45 p.m. At the outset he asked for a solicitor which request was
refused. He was asked about his statement which he had, before the interview
began, told a police officer was a lie. Sherwood refused to answer until he
had a solicitor. The police persisted with their questioning, the interviewers
being a DC Runnalls and DC Hodgson. Sherwood later said that during the
relevant period he had stolen a car in Canton near Victoria Park and abandoned
the car in Fairwater Grove East. Initially he said O'Brien and Hall had been
with him when he had taken the car. Later Hall had left them and they had
picked up Richard Yates. It was Richard Yates who had abandoned the car in
Fairwater next morning. Sherwood was interviewed again on the 2nd November and
was bailed at 8.15 p.m. on that day until the 14th November.
O'Brien likewise was detained until 8.15 p.m. on the 2nd November at which time
he was released on Bail. O'Brien had been arrested on the morning of the 1st
November 1987. At the police station at 9.06 a.m. he was asked if he wanted a
solicitor and said that he did not. The Custody Officer gave O'Brien into the
charge of DC Hodgson for interview at 9.15 a.m. The contemporaneous note of
the interview is recorded at starting at 10.40 a.m. and ending at 12.30 p.m.
This is but one example of a long gap between the time at which an appellant
was given in charge of a detective officer for interview by the custody officer
and the record of the interview starting. O'Brien described the route taken by
himself, Sherwood and Hall from 1, Maitland Place to Fairwater Grove as going
by way of Sloper Road and Broad Street. He admitted to taking a car in
Pencisely Crescent that night in company with Sherwood and Richard Yates. He
then said that it was a lie that they had gone to Fairwater by way of Sloper
Road. They went by way of Clare Road. He had lied to avoid being arrested for
taking the car. There was a second interview between 3 p.m. and 3.15 p.m.
O'Brien twice denied going anywhere near Anstee Court on the night of the 12th
October. In a third interview recorded between 6 p.m. and 6.10 p.m. Hall's
account of the movements of the three appellants that night including the fact
that they had been to Anstee Court was put to O'Brien. O'Brien said that they
could have been to Anstee Court but he would have to see the place first to
verify it. He agreed to accompany the police there.
O'Brien accompanied the police in a police vehicle between 6.30 p.m. and 6.47
p.m. The vehicle was driven to Atlas Road and stopped near a gully leading to
the rear car park of Anstee Court. O'Brien said that they had been there on
the 12th October but they had not gone up the gully. They had gone around the
corner, to the other way into the car park. O'Brien then directed the police
to the Leckwith Road entrance to Anstee Court and said that he and Sherwood had
gone in there and Hall had stood in Leckwith Road. O'Brien also pointed out an
old Morris Minor saying that it was more or less in the same place as it had
been on the 12th October. Then O'Brien showed the police the route that the
three appellants had taken from Maitland Place to Fairwater Grove East. Whilst
doing that O'Brien told the police that he was sure he had entered the car park
of Anstee Court that night and that he remembered the Morris Minor.
There was a further interview with O'Brien between 7.45 and 8.50 p.m. At 10.10
p.m. O'Brien was confronted with Hall who told O'Brien "It's no good Michael
you might as well come clean. I told them I was at the entrance and you and
Ellis went in the car park." The reaction of O'Brien recorded by the police
was "You bastard. You'll fucking get it." Hall then said that he had told the
police that the three of them had talked about rolling Mr Saunders. O'Brien
denied attacking Mr Saunders. O'Brien declined to sign the notes recording
that confrontation when they were read over to him.
There were two further interviews of O'Brien on the 2nd November 1987. In the
first of those, when reminded that Hall had admitted talking about rolling
Saunders, O'Brien's reply was "No, all he talked about was getting some easy
money. He never mentioned where." O'Brien insisted that he and Sherwood had
not taken any notice of that statement by Hall because they considered Hall to
be simple minded. In the second interview on that day Sherwood and O'Brien
were seen together. Each had a solicitor present. O'Brien was asked about
taking the police to Anstee Court the previous evening. O'Brien's response was
that he thought he had been there on the 12th October but he was not quite
sure. Sherwood's response was that he had never been to Anstee Court with
either O'Brien or Hall. O'Brien then said that he could not be 100% sure
whether he had been there. He knew at some stage that they were there but he
could not be sure whether that had been in the day. A little later he said
that he could not be sure that the place he had shown the police was the exact
place. He had made a joke about a Morris Minor and he thought the Morris Minor
was in the car park they had been to on the 12th October.
We heard evidence from Mr Simon Mumford, the solicitor who acted for Hall at
his trial. Mr Mumford said that he had seen Hall at 10.40 a.m. on the 2nd
November. At that time Hall wanted to make a statement denying the matter.
He, Mr Mumford, asked DI Lewis and DS Fenton not to interview Hall in his
absence. Those officers had told Mr Mumford that Hall had admitted the
offences and that those admissions would be made available to Mr Mumford
shortly. Mr Mumford says that he advised Hall not to be interviewed again in
his absence. Whilst Hall was on bail between the 2nd and 10th November he did
not contact Mr Mumford.
During that period the police obtained evidence incriminating Sherwood and
O'Brien, in particular the statements of Chick and Helen Morris.
Hall, Sherwood and O'Brien were re-arrested on the 10th November. Sherwood was
arrested at his home 1, Maitland Place at 8.05 a.m. O'Brien was arrested at
his home in Cardiff at 8.30 a.m. Hall was arrested at his parents'home in
Newport at 9.20 a.m. All three when asked by the custody officer indicated
that they wanted legal advice. In each case access to a solicitor was refused.
Revealingly in Hall's case, the decision to refuse access to a solicitor is
recorded at 9.44 a.m. whereas the question to Hall whether he wanted legal
advice is timed at 9.46 a.m. The only reason for the refusal of access to a
lawyer recorded in Hall's Custody Record was "Serious arrestable offence".
Similar entries are to be found in the Custody Records of O'Brien and Sherwood,
except that in Sherwood's case no reason is entered for the refusal of access
to a solicitor, not even the words "Serious arrestable offence" until an entry
at 10.40 a.m., more than two hours after the decision to refuse access to a
solicitor was taken.
