England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL Tuesday 15th January 2002

15th January 2002
1. LORD JUSTICE PILL: On 15th February 1974 in the Crown Court at Nottingham before Nield J and a jury Stephen Lesley Downing, then 17 years old and of good character, was convicted of murder. He was sentenced to be detained during Her Majesty's pleasure. The conviction has been referred to the court by the Criminal Cases Review Commission ("CCRC") under the Criminal Appeal Act 1995.
2. On 25th October 1974 application for leave to appeal against conviction and for leave to call a witness was made. The only ground for the application for leave to appeal was that a 16 year old girl had, after the trial, made a statement in which she claimed to have seen the victim alive at a time shortly after the appellant was alleged to have murdered her. The court heard evidence from the girl, but concluded that it was not credible and refused the application for leave to appeal against conviction.
3. The deceased, Mrs Wendy Sewell, was an office worker with the Forestry Commission in Bakewell, Derbyshire. She received numerous blows to the head when present in the cemetery in Bakewell during her lunch break on 12th September 1973. She sustained fractures to the skull. There was evidence that there must have been at least seven or eight violent blows with an implement such as a pickaxe helve or handle.
4. The appellant worked for the local authority in the cemetery and lived nearby. It was he who, at about 1.20 p.m., reported to the cemetery attendant, Mr Wilfred Walker, that a woman had been attacked in the cemetery. To Mr Walker the appellant seemed very calm. The two men went into the cemetery and saw Mrs Sewell. Other employees, and later the police, arrived at the scene. Mrs Sewell was naked up to the thighs with blood on her face, hair, hands and lower stomach. Her top clothing had been pulled above her breasts. There was evidence that after help arrived she tried to wipe blood from her eyes with the back of her hand and tried unsuccessfully to stand up. A splintered and blood stained pickaxe helve was found nearby.
5. On her way to hospital in an ambulance Mrs Sewell was still alive, very restless and throwing her right arm out wildly. She tried to push away people who were attempting to care for her. Mrs Sewell died in hospital two days later as a result of the injuries sustained in the cemetery.
6. When he was observed by Mr Walker and the others the appellant's clothing was blood stained, especially his trousers and his boots.
7. The prosecution case depended first, of course, on the presence of the appellant near the scene at about the material time and the fact that the pickaxe helve was normally stored in the unconsecrated chapel at the cemetery used as a store house and to which the appellant had access in the course of his work.
8. The evidence essentially relied on consisted of the oral and written admissions which the appellant made later on 12th September. Secondly, reliance was placed upon scientific evidence about the blood staining of his clothes which was claimed to show a close relationship between the appellant's trousers and boots and the injuries inflicted by the pickaxe helve. The contact with Mrs Sewell which the appellant admitted would not explain, the prosecution submitted, all the blood staining on the appellant's trousers and boots.
9. The prosecution called a forensic scientist, Mr Lee. In his written report Mr Lee had said that the blood staining on the appellant's clothing:

"... might well be described as a textbook example of the pattern of blood staining which might be expected on the clothing of the assailant in a wounding such as that which Wendy Sewell suffered."

