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		Neutral Citation Number: [2002] EWCA Crim 1942
		Case No: 200003731S3, 200003732S3, 200003733S 3& 200101346S3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

31 July 2002

B e f o r e :

LORD JUSTICE MANTELL
MR JUSTICE HOLMAN
and
MR JUSTICE GIBBS
____________________

Between:

	REGINA
	- and -
	ROBERT JOHN MAYNARD REGINALD JOHN DUDLEY KATHLEEN BAILEY CHARLES EDWIN CLARKE

____________________

Mr P O’Connor QC & Mr C H Blaxland QC appeared on behalf of Maynard
Mr M Mansfield QC & Mr C H Blaxland QC appeared on behalf of Dudley
Mr J Goldberg QC& Mr C H Blaxland QC appeared on behalf of Bailey
Mr J Goldberg QC & Miss H Curtis appeared on behalf of Clarke
Mr V B Temple QC, Miss S A Whitehouse & Miss A Foulkes
appeared on behalf of the Crown
Hearing dates : 10th,11th, 12th , 15th & 16th July.
____________________

HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
____________________

Lord Justice Mantell:

On 16^th July 2002 we allowed all the appeals and quashed the convictions of Robert John Maynard, Reginald John Dudley, Kathleen Bailey and Charles Edwin Clarke. We said that we would give our reasons later. They are as follows.

Introduction

On 17^th June 1977 at the Central Criminal Court, following a trial which had lasted over seven months before Swanwick J and a jury, Dudley, Maynard, Bailey (nee Dudley) and Clarke (now deceased) were convicted as follows:

Dudley: murder of William Moseley;

murder of Michael Cornwall.

Maynard: murder of William Moseley;

murder of Michael Cornwall.

Bailey: conspiracy to cause grievous bodily harm to Michael Cornwall.

Clarke: conspiracy to cause grievous bodily harm to Michael Moseley;

conspiracy to cause grievous bodily harm to William Cornwall.

Ronald Fright and George Spencer were acquitted of the murder of Moseley, and other offences connected with his abduction. Ernest Maynard was acquitted of conspiracy to cause grievous bodily harm to and of falsely imprisoning Moseley. Other counts involving Dudley and Maynard were ordered to lie on the file.

All four of those convicted were granted leave to appeal, against their convictions. The grounds included an attack on the summing-up, a complaint about the excessive length of the trial, the judge’s refusal to sever the indictment, inconsistent verdicts, lack of corroboration for the oral confessions, the admission in evidence of photographic identifications by a witness Sharon Saggs, and, in the case of Bailey, that the case should have been withdrawn from the jury. On 2^nd April 1979 the Full Court dismissed all the appeals.

Thereafter a number of representations, petitions and complaints were made by and on behalf of the unsuccessful appellants, principally Dudley and Maynard. These consisted of attacks on the police evidence and upon the reliability of the witness Anthony Wild, to whom Dudley, Maynard and Clarke were said to have made incriminating remarks whilst on remand in prison. A report was obtained which sought to cast doubt on the authenticity of certain oral admissions. On 1^st July 1992 the appellants’ solicitors wrote to the Home Secretary asking him to refer the convictions back to the court under section 17 of the Criminal Appeal Act 1968. On 24^th January 1994 the Home Secretary notified the appellants of his decision not to refer. The appellants sought leave to apply for judicial review the Home Secretary’s decision, but withdrew the application on 19^th October 1994.

Nevertheless, all four continued to press for review. Wild appeared on television to say that his evidence had been untrue and said the same thing to newspaper reporters. On 31^st March 1997 the case was transferred to the Criminal Cases Review Commission (“the CCRC”). On 1^st May 1997 Saunders and Co., solicitors, for the appellants, wrote asking for expedition. In July 1998 the solicitors made representations to the CCRC which included:

(a) a request that the CCRC arrange for scientific testing of the police notebooks, or of photocopies if that was all that was available.

(b) representations based on Wild’s retractions.

As a result the CCRC instructed a leading forensic document examiner, Robert Anthony Hardcastle, to examine the speeds of writing of the photocopy hand-written records of a number of disputed interviews. On 8^th September 1999 he produced a detailed written report, which has since been followed by supplementary reports and addenda. We will consider the effect of Dr Hardcastle’s evidence later in this judgment.

On 25^th May 1999 the Crown Prosecution Service agreed in response to a request from the CCRC that “in the interests of investigating a possible miscarriage of justice” it was prepared to give Wild immunity from prosecution for perjury. On 11^th April 2000 the CCRC took a statement from Wild in which he claimed that his evidence against the appellants had been fabricated in collusion with the police.