In Hall's case access to a solicitor was authorised at 2.25 p.m. By that time
Hall had been interviewed for the 10th time between 10.45 a.m. and 1.52 p.m.
For that interview Hall had been put in charge of DS Cooper at 9.51 a.m. Again
there was a prolonged interval between Hall being handed over for interview by
the custody officer and the interview record beginning. This is, in our view,
of particular significance in the light of what Hall said during this
interview.
The record of this interview begins with Hall saying that he wanted to tell the
truth; that he was not under pressure; and that he was prepared to talk without
a solicitor being present. The interview goes on to say that Hall knew that Mr
Saunders arrived home at about 11 p.m. and usually had his day's takings with
him. He had suggested robbing Mr Saunders. However he changed his mind whilst
on the way to Anstee Court and told Sherwood and O'Brien to forget it.
Sherwood and O'Brien had nevertheless gone on to commit the robbery. He, Hall,
had waited outside the entrance whilst Sherwood and O'Brien had gone into
Anstee Court to check out cars. Hall had seen Mr Saunders's van arrive and had
shouted to the others that Mr Saunders had arrived. Hall had then hidden
himself. About 3 or 4 minutes after the arrival of Mr Saunders, Sherwood and
O'Brien had come running out of Anstee Court and told Hall to run. Sherwood
had a white bag which looked like the takings bag. The three of them had met
up in St John's Square and they had walked from there to Fairwater Grove East
where they had gone their separate ways. Sherwood had given him, Hall,
£70. Hall had then gone on to relate how he had known Mr Saunders's
movements. He also elaborated on his account by saying that Sherwood had said
that Mr Saunders would not give them the money so they had hit him. O'Brien
had said to Sherwood that he should not have hit him. Sherwood had had blood
all over his hands and O'Brien had blood splashed on his hands.
There was an 11th interview on the afternoon of the 10th November at which Mr
Mumford was present. That occurred between 4.30 p.m. and 6.08 p.m. In that
interview, in the presence of his solicitor, Hall confirmed the truth and
accuracy of the notes of the previous interview which were read out to him.
Hall then confirmed that he was not involved in the attack on Mr Saunders but
that Sherwood and O'Brien had been.
There was a 12th interview on the 10th November with no solicitor present. At
that interview Hall spoke of Sherwood having had longer hair on the 12th
October and of having had that hair cut by the time Hall had seen him on the
13th October. There was a final interview at Cardiff prison between DI Lewis
and DS Rogers and Hall on the 24th November 1987 in the presence of Mr
Mumford.
O'Brien was interviewed by the police five times on the 10th November 1987. In
the first interview between 9.06 and 10.46 a.m. no solicitor was present.
O'Brien was reminded of his taking the police to Anstee Court and pointing out
where Hall had stood in Leckwith Road. O'Brien said that he went to Anstee
Court but during the day and not at night. He did not deny taking the police
to Anstee Court but said that he had been confused. The statements made by
Chick and Helen Morris were put to O'Brien. O'Brien denied meeting Chick and
Helen Morris either in Westgate Street or in Cardiff market on Tuesday 13th
October. The second interview took place between 11.22 a.m. and 12.12 p.m. No
solicitor was present. O'Brien was asked whether he had met Chick and Helen
Morris in the centre of Cardiff on either Wednesday the 14th or Thursday the
15th October. O'Brien asserted that he was at work on those days. He, at that
time, had been working on Wednesdays, Thursdays and Fridays. That statement
turned out to be untrue in so far as it concerned Wednesday 14th October. That
led to the 3rd interview between 3.34 p.m. and 4.26 p.m. at which O'Brien's
solicitor was present. The police put to O'Brien that they had established
that he was not at work on Wednesday 14th October. O'Brien claimed to have
told the police that there had been one Wednesday when he had not been at work.
The interviewing officers were the same as the interviewing officers at the 2nd
interview on that day. They maintained that O'Brien had not told them that he
had had a Wednesday away from work. O'Brien went on to deny seeing Chick or
Helen Morris at Cardiff market on that Wednesday. The 4th interview was
between 5.10 p.m. and 5.15 p.m. No solicitor was present. The purpose was to
ask O'Brien if the police could see his bank statements. O'Brien agreed. The
5th and final interview took place between 11.05 and 11.15 p.m. At that
interview DC Thomas in the presence of DI Lewis put to O'Brien the cell
conversation said to have been overheard by DI Lewis. O'Brien's response was
that much of it was lies. He had told Sherwood he was scared, but was scared
of losing his wife and children. He admitted saying that he could not handle
it much longer, but he was referring to the hassle of being questioned by the
police.
There were four interviews with Sherwood on the 10th November. The first
interview is recorded as commencing at 9.50 a.m. and ending at 12.14 p.m. It
is of interest that in the custody record at 10.40 a.m. the reasons why legal
access was denied Sherwood were recorded. They were that access was "likely to
lead to interference with investigation by persons unwittingly passing on
information which could lead to destruction of evidence and physical injury to
witnesses in the case". The contents of the statements of Chick and Helen
Morris were put to Sherwood during these interviews. Sherwood admitted that on
Sunday 11th October he and Chick had left 1, Maitland place and taken refuge on
the railway embankment, Helen Morris having summoned the police because of
Chick's refusal to return her baby to her. They had stayed on the embankment
until the police had departed. Sherwood denied any conversation with Chick
about committing a robbery.
The 2nd interview took place between 5.55 and 7.36 p.m. on that occasion
Sherwood's solicitor was present. In that interview Sherwood was asked further
questions about the statements of Chick and Helen Morris. He was also asked
about O'Brien taking the police to Anstee Court and about the admissions made
by Hall. At one point Sherwood suggested that there was something wrong with
Hall. Sherwood insisted that neither Hall nor O'Brien nor he had gone any
where near Anstee Court that night. There was a third interview, with the
solicitor present between 8.15 and 8.30 p.m. In that interview it was put to
Sherwood that he had his hair cut sometime on Tuesday 13th October. He denied
that and said that he had had his hair cut in September. The final interview
was that between 10.25 p.m. and 10.40 p.m. in which DC Thomas in the presence
of DI Lewis and Mr Grech, Sherwood's solicitor put the conversation which DI
Lewis said he had overheard between O'Brien and Sherwood when they had been
placed in adjoining cells that evening. Sherwood's response was that the only
thing that had been said was that someone was listening and he would catch
O'Brien later.