10. The court has admitted further scientific evidence. Reports have been obtained from Mr Stockdale on behalf of the appellant and from Mr Wain, an independent forensic scientist instructed by the CCRC.
11. At trial a defence scientist, Mr Moss, was present, but, for reasons which are not obvious, was not called. His evidence was certainly a good deal less favourable to the prosecution than was that of Mr Lee.
12. Both scientists who have now reported are critical of the opinions of Mr Lee as expressed in his report and in his oral evidence. Some of the criticisms are made on the basis of developments in the science since 1973. The result is that Mr Stockdale states in his report that the blood staining is equally consistent with the appellant's account in evidence that he had contact with the deceased only after she had been seriously injured, as it was with his guilt of the offence.
13. The prosecution have not sought leave to cross-examine Mr Stockdale. Mr Wain in his report stated that the blood staining did give some support for the prosecution case, but described that support as weak. Mr Julian Bevan QC, who appears for the Crown on the hearing of this appeal, has told the court that he has met Mr Wain in consultation and discussed the matter further with him. Mr Bevan tells the court that as a result of that further discussion Mr Wain's opinion now is the same as that of Mr Stockdale, that the scientific evidence is as consistent with innocence as with guilt.
14. It is clear that the evidence of blood staining cannot now be relied on in support of a submission that the conviction was safe. Thus the first attack on its safety succeeds.
15. The second attack is on the basis that the confessions made by the appellant on 12th September 1973 cannot in the circumstances be regarded as reliable. Before turning to those submissions it is necessary to set out in rather more detail the evidence which was given at the trial.
16. We have referred to those who saw Mrs Sewell in the cemetery. There was evidence that the appellant made a number of comments, some of which, arguably, supported the case against him. Mr Walker stated that the appellant said, "I don't want to lose my job. I like it". Mr Dawson, one of the council employees present, said that there was nothing unusual about the appellant when the seriously injured woman was found. Mr Fox, another counsel employee, said that while they were present the woman moved, whereupon the appellant said, "There looks like being an identification parade". He also was alleged by witnesses to have said, "It was not me, honest. I only found her. She was down there," and "I have been using that pickaxe today but it was not me". The appellant later denied making most of the arguably damaging statements.
17. PC Ball was the first police officer on the scene. He tried first aid on Mrs Sewell, who resisted violently with her arm. The appellant said, "It isn't me, honest, it isn't. Don't blame me, I have not done it". He was plainly blood stained. He said, "Look, these came when I turned her over". The appellant later said that he had not used the pickaxe handle on that day. Constable Ball thought that the appellant was in an excited state.
18. The officer in charge of the investigation, Divisional Detective Inspector Younger, attended the scene at 2.30 p.m.. He questioned the appellant who was then taken to the police station. Before the jury was evidence of what happened at the police station and of some of the interviews which took place. The appellant was not cautioned. He did not have the benefit of legal advice. Eventually he was cautioned late in the evening. Having been cautioned at 10.45 p.m., he admitted to Constable Charlesworth: "I did do it but I don't know what made me do it". Detective Inspector Younger then was called back into the room. The appellant repeated his admission. He then made a written statement, having been reminded of his caution. We will refer to the events at the police station in more detail.
19. In his evidence to the court the appellant denied the offence. He denied some of the statements to witnesses to which we have referred. He described the interviews which he underwent. He said that he was treated with consideration and provided with tea. He said he had done it when it was not true because he was tired, hungry, and his back hurt. He was only just able to keep awake. Detective Inspector Younger put his hand on the appellant's shoulder twice to shake him. He had had trouble with his back for two years after a fall at school. He signed the statement but it was untrue. He made it because he believed the police would question him all night if necessary and he did not realise that the woman was badly hurt.
20. He also said in evidence that when he first found the seriously injured woman he had touched between her breasts to see if her heart was beating and he put his hands between her legs and put his finger up her vagina. She started to move. She raised herself up into a sitting position, shook her head violently and put her hands behind her head.
21. We add in passing that one of the reasons for the scientists considering that the blood staining is not evidence of guilt is that no sufficient, or any, consideration was given to the possibility that it was in the course of her movements of her shaking her head and of her exhalation in the presence of the appellant that the blood may have reached his clothing.
22. Since 1974 considerable efforts have been made by the appellant's father, Mr Ray Downing, and by Mr Don Hale, former editor of the Matlock Mercury, to have the case reopened. Prior to the 1995 Act, submissions were made to the Home Secretary. These were based principally upon a belief in the possibility that evidence existed of another person being the assailant, a matter which was canvassed at the trial.
23. Understandably the CCRC have investigated those matters. Their conclusion is stated at page 20 of their report, paragraph 11.7.1.

"The possibility of other assailants was substantially canvassed at the trial. Despite many assertions by Mr Downing's supporters that there are several other possible suspects, none of the Commission's enquiries has given rise to sufficient new evidence to justify its requiring the appointment of an Investigating Officer under section 19 of the Criminal Appeals Appeal Act 1995."

