12
Carl Bridgewater and the Travesty of Confessions
I have gained a reputation for taking on police malpractice. I am feared – or so I am told – by police officers who have to face my rigorous cross-examination, one of whose number once stepped into a lift at the Old Bailey with a colleague of mine. Noticing that this officer was shaking and had a ghostly pallor, my colleague asked him what was the matter; tremulously, he replied: ‘I’ve just been Mansfielded.’
One of my first-ever cross-examinations of a police officer was on an unusually hot, sultry day in summer 1968, in a converted church hall in Gypsy Hill, south London. The judge sat on a bench near the rafters, the jurors were ranged in pews, and the witness box was the old pulpit with a number of steps leading up to a small door. Very much a ‘rookie’ barrister, I was defending a man involved in a chemist-shop burglary and, anxious to experiment with my new-found skills in cross-examination, I wanted to use the ploy of turning away from the witness box towards the jury while asking my questions, thereby unnerving the witness.
First up was the policeman who had apprehended the alleged burglar and who was now going to be revealed as a liar by my stunning ruse. But at the critical moment I lost my nerve and asked him a really crass opening question: ‘What is your name and number, please?’ This produced nil response. Undaunted, and cheered on by my ability so rapidly to destabilise a witness, I kept looking at the jury and asked the question again. This time there was not only no response, but consternation appeared on the faces of the jury. I turned round to see the cause of their disquiet – there was no one in the witness box. The policeman had completely disappeared. Slightly flummoxed, I turned to the judge, who had been dozing and who now, startled by the interruption, asked what had happened to the witness. The usher was outside having a quick fag, so the prosecution barrister asked a court official to open the door of the witness box – and the policeman rolled out of the box down the stairs and landed on the floor. He had fainted. Before I had gathered my wits, St John Ambulance attendants appeared with a stretcher and carried him off. A police inspector assured me later that his collapse had had nothing whatever to do with the power of my cross-examination, but with the mundane fact that the officer had not eaten while on duty all night . . .
I am not sorry to have upset some police officers, and have been very happy to do so if they needed to be exposed for misconduct or even corruption. However, my motivation has always been to improve the way in which policing is conducted, for the benefit of clients, citizens and the police service alike. Nowadays I am asked to address the main police training colleges to try and develop correct policing methods and allied evidential matters, and as a consequence one of the best-known Commissioners of the Metropolitan Police, John Grieve (at one time head of the Met’s Racial and Violent Crime Task Force, now retired), has become a respected academic associate of mine.
Many of my cases have involved serious miscarriages of justice, and often they’ve been surrounded by a poisonous atmosphere where the presumption is of guilt rather than, as it should be, of innocence, and the police and prosecution are under enormous public and political pressure to secure convictions. At such times counsel for the defence can quickly become a hate figure: I have been regularly subjected to death threats, and the problem is trying to work out the likely source. I have always felt the best defence is keeping a high profile, but at one stage I was made really afraid for my life and for my family, with all sorts of threats coming over the phone and to my door. When my junior found a suspicious package under my car, I called in a favour and John Grieve lent me his personal bomb detection kit, a mirror on a stick. The offending package turned out to be a discarded bag of vegetables – but heighho, I am a veggie . . .
Maybe because I’m tall, I don’t often feel physically intimidated, but I’m sure that every time I have a row with someone at a football match or in a cab over some racist remark I put myself at risk. I do at times feel anxious about not performing well and letting my client down, but the day I walk into a court not feeling that fear will be the day I stop practising: if you’re not worried, you get lazy and take things for granted. Whenever there’s a temptation to stand by and do nothing, I remind myself of the words of Pastor Martin Niemöller, who was imprisoned by the Nazis – in a poem that became central to his penance and reconciliation initiative after the war:
In Germany, they came first for the Communists,
And I didn’t speak up because I was not a Communist;
And then they came for the trade unionists,
And I didn’t speak up because I was not a trade unionist;
Then they came for the Jews,
And I didn’t speak up because I was not a Jew;
And then they came for me . . . and by that time there was no one left to speak up.
Of all my cases involving police malpractice, few were more disturbing than that of Carl Bridgewater, which became known as the case of the Bridgewater Four.
It was a fine autumn afternoon on Tuesday 19 September 1978 when young Carl, aged thirteen, was finishing off his newspaper round by delivering the evening paper to Yew Tree Farm in Wordsley, near Dudley in the West Midlands. Yew Tree Farm was a cosy home full of valuable antiques, and when at about 4.20 p.m. Carl went inside, he would have been expecting to see retired farmer Fred Jones and his frail old cousin Mary Poole. But they weren’t there, and instead Carl encountered someone who shot him brutally in the head. A local doctor on his rounds, Angus Macdonald, found Carl in the living room, his head on a bolster on the settee surrounded by blood, his feet on the ground and his newspaper bag still on his back. The farm was in chaos, and it was clear that Carl Bridgewater must have disturbed an armed robber. He paid with his young life.
This horrific murder stunned the local community, and despite the huge response from the public and many hundreds of potential witnesses being interviewed by the investigating officers, only fourteen people had seen a pale-blue car parked in the driveway to the farm at the time of the shooting. But the makes of vehicle were not consistent among the witnesses, ranging from a Vauxhall Viva to a Ford estate to a van – nothing conclusive; and there were only seven sightings of people in the vicinity at the right time. Then a single shotgun cartridge case was found not far from the farm – and that was all.