On 27^th June 2000 the CCRC referred the cases of Dudley, Maynard and Bailey to this court under section 9 of the Criminal Appeal Act 1995. On 27^th February 2001 Clarke’s case was similarly referred. The conclusion of the CCRC in each case was that:

“The Commission has had regard to section 23(2) of the Criminal Appeal Act 1968 and believes that the Court of Appeal will consider it necessary and expedient in the interests of justice to admit the evidence of Dr. Hardcastle and of Anthony Wild. Further, the Commission is of the view that Dr. Hardcastle’s evidence taken together with the statement of Anthony Wild to the Commission gives rise to the real possibility that the Court of Appeal will find the convictions unsafe.”

Dudley has been released from custody under the conditions of his sentence of life imprisonment. Maynard was granted bail pending appeal on 8^th November 2000. Bailey received a sentence of two years imprisonment suspended for two years, and has not been in custody. Clarke, who served a total sentence of four years for the two offences of which he was convicted, died in 1995. His widow, Florence Clarke applied to this court for leave to be approved under section 44A of the Criminal Appeal Act 1968 as a proper person to take proceedings on behalf of her late husband, and to appeal against his convictions. Leave was granted.

Between them the appellants raise seven grounds of appeal. Two of the grounds repeat and elaborate the matters upon which the CCRC references are based. The remaining five are separate grounds, some of which were considered by the CCRC but not regarded as justifying a reference to this court; and all of which appear to have been potentially available to the appellants at the time of the original appeals, albeit that in many respects procedures have altered since 1979. In summary, the grounds are:

(i) the unreliability of the main interview with Dudley in the light of the fresh evidence from Dr Hardcastle; and what has been called the “knock-on effect” of this point on the reliability of all the appellants’ interviews;

(ii) the retractions by Wild, and his unreliability, not only in the light of the retractions but also of other fresh evidence about him;

(iii) the unreliability of the identification of Dudley and Maynard by Sharon Saggs;

(iv) the terms in which the judge directed the jury to approach the conflict between the police and the defence evidence over the oral admissions;

(v) in relation to Clarke, the admission in evidence of his conduct in an earlier unconnected incident, and its significance in indicating a propensity to violent revenge;

(vi) in relation to Bailey and Clarke, the refusal to allow a solicitor to be present during the police interviews;

(vii) a direction to the jury that they could continue to deliberate in their hotel.

The factual background

(This outline is based principally on the CCRC’s Statement of Reasons, the Outline of the case for the Crown, the summing-up, and the notes, largely hand-written, of relevant evidence at trial.) It would not be unfair to observe that most of the principal personalities (other than police officers) concerned in the events which gave rise to the charges were either convicted criminals, or members of the families or friends of convicted criminals. Many of them had been involved in very serious crime. The appellant Kathleen Bailey is the daughter of Dudley. Ernest Maynard (an acquitted co-accused) is the appellant Maynard’s brother.

On 18^th September 1974 the victim of the first murder, Moseley, was released from prison. Whilst serving his sentence he had received visits from Mrs. Elaine Fright, a woman with whom he had been conducting an affair for several years. Her husband, Ronald Fright (an acquitted co-accused of the appellants) had himself been in prison for part of this period. Moseley’s affair with Mrs. Fright was known to several of his friends.

The Crown’s case was that Maynard knew of the affair and told the witness O’Donnell about it, though this was disputed by Maynard. The Crown said that the friendship between Maynard and Moseley (which is agreed to have been close) was damaged by that knowledge. Further, it was said that by this time animosity developed towards Moseley on the part of both Maynard and Dudley as a result of Moseley putting it about that they were both informers; and Dudley had another reason to resent Moseley, in that several years earlier he had come off second best in a public house brawl.

After his release, Moseley returned to his flat. Maynard had been a keyholder. On 18^th September Moseley was in the company of Maynard and two other mutual friends, and there was some evidence of ill feeling between Moseley and Maynard (denied by Maynard). One of the friends, the witness Luxford, agreed that Moseley could use his Rover car. On Thursday 26^th September, Moseley borrowed the car for use that evening, saying that “he had some business tonight”. There was evidence in Fright’s case that he and Moseley had arranged to meet that evening, but that Fright had been late for the meeting. When Fright arrived at the appointed place, Moseley was not there. Fright waited but Moseley did not appear. Subsequently, Maynard was to tell another friend, Arnold, that he knew where the meeting place had been, and indeed actually pointed it out. The evidence of Moseley last being seen alive was on the afternoon of that Thursday, when he called briefly at Luxford’s garage, before leaving in Luxford’s Rover.