24. Acknowledgment is made of the help given by Mr Ray Downing and Mr Don Hale. Particulars are given of the matters investigated, including the naming of names, which led to the conclusion of the Commission just expressed.
25. The issue now in the forefront of the appellant's case, the admissibility and reliability of the confessions, has been explored and analysed fully only since the case was referred to the CCRC in 1997. Their admissibility was not challenged at the trial. In his summing-up the judge referred to certain questions, put on behalf of the appellant, to which we will refer in a moment. The judge noted, however, that counsel on behalf of the defence:

"... made the comment in so many words, I allege no impropriety on the part of the police."

26. The appellant was represented at the trial by leading counsel of great experience, Mr Dennis Barker QC, and by junior counsel Mr Warren, now Mr Warren QC. No point on the admissibility of the confessions was raised on the application for permission to appeal to this court in 1974. Mr Dennis Barker had given an opinion about appeal, in the course of which he stated:

"The Crown's case rested in large measure on oral admissions and a written statement made by the accused to the police. No objection could have been or was made to the admissibility of this evidence. Mr Downing could not, and did not, give any real reason why he made such admissions."

27. Giving the judgment of this court in 1974, Orr LJ confirmed:

"No suggestion was made that there had been any improper behaviour on the part of the police."

28. Mr Fitzgerald QC, on behalf of the appellant, has helpfully taken the court, carefully and in some detail, through the events at the police station on 12th September. He submits that the appellant should have been cautioned as soon as 3.15 p.m. on 12th September. He submits that in the absence of a caution at the appropriate time and having regard to the extreme youth of the appellant and the fact that he is only of low average intelligence, together with the fact that he was not told of his right to obtain legal advice, together with the fact that he was in effect kept in custody for approaching eight hours before the confession was made, it should not have been admitted at the trial. Moreover whether it was admitted or not there is a serious question as to the reliability of the confessions made.
29. It is noteworthy that there is no continuous account of what happened during the time between 2.30 and 10.30 p.m.. The statement of Constable Charlesworth begins with an interview only in the evening. There is a statement from Detective Sergeant Wilson, but only of a brief conversation which took place, he says, at 7.10 p.m.. There is a reference to a short interview with Detective Chief Inspector Younger between 3.15 p.m. and 3.30 p.m.. The practice at that time, Mr Bevan submits, was not to keep the continuous record which is now required.
30. In the course of their enquiries, the CCRC have obtained statements from the two senior officers involved in the investigation, Divisional Detective Inspector Younger and Detective Chief Inspector Johnson, who were both stationed at Buxton. Unfortunately Constable Charlesworth is dead so it has not been possible to seek his assistance. Mr Younger states that his recollection is that Constable Charlesworth was with Mr Downing most, if not all, of the time. Mr Johnson states (statement of 1st August 2000):

"I am quite sure that when he was taken from the cemetery to the police station his status was that of a witness assisting with police enquiries. Clearly at some stage his status changed and I cannot say when. I believe it is fair to say that from a very early point Stephen Downing was suspected of attacking the woman."

31. Dealing with the basis on which the appellant was present at the police station, Mr Johnson states:

"The answer to that is that had he wanted to leave the police station he would not been allowed to do so. Looking back now, my belief is that he was under arrest whilst at the police station. Had Stephen Downing been arrested, I would have expected him to have been informed of his rights which would have included access to legal advice."

32. We have been referred to the Judges' Rules which were in operation at the material time. They, of course, are now replaced by procedures laid down under the Police and Criminal Evidence 1984. The relevant rules were the 1964 Rules. It is provided that the rules do not affect the principles:

"(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so."

33. It cannot be suggested that any such hindrance was present in this case.
34. In relation to statements from people interviewed, it is provided:

"(e) That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer that of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression.

The principle set out in paragraph (e) above is overriding and applicable in all cases. Within that principle the following rules are put forward as a guide to police officers conducting investigations. Non-conformity with these rules may render answers and statements liable to be excluded from evidence in subsequent criminal proceedings."

35. Rule II provides:

"As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.

The caution shall be in the following terms:-

'You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence'."