When he gave evidence, O'Brien told the jury that on the first occasion that he
was arrested on the 1st and 2nd November, on the first day he had been
handcuffed to a radiator, he thought in the inspector's office. The next day
he had been handcuffed to a table. On the second occasion he had been arrested
a police officer had spoken to him about a sexual assault on him by a 59 year
old man some two years earlier. The officer had suggested that O'Brien had
enjoyed being sexually assaulted. O'Brien said that that suggestion hurt him.
O'Brien also claimed that on the first occasion he had been arrested the police
made suggestions to him, off the record, that Sherwood had admitted the
offence. O'Brien sought to explain taking the police to Anstee Court and
pointing out where Hall had stood and saying that the Morris Minor had been
there on the 12th October by saying he was confused. The police had made him
believe that he had been to Anstee Court. The police had told him that both
Hall and Sherwood had said that the three of them had been to Anstee Court.
O'Brien sought to explain his reaction to being confronted by Hall, who was
saying no more than O'Brien had admitted to the police, namely that they had
been to Anstee Court to look for a car to take, by saying that before being
confronted by Hall the police had told him that Hall had said that he and
Sherwood had committed the murder.
The experts' evidence
We heard evidence from four expert witnesses, three called by Mr Fitzgerald and
one called by Mr Elias for the respondents. The first expert witness was
Professor Kopelman a consultant psychiatrist and a chartered psychologist, who
is Professor of Neuropsychiatry at St Thomas's Hospital. Professor Kopelman
found that the appellant Hall had low self-esteem, wanting to prove himself
"one of the gang". In his view Mr Hall fulfilled the DSM-IV criteria for
anti-social personality disorder and the ICD-X criteria for dissocial
personality disorder. In Professor Kopelman's view Hall showed many of the
features of a pathological liar. He presumed that Hall's lying was to bolster
his self esteem as was Hall's delinquent adolescent behaviour. Professor
Kopelman also detected in Hall a tendency to be suggestible or compliant. Low
self-esteem and those tendencies are factors which have been described in
academic writing as promoting false confessions. Professor Kopelman took note
of the evidence of Mr Mumford that Hall had confessed on previous occasions to
having committed offences which he could not have committed and that Hall lived
in a fantasy world. As a consequence, in Professor Kopelman's view Hall was
vulnerable to the effects of a protracted and pressured police interrogation in
the absence of a lawyer or independant adviser. Hall had consequently changed
his story and told stories which were not in his best interest. This pattern
of behaviour, his personality and the circumstances of the police
interrogations suggested to Professor Kopelman that any conviction based upon
Hall's confession alone must be regarded as potentially unsafe.
The second witness we heard was Dr Gudjonsson a reader in forensic psychology
and a consultant clinical psychologist to the Bethlem Royal and Maudsley
Hospitals. Dr Gudjonsson had Hall complete a number of tests or
questionnaires, which are designed to disclose the personality traits of the
person tested and to show, in particular, any abnormalities in the personality
of that person. In addition Dr Gudjonsson assessed Hall whilst Hall was
carrying out these tests and whilst Dr Gudjonsson interviewed him. To Dr
Gudjonsson, Hall came across as being of average intellectual abilities, but
emotionally labile and of anxious temperament. Dr Gudjonsson considered that
Hall's responses to the tests and questionnaires were genuine. Some of the
tests were designed to show whether the person tested was trying to produce
misleading results. In interview Hall denied being involved in the murder of
Mr Saunders and gave these explanations for the admissions he made to the
police. First, he thought he was being clever and "wanted to get one over on
the police". Second, he was extensively pressured to confess by police
officers. Eventually he told the police what he thought they wanted to hear.
Third, he wanted to be noticed and recognised. He had not been bothered by the
prospect of going to prison. Fourth, he did not think of the consequences of
making a false confession either to himself or to his two co-defendants. He
did not think he would be convicted of murder and receive a life sentence.
Dr Gudjonsson concluded that Hall had an abnormally strong predisposition to
criminality. The result of the tests suggested that Hall was more compliant in
his temperament than 98% of the general population. That would indicate that
he is exceptionally eager to please and tries hard to avoid conflict and
confrontation with those in authority. Other test results were consistent with
a diagnosis of personality disorder. In Dr Gudjonsson's view that personality
disorder was of long standing and undoubtedly pre-dated the 1987 police
interviews. The result indicated serious problems in inter-personal
relationships and anti-social personality characteristics, including
impulsivity and acting without properly considering the consequences of his
actions. Persons with those characteristic are susceptible under certain
circumstances to make a false confession during interrogation, especially when
those characteristics are combined with high compliance and anxiety proneness
as they were in the present case. Dr Gudjonsson considered that there were
strong indications that Hall readily tells lies to others as a way of coping
with stressful and demanding situations without any consideration of the long
term consequences to himself or others. Hall's lying was likely to serve his
psychological need of self esteem enhancement and attention seeking. In his
report, Dr Gudjonsson then considered "the unusual aspect of this case" namely
Hall's failure to retract his confession at the earliest opportunity after the
interrogation sessions were terminated. Dr Gudjonsson then wrote:
"On the face of it, perhaps the most logical explanation is that Mr Hall did
not retract the confession for 8 years, because he had been involved in the
offence. How do we know that Mr Hall is not presenting us with just another
convenient lie in order to further his need for notoriety? Simply, we do not
know and this possibility cannot be disregarded completely."
Dr Gudjonsson went on to consider an alternative explanation namely that Hall
had made the false confession and had not retracted it for a number of years
due to his own peculiar needs and underlying psychology. That was a
possibility, which on the basis of Dr Gudjonsson's psychological evaluation had
some merits. He had read the detailed explanation for the delayed retraction
provided by Mrs Tunstall in her report and agreed with her views and arguments.
