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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> McCartney & Anor, R. v [2007] NICA 10 (15 February 2007)
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Cite as: [2007] NICA 10
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Ref: CAMF5744
Campbell L.J
[1] The convictions of Raymond Pius McCartney and Eamonn MacDermott in 1979 for murder and other offences have been referred to this Court by the Criminal Cases Review Commission ("the Commission") in the exercise of its powers under Part 11 of the Criminal Appeal Act 1995. Where the Commission refers a conviction to the Court the reference is, by virtue of section 10(2) of the 1995 Act, to be treated by it as an appeal under section 1 of the Criminal Appeal (Northern Ireland) Act 1980. It is therefore the duty of the Court under Section 12(2) of the Criminal Appeal (Northern Ireland) Act 1980, as amended by section 2(4) of the 1995 Act, to allow the appeal if it thinks that the conviction is "unsafe".Raymond Pius McCartney
[2] At Belfast City Commission on 12 January 1979 Raymond Pius McCartney was convicted and sentenced as follows;(i) The murder of Geoffrey Standford Agate - Life imprisonment,
(ii) The murder of Detective Constable Liam Patrick McNulty - Life imprisonment,
(iii) Membership of a proscribed organisation, the Irish Republican Army - 5 years' imprisonment, concurrent with the life sentences.
The trial judge directed that a period of 25 years should elapse before his release.
[3] He appealed against these convictions and the Court of Appeal dismissed the appeal on 29th September 1982. [4] In July 2002 his present solicitors made an application on his behalf to the Commission and this led to the reference being made. [5] At an earlier stage in these proceedings the Court received fresh evidence, under section 25 of the Criminal Appeal (Northern Ireland) Act 1980, in the form of memoranda from the files of the Public Prosecution Service. The content of these will be referred to later in this judgment.Eamonn MacDermott.
[6] Eamonn MacDermott was tried also at Belfast City Commission and convicted and sentenced on 12 January 1979 as follows;(i) The murder of Detective Constable Liam Patrick McNulty – Life imprisonment,
(ii) Conspiracy to collect information - 5 years' imprisonment,
(iii) Belonging to a proscribed organisation - 5 years' imprisonment,
(iv) Attempted murder of Gunner John Kevin Bassett - 14 years' imprisonment,
(v) Possession of a firearm with intent to endanger life - 10 years' imprisonment,
The determinate sentences were made concurrent with the term of life imprisonment for murder. He was acquitted on three counts on the indictment which related to the shooting of a soldier on 23 March 1974.
[7] On appeal to the Court of Appeal on 29 September 1982 the convictions were affirmed and the appeal dismissed.
[8] MacDermott's solicitors applied to the Commission in March 2002 to have his convictions reviewed and his case was considered together with that of Raymond McCartney. As a result his convictions were also referred to this Court.The murder of D/C Patrick McNulty
[9] A few minutes before 9 a.m. on 27 January 1977, Detective Constable Patrick McNulty was shot and killed as he arrived in his private car at Desmond's Garage in Londonderry. [10] Using the name Murphy he had arranged to leave his car into the garage for repair on 27 January at 9.a.m. He drew up at the rear entrance to the garage and as he waited for the gates to be opened a witness saw two men carrying pistols standing beside his car. Six shots were discharged and DC McNulty fell across the front seat. He was taken by ambulance to hospital and on arrival he was pronounced dead. A post-mortem examination showed that he had been hit by four bullets and that one of them had caused a fatal injury. [11] After the shooting two men ran from the scene towards a red Datsun car and when they got into a car it was driven off at speed. The registration number of the car was noted as 9543 UI and later that day a red Datsun with the registration number 9943 UI was discovered in Limewood Street in the City. Two empty .223 cases were found in it. [12] At the scene of the shooting a .223 case was also found which, in the opinion of an expert, had been fired in the same weapon as the two cases found in the Datsun car in Limewood Street. Four spent bullets of .38 calibre were recovered from the body of D.C. McNulty and from the overcoat that he was wearing when he was shot.The murder of Mr Jeffrey S. Agate
[13] On 2 February 1977 at about 6.30pm Mr Jeffrey S. Agate, the managing director of the DuPont factory in Londonderry, was killed in the driveway of his home on the outskirts of the City. At a post mortem examination five bullets were found in his body and three of these were of .38 calibre and two were of .32 calibre. It was established by an expert that the weapon that fired the three .38 rounds was also used to fire the .38 rounds that killed D.C.McNulty.The arrest of Raymond McCartney
