England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		25th May 2005

LORD JUSTICE KEENE:

Introduction

1. On 18th December 1978, in the Chester Crown Court before Bristow J, the appellant, Paul Blackburn, who was then aged 15, was convicted of attempted murder and attempted buggery. On the first of those counts he was sentenced to detention for life, with a two year concurrent sentence of detention for the other offence. An application by him for leave to appeal against conviction and sentence was refused by the single judge and a renewed application to like effect was dismissed by the Full Court on 17th March 1981.
2. In 1996 the Secretary of State refused to refer the case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968 ("the 1968 Act").
3. The appellant was eventually released in March 2003, having served over 24 years.
4. His conviction now comes before this court as a result of a reference dated 9th August 2004 by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. By virtue of that same section the reference is to be treated as an appeal by Mr Blackburn under section 1 of the 1968 Act.

The factual context

5. The charges faced by the appellant arose out of a vicious assault on a nine year old boy, "L". There was no doubt that someone had carried out such an assault. The issue at trial was whether it had been the appellant.
6. The attack took place on the afternoon of Sunday 25th June 1978, probably at around 4.30 pm. The victim, L, was walking by a canal near an area known as Seven Arches, Great Sankey, Warrington, when he was accosted by a youth who threatened him with a knife. L was made to go with the youth to a nearby disused sewage works, where he was forced into a brick shelter. There he was made to remove his clothes and to perform oral sex on the youth, who then attempted to commit anal rape on him, ejaculating down the victim's leg. The victim was then kicked repeatedly and stabbed before being covered with a board and a large quantity of heavy bricks.
7. When the victim failed to return home the police were informed and a search commenced. The following day, some 28 hours after the attack, he was found still concealed in the disused sewage works. He was alive but badly injured. It was patently a horrific attack.
8. The appellant's home was about 600 yards from Seven Arches. In fact, in 1978 he was at an approved school known as Red Bank, where he had been sent by court order for offences of burglary and arson. That order was a secure care order and the appellant was in the secure unit at the approved school. But on the weekend of 24th/25th June that year he was on home leave. He was then aged 14. At his home there were four siblings, including a 16 year old brother, Fred. Another older brother, Harry, lived with his wife at another address in Great Sankey which also was within walking distance of the scene of the crime.
9. The victim was found at about 9 pm on the Monday. Tuesday's Daily Mirror reported that he had been found alive but gave no description of the attacker. A local newspaper, the Post & Chronicle, that evening gave a description, including a reference to long gingery brown curly hair, a description repeated in another local paper on the Friday. The appellant at trial denied seeing either of these two local papers. The possible relevance of this was that there was evidence at trial about the appellant having asked to have his hair cut at Red Bank approved school. This evidence came from two members of staff at the school, Mrs Forrester and Mrs Selby, in the form of witness statements taken on 7th August 1978, some six weeks later. Mrs Forrester testified that on Tuesday 27th June the appellant had asked her to cut his hair, which was unusual for him. Mrs Selby's evidence was that this was on Monday 26th June, which would have been before any press report that L had been found alive, but she also said that on the Friday of that week he had requested her to cut his hair again, saying that Mrs Forrester had not made a good job of it.
10. The appellant was first interviewed by the police on 3rd July 1978, just after his fifteenth birthday. He gave a witness statement in which he said that he had been at his home on the relevant Sunday for the whole afternoon. He was again interviewed on 13th July and made a second witness statement in which he stated that he was with a friend, Tony Chadwick, until 1.30 pm and then returned home. He said that later that afternoon he again went out and returned at about 4.10 pm. On 14th July 1978 he was questioned by Detective Chief Inspector White and Detective Inspector Marsh for a period of two hours, not under caution, regarding the discrepancies in his previous accounts and was told that he fitted the description of the attacker. On this occasion he refused to take part in an identification parade or to provide hair samples and was verbally abusive towards the officers.
11. Meanwhile, on 12th July the police had interviewed the appellant's brothers, Fred and Harry Blackburn. Fred Blackburn initially confessed to the attack but retracted his confession shortly after his mother was allowed to speak to him.
12. At other stages in the course of these events two other youths also confessed to the attack but subsequently withdrew their confessions.
13. Then on 21st July 1978, DCI White and DI Marsh returned to Red Bank school to interview the appellant again. By now the officers had information about an apparently somewhat similar attack at Irlam involving the appellant two years before. In his evidence at trial, DI Marsh was to say that by 21st July, the date of this interview, the appellant was the principal suspect, "my number 1". The appellant was interviewed by the officers in the presence of Mr Frederick McVitie, the house warden. There is no evidence that the appellant was told at any stage before or during this interview that he was entitled to legal advice, and no solicitor was present at any stage during the lengthy interview.
14. The interview was conducted in three stages. The first began at 9.30 am. Between then and 11.15 am the appellant made a further witness statement, giving another detailed account of his movements on Sunday 25th June. He and Mr McVitie then signed that statement. At about 11.20 am the second stage began, during which the appellant was questioned by the officers under caution. He was questioned about discrepancies between his statements and between his statements and those of others. Then the officers went on to refer to the Irlam events in 1976, when the appellant and another boy had been convicted of actual bodily harm on two nine year old boys. It was now said to the appellant that the incident had gone beyond a physical assault and had involved forcing the two boys to suck each other's penis and to try to commit buggery with each other. The appellant was told that the police now had statements from the two boys and another boy who witnessed it. The officers denied, during the course of a voir dire, that they had told the appellant that there might be further charges arising out of the 1976 events, whereas the appellant at the voir dire said that DCI White had been shouting at him and saying that if he did not come clean he would be charged both with the attack on L and with further charges arising from the 1976 incident. Mr McVitie's evidence on the voir dire was that the officers did say that there was a possibility of a further charge arising out of the 1976 incident but he did not get the message that this was a threat.
15. In any event, at 12.40 pm during this fourth interview, immediately after these references to the 1976 incident, the appellant dropped his head and began to cry. He said "Yes, it was me -- give me a minute". He then looked at Mr McVitie, who said words to the effect: "It's up to you, Paul, the officers only want the truth".
16. Until this point at 12.40 pm no contemporaneous note of the interview had been taken, not even of the questions and answers from 11.20 onwards. But from this point, at 12.40, the start of the third stage, a record was made by DCI White. On the face of that record it appears that a series of open, non-leading questions were asked, which produced answers giving details of the attack on L. This apparently ended at 1.25 pm, when the appellant began writing a statement in his own hand, which was completed, according to the statement, at 1.50 pm. In it the appellant admitted committing the offences and provided a detailed account of the events in question. He and Mr McVitie signed the statement. He was then cautioned again and arrested.