The test results, the background information concerning Hall, his confessions
and retractions left Dr Gudjonsson with serious reservations about the
reliability of the confessions he made to the police in 1987, his evidence to
the jury and his subsequent confessions to others after his conviction.
The third witness was a consultant psychologist Mrs Tunstall. Mrs Tunstall was
initially brought into the matter by the BBC before the appellants' cases were
submitted to the Commission. When she first interviewed Hall, Hall was still
maintaining that he was guilty of murdering Mr Saunders. Hall performed tests
administered by Mrs Tunstall which she did not immediately score. The
conclusions in her report prepared for the Commission and dated October 1997
are that there was sufficient evidence to suggest that Hall's confessions might
be unreliable. That was the evidence of his personal vulnerabilities; his
inadequate access to legal advice when being interviewed; the stress he may
have been placed under when being interviewed. His perception that he would
not be convicted of murder but at worst would be convicted of some lesser
offence and receive only a short prison sentence for playing a very minor role;
and the notoriety and status that his confession brought to him. Mrs Tunstall
then went on to consider the delay before Hall retracted his confession
following his conviction. In Mrs Tunstall's opinion there was no obvious gain
for Hall in retracting his confession at the time when he did retract it namely
in early 1996. Indeed there were a number of disadvantages. By retracting his
confession he lost the opportunity of being considered for parole. He was
admitting to having lied throughout his trial and consequently to having given
false evidence against his two co-defendants. He was destroying his image as a
"tough guy". Finally he had to face all this becoming known to his family.
Mrs Tunstall considered that the explanations Hall gave for having made what he
now claims to have been a false confession and for having subsequently
maintained that confession for eight years and for his having retracted it when
he did are complex but, in Mrs Tunstall's opinion, comprehensible in
psychological terms. She thought that it was in question whether Hall has the
capacity to have fabricated such material. We would at this point, make the
observation that in saying that there was no obvious gain for Hall in
retracting his confession in early 1996, Mrs Tunstall appears to have
overlooked the threats allegedly received by Hall and his family, Hall's fear
of being rejected by his family because of his admissions that he alone had
killed Mr Saunders reported by the probation officer in her report of the 11th
January 1995, and Hall's dissatisfaction with his treatment in Grendon,
expressed in October 1995. We found Mrs Tunstall to be the least objective and
persuasive of the expert witnesses.
The final expert witness that we heard was Dr Thomas-Peter, a clinical
psychologist and Director of Psychological Services at the Raeside Clinic and
Honorary Senior Research Fellow at the School of Psychology of the University
of Birmingham. Dr Thomas-Peter was of the view that Hall did not fulfil the
criteria for personality disorder. Hall has a history of an unusual upbringing
in which social disadvantage and unusually high motivation to become affiliated
with a peer group are key issues. Dr Thomas-Peter considered Hall to be rather
immature. Hall has a desire to appear socially able and mature which was
revealed in the psychometric examination carried out by this witness and by
Hall's expression of strongly held opinions without thinking through the
issues. Dr Thomas-Peter considered Hall to be
"unusual in as much as he is more concerned about the immediate impression he
gives to others, arising from his strong need for affiliation and acceptance,
than he is about the conventional propriety of telling the truth. As a result
he may be complacent or thoughtless about the consequences of what he says, for
himself or others. This would equally suggest how he might offer a chaotic
account of himself regardless of his innocence or guilt. In the end this
formulation is tentative and based on clinical inference, supported by some,
but not overwhelming evidence. Nevertheless it calls into question his
capacity to provide a truthful statement.
The explanation for maintaining his guilt subsequently has two points. The
first relating to the remand period is the "threat" argument which has yet to
be proved, but would be consistent with Mr Hall's capacity to be fearful of
those who threaten him. Secondly, after being sentenced, it might reasonably
be argued that his abnormal need for affiliation allowed him to neglect further
consideration of his guilt."
Dr Thomas-Peter did not accept that Hall was really compliant to the influence
of others in a typical way. Nevertheless Dr Thomas-Peter accepted that Hall
has a disordered personality as a result of such factors as his unusual
upbringing and social disadvantages. Hall has a tendency to speak without
thinking about the consequences. The witness believed that Hall had an
abnormal degree of impulsivity. There was also Hall's desire to maintain an
impression of being mature and adult without the competence of sustaining that
impression. It would follow that confessions obtained from Hall might be
unreliable due to an abnormality which was shown in the tests for impulsivity
performed by Dr Thomas-Peter and by the witnesses observations of Hall during
clinical examination of him. That was an abnormality on which an expert could
throw light. It was unlikely to be spotted by a lay person, in the view of the
witness.
Dr Thomas-Peter was an impressive witness because when invited by counsel in
cross-examination to go beyond his expertise and stray into the province of
this court, by being asked whether in his view the evidence on which Hall and
his co-defendants had been convicted was potentially unreliable because of the
risk arising from Hall's abnormality, the witness responded by saying "That's a
conclusion that I wouldn't draw". The witness went on to accept that Hall's
evidence to the jury might well represent Hall saying something for its effect
or because of his attention seeking impulsivity rather than because what he was
saying represented the truth. Hall's ability to provide a truthful statement
was in question and that applied to his evidence at his trial, to his initial
admissions, and to his subsequent retractions.
The perception of those acting for Hall at the time of his
trial:
It is clear that the abnormal personality traits identified by the expert
witnesses in their evidence to this court were not appreciated at the time of
the appellants' trial. We have had placed before us two reports concerning
Hall's mental state prior to his trial. The first is that of the prison
medical officer Dr Anna Thomas who in addition to other qualifications was a
member of the Royal College of Psychologists and recognised under s. 12 of the
Mental Health Act, 1983. Dr Thomas reported:
"Hall presented as a young man of average intelligence, who was fully
orientated and aware of the charge against him, and the possible consequences.
He was able to give a good account of himself. He was composed and did not
appear to be emotionally upset. He showed no evidence of suffering from a
clinical depression and showed no evidence of a formal thought disorder,
auditory hallucinations, feelings of passivity or delusional perception."