36. Mr Fitzgerald submits that there has been no relevant alteration in the procedures to be followed. That point is relevant because it is common ground that the court should, when assessing the fairness of events before 1984, have regard to the now applicable procedures for ensuring the fairness of treatment of suspects in police stations. He does, however, now adopt the submission of Mr Bevan, that the court should have regard to section 76(2)(b) of the Police and Criminal Evidence 1984. The subsection provides:

"If in any proceedings where the prosecution proposes to give in evidence a confession made an accused person, it is represented to the court that the confession was or may been obtained (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except insofar as the prosecution prove to the court beyond reasonable doubt that the confession, notwithstanding that it may be true, was not obtained as aforesaid."

37. Mr Fitzgerald and Mr Bevan concur in the view that the concept of "oppression", to which we have referred in the Judges' Rules, is thereby in effect extended to cover a more general consideration of the circumstances in which a confession was made. Mr Fitzgerald submits that what the officers did well before 10.30 p.m. on 12th September amounted to interrogation and not mere enquiries. He relies, of course, upon the statements of the two senior officers to which we have referred.
38. The appellant suggests that he was visited for a short time by his father in the course of the day and before the confessions were made and that in the presence of his father a request for legal assistance was made and was refused. Mr Ray Downing does not in his recent statement support that suggestion and it is denied by the police. That is an issue of fact which, for reasons to which we will refer, it would not be appropriate for this court to attempt to resolve. It cannot, however, be suggested in support of this conviction that this 17 year old was offered legal assistance, or told of his right to obtain it. That, in our judgment, is a serious breach of the treatment which should have been afforded to him.
39. Mr Bevan, for the Crown, accepts that there were substantial and significant breaches of the Judges' rules on the afternoon and evening of 12th September. He does not accept the 3.15 p.m. time for the cautioning advocated by Mr Fitzgerald, but submits that by 7.10 p.m. there was a strong case for cautioning, and by 8.45 p.m. that case was overwhelming. In selecting those times Mr Bevan has regard, in the first instance, to the presence by then of conflicting statements by the appellant on a relevant point and, in the second to the scientific witness's then provisional view that the blood staining was not consistent with the limited contact with the injured woman which the appellant accepted.
40. The record of interviews placed before the court, Mr Bevan accepts, was sparse. He has underlined the isolation to which the appellant was subjected. He had no friends or family and was not told of his right to legal advice. We regard such isolation of a 17 year old as being a very significant factor in this case.
41. We turn to what happened at the trial with regard to the evidence of confession. No criticism has been or is made of the summing-up of the judge or of the judge's conduct of the trial. The judge was entitled to have regard, when considering the way the defence case was being put, to the great experience and expertise of leading counsel appearing for the appellant. Mr Barker QC has died. Junior counsel, Mr Warren, and the solicitor, were approached by the CCRC but have no recollection of the trial such as would assist the court in its present task.
42. The admissibility of the confession, on the basis of the Judges' Rules with their reference to oppression, was not challenged. The judge referred to the confessions and to the appellant's denial of them. He stated at page 19C of the summing-up, in relation to the confessions:

"It was put, you remember, that as the hours wore by this young man became tired, and you may have little hesitation in concluding that if a suspect is falling asleep and having to be shaken it is no time to continue interrogation. That is bordering, you may think, on oppression if he is not given food and the rest of it. What was put, you see, to Mr Younger, there was this condition of tiredness and one officer had said, 'Admit it. We know you have done it' and another said or perhaps the same, 'You will be questioned all night' and another one said he would bet his wages the accused would admit it before the night was out.

Now, the reason that I present this problem to you in this way is that those questions would seem to indicate the suggestion of some measure of impropriety. Of course, there is the issue. The officers say firmly it is nonsense to talk about this young man not understanding what was going on or he was falling asleep, but this is the point, in spite of those questions, Mr Barker, on behalf of the defence, made the comment in so many words, 'I allege no impropriety on the part of the police'. And you must consider all that."