The previous proceedings

17. At trial the defence sought to exclude this confession. This was, of course, before the passing of the Police and Criminal Evidence Act, 1984 ("PACE") and the application was based on the argument that the confession was not voluntary but had been the result of a threat or improper pressure related to the 1976 Irlam incident. Mention was made of the fact that the defendant, as he then was, was only just 15 at the time, but no reference was made to the absence of any suggestion that he might be entitled to legal advice. Nor was there any emphasis on the fact that the interview had already lasted for three hours ten minutes before the appellant had made the first admissions.
18. We mention those factors because although the law on the admissibility of confessions in 1978 required them to have been voluntary, in the sense that they had not been obtained by fear of prejudice or hope of advantage or by oppression, the courts at that time did also have an overriding discretion. As a matter of the common law, even a voluntary confession in the sense described could be excluded if it had been obtained unfairly: see Middleton [1974] 2 All ER 1190 at 1195 D.
19. The judge rejected the defence application. He found that there had been no threat or improper pressure. He preferred the evidence of the police officers to that of Paul Blackburn and he placed particular weight on Mr McVitie's evidence that he had heard no threat or inducement. Consequently, the written confession statement and the evidence of the appellant's oral admissions at interview went before the jury. There can be no doubt that this was fundamental to the Crown's case. There was no forensic evidence whatsoever linking the appellant to the attack on L. Nor was there any identification evidence. The Crown relied on the appellant having had the opportunity to commit the attack, on his inconsistent statements about his movements on that Sunday afternoon and on the evidence about the hair cuts, although, as we have already indicated, the last of those elements suffered from the disadvantage of having been obtained six weeks after the event and from a degree of conflict of evidence between the two members of staff. Without the evidence of the written and oral admissions in interview, there was really no prima facie case against the appellant.
20. This appeal principally turns therefore on whether those admissions should have gone before the jury.
21. Before we turn to that issue, it is to be observed that, during his evidence on the voir dire, DI Marsh said in terms, and on oath, that the appellant had written the confession statement himself "entirely with no interruption" (see the voir dire page 7F). He repeated that, again on oath, in his evidence at trial, stating that:

"Paul wrote it himself without any interruption from anyone in the room -- I was sat watching him write".