On 30 November the same year there was an armed robbery at a remote farmhouse, Chapel Farm, not far from Yew Tree Farm: the elderly inhabitants were frightened, pushed about and bruised, and the robbers went off with £300. The getaway car had been seen and it led to Vincent Hickey, a local thief known to the police, and three men were arrested in December: Vincent Hickey, Jimmy Robinson and an Irish carpenter named Pat Molloy, whom I later came to represent on his final appeal. These men were by no means angels – but they were not murderers. There followed a long and complicated chain of events, with confessions, admissions of guilt for the Chapel Farm robbery and denials of involvement in the Yew Tree Farm murder.
On 21 December, Vincent’s seventeen-year-old cousin Michael Hickey was picked up. Initially he couldn’t remember where he was on the afternoon of the Yew Tree Farm murder four months earlier, but he denied being at the farm. Then he and Vincent remembered that they had been at his girlfriend’s flat, where a new sofa was being delivered. The delivery note showed this was the date of the murder, and at the time of the actual gunshot they claimed to have been at a garage buying a car.
Pat Molloy was arrested on 8 December. He was subjected to an intensive period of interrogation, prior to an alleged oral and written confession on Sunday 10 December. He was in custody for 55¼ hours, during which there were five interviews lasting about ten hours, all in the absence of a solicitor.
The oral and written confessions became the fulcrum for the whole case. In them Molloy accepted that he was at Yew Tree Farm, engaged in a burglary with the others, when Carl was shot by Jimmy Robinson. Molloy stated he was upstairs at the time searching through drawers when he heard a bang. He went downstairs and witnessed the murder scene and then ran outside.
The police claimed that at 15.40 on 10 December, having in earlier interviews denied involvement, Molloy was seen alone in his cell at Wombourne police station by DC Perkins, with DC Leeke listening outside in the corridor and DS Robbins making contemporaneous notes. Over the course of twenty minutes the officers asserted that Molloy gave them details of his presence at the farm. They went on to claim that he then dictated his confession in a written statement (Exhibit 54), which was taken down by DC Perkins between 16.00 and 16.20.
When Pat Molloy eventually got to see a solicitor, ten days later, his account of what happened was very different:
I have been questioned here for about four days and nights. One of the men concerned is Vince Hickey. The detectives here brought a statement to me, signed by Vince Hickey admitting that he’d been involved. He named me as being there. He also named Robinson as being there. I was very upset over this. He also has a brother or cousin, I’m not sure, called Mickey Hickey. A few weeks ago, these two Hickeys called for Jim. I don’t know the details until afterwards. They went to this farmhouse and held up three old people and robbed them of £300. I felt mad about this man putting my name up. As far as I can say I was not there, but I made a statement saying I was there but I wasn’t there.1
Some months later, he added this:
I agree that these statements are a correct account of the interviews with these officers. What I said however is not the truth. The details came from what had been said to me by the police. Also, I was knocked about by the police. I was hit in the face by an officer DC Perkins. I think the plate of my false teeth was broken with one blow. I was punched. I was also under continual questioning night and day and even when they left me the door was hammered every half an hour. I was given nothing to drink and had to drink water out of the toilet bowl. I was given food that was heavily salted. I was told by the police that if I admitted to burgling the place then
they would be satisfied. With regard to stacking the drawers in the bedroom I never used to do this. I was not that tidy.2
These were the instructions that the solicitor had written down at the time, and which I produced at the final appeal.
The four men stood trial at Stafford Crown Court between 8 October and 9 November 1979. Molloy and his legal team faced a serious dilemma. If he put forward the account described in his instructions, which necessarily involved suggesting deceit, fabrication and violence by the police, then his own bad character could go before the jury. If he were disbelieved on oath, then he ran the risk of a conviction for murder. If, on the other hand, he did not give evidence, did not challenge the confession or how it was obtained, then he might at best be convicted of burglary and at worst of manslaughter. Molloy remained silent at his trial and was convicted of manslaughter; the others were convicted of murder.
The rules of evidence are very clear. What one defendant says about another in an out-of-court statement cannot be used as evidence against another defendant, unless it is adopted, on oath in the witness box, as the truth by the defendant who made it. Molloy did not give evidence, so technically his confession was not evidence against the others, but in reality – as everyone appreciates – the prejudicial damage had been done by Exhibit 54.
As soon as Pat Molloy began his sentence, he started his campaign to clear himself of Carl’s manslaughter, of being a terrible ‘grass’, and to prove the other men’s innocence. If he’d been guilty, he could just have kept his head down and got out in eight years, whereas he began to help Ann and Fred Whelan, the dogged and determined parents of Michael Hickey, to clear the men’s names, and in February 1980 Ann enlisted the equally resolute Paul Foot, campaigning journalist and columnist on the Daily Mirror.
A friend and a fellow socialist, Paul was a fantastic intellect. He died far too young in 2004, and I am constantly troubled by the misfortune of losing family and friends in their prime. I remember sitting at Paul’s hospital bed a few years ago when he was very ill indeed from a stroke. We managed a laugh together, and I told him that he had to get up and get going again, as he was one of a kind – and, remarkably, Paul did recover his ability to walk and speak. He was so utterly indomitable and is sorely missed.
Pat Molloy was missed too, because in June 1981 he died in prison from a brain haemorrhage. By this time he had convinced his coconvicted that he was extremely remorseful for his false confession (Exhibit 54), but that something else had happened at the police station which had made him give it.
In December 1981 there was an application for leave to appeal in front of the top judge, Lord Chief Justice Lane, but it was clear that their Lordships were not persuaded by the new evidence as they denied the application.
