Court of Appeal in Northern Ireland Decisions

Neutral Citation No. [2012] NICA 14	Ref:	MOR8502
Judgment: approved by the Court for handing down	Delivered:	23/05/12
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND _______ THE QUEEN v JAMES HENRY BROWN ERIC WRIGHT PETER JOSEPH McDONALD And STEPHEN PAUL McCAUL _______ Before: Morgan LCJ, Higgins LJ and Girvan LJ _______

MORGAN LCJ

[1] These are appeals by way of reference from the Criminal Cases Review Commission (CCRC) pursuant to the powers contained in Part II of the Criminal Appeal Act 1995. In each case the appellants were arrested and interviewed during the 1970s under the emergency provisions legislation then in force. Each made statements of admission which were subsequently relied upon at their trials and formed the decisive evidence against them. Each was aged 15 or 16 at the time. None of them had access to a solicitor during their detention before making their admissions and none were accompanied by a parent or independent person during interview.

[2] In the cases of Brown, Wright and McDonald the CCRC refers the cases on the basis that there is a real possibility the Court of Appeal will consider:

(i) that the manner in which the appellant was detained and interviewed at Strand Road Police Station, Derry, involved significant breaches of the Judges' Rules and of other protections which they should have enjoyed;

(ii) that in consequence of those breaches the admissions made were unreliable and/or inadmissible; and

(iii) that in those circumstances the convictions were unsafe.

[3] In the case of McCaul the reasons for referral are:

(i) that the trial judge's decision to admit evidence that McCaul had made oral admissions and his written statements notwithstanding that there had been significant breaches of the Judges' Rules was wrong;

(ii) that the trial judge's decision to disregard Dr Nugent's evidence as regards McCaul's vulnerability and suggestibility was wrong; and

(iii) that in those circumstances his convictions were unsafe.

[4] Ms McDermott QC appeared with Mr Sayers for the appellants Brown, Wright and McDonald, Ms Orr QC appeared with Ms McCartney for McCaul, Mr Simpson QC appeared for the PPS and the Attorney General, appearing with Mr McCleave, intervened with our leave. We are grateful to all counsel for their helpful and concise arguments in this complex case.

[5] In this judgment we intend to look first at the law governing the admissibility of confessions at the time of these trials all of which occurred more than 30 years ago. We will then consider how this court should now approach the issue of the safety of such convictions. We will then apply those principles to each of these cases in turn.

The legal principles governing the admissibility of confessions at the time of trial

[6] A confession is only admissible at common law if it is free and voluntary. The common law position was encapsulated in the Judges' Rules which were designed to secure that only answers and statements which were voluntary were admitted in evidence against their makers. The introduction to the 1964 edition which came into force in this jurisdiction on 8 October 1976 noted that the Judges' Rules did 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 by the administration of justice by his doing so;

..(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 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."

The principle set out in paragraph (e) above is overriding and applicable in all cases."

[7] Oppressive questioning was described by Lord MacDermott in an address to the Bentham Club in 1968 as:

"questioning which by its nature, duration, or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent."

[8] Administrative Directions on Interrogation and the Taking of Statements were published by the Home Office at the same time. Paragraph 4 of these directions related to the interrogation of children and young persons.

"As far as practicable children (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."

This is replicated in the RUC Code (1974) Edition at paragraph 127 and is supplemented by section 52(2) of the Children and Young Persons Act (Northern Ireland) 1968 which states that a person whose attendance may be required must be informed where a child or young person is arrested. The Home Office subsequently published guidance in 1968 indicating that the reference to children in the Administrative Directions included reference to young persons.

[9] 1972 was the worst year of civil unrest in Northern Ireland. In that year there were 467 people killed, 10,628 shooting incidents and 1853 bomb explosions or devices defused. The government convened a Commission chaired by Lord Diplock to consider what arrangements for the administration of justice in Northern Ireland could be made in order to deal more effectively with terrorist organisations by bringing to book individuals involved in terrorist activities. The Diplock Commission reported in December 1972. It concluded that witnesses were subject to intimidation by terrorist organisations and were thereby deterred from giving evidence. That also applied to jurors although not to the same extent. The Commission also noted that the detailed, technical common law rules and practice as to the admissibility of inculpatory statements were hampering the course of justice in the case of terrorist crimes.