And he said that DCI White and Mr McVitie did the same. It seems that DCI White's evidence at trial was to the same effect, since the judge in summing up said (page 68 E):

"Then they sat there and said nothing while Paul wrote it down for himself."

22. We mention that because it is conceded now by the Crown that there is linguistic evidence now available to suggest a significant police involvement in the wording of the appellant's written statement. We shall return to the significance of that in due course. That evidence was not before this court when it considered and rejected the appellant's renewed application for leave to appeal. Moreover, that application was largely based on the argument that the final police interview was oppressive and made no mention of the absence of any reference to any right to legal advice. We have the disadvantage today that no transcript is now available of this court's judgment on that application, but we are in any event required to exercise our own judgment as to the safety of these convictions.

The submissions of the parties

23. What is said on behalf of the appellant is that his admissions, whether oral or written, were obtained in circumstances which were likely to render them unreliable and they should therefore have been excluded. Mr Owen QC submits that the court must judge that issue in the light of current standards of fairness and of our present knowledge of the phenomenon of false confessions. He refers to a number of authorities to that effect, including Roberts (unreported, 19th March 1998) and Abid Hussain [2005] EWCA Crim 31. The point was made in the latter case at paragraph 28 that, where there was a breach of the rules in force at the time of trial, the significance of that breach is to be assessed according to the present-day approach. So the question of whether or not there was a breach of the rules applicable in 1978 is clearly relevant, but not exhaustive. At paragraph 48 in the same case the court commented that the courts now have a greater general understanding of the vulnerability of juvenile offenders who make admissions or confessions and that this was a matter which the court should take into account. Mr Owen points out that the court in Abid Hussain also relied on passages from the report of the Royal Commission on Criminal Procedure (Command Paper 8092, published January 1981), in which it was emphasised that juveniles being interrogated:

"... may need the support of an adult presence; of someone to befriend, advise and assist them to make their decisions ... This presence is, however, no substitute for having access to legal advice and the right to that applies equally to a juvenile." (paragraph 4.103)

The report went on to say that if a social worker attends such an interview, he or she should have the same function as the juvenile's parent, of providing support and advice (see paragraph 4.108).