Michael Hickey then embarked on what no other prisoner has endured: the longest ever rooftop protest, lasting eighty-nine days in 1983–4, and through a freezing winter he was sustained by fellow inmates throwing him up food or sending parcels via Michael’s ‘fishing hook’. It was incredible and, being four years after his conviction, added to the power of his claims of innocence: he was not going to yield. Michael’s protest generated immense publicity for the case, but he had to serve an extra two months in solitary confinement as a result, and was so worn down by the physical and mental strain of it all that he spent the next ten years in Ashworth mental hospital.
There followed other police enquiries, until by 1985 Jim Nichol, who became my instructing solicitor for Pat Molloy, had taken over the case of Michael Hickey as well, and it was Jim’s tenacity and diligence which eventually led to the revelations that freed the men – though that was to take another twelve years.
Things started to unravel when new forensic methods came into play. DC John Perkins, who had taken down Molloy’s ‘confession’ in Wombourne police station on 10 December 1978, had always maintained that Molloy had dictated every word to him. But Reverend Andrew Morton, an expert in language patterns, had tested Molloy’s confession against his letters from prison, and concluded that Exhibit 54 had been made up by more than one person – and other experts concurred. Jim Nichol sent this information – together with new allegations from three other prisoners, that DC Perkins had forced them to confess by the use of violence – to the Home Secretary as the basis of an appeal.
The campaign to free the three men and clear Molloy’s name posthumously was so long and protracted that it defies belief. There was one unsuccessful appeal in 1989 and many refusals to refer back; new and botched police enquiries; further rooftop protests by the accused, one by Jimmy Robinson in 1993, when he spent eighty-two days on the roof of Gartree Prison in Leicestershire; and meanwhile Paul Foot lost his job on the Mirror. There were TV documentaries and articles; more evidence trawled through by a persistent Jim Nichol, revealing unexamined important documents; a succession of reluctant Home Secretaries; judicial reviews and heartbreaking delays and disappointments, and so on and so on – until in 1993 a powerful film by Don Shaw called Bad Company exposed the effect on the families and the incredible struggle by Ann Whelan to clear Mickey’s name.
The film had an enormous impact on public opinion, and on one of the country’s top forensic psychologists, Dr Eric Shepherd, who came forward to agree with the other experts on the Molloy ‘confession’. I went public and endorsed Shepherd on a news programme, and then the foreman of the jury at the original trial let it be known that he felt the convictions were unsound – and he mentioned in particular the effect of Molloy’s confession. He’d begun to have doubts some time before, and when he went public it added to the momentum for change.
But it wasn’t until 1996, after two petitions and a judicial review threatening Home Secretary Michael Howard with court if he didn’t thoroughly review the evidence, that Howard grudgingly sent the case back to the Appeal Court. Jim finally obtained access to 17,000 police messages and 260 undisclosed files, and he trawled through the lot.
This detailed process of re-examination began to reveal the truth. Jim Nichol asked his determined forensic handwriting expert Robert Radley to look at the original notorious Exhibit 54. As is so often the case, it was the tiniest quirk of fate, the tiniest unturned stone, beneath which lurked a massive mountain of lies.
There is a technique for paper and handwriting analysis called ESDA (electro-static deposition analysis). Every time you lean on, press on or write on a piece of paper, some form of impression can be made upon any paper beneath. Occasionally, if you hold a subsequent page up to the light, you can see this with the naked eye, but more often than not you have to treat the page with a chemical and then examine it under an intense low-angle light. (All this is now a bit passé in the electronic age of emails.)
What Mr Radley found, still attached to the top of the original statement, was an exhibit label. Quite unwittingly this label had protected the underlying paper. When he applied the ESDA technique to this area, it disclosed impressions which had been made before Exhibit 54 had been written. They were words from another statement purporting to have been made and signed by Vincent Hickey. The paper used was from Wombourne police station, not from Redditch, where Hickey was being questioned.
Mr Radley and another expert, Dr Hardcastle, both thought that the impressions of words were similar to DC Leeke’s known writing, and that there were no significant differences. The signature was not Hickey’s and had been forged; this time, the similarities were with the writing of DC Perkins.
The Court of Appeal, in July 1997, said that this evidence led them to two conclusions:
First it supports Patrick Molloy’s statement through his solicitor that immediately before he confessed and the reason for his confession was the showing to him of a statement apparently made by Vincent Hickey, stating that he and James Robinson were present at Yew Tree Farm. Secondly, it is evidence that police officers who were questioning Patrick Molloy were prepared to employ deceit to obtain a confession from him.3
There were other disturbing features, which Dr Hardcastle accepted when I cross-examined him. The oral interview could not have happened as the police suggested. There were two reasons, partly based on further research by Mr Butterworth, a Reader in Psychology at University College, London. First, there was an abnormally high coincidence between clauses used in the oral interview and identical clauses appearing in a written statement. There were sixty-eight relevant clauses in Exhibit 54, and twenty-three were identical to clauses in the record of the oral interview. In experimental conditions, the ratio was never more than 2.7 per cent, nowhere near the 33.3 per cent in this case. Second, the writing speeds were also improbable to impossible, when calculating the number of individual characters with the number of minutes said to have been occupied by writing them. Put shortly therefore, it was well-nigh impossible for Patrick Molloy to have repeated his oral confession so precisely in its written form, and it was well-nigh impossible for a police officer standing outside in a cell corridor to have written it down in the time available. All in all, it stretched credulity beyond breaking point.