[10] The Commission concluded that trial by judge alone should take the place of trial by jury for the duration of the emergency. It also recommended a departure from the common law test for the admissibility of confession statements. It concluded that a confession made by an accused should be admissible as evidence in cases involving scheduled offences unless it was obtained by torture or inhuman or degrading treatment; if admissible it would then be for the court to determine its reliability on the basis of evidence given from either side as to the circumstances in which the confession had been obtained. It recommended that the technical rules, practice and judicial discretions as to the admissibility of confessions ought to be suspended for the duration of the emergency in respect of scheduled offences.

[11] Some but not all of the Commission's recommendations were implemented in the Northern Ireland (Emergency Provisions) Act 1973 (the 1973 Act). Section 6 of the 1973 Act provided for the admissibility of statements of admission.

"(1) In any criminal proceedings for a scheduled offence a statement made by the accused may be given in evidence by the prosecution in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of subsection (2) below.

(2) If, in any such proceedings where the prosecution proposes to give in evidence a statement made by the accused, prima facie evidence is adduced that the accused was subjected to torture or inhuman or degrading treatment in order to induce him to make the statement, the court shall, unless the prosecution satisfies them that the statement was not so obtained, exclude the statement or, if it has been received in evidence, shall either continue the trial disregarding the statement or direct that the trial shall be restarted before a differently constituted court (before whom the statement shall be inadmissible)"

This section governed the admissions in the cases of Brown, Wright and McDonald. The provision was re-enacted as section 8 of the Northern Ireland (Emergency Provisions) Act 1978 which was the provision governing the case of McCaul.

[12] Soon after its enactment Lowry LCJ in R v Corey (December 1973) addressed a submission that there was a discretionary power to exclude a statement apart from the requirement to do so in section 6(2) in the 1973 Act.

"I agree with this general proposition since there is always a discretion, unless it is expressly removed, to exclude any admissible evidence on the ground that (by reason of any given circumstance) its prejudicial effect outweighs its probative value and that to admit the evidence would not be in the interests of justice.

Section 6, of course, has materially altered the law as to admissibility of statements by singling out torture and inhuman and degrading treatment. This is clear from the fact that such things have always made for the exclusion of an accused's statement since they deprive it of its voluntary character. Accordingly, section 6(2) would merely be a statement of the obvious if it did not, in conjunction with section 6(1) render admissible much that previously must have been excluded. There is no need now to satisfy the judge that a statement is voluntary in the sometimes technical sense which that word has acquired in relation to criminal trials."

[13] The scope of the discretion was addressed by McGonigal J in R v McCormick [1977] NI 105.

"In my opinion the judicial discretion should not be exercised so as to defeat the will of Parliament as expressed in the section. While I do not suggest its exercise should be excluded in a case of maltreatment falling short of section 6 conduct, it should only be exercised in such cases where failure to exercise it might create injustice by admitting a statement which though admissible under the section and relevant on its face was in itself, and I underline the words, suspect by reason of the method by which it was obtained, and by that I do not mean only a method designed and adopted for the purpose of obtaining it, but a method as a result of which it was obtained."

[14] In R v O'Halloran [1979] NI Lord Lowry LCJ made two general comments.

"(1) This court finds it difficult in practice to envisage any form of physical violence which is relevant to the interrogation of a suspect in custody and which, if it had occurred, could at the same time leave a court satisfied beyond reasonable doubt in relation to the issue for decision under section 6.

(2) It may be necessary another time, when considering statements of suspects, to distinguish more explicitly the meaning of the word "voluntary" at common law and "voluntary" as a shorthand expression for "not against the suspect's will or conscience" in the context of cases decided under the European Convention of Human Rights. The mere absence of voluntariness at common law is not by itself a reason for discretionary exclusion of a statement and the absence of voluntariness in the European Convention sense is prima facie relevant to degrading treatment and therefore again is not primarily concerned with the exercise of discretion."