A little later in her report Dr Thomas stated:
"As Hall began to settle into prison routine he presented as an arrogant,
self-assured young man. However, on several occasions he was threatened by
other inmates, and it is possible that he developed this air of superiority as
a method of coping with his situation."
The second report that we have seen is that of Dr Kellam who was instructed by
Hall's solicitor. Dr Kellam saw Hall at Cardiff prison on two occasions before
writing a report dated the 4th March 1988. In the letter which accompanied the
report Dr Kellam wrote of his report:
"It is fairly brief as I do not find him to be in any way psychiatrically
abnormal. Indeed he has always stressed to me that what he did was reasonable
and he thought it was a risk worth taking. The only problem appears to be that
he does not realise the seriousness of his situation and the risk of his being
convicted of murder."
Dr Kellam explored with Hall Hall's attempt at suicide by taking an overdose of
tablets about two weeks prior to the murder of Mr Saunders. The information Dr
Kellam was given by Hall was that the attempt was due to a quarrel between him
and his girlfriend; that he had taken some valium tablets which belonged to a
friend; that had been done on the spur of the moment and he had had no real
intention of killing himself. In fact, the tablets taken by Hall resulted in
Hall being admitted to hospital as an emergency and being detained in hospital
for three days.
In his brief to counsel Mr Mumford instructed counsel that Hall had obtained
two `O' Levels in Maths and Woodwork and a CSE Grade 1 in English at school.
Hall had made the same representation as to his academic achievements to Dr
Anna Thomas. In fact the statement of Mr Reynolds the Deputy Head Teacher of
Hall's school is to the effect that Hall did not achieve any `O' Level whilst
at school. Mr Mumford's instructions to counsel went on that Mr Hall's pattern
of offending was "very unremarkable". Then there was this passage in the
instructions:
"There have as counsel will note been no incidents of violence in this young
man's behaviour at all and it would be fair to say that those instructing you,
having known him for some years, were frankly amazed that he was accused of
murder since his demeanour is not that of a violent person but that of a rather
happy go lucky individual if a little feckless at times ....... On one occasion
his girlfriend admitted that she was being unfaithful to him and this had an
extraordinarily bad effect on Darren Hall who attempted to commit suicide by
taking valium. This was in the middle of last year. Whilst this does not
demonstrate terrific instability it certainly shows Darren Hall as a somewhat
over emotional person and one whose judgment is not always too sound."
The brief went on to outline an account of the evening of the 12th October
consistent with Hall's admissions to the police and counsel were informed that
Hall was saying that that was "the definitive statement". In that brief
counsel were not informed that Mr Hall had been born with club feet which had
lead to numerous operations and problems for him at school. Nor were they told
that on previous occasions Hall had falsely admitted offences which he could
not have committed. The account of the suicide attempt was underplayed, there
being no mention of Hall's admission to hospital following that attempt. In
those instructions Mr Mumford made no reference to seeing Hall handcuffed to a
radiator at Canton Police Station. Nor did the instructions refer to Hall's
request to Mr Mumford prior to a Magistrates' Court hearing on the 3rd
December 1987, that he should be interviewed by the police again so that he
could retract his admissions. On the other hand, it appears that Mr Mumford
was taken in by Hall's lies concerning his academic achievements at school. If
Mr Mumford had doubts concerning Hall's account of the night of the 12th
October 1987, those doubts were not expressed in his brief to counsel.
It follows that the jury must have been totally unaware of Hall's background,
medical history, suicide attempt and those facets of his personality relevant
to the evidence he gave inculpating himself and his co-defendants in these
offences. Moreover the circumstances in which Hall came to make his admissions
were not explored before the jury, because Hall's instructions to those acting
for him did not require that to be done. Indeed those acting for him would
have wished to rely on his admissions to the police as indicating that Hall was
a person who had spoken the truth; the truth being that he had acted merely as
a lookout whilst the attack on Mr Saunders was being carried out. We accept Mr
Mansfield's submission that tactically it was not open to counsel for Sherwood
or O'Brien to challenge their interviews (as opposed to the alleged cell
conversation) when Hall was not challenging the admissibility of his
interviews.
Detective Superintendent Partridge's report:
The Commission instructed DSupt Partridge to report on the procedures followed
by the South Wales Police in investigating the death of Mr Saunders and in
particular in interviewing the three appellants. DSupt Partridge's report to
the Commission points to the gaps in the custody and other records relating to
the three appellants whilst in police custody. His investigation elicited
evidence of a practice at that time at Canton Police Station of handcuffing
persons detained to radiators and other objects. In his report Mr Partridge
stressed the lack of justification for the refusal to allow the appellants
access to legal representatives especially when they were arrested for a second
time on the 10th November 1987. We agree with the Superintendent that none of
the reasons recorded for declining legal representation on that occasions bears
examination. We are satisfied that the decision to refuse the appellants
access to lawyers were "blanket decision" as conceded by Mr Elias, and that in
1987 at Canton Police Station, if not elsewhere in the South Wales Police area,
it was the practice to withhold access to solicitors until after the police had
had the opportunity to interview detainees. Mr Partridge's report points to
failures to review the detention of the appellants properly. The entries in
the custody records coupled with the statements of the police officer charged
with the obligation of reviewing the custody of the appellants indicates that
the reviewing officers may well have been told on more than one occasion that a
review could not be carried out at the proper time because that detainee was
being interviewed when the interview records show that that was not so. We are
satisfied that there were clear breaches of the 1984 Act and the Codes made
pursuant to that Act.