24. It is contended on behalf of the appellant that in the present case there were in fact clear breaches of the Judges Rules and the attached Administrative Directions, the rules which were in force in 1978. First, the appellant should have been told of his right to consult a solicitor and been given an opportunity to do so. That, it is said, is implicit in principle (c) of the preamble to the Judges Rules when read together with paragraphs 4 and 7(b) of the Directions. Secondly, the interview, submits Mr Owen, should not have been conducted at school, which was in breach of paragraph 4 of the Directions, but at a police station, where conspicuous notices would have been displayed informing the appellant of his right to legal advice. Thirdly, a parent should have been given the opportunity to be present or, since he was in care, his assigned social worker, Mr William Smith. Neither was present. It is argued that the adult present, Mr McVitie, was not an appropriate adult but was more akin to a prison officer.
25. To this, argues Mr Owen, there must be added the pressure put on a boy who had just reached the age of 15, pressure resulting from being questioned for over three hours by these officers before he made any admission. The absence of proper safeguards created a serious risk that any admission would be unreliable, and the admissions should never therefore have been allowed to go before a jury.
26. In support of these arguments, Mr Owen sought, during the hearing, the leave of the court to adduce fresh evidence which had not been before the trial court. Some of this was not controversial. Without resistance from the Crown, we received under section 23 of the 1968 Act the evidence in writing of Professor Coulthard, to the effect that there is now evidence of a significant police involvement in the wording of the appellant's confession statement. That new evidence takes the form of an analysis of the language used in the statement and the structure of the sentences. We also received in evidence under section 23 a witness statement by Mr William Smith, the appellant's social worker in 1978. Amongst other things, he states that residents at Red Bank school were treated as offenders, and that the staff there were not seen by the inmates as being in the role of parents but rather as being responsible for their confinement there.
27. The Crown resisted the appellant's application to call fresh evidence by Dr Eric Shepherd, a consultant forensic psychologist, who has extensive experience of interrogation methods and of their effects. Lord Carlile QC, on behalf of the Crown, did not question Dr Shepherd's expertise, but argued that his evidence was not admissible because it did not address matters outside the range of experience of a jury. Dr Shepherd, said Lord Carlile, would merely be giving general evidence about how 15 year old boys might react to lengthy questioning. Moreover, there was no suggestion here of any abnormal disorder on the part of the appellant, who had not even been examined or interviewed by Dr Shepherd before the latter had written his report. The Crown placed some reliance on a passage from the case of O'Brien, Hall and Sherwood [2000] Crim LR 676, which suggested that, in cases where the expert evidence related to the existence of an abnormal disorder on the part of the accused, the disorder had to be of a kind which might render the confession unreliable.
28. We ruled during the hearing that Dr Shepherd's evidence was admissible and we received it under section 23. His evidence concerns the phenomenon of false confessions and the circumstances in which research has shown that a vulnerable individual, after a prolonged period of questioning, may give what is termed a coerced compliant confession. It seemed to the court that this was a topic which would generally fall outside the normal range of experience of a jury and that it was therefore one on which expert evidence was properly admissible. The case of O'Brien has little bearing on this issue. The passage there relied on by Lord Carlile applies where there is some evidence about an abnormal disorder on the part of the accused. That is not this case. O'Brien was not intended to be a comprehensive statement as to the circumstances when expert evidence will be admissible on the reliability of a confession.
29. The essence of Dr Shepherd's evidence before us was that the key feature giving rise to a coerced compliant confession is fatigue, which, together with an inability to control what is happening, may induce the individual to experience a growing desire to give up resisting suggestions put to him. Eventually he can take no more and is overwhelmed by the need to achieve his immediate goal of bringing the interrogation to an end. That may not seem rational to an outsider, but it becomes rational if the individual finds the circumstances becoming intolerable. The age of such a person, said Dr Shepherd, is significant. Generally the younger he is, the less able he is to withstand sustained pressure. After more than three hours interview without a break and references to new sexual allegations about the 1976 Irlam incident, one could well get a coerced compliant confession. Whether true or false, it is not reliable, said Dr Shepherd, because of such circumstances. He noted the appellant's evidence at trial that he had confessed because he wanted to get out of the interview and he "felt sick of it". Dr Shepherd also described the phenomenon of persons in such a position inventing details when under stress, something he termed "confabulation" or conversational polyfilla. This can sometimes lead to a person describing things which could not have happened. Such details needed, said Dr Shepherd, to be checked out before they should be accepted.