If more were needed, the final straw was the disappearance of the contemporaneous notes themselves. DS Robbins was ill at the time of the trial, so the notes were never produced then, or as it happens at any time since. When questioned about this later, he said that he hadn’t transferred the notes to his pocketbook (that too wasn’t available) and in any event the original notes had not been verbatim, and he only managed to get down about 70 per cent of what was said . . . or should I say, not said! Without those ‘confessions’, the Appeal Court said that Molloy would not have been prosecuted for the Yew Tree Farm offences.4
After this, all the convictions began to unravel, contaminated by this rotten core document, and on 21 February 1997 the appeal of the Bridgewater Four was allowed. Ann Whelan, Jim Nichol and Paul Foot’s huge endeavours had finally paid off, and Vincent Hickey, Michael Hickey and Jimmy Robinson stepped out into the daylight onto the Strand. From the day Pat Molloy had had the security of legal advice, he had always maintained his innocence, but sadly only his son Nick was alive to see his father finally vindicated that day.
The released men suffered terrible depression after their long years in jail, but whatever the personal pain, the campaign had shown that truth cannot be hidden for ever. It must be remembered, of course, that there is another family equally affected and distressed – that of Carl Bridgewater, because no one has ever been brought to justice for his murder.
The West Midlands Serious Crime Squad, which included the detective who falsified Vincent Hickey’s signature, was wound up in 1989 after evidence came to light of other fabricated confessions and planted evidence in twenty-three cases during the 1980s.
There were lessons to be learned by us all from the Carl Bridgewater case, as it highlighted the need for a thorough reappraisal of professional attitudes. When Julia Dick, then a pupil in my chambers, asked me what I thought was the most important point in the Bridgewater appeal, I advised her: ‘Always listen to the client’s account and follow through the instructions you’re given.’ During my early career frequent assertions were made by defendants about police malpractice. They embraced the obvious ‘verballing’ – the drainpipe admission: ‘You got me bang to rights, guv’ – through to ‘I did make a written confession, but it was beaten out of me.’ Both the courts and the Bar looked upon such claims with a large measure of disbelief, which meant that barristers were prone to preface their questions in cross-examination of police officers with, ‘Officer, I’m sorry, but I have to put it to you that this was not said . . .’ or ‘Is it possible that you laid hands upon my client?’ In other words, what the barrister was saying publicly was: ‘I don’t believe a word my client has told me, but I have this unpalatable duty to put it to you.’ Small wonder that juries also found the allegations against police incredible.
There was another consideration: if the defendant had any ‘previous’, then he would almost certainly be advised not to make any allegations against the police, in order to avoid his own bad character being made known to the jury.
The Bridgewater appeal clearly supported not only my client, but many of the other hapless defendants who for years had been complaining about similar police corruption.
My own approach was quite different. In the midst of all this there is a very fine balance to be struck. Defendants do lie and the police can be honest. Therefore the barrister must subject the client’s instructions to the most careful scrutiny and critical analysis. But if the client steadfastly maintains his or her plea of innocence, then the case must be fought strongly and convincingly on that basis, whatever the risks. I have been proved wrong on many occasions, with people I secretly thought might be guilty being found not guilty by a jury, and vice versa. You just don’t know. The evidence of innocence could be somewhere and, if you delve deeper, it will reveal itself. So I start off with a set of beliefs from somebody who wants me to represent them, where there is usually a bigger issue at stake, and that causes me then to investigate the case very thoroughly. Making an assessment of who is telling the truth is one of the most difficult exercises.
As a matter of interest, when I was a panellist on BBC Radio 4’s Any Questions in Hastings in 2007, in response to a question put to me by a senior uniformed police officer I asked the assembled audience of around 200 whether there was anyone who could honestly say that they had never told a lie. No one put their hand up (including me). The tests of truth that are commonly employed in the courts relate to demeanour, consistency and background. However, professional liars can sometimes satisfy all these criteria, whereas vulnerable and innocent defendants may satisfy none.
All of this is quite different to the extremely rare situation of someone insisting on pleading not guilty when they have admitted their guilt to me. In essence, this is what lies behind the hoary old question, ‘do you represent the guilty?’ No problem – they plead guilty! However, it’s not quite as straightforward as that. I have to be sure their admissions are reliable, relate to the specific offence(s) charged and are freely given. Provided they are and they understand the repercussions, then they enter a plea of guilty. I then present the mitigating factors to the court such as ‘he (or she’s) very sorry’; ‘he’s just a beginner’; ‘he’ll not do it again’; or ‘he’s been watching too much Life on Mars’. This is just what I would normally do for somebody who wants to plead guilty from the start.
More importantly these days, I can conduct a mini-trial (a Newton Hearing) on a plea of guilty and challenge the prosecution version of events in order to establish the defendant’s account: ‘I did it my way’. Witnesses can be called and cross-examined and this process preserves any credit that may accrue for a plea of guilty.
Should my client refuse to plead guilty when he’s told me he really is, I am obliged to point out how little I can do. On the whole, not much. I am entitled to ‘put the prosecution to proof’ (meaning I require them to call their evidence since it’s for them to prove guilt). This is a fairly hollow exercise and a waste of time and money because in these circumstances I cannot put forward a positive case suggesting innocence, cross-examine prosecution witnesses to suggest they are wrong and least of all call the defendant to say he didn’t do it – effectively to lie. I have never done this and I know of no other member of the Bar who would contemplate it. So, back to reality . . .
In all cases barristers are supposed to be like surgeons, objectifying the patient/client; remaining impartial; not identifying with the client – otherwise they can’t do the job. That’s what I was told when I started, and that’s what I have always ignored. I’m sorry, Lord Chancellor, but the fact of the matter is that for me to do the job I have to feel committed, to understand where my client is coming from and why he or she has got there. Interestingly, because most people know the way I operate, I do not have to choose my clients; they choose me. Some don’t want to come under my intense scrutiny, so stay away, while others who do want that kind of involvement are keen to have my representation. This has led to my not representing big corporations, the state and major tyrants, and throughout I have attempted to be true to an inner conscience. Although emotional responses can be very difficult to handle, I believe that to deny them in your working life is as ridiculous as denying them in your personal one.