[15] R v McCaul (12 September 1980) was the only case involving these appellants to be considered by the Court Of Appeal. The court identified the real issue at the trial as whether, having regard to the appellant's mental condition and the fact that he was interviewed without having present a parent or other person to look after his interests, the written statements and the admissions which he made to the police ought to be admitted in evidence and, if so, whether the learned trial judge ought to rely on them to the extent of being satisfied beyond reasonable doubt that he was guilty of the offences which he purported to admit. At the trial the learned trial judge had found that there was a breach of the Judges' Rules in not providing the appellant with access to his solicitor and a further breach because he was interviewed without anyone present to protect his interest. He concluded, however, that this had not resulted in such unfairness to the appellant that he should exclude the admissions in the exercise of his discretion. The Court of Appeal was satisfied that the learned trial judge's approach was correct and dismissed the appeal.

[16] The statutory background to the admissibility of statements in the exercise of the discretion was further considered by Hutton J in R v Howell and others (1987) 5 NIJB 10. That was a case in which it was accepted that the statement was admissible under the statute but the issue was whether or not it should be excluded in the exercise of discretion. The learned trial judge noted that the discretion should not be exercised so as to defeat the will of Parliament. He set out the first of Lord Lowry's general comments in O'Halloran and stated that it was the intent of Parliament in enacting section 8 of the 1978 Act that, provided there had not been torture or inhuman or degrading treatment, statements made by a suspect after periods of searching questioning whilst in custody should be admitted in evidence, notwithstanding that at the outset the suspect did not wish to confess and that the interrogation caused him to speak when otherwise he would have stayed silent.

[17] The final case on this issue to which we refer is R v Watson (26 September 1995). That was a case in which the issue was the exercise of the discretion to exclude an admission. By that stage the power to exclude in the exercise of the discretion had become statutory as a result of changes introduced in 1987. Carswell LJ gave some guidance on the approach to its exercise.

"This discretion, although it has to be exercised judicially, is a broad one. Like MacDermott J in R v Cowan [1987] NI 338, 352, we decline to define its bounds, which would be to fetter the discretion. The remark of Lord Lowry LCJ, however, in R v Mullan [1988] 10 NIJB 36, 41, that the exercise of the discretion is intended to discourage 'bad or doubtful conduct or trickery or dishonesty in conducting an interview or investigation' indicates an important area in which it may operate. It is for the trial judge in any case in which the discretion is invoked to consider the evidence and on the basis of his findings of fact to decide whether the admission of the statement would involve unfairness to the accused or whether it is otherwise appropriate to rule it out in the interests of justice."

[18] We have spent some time reviewing the law on the admissibility of statements of admission under the emergency provisions legislation because of a suggestion in decisions of this court in R v Mulholland [2006] NICA 32 and R v Fitzpatrick and Shiels [2009] NICA 60 that the test for admissibility was governed by the Judges' Rules. Accordingly it was submitted that any breach of the Judges' Rules indicated a departure from the applicable legal standard at the time. We have no reason to doubt the correctness of the outcome of the appeals in Mulholland and Fitzpatrick and Shiels but in neither case was the case law to which we have referred opened to the court. The cases to which we have referred demonstrate that admissions made in breach of the Judges' Rules were admissible under the emergency provisions legislation unless obtained by torture or inhuman or degrading treatment. The residual discretion to exclude such admissions would not be exercised to render statements obtained in breach of the Judges' Rules inadmissible on that ground only. That was the law at the time of these trials. None of the parties before us contended that this was a change of case law although all parties recognised that the standards of fairness had significantly altered as a result of legislative changes arising from PACE and the Human Rights Act 1998.

[19] In their oral submissions all of the appellants accepted that the statements of admission were properly admitted applying the standards of fairness appropriate at the time of these trials. We consider that the question of admissibility has to be judged both now and then against the background of the legislative regime put in place under the emergency provisions legislation. We will now consider how a change in the standards of fairness and procedural safeguards may be material to the issues of admissibility and reliability. That will inform our decision on the safety of these convictions.

Our approach to the safety of these convictions

[20] The leading case on the approach which a court should take in a case where there has been substantial delay between the trial and appeal resulting in a change of law or standards of fairness and procedural safeguards is R v King [2000] 2 Cr App R 391. The appellant had been convicted in 1986 of murder. The sole evidence against him was his admissions. He was taken by police to a police station on the morning of 15 November 1986 at 11.10 am. He was not cautioned or offered the services of a solicitor before interviews commenced at 11.35 am. He was interviewed on 10 occasions that day but was not cautioned or offered access to a solicitor until the last interview.