30. He distinguished these phenomena from the characteristic of suggestibility. The latter is related to personality, whereas the former are more the result of fatigue and vulnerability because of age or other factors. Consequently normal people, not suffering from any personality disorder or abnormal disorder, could be rendered compliant by prolonged interrogation. Dr Shepherd regarded Mr McVitie as having allowed the interviewing process to continue for too long and in that sense not to have acted properly.
31. We also allowed evidence from Mr McVitie to be called on behalf of the appellant before us, in the absence of any objection by the Crown to that course. In his witness statement, which was taken as his evidence in chief, Mr McVitie spoke of aggressive questioning by the police officers at the interview on 21st July, though he also described it as "fair but vigorous". His evidence could clearly have been called at trial - indeed, he gave evidence on the voir dire - but we considered it in the interests of justice to receive his further evidence. In it he stated that it had crossed his mind to say something to the police about being rather aggressive but had not done so. He described himself as having been naive. When cross-examined, he said that he had known that his role at the interview had been to protect the appellant's interests and that if he had thought that the police were acting unfairly he would have stopped the interview, but he added that he had had nothing to guide him as to what was correct and what was not.
32. The impression made on this court by Mr McVitie was that of someone who would have been out of his depth at this interview, the first he had ever attended, and with no great strength of personality. We can readily understand how, in the presence of two senior police officers, he played an almost entirely passive part in the proceedings.
33. Mr Owen advances a second submission in the light of the evidence from Professor Coulthard. He draws attention to the fact that both DCI White and DI Marsh had said on oath in 1978 that the appellant had written his confession statement entirely unassisted. Those statements by the officers can now be seen to have been untrue. It is submitted that that goes not merely to the admissibility of that written confession, but casts doubt on the credibility of those officers across the whole of the case. In any instance where there is a conflict between them and the appellant, the assessment by the judge on the voir dire and by the jury at trial of where the truth lay would have been affected if it had then been known that the officers had not told the truth about the confession. It affects, for example, the issue of whether the officers fed information to the appellant through leading questions, as he said, or merely asked open questions, as they said. That therefore, submits Mr Owen, calls into question the oral admissions made during that interview by the appellant.
34. Without the confession and those admissions, he argues, this case could never have gone to the jury. Consequently, the convictions are unsafe.
35. The Crown does not seek to advance a different view of the legal principles applicable to this case from that put forward by the appellant, save in one limited respect to which we shall come. Lord Carlile seeks to distinguish the case of Abid Hussain on the facts, which he argues was a more extreme case. In any event, the Crown's position on this appeal is neither to support it nor to oppose it, but is one described by Lord Carlile as one of armed neutrality. Consequently, his submission is simply that it is open to the court to conclude that the convictions are safe, rather than to assert positively that they are.
36. It is accepted by the Crown that in respect of the written confession there is linguistic evidence to suggest a significant police involvement in its wording and that that was in breach of Rule IV(b) of the Judges Rules in force at the time. But the Crown argues that there is no similar evidence of significant police involvement in the wording of the appellant's oral admissions during the immediately preceding stage of the interview. It is said that it is open to the court to regard Mr McVitie as someone who came close to being an appropriate adult, in today's terminology.
37. As for the right to legal advice, Lord Carlile accepts that there is no evidence that the appellant was made aware of such a right, but it is said that that was not an objection raised at the voir dire or trial. In his written argument, Lord Carlile suggested that in 1978 there was no obligation to inform a suspect who was not in custody of the right to consult a solicitor. However, he now accepts that, since the appellant was detained at the approved school at the time, he should be seen as having been in custody when he was interviewed.
38. Nevertheless, it is contended by the Crown that, despite the breaches of the then applicable rules and current principles, this court could properly conclude that the confession was admissible. It could, it is said, have been admissible today under section 76(2) of PACE, because the court could have had regard to extraneous evidence supporting the truth of its contents. Here Lord Carlile relies on the appellant's opportunity to commit the offences, his fitting of the description, the evidence of the hair cuts and some evidence given by his mother at trial. She is recorded as having testified that when she went to see him at Risley remand centre, he had said "Yes, I must have been the one who attacked him". Such matters are, it is submitted, relevant when the court comes to consider the reliability of the confession and hence its admissibility, because they form part of the circumstances referred to in section 76(2) of PACE. That is the point of law where the Crown and the appellant part company.
39. Finally, it is argued for the Crown that since the test is the safety of the convictions, the court should in any event have regard to those matters just referred to in that wider context. When the evidence is looked at as a whole, it is open to the court to be satisfied that the convictions are safe.