The vice of the practices followed at Canton Police Station at that time are
that it becomes impossible for a court to be sure that admissions have been
fairly and properly obtained, or, when the admissions are made by vulnerable
persons, that the admissions represent the truth. In this case, it cannot be
seen that in the substantial periods of time unaccounted for in the custody and
interview records, the appellants were not being interviewed "off the record",
as O'Brien claimed in his evidence to the jury happened to him, or that Hall
was not having his "ego massaged" as was suggested by Mr Mumford when he gave
evidence. Nor can this court be sure that admissions were not made by Hall
because of the pressure of being interviewed several times whilst being held
"incommunicado", and because he believed that the admissions he was making
represented the playing by him of a minor role in the robbery and murder of Mr
Saunders which would lead to a short prison sentence. It is not the fact that
the codes were breached that is important; it is the reality of what occurred
or may have occurred. It is for the respondents to satisfy us so that we are
sure that the confessions by Hall and the admissions by O'Brien of having been
to Anstee Court were not obtained in consequence of anything said or done which
was likely in the circumstances existing at the time to render unreliable that
confession, see s. 76(2) of the Police and Criminal Evidence Act, 1984. The
appellants were interviewed without their solicitors being present. The exact
whereabouts of the appellants prior to several of the important interviews are
unknown because those whereabouts were not recorded. Implementation of the
codes not only protects detainees it also assists the police in that where
admissions are made, it becomes highly unlikely that those admissions will not
be given in evidence and accepted by the jury and the court or that such
admissions could be undermined on appeal.
In reaching these conclusions we are not making any findings of deliberate
misconduct against any police officer, nor could we do so, not being a court
which makes findings of fact. Even were we to be a fact finding court, we
could not make any such finding in the absence of hearing any evidence from
those detained and interviewed or from the police officers involved in the
interviewing process.
The role of this Court:
We turn to the role of this court in this appeal. This court has to decide
whether these convictions are safe or unsafe. To do that we must apply the
substantive criminal law that was in force at the time of the trial in 1988.
However, we judge the conduct of the investigation of the case, the conduct of
the trial, the directions to the jury and the reliability of the evidence on
which the jury acted in accordance with the standards that this court now
applies, c.f.
R -v- Mills [1998] AC 382 per Lord Hutton at page 397 C-G
and
R -v- Bentley not reported but decided on the 30th July 1998 by this
court presided over by the Lord Chief Justice.
This approach is important in this case in two areas. First, when considering
the practices then apparently being followed by the South Wales Police, at
least at Canton Police Station. Mr Elias submitted that those practices
conformed with the letter of the 1984 Act and the then codes and with police
standing orders then in force. We do not accept that submission, but even were
it to be correct, the practices followed and the reliability of evidence thus
obtained are to be judged by present standards,. The second area is that of
the reliability of admissions made by persons who are vulnerable and because of
such vulnerability liable to make confessions which are false. The
understanding of this phenomenon today is much greater than it was in 1987 and
1988. Tests to ascertain the personality traits which are associated with
those who may make false confessions have been developed since that time. As
this court observed in
R -v- Roberts unreported but decided on the 19th
March 1998:
"With the recognition of the potential utility (and so the admissibility) of
such evidence came the consequent recognition first, that the courts might need
help in the form of expert medical or scientific evidence to identify the
vulnerable, and second, that for the vulnerable the requirements of the Judge's
Rules or PACE were necessary protections, not bureaucratic formalities."
The respondents' Submissions:
The respondents' submissions are that the appellants were represented at their
trial by competent counsel and solicitors. The appellants could have
challenged the admissibility and reliability of their recorded answers in
interview, but chose not to do so. The appellants should not be permitted to
do so now. It has to be remembered that even now the appellants do not
challenge the police evidence of what the appellants said in interview, except
for the alleged cell conversation.
The respondents argued that expert evidence should not be received by this
court, although that was not a submission pursued with any great vigour or
persistence before us.
The respondents' principal submission was that despite the short comings in the
practices adopted at Canton Police Station, and accepting the expert evidence
concerning the personality of Hall, examination of the totality of the evidence
points decisively to the appellants being the persons responsible for these
offences. Each expert witness had accepted that persons with Hall's abnormal
personality traits could tell the truth. No expert could say that Hall's
admissions or evidence that he had planned the robbery and acted as lookout
were lies. An overview of the evidence should persuade us that Hall had in
fact, when in the witness box, told the truth.
Admissibility Of The Medical Evidence Heard By The Court
Admissible evidence from psychiatrists or psychologists is not confined to
evidence of "a personality disorder so severe as properly to be characterised
as a mental disorder"; see
R -v- Long unreported but decided on the 13th
July 1995 by this court presided over by Lord Taylor, Chief Justice, and
R
-v- Roberts [above]. The evidence which we heard related to matters which
would be outside the experience of a jury. It was evidence which was not
adduced at the appellant's trial which, in our view, it is necessary in the
interests of justice that we should receive. In reaching that view, we have
taken account of the four matters set out in s. 23 (2) of the Criminal Appeal
Act, 1968 as amended by the Criminal Appeal Act 1995. In our judgment the
evidence of the four expert witnesses is capable of belief; it may afford a
ground for allowing these appeals; there is a reasonable explanation for the
failure to adduce the evidence in those proceedings. Moreover, one issue
indeed the principal issue in this appeal is the reliability of the evidence
and admissions of the Appellant Hall, and this evidence would have been
admissible under the law as it now stands at the appellant's trial.
We are conscious of and have borne in mind those authorities which are to the
effect that a defendant must be required as a matter of the administration of
justice to present his case at trial and not be permitted, one case having
failed, to run a different and inconsistent case in an appellate court based
upon different evidence; that, in the words of McCowan LJ in
R -v-
Richardson cited by Hobhouse LJ in
R -v- Arnold [1996] 31 BMLR 24 at
38:
"The court is extremely reluctant to lend any assistance to that sort of
purpose. Indeed it could only be in exceptional cases that it would do so."
This is, in our judgment, such an exceptional case, because of the convictions
of Sherwood and O'Brien. It has to be remembered that it was their case at
trial that Hall's admissions and evidence were false. They have maintained
that consistently since that time. We have been informed by Mr Elias that the
prison records relating to Sherwood and O'Brien have been seen and show that
they have consistently maintained their innocence over the 11 or more years
that they have been in jail. Those acting for Sherwood and O'Brien were not in
a position to call the evidence which this court has heard concerning the
personality traits of Hall. Any expert instructed on their behalf would not
have had access to Hall's medical history and could not have interviewed Hall.
Any evidence by such an expert would have been based on the flimsiest
foundation. In the light of the reports of Dr Anna Thomas and Dr Kellam and
taking account that the knowledge of the psychology of interrogation and the
phenomenon of false confessions was developing in 1987 and 1988, it is
unsurprising that those acting for Hall did not seek such evidence. Finally,
in 1988 it was generally thought that such evidence could only be admitted if
it showed a recognised mental illness, this being the interpretation placed on
R -v- Turner [1975] QB 834. Consequently we admit this evidence and
take it into account when deciding these appeals.