Until recently barristers were supposed to take the next case that came along, just like taxis picking up the next fare. In practice, however, the taxi-rank principle never really worked like that: some barristers only did private work, some specialised in specific areas (like tax or fraud), and others chose only to prosecute. I chose to defend. In a multicultural society choices have to be made, and barristers should be entitled to make them without being brought to book by the profession. It’s important that principles are applied, as long as they are openly and honestly canvassed.
If a member of the British National Party came to me, I’d feel obliged to point out that I do not appreciate anything they stand for. Would they really want me to represent them under these circumstances, as I would be extremely uncomfortable? I would never assume their guilt, but I wouldn’t be able to get close enough to represent them properly; neither would I want them to be convicted and then blame me for not pulling out all the stops on their behalf. This is what I would say in those circumstances, but fortunately I have never had to say it. Somehow BNP defendants haven’t come knocking on my door.
In any case, in my early days the taxi-rank principle never seemed to apply to ‘political’ cases – and it was therefore often extremely difficult to gain representation for clients in the most challenging ones. Interestingly, the policy has now been ameliorated: but not for some high-flown ethical consideration, but because of the government’s legal aid changes, which require barristers to sign contracts with the legal aid authorities. The Bar recognises, as it had to do in privately funded work, that a barrister may refuse a case if he thinks it is not properly remunerated. In private work, it means that if you don’t get the fee you ask for, you can say you’re not doing it, and the same sort of thing now applies to publicly funded work. Funny how money can speak louder than words . . .
The problems that beset the West Midlands Serious Crime Squad were not limited to that force. Systemic problems were exposed in the Metropolitan Police with the arrests of the so-called Tottenham Three, arising out of the Broadwater Farm disturbances and the murder of PC Keith Blakelock on 6 October 1985, and in the South Wales Police over the Cardiff Three (one of whom, Stephen Miller, was my client), and the murder of Lynette White on 14 February 1988.
I was very familiar with Broadwater Farm and Tottenham, in north London, having lived nearby and having helped to establish the Tottenham Neighbourhood Law Centre. Following the disturbances I represented fourteen-year-old schoolboy Mark Lambie, who stood trial in 1987 for riot and participation in the murder of PC Blakelock. His acquittal was partly due to my cross-examination of a prosecution witness who was an accomplice charged and convicted of minor offences. There is no transcript, but I do remember the gist of what happened.
Danny Simpson, my instructing solicitor in the Tottenham case, was an intrepid investigator and skilful lawyer who had obtained correspondence sent by the witness to a friend. The letters were incomplete, but none the less revealing about himself and events on Broadwater Farm that tragic night, and proved invaluable in cross-examination. The witness was shocked to know I had them, and could not work out how many letters were in my possession. My recollection is that as I went forward, the witness became increasingly nervous, as he’d forgotten exactly what he’d written. The tension grew and eventually he asked for a convenience break. After an inordinately long interval he returned and announced that he had something he wanted to say. He accepted that he had not told the whole truth, and it was a turning point for Mark Lambie. The trial judge withdrew the charge and the jury acquitted him of riot and affray.
Whilst the present government’s new proposals for anonymity of witnesses may be necessary in extreme cases, informers could have a licence to lie and inculpate others in order to settle old scores; it could also mean that the type of cross-examination I undertook in that trial would become severely constrained, because the content of the letters might reveal the identities of both writer and recipient.
Many years later, I discovered to my dismay that despite strong advice to leave Broadwater Farm following his acquittal, Mark Lambie had stayed on and was convicted of being the super-boss, dubbed ‘The Prince of Darkness’, who operated a drugs and extortion racket in the area. When failures like this occur, I not only feel upset for the victims, but deeply frustrated at such a squandering of time and the waste of a life.
Other defendants including Winston Silcott were convicted in the Tottenham case, and I came to represent one of them on appeal, Engin Raghip. His family were Turkish Cypriot; he was born in London and lived with his girlfriend and three-year-old son. At the time of the Broadwater disturbances he was nineteen. He had suffered serious learning difficulties as a child and was illiterate.
After his arrest he was interviewed ten times over four days, lasting a total of fourteen and a half hours in the absence of either a solicitor or an independent person. He was not permitted any contact or visits until after his confessions in the seventh and eighth interviews. His conviction rested entirely on these admissions.
The obvious and key question was the extent to which the confessions were reliable. There are two aspects to this. Reliability may be assessed by examining the internal and intrinsic quality of what has been said: how does it look, how does it sound, how does it compare with what is known about what actually happened? These are relatively superficial markers, and someone may acquire information from many different sources about an incident in which they took no part. Reliability may also be assessed by examining the nature of the speaker. This is even more difficult because there are learned responses, and the vulnerable or disadvantaged often manage to devise mechanisms to disguise their underlying problems.
Prior to the mid-1980s, and in particular the 1984 Police and Criminal Evidence Act (PACE), the police and the courts both approached these matters in a fairly rudimentary manner. On the whole a confession would not be ruled inadmissible unless you were able to demonstrate that it had been extracted by force or the threat of force. This was a threshold that could rarely be achieved. There was a glimmer of recognition that lesser factors could produce unreliable confessions, and these were encapsulated in informal guidelines known as the Judges’ Rules. Unfortunately these were honoured more in their breach than in compliance. A school of judicial thought went along the lines that, provided a confession had not been beaten out of you, why on earth would anyone make what was termed ‘a statement against interest’?