Our analysis

40. The role of this court in cases which date from a number of years in the past is now well-established. The fundamental test is the safety of the conviction, or in this case convictions. As was said by the then Lord Chief Justice, Lord Bingham of Cornhill, in Bentley [2001] 2 Cr App R 307 at 310:

"We must judge the safety of the conviction according to the standards which would now apply in any other appeal under section 1 of the 1968 Act",

and he went on to indicate that that included standards of fairness. In arriving at such a judgment, this court applies the substantive criminal law as it was at the time of trial. But the fairness of the investigatory process and of the trial itself is to be judged by today's standards. This court cannot be heard to say that something is fair which in truth it regards as unfair, merely because a court in the past might have seen it differently. We respectfully endorse what was said in O'Brien, Hall and Sherwood, of which we have a transcript, as follows:

"However, we judge the conduct of the investigation of the case, the conduct of the trial, the directions to the jury and the reliability of the evidence on which the jury acted in accordance with the standards that this court now applies, c.f. R-v-Mills [1998] AC 382 per Lord Hutton at page 397 C-G and R-v-Bentley..."

41. In similar vein, in Ashley King [2000] 2 Cr App R 391 at 402 B, this court, whose judgment again was delivered by Lord Bingham of Cornhill, CJ, stated as follows:

"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."

42. Of course, a mere breach of a present day rule or of a rule current at the time of the conviction does not of itself automatically render a conviction unsafe, but it is nonetheless relevant to that issue.
43. We refer finally on this topic to the case of Richardson [2004] EWCA Crim 1984, where at paragraph 16, having just referred to the Judges Rules, the court said this:

"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."

44. It is conceded by the Crown that, in respect of a confession, it is now necessary to have regard to section 76(2)(b) of PACE. That provides as follows (and we quote the whole of section 76(2) so as to give the context):

"If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have 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 in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."

45. Consequently, this court is required to have regard to any circumstances which may render a confession unreliable. In the light of the definition in section 82(1) of PACE, but also given the common law approach, the term "confession" applies as much to the appellant's oral admissions in interview as to his written statement.
46. Despite the need to judge by present-day standards of fairness, it is nonetheless helpful, and indeed important, to begin any consideration of the circumstances in this case and their effect on the reliability of the confession by looking at the approach adopted by the courts in 1978. Before the enactment of PACE, the approach was largely embodied in the Judges Rules, so-called, and the jurisprudence on those Rules, which also reflected the Administrative Directions attached to the Judges Rules. The Rules began by setting out certain principles which were not affected by the Rules themselves. They were, in effect, an encapsulation of the common law. Those principles included:

"(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".

Rule IV(b) of the Rules stated:

"Any person writing his own statement shall be allowed to do so without any prompting as distinct from indicating to him what matters are material."

Also relevant for present purposes are parts of the Administrative Directions. Paragraph 1(b) of those provided:

"When a person is being questioned or elects to make a statement, a record should be kept of the time or times at which during the questioning or making of the statement there were intervals or refreshment was taken. The nature of the refreshment should be noted."

47. Paragraph 4 of the Directions dealt with the interrogation of children and young persons. It stated:

"As far as practicable children and young persons under the age of 17 years (whether suspected of crime or not) should only be interviewed in the presence of a parent or guardian, or in their absence, some person who is not a police officer and is of the same sex as the child. A child or young person should not be arrested, nor even interviewed, at school if such action can possibly be avoided. Where it is found essential to conduct the interview at school, this should be done only with the consent, and in the presence, of the head teacher, or his nominee."

48. Finally, paragraph 7 of the Directions was concerned with facilities for the defence. Paragraph 7(2) provided as follows:

"Persons in custody should not only be informed orally of the rights and facilities available to them, but in addition notices describing them should be displayed at convenient and conspicuous places at police stations and the attention of persons in custody should be drawn to these notices."