That same afternoon, at 3.50 pm Dudley and Bailey arrived in England by hovercraft on the last leg of a journey from Spain. Luxford’s car was not returned by Moseley the following day as arranged. It was reported missing. The police searched the area around Luxford’s premises the same day (27^th September) and the day following but could not find it. Maynard later claimed to have seen it in the area on 28^th September. It was eventually found on 30^th September outside a nearby public house, undamaged but with one of the doors unlocked.

On 3^rd October Maynard, his brother Ernest, and other friends went to a funeral. Maynard was heard to make a comment to the effect that Moseley would not be seen alive again. He later admitted that he had said something like that. In the next few days Maynard paid visits to Moseley’s flat with Arnold and Mrs Fright, taking possession of money and property hidden under a carpet together with a small key. It was after one of these visits that Maynard pointed out the place where Fright and Moseley had agreed to meet on the evening of 26^th September.

It is important to note that the events described up to this point were not and are not put forward by the Crown as capable of amounting to sufficient proof that Maynard had murdered Moseley, let alone that Dudley had been involved. At their highest they create suspicion, and give an indication of possible motives.

Between 5^th and 15^th October five parts of Moseley’s body were washed up at separate locations on the Thames foreshore in Essex. The head and hands were not found at that time, with the result that for a while identification remained uncertain, although the remains were suspected to be those of Moseley. The first post-mortem examination gave very little insight into what had happened to Moseley immediately before, and after his death, apart from the fact that he had probably died as a result of a head injury. A later post-mortem revealed that he had been tied up and tortured before being killed by severe violence to the head; and that his body had been dismembered when he was either dead or (possibly) unconscious.

In October 1974 a murder enquiry was commenced. Police officers visited Moseley’s flat in the company of his estranged wife, and also Maynard, who told the police about his sighting of Moseley’s car on the 28^th September. Michael Cornwall was seen by police. On 18^th October 1974 he had been released from Hull Prison after a sentence of nine years’ imprisonment for robbery. When told of Moseley’s disappearance and suspected death he seemed very upset. Soon afterwards he let it be known that he intended to find out for himself who was responsible. In January 1995 Dudley, then in Pentonville Prison, was also seen by police. He indicated that he might be prepared to help them with information about Moseley, especially if given bail. He made comments suggesting that Moseley had got what he deserved for interfering with another man’s wife.

Cornwall had a regular girlfriend called Gloria Hogg. But whilst maintaining that relationship, he also had affairs with other women, including Kathleen Bailey. However from about January 1975 onwards he based himself with the Saggs family in their Islington flat. Sharon Saggs, then fifteen years old, lived there with her mother and three brothers, her father being in prison at that time. There was evidence that between January and July, Dudley and Cornwall met on several occasions, and that what was initially a reasonably friendly relationship deteriorated to the extent that Dudley was openly expressing his dislike of Cornwall, for which several reasons were advanced by the Crown, including accusations by Cornwall that Dudley was a police informer, and Cornwall’s association with his daughter and co-accused, Bailey.

Early one morning in July 1975 Cornwall left the Saggs’ flat in a hurry, never to return. From evidence later given by Sharon Saggs, he seemed to be expecting that someone would be coming for him. However, neither then, nor for some months afterwards, did she mention to anyone, including her mother, that shortly after Cornwall’s departure, two men had actually arrived at the flat, looking for him.

After leaving the Saggs’ flat, the evidence showed that Cornwall went to live with Gloria Hogg. He stayed with her until the 5^th August, when he left saying that he would be back in two days’ time. He did not return. She became worried. Towards the end of August she saw Maynard in a public house and asked him if he knew where Cornwall was, but he said he did not. It subsequently emerged that Cornwall had been seen on 22^nd August in London by two witnesses, one of whom spoke to him briefly. This was the last day on which any witness saw Cornwall alive. It is not known where he had been living since leaving Hogg.

On 30^th August someone walking in woodland in Hertfordshire found a place where turf had been cut back and earth disturbed. He did not notice anyone around, and made no further investigation. Subsequent events showed that he had come across Cornwall’s grave – either before or after the body had been placed in it. On 7^th September, a family out blackberrying came upon the same spot. This time, they looked further, and found a body which not long afterwards was identified as that of Cornwall. It was wrapped in a bedspread. Post-mortem and scientific examinations revealed that he had been shot in the head at close range. There was evidence that he had been violently struck or kicked in the back before death; and also signs that he had been tied up. Death had occurred between one and three weeks beforehand: in view of the evidence of the last sighting, it is likely that he had been killed between 22^nd August and 1^st September.