The Importance of Hall's Admissions And Evidence
The admissions and evidence of Hall were the hub of the case heard by the jury.
Without those admissions and without that evidence, although it cannot be said
that there would have been no case for the prosecution to present against
Sherwood or O'Brien, that case would have been very different from that on
which they were convicted by the jury. In his summing-up, the judge
observed:
"Hall is, in the end, perhaps the main witness against his co-defendants."
The judge set out early in his summing-up, the three possible motives that had
been suggested for Hall making false admissions and giving false evidence.
They were first, to minimise his own part. Second, to protect others, Third,
that he had been paid to say what he had said and to admit what he had
admitted. As Mr Mansfield pointed out in his submissions on behalf of O'Brien
there was little if any evidence to form a basis for the second and third
explanations and the first was wafer thin.
We are satisfied that Hall's evidence played a central and crucial part in the
appellants' trial and that if we cannot be sure that his evidence could be
acted on safely by the jury, these appeals must be allowed.
Witness Retractions:
We have been informed that a number of the prosecution witnesses have retracted
their evidence against Sherwood and O'Brien. The submission made on behalf of
the appellants is that we should take account of those retractions. Whilst we
do not ignore them completely, we are not impressed by them nor do we attach
much weight to them. We are aware that certain of the witnesses who have
retracted their statements declined to meet the representative of the
Commission. We know little or nothing concerning the circumstances of those
retractions. In the light of our conclusions on the two main grounds of appeal
we do not consider it necessary to make any further observation on this aspect
of the case.
The reliability of Evidence other than Hall's evidence identified by the
Judge in Summing-up as capable of Supporting Hall's Evidence
Some of the remaining evidence which on the face of it was strongly
incriminating of Sherwood and O'Brien, namely that of Chick and Helen Morris
was, by the time those witnesses left the witness box substantially undermined
by cross-examination. Chick had during his evidence withdrawn much, if not
all, of his evidence incriminating Sherwood and O'Brien. Chick's evidence of
the existence of a second shovel which Sherwood had taken with him when leaving
the scene of the murder and was keeping at the water tower on the railway
embankment is, in our view, difficult to credit. Both Chick and Helen Morris
had made statements which had made no mention of meeting Sherwood and O'Brien
in the centre of Cardiff and of Chick having the conversations with Sherwood
and O'Brien of which they gave evidence to the jury. Both Chick and Helen
Morris spoke of being subjected to pressure by the police. Chick clearly had
the prospect of advantages through co-operating with the police when it came to
his own court appearances for offences committed by him.
With regard to the evidence of Bradley, the inquiries of DSupt Partridge have
shown that there may well have been an occasion at the end of 1987 when Bradley
visited Chapman at Cardiff prison on the same day as Sherwood's sister visited
Sherwood and that both Chapman and Mandy Percigo could have been in the
visiting room at the same time. Moreover investigation showed that Bradley's
account of the numbers of the cubicles occupied by Chapman and Sherwood namely
36 and 37 was possible whereas Sherwood's account that he was in a cubicle No
56 would not have been possible, there being no such cubicle. Nevertheless,
having taken account of these matters we find it remarkable that Sherwood's
sister should wait until the end of December before asking her brother if he
had been involved in the murder of Mr Saunders, and that she should ask that
question in the presence of Bradley.
The evidence of Paul Lewis of borrowing a jacket from Sherwood which was later
found to have traces of blood upon it reduces in force in the light of the fact
that numerous items of clothing which were taken from the 42 suspects arrested
during the police investigation were found to have traces of blood on them.
The evidence of Catriona Morgan must have had greater significance for the
jury. Nevertheless in her case she had made four statements to the police in
which she had made no mention of Anstee Court or to any admission by Sherwood
that he had been to Anstee Court to steal a car.
The remaining witnesses called by the prosecution namely Forde, Smith and
Butcher would, in our view have been of little or no assistance to the
prosecution case against Sherwood or O'Brien.
That leaves the evidence of DI Lewis of the overheard cell conversation. When
DI Lewis gave evidence at the appellants' trial there was little scope for
cross-examination to undermine his evidence that he had overheard an
incriminating cell conversation other than the fact that the entry in the
custody record of that conversation being overheard started with the time 20.43
whereas it must have been entered between 20.50 and 21.50. This apparent
discrepancy was readily explained by DI Lewis saying that the 20.43 was the
time of the conversation that he overheard and not the time of the entry in the
custody record.
We have had drawn to our attention the trial of
Griffiths & Others
at Cardiff in September 1983, a trial known as the Welsh Bomb Trial. In that
case a number of people including Robert Griffiths and a Nicholas Hodges stood
trial on various charges relating to attacks with explosive devices on thirteen
targets in England and Wales between March 1980 and March 1982. The cases
against a number of the defendants in that trial and in particular the cases
against Hodges and Griffiths depended on admissions said to have been obtained
from them during interview at Rumney Police Station Cardiff. The note taker
who recorded those interviews was DI Lewis, then a DS. The accuracy of the
recording of those interviews and the veracity of the interviewing officers
were in issue at that trial. It was also the defendants' case that they had
been subjected to oppression whilst in police custody. Griffiths and Hodges
were acquitted of the charges against them. Because of the number of incidents
and the breadth of the inquiry, the West Midlands Serious Crime Squad were
involved in the investigation of these offences.