43. There is no doubt that the appellant's instructions were that the confessions had not been obtained voluntarily. We have been referred to the statements he gave to his solicitor before the trial. On 4th October he stated:

"I was taken to the police station at 2.00 p.m.. They started to question me and kept me until 11.00 p.m.. I kept denying that I had done it. Eventually I got very tired and I started dropping to sleep. They said they would carry on all night with questions. Eventually I admitted to the attack. I did this because I was tired and wanted to get some sleep. Later, during the time I was being questioned, the police never threatened me but they did get hold of me by my shoulders and shake me because I wouldn't admit it. I asked if I could see my parents. At first they said 'no', but eventually my parents came. I asked my dad if I needed a solicitor but one of the policemen said I didn't. I had blood on the knees of my jeans and possibly on the soles of my feet. That got there whilst I was kneeling on the floor at the side of Wendy Sewell."

44. Later:

"One of the policemen did say that he'd bet his wages I'd admit it before the night was out."

45. There followed a statement of 22nd November:

"When Charlesworth started questioning me again after Younger had left I decided to admit to having attacked Wendy. I had asked at some time between 9.00 and 10.00 p.m. if I could see my parents and have a solicitor. Detective Inspector Younger would not let me have either."

46. We have already referred to the contradiction in the material before the court as to the presence of the father. We refer to those statements to indicate that the instructions of the appellant, and there is no reason to think that they were at any stage changed, were of impropriety by the police in obtaining the confession from him. We have to say that we find it extremely difficult in those circumstances to understand why the admissibility of the oral and written confessions was not challenged at the trial. We have referred briefly to the circumstances and to the fact that the appellant was only 17 years old and of low average intelligence.
47. We do bear in mind that the defence case was a difficult one to conduct. It was known that the appellant's evidence was going to be that he had come across a half naked and badly injured woman in the cemetery and, having touched her between the breasts to see if her heart was beating, he put his hands between her legs and put his finger up her vagina. That evidence was unlikely to commend him to a jury. We add that in a comparatively recent statement the appellant has denied that that is what he said. However, it is clear from the judge's summing-up that he did use words to that effect. We find it inconceivable that counsel on such a significant matter would not have corrected the judge had he not accurately directed the jury as to the evidence which had been given.
48. Defence counsel also knew that the appellant had made admissions to doctors that he had struck Mrs Sewell with a pickaxe handle with a view to sexually assaulting her. Admissions were made to two doctors, Dr Jane McCarthy and Dr R F Williams at the Risley Remand Centre. They were repeated to a consultant psychiatrist, Dr R A Jones, instructed by solicitors on the appellant's behalf. We accept all those admissions are likely to have been made within about two weeks of 12th September. Subsequently it was denied that the admissions were true.
49. It is possible that counsel took the view that in those circumstances allegations against police officers who were investigating the offence would be likely to lead to the jury taking an adverse view of the appellant and his credibility. It is possible that counsel feared that his admissions to the doctors would be put to the appellant in the course of his evidence. Counsel may have taken a tactical decision not to challenge the admissibility of the evidence, considering that the appellant would be better served by an absence of allegations of impropriety and the appellant's mere evidence that the confessions were untrue. We do find it very difficult to reconcile the assurance given to the judge that no impropriety was alleged with the few questions which were put. The judge mentioned them in his summing-up and we have referred to them.
50. We add that the appellant has given an explanation for the withdrawal of the confessions. In a statement to his solicitor he referred to the visit he says that his father made to the police station:

"When my father first saw me at the police station and asked if it was true that I had admitted to the attack I told him it was true. He said, 'Well, son, I am proud of you, not for doing it but for admitting it'. I kept that remark of my father's in my mind and this was one of the reasons why for 13 days I continued to tell him I was guilty. I felt pleased that my father was sticking by me and I did not know what he would say or how he would react if I were to tell him the truth. On 25th September 1973 I felt I just had to tell the truth and so I told him what really happened."

