England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 29th June 2004

1. LORD JUSTICE KEENE: On 19th September 1986 at Nottingham Crown Court before Tucker J and a jury, this appellant was convicted of causing grievous bodily harm with intent and was sentenced to eight years' youth custody. Applications by him for leave to appeal against conviction and sentence were refused by the single judge and in due course on renewal by the Full Court.
2. Three co-defendants, David James, John Melnichenko and Colin Richardson, who was the appellant's brother, who were all then aged between 18 and 21, were also convicted of causing grievous bodily harm with intent and they, too, were sentenced to eight years' youth custody or imprisonment, whichever was appropriate according to their age.
3. The matter now comes before this Court as a result of a reference by the Criminal Cases Review Commission under section 9(1) of the Criminal Appeal Act 1995. By virtue of section 9(2) of that Act the reference is to be treated as an appeal to this Court.
4. The charges arose out of a serious attack suffered by a British Transport Policeman, Neil Harvey, in the early hours of 26th October 1985 on British Rail property in Nottingham. Mr Harvey had last been seen doing his normal duties at about 1.50 a.m. At about 4.30 a.m. he was found near a warehouse, having been severely beaten about the head and in a semi-conscious state. He was taken to hospital in a critical condition, and, although he survived, he was left virtually blind in one eye and with no sense of taste or smell. In the doctor's opinion the injuries were caused by severe blows with a blunt heavy object.
5. The prosecution's case was that the four accused had attacked the victim after he had disturbed them trying to break into Fyffes warehouse.
6. All the accused were arrested on 31st October 1985. There was evidence from a neighbour of Melnichenko and James about hearing conversations from the garden of their house which suggested that those taking part in the conversation were implicated, but this evidence certainly did not implicate the appellant. The victim, Neil Harvey, could remember nothing about the attack.
7. There was no forensic evidence against the appellant. Consequently the whole of the case against him turned upon confessions obtained during a series of police interviews. Those confessions were subsequently retracted by the appellant, who alleged that they had been obtained as a result of oppressive behaviour by the police.
8. He gave evidence at trial that he had nothing to do with the attack on Harvey and that on the night in question he had been out with friends, including Melnichenko, and had finally returned home at about 1.30 a.m. A friend of his gave evidence in support of that, as did his mother. He thereafter did not leave the house again according to his own evidence. It will be remembered that Mr Harvey had been seen at about 1.50 a.m. performing his normal duties.
9. The appellant also gave evidence that after his arrest he had asked for a solicitor on several occasions, but had been refused. Indeed, on a _voir dire_ in the course of the trial, it was agreed that within five minutes of his arrival at the police station the appellant had asked for a solicitor, but was refused by the senior officer dealing with this matter, Superintendent Newton. This was despite the fact that a solicitor, already instructed by the appellant's family, was requesting access to him. Superintendent Newton gave evidence that he had good reason to deny access to a solicitor, because he did not believe that he had all those responsible for the attack in custody. Moreover, he said, Neil Harvey's truncheon was still missing and it was not known whether it had been used in the attack. The superintendent said that he feared that the presence of a solicitor might inadvertently lead to messages being passed to the outside world. That was an argument accepted by the trial judge, who ruled that the evidence of the confessions was admissible.
10. Alan Richardson, who was 19 at the time of these events, was interviewed a total of nine times on 31st October, 1st November and 2nd November 1985. No contemporaneous note was made of the first six interviews. According to the police evidence, this was because they consisted of denials and accounts of his movements on the night in question. Admissions were made by him in the final three interviews. The evidence of Superintendent Newton was that the first of these occurred soon after the appellant had been confronted by Melnichenko, who had stated, in the presence of the appellant, that all four defendants had been involved in the attack. In his signed admissions, obtained during the seventh, eighth and ninth interviews, the appellant admitted his involvement in the attack, including kicking the policeman while he was on the ground and he gave a certain amount of detail.
11. At trial he agreed that he had signed the statements, but said he had done so because the police had told him that he had a mental blockage and they could have him committed to a mental institution. The details of the attack, he said, had been supplied by the police at the time of the interviews.
12. Eventually, at just before 1.00 pm on 2nd November, the appellant was charged. He was then given access, for the first time, to a solicitor. He immediately complained about his treatment by the police, and before long retracted his confessions.
13. The heart of this appeal, and indeed of the reference by the Commission, relates to the circumstances in which the appellant's confessions were obtained. In particular, emphasis is placed on the denial of access to a solicitor until he had confessed and been charged, and on the absence of any proper record of the earlier interviews, including the duration of those interviews, or some of them.
14. On the first of those matters it is to be remembered that as at the end of October/beginning of November 1985 the Police and Criminal Evidence Act 1984 ("PACE") had been enacted, but was not yet in force, and neither were the Codes promulgated under it.
15. The principles to be applied by the police in the questioning of suspects were still those set out in the Judges Rules. Those included the following:

"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 process of investigation or the administration of justice by his doing so;

that it is a fundamental condition of the admissibility of evidence against any person, equally of any oral answer given by that person to a question put by a police officer and 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; and

when after being cautioned a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended ... Any questions put and answers given relating to the offence must be contemporaneously recorded in full and the record signed by that person or, if he refuses, by the interrogating officer."