On 10^th September, thinking that Bailey was Cornwall’s girlfriend, police officers went to her home and told her of Cornwall’s death. She denied that she was his girlfriend, though later by implication she admitted an association. She said that she had last seen Cornwall two months earlier and might be able to say why he had been killed. On the 19^th September Dudley and Maynard were seen by police in a public house. Both men were angry, Dudley because of the police having spoken to his daughter, and Maynard about a letter to a local newspaper appearing to connect him to Cornwall’s murder. Subsequently, items found in a garage adjoining Bailey’s home were identified as belonging to Cornwall.

On 16^th December 1975 Sharon Saggs was taken with her mother to Loughton Police Station, the centre of the murder investigations. Her father, still serving a prison sentence, was brought to the station to be with them. She then revealed for the first time that on the morning of Cornwall’s departure, two men had come to the flat looking for him. Then, according to her in her parents’ presence, she was shown photographs which included photographs of Dudley and Maynard. She picked them out as the two visitors to her flat. There was some disagreement between Sharon Saggs and her mother on the one hand, and the police on the other, about the details of what happened. Detective Superintendent Harvey was to say that photographs were first shown in January 1996 in the presence of police officers and her mother, but not her father.

The police took a conscious decision not to arrange an identification parade. The whole process has been attacked as unsatisfactory as by today’s standards it undoubtedly was. Even by the standards of the time, there were grounds for criticism. The witness’s mother and perhaps also her father were present. One photograph, that of Dudley, was larger than the others. There were other reasons to be critical.

In January 1976 in a co-ordinated operation, the appellants and their co-accused were arrested and interviewed. Several of them, in particular Dudley, were said to have made incriminating remarks after arrest and before formal interview. The Crown have helpfully prepared a schedule of all relevant interviews which took place with the appellants and their co-accused after Commander Wickstead took control of the interviewing procedure. This sets out in relation to each interview the officers present, the time the defendant concerned was taken from his or her cell for interview, the recorded times the interview started and finished, and the time of return to cell.

The Crown’s case in brief, supported by the police evidence, was that at Commander Wickstead’s behest a particular method of recording the interviews was adopted, with the object of putting the accuracy of the record beyond doubt. Tape-recording, whilst available, was said to lack reliability, since the quality could be indistinct, and tapes could be tampered with. Instead, red hardbacked books were used. At each interview, a note-taker was appointed who made a full contemporaneous record in the book of every word spoken. At the conclusion of the interview, the note-taker signed the record and the interviewing officer immediately checked it for accuracy, as shortly afterwards did the other officer or officers present. In that way, so it was said, the integrity of the record could be ensured. In no case, however, was the record checked or signed by any defendant. In the case of each appellant, and indeed of the co-accused, there were replies alleged to have been given in interview capable, to a greater or lesser extent, of amounting to admissions of the offences charged.

Each Defendant’s case was that the replies relied upon as admissions were never given. The hardbacked books were never used during the interviews. Such notes as were taken were made on loose sheets of paper. The notes in the hardbacked books consisted in part of answers which the appellants had actually given, but with damaging replies and comments added – and, by necessary implication, the record had been fabricated at some time after the interviews.

The appellants were kept in custody, and for a period of a few days at the end of February and the beginning of March 1996 the male appellants found themselves in Brixton Prison with Anthony Wild. Wild had a serious criminal record, and by his own account was anxious to ingratiate himself with the police for his own purposes, which included a favourable outcome to current criminal proceedings against him. Thus in 1976 he was willing to, and did, provide the police with a good deal of information. His evidence, denied by the three appellants concerned, is that he had a number of contacts and conversations with Dudley, Maynard and Clarke. He said that whilst the three men were in his company damaging admissions were made which related to both murders. Dudley boasted of taking a head in a bag to show to the licensee of a public house in Brighton, in which he had an interest, and leaving it there. Maynard and Dudley described in graphic terms their involvement in the shooting of a man who was then buried in a forest. Wild gave the police information about these events over a period of time; but despite his general enthusiasm for providing information, did not begin to do so on this topic until October 1976, some six months later after the alleged cell confessions.

The Trial.

For the purposes of this appeal we need not describe in detail the events at trial at that time, nor indeed the summing up. The whole exercise lasted over seven months, the longest murder trial, we were told, ever to have taken place in this country. The summing-up took twelve days, and was described in the earlier appeal as “a masterpiece of clarity”. The judge was also praised, we think rightly, for his patience “in the face of so much that even the most patient and tolerant of judges might have found it difficult to endure without irritation, to use no stronger word”. The evidence given substantially followed the pattern outlined already in this judgment, although of course there was more which for the purposes of this appeal we have not found it necessary to rehearse.