[21] In the course of the third interview it was noted that the appellant had admitted the murder and alleged that the murder weapon was an axe. It was common case that an axe was not used to kill the deceased. At the end of the fifth interview the officer in charge was told by the solicitor for a co-accused that the appellant was "a bit daft". This caused the officer to arrange for the presence of a social worker at the sixth interview. The social worker's evidence was that during that interview the appellant maintained that he was not going to confess just to suit police. He asked to go home. Despite the fact that he was not under arrest he was placed in a cell at the end of the interview.

[22] The social worker was not advised about subsequent interviews that evening. The appellant maintained his denial at the next interview but allegedly made oral admissions to a single police officer in the eighth interview and repeated them at the ninth interview. He made a written statement of admission at the tenth interview having been cautioned and declined the services of a solicitor at that interview. He retracted the statements of admission three days later on the basis that he had simply agreed with the suggestions put to him by police. At his appeal 12 years later fresh evidence was admitted to show that his IQ was 78, within the borderline of mental handicap and substantially lower than was thought at his trial, and that he was abnormally suggestible.

[23] Lord Bingham considered the general approach the court should take in such cases.

"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 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. "

The thrust of this part of the judgment was approved by this court in R v Gordon [2001] NIJB 50 and followed in R v Mulholland [2006] NICA 32. We consider that it is the approach which we should follow.

Peter McDonald

[24] Mr McDonald was born on 25 July 1960. He was arrested by the army in the vicinity of an incident in which two shots were fired at an Army Land Rover on patrol in the Creggan Estate in Londonderry at 15:15 on 13 December 1976 with one co-accused, Mr Doherty (who is now deceased). He was 16 years old and his co-accused was 15. He was handed over to police at 20:26 that day.

[25] During three interviews over the next 30 hours, he made three confessions. The first interview lasted four hours and ten minutes. It commenced at 21:35 and terminated at 01:45 on 14 December. During it he was interviewed by two teams of detectives. He made his first confession statement at 01:00 on 14 December, relating to membership of Fianna Na H'Eireann and trying to lure an Army patrol towards the Creggan incident. These are the incidents dealt with in the first indictment against him.

[26] His second interview lasting one and three quarter hours occurred on the afternoon of 14 December 1976 and resulted after 15 minutes in his second confession, dealing with the same incidents as the first. In his first interview he had made the case that he was acting alone in luring the army patrol. He had been arrested with a friend and in this interview he changed his account to include the proposed participation of the friend in the enterprise. He also stated that he and his friend had arrived too late to intercept the army patrol despite the fact that in his first statement he had described how he had attempted to lure an army vehicle to follow him along Linsfort Drive. Any investigation by police with the members of the army patrol would have established the inaccuracy of the first account. Whether police had discovered this by the time of the second interview is not clear. The appellant had asked to see his father at the outset but was permitted to see him only after the second confession. His father refused to countersign the confession, making allegations to police that his son had been badly treated.

[27] His third interview on the evening of 14 December, lasted three hours and twenty-five minutes, commencing at 19:35 and terminating at 10pm. He recorded a confession at 8.10pm that in September 1976, acting on instructions, he had spotted an Army foot patrol on Creggan Heights and notified IRA members who he believed intended to mount a mortar attack on it. The army had in fact detected a lorry containing rockets in connection with an operation in September 1976. This incident was prosecuted on the second indictment. He was charged at 17:30 on 15 December.

[28] He now says that at the outset he asked for but was denied access to a solicitor during questioning. He saw a solicitor only after he had been charged. The CCRC investigation concluded that there was no evidence from the police records or witnesses that he saw a solicitor at any time in police custody. There is no documentary evidence to support his contention that he asked for a solicitor, but the CCRC notes that the Bennett Report at paragraphs 12 and 272 observed that in practice solicitors were not admitted to see terrorist suspects before they were charged.