16. Even if there had been compliance with those Rules, which patently in this case there was not, the decisions of this Court in Ashley King [2000] Crim LR 835 and in O'Brien [2000] Crim LR 676, as well as other decisions, make it clear that the overriding issue is the safety of the conviction as judged by this Court at the present time. To that issue present day standards will normally be relevant. Those will include section 76 and section 58 of PACE.
17. Mr Duck, who appears today on behalf of the appellant, makes the point that there was no assertion by the police superintendent that the solicitor, who was available to the appellant, would have presented any particular risk to the proper conduct of the police investigation. The allegation being made by Superintendent Newton was an entirely general one, to the effect that the presence of a solicitor could inadvertently lead to the passing on of information to those outside. That, says Mr Duck, is reasoning rejected by this Court in the subsequent case of Samuel (1988) 87 Cr App R 232. That, indeed, is an accurate reflection of the decision in that case.
18. Moreover, even if denial of access to a solicitor was initially justified, it is submitted that the point came where that could not have continued to be so. By the time the appellant's co-defendants had made admissions, the uncertainties about other suspects had been resolved and yet the appellant was still denying the offence. At that stage, submits Mr Duck, there could have been no real risk of others being warned and the appellant should have had access to a solicitor.
19. This is a point which is readily acknowledged by the Crown. Mr Thompson QC fully accepts that, fairly soon into the series of interviews, denial of such access to a solicitor could no longer be justified by contemporary standards of fairness, even if it had been justified initially. The Crown concedes that what happened in this case amounted to a breach of section 58 of PACE, as well as a breach of the then operative Judges Rules.
20. Of course, as Mr Thompson submits, that in itself does not automatically mean that the interview records should have been excluded. In some cases the presence of a solicitor would have added little, or nothing, to a suspect's knowledge of his legal rights; as was the situation in the case of Alladice 87 Cr App R 380. But it is readily accepted by the Crown that this is not such a case. This suspect was, as we have indicated earlier, aged 19 at the time, not particularly sophisticated, and he was interviewed over a lengthy period. By the time he made admissions he had been in custody for over 20 hours, all without access to a solicitor, and by his own account he made the admissions which he did because he was afraid that the police would send him to a mental hospital. It is also significant that soon after he had seen a solicitor he retracted his confessions. In those circumstances, the Crown concedes that by current standards the evidence of the appellant's confession should not have gone before the jury. We agree.
21. We also accept Mr Duck's other main argument which is that the failure of the police officers to make a contemporaneous record of the first six interviews prejudiced the appellant. In our judgment it deprived him of the opportunity to demonstrate the consistency of his denials of involvement in the attack and of his account of his own movements that night. In this respect, as also in respect of the attitude of the Nottinghamshire police at this time towards access to a solicitor, there is assistance to be gained from the case of Cleary (unreported) 3rd May 1994, of which we have a transcript. That case reveals that there was at this time, in the mid-1980s, a directive in force in Nottinghamshire, issued by the Chief Constable, requiring a contemporaneous note to be taken of all interviews of suspects. In Cleary this Court expressed its concern about the failure of the police to take such a note of interviews in which the accused denied his involvement in the offence in question. We share that concern in the present case.
22. That concern is added to by the existence of periods of time when the appellant was, according to the custody record, not in his cell, but was not being formally interviewed. His whereabouts during such periods are not recorded or identified. One of those periods comes at a time which could lend support to his assertion that his first admission did not come straight after the confrontation with Melnichenko, as was being asserted by the Crown at trial.
23. The prosecution does not seek now to resist this appeal, and, in our judgment, rightly so. We accept the arguments put forward on the appellant's behalf. By current standards of fairness the admissions made by him in the final three interviews should never have been allowed to go before the jury. Had that been the ruling, the case against the appellant would have been non-existent.
24. There are other matters raised, both by the appellant and by the Crown, as to why this appeal should be allowed, including the absence of a proper alibi direction, which has very properly been identified by Mr Thompson on behalf of the Crown as a further reason for allowing this appeal. However, in the circumstances which we have identified, it is unnecessary to deal with those additional matters.
25. For the reasons we have already indicated, we cannot regard this conviction as safe. We therefore allow the appeal and quash the appellant's conviction.
26. We are grateful to both counsel for their efforts in this case.