It is, however, necessary to examine in somewhat more detail the evidence surrounding the first interview with Dudley on the afternoon of 23^rd January 1976. Detective Chief Superintendent Harvey of the Hertfordshire Police was in charge of the interview. Detective Chief Inspector Lloyd-Hughes was the note-taker. Also present were Detective Sergeants Wragg and McCammont, the last three officers being from the Metropolitan Police. It was said by the Crown to have been an additional assurance of the integrity of the interviews that there were officers involved in them from different forces and, within the Metropolitan Police, from different squads – albeit that there was evidence that most if not all of the officers were already known to one another.

The evidence of police officers was that Dudley arrived at the police station at 3:45 that afternoon after a car journey during which he had made a number of incriminating remarks. According to the evidence of Wragg at trial, he and McCammont left Dudley in the charge office with Constable Binstead, who had also been in the car, and went to tell Wickstead of the conversation in the car. They then went to the canteen and wrote up their notes of that conversation. At about 4:10, on instructions, they collected Dudley from the cells in order to take him to interview. According to Wragg, they waited with him in the corridor outside Wickstead’s office, expecting that it would be Wickstead who would conduct the interview. They waited about a quarter of an hour. They were then told to take Dudley in for interview; but it was Harvey who walked in and took charge.

The record of the interview in the hardbacked book, advanced as contemporaneous and verbatim by the Crown at trial, contains the precise time of 4:28 as the start of the interview. The caution is timed as having been administered at 4:29. The finishing time of the interview is recorded as 5:18. Dudley is recorded as having been taken back to his cell at 5:20. At trial, Harvey who had conducted the interview, and Lloyd-Hughes who claimed to have written the contemporary record in the hardbacked book, each gave oral evidence that that interview began at 4:28 pm and ended at 5:18 pm – a total of 50 minutes.

There are, or were, two other potentially relevant records. One was the desk sergeant’s day-to-day record, which we are told was available at trial, and was disclosed to the defence. It has since been lost or destroyed; but no doubt had it been thought important, either the Crown or the appellants would have referred to it at trial. The other record was a “Squad Occurrence Book” which we are told was ordered by Commander Wickstead to be kept specifically for the investigation into this case. For some unexplained reason this was not disclosed either before or at the original trial or appeal and indeed has only very recently come to light. On 23^rd January 1976 it records Dudley as having been taken from his cell for interview at 4:05 pm (recorded as “4.5”) until 5:20 pm.

In this appeal the Crown rely on that entry of 4:5 pm in the recently disclosed squad occurrence book as an indication that the recorded time in the hardbacked book for the start of the interview, and the caution, must have been or may have been in error; and that the interview is likely to have begun at 4:08 rather than 4:28. However, the entry is in substance consistent with Wragg’s evidence about what occurred after Dudley was taken from his cell and, in particular, waiting for about a quarter of an hour in the corridor outside Wickstead’s room. It lends no support for the proposition that the interview is likely to have begun earlier. On the contrary, the surrounding evidence is all of a piece in confining the period available for that interview to approximately that within the times recorded in the hardbacked book. Those are times specifically given as correct by some of the officers concerned in their sworn evidence at trial, which, by virtue of their signatures on the record, their committal statements and their presence in court, the other officers could hardly do other than support.

As to other evidence, it should be noted that Wild gave his evidence in an aggressive and volatile manner, with an apparent eagerness to hint at, or at times elaborate on, matters highly prejudicial to the defence, whether they were admissible or not. In doing so, he also made good in evidence the prison cell admissions which he alleged had been made to him by the three male appellants.

The three male appellants gave evidence in accordance with their case as already summarised. Each specifically denied that hardbacked books had been used and specifically denied all the alleged incriminating answers. Bailey did not give evidence, but a case similar to that of the other appellants was put on her behalf.

In the course of his summing up, the judge emphasised the centrality of the disputed admissions to the Crown’s case. He said on the first day, (transcript p.8 F-G),

“In the case of every accused and every charge in this case I think it is fair to say that without the evidence of the alleged oral confessions there would not be evidence on which the Crown could ask you to convict. Where this is so I tell you that does not mean that you cannot convict. It does mean that you must be very, very careful before you do. I am going into more detail, but let me say at once that you must be careful to be sure firstly, that the evidence of what was said is truthful evidence, and accurate…”.