[29] He also now alleges that he was slapped, pushed about and intimidated by the investigating officers. He was "slapped about a bit" by army personnel on the way to the police station. He claims that there were four CID men in the interview room at one point during the first interview. During this interview, "the big CID man" (he thinks it may have been DC Johnston) pushed him up against the wall and slapped him. He made his first confession at this point as he now says that he was exhausted and crying. He says he was told to "tell us and you can go to bed". He claims that he told the police what they wanted to hear. He was not attacked physically during the second interview but was intimidated as there were 4 or 5 police officers behind him in the room. All but the first part of the first interview were conducted by DC Johnston and DC Thomson.

[30] A medical examination form completed as a result of an examination on 13 December 1976 noted no injuries and no complaints. A second form dated 16 December noted that he alleged being struck by a rifle butt on the right cheek at the army camp after his arrest and that he had a slight cut on that cheek. Mr McDonald confirmed in writing on 16 December 1996 that he had no complaints arising from his period in police custody. The CCRC's conclusion was that there was no documentary evidence to support his allegations of ill treatment by police officers. However, the CCRC obtained a number of files from the Public Prosecution Service containing complaints made by other detainees against officers including DC Johnston and DC Thomson.

[31] At a bail application on 7 January 1977 it was indicated that the admission statements were disputed and were not free and voluntary. At a Preliminary Enquiry on 19 May 1977 it was indicated that the admissibility of the oral and written admissions would be challenged. The transcript of the trial is not available but there is a contemporaneous record indicating that the appellant pleaded not guilty and that is consistent with his case that the statements were contested at the trial.

[32] The general principles to be applied when considering the safety of a conviction were set out in R v Pollock [2004] 34.

1. The Court of Appeal should concentrate on the single and simple question 'does it think that the verdict is unsafe'.

2. This exercise does not involve trying the case again. Rather it requires the court, where conviction has followed trial and no fresh evidence has been introduced on the appeal, to examine the evidence given at trial and to gauge the safety of the verdict against that background.

3. The court should eschew speculation as to what may have influenced the jury to its verdict.

4. The Court of Appeal must be persuaded that the verdict is unsafe but if, having considered the evidence, the court has a significant sense of unease about the correctness of the verdict based on a reasoned analysis of the evidence, it should allow the appeal.

[33] That exercise requires us to consider the issue of the admissibility of the appellant's confessions taking into account the statutory background set out above and applying modern standards of fairness and procedural protection insofar as it is possible to do so. Modern standards must also impinge on the reliability of the confession if admitted. When arrested this appellant was a 16 year old boy facing serious terrorist charges. He was detained initially by the army for a period of approximately 5 hours before being handed over to police. He was interviewed continuously for three and a half hours before any admission was obtained from him. The interview continued into the early hours of the morning. The appellant understandably complained to the CCRC of exhaustion. The terms of the admissions were subsequently contradicted in an alternative account the following afternoon. If the Crown case is that the second admission is accurate there is no explanation as to why he would have placed himself in a more active role in the offending in his first statement than was actually the case. The appellant apparently maintained that the admissions were not reliable throughout his trial.

[34] We accept that this 16 year old boy was interviewed in accordance with the regime established under section 6 of the Northern Ireland (Emergency Provisions) Act 1973. He did not have access to a solicitor nor was he accompanied by a parent or independent person. His statements were admissible under section 6 of the 1973 Act and the absence of access to a solicitor or parent would not of itself have rendered the convictions unsafe in our view. He was interviewed for three and a half hours before making his first admissions and the interviews continued into the early hours of the morning despite a force instruction that interviews should normally not extend beyond midnight. We consider, however, that the most important aspect of this case is that the applicant made admissions in that interview to his part in an attempt to lure army personnel into a trap when in fact it now appears that no such event occurred. We are satisfied, therefore, that the first statement was unreliable. There is no documentary evidence to support any allegation of ill-treatment. We accept, however, that it must follow from our conclusion about the reliability of this statement that the interviewers failed to recognise that this applicant had invented this episode when making his first admissions. Each of the remaining interviews was carried out by the same interviewing detectives. We have to judge the reliability of the second and third statements of admission against the background that the first admission was invented, the interviewers did not realise that the applicant had invented his participation in the alleged offence and the same interviewers took the two additional statements later that day. We are left with a sense of unease about the reliability of these admissions. We conclude that these convictions were not safe and that this appeal should be allowed.