During these years there was a gradual recognition and appreciation that there were a multitude of subtle forces at work that might result in a false confession. These forces might not be obvious and could easily be missed by judges, juries and interrogators alike. There were three outstanding experts who pioneered advances and moved the frontiers of understanding, often in the face of scepticism, disbelief and even hostility. They were Gisli Gudjonsson, James MacKeith and Olive Tunstall. Together they embraced psychology and psychiatry, with particular regard to social and educational development. They were able to demonstrate the myriad of different mental, social and educational factors that have a diffuse and subtle effect upon the person being questioned. Even an interview being conducted in seemingly proper conditions, with contemporaneous recording, access to legal advice and the presence of a solicitor or appropriate adult where necessary, could not be guaranteed to produce reliable statements.
Although PACE introduced a number of marked improvements and protections for those detained in a police station, it was far from watertight. Interestingly, it was having a dry run in 1985 in the Broadwater Farm investigation, and yet people still fell through the safety net. A young person with an unstable background and with impaired educational development may not fall within the broad definition of mental illness, but may be quite unable to follow a simple line of questioning. That person may also be unduly willing to accept forceful suggestions to please the questioner. Gisli developed a series of tests that could be objectively applied by different psychologists, and these are now widely accepted: for example, he was able to measure susceptibility and suggestibility. Many of the tests are set out in his authoritative work, The Psychology of Interrogations, Confessions and Testimony.5
At the beginning, however, some felt that this was a ‘soft-soap’ option for heavy-duty dudes who should really be locked up. Others felt there was no need for this kind of expertise, because we can all make our own assessments about whether somebody meant what they said or had been forced to say something they didn’t mean. It was this latter approach which led to the failure of Engin Raghip’s first appeal in December 1988. Evidence of the kind described above was ruled to be inadmissible by Lord Lane, because Engin had registered an IQ rating of sixty-nine, just above the cutoff borderline laid down by the courts. In these circumstances Lord Lane declared that the jury had ample opportunity to gauge the degree of intelligence and susceptibility of Engin when he gave evidence without the assistance of experts.
By the time of the second appeal in 1991 there had been a sea-change in attitude. Two experts from the time of the original trial changed their minds in the light of Gisli’s work and accepted that Engin was impaired to a significant extent in his intelligence and social functioning, which placed him in the borderline subnormal range of intelligence. Gisli himself described Engin as being at ‘the bottom end of the borderline range of 70 to 79, within the lowest 4% of the population, giving a mental age of between 10 and 11 years’.6 This also demonstrated that while the IQ cut-off point for normality/abnormality was a useful tool, it was in fact somewhat arbitrary and should not be a determinative factor.
There was, however, another powerful argument on the second appeal; enter stage left once more handwriting expert Mr Robert Radley. Six years before the Bridgewater appeal he’d been called in to examine the notes relating to Winston Silcott’s interviews.
Winston had been arrested on Saturday 12 October 1985 and interviewed five times by Detective Chief Superintendent Melvin and Detective Inspector Dingle, who said he took contemporaneous notes. They were not signed by Winston, who refused to do so, and no solicitor had been allowed to attend. Once again the only basis for the conviction in relation to the murder of PC Keith Blakelock was primarily the content of the fifth interview. This comprised innuendo and ambiguity in the face of strong assertions of guilt being made by the interviewer, derived from unnamed sources – for example it was claimed that Silcott said: ‘You ain’t got enough evidence. Those kids will never go to court. You wait and see. Nobody else will talk to you. You can’t keep me away from them.’
Some of the most damaging remarks occurred on page 5 of the notes. What Mr Radley found, however, by examining indentations on page 1 of the notes, was that there had been another version of page 5, which did not contain any of the damaging comments recorded in the existing page 5. And there were other discoveries, like a missing page 7. Mr Radley’s opinion was endorsed by Dr David Baxendale, another expert document examiner who had been employed by the Home Office. Roy Amlot, QC, on behalf of the Crown, accepted both the evidence and the necessary inferences to be drawn. The court held that it destroyed the basis of the Crown case. It went on to observe that ‘The notes were said to be taken contemporaneously and so far as page 5 is concerned they plainly were not. This conclusion had a knock-on effect for the whole appeal.’7
Mr Amlot made this very fair concession:
It seems to the Crown that the proper way to view it is to look at the broad picture. That picture is Melvin was the officer in charge of the case. He was the senior officer in the case. He was the officer who had close control of the whole murder enquiry and he was the officer to whom all junior officers looked in respect of any significant decision. I say that because Mr Mansfield has asked the question: would the Crown have gone on against the other defendants knowing what everyone does know of the apparent misbehaviour of the officer in charge of the case? It seems to us that this is an appropriate question for Mr Mansfield to ask in the circumstances and the answer that we have of course considered carefully is unequivocally we would not have gone against Raghip or Braithwaite or any of the other defendants having learned of the apparent dishonesty of the officer in charge of the case.8
Both Melvin and Dingle faced charges in relation to the fabrication of the notes, and were acquitted in 1994.
That was the year in which one of the most hallowed principles underpinning the criminal-justice system was effectively abolished – the right to silence. This was an age-old and highly valued principle, which the judiciary themselves had termed ‘the golden thread of British justice’. It had been broken by a Thatcher regime that was not only bent on decimating ‘society’, which she said didn’t exist, but also bent on eliminating legal safeguards that had been enshrined in our common law for centuries.