51. There is some slight psychiatric support for the credibility of that explanation given. We are unable to understand leading counsel's reference in his advice on appeal to the fact that no explanation was given for the confessions being made.
52. The issue of fact to which we have just referred is not for this court to resolve. It was an issue which could have been, but was not, raised at the trial. In our view, the trial was unsatisfactory by reason of the failure to challenge the admissibility of the confessions the appellant made. His instructions were that the confessions were untrue and, what is more, had been obtained improperly. Questions alleging impropriety were put to police officers and yet counsel accepted that no impropriety on the part of the police was alleged. We have referred to the relevant passage in the summing-up.
53. We consider the test we should apply in circumstances such as these when considering whether the conviction is safe. In R v Ashley King (unreported) 10th December 1999, Lord Bingham, CJ, at paragraph 49 considered what approach the court should adopt:

"We were invited by counsel at the outset to consider as a general question what the approach of the court should be in a situation such as this where a crime is investigated and a suspect interrogated and detained at a time when the statutory framework governing investigation, interrogation and detention was different from that now in force. We remind ourselves that our task is to consider whether this conviction is unsafe. If we do so consider it, section 2(1)(a) of the Criminal Appeal Act 1968 obliges us to allow the appeal. We should not (other things being equal) consider a conviction unsafe simply because of a failure to comply with a statute governing police detention, interrogation and investigation, which was not in force at the time. In looking at the safety of the conviction it is relevant to consider whether and to what extent a suspect may have been denied rights which he should have enjoyed under the rules in force at the time and whether and to what extent he may have lacked protections which it was later thought right that he should enjoy. But this court is concerned, and concerned only, with the safety of the conviction. That is a question to be determined in the light of all the material before it, which will include the record of all the evidence in the case and not just an isolated part. If, in a case where the only evidence against a defendant was his oral confession which he had later retracted, it appeared that such confession was obtained in breach of the rules prevailing at the time and in circumstances which denied the defendant important safeguards later thought to be necessary to avoid the risk of a miscarriage of justice, there would be at least prima facie grounds for doubting the safety of the conviction -- a very different thing from concluding that a defendant was necessarily innocent."

54. We have referred to the events of 12th September. Counsel are agreed that, in the words of Mr Bevan, there were substantial and significant breaches of the Judges' Rules. We have referred to those.
55. Had the admissibility of the confession been challenged and impropriety by police officers alleged, it would have had a profound effect upon this trial. Confessions are excluded on the ground that they are not obtained voluntarily. Even if they are admitted, there remains the question whether they contain reliable admissions. In our judgment, had the matter been raised with the judge these confessions may well have been excluded by him. Even if they had been admitted, the jury would have been alerted to circumstances which may have rendered them unreliable. The Judges' Rules, and now the procedures under the Police and Criminal Evidence Act 1984, were promulgated to ensure fairness. In the absence of an investigation of the facts, with the Rules in mind, the jury may well, in a case such as the present, have been unaware of the real risks arising from the non-observance of the Rules and the proper procedures. Had the matter been challenged, the jury's eyes would have been opened as to the risks.
56. This court is aware of the unlikelihood, on the face of it, of someone sexually assaulting a badly injured woman, as the appellant admits he did, unless it was he who had previously disabled her with sexual assault in mind. The court is also aware of the confessions made to several doctors in circumstances very different from those in the police station. The presence of the appellant near the scene and the nature of the weapon must also be borne in mind. It is not, however, for this court to speculate as to what might have happened had the fundamental defect, which we find to have existed in the conduct of this trial, not been present. As Lord Bingham had recently underlined in R v Pendleton [2002] 1 WLR paragraph 19:

"The question for its [the Court of Appeal's] consideration is whether the conviction is safe and not whether the accused is guilty."

57. In the somewhat bizarre circumstances of this case we expressly do not address ourselves to the latter question.
58. As to the confessions, if they are unreliable the conviction is unsafe. The court is not considering new material, but for the first time in a court material existing at the time of the trial has been thoroughly investigated and analysed. The safety of this conviction depends on the reliability of confessions made to the police on 12th September 1973. The court cannot be sure that the confessions were reliable. It follows that the conviction is unsafe.
59. We do not speculate as to what might have happened if the defence had been conducted in a different way. For the reasons we have given this appeal is allowed and the conviction quashed.
60. LORD JUSTICE PILL: Are there any applications?
61. MR FITZGERALD: My Lord, no.