There was no other evidence suggested by the judge to be potentially probative in itself of guilt. On Sharon Saggs’ evidence the judge counselled great caution, and directed the jury that they should treat it at its highest as evidence supportive of the admissions. As to Wild’s evidence, the judge warned the jury to approach it with caution, because of his unusual personality, his criminal record and his obvious motives for invention and elaboration. He told the jury that nevertheless, if they accepted his evidence, it was important, since it was of clear confessions of guilt. He said that if the jury accepted it, it provided support for the police evidence of admissions, and vice-versa.

The only further matters which it may be helpful to mention are these. There was nothing by way of detail in the alleged admissions to the police or to Wild, with one possible exception, which would imply that only a person involved in the offences themselves would have known of them. The exception relates to the alleged boasting by Dudley to Wild about taking the head to Brighton. At the time of that alleged conversation, the head of Moseley had not been discovered. In fact, it was not discovered until a short time after the trial, when it was found in the lavatory of a public house in Islington, in a condition consistent with it having been recently removed from a freezer. Whilst there could be an explanation for this combination of circumstances consistent with Wild having fabricated his evidence on the point, it may be said that the discovery of the head after the trial provides some retrospective support for his credibility. It remains the fact, however, that there was, in the trial judge’s view, no other evidence, whether direct or circumstantial, scientific or otherwise, apart from the admissions, capable of amounting to a case against any of the appellants. On day 1 of the summing up, at p.11G he said,

“In no case here, none of the cases against any of the accused, is there any physical evidence directly connecting any of them with any of the crimes charged. There is no evidence of where or exactly when either Moseley or Cornwall died. There are no eyewitness of any crime; there was no forensic evidence, no finger prints, no blood stained clothing, no murder weapon to connect any of the accused with either killing, and no written and signed confessions. The evidence against the accused consists largely, and in some cases almost wholly, of alleged oral confessions to police and others. So you must consider – such questions by themselves would not be sufficient – motive and opportunity, relationships, previous and subsequent conduct and see whether in each case they support and confirm the alleged confession or make it less likely to have been made or to have been intended as a confession.”

The Present Appeal.

As previously mentioned, the reference is based upon two particular concerns of the Commission, namely the evidence of Dr Hardcastle to the effect that the first police interview of Dudley on 23 January 1976 could not have been recorded contemporaneously in the time and manner claimed; and the fact that since the date of the trial and first appeal Wild has more than once stated that his evidence had been untruthful. Those two matters have a prominent place in the appeal. We have already noted that there are other grounds relied upon but in the event, we have not found it necessary to consider them.

So we turn first to the ground of appeal, common to all appellants, which asserts that the prosecution case is seriously undermined by fresh evidence showing that Dudley’s first police interview could not have been contemporaneously recorded in the time alleged. That being the case, it must follow that the four police officers who gave evidence that it had been so recorded must have been lying and that it could well be true (as had been put in cross-examination) that the record of interview presented to the jury was a version written up afterwards and contained admissions which had never been made. Further it is said on behalf of Dudley and all the other appellants that if chicanery of that kind had taken place who is to say that other members of the team of investigating officers had not resorted to the same dishonest technique in respect of Dudley’s second interview and the interviews of the other defendants.

Dr Hardcastle is vastly experienced and in recent years has made a particular study of writing speeds. The CCRC invited Dr Hardcastle to examine the records of all the interviews of all the original defendants with a view to forming an opinion to whether each interview could have been contemporaneously recorded in the time stated. In all cases save one he found that they could. The exception was the first interview of Dudley. On the Crown’s evidence this was recorded contemporaneously in a hardbacked book on 23^rd January 1976 between 4:28 p.m. and 5:18 p.m., that is to say over a period of between 49 and 51 minutes depending on how many seconds were rounded up or down when recording the first and last minutes. Dr Hardcastle considered that to be a physical impossibility. As the record contains 11,325 properly formed characters, it would mean that the writer would have had to achieve a speed of between 222 characters per minute in 49 minutes and 231 characters per minute in 51. The fastest speed recorded by Dr Hardcastle in controlled experiments has been 158 characters per minute. The fastest speed he has ever encountered has been below 170 characters per minute; and the fastest speed which he regards as possible of achievement by anyone, allowing a considerable margin, is 190 characters per minute. 222-231 characters per minute is far in excess of the possible.

Dr Hardcastle’s opinion, received by us in evidence, has not been contradicted or challenged. Rather, Mr Temple QC for the Crown has taken the stance that the conclusion was as self evident at trial as a matter of common sense, as it is now on the basis of the expert evidence. So he argues that it is reasonable to assume that the jury, having accepted the police officers as truthful, must have concluded that there had been a mistake in recording the times, probably because 4:28 had been written down in error for 4:08. It is pointed out that at the trial Mr West QC, for Dudley, both in cross-examination and in his speech had raised the issue of speed although he never suggested that the feat was a physical impossibility.