The Criminal Justice and Public Order Act 1994, sections 34 to 39, allows courts and juries to draw inferences from a suspect’s silence in custody or in court. The legislation explicitly states that the court or jury can draw whatever inferences they see fit from a suspect’s silence, when determining whether the accused is guilty of a charge. The anomaly is this: whilst the right to silence still exists, technically, if you choose to exercise it you run the risk of adverse inferences being drawn from your silence. This doesn’t seem like much of a right to me. As for the argument that this provision was protecting the guilty, one only needs to reflect upon the cases cited in this chapter to realise that had the right been exercised, or had the preconditions for its exercise been strengthened and enforced, this might have circumvented the disastrous consequences of wrongful conviction for Pat Molloy, Engin Raghip and Stephen Miller.
Another of the most common complaints that I came across in my early days – but not now – was the tendency of Establishment mainstream barristers, faced with a seemingly strong case and a defendant claiming mistreatment by the police, to advise such a client to plead guilty. This was not confined to the Bar – some firms of solicitors succumbed to the same temptation. It meant less aggravation, less investigation and time for more cases. The Labour government’s criminal legal aid policy enshrined in the Carter Review is likely to resurrect the same situation. This review was an attempt to introduce market-force economies, especially economies of scale, so that large conglomerates of lawyers would be awarded franchises or block finance, and smaller firms would be squeezed out. For example, there will be more money to be earned from a morning of guilty pleas than from weeks spent preparing one case of not guilty. The government’s real objective can be aptly summarised by the acronym OCOF – One Case, One Fee. To which there is an obvious riposte!
The case of the Cardiff Three (Yusef Abdelahi, Tony Paris and Stephen Miller), involving the murder of a prostitute named Lynette White, was a massive miscarriage of justice in South Wales, and it was not the first of its kind. Nearly forty years earlier, in November 1949, twenty-five-year-old Timothy Evans had walked into Merthyr police station and confessed to disposing of his wife’s body down a drain outside his home at 10 Rillington Place in the Notting Hill area of London. When the drain was inspected, which involved a number of police officers lifting a heavy manhole cover with difficulty, nothing was found. Evans was re-interviewed and implicated his landlord, John Christie. There was a further search at the address, where the bodies of Evans’s wife and daughter were found in an outside washhouse. Evans then confessed to both murders and stood trial at the Old Bailey, where – despite claiming once again that Christie had murdered both victims – he was found guilty of murdering his daughter and sentenced to death. He was hanged at Pentonville Prison on 9 March 1950, but was subsequently vindicated when Christie himself was arrested in 1953 and confessed to killing seven women, including Mrs Evans. Christie himself was hanged in July 1953, but it was not until 1966, following publication in 1961 of 10 Rillington Place, Ludovic Kennedy’s seminal book on the case, that Timothy Evans was granted a posthumous pardon. I first read 10 Rillington Place during my final years at Keele, when it was highly influential in forming my thinking about the deep inadequacies of the British legal system and the enormous struggle that has to be undertaken by anyone to put things right. Kennedy’s account is still on my bookshelves today.
Back in Cardiff during the 1980s, a series of cases in which I was involved gave rise to evidence of disquieting police practices relating to interviews: the Welsh arson conspiracy in 1983, when my client David Burns was acquitted; the Cardiff Three case in 1988, when on appeal my black client Stephen Miller was released; and the murder of newsagent Phillip Saunders in the same year, known as the Cardiff Newsagent case, with my client Michael O’Brien being released on appeal many years later.
There have been some remarkable developments in the Cardiff Three case since the appeal in 1992. DNA evidence emerged that led to a white man, Jeffrey Gafoor, admitting to and being convicted in 2003 of Lynette’s murder. Then in 2008 three civilian prosecution witnesses from the original trial were convicted of perjury. In March 2009 Assistant Chief Constable Collette Paul, of South Wales Police, announced that fifteen people would face charges in relation to the investigation – twelve of them either retired or serving police officers. In the light of this announcement, it is improper for me to comment further on the Cardiff Three until these charges are resolved.
What has been at stake in all these cases, whether West Midlands, Metropolitan or South Wales police, has been the extent to which the basic requirements of due process have been respected.
The approach of our system has always been: better one guilty person going free than a whole host of innocent people being wrongly locked up. I still think, despite the threats that we are subjected to on a daily basis (escalating knife crime, for example) that, in order to get convictions, we should not be tempted to lower the threshold of proof or do without juries – and I have no doubt at all that lowering the threshold is what successive Home Secretaries have been trying to achieve for the majority of cases.
In the documentary film Presumed Guilty, directed by Yvette for Inside Story for the BBC, and in my book of the same name coauthored with Tony Wardle,9 I argued strongly that one measure that would help to prevent miscarriages of justice arising from false confessions was audio and video recording of police interviews. This has become obligatory, and remarkably there are now very few confessions . . .
Unfortunately, government policy raises the spectre of false confessions all over again. Both Tony Blair and Gordon Brown originally wanted ninety days to hold a suspect, which is equivalent to a prison sentence without trial: no other country, even Spain after the Madrid bombings, saw fit to introduce such a draconian measure. The police rationale in the briefing provided to the Home Secretary, Charles Clarke, by Assistant Commissioner Andy Hayman was flawed, based as it was in part on a case in which I was intimately involved: the ‘Ricin’ case (see Chapter 20). This was the same officer who was roundly criticised for his handling of the misinformation put out by the police about the shooting of Jean Charles de Menezes at Stockwell Underground station in July 2005 (see Chapter 21), and who subsequently resigned in the wake of personal allegations surfacing in the press.
Part of the police rationale was that the existing period of detention of fourteen days did not provide them with long enough to employ in-depth interrogation techniques, but it is the use of such techniques during extended detention that runs the risk of false confessions. So far as general investigation is concerned (for example, decrypting computers, tracing mobiles and bank accounts) this commonly continues after an initial arrest and charge. In the Ricin case, my client Sihali had to wait two years for trial during which further evidence was served and additional charges were laid. An extended period of detention would have made no difference to the eventual outcome.