49. As we have already recorded, the Crown admits that there was a breach of the Judges Rules, Rule IV(b), in that the prohibition on prompting a person writing his statement was broken. There is evidence now available indicating a significant police involvement in the wording of the appellant's written confession.
50. That concession by the Crown, in our view, has wider implications than merely establishing that that particular breach of the Judges Rules occurred. As Mr Owen argues, it calls into question the credibility of both the senior police officers who carried out the crucial interview and who testified on oath that they sat quietly by while the appellant wrote his own statement. We are conscious that we have not heard from the officers in the course of this appeal hearing, because they have not been called to give evidence before us. Nonetheless, we cannot escape the conclusion that they cannot have told the truth about the written confession. That means that the judge on the voir dire and, if it came to them, the jury at trial might well have taken a different view of the facts where there was a conflict between those officers and the appellant.
51. In particular, it may have lent credibility to the appellant's assertion in his evidence that his oral admissions which preceded the written confession were the result largely of the officers leading him by suggesting he had done the various acts involved in the attack. They denied that, and if they were believed, this must have been an important plank in the prosecution's case. How, after all, did the appellant know much of the detail of what had happened if he had not been the assailant? But once it emerges that these officers did not tell the truth on oath in the witness box in one respect, as must be the case, their whole account of the interview becomes undermined. Mr McVitie's evidence was not of real assistance on this issue.
52. In summary, on this aspect of the case, the Crown's concession as to the breach of Rule IV(b) calls into question the reliability not only of the written confession but of the preceding oral admissions as well.
53. We turn next to the issue concerning legal advice. It is said by the Crown that there was no express obligation in 1978 under the Judges Rules and Directions to inform a suspect of his right to legal advice unless he was in custody. That is right, on a strict application of the words used, and initially Lord Carlile relied on this for a submission that there was no breach of those Rules and Directions in respect of legal advice. Eventually, however, he conceded in the course of argument that there was such a breach, and in our view he was right to make that concession. The original argument is devoid of merit. First, the whole point of the provision in paragraph 7 of the Directions about the conspicuous display of notices at police stations describing such rights was because that was where suspects were generally expected to be interviewed. Police officers clearly could not escape the obligation to inform suspects of their rights by conducting interviews elsewhere. Secondly, while the appellant may not technically have been in custody, he was detained under a court order at the time of the crucial final interview. A court order sending him to an approved school authorised his detention there, with the consequence that he was not at liberty. In applying the Judges Rules and Directions, a court could not properly adopt the technical approach originally suggested in this case. The officers here were able, as a matter of practicality, to interview the appellant without formally taking him into custody for the very reason that he was already detained. We have already recorded the Crown's concession in argument that the appellant had to be regarded as being in custody.
54. In any event, this court is considering the issue of the safety of the convictions, and in that situation it will focus on the underlying purpose of rules, such as the Judges Rules, rather than on a narrow interpretation of the wording. In our judgment, there was here a breach of the Administrative Directions in failing to inform the appellant of his right to consult a solicitor. He was, even at the start of the interview at 9.30 am, the number one suspect, and he was in detention.
55. Looked at by today's standards, this court is in no doubt that this appellant, who was just past his fifteenth birthday at the time of the interview, should have been advised of his right to legal advice. That right today is provided for in Code C, paragraphs 3.1 and 6.1 of the PACE Codes, and while that is related to someone under arrest at a police station, it is to be remembered that under Code C a person under arrest must in most circumstances only be interviewed at a police station: see paragraph 11(1). That is not a provision to be circumvented by delaying arrest and interviewing him elsewhere. The right to such advice is regarded by the courts as a fundamental one (see Samuel (1988) 1 QB 615), breach of which may, depending on the circumstances, require a confession to be excluded.
56. We consider, therefore, those other circumstances. One of them is that no parent or guardian was present at this interview. Although the appellant was in the care of the local authority, it would have been his allocated social worker who performed the role of guardian on behalf of the local authority, not Mr McVitie. That social worker appointed by the local authority was Mr Smith, whose unchallenged evidence before us is that he was not told about the intended interview on 21st July. It seems to us that the structure of paragraph 4 of the Administrative Directions, as well as its wording, indicates that a parent or guardian of a young person should be present at interview, and that only if they are not available should some other adult be present instead. But irrespective of whether or not there was a technical breach in this respect, it seems to this court that Mr McVitie was, in reality, doing little at the interview to safeguard the appellant's interests.