James Brown

[35] Mr Brown was born on 6 March 1960. His convictions relate to two incidents; an explosion when an army foot patrol passed near Devlins's supermarket in Racecourse Road, Londonderry on 7 April 1976, and a single sniper shot fired at an army vehicle travelling along Carnhill on 22 August 1976. Mr Brown's three co-accused, Noel Cairns (18), Gerard Mullen (16) and Eric Wright (16), were arrested in late 1976 and made admissions in relation to these incidents.

[36] Mr Brown was arrested in a planned search of his home by soldiers on 1 January 1977 at 07:25. He was handed over to the police at 10:15. At 10:35 he was visited at the station by his father and examined by a police surgeon. No injuries or complaints were noted. At 12:02 he was interviewed alone by two detectives. He admitted orally that he was a member of Fianna na h'Eireann and that he had acted as a look-out in two incidents. The interview terminated at 12:57. His second interview started at 14.45 he allegedly dictated a signed statement again admitting membership of a proscribed organisation at 15:00. The interview continued and at 15:30 a further admission was made to acting as a lookout in the April 1976 incident. At 16:02, after being shown a map, he drew a sketch map of the area showing where he and others had been located. At 16:27, he dictated another statement in relation to the incident at Carnhill on 22 August 1976 and at 16:46 made a sketch plan showing where he and others had been standing. At 16:51 his father was admitted to the interview room and shown the statements of admission. The interview terminated at 17:12. That evening Mr Brown was again medically examined and no complaints or injuries were noted.

[37] Mr Brown and his co-accused were tried on 15-18 December. He was originally charged with a count of membership of a proscribed organisation, two counts of conspiring to communicate information likely to be of use to terrorists, one count of conspiracy to cause an explosion and one of conspiracy to discharge a firearm. One count of causing and one of attempting to cause GBH were substituted for these last two. Mr Brown entered not guilty pleas to all charges. At trial, there was no suggestion that the admissions were improperly obtained. The submissions on behalf of the appellant were that the admissions were not sufficient to establish the offences charged. Although Mr Brown had not admitted to actually signalling the presence of soldiers to anyone in his confessions, the judge, HHJ Brown, found that he had still been part of the enterprise. He found all defendants guilty as charged and the sentence in each case totalled 10 years. Mr Brown did not appeal his conviction. His application for leave to appeal against sentence was dismissed on 17 February 1978.

[38] Mr Brown claims that he was ill-treated by soldiers during his initial 2 hours 50 minutes of military custody. He further said in a statement to the CCRC that he was slapped and threatened by police during interview. He does not recall which police were involved, except that DC Semple was involved. The Commission has found no independent evidence to support the allegations of ill-treatment. The records of his medical examinations contradict this. There are no similar complaints made against the officers in question. Mr Brown's recollection is that he did not recognise the court or give evidence. This is why no mention was made of his ill-treatment or the refusal of access to parents or solicitor. It is clear, however, from the account given by counsel who appeared in the trial that he was represented which would not have been the case if he had not recognised the court. Mr Brown's recollection on this issue is clearly wrong. In his statement to the Commission Mr Brown frankly recognises that his recollection of his arrest, interrogation, remand and trial are unclear.

[39] The initial admissions in this case were made in the course of an interview lasting approximately 55 minutes in the middle of the day. There is no independent evidence to support the allegations of ill-treatment. There are contemporary records of medical examination which find no injury and no complaint of ill-treatment. There is no suggestion that the statements are in any way contradictory or inaccurate. They were not challenged at the trial and no explanation has been offered as to why that did not happen. The conviction was not appealed. Counsel for the appellant in this appeal has speculated that there may have been a strategic decision not to challenge the statements but that is not suggested by counsel then appearing for him. We recognise that the admissions were obtained in breach of the Judges' Rules in that the appellant did not have access to a solicitor or an independent adult of family member but in light of the statutory background we cannot conclude that the admission of the statements renders the convictions in this case unsafe. The case made now by the appellant is that he made the statements because of ill-treatment by soldiers and police. Not alone is there no independent evidence to corroborate this but the contemporaneous medical examinations tend to refute it. The appellant accepts that at this stage that his recollection of events is unclear. In light of all of the circumstances we do not consider that it was unsafe to rely on these statements. The appeal is dismissed.