I was (and remain) so incensed by these proposals that I argued both publicly and behind closed doors with Charles Clarke. I briefed Members of Parliament to oppose the extension of detention – it is notable that this is the only occasion upon which a defeat was inflicted on Tony Blair’s government – and a compromise of twenty-eight days was reached. That was all the more remarkable because this issue concerns principles of natural justice in the face of the perennial argument about the ‘war on terror’, and it also shows what it is possible to achieve by collective opposition on a large scale. However, the extension of the twenty-eight days to forty-two remains a very real government objective.
Why on earth Gordon Brown, who prior to becoming Prime Minister had no experience of or responsibility for criminal justice, should have persisted with the proposal beggars belief. Predictably it ran into enormous opposition from a previous Lord Chancellor (Charlie Falconer), a former Attorney General (Peter Goldsmith), a former Director of Public Prosecutions (Ken Macdonald) and even from Baroness Manningham-Buller, ex-Head of MI5 – and finally the Shadow Home Secretary David Davis was driven to resign on this issue. Should it ever become law, there is a strong case that it would be incompatible with the European Convention on Human Rights.
Rather than wasting time with anti-terrorist legislation of this kind, which since 1973 has done little or nothing to prevent terrorist acts, the police and security services should concentrate their efforts on thorough, accurate and responsible intelligence-gathering and collation, as they have enormous powers under RIPA (the Regulation and Investigation of Prosecutions Act). A series of recent cases concerned with bombings and conspiracies in London have shown one of two things: either that both the police and security services are hopeless at doing their job of collecting information where they should, or that they are collecting information, but are failing hopelessly to make connections and realise its significance. If either of these two situations led to the reported ‘intelligence vacuum’, then the victims and their families plainly deserve a full independent public inquiry once the various trials are completed.*
Due process and reliability of evidence are fundamental to a just legal system. But what exactly is ‘due process’? It trips off the tongue quite easily and its convenience may overshadow its significance. It is not an adjunct or an accessory, or some kind of bureaucratic and perfunctory formality. It is simply a way of describing essential procedural and protective provisions which enable an individual, confronting the might of the state and its statutory powers, to receive a fair trial. It counterbalances the resources, research and investigation employed by state agencies.
There is nothing technical or mystical about the rules of due process. Ordinarily, if you’re faced with an accusation of misconduct or misbehaviour you would have some pretty natural responses and questions. Who says? When? What? Why? How? Where’s the evidence? Who can help? Anyway, you prove it!
These questions translate into principles of natural justice, or ‘due process’, such as: access to free legal advice and representation at all stages; a clear and precise exposition of the charges; ready access to independent and impartial judicial scrutiny; proportionate access to all evidence and information; a fair trial before an independent and impartial tribunal on tested and reliable evidence; and above all, according to a presumption of innocence which can only be displaced by the state discharging its obligation to prove guilt ‘beyond reasonable doubt’ (the onus and standard of proof). This is intended to be a system, as far as is humanly possible, for safely convicting the guilty and not the innocent.
There is no point in having these rules unless there is an appropriate sanction should they be broken by the authorities. Minor infringements may not matter but major ones could and should be capable of putting an end to a case either at trial or on appeal.
On the rare occasions that this happens, it is commonplace for senior police officers to characterise the rules as arcane and part of an elaborate game played by tricksy lawyers to extricate guilty clients. At the same time the government of the day portrays the rules as a hindrance to expeditious, efficient and economic conviction. So, out go: the right to silence, rules against second-hand or hearsay evidence; and in come: limits on disclosure, extended detention for questioning, and shifts in the onus of proof from the prosecution to the defence for some offences. This is known in academic circles as the ‘crime control model’.10
By these means the ‘due’ in ‘due process’ is slowly being diluted on the basis that the pendulum has swung too far in favour of the so-called hardened, professional criminal who is ‘playing the system’.
These sentiments are predicated on the belief that we, police and government, know who are guilty and if we can’t prove it we will have to get them, the defendants, to do it for us. I have represented enough of these so-called hardened criminals – most of whom do not feature in this book – to know that the real risk in these cases is one of ‘noble cause corruption’ by the police. The unspoken rationale behind this contention runs along the following lines: ‘well, he may not have committed this crime, but he’s probably done others in the past, and may do more in the future – so we’ll nab him now’. If you like, it’s a form of ‘preventative detention’ and punishment all in one. That’s not justice either and I have resisted it for over forty years.
Interestingly when police officers themselves become defendants, their complete conversion to the tenets of due process is both swift and touching!
On a cold winter night in February 2009 at a petrol station in Wandsworth I was approached by a man who claimed to remember me from a court case in 1972. I thought he meant I had represented him, and as I couldn’t remember any details I merely acknowledged him. He then surprised me by explaining that he was an ex-member of the Flying Squad whom I had cross-examined. ‘You were a nasty bastard,’ he said, ‘but you did a good job.’
* It now appears, from the Parliamentary Intelligence and Security Committee Report published on 19 May 2009, that in fact both these points have some validity. There was information on a ‘ringleader’ of the 7/7 bombings, who had been photographed in 2001, was later filmed at a training camp in Yorkshire and who then appeared on the fringes of the ‘Fertiliser Conspiracy’ (see Chapter 20). This information was not properly collated, assessed and fully identified until after 7/7. (c.f. Jean Charles de Menezes investigation, see Chapter 21). There was also a lack of communication between agencies – police and security services. These failings are now explained away on the basis of a shortage of resources, which wasn’t exactly what was being argued at the time.