57. This is linked to the next circumstance, the duration of the interview. The appellant, just 15 years old at the time, had been questioned for three hours and ten minutes by these two senior police officers before he made any admission. There is no record of any break for refreshment during that period or indeed during the whole interview of four hours twenty minutes. We put it like that because if there had been such a break, the Administrative Directions in force at the time required it to be recorded. None is recorded. DI Marsh said at trial that cups of tea were brought in at one stage, but we find it difficult to rely on that statement, given his evidence about the way in which the confession statement was written, now shown to be untrue. Such a lengthy questioning of a 15 year old boy without a parent or guardian present gives us real cause for concern.
58. Finally, there is the evidence about the use made by the interviewing officers of the new material which they had gathered about the 1976 incident at Irlam. At the voir dire, both officers gave evidence to the effect that the appellant, while he was told about the new material, was not told that there might be new charges in respect of the 1976 incident. Mr McVitie, however, testified that the officers did say that there was a possibility of a further charge, though he did not get the message that this was a threat. Given what we now know about the officers' credibility, it seems likely to this court that the possibility of a further charge was raised. The trial judge placed emphasis on Mr McVitie's impression that this was not done as a threat, but it seems to us that one needs to ask how such references would have been perceived by the appellant. That was never considered. It is difficult to avoid the conclusion that, whatever the officers' intention, a boy of this age would have been likely to have regarded those references to the new evidence and the possibility of a further charge as a threat, to be made good if he did not co-operate.
59. When we put all these circumstances together - the duration of the interview, the age of the boy, the absence of a solicitor and of any indication that he was entitled to legal advice, the absence of a parent or guardian and the references to a possible further charge in respect of the Irlam incident - we are clear that none of the appellant's admissions should have gone before the jury. Certainly in the light of current standards they cannot be seen as reliable.
60. Lord Carlile suggests that the appellant, despite his youth, could be seen as being sophisticated or at least familiar with police procedures because of his criminal record. We do not accept that the existence of previous convictions would have rendered this 15 year old able to stand up to the conditions in which the interview took place.
61. No doubt we are more aware today than were courts in the late 1970s of the risks of a combination of factors such as existed here producing false confessions. Dr Shepherd's evidence before us has indicated as much. But, assisted though we have been by his testimony, we have to say that we would have reached the same conclusion as to the unreliability of the admissions even without that assistance.
62. The argument advanced by the Crown that the confession could still have gone before the jury, because its reliability could be established by other evidence pointing to the appellant's guilt, is, in the view of this court, wholly misconceived. It amounts to an argument that if other evidence tends to show the confession is true, that may overcome the sort of problem which existed here. Lord Carlile seeks to say that such evidence is directed towards the reliability of the confession and consequently satisfies the terms of section 76(2) of PACE. In our judgment, the only relevance of such factors as he refers to, for example the evidence about the hair cuts, is to suggest that the confession may have been true. But the truth of the confession is not the test under section 76(2). The wording of that statutory provision makes that entirely clear by the phrase "(notwithstanding that it may be true)", and several authorities have confirmed that obvious interpretation: see Cox [1991] Crim LR 276; Kenny [1994] Crim LR 284. One cannot overcome problems about the reliability of a confession by using extrinsic evidence to show that it is likely to be true.
63. Consequently the appellant's admissions made during the 21st July interview were wrongly admitted in evidence at trial. In those circumstances, can the convictions of the appellant be regarded as safe? We have regard, as we must, to the various other pieces of evidence relied on by the Crown. The appellant had the opportunity to commit these offences, he did, to a degree, fit the description given by the victim, and he gave varying statements about his movements on that Sunday. There was also the evidence about the hair cuts, to which we have referred, and about a knife found in his mattress, although it is right to say that the knife did not match the description given by the victim. We are also aware of his mother's statement, to which we have referred earlier, that he said to her "I must have been the one", but it is to be observed that that wording is ambiguous. He did not say "I did it", and the words used are compatible with a situation where a person has come to believe something which is not in fact true.
64. Looked at in the round, the evidence apart from the admissions in interview was circumstantial and of limited weight. The heart of the Crown's case was constituted by those admissions.
65. The task of this court is not to say whether or not the appellant committed these offences, but whether we think that the convictions are unsafe. We are satisfied that they are unsafe. This appeal is therefore allowed and the convictions are quashed.
66. MR OWEN: My Lords, may I thank the court for delivering judgment so quickly. Mr Blackburn has waited 27 years, but I am sure he appreciated the speed with which it was delivered.
67. My Lord, could I raise one matter relating to costs?
68. LORD JUSTICE KEENE: Yes.
69. MR OWEN: It has become customary in successful CCRC references for the pre-grant of legal aid costs, in terms of the solicitor preparing and presenting the petition, to be allowed, subject to taxation on the normal basis, and I ask the court to make an order in this case.
70. LORD JUSTICE KEENE: Yes, we will make an order in those terms, Mr Owen.
71. MR OWEN: I am very grateful.
72. LORD JUSTICE KEENE: Thank you for your assistance, and perhaps, Ms Healy, you will thank Lord Carlile for his as well.
73. MS HEALY: Certainly, my Lord.