Eric Wright

[40] The appellant was born on 25 March 1960. He was arrested at 20:55 on 7 December 1976 after giving a false name to soldiers at a border security road check. Three other young men made admissions in relation to the same offences; Noel Cairns (18), James "Seamus" Brown (aged 16), Gerard Mullen (aged 16). Mr Wright applied to the Commission because it notified him of Mr Brown's case.

[41] He was transferred to police custody at Strand Road in Derry at 00:40 hours on 8 December 1976. He was interviewed between 00:40 and 01:15 and made an admission to being a member of Fianna na h'Eireann. He was then further interviewed under caution from 09:15 to 10:30. He confirmed the account of his first interview and at 09:25 made written admissions to being a lookout when an Army Land Rover was blown up in Carnhill earlier in the year. He indicated the location of the incident by referring to a map. He saw a relative at 10:30. He commenced a further interview at 11:50 which continued until 13:00. No admissions were made in that interview. His next interview commenced at 15:00. He made a written confession to acting as a lookout when an explosion occurred near Devlin's supermarket (at 15:26) and to carrying some shotgun cartridges across the border (at 15:50). At 16:55 he described acting as a lookout at an incident on the Racecourse Road in August 1976. At 19:30 he was visited by his parents, who declined to countersign his confessions. He was interviewed about other matters on 9^th December and thereafter charged.

[42] The appellant was medically examined at 01:40 on 8 December 1976. It was noted that he was not alleging assault of ill-treatment and there were no marks or signs of injury. He was further examined on the evening of 9 December and the morning of 10 December. On both occasions it was recorded that he denied any ill-treatment and no relevant sign of injury was detected.

[43] At trial of the appellant and his co-accused on 15 to 18 December 1977, he pleaded guilty to one count of belonging to a proscribed organisation, two counts of conspiracy to communicate prohibited information, one count of unlawful possession of ammunition and one count of possessing ammunition without a licence. He pleaded not guilty to one count of causing GBH with intent and one count of attempting to cause GBH. These last two were substituted for a count of conspiracy to cause an explosion and conspiracy to discharge a firearm. There was no suggestion that the admissions had been improperly obtained. The two GBH charges were preferred in relation to incidents about which he had made admissions about keeping lookout. There was no other evidence in relation to those charges. HHJ Brown was satisfied that "he knew perfectly well the sort of thing, not the precise detail, exactly what was in store for any foot patrols in the district" and was satisfied that the onus of proof had been discharged. The sentences on the applicant and his co-accused totalled 10 years in each case.

[44] The appellant claims that he was kicked in the legs and testicles while in army custody. He asked for a solicitor when he was first interviewed but the police officers laughed. He claims that he was hit on the back of the head, banged against a wall and punched in the kidneys. He says that the statements were made because of this ill-treatment. He denies that he was seen by a doctor in the police station. When it came to his trial he says that his solicitor and barrister advised him to plead to the charges he did and contest the two remaining counts on the basis that the admissions did not establish the offences.

[45] There is no independent evidence to establish the allegations of ill-treatment. The CCRC investigation has uncovered evidence of reports as a result of three medical examinations while the appellant was in police custody. The appellant denies that he was medically examined during that period. Each of those reports appears to be signed by the relevant medical practitioner and each records that the appellant had no complaints of ill-treatment and no signs of injury. The appellant has proffered no explanation for these findings but they cast very considerable doubt on his allegations.

[46] This appellant made oral admissions in the course of his first interview lasting 35 minutes. Within 10 minutes of his second interview the following morning he started to provide a written statement of admission in relation to those matters and another matter. He made three further written statements in the course of two hours of interviews that afternoon. He pleaded guilty to most of the offences and did not challenge the admissibility or reliability of his statements when contesting the two counts to which he pleaded not guilty. His account of ill-treatment is not corroborated and is contradicted by the contemporaneous medical evidence. We do not consider that these convictions were unsafe. The appeal is dismissed.