[14] Raymond McCartney (then aged 22) was arrested at a house in Elmwood Road in Londonderry at around 10.50pm on the evening of 2 February 1977 following the murder of Mr Agate. Another person, who gave his name as William Pius Harkin, was also arrested. It was established later that the correct name of this person was John Thomas Pius Donnelly. As Raymond McCartney was being taken from the house in Elmwood Road he put on a duffle coat. The two men were taken to Strand Road police station where they were questioned before being transferred to Castlereagh station in Belfast. [15] On the same evening Hugh Gerard Brady and James Peter Anderson were arrested in Londonderry and they were also taken to Strand Road station. [16] While he was at Strand Road firearm swabs taken from McCartney together with the sweater and duffle coat that he was wearing were removed for examination by a forensic scientist. The expert who carried out the examination said that he found traces of antimony on the swabs from McCartney's left palm and hair and on parts of the duffle coat that he had worn. McCartney gave evidence that this duffle coat was not his own and that he had taken it at random to wear before leaving the house following his arrest. Although the trial judge found this explanation unconvincing he accepted that taken in isolation the finding of traces of antimony would be insufficient to sustain a case of murder. The judge made it clear that in relation to the murder of Mr Agate and of Detective Constable McNulty the Crown case rested entirely upon statements of admission.The interviews and medical examinations
[17] On 3 February 1977 at 12.36 am Dr Mitchell carried out a medical examination of McCartney at Strand Road Police Station. He recorded that he did not find any signs of recent injury to his head, face, trunk or limbs and his nose ears and mouth were normal. McCartney was refusing to wear a boiler suit that he had been offered. Presumably this offer had been made because his clothing had been removed for forensic examination. McCartney was later interviewed at Strand Road between 6.30am and 8 am. A second medical examination was carried out by Dr Mitchell, at Strand Road, at 8.45 am and he found that there was no change in his condition. The doctor noted that McCartney was still without clothing though he had been given a blanket and efforts had been made to obtain clothing for him. The trial judge noted that McCartney made no complaint of ill- treatment at Strand Road. [18] During the morning of 3 February 1977 McCartney was moved from Strand Road to Castlereagh Police Station in Belfast where he was held under a seven day detention order. John Pius Thomas Donnelly, Hugh Gerard Brady and James Peter Anderson were also moved from Strand Road to Castlereagh station where they were detained under a seven day order.
[19] When McCartney arrived at Castlereagh, at 11.40am, he was offered an examination by Dr Emerson which he declined. He made no complaint about his treatment. He continued to be held at Castlereagh until Monday 7 February. During this period of five days he was interviewed on a total of eleven occasions. The dates and times of these interviews and the names of the interviewing officers and of the medical examiners are set out in the table below (the interviews have been given numbers for ease of reference).
| Thursday 3 February Arrives Castlereagh at 11.40am Medical examination declined |
Dr Emerson |
| 1. 2.30pm to 5.00pm | D.C.McCabe and D.C.Taylor |
| 2. 7.40pm to 9.50pm | D.C.Bohill and D.C. Dalton |
| 3. 9.50pm to 12.20am | D.I. Patterson and D.C.Patterson |
| Friday 4 February 4. 10.35am to 11.00am |
D.I.Patterson and D.C.Wilson |
| 5. 11.00 am to 2.50pm | D.S.McCoubrey and D.C.Bohill |
| 6. 4.50pm to 6.35pm | D.S.McCoubrey and D.C. Bohill |
| 7. 8.40pm to 11.50pm | D.Ch.Supt. Mooney and D.Supt. Brown |
| Saturday 5 February 8. 10.45am to12.50pm |
D.S. McCoubrey and D.C.Bohill |
| 9. 2.30pm to 4.40pm | D.S.McCoubrey and D.C.Wilson (to 3.15pm). |
| Sunday 6 February 10 4.00pm to 5.20pm |
D.C Bohill |
| 5.30pm Joint Medical examination | Dr Henderson (Force Medical Officer) Dr Hendron (On own behalf) |
| Monday 7 February 11. 8.00pm to 8.35pm |
D.C.McKernan |
The judgment with regard to McCartney
[33] In the opening paragraphs of his judgment the judge said that as a prima facie case of ill- treatment had been established the burden rested squarely on the Crown to satisfying him beyond reasonable doubt that McCartney was not ill treated. He referred to his residual discretion to exclude evidence otherwise admissible if he considered it proper to do so. [34] The judge described McCartney as both intelligent and shrewd and as having a good memory. He said that he formed the impression that McCartney was using his memory not to recall events that had actually happened but his version of these events. He sensed that below a courteous exterior there was a person of considerable determination and ruthlessness. [35] The evidence of Dr Hendron was scrutinised by the judge. He accepted that Dr Hendron believed that