There was a significant occurrence during the course of the proceedings namely,
that a typed copy of hand-written notes prepared for the committal proceedings
contained words which did not appear in the typed version of that hand-written
statement prepared for trial. The typed copy prepared after the committal,
which replaced the pre-committal typed version of the statement accurately
represented the manuscript. Mr Elias, who was junior counsel for the
prosecution at that trial, conceded that it was clear at the trial that there
had been some "monkey business", to use his words, in relation to the typed
copies of the manuscript notes. It was his recollection that it was thought
that the improper copying of the manuscript notes was attributable to members
of the West Midland Serious Crime Squad, a group of police officers who have
since become notorious, and was not the result of any action by a South Wales
police officer. Be that as it may, it is difficult to see how additional words
could be inserted into a typed version of notes which were apparently made by
DS Lewis, without his having been aware of that happening. In any event we
accept the submission made by counsel for the appellants that DI Lewis would
now be liable to be cross-examined about his part in the Welsh Bomb trial and
about how it could have occurred that additional words appeared in a typed copy
of notes made by him. Such cross-examination would come within the categories
of material which are relevant and admissible to be put to police officers when
their credibility is in issue see
R -v- Edwards [1991] Cr App R 48 at pp
58-59. Moreover, DI Lewis would be liable to be cross-examined on the
handcuffing of O'Brien and Hall to radiators at Canton Police Station, and
about the refusal to allow the appellants to consult their solicitors and the
implausibility of the reasons recorded for that refusal in the appellants'
custody records.
We cannot and do not say that the evidence of DI Lewis of the conversation he
says he heard between Sherwood and O'Brien must be false. We are satisfied
that cross-examination of DI Lewis in the light of the information now
available would be much more effective than the cross-examination he faced at
the appellants' trial and the chances of the jury being unsure as to whether he
was speaking the truth or not would now be much greater. As a postscript we
add that we are not much impressed by the point that DI Lewis's note of the
conversation is not now available. DI Lewis said that he had recorded the
conversation on the back of an expenses claim form. The conversation was put
to Sherwood and to O'Brien within a very short time of the conversation having
occurred. It was put to them in the presence of their solicitors who no doubt
had the opportunity to examine the claim form on which the record of the
conversation was written. That record was produced to defence counsel at the
appellant's trial and examined by them. The document was not made an exhibit.
It is in our view precisely the kind of document that is easily mislaid. More
disquieting in our judgment is the disappearance of the original notes
recording the interviews with Hall prior to 1994 and the disappearance of the
original of the notes recording the interviews with Sherwood and O'Brien
between 1994 and 1998.
Finally in the case of O'Brien, his interview admitting that he had been with
Sherwood and Hall at Anstee Court on the night of the 12th October to take a
car, and evidence of his accompanying police officers to Anstee Court and
pointing out where he and Sherwood had entered the car park at Anstee Court,
and where Hall had stood in Leckwith Road, would now be inadmissible as
evidence against him because of the breaches of the Police and Criminal
Evidence Act and the Codes made pursuant to that Act which have now been
established. There were fundamental breaches of PACE in respect of O'Brien the
gravest of which were the handcuffing of him to a radiator and to a desk. The
custody record, particularly in respect of the first series of interviews,
showed that there were periods of hours when he was not in the custody of the
custody officer and was not being interviewed. O'Brien when he gave evidence
claimed that he had been interviewed "off the record". Those gaps in his
custody record and in the records of his interviews mean that the respondents
cannot make us sure that "off the record" interviewing of O'Brien did not take
place.
The reliability of Hall's Evidence
Despite the differences between the views of the experts we heard, we are
satisfied that Hall is and was a person having traits in his personality of the
kind associated with those who make false confessions. Dr Gudjonsson gave
evidence that Hall showed a very high level of compliance, to an extreme degree
found in only about 2% of the population. All the experts were agreed that
Hall was a man with low self esteem but a high degree of impulsivity. The
presence of these traits did not mean that the admissions Hall made and the
evidence he gave were untrue; they rendered those admissions and evidence
potentially unreliable.
We are satisfied that had a jury heard the medical evidence that we have heard
and had evidence of the unsatisfactory way in which the interviews at the
Canton Police Station, and particularly those of Hall, were conducted, a jury
would probably have taken a different view of the reliability of Hall's
assertions. That conclusion, in our judgment, is sufficient to determine these
appeals and to lead us to the conclusion that these convictions were unsafe and
should be quashed.
In the light of the very full and helpful submissions that we have had from
counsel, and in particular from Mr Fitzgerald we add this postscript. At one
time the law was thought to be that expert evidence of the kind we have heard
could only be admitted if that evidence showed a recognised mental illness,
this being the interpretation placed upon
R -v- Turner [1975] QB 834.
It has now been accepted that expert evidence is admissible if it demonstrates
some form of abnormality relevant to the reliability of a defendant's
confession or evidence, see for example
R -v- Ward [1993] 96 Crim App R
1. In the case of
Ward at page 66 this court said:
"But we conclude on the authorities as they now stand that the expert evidence
of a psychiatrist or a psychologist may properly be admitted if it is to the
effect that a defendant is suffering from a condition not properly described as
mental illness, but from a personality disorder so severe as properly to be
categorised as mental disorder."
Despite what was said there in the case of
Ward, the test cannot, in our
judgment, be whether the abnormality fits into some recognised category, such
as anti-social personality disorder. That is neither necessary nor sufficient.
It is not necessary, because as
R -v- Roberts showed, the real criterion
must simply be whether the abnormal disorder might render the confession or
evidence unreliable. It is not sufficient because an anti social personality
disorder does not necessarily mean that the defendant is a compulsive liar or
fantasist or that his confession or evidence might be unreliable.
The members of this Court, as were all counsel who addressed us, are conscious
of the need to have defined limits for the case in which expert evidence of the
kind we have heard may be used. First the abnormal disorder must not only be
of the type which might render a confession or evidence unreliable, there must
also be a very significant deviation from the norm shown. In this case the
abnormalities identified by the experts were of a very high level, Hall's test
results falling within the top few percentiles of the population. Second,
there should be a history pre-dating the making of the admissions or the giving
of evidence which is not based solely on a history given by the subject, which
points to or explains the abnormality or abnormalities.
If such evidence is admitted, the jury must be directed that they are not
obliged to accept such evidence. They should consider it if they think it
right to do so, as throwing light on the personality of the defendant and
bringing to their attention aspects of that personality of which they might
otherwise have been unaware.
The evidence, both factual and expert which has been placed before us has
satisfied us that this is a case in which such evidence would now be
admissible, and that a jury having heard such evidence may well have reached
different verdicts.
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