Stephen McCaul

[47] This appellant died on 13 October 1995 but we are satisfied that George McCaul, his father, is a person who should be approved for the purpose of pursuing this appeal. We will refer to Stephen McCaul hereafter as the appellant.

[48] The appellant was born on 15 March 1963. He was arrested at his home in Twinbrook on 7 March 1979 and taken to Castlereagh Police Office where he was interviewed. He had two interviews on the afternoon and evening of 7 March lasting for a total period of 4 hours and 15 minutes. He was detained in custody overnight and had two further interviews on the morning and afternoon of 8 March by which time he had been interviewed for a total period of 8 hours and 10 minutes. According to police he made oral admissions during these interviews relating to his part in two bus hijackings and two burglaries where shotguns were stolen. His fifth interview on 8 March lasted from 19:50 until 00:10 and the Crown case was that he had dictated 5 voluntary statements relating to the 10 counts on which he was charged.

[49] The admissibility and reliability of the statements were contested at the trial. Dr Nugent, a consultant psychiatrist who examined and assessed the appellant found that he had a mental age of 7 and an IQ of between 50 and 60. He concluded that he was highly suggestible and could not have dictated the written admissions allegedly attributed to him. He had attended a special school and could neither read nor write. His mother was also called to prove his suggestibility.

[50] One of the interviewing officers said that he had discovered in the course of the first interview that the appellant was attending a special school and that he could neither read nor write although he could write his name. He contacted his superior officer by telephone to seek guidance on whether the interview should continue without an appropriate adult present in light of the appellant's mental handicap. Detective Inspector Meeke decided that the interview should continue. Both of the interviewing officers said that they saw nothing during the interview to suggest mental handicap or incapacity. Both asserted that the written statements had been dictated by the appellant. No medical evidence was called on behalf of the prosecution to take issue with the opinion of Dr Nugent.

[51] In this case counsel for the appellant relied on the failure to comply with the Judges' Rules and in particular with the failure to comply with Rule 4A dealing with the interview of those suffering from mental handicap which was introduced in the 1978 edition of the Administrative Directions to the Rules. The learned trial judge accepted that he should approach the case on the basis that there was a breach of the Administrative Directions both because an independent adult was not present because of his age and also because of his mental handicap. He concluded, however, that he should accept the evidence of the police officers that the appellant had dictated the statements as asserted by them and accordingly discounted the evidence of Dr Nugent in relation to suggestibility. The Court of Appeal detected no error in the learned trial judge's approach and dismissed the appeal against conviction although it did reduce the sentence from 3 years to 18 months imprisonment.

[52] It is clear that the learned trial judge entertained some reservations about the evidence of Dr Nugent and we can see that he had some basis for being cautious about it. Dr Nugent is a psychiatrist but felt able to offer an estimate of the appellant's IQ. Such an assessment would normally be made by a psychologist. Dr Nugent did not conduct any tests, approved or otherwise, to come to his conclusion. He also asserted that the appellant was abnormally suggestible. Again it is not clear how he arrived at such a conclusion. His expertise in this area was not explained. We know now that this is a complex area of interdisciplinary work.

[53] The learned trial judge recognised, however, that the appellant attended a special school and clearly suffered some form of mental handicap. The suggestibility of persons in the position of this appellant has been the subject of considerable research and it appears that Dr Nugent's opinion on this issue may well have had considerable substance. The learned trial judge stated that he preferred the evidence of the police officers who said that the appellant had dictated the written statements made in the fifth interview but it is necessary to take into account that there had been four previous interviews when all of these matters had been discussed at some length. One of the issues which now arises is whether that in itself provided the basis for the appellant's willingness to make the written statements recorded over a period in excess of 4 hours at the fifth interview.

[54] There is now a considerable body of evidence to suggest that mentally handicapped young people are likely to be more vulnerable in police interviews because they may be suggestible. This much was recognised in R v Hussain [2005] EWCA Crim 31. The very case made on behalf of the appellant at trial was that he was suggestible. In those circumstances the absence of a solicitor or independent adult gives rise to real concerns about the reliability of the admissions. We are, therefore, satisfied that this conviction is unsafe and we allow the appeal.