McCartney and the other three men had been assaulted while at Castlereagh but had reached this conclusion having heard only one side of the story. Coloured by this belief his evidence lacked the professional objectivity shown by other medical witnesses. He concluded that the marks seen by Dr Hendron were not caused by McCartney being ill-treated or assaulted by the police. [36] As for the case made by McCartney that he had made no admissions and that his statements had been concocted by the police, the judge was satisfied that as the interviews proceeded the detectives made notes and that the statements of admission were made at McCartney's dictation. He found that the evidence of the two police officers who recorded them was entirely acceptable. In reaching this decision support was found in the evidence of Detective Chief Superintendent Mooney who said that during an interview McCartney told him that when he went into prison he wanted to ask for a priest and to confess to him. [37] The judge considered whether the evidence of Brady and Donnelly or of either of them assisted McCartney in his claim that the prosecution had failed to discharge the onus of proof that lay upon it. [38] Bearing in mind the factors that he had mentioned when making his original ruling he said that the Crown had satisfied him beyond reasonable doubt that McCartney was not ill-treated and that as the statements were clearly relevant they were admissible. [39] McCartney's father and a brother had given evidence that he was at his own home at the time that Mr Agate was murdered. When the judge took into account McCartney's admission of the shooting his view was that his father and brother were in error. [40] McCartney was convicted of the two murders and membership of a proscribed organisation.The arrest of Eamonn MacDermott
[41] In 1977 Eamonn MacDermott was 19 years of age and he had worked in Desmond's Garage as a petrol pump attendant since October 1976. He was suspected by the police of being an intelligence officer in the Provisional Irish Republican Army. He had been imprisoned for an offence of possession of a firearm and released from custody in April 1976. [42] He was arrested at 9.55am on 31 January 1977 and taken to Strand Road station. His first interview there was with DC French and DC Dalton. He denied that he had any role in the murder of DC McNulty or that he was a member of the Provisional Irish Republican Army. That same evening he was interviewed again by DC French and DC Dalton, on this occasion for a period of seven hours, the interview ending at 1.50am. The prosecution case was that he made a statement of confession, which was recorded by DC French, between 11.54pm on 31 January and 1.26am on 1 February. [43] In this statement MacDermott described joining the Fianna and later graduating into the Provisional IRA. Following his release from custody and his return to Derry in April 1976 he said he intended to sever his connections with the PIRA. In July 1976 the OC of a battalion of the Derry Brigade asked him when he was returning. This inquiry was repeated early in August 1976 and he knew that this person wanted him back and being afraid of him he told him that he would be back the following week. He did rejoin and within two weeks of doing so he was made the intelligence officer. He received information about the colour, make and registration number of the car driven by D C McNulty. At the end of November 1976 during a battalion staff meeting he passed on this information. Soon after this he was employed by Desmonds where he noticed DC McNulty's car parked in the garage for repair. He reported this information to a staff meeting in December 1976 and he was instructed to find out when the car would be returning to the garage. Shortly before Christmas the car was back in the garage and MacDermott asked a mechanic the name of the owner. He was told that the owner was a Mr Murphy. He then kept a check on a book in the reception office to see when the car was next due in for service. He noticed that it was to be in during the month of January and as the entry in the book had indicated the car was brought in. He reported this to his battalion commander who instructed him to find out when it would next be back in the garage. On 26 January he saw that it was booked in again at 9am on the following morning and he reported this to a member of the battalion staff. He was off work the following day and his mother told him that a policeman had been shot. In his statement he expressed remorse at what he had done. [44] In a second statement, written in his own hand and made in the presence of D/C McCabe and D/C Taylor at 3.30pm on 1 February 1977, MacDermott said that on 27 January he went to the Bogside at about 3pm where he met some other fellows. They told him what had happened. They had waited in a hijacked orange coloured Datsun car until they saw DC McNulty arrive in his car. Two of them got out and walked to the side of his car. One was armed with a pistol and the other with an Armalite and they "banged" him