O'Brien & Ors, R v [2000] EWCA Crim 3 (25th January, 2000)

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England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2000] EWCA Crim 3

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O'BRIEN, HALL and SHERWOOD, R v. [2000] EWCA Crim 3 (25th January, 2000)

Case No: 98/6926/27/28/S1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CARDIFF CROWN COURT
(MICHAEL DAVIES J)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 25th January 2000
B e f o r e :
LORD JUSTICE ROCH
MR JUSTICE KEENE
and
MR JUSTICE ASTILL
- - - - - - - - - - - - - - - - - - - - -

	REGINA
	- and -
	O'BRIEN, HALL & SHERWOOD

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr G Elias, QC & Mr GD Treverton-Jones appeared on behalf of the Crown
Mr E Fitzgerald, QC & Mr T Owen appeared on behalf of the appellant Hall
Mr M Mansfield, QC & Mr T Owen appeared on behalf of the appellant O'Brien
Mr Marshall-Andrews, QC & Mr G Summers appeared on behalf of the appellant Sherwood

Judgment
As Approved by the Court
Crown Copyright ©

Tuesday, 25 January 2000
JUDGMENT
LORD JUSTICE ROCH:
On the night of Monday 12th October 1987 Philip Saunders, was attacked and robbed as he returned to his home at 12, Anstee Court, Canton, Cardiff. In the attack he received injuries from which he died five days later on the 17th October. He was last seen alive outside a public house close to his home at 1105 p.m.. At 11.19 p.m. a neighbour made an emergency telephone call to the police having heard the attack on Mr Saunders.
Mr Saunders was 52 years of age. He owned three kiosks in the centre of Cardiff from which cigarettes, newspapers, sweets and so forth were sold. It was his routine to call at his kiosk at the Central Bus Station in Cardiff each evening at about 9.30 p.m. to collect the days takings which he would take home with him. The police when they arrived at the scene of the attack following the emergency call, in addition to finding Mr Saunders lying in the little front garden of his home severely injured, also found a spade, a £10 note and a £1 coin in the garden. No money was found on Mr Saunders.
The unchallenged evidence of the pathologist, Professor Bernard Knight, was that Mr Saunders must have received five blows to the head causing extensive fractures of his skull. Very great force was used. The skull was shattered. The spade found in the garden, in Professor Knight's opinion, could have caused all or any of the injuries to Mr Saunders' skull.
The police mounted a major investigation, which involved the arrest and questioning of 42 suspects. Three of those suspects were the appellants. They were arrested and interviewed at the end of October of that year, and all three were released on the 2nd November. The three appellants were released despite the fact that the appellant Hall had made admissions of being involved in the attack on Saunders, which admissions the police clearly doubted at that stage. Following further enquires said to have produced evidence incriminating the appellants Sherwood and O'Brien, the three appellants were re-arrested on the 10th November and following further interviews were charged with robbing and murdering Mr Saunders.
The Appellants' Trial
The appellants were tried before Michael Davies J at the Cardiff Crown Court in June and July 1988. At the outset of the trial on the 27th June Hall pleaded guilty to robbery, Count 1 in the Indictment and tendered a plea of guilty to manslaughter with regard to Count 2 in the Indictment which charged the appellants with murder. The Crown accepted the plea of guilty to robbery but would not accept the plea to manslaughter.
The trial concluded on the 20th July 1988 after 15 days of hearing. The jury convicted O'Brien and Sherwood of robbery and all three appellants of murder. The verdicts were majority verdicts of 10 to 2. Following those convictions the judge passed sentences of custody for life on all three appellants, they all being under the age of 21; O'Brien being then 20 and Sherwood and Hall 19. For the robbery Hall was sentenced to 6 years concurrent and O'Brien and Sherwood to 8 years concurrent.
On the 16th March 1990 the full court refused the appellants' renewed applications for leave to appeal against conviction. Their present appeal comes before this court by way of a reference by the Criminal Cases Review Commission under s. 9 of the Criminal Appeal Act 1995.
The three appellants, both in their answers in interview and in the evidence they gave to the jury were agreed that on the night of the attack on Mr Saunders they were together at the time the attack took place. Their evidence was that they had left the home of the appellant Sherwood's sister, Mandy Purcigo at 1, Maitland Place, in the Grangetown area of Cardiff at about 10 p.m. with the intention of taking one or more motor vehicles without the consent of the owner, and that the three had remained together until they had separated some time after 11.30 p.m. in the Fairwater area of Cardiff, at a point approximately 1½ miles from the home of Mr Saunders. The appellant Hall had gone to the home of a bus driver whom he knew, Gerard Peter Baynham arriving sometime after 11.30 p.m. Mr Baynham gave evidence before the jury that the appellant Hall was his usual scruffy self. O'Brien and Sherwood maintained that they had gone to the home of a friend of theirs, Richard Yates, who also lived in the Fairwater district of Cardiff, arriving at his home between 11.30 and 11.45 p.m. Richard Yates gave evidence to that effect adding that both Sherwood and O'Brien were perfectly normal in appearance and demeanour. There was no blood on either of them, nor was there anything unusual about them.
The gist of the appellant Hall's case and evidence before the jury was that he, O'Brien and Sherwood had left 1, Maitland Place to look for cars to take without the owner's consent. He had suggested to the other appellants that Mr Saunders should be robbed. He had realised some harm might come to Mr Saunders but had not realised that really serious harm could have come to Mr Saunders still less that he would be killed. He, the appellant Hall, had acted as a lookout. O'Brien and Sherwood had gone into Anstee Court and were the people who had attacked Mr Saunders. They had taken a bag of money from Mr Saunders, and he, the appellant Hall had had some £70 of that money. Consequently he had pleaded guilty to robbery and had been prepared to plead guilty to manslaughter.
The gist of the case presented by the appellants O'Brien and Sherwood and of the evidence that they gave to the jury was that the three men had left 1, Maitland Place to go to Fairwater by way of the Canton area of Cardiff, intending to take a car on the way. At no time that evening had they been to Anstee Court. They had had nothing to do with the attack on Mr Saunders; they had not robbed him. Hall had been with them throughout and Hall too was innocent of playing any part in the attack on Mr Saunders. After they had parted from Hall in Fairwater Grove, they had met Richard Yates and with him had taken a Ford car from Pencisely Crescent in Cardiff.
In short the appellants O'Brien and Sherwood were proclaiming the innocence of the appellant Hall, when the appellant Hall was proclaiming his own guilt and theirs of the offence of robbery and his own guilt in the killing of Mr Saunders, at least to the extent that he, Hall, was guilty of manslaughter. That, as the judge pointed out to the jury, was the unusual feature of this case. The judge reminded the jury of the observation of prosecuting counsel that the case of Sherwood and O'Brien, in that respect, flew in the face of common sense, because if Hall was not guilty of anything, he would have said so in his evidence to the jury and would have relied on the evidence of O'Brien and Sherwood to provide him with an alibi. He would not have given evidence which made it certain that he would be punished for manslaughter and robbery and which involved him in the risk of being convicted of murder.
The Prosecution's Case against Hall
The prosecution case against the appellant Hall consisted of his answers when interviewed by the police, a short conversation he had had with a prison officer whilst on remand in custody pending his trial, and the evidence of Ricky Shane Forde of conversations between himself and Hall whilst both were on remand at Cardiff prison. Forde maintained that Hall had told him that Sherwood and O'Brien had attacked Mr Saunders with a shovel and he, Hall, had stolen money out of Mr Saunders' pocket. Hall had added that at his trial he would say that he was in the passage way and Sherwood and O'Brien had stolen the money.
The Prosecutions' case against Sherwood
The prosecution's case against the appellant Sherwood started with the evidence of Christopher Chick who said that on the Sunday before the murder, he and Sherwood had had a conversation on a railway embankment in which Sherwood had asked Chick to join him in getting some money by "knocking someone off". Chick said he had refused and Sherwood's response was to say that he would get his brother-in-law to help him. The appellant O'Brien is Sherwood's brother -in-law. Chick's evidence was that Sherwood stated he had been watching a man who had a shop in the Central Bus Station for weeks and the man carried the takings from his shop home each night.
Chick and his partner Helen Morris gave evidence of meeting Sherwood and O'Brien later in that week whilst shopping at Cardiff market. On that occasion Sherwood had told Chick that they had robbed Mr Saunders and he, Sherwood, described how he had hit Saunders with a shovel. Chick's evidence was that both Sherwood and O'Brien had rolls of bank notes in their possession on that occasion. O'Brien had said to Chick that Chick should have listened to Sherwood and come with them. He would have had money in his pocket. Helen Morris gave similar evidence, about meeting Sherwood and O'Brien in Cardiff market, and a conversation between Chick, Sherwood and O'Brien of which she had heard bits and pieces. In those bits and pieces that she heard, Sherwood and O'Brien were saying that they had attacked a man with a shovel and that they had got money. Chick gave evidence of a later occasion when he had met Sherwood at a water tower where he and Sherwood used to hide property they had stolen. Sherwood had shown Chick a shovel which was splattered with blood and had hair stuck to it. That shovel was, according to Chick, different in shape from the shovel found in Mr Saunders's garden.
A Catriona Morgan, who had known Sherwood and O'Brien for several years, gave evidence of a conversation she had had with Sherwood. She had asked him about the night of the murder and why he had gone to Anstee Court. Sherwood had said "To nick a car" and that he had been with Michael O'Brien and Darren Hall. Sherwood had told her he had had nothing to do with the murder. The significance of this evidence was that it conflicted with Sherwood's account of his movements on the night of the murder.
The next witness whose evidence implicated the appellant Sherwood was Robert Michael Bradley. He told the jury he had been visiting a man called Chapman at Cardiff prison just before the new year. In the next cubicle to Chapman in the visiting room was Sherwood. Sherwood was being visited by his sister Mandy Purcigo. He, Bradley, had asked Sherwood why he was in prison and Sherwood had replied that he was on a murder charge. Sherwood's sister had then asked him who had committed the murder. She had asked that question a few times. Sherwood had replied "Mike done it; we were there." It was Bradley's evidence that he did not know who Mike was.
Another witness who maintained he had heard Sherwood make an incriminating statement was Ricky Shane Forde. He had been on remand at the same time as Sherwood and had spoken to Sherwood about the murder of Mr Saunders. He had told Sherwood that his girlfriend had told him that Sherwood's mother had found blood on a tee-shirt under Sherwood's bed. Forde said that he told Sherwood he should have got rid of the tee-shirt and he would have got away with murder. Sherwood replied that that was partly true and partly untrue.
Paul Lewis gave evidence against Sherwood to the effect that on the Tuesday night the 13th October he had gone with Sherwood, Hall and Richard Yates to take a car. He had been arrested. He had borrowed a jacket, which Sherwood had given him, taking it from the banister in 1, Maitland Place. Lewis maintained that that jacket was exhibit 50. Exhibit 50 was subjected to forensic examination and revealed traces of blood on the left cuff and left hem. The traces were insufficient for grouping.
Another witness David Colin Smith gave evidence about Sherwood having money. It emerged that the occasion to which Mr Smith was referring pre-dated the 12th October. Consequently the jury were directed to ignore his evidence.
A Clive Malcolm Butcher gave evidence that after the attack on Mr Saunders he had seen Sherwood with money. Apparently Mr Butcher is an alcoholic and the judge suggested to the jury that even were they to accept his evidence it was not very powerful or important.
Sherwood gave accounts to the police of his movements on that Monday night. His initial account was in the form of a witness statement. The police were able to demonstrate that Sherwood had lied about the movements of himself, Hall and O'Brien that night. Moreover Sherwood had told O'Brien to tell the same story as that originally told by Sherwood. Sherwood made no admission when interviewed by the police.
The final and perhaps most powerful piece of evidence against Sherwood was that of DI Lewis that on the 10th November Sherwood and O'Brien were placed in neighbouring cells at Canton Police Station where they were able to communicate for the first time following their arrest at about 8 a.m. that day. He, DI Lewis, had overheard a conversation between Sherwood and O'Brien in which O'Brien had said not once but three times that he could not hold out much longer and he might have to tell the police the truth. Sherwood had told him not to do so because if he did they would be facing life sentences. Being on remand meant nothing. The conversation had ended with O'Brien asking Sherwood why didn't he tell the police what had happened and Sherwood replying "I can't can I? If Hall hadn't opened his mouth we wouldn't be here." DI Lewis's evidence was that he had made a contemperaneous record of that conversation on an expenses claim form consisting of two pieces of paper.
The Prosecution's Case against O'Brien
The prosecution's case against O'Brien consisted of the evidence of Chick and Morris as to the conversations between Chick, Sherwood and O'Brien at Cardiff market on either Tuesday or Wednesday 13th or 14th October. There was in addition O'Brien's false accounts of his movements and those of Hall and Sherwood on that Monday night. Subsequently O'Brien admitted going to Anstee Court in a police interview, but qualified that admission by saying that he, Sherwood and Hall had gone to Anstee Court to look for a car to take. He thought that they would have arrived there after Mr Saunders had been killed. He was to take the police to Anstee Court, and whilst there said that he recognised a Morris Minor parked in the car park for Anstee Court which had been there on the night of Monday 12th October. The officers who accompanied O'Brien to Anstee Court spoke of his retching when in the car park of Anstee Court and of his being sick some time later.
Finally in relation to O'Brien, the prosecution relied upon the evidence of DI Lewis of the conversation between O'Brien and Sherwood in the cells at Canton Police Station.
Hall's Evidence:
The cases against Sherwood and O'Brien were greatly strengthened when Hall gave evidence. It is, perhaps surprising that two members of the jury should not have been convinced of the guilt of all three appellants having heard a detailed account of the events of that evening from a man who claimed to have planned the robbery of Mr Saunders; to have acted as look-out; to have heard, whilst acting as look-out, sounds that one might expect to hear if a person was being struck by a metal shovel; and to have received £70 from the money stolen. It is true that counsel for the appellants Sherwood and O'Brien were able to demonstrate to the jury that Hall had, when interviewed by the police started by lying about his movements that night, if his evidence to the jury were true; that when making admissions he had given a number of quite different accounts of the robbing and killing of Mr Saunders, some of which were patently untrue and indeed bizarre. For example at one time Hall claimed to have killed Mr Saunders himself by striking Mr Saunders with a brick.
Hall's conduct following his conviction and sentence
Following his conviction, the appellant Hall continued to assert the guilt of himself and Sherwood and O'Brien for a number of years. With the exception of one occasion in July 1991 the gist of these assertions was broadly in line with the evidence he gave at his trial; namely that the physical attack on Mr Saunders was carried out by Sherwood and O'Brien, and that he was the person who had planned the offence and had acted as look-out. However, on the 22nd July 1991 the Head of Medical Services at Dartmoor Prison recorded Hall as admitting hitting Mr Saunders twice and then "taking off" at a stage when Mr Saunders was still alive. Hall said that his two friends then beat Mr Saunders to death. Hall claimed to have watched and to have observed that Mr Saunders was a prime target. Hall expressed no remorse.
In a report dated the 21st July 1993 by the Acting Senior Medical Officer at Dartmoor Hall is recorded as giving an account of the offences similar to the evidence he gave at trial. On that occasion Hall claimed to have spoken to the victims son and to have apologised for what had occurred. Further Hall claimed that the victim's son had accepted his apology but had said that Hall would have to live with the death on his conscience for the rest of his life. The significance of that report is two fold; first, Mr Saunders did not have a son and second, Hall's account appears to have been accepted without question by those to whom he was speaking.
On the 9th March 1994, Hall was notified by the Tariff Unit of the Life Sentence Review Section of the Prison Service of the tariffs set in his case by the trial judge and the then Lord Chief Justice and by the Secretary of State together with the essential reasons for such tariffs being set. The tariff set by the Secretary of State was 12 years, but as a result of a House of Lords judgment the Secretary of State invited written representations from Hall as to the appropriate tariff in his case.
In July 1994 Hall was moved to Grendon Prison which has the facility for prisoners to take part in group therapy. At Grendon, Hall began to give a very different account. First, he said that the motive for the offences was not simply robbery. He, Hall, had been a rent boy in Cardiff and had lived with a man called George at George's flat. George had introduced him to Mr Saunders who was homosexual. After the relationship between Hall and George had ended Hall had been raped by two men in the presence of Mr Saunders and possibly at Mr Saunders's instigation. By December of 1994 Hall was saying that he had killed Mr Saunders himself and that his role had not simply been that of a lookout. These confessions were accepted as being true revelations by those in charge of the course of psychotherapy Hall was undergoing at Grendon. They spoke of Hall's courage in admitting his true role in these offences and the reasons why he had played that role and of his being "overwhelmed with guilt and remorse". The reports record that consideration of the consequences of these admissions for the appellants Sherwood and O'Brien who had always maintained their innocence was the "first matter of concern for those in charge of Hall's case". By January 1995 Hall was asking to see a rape counsellor after some "7½ years of denial". In January 1995 Hall asked his trial solicitor, Mr Mumford to come to see him and confessed to Mr Mumford that he had committed the murder using a stone or paving stone. A report by a probation officer to the Local Review Committee at Grendon Prison dated the 31st January 1995 recorded that Hall wanted to stay at Grendon and continue with the therapy. It also recorded that Hall was aware that his confession to being the murderer might be released in the media and that he would need to tell his parents about his role in the murder. The report expressed the view that were Mr Hall's parents to react adversely to his confession to being the person who killed Mr Saunders it would have a devastating effect on him. In a report dated March 1995 a vivid account of Mr Saunders's murder given by Hall at that time is recorded. One of the details was that Hall claimed that he had taken the shovel he used to kill Mr Saunders with him to Anstee Court. That was contradicted by the evidence of one of Mr Saunders's neighbours that the shovel found by the police in Mr Saunders's garden with blood and hair on it had been there prior to the murder. Another detail added by Hall to that account was that Sherwood and O'Brien had intervened to pull him away from Mr Saunders. Subsequent investigation has produced no evidence that Mr Saunders was a homosexual. On the contrary, it was established that Mr Saunders had had a long standing intimate relationship with a member of the opposite sex.
By October 1995 there is evidence in the form of a complaint form filled in by Hall that Hall was becoming dissatisfied and restless at Grendon Prison. Hall had been seen by a BBC producer minded to make a programme raising the question of the safety of the convictions of Sherwood and O'Brien in August 1995. On that occasion Hall had claimed to be responsible for Mr Saunders's death. On the 12th January 1996 Mrs Olive Tunstall, a consultant psychologist, had interviewed and assessed Hall for the BBC with the agreement of Hall's solicitor. At that interview, Hall told Mrs Tunstall that he had killed Mr Saunders. By the 17th May 1996 Hall had withdrawn from therapy feeling he was unable to continue with the pressure. On that day a memorandum from the Governor of Grendon recorded that the Wing Therapy Team did not consider that Hall had made sufficient progress to be reviewed for a re-categorisation at that time. That withdrawal from therapy had followed a visit to Hall by his father in April 1996 in which for the first time, according to Mr Hall Senior, he asked his son point blank whether he had committed the murder and his son broke down in tears and said he had not had anything to do with it and neither had his co-defendants.
Hall was moved to Gartree Prison on the 4th December 1996. At the end of his stay at Grendon a report by the Medical Officer dated the 12th November 1996 indicates that the prison authorities were aware that Hall had been involved in a BBC Wales television programme in which he had maintained his innocence. The Medical Officer observed that Hall "Certainly has difficulties separating fact from fiction, some of this is as a result of fantasising to fill gaps in his impoverished life". The recommendation was that Hall should be moved as soon as possible into the general prison system. By March 1997 Hall was telling the prison authorities and the Parole Board that he was in prison for a crime he had never committed and that he and his co-accused were innocent. In written comments to the Parole Board dated the 31st March 1997 Hall asserted that he was not guilty; that he knew his change of stance jeopardised his chances of parole; that he was coerced by the police to give them what they wanted and those police officers were the same group of officers who had been involved in two other cases where the police had acted in the same oppressive manner. The papers before us do not reveal from what sources Hall received the information about these other two cases both which he identified. On the 12th May 1997 the Parole and Lifer Group of the Parole Board expressed the view that Hall was not suitable for an open prison.
The grounds of appeal
The grounds of appeal in the case of Hall are: first, that his pre-trial confessions and his evidence at trial were and remain unreliable. That fact alone renders his convictions unsafe. A subsidiary issue under this ground is whether this court should receive fresh evidence, that evidence being of two types. First, three lay witnesses namely Mr Hall Senior, the deputy headmaster of Hall's school and Hall's trial solicitor. The second group are three expert witnesses . At the outset we heard evidence from six of these witnesses and from Dr Thomas-Peter a clinical psychologist instructed by the respondents without deciding whether we should admit such evidence under s. 23 of the Criminal Appeal Act, 1968. We also received and read a statement from the deputy headmaster. Second, the way in which Hall was detained and interviewed at Canton Police Station rendered his answers in interview either inadmissible or unreliable. That in turn tainted the evidence that he gave at his trial. Third, had Hall's answers in interview been excluded as being either inadmissible or unreliable, there would have been no case against Hall for the prosecution to put before the jury.
Five grounds are relied upon by the appellant Sherwood. First, that the hub of the case against him, Hall, can no longer be relied upon as a basis for a guilty verdict. Second, the other evidence against Sherwood is flawed and tainted and could not, on its own form the basis of safe convictions. Third, a substantial part of the remainder of the evidence said to be corroborative or confirmatory of the evidence of Hall has been retracted. Fourth, there are significant doubts about the alleged cell conversation overheard by DI Lewis. In addition there are significant issues concerning the credibility of that witness both in the circumstances of this case and arising out of the role he played in the case of R -v- Griffiths and Others. Fifth, the disappearance of certain documents cast doubt on the integrity of the police investigation into the issue of the guilt or innocence of the three appellants. First the original notes of the police interviews of Hall could no longer be located in 1994. At that time the original notes of the police interviews with Sherwood and O'Brien were available. In 1998 those notes could not be found. The note made by DI Lewis of the alleged cell conversation likewise cannot be traced. There was a further ground based on an attack on the character of the senior investigating officer and then head of the South Wales CID which was not pursued before us.
The grounds of appeal in the case of O'Brien are first, that fresh evidence, not available at the trial, establishes that Hall suffers from a mental abnormality or personality disorder which pre-disposes him to lie and fantasise. Knowledge of Hall's mental state and his tendency to lie and fantasise would have significantly affected the jury's assessment of his reliability as a witness. Second, the circumstances of Hall's detention and interrogation whilst in police custody would have further undermined the reliability of his admissions and evidence in the eyes of the jury. Third, it can now be shown that Hall has altered his account of the events of that evening whilst at Grendon Prison and, later has retracted his admission that he had taken part in the robbery and killing of Mr Saunders. Fourth, a substantial portion of the evidence which provided support for Hall's trial testimony has been retracted. Fifth, O'Brien's interviews with the police should have been excluded either under s.76 or s. 78 of the Police and Criminal Evidence Act 1984 because of the numerous breaches of the Act and the relevant Codes of Practice. In addition there is now fresh evidence of O'Brien being handcuffed to a radiator and to a table whilst in police custody. Sixth, O'Brien relies on the ground which is Ground 4 of those relied upon by Sherwood. Seventh, O'Brien relies upon the fifth ground of those relied upon by Sherwood. Eighth, the direction of the trial judge to the jury with regard to O'Brien's character was defective. This ground was added at a time when Mr Mansfield had completed most of his submissions on O'Brien's behalf. It was not a ground which impressed this court. The judge did in the summing-up remind the jury that O'Brien had no previous conviction and no previous court appearance. The judge directed the jury that O'Brien was entitled to ask them to give such weight as the jury thought fit to that fact particularly when considering whether O'Brien was telling the truth. The judge pointed out that the absence of previous convictions did not of itself mean that a defendant was innocent anymore than the existence of previous convictions meant that a defendant was guilty. When giving evidence O'Brien had admitted that on the night in question he had gone with Hall and Sherwood to take a car without the owner's consent, and had later taken part in the taking of a car with Sherwood and Yates without the owner's consent. He also admitted that on occasions prior to the 12th October he had taken cars without the owner's consent. In those circumstances, in our judgment O'Brien could not have complained had the judge declined to give any direction based on good character. The direction which the judge did give simply cannot, in our view amount to a ground for saying that O'Brien's convictions were unsafe. Consequently, we say no more about that ground.
Appellants' Police Interviews
Before turning to the Grounds of Appeal, it is necessary to give some account of the arrest, detention and interviewing of the three appellants. We start with the appellant Hall. Hall was seen by the police and gave a witness statement on the 27th October 1987. In that account Hall spent the afternoon and evening at 1, Maitland Place leaving between 8 and 8.30 p.m. From there he went to the main bus station in Wood Street, Cardiff and at 9 to 9.30 p.m. he caught a bus to Ely going to the home of Martin Cleaver's sister at 18, Highbury Road where he spent the night. Martin Cleaver had arrived at the house at about 10.30 p.m. Neither he nor Cleaver had left the house that night.
Martin Cleaver was a suspect in the case. The police obtained information concerning Cleaver's movements that night which contradicted the account given by Hall. Consequently on the 31st October 1987 at 10.30 a.m. Hall was seen at the Canton Police Station by DS Fenton and asked about the accuracy of his statement dated the 27th October 1987. Hall confirmed the statement's accuracy. The additional information the police had concerning Cleaver's movements that night were then put to Hall who admitted lying in his statement. Hall gave a second version of his movements saying that he and Cleaver had travelled from 1, Maitland Place to the centre of Cardiff where they had then separated. Hall had reached 18, Highbury Road at about 11.45 p.m. and Cleaver had arrived there some 20 minutes later. At 10.40 a.m. DS Fenton arrested Hall on suspicion of murdering Mr Saunders. At 11.15 a.m. Hall sought an interview with DS Fenton. That interview was not contemporaneously recorded. In that interview Hall gave a third version namely that he had not been with Cleaver that night at all. He had said he was with Cleaver to protect Cleaver. He, Hall, had been helping a mate move a cabinet that night. That interview took place between 11.15 and 11.35 a.m.
There was a second interview between 1.30 and 5.30 p.m. on the 31st October. The interviewing officer was DS Fenton. Hall is recorded as saying that he was prepared to be interviewed without a solicitor. In that interview Hall gave three further versions of his movements that night in all of which Hall was saying that he returned to 18, Highbury Road where he spent the night. His explanation of the differing versions was that he was trying to cover up for Cleaver. In that interview Hall was asked about his knowledge of Mr Saunders and said that whilst he had known of Anstee Court he had not known that Mr Saunders lived there. He had seen Mr Saunders at the Central Bus Station on that Monday and had bought a Mars Bar from Mr Saunders's kiosk.
There was a third interview between 6.40 and 6.50 p.m. that evening when Hall gave a seventh version of his movements that night saying that he had left 1, Maitland Place at 9.30 p.m. and walked through Canton, through Atlas Road and Lansdowne Road reaching 18, Highbury Avenue at 10.30 p.m. He was not able to say at what time Martin Cleaver got to 18, Highbury Avenue as he, Hall, had been asleep.
In a fourth interview between 7 and 7.20 p.m., the interviewing officers now being DI Lewis and DS Rogers, Hall produced an eighth version of his movements. He admitted being in Anstee Court but said it was with the intention of taking a car or committing a burglary. He had left 1, Maitland Place around 9.30 p.m. and had been on his own. Later in that interview he was to say that he had been with "Sherwood, Tony a half caste, and Richard from Fairwater", referring to Richard Yates, that evening. They had gone to Anstee Court to take and drive away a vehicle in order to break and enter a club in Radyr. Hall said that he had not known that they were going to kill Mr Saunders. Hall was outside round the back of Anstee Court when Sherwood, Richard and Tony had gone inside. They came running out and told him to go. Hall then changed his story saying that he had been alone. He had waited for Mr Saunders. He had done a snatch. Mr Saunders had tried to stop him and Hall had hit him with a house brick. He, Hall, had killed Mr Saunders. He had thrown the brick away in the river. He stole £200 and had spent it all. He was lying when he had said Sherwood was involved. He would not say whether Cleaver had been with him. Hall added that he had been to Anstee Court a few times and he had watched Mr Saunders.
There was a fifth interview between 8 and 8.35 p.m. by DS Fenton. At that interview Hall produced an eleventh version of his movements that night. He said he had left 1, Maitland Place at 11 p.m. with Sherwood, Tony and Richard to take a vehicle. They decided to try Anstee Court. He had been told to keep watch. The other three had gone around the back of Anstee Court. Hall saw Mr Saunders pull up in a white van. He saw three shadows come from the back of Anstee Court. Mr Saunders went towards the back of the van and then four shadows went into Anstee Court. Then one of the others shouted "Run" and Hall ran down Lansdowne Road. They had met up in Cowbridge Road. All of them were clean. They decided to continue to look for cars and had walked up Clive Street but could not find anything so had walked to Fairwater and split up. Hall stayed at a friend's house for the night. Then Hall told the officer that he was schizophrenic. He had done it. It was the other way round he had hit Mr Saunders whilst the other three kept watch. He had hit Mr Saunders with his bag of money which was full of silver. He had also used stones and bricks. Then Hall told the police officer that the four of them had gone to Anstee Court but only to take cars. He had not seen any murder committed.
In a further interview on the 1st November 1987 between 10.15 and 11.51 a.m. Hall enlarged on his thirteenth account of his movements that night. Hall identified the house where he had spent the night of the 12th October, the home of Mr Baynham, at 9, Fairwater Grove East. Hall stated that he did not know anyone called Michael O'Brien. At a seventh interview on the 1st November 1987 between 3.15 and 4 p.m. Hall identified Michael O'Brien from a photograph as being one of the people who had gone out with himself and Sherwood on that Monday night.
At an eighth interview, between 8.25 and 9.20 p.m. on the 1st November, Hall told the police that Sherwood, O'Brien and himself had decided to rob Mr Saunders on that Monday night. They changed their mind on their way to Anstee Court but decided to go there and take a car. Hall had stood at the entrance of the Court and Sherwood and O'Brien had gone into the court. A few minutes later Hall saw Mr Saunders's van pull into the Court. Sherwood and O'Brien were in there for 6 or 7 minutes before they came running out, both of them saying "Run". A little later Hall elaborated his account by saying that he had heard three slams in quick succession like metallic clanging sounds before Sherwood and O'Brien had come running out. They had run along Lansdowne Road and into St John's Square to look for a car. Sherwood had got into a Ford Capri but had left it because the front lights of a house were on. Hall had asked them what had taken them so long in Anstee Court and they had replied "Nothing much". Hall said that later when he had found out that Mr Saunders had been hurt he mentioned it to Sherwood and O'Brien but they had not commented. Hall said that he knew that Mr Saunders would be coming home at about that time because he had followed Mr Saunders home one night, three or four weeks earlier, on a racing bike he had stolen. He had intended to rob Mr Saunders that night but had not been able to go through with it. Hall said that O'Brien had looked shaken and Sherwood had looked normal after they had run from Anstee Court. Hall had not seen blood.
There was a ninth interview between 12.25 and 1.50 p.m. on the 2nd November. This was the first interview at which a solicitor representing Hall was present. Hall denied the truth of all his previous accounts. He said that the police had not let him have "a brief so I told you seven different lies".
Hall denied going to Anstee Court at all on the 12th October. When asked how he had been able to describe hearing sounds of the kind that would have been made in the attack on Mr Saunders he refused to comment.
Mr Hall Senior gave evidence that he was telephoned by the police and asked to go to Canton Police Station. This must have been on the 2nd November 1987. When he arrived he spoke to DI Lewis and was told that his son had admitted some involvement in the murder. DI Lewis indicated, according to Mr Hall, that he did not think that Mr Hall's son was involved. The officer suggested that Mr Hall should ask his son whether he had been involved in the murder. Mr Hall's evidence was that he went into the room where his son was; found him handcuffed to a radiator and wearing paper overalls as his clothes had been taken for testing. Mr Hall said his son looked worn out. Handcuffed where he was, his son was not able to sit down. His son made complaints as to the way in which he had been treated. He asked his son had he done it and was told that he had not. Mr Hall Senior said that he told the Detective Inspector this and that his view of his son was that he was not capable of being violent or involved in murder. The Detective Inspector said that he did not believe Hall's involvement either and told Mr Hall Senior that he could take his son home.
The appellant's O'Brien and Sherwood were both arrested at 8.30 a.m. on the 1st November. Sherwood had already made a statement on the 29th October 1987 that he and Hall had left 1, Maitland Place between 9 and 10 p.m. on the 12th October and had walked to Fairwater Grove by Way of Sloper Road. There they had parted. He had called for Richard Yates. He and Richard Yates had returned to 1, Maitland Place arriving between midnight and 1 a.m.
Following his arrest on the 1st November Sherwood was interviewed between 9.40 a.m. and 1.45 p.m. At the outset he asked for a solicitor which request was refused. He was asked about his statement which he had, before the interview began, told a police officer was a lie. Sherwood refused to answer until he had a solicitor. The police persisted with their questioning, the interviewers being a DC Runnalls and DC Hodgson. Sherwood later said that during the relevant period he had stolen a car in Canton near Victoria Park and abandoned the car in Fairwater Grove East. Initially he said O'Brien and Hall had been with him when he had taken the car. Later Hall had left them and they had picked up Richard Yates. It was Richard Yates who had abandoned the car in Fairwater next morning. Sherwood was interviewed again on the 2nd November and was bailed at 8.15 p.m. on that day until the 14th November.
O'Brien likewise was detained until 8.15 p.m. on the 2nd November at which time he was released on Bail. O'Brien had been arrested on the morning of the 1st November 1987. At the police station at 9.06 a.m. he was asked if he wanted a solicitor and said that he did not. The Custody Officer gave O'Brien into the charge of DC Hodgson for interview at 9.15 a.m. The contemporaneous note of the interview is recorded at starting at 10.40 a.m. and ending at 12.30 p.m. This is but one example of a long gap between the time at which an appellant was given in charge of a detective officer for interview by the custody officer and the record of the interview starting. O'Brien described the route taken by himself, Sherwood and Hall from 1, Maitland Place to Fairwater Grove as going by way of Sloper Road and Broad Street. He admitted to taking a car in Pencisely Crescent that night in company with Sherwood and Richard Yates. He then said that it was a lie that they had gone to Fairwater by way of Sloper Road. They went by way of Clare Road. He had lied to avoid being arrested for taking the car. There was a second interview between 3 p.m. and 3.15 p.m. O'Brien twice denied going anywhere near Anstee Court on the night of the 12th October. In a third interview recorded between 6 p.m. and 6.10 p.m. Hall's account of the movements of the three appellants that night including the fact that they had been to Anstee Court was put to O'Brien. O'Brien said that they could have been to Anstee Court but he would have to see the place first to verify it. He agreed to accompany the police there.
O'Brien accompanied the police in a police vehicle between 6.30 p.m. and 6.47 p.m. The vehicle was driven to Atlas Road and stopped near a gully leading to the rear car park of Anstee Court. O'Brien said that they had been there on the 12th October but they had not gone up the gully. They had gone around the corner, to the other way into the car park. O'Brien then directed the police to the Leckwith Road entrance to Anstee Court and said that he and Sherwood had gone in there and Hall had stood in Leckwith Road. O'Brien also pointed out an old Morris Minor saying that it was more or less in the same place as it had been on the 12th October. Then O'Brien showed the police the route that the three appellants had taken from Maitland Place to Fairwater Grove East. Whilst doing that O'Brien told the police that he was sure he had entered the car park of Anstee Court that night and that he remembered the Morris Minor.
There was a further interview with O'Brien between 7.45 and 8.50 p.m. At 10.10 p.m. O'Brien was confronted with Hall who told O'Brien "It's no good Michael you might as well come clean. I told them I was at the entrance and you and Ellis went in the car park." The reaction of O'Brien recorded by the police was "You bastard. You'll fucking get it." Hall then said that he had told the police that the three of them had talked about rolling Mr Saunders. O'Brien denied attacking Mr Saunders. O'Brien declined to sign the notes recording that confrontation when they were read over to him.
There were two further interviews of O'Brien on the 2nd November 1987. In the first of those, when reminded that Hall had admitted talking about rolling Saunders, O'Brien's reply was "No, all he talked about was getting some easy money. He never mentioned where." O'Brien insisted that he and Sherwood had not taken any notice of that statement by Hall because they considered Hall to be simple minded. In the second interview on that day Sherwood and O'Brien were seen together. Each had a solicitor present. O'Brien was asked about taking the police to Anstee Court the previous evening. O'Brien's response was that he thought he had been there on the 12th October but he was not quite sure. Sherwood's response was that he had never been to Anstee Court with either O'Brien or Hall. O'Brien then said that he could not be 100% sure whether he had been there. He knew at some stage that they were there but he could not be sure whether that had been in the day. A little later he said that he could not be sure that the place he had shown the police was the exact place. He had made a joke about a Morris Minor and he thought the Morris Minor was in the car park they had been to on the 12th October.
We heard evidence from Mr Simon Mumford, the solicitor who acted for Hall at his trial. Mr Mumford said that he had seen Hall at 10.40 a.m. on the 2nd November. At that time Hall wanted to make a statement denying the matter. He, Mr Mumford, asked DI Lewis and DS Fenton not to interview Hall in his absence. Those officers had told Mr Mumford that Hall had admitted the offences and that those admissions would be made available to Mr Mumford shortly. Mr Mumford says that he advised Hall not to be interviewed again in his absence. Whilst Hall was on bail between the 2nd and 10th November he did not contact Mr Mumford.
During that period the police obtained evidence incriminating Sherwood and O'Brien, in particular the statements of Chick and Helen Morris.
Hall, Sherwood and O'Brien were re-arrested on the 10th November. Sherwood was arrested at his home 1, Maitland Place at 8.05 a.m. O'Brien was arrested at his home in Cardiff at 8.30 a.m. Hall was arrested at his parents'home in Newport at 9.20 a.m. All three when asked by the custody officer indicated that they wanted legal advice. In each case access to a solicitor was refused. Revealingly in Hall's case, the decision to refuse access to a solicitor is recorded at 9.44 a.m. whereas the question to Hall whether he wanted legal advice is timed at 9.46 a.m. The only reason for the refusal of access to a lawyer recorded in Hall's Custody Record was "Serious arrestable offence". Similar entries are to be found in the Custody Records of O'Brien and Sherwood, except that in Sherwood's case no reason is entered for the refusal of access to a solicitor, not even the words "Serious arrestable offence" until an entry at 10.40 a.m., more than two hours after the decision to refuse access to a solicitor was taken.
In Hall's case access to a solicitor was authorised at 2.25 p.m. By that time Hall had been interviewed for the 10th time between 10.45 a.m. and 1.52 p.m. For that interview Hall had been put in charge of DS Cooper at 9.51 a.m. Again there was a prolonged interval between Hall being handed over for interview by the custody officer and the interview record beginning. This is, in our view, of particular significance in the light of what Hall said during this interview.
The record of this interview begins with Hall saying that he wanted to tell the truth; that he was not under pressure; and that he was prepared to talk without a solicitor being present. The interview goes on to say that Hall knew that Mr Saunders arrived home at about 11 p.m. and usually had his day's takings with him. He had suggested robbing Mr Saunders. However he changed his mind whilst on the way to Anstee Court and told Sherwood and O'Brien to forget it. Sherwood and O'Brien had nevertheless gone on to commit the robbery. He, Hall, had waited outside the entrance whilst Sherwood and O'Brien had gone into Anstee Court to check out cars. Hall had seen Mr Saunders's van arrive and had shouted to the others that Mr Saunders had arrived. Hall had then hidden himself. About 3 or 4 minutes after the arrival of Mr Saunders, Sherwood and O'Brien had come running out of Anstee Court and told Hall to run. Sherwood had a white bag which looked like the takings bag. The three of them had met up in St John's Square and they had walked from there to Fairwater Grove East where they had gone their separate ways. Sherwood had given him, Hall, £70. Hall had then gone on to relate how he had known Mr Saunders's movements. He also elaborated on his account by saying that Sherwood had said that Mr Saunders would not give them the money so they had hit him. O'Brien had said to Sherwood that he should not have hit him. Sherwood had had blood all over his hands and O'Brien had blood splashed on his hands.
There was an 11th interview on the afternoon of the 10th November at which Mr Mumford was present. That occurred between 4.30 p.m. and 6.08 p.m. In that interview, in the presence of his solicitor, Hall confirmed the truth and accuracy of the notes of the previous interview which were read out to him. Hall then confirmed that he was not involved in the attack on Mr Saunders but that Sherwood and O'Brien had been.
There was a 12th interview on the 10th November with no solicitor present. At that interview Hall spoke of Sherwood having had longer hair on the 12th October and of having had that hair cut by the time Hall had seen him on the 13th October. There was a final interview at Cardiff prison between DI Lewis and DS Rogers and Hall on the 24th November 1987 in the presence of Mr Mumford.
O'Brien was interviewed by the police five times on the 10th November 1987. In the first interview between 9.06 and 10.46 a.m. no solicitor was present. O'Brien was reminded of his taking the police to Anstee Court and pointing out where Hall had stood in Leckwith Road. O'Brien said that he went to Anstee Court but during the day and not at night. He did not deny taking the police to Anstee Court but said that he had been confused. The statements made by Chick and Helen Morris were put to O'Brien. O'Brien denied meeting Chick and Helen Morris either in Westgate Street or in Cardiff market on Tuesday 13th October. The second interview took place between 11.22 a.m. and 12.12 p.m. No solicitor was present. O'Brien was asked whether he had met Chick and Helen Morris in the centre of Cardiff on either Wednesday the 14th or Thursday the 15th October. O'Brien asserted that he was at work on those days. He, at that time, had been working on Wednesdays, Thursdays and Fridays. That statement turned out to be untrue in so far as it concerned Wednesday 14th October. That led to the 3rd interview between 3.34 p.m. and 4.26 p.m. at which O'Brien's solicitor was present. The police put to O'Brien that they had established that he was not at work on Wednesday 14th October. O'Brien claimed to have told the police that there had been one Wednesday when he had not been at work. The interviewing officers were the same as the interviewing officers at the 2nd interview on that day. They maintained that O'Brien had not told them that he had had a Wednesday away from work. O'Brien went on to deny seeing Chick or Helen Morris at Cardiff market on that Wednesday. The 4th interview was between 5.10 p.m. and 5.15 p.m. No solicitor was present. The purpose was to ask O'Brien if the police could see his bank statements. O'Brien agreed. The 5th and final interview took place between 11.05 and 11.15 p.m. At that interview DC Thomas in the presence of DI Lewis put to O'Brien the cell conversation said to have been overheard by DI Lewis. O'Brien's response was that much of it was lies. He had told Sherwood he was scared, but was scared of losing his wife and children. He admitted saying that he could not handle it much longer, but he was referring to the hassle of being questioned by the police.
There were four interviews with Sherwood on the 10th November. The first interview is recorded as commencing at 9.50 a.m. and ending at 12.14 p.m. It is of interest that in the custody record at 10.40 a.m. the reasons why legal access was denied Sherwood were recorded. They were that access was "likely to lead to interference with investigation by persons unwittingly passing on information which could lead to destruction of evidence and physical injury to witnesses in the case". The contents of the statements of Chick and Helen Morris were put to Sherwood during these interviews. Sherwood admitted that on Sunday 11th October he and Chick had left 1, Maitland place and taken refuge on the railway embankment, Helen Morris having summoned the police because of Chick's refusal to return her baby to her. They had stayed on the embankment until the police had departed. Sherwood denied any conversation with Chick about committing a robbery.
The 2nd interview took place between 5.55 and 7.36 p.m. on that occasion Sherwood's solicitor was present. In that interview Sherwood was asked further questions about the statements of Chick and Helen Morris. He was also asked about O'Brien taking the police to Anstee Court and about the admissions made by Hall. At one point Sherwood suggested that there was something wrong with Hall. Sherwood insisted that neither Hall nor O'Brien nor he had gone any where near Anstee Court that night. There was a third interview, with the solicitor present between 8.15 and 8.30 p.m. In that interview it was put to Sherwood that he had his hair cut sometime on Tuesday 13th October. He denied that and said that he had had his hair cut in September. The final interview was that between 10.25 p.m. and 10.40 p.m. in which DC Thomas in the presence of DI Lewis and Mr Grech, Sherwood's solicitor put the conversation which DI Lewis said he had overheard between O'Brien and Sherwood when they had been placed in adjoining cells that evening. Sherwood's response was that the only thing that had been said was that someone was listening and he would catch O'Brien later.
When he gave evidence, O'Brien told the jury that on the first occasion that he was arrested on the 1st and 2nd November, on the first day he had been handcuffed to a radiator, he thought in the inspector's office. The next day he had been handcuffed to a table. On the second occasion he had been arrested a police officer had spoken to him about a sexual assault on him by a 59 year old man some two years earlier. The officer had suggested that O'Brien had enjoyed being sexually assaulted. O'Brien said that that suggestion hurt him. O'Brien also claimed that on the first occasion he had been arrested the police made suggestions to him, off the record, that Sherwood had admitted the offence. O'Brien sought to explain taking the police to Anstee Court and pointing out where Hall had stood and saying that the Morris Minor had been there on the 12th October by saying he was confused. The police had made him believe that he had been to Anstee Court. The police had told him that both Hall and Sherwood had said that the three of them had been to Anstee Court. O'Brien sought to explain his reaction to being confronted by Hall, who was saying no more than O'Brien had admitted to the police, namely that they had been to Anstee Court to look for a car to take, by saying that before being confronted by Hall the police had told him that Hall had said that he and Sherwood had committed the murder.
The experts' evidence
We heard evidence from four expert witnesses, three called by Mr Fitzgerald and one called by Mr Elias for the respondents. The first expert witness was Professor Kopelman a consultant psychiatrist and a chartered psychologist, who is Professor of Neuropsychiatry at St Thomas's Hospital. Professor Kopelman found that the appellant Hall had low self-esteem, wanting to prove himself "one of the gang". In his view Mr Hall fulfilled the DSM-IV criteria for anti-social personality disorder and the ICD-X criteria for dissocial personality disorder. In Professor Kopelman's view Hall showed many of the features of a pathological liar. He presumed that Hall's lying was to bolster his self esteem as was Hall's delinquent adolescent behaviour. Professor Kopelman also detected in Hall a tendency to be suggestible or compliant. Low self-esteem and those tendencies are factors which have been described in academic writing as promoting false confessions. Professor Kopelman took note of the evidence of Mr Mumford that Hall had confessed on previous occasions to having committed offences which he could not have committed and that Hall lived in a fantasy world. As a consequence, in Professor Kopelman's view Hall was vulnerable to the effects of a protracted and pressured police interrogation in the absence of a lawyer or independant adviser. Hall had consequently changed his story and told stories which were not in his best interest. This pattern of behaviour, his personality and the circumstances of the police interrogations suggested to Professor Kopelman that any conviction based upon Hall's confession alone must be regarded as potentially unsafe.
The second witness we heard was Dr Gudjonsson a reader in forensic psychology and a consultant clinical psychologist to the Bethlem Royal and Maudsley Hospitals. Dr Gudjonsson had Hall complete a number of tests or questionnaires, which are designed to disclose the personality traits of the person tested and to show, in particular, any abnormalities in the personality of that person. In addition Dr Gudjonsson assessed Hall whilst Hall was carrying out these tests and whilst Dr Gudjonsson interviewed him. To Dr Gudjonsson, Hall came across as being of average intellectual abilities, but emotionally labile and of anxious temperament. Dr Gudjonsson considered that Hall's responses to the tests and questionnaires were genuine. Some of the tests were designed to show whether the person tested was trying to produce misleading results. In interview Hall denied being involved in the murder of Mr Saunders and gave these explanations for the admissions he made to the police. First, he thought he was being clever and "wanted to get one over on the police". Second, he was extensively pressured to confess by police officers. Eventually he told the police what he thought they wanted to hear. Third, he wanted to be noticed and recognised. He had not been bothered by the prospect of going to prison. Fourth, he did not think of the consequences of making a false confession either to himself or to his two co-defendants. He did not think he would be convicted of murder and receive a life sentence.
Dr Gudjonsson concluded that Hall had an abnormally strong predisposition to criminality. The result of the tests suggested that Hall was more compliant in his temperament than 98% of the general population. That would indicate that he is exceptionally eager to please and tries hard to avoid conflict and confrontation with those in authority. Other test results were consistent with a diagnosis of personality disorder. In Dr Gudjonsson's view that personality disorder was of long standing and undoubtedly pre-dated the 1987 police interviews. The result indicated serious problems in inter-personal relationships and anti-social personality characteristics, including impulsivity and acting without properly considering the consequences of his actions. Persons with those characteristic are susceptible under certain circumstances to make a false confession during interrogation, especially when those characteristics are combined with high compliance and anxiety proneness as they were in the present case. Dr Gudjonsson considered that there were strong indications that Hall readily tells lies to others as a way of coping with stressful and demanding situations without any consideration of the long term consequences to himself or others. Hall's lying was likely to serve his psychological need of self esteem enhancement and attention seeking. In his report, Dr Gudjonsson then considered "the unusual aspect of this case" namely Hall's failure to retract his confession at the earliest opportunity after the interrogation sessions were terminated. Dr Gudjonsson then wrote:
"On the face of it, perhaps the most logical explanation is that Mr Hall did not retract the confession for 8 years, because he had been involved in the offence. How do we know that Mr Hall is not presenting us with just another convenient lie in order to further his need for notoriety? Simply, we do not know and this possibility cannot be disregarded completely."
Dr Gudjonsson went on to consider an alternative explanation namely that Hall had made the false confession and had not retracted it for a number of years due to his own peculiar needs and underlying psychology. That was a possibility, which on the basis of Dr Gudjonsson's psychological evaluation had some merits. He had read the detailed explanation for the delayed retraction provided by Mrs Tunstall in her report and agreed with her views and arguments. The test results, the background information concerning Hall, his confessions and retractions left Dr Gudjonsson with serious reservations about the reliability of the confessions he made to the police in 1987, his evidence to the jury and his subsequent confessions to others after his conviction.
The third witness was a consultant psychologist Mrs Tunstall. Mrs Tunstall was initially brought into the matter by the BBC before the appellants' cases were submitted to the Commission. When she first interviewed Hall, Hall was still maintaining that he was guilty of murdering Mr Saunders. Hall performed tests administered by Mrs Tunstall which she did not immediately score. The conclusions in her report prepared for the Commission and dated October 1997 are that there was sufficient evidence to suggest that Hall's confessions might be unreliable. That was the evidence of his personal vulnerabilities; his inadequate access to legal advice when being interviewed; the stress he may have been placed under when being interviewed. His perception that he would not be convicted of murder but at worst would be convicted of some lesser offence and receive only a short prison sentence for playing a very minor role; and the notoriety and status that his confession brought to him. Mrs Tunstall then went on to consider the delay before Hall retracted his confession following his conviction. In Mrs Tunstall's opinion there was no obvious gain for Hall in retracting his confession at the time when he did retract it namely in early 1996. Indeed there were a number of disadvantages. By retracting his confession he lost the opportunity of being considered for parole. He was admitting to having lied throughout his trial and consequently to having given false evidence against his two co-defendants. He was destroying his image as a "tough guy". Finally he had to face all this becoming known to his family. Mrs Tunstall considered that the explanations Hall gave for having made what he now claims to have been a false confession and for having subsequently maintained that confession for eight years and for his having retracted it when he did are complex but, in Mrs Tunstall's opinion, comprehensible in psychological terms. She thought that it was in question whether Hall has the capacity to have fabricated such material. We would at this point, make the observation that in saying that there was no obvious gain for Hall in retracting his confession in early 1996, Mrs Tunstall appears to have overlooked the threats allegedly received by Hall and his family, Hall's fear of being rejected by his family because of his admissions that he alone had killed Mr Saunders reported by the probation officer in her report of the 11th January 1995, and Hall's dissatisfaction with his treatment in Grendon, expressed in October 1995. We found Mrs Tunstall to be the least objective and persuasive of the expert witnesses.
The final expert witness that we heard was Dr Thomas-Peter, a clinical psychologist and Director of Psychological Services at the Raeside Clinic and Honorary Senior Research Fellow at the School of Psychology of the University of Birmingham. Dr Thomas-Peter was of the view that Hall did not fulfil the criteria for personality disorder. Hall has a history of an unusual upbringing in which social disadvantage and unusually high motivation to become affiliated with a peer group are key issues. Dr Thomas-Peter considered Hall to be rather immature. Hall has a desire to appear socially able and mature which was revealed in the psychometric examination carried out by this witness and by Hall's expression of strongly held opinions without thinking through the issues. Dr Thomas-Peter considered Hall to be
"unusual in as much as he is more concerned about the immediate impression he gives to others, arising from his strong need for affiliation and acceptance, than he is about the conventional propriety of telling the truth. As a result he may be complacent or thoughtless about the consequences of what he says, for himself or others. This would equally suggest how he might offer a chaotic account of himself regardless of his innocence or guilt. In the end this formulation is tentative and based on clinical inference, supported by some, but not overwhelming evidence. Nevertheless it calls into question his capacity to provide a truthful statement.
The explanation for maintaining his guilt subsequently has two points. The first relating to the remand period is the "threat" argument which has yet to be proved, but would be consistent with Mr Hall's capacity to be fearful of those who threaten him. Secondly, after being sentenced, it might reasonably be argued that his abnormal need for affiliation allowed him to neglect further consideration of his guilt."
Dr Thomas-Peter did not accept that Hall was really compliant to the influence of others in a typical way. Nevertheless Dr Thomas-Peter accepted that Hall has a disordered personality as a result of such factors as his unusual upbringing and social disadvantages. Hall has a tendency to speak without thinking about the consequences. The witness believed that Hall had an abnormal degree of impulsivity. There was also Hall's desire to maintain an impression of being mature and adult without the competence of sustaining that impression. It would follow that confessions obtained from Hall might be unreliable due to an abnormality which was shown in the tests for impulsivity performed by Dr Thomas-Peter and by the witnesses observations of Hall during clinical examination of him. That was an abnormality on which an expert could throw light. It was unlikely to be spotted by a lay person, in the view of the witness.
Dr Thomas-Peter was an impressive witness because when invited by counsel in cross-examination to go beyond his expertise and stray into the province of this court, by being asked whether in his view the evidence on which Hall and his co-defendants had been convicted was potentially unreliable because of the risk arising from Hall's abnormality, the witness responded by saying "That's a conclusion that I wouldn't draw". The witness went on to accept that Hall's evidence to the jury might well represent Hall saying something for its effect or because of his attention seeking impulsivity rather than because what he was saying represented the truth. Hall's ability to provide a truthful statement was in question and that applied to his evidence at his trial, to his initial admissions, and to his subsequent retractions.
The perception of those acting for Hall at the time of his trial:
It is clear that the abnormal personality traits identified by the expert witnesses in their evidence to this court were not appreciated at the time of the appellants' trial. We have had placed before us two reports concerning Hall's mental state prior to his trial. The first is that of the prison medical officer Dr Anna Thomas who in addition to other qualifications was a member of the Royal College of Psychologists and recognised under s. 12 of the Mental Health Act, 1983. Dr Thomas reported:
"Hall presented as a young man of average intelligence, who was fully orientated and aware of the charge against him, and the possible consequences. He was able to give a good account of himself. He was composed and did not appear to be emotionally upset. He showed no evidence of suffering from a clinical depression and showed no evidence of a formal thought disorder, auditory hallucinations, feelings of passivity or delusional perception."
A little later in her report Dr Thomas stated:
"As Hall began to settle into prison routine he presented as an arrogant, self-assured young man. However, on several occasions he was threatened by other inmates, and it is possible that he developed this air of superiority as a method of coping with his situation."
The second report that we have seen is that of Dr Kellam who was instructed by Hall's solicitor. Dr Kellam saw Hall at Cardiff prison on two occasions before writing a report dated the 4th March 1988. In the letter which accompanied the report Dr Kellam wrote of his report:
"It is fairly brief as I do not find him to be in any way psychiatrically abnormal. Indeed he has always stressed to me that what he did was reasonable and he thought it was a risk worth taking. The only problem appears to be that he does not realise the seriousness of his situation and the risk of his being convicted of murder."
Dr Kellam explored with Hall Hall's attempt at suicide by taking an overdose of tablets about two weeks prior to the murder of Mr Saunders. The information Dr Kellam was given by Hall was that the attempt was due to a quarrel between him and his girlfriend; that he had taken some valium tablets which belonged to a friend; that had been done on the spur of the moment and he had had no real intention of killing himself. In fact, the tablets taken by Hall resulted in Hall being admitted to hospital as an emergency and being detained in hospital for three days.
In his brief to counsel Mr Mumford instructed counsel that Hall had obtained two `O' Levels in Maths and Woodwork and a CSE Grade 1 in English at school. Hall had made the same representation as to his academic achievements to Dr Anna Thomas. In fact the statement of Mr Reynolds the Deputy Head Teacher of Hall's school is to the effect that Hall did not achieve any `O' Level whilst at school. Mr Mumford's instructions to counsel went on that Mr Hall's pattern of offending was "very unremarkable". Then there was this passage in the instructions:
"There have as counsel will note been no incidents of violence in this young man's behaviour at all and it would be fair to say that those instructing you, having known him for some years, were frankly amazed that he was accused of murder since his demeanour is not that of a violent person but that of a rather happy go lucky individual if a little feckless at times ....... On one occasion his girlfriend admitted that she was being unfaithful to him and this had an extraordinarily bad effect on Darren Hall who attempted to commit suicide by taking valium. This was in the middle of last year. Whilst this does not demonstrate terrific instability it certainly shows Darren Hall as a somewhat over emotional person and one whose judgment is not always too sound."
The brief went on to outline an account of the evening of the 12th October consistent with Hall's admissions to the police and counsel were informed that Hall was saying that that was "the definitive statement". In that brief counsel were not informed that Mr Hall had been born with club feet which had lead to numerous operations and problems for him at school. Nor were they told that on previous occasions Hall had falsely admitted offences which he could not have committed. The account of the suicide attempt was underplayed, there being no mention of Hall's admission to hospital following that attempt. In those instructions Mr Mumford made no reference to seeing Hall handcuffed to a radiator at Canton Police Station. Nor did the instructions refer to Hall's request to Mr Mumford prior to a Magistrates' Court hearing on the 3rd December 1987, that he should be interviewed by the police again so that he could retract his admissions. On the other hand, it appears that Mr Mumford was taken in by Hall's lies concerning his academic achievements at school. If Mr Mumford had doubts concerning Hall's account of the night of the 12th October 1987, those doubts were not expressed in his brief to counsel.
It follows that the jury must have been totally unaware of Hall's background, medical history, suicide attempt and those facets of his personality relevant to the evidence he gave inculpating himself and his co-defendants in these offences. Moreover the circumstances in which Hall came to make his admissions were not explored before the jury, because Hall's instructions to those acting for him did not require that to be done. Indeed those acting for him would have wished to rely on his admissions to the police as indicating that Hall was a person who had spoken the truth; the truth being that he had acted merely as a lookout whilst the attack on Mr Saunders was being carried out. We accept Mr Mansfield's submission that tactically it was not open to counsel for Sherwood or O'Brien to challenge their interviews (as opposed to the alleged cell conversation) when Hall was not challenging the admissibility of his interviews.
Detective Superintendent Partridge's report:
The Commission instructed DSupt Partridge to report on the procedures followed by the South Wales Police in investigating the death of Mr Saunders and in particular in interviewing the three appellants. DSupt Partridge's report to the Commission points to the gaps in the custody and other records relating to the three appellants whilst in police custody. His investigation elicited evidence of a practice at that time at Canton Police Station of handcuffing persons detained to radiators and other objects. In his report Mr Partridge stressed the lack of justification for the refusal to allow the appellants access to legal representatives especially when they were arrested for a second time on the 10th November 1987. We agree with the Superintendent that none of the reasons recorded for declining legal representation on that occasions bears examination. We are satisfied that the decision to refuse