On the other side it is said on behalf of all appellants that if the point is and was so self-evident as a matter of common sense, it is curious that the concession was not made at trial or referred to by the judge in his comprehensive summing up; and curious that the police and the Crown during the trial (apparently) never considered whether the recorded time of 4:28 was accurate or produced the Squad Occurrence Book. Also it is difficult to understand why more recently the Crown have thought it necessary to obtain expert evidence of their own if it is all a matter of common sense. Further, even if the jury had disregarded the judge’s direction to try the case on the evidence, and had proceeded to speculate about a possible error in the recorded time, as suggested to us by Mr Temple but never suggested to the jury at trial, this would have involved disregarding the evidence of Detective Sergeant Wragg about the 15 minute wait in the corridor and would have still resulted in an unusually fast writing speed of 162 characters per minute over the 70 minutes available.

The senior officer present and responsible for conducting the first Dudley interview was Detective Chief Superintendent Harvey. The note taker was Detective Chief Inspector Lloyd-Jones. Also present as observers and presumably also for security reasons were Detective Sergeants Wragg and McCammont. Detective Chief Inspector Lloyd-Hughes has died. The other officers have been interviewed but no application has been made to call any one of them to give evidence. We cannot emphasise strongly enough that in this appeal no police officer is on trial and the court is not concerned to reach any finding about the conduct of any police officer who has featured in the case. If it is possible, as the appellants suggest, that the evidence of Dr Hardcastle demonstrates that some police officers must have lied on the issue of contemporaneous recording, it is no less possible, as the Crown suggest, that the evidence demonstrates that the police made a simple error in recording the time, and mistakenly but honestly repeated that error in their evidence. Deciding between those alternatives would require hearing all the relevant witnesses and is the exclusive territory of the jury into which we must not and do not enter. We are simply concerned with the safety or otherwise of the convictions.

Section 2(1) of the Criminal Appeal Act 1968, as amended, now provides that

“…the Court of Appeal …shall allow an appeal against conviction if they think that the conviction is unsafe…”.

As Lord Hobhouse of Woodborough said in R v. Pendleton [2001] UK HL 66; [2002] 1 WLR 72, at paragraph 38,

“…it is not right to attempt to look into the minds of members of the jury. Their deliberations are secret and their precise and detailed reasoning is not known. For an appellate court to speculate, whether hypothetically or actually, is not appropriate. It is for the Court of Appeal to answer the direct and simply stated question: Do we think the conviction was unsafe?”

But as Lord Hobhouse also pointed out, at paragraph 35, to answer that question we do have to make an assessment:

“…appeals are not to be allowed unless the Court of Appeal has itself made the requisite assessment and has itself concluded that the conviction is unsafe”.

And at paragraph 36,

“Unless and until the Court of Appeal has been persuaded that the verdict of the jury is unsafe, the verdict must stand. Nothing less will suffice to displace it. A mere risk that it is unsafe does not suffice: the appellant has to discharge a burden of persuasion and persuade the Court of Appeal that the conviction is unsafe.”

In our approach to the fresh evidence of Dr Hardcastle in this case we are guided by and apply the words of Lord Bingham of Cornhill in Pendleton at paragraph 19:

“… the Court of Appeal has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”

In our view, the argument of Mr Temple that the jury must have concluded that the police had made a mistake in recording the times, requires us to “look into the minds” of the jury and to speculate as to their reasoning in a way that is clearly forbidden by Pendleton. We ask ourselves instead whether the evidence of Dr Hardcastle, if given at trial, might reasonably have affected the decision of the trial jury to convict.

It is clear that at trial the Crown based its case to a large extent on the so-called admissions made by the several defendants either informally or in the course of recorded interviews.

The trial judge himself clearly placed considerable importance on the so-called confessions. We have already quoted the passage on the first day of the summing up at p.8 F-G in which he said,

“…without the evidence of the alleged oral confessions there would not be evidence on which the Crown could ask you to convict…”.

On the same day, at p.10B he said,

“…where the case for the Crown rests wholly or mainly on alleged oral confessions,… you must not convict unless you are sure both of what was said and what was meant…”.

At p.14 he said,

“Since so much depends on what was said or not said in interviews, your decision about this aspect is, I would have thought, fundamental to the case.”

It seems to us, therefore, that the integrity of the interviews was central to the prosecution case to which the use of the hardbacked books was itself central. If the jury had cause to think that the record in the hardbacked books on any one occasion had been fabricated, it is at least likely that they would come to doubt the integrity of all of the interviews regardless of whether they had been conducted by the same officers who had been involved in the first Dudley interview. We have not understood Mr Temple to submit that the verdicts may be regarded as safe by reason of other evidence in the case, although, but for the terms in which the learned judge had left the matter to the jury, he might have done so in the case of Maynard. Certainly he has not relied on the evidence of Anthony Wild (to which we must return) as being in itself sufficient to support any one of these convictions.

In the case of Dudley himself, we think there can be only one answer to the question: might the evidence of Dr Hardcastle reasonably have affected the decision of the jury to convict? This was a piece of independent, expert evidence of unquestioned integrity. It demonstrates that the police evidence as to some aspects of his crucial first interview was necessarily wrong and unreliable, for either the times were incorrectly recorded or the notes were not contemporaneous. Arguably it goes to the core of the single most damaging and cogent evidence against Dudley. We are in no doubt that the evidence might reasonably have affected the decision of the jury to convict Dudley of either or both murders. His convictions are unsafe and we have allowed his appeal and quashed them.

The position of the remaining appellants is different. The evidence of Dr Hardcastle is to the effect that each of their interviews could indeed have been recorded verbatim and contemporaneously within the recorded durations of the interviews, in most cases with ease. Further, although there was some overlap between the police officers who conducted the first Dudley interview and those with Maynard (Wragg and McCammont being common to both), entirely different officers (namely Detective Superintendent Morris and Detective Inspector Newton, both of the Hertfordshire Constabulary) interviewed Kathleen Bailey and Charles Clarke. Even if (as to which we again stress we make no finding) all the officers who first interviewed Dudley had lied or been willing to lie, it of course does not follow that other officers had done so in relation to quite separate interviews.

It is clear from several passages in the summing up, however, that the integrity of the hardbacked notebook system of contemporaneous recording was fundamental to all the interviews and to the case against each of the appellants. At day 1, p.13A the judge said:

“…what is alleged by those who attack the honesty of the police - …is really, is it not, a wholesale campaign of distortion and invention, involving lies about whether, and if so, how interviews were recorded, deliberate invention of incriminating answers or distortion of innocent remarks to make them sound sinister… . What is more, it is suggested that there has been willing and enthusiastic compliance by all ranks from Commander and Chief Superintendent down[wards]…if you think it really may be so …it would undermine the whole prosecution case…”.

There are other passages to similar effect on day 1, p.14G and day 6 at p.3G.

Our attention has been drawn to passages in several authorities in which this court has considered the effect on a particular conviction when it is later shown that a relevant police officer or officers has or may have, lied in relation to a co-defendant or, indeed, in otherwise unrelated cases. These authorities include R v. Armstrong and Others, 19 October 1989, R v. Paris, Abdullah and Miller (1993) 97 Cr. App. R. 99, and R v. Martin and Others, 12 July 2000. We do not think, however, that our consideration of what has been called “the knock-on effect” in the present case requires or depends upon the application of authority. Rather, our task is to consider the same question – might the evidence of Dr Hardcastle reasonably have affected the decision of the jury to convict? – in relation to each appellant in the factual context of the present case. In the case of each of them, we think it reasonably might have done. Although the precise circumstances of their respective interviews differed; although there was arguably rather more evidence against Maynard independent of the interviews than there was against the others; although Kathleen Bailey did not herself give evidence, but merely attacked the integrity of her interview through the cross-examination of her counsel, the fact remains that the integrity of the hardbacked book system was central to the case against every appellant. If the jury might have been affected by the evidence of Dr Hardcastle in relation to any one interview, then that reasonably might have – and indeed probably would have – caused them to look more cautiously at the integrity of every other interview. In our view all the convictions of all the other appellants, Maynard, Clarke and Bailey, are inevitably also unsafe and for those reasons we have allowed their appeals.

We turn briefly to the position regarding Anthony Wild. Over the years the courts have learned to regard post-trial retractions by persons of Wild’s character with a degree of cynicism. Wild and his like are particularly vulnerable to pressure both inside and outside of prison and both before and after trial. Even so, the judge had directed the jury that they should treat Wild’s evidence with caution and suggested, in terms, that they should only act upon it insofar as it had been supported by other evidence in the case. He particularly mentioned the police interviews. Lacking support from the police evidence it follows that even without the later retractions Wild’s evidence standing alone would have been insufficient to support the convictions. We only add that had it not been possible to impugn the interview evidence it is unlikely that Wild’s volte-face of itself would have caused us to question the safety of any of these convictions.