and ran back to the car. They then drove to Shantallow where they dumped the weapons before returning to the Bogside where they abandoned the car. [45] MacDermott made two further statements, one at 4.43pm on 1 February and the other at 4.55pm. They were both in his own handwriting. In the first he admitted firing several shots with an Armalite and hitting a soldier in the leg or groin in March 1974 and in the second he admitted firing on soldiers with an Aramalite in March or April 1974 when he struck a soldier in the leg. He claimed that these statements were dictated to him by the police officers and that he wrote down what they said to him. [46] MacDermott's case at his trial was that he had been abused and threatened both on the way to being interviewed and during interview at Strand Road. He said that he had been ill-treated and beaten prior to making the statement of admission (on which the prosecution was based) at the long interview on the night of 31 January which lasted into the early hours of 1 February. He said DC Dalton, one of the interviewers, slapped him across the face several times, punched him in the stomach and pulled his hair. He claimed that he was pinched, throttled for ten to fifteen seconds and cuffed about the base of his neck. [47] He claimed that on the way to the first interview DC McCabe, who was escorting him, told the other officers that he was petrified and would be easy. He said he was shown photographs of bomb victims and told that if he did not co-operate the police would bring in Derry men, who had been colleagues of DC McNulty. According to MacDermott during this interview DC Dalton and DC French told him that they were about to go and get the Derry men. [48] The defence case was that a combination of physical ill-treatment and psychological abuse and threats eroded MacDermott's mental stability so that when his long statement was written out by DC French (who said that this was done at MacDermott's dictation) he did not care what was put into it. He said that he was lying on a bed when it was alleged that he dictated the statement. [49] Medical evidence was called at the trial covering six examinations that were carried out during the initial period of his detention. The first of these took place between 5.10pm and 5.20pm on the evening of 31 January and was performed by Dr Munroe. MacDermott made no complaint to him of assault or ill-treatment. There was an area that was tender at the base of his spine which was thought to have been caused on the journey to the station in a Land Rover. Two small bruises were noted at the side of his neck and described as "love bites". [50] The second examination took place just over twenty –four hours later on 1 February from 6.10pm to 6.20 pm. It was carried out by Dr Sheils and he received a complaint from MacDermott that he had been struck across the face the night before during periods of questioning and again that morning. It is recorded on the medical form that he was alleging assault or ill-treatment. The Doctor found no external signs of recent injury but there was tenderness on the left side of the jaw and on both ears. [51] Eammon MacDermott's parents visited him at 10.55pm on 1 February. Dr MacDermott, a medical practitioner, said that his son looked pale and was very agitated and somewhat disorientated. He described his pupils as dilated and both his cheek bones as tender. He said that he detected an extra systolic heartbeat and concluded that his son had been through extreme stress and pain. [52] Dr Raymond McClean, who was from the same practice as Dr MacDermott, was described as Eammon's own doctor. He examined him during the morning of 2 February and his record shows that he was "Presenting as with a certain degree of anxiety tension, but very well orientated… otherwise physical examination of no significance." Dr McClean was not called to give evidence at the trial. [53] The next examination was conducted by Dr Munroe on the afternoon of 2 February. He recorded that there were no signs of recent injury. The final medical examination was carried out by Dr Mitchell on the morning of 3 February and he also recorded that there were no signs of recent injury. [54] At the conclusion of the voire dire the judge stated that he was absolutely satisfied that MacDermott was not ill-treated in any way and that there was no material to cause him to exercise his general discretion to exclude any of his statements. [55] Having confirmed that "the Crown case against MacDermott in respect of all these charges rests entirely upon statements of admission alleged to have been made by him" the judge went on to hold that MacDermott was a party to the killing of DC McNulty by collecting information as to when he was due to bring his car to the garage and passing this on to the PIRA and therefore guilty of murder. He found him guilty of the shooting of Gunner John Kevin Bassett on 23 March 1974 and possession of a firearm on that occasion and not guilty on the three counts relating to the shooting of Guardsman Leonard William Sanders.
The evidence of Donnelly and Brady
[56] In order to consider what effect, if any, that the "fresh evidence " may have had on the judge's findings it is necessary to refer in some detail to the evidence given at the trial in relation to Donnelly and to the conclusion that he reached about it and about Brady's evidence. [57] At 1.25 am on 3 February, soon after his arrest, Donnelly was examined by Dr Mitchell at Strand Road. He had no injuries and made no complaints. Following this he was interviewed between 1.30am and 8am by four police officers working in pairs and in rotation. When he was seen again by Dr Mitchell at 8.26am, he made complaints to him. He said that he had been punched in the stomach, arms and sides and that an officer had pulled him round the room by the hair while others kicked him around the legs. He said that another officer bent back his fingers. Dr Mitchell found evidence of injuries. Donnelly's left ring finger was bruised and swollen and his lower lip was swollen with a small cut. There was a 1cm long mark over his first lumbar vertebra and he had four small red marks around his left knee and three marks on his right knee. [58] After this Donnelly was transferred to Castlereagh station and Dr Emerson examined him on his arrival there. He found the same injuries as Dr Mitchell had noted with some additional details. He added to his report that "In his opinion the findings were consistent with most of the allegations made." He arranged for Donnelly to be taken to hospital to have his finger treated. No bony injury was found. [59] The police officers' version of events at Strand Road was that Donnelly struggled when he was brought to the interview room and had to be restrained. At 4.15am he leapt up and struck one of the interviewing officers and again had to be restrained. [60] Donnelly also made allegations about his treatment at Castlereagh. He was interviewed there on 3 February and over the following three days. He made one statement of admission at 10.15pm on 3 February after a period of 24 hours following his arrest during which he had no opportunity to sleep. [61] He said that at each interview he was kicked in the abdomen and chest, slapped around the head and his hair was pulled. On 7 February and on 22 August 1977 he made detailed statements about his treatment. He was able to identify one of the officers who interviewed him between 8pm on 4th February and 3.30am on 5 February as DC Newell because he was the only officer who gave him his name. It has been established from the records that he was accompanied by DC French. [62] DC French was one of the officers that interviewed MacDermott at Strand Road station on 31 January and at his trial (but not before it) MacDermott said that it was DC French who wrote out his statement about the Agate murder. [63] Donnelly was examined by Dr Hendron and Dr Henderson at 6.45pm on 6 February. There was an area of bruising 4"x4" in the epigastric region with small peripheral bruises. Bruising was also noted on the right iliac crest, above the right eye, on both upper arms, on the right leg in the left renal area and in the lumbar area. There were two bruises on the right buttock and his left ring finger was swollen. There was also evidence of hair missing over an area 3"x 2" in the occipital region. [64] Donnelly said that he was not abused further after the two doctors saw him on 6 February [65] An examination was carried out by Dr Irwin and Dr Delargy at Townhall Street on 10 February and the doctors said that the marks on Donnelly's body were all approximately four to five days old. The judge said that the language of the doctors indicated that they were "shocked and horrified by what they saw." No loss of hair was noted when Donnelly was medically examined on his arrival at Castlereagh so the loss of hair must have occurred there. [66] During the closing speech by counsel for the prosecution the judge inquired why the charges against Donnelly had not proceeded. He said this;"One thing that may or may not have a great deal to do with the case is this. Donnelly was charged at one stage and the charges were not proceeded with. Now if I go into the Donnelly's statement in any great detail or depth one could think adversely to it and be placed in a potentially difficult position. Am I right in saying that the position is that he was charged and then what happened? The court was informed that no evidence was being offered?."
Counsel for the prosecution responded "He was never returned for trial. The charges were not proceeded with."
[67] The judge was not impressed by Donnelly who he said was either "gilding the lily," being inventive or dishonest. He felt unable to accept his evidence at face value. He was satisfied that he had not been ill-treated or assaulted while at Strand Road. He thought that the abdominal bruising was unlikely to have been self-inflicted but remained of the view that he was a person who could inflict severe injury on himself if he felt that the situation warranted using such means. Although he found that there were more "loose ends" to his evidence than in the case of Brady he felt that it would not assist if he were to deal with the hypothetical issue as to how he would determine a civil case brought by Donnelly on the evidence before him. [68] The judge's assessment of the evidence about Brady was that he had grossly exaggerated to the doctors when they examined him and again when he was giving evidence. He regarded him as dishonest and the type of person who would be prepared to injure himself while in police custody. The judge was not satisfied that he had been ill-treated.The fresh evidence
[69] As a result of inquiries made by the Commission internal memoranda have been obtained from the Public Prosecution Service. These show that when the Office of the Director of Public Prosecutions was considering the case against Donnelly it was decided that a) in relation to the charge of murder of Mr Agate the evidence against him was insufficient and b) on the charge concerning the transport of a bomb based on a confession made at Castlereagh on 3rd February, his injuries and lack of sleep "must militate against a court accepting the statement as voluntary." A recommendation was made that D.C. French and D.C. Newell be prosecuted for assaulting Donnelly however the recommendation was not accepted by the Senior Assistant Director. One reason given for this was the lack of medical evidence of some of the assaults that Donnelly had alleged. Another was that Donnelly alleged that he had been assaulted at every interview and as he had been interviewed by eight or nine detectives there was no prospect of establishing that any particular injury was inflicted by DC Newell or D.C. French. The Senior Assistant Director did say however that in his view "on the medical evidence there is no doubt that the complainant was assaulted whilst in custody in Castlereagh." The exchanges in the memoranda took place within the Office of the Director between October 1977 and early March 1978. [70] It is suggested that had the judge known of this it is possible that it may have influenced his decision to accept the Crown case that McCartney and MacDermott, who had been interviewed by members of the same team of detectives as Donnelly, had not been ill-treated. [71] Further, MacDermott made an allegation against DC French similar to that made by Donnelly. He said that during a long interview at night this officer had assaulted and intimidated him and then written out his statement of confession. Donnelly made this allegation during the trial and after MacDermott had given evidence. [72] Another matter that has come to light since the trial is that a month before Donnelly was interviewed, between 2 and 5 January 1977, Robert Barclay was interviewed by DC French and DC Newell. He alleged that they assaulted him by slapping him and punching him and that they had threatened him. A solicitor stated that when he saw Mr Barclay in court on 4 January he had a black eye and two doctors who examined him found injuries. Mr Barclay was convicted and sentenced to seven years' imprisonment. This conviction was later quashed by the Court of Appeal. The only record of the appeal that is available indicates that the Lord Chief Justice said that the court had concluded that it was not possible to exclude the conclusion that the injuries found on Mr Barclay had been inflicted at Omagh police station and this rendered inadmissible any statement made by him. [73] The matter did not end there because Mr Barclay brought a private prosecution against DC French and DC Newell. In his judgment, which was delivered on 25 April 1979, the trial judge accepted that there was a strong prima facie case that Barclay had been assaulted however he decided that Barclay had been dishonest in certain respects not relating to his injuries and that there was some uncertainty as to the timing of them. In addition he could not be certain that they had not been self -inflicted. Applying the standard of proof in a criminal case he acquitted the officers. The point made by the Commission is that this finding of a prima facie case raises doubts about the credibility of DC French who denied assaulting MacDermott.The Commission's view.
a) MacDermott's case
[74] The Commission is of the opinion that the medical evidence established a prima facie case that MacDermott was ill-treated as he alleged and the onus passed to the prosecution to prove that he had not been ill-treated before his statement of admission could be admitted in evidence. The Commission considered, as this court agreed, that the new material satisfied the criteria for new evidence. In the view of the Commission it is possible that this evidence may have altered the judge's assessment of the police officers' credibility.b) McCartney's case
[75] The Commission acknowledges that there is not as close a connection between the case of Donnelly and McCartney as there is between that of Donnelly and MacDermott. In the latter case both were interviewed by DC French and each made allegations against him. The officers who interviewed McCartney and MacDermott were all members of the same team that was investigating the two murders. At one stage the prosecution of some of these officers, for acts of violence during interviews, was under consideration. The judge expressed the view that it was unlikely that officers would resort to violence during interviews. Had he known these facts he may have been less willing to accept the denials of ill-treatment to McCartney and to admit the confession statements in evidence.The arguments advance on behalf of McCartney.
[76] Miss McDermott QC submitted that the circumstances in which McCartney was held were oppressive. While he was at Strand Road he was given little more than fours hours to sleep. On the evening of 3rd February he was interviewed for four hours and forty minutes without a break by two sets of detectives. On 4th February he was interviewed for a continuous period of four hours and fifteen minutes, again by different pairs of detectives without a break for a meal. In the last forty minutes of this interview he was said to have made a voluntary written statement admitting his part in the murder of D.C. McNulty. After a further interview on that day lasting four hours and fifty five minutes he was said to have made an admission as to his role in the murder of Mr Agate. He was not given access to a solicitor contrary to the Judges' Rules. [77] Counsel suggested that if the trial judge had been aware of the matters that have since come to light it may have tipped the balance in favour of McCartney's case especially if he was satisfied that Donnelly was ill-treated. She suggested that if counsel for the prosecution had known the reason why the prosecution of Donnelly was discontinued he would not have put to him in cross- examination that apart from having been in a "fight" with police officers at Strand Road his injuries were self inflicted. [78] Miss McDermott told the court that no record exists of the prosecution brought against John Peter Anderson, the third person that the defence sought leave to call at the trial but did not call. She said the recollection of counsel was that the evidence against him consisted of admissions he was alleged to have made at Castlereagh between 3 and 6 February 1977. He challenged these admissions at his trial and asked for leave to call Brady and Donnelly. Counsel for the prosecution (who was not counsel in the trial of McCartney and MacDermott) asked for an adjournment and the charges against Anderson were subsequently withdrawn in or around May 1978, some three months before the trial of McCartney commenced. [79] Although the injuries sustained by Barclay occurred a month before Donnelly was interviewed the judgment in Barclay v French and Newell post- dated the trial and decision in McCartney's case. Miss MacDermott submitted that the finding of a prima facie case against the two officers was relevant. In support of this contention she referred us to R v Seymour Williams and Patrick Smith [1995] 1Cr.App.R. 74 a decision of the Court of Appeal in which it was argued that the evidence given by the same interviewing officers had in subsequent cases been discredited and that the convictions of Williams and Smith were therefore unsafe. Leggatt LJ delivering the judgment of the court said;"It is true that the reason why the relevant questions could not have been put to the officers concerned in this case was that the other cases which ended discreditably for them had not yet taken place. This court will not shut its eyes to the discreditable cases merely because they took place afterwards. The criteria for admissibility remains the same."
[80] Miss McDermott, referred to the written argument for the Crown in which is was said that while these references by the Commission may at most raise some questions about the safety of the convictions, these were insufficient to establish unsafety. She suggested that this was in effect saying that the convictions were " not very unsafe" when there cannot be degrees of unsafety.
The arguments advanced on behalf of MacDermott.
[81] Mr Mansfield QC submitted that if the first statement of confession by his client was involuntary then those that followed at various interviews on 1 February, fell into the same category. [82] The interview of Brady by DC Dalton, against whom he made allegations of assault, took place at Castlereagh four days after the long interview of MacDermott, by the same officer, at Strand Road and against whom he also made allegations of ill -treatment. D.C French the other officer against whom MacDermott made allegations of ill treatment also interviewed Donnelly. [83] One of the allegations made by Donnelly was that during a long interview on 4 February 1977 from 8pm to 3.30am on the following morning, DC French wrote out a statement of confession to the murder of Mr Agate. Mr Mansfield said that this was a strikingly similar allegation against the same officer suggesting that there was a reasonable possibility that DC Dalton and DC French adopted a modus operandi in the course of the interview of MacDermott. [84] As in the case of McCartney the memoranda discovered by the Commission were not disclosed to counsel for MacDermott at the time of the trial or of his appeal. It was submitted that if the trial judge had known of the similarity between the allegations made by MacDermott and Donnelly and the reason why the prosecution of Donnelly had not proceeded he may have reached a different conclusion as to whether the evidence of Brady and Donnelly assisted MacDermott. In turn this may have affected his view of the credibility of the police witnesses.The submissions on behalf of the Crown
[85] Mr McCloskey QC submitted that having regard to the character of the new evidence issues of proximity, nexus and remoteness arose for consideration. He argued that there was no sufficient nexus between the factual and reasoned underpinning of the Director of Public Prosecution's decision not to proceed with the charges preferred against Donnelly and the allegations of ill- treatment by McCartney and MacDermott. This new fact was simply too remote from the evidence and considerations sounding on the latter, having regard especially to the identities of the police officers involved in the interviews of McCartney and of Donnelly. The new evidence regarding Donnelly was insufficient to taint to the requisite extent the prosecution case that there was no ill treatment of McCartney or MacDermott. [86] Mr McCloskey advanced a similar submission in relation to the new facts about the recommendation for the prosecution of DC French and DC Newell. If admitted in evidence, which he suggested was a matter of some conjecture, this would have conveyed to the trial judge that one official was of the view that there was enough evidence to warrant a prosecution of two particular police officers [neither of whom interviewed McCartney and one of whom interviewed MacDermott] for assaulting Donnelly, and another official had rejected this view. [87] Mr McCloskey submitted that as the private prosecution brought by Mr. Barclay failed and there was a finding by the judge that Mr Barclay's evidence lacked credibility, this new fact that there was such a prosecution was unlikely to have made any significant difference to the trial judge's decision. [88] In summary, Mr McCloskey QC suggested that at most the factors highlighted by the Commission raised some questions about the safety of the convictions but these were insufficient to establish that they were unsafe.An unsafe verdict
[89] In Stafford v Director of Public Prosecutions [1974] AC 315 Viscount Dilhorne said at page 893;"I do not suggest that in determining whether a verdict is unsafe or unsatisfactory, it is a wrong approach for the court to pose the question –' Might this new evidence have led to the jury returning a verdict of not guilty?' If the court thinks that it would or might, the court will no doubt conclude that the verdict was unsafe or unsatisfactory…but I do not think that it is established as a rule of law that, in every fresh evidence case, the court must decide what they think the jury might or would have done if they had heard that evidence."
[90] In R v Pendleton [2002] 1WLR 72 the House of Lords considered again the legal principle which should govern the task of deciding whether or not to allow an appeal when the court receives fresh evidence. Lord Bingham in his speech (at page 83) said;
"I am not persuaded that the House laid down any incorrect principle in Stafford, so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty… The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe."
Lord Hobhouse (at page 90) said;
"In a 'fresh evidence' case, there has been no irregularity or error of law at the criminal trial. The verdict of guilty has been returned by a properly directed jury after a properly conducted and fair trial. The mere production on a later appeal of additional evidence which would have been admitted at the trial had it then been adduced demonstrates no unsafety in the verdict. It merely raises for the consideration of the Court of Appeal the question whether the Court of Appeal thinks that, taking into account the new evidence, the verdict has become unsafe."
Lord Hobhouse continued;
[91] We were referred by counsel to R v King [2000]2 Cr.App.R 39 where Lord Bingham CJ said;"It does not help and is in principle wrong to seek to explain or put a gloss on the words of section 2 of the Act. 'Unsafe' is an ordinary word of the English language. It connotes a risk of error or mistake or irregularity which exceeds a certain margin so as to justify the description 'unsafe'. It involves a risk assessment"
"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."
[92] The Judges' Rules applicable at the time of the trial contained a note which set out a number of principles. One of these referred to access to a solicitor in these terms;
[93] The detention records are not available to show if McCartney requested to be allowed to communicate with a solicitor and the Commission has not found any evidence that MacDermott did so. However as the Report of the Committee of Inquiry into Police Interrogation Procedures in Northern Ireland, (The Bennett Report) records terrorist suspects were routinely refused access to a solicitor before they were charged. Today a person in police custody is entitled to consult and communicate with a solicitor under Code C of the Codes of Practice issued under the Police and Criminal Evidence (Northern Ireland) Order 1989. In the absence of any contemporaneous record that a request was made for access to legal advice and denied we do not find it necessary to reach a decision on this issue which we do not regard as essential to reaching a conclusion as to the safety of the convictions. [94] In R v Twitchell [2000] Crim.L.R.468 the Court of Appeal approved principles to be applied when a police officer is being cross-examined about police misconduct. The court said that where there was an acquittal which indicated that the jury must have disbelieved the evidence of the officers in question they might be cross-examined about that in a subsequent case. This could have provided a basis for cross-examination of DC French by counsel appearing for MacDermott. [95] As for the views expressed in the Office of the Director of Public Prosecutions about a possible prosecution of the two police officers we consider it unlikely that this could have been introduced in evidence. The reason for the prosecution of Donnelly not being pursued would have been made known to the judge if prosecuting counsel had been informed about it. This may have caused him to reach a different conclusion as to whether Donnelly was a person who could inflict severe injuries on himself."(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 process of investigation or the administration of justice by his doing so."
Conclusion
[96] We cannot rule out the possibility that the evidence of the police officers may have been discredited by evidence that is now available. The admission in evidence of MacDermott's confessions depended upon the acceptance by the judge of the evidence of DC French. If the judge had known of the finding of a prima facie case in the prosecution brought by Mr Barclay against DC French he may well have reached a different conclusion. To this is to be added the striking similarity between the description give by Donnelly and MacDermott as to the manner in which their admissions were recorded. If the allegations by Donnelly had been supported and strengthened by the new evidence this could have served also to discredit the evidence given by the police officers in McCartney's case. In both cases we are left with a distinct feeling of unease about the safety of their convictions based as they were on admissions and the convictions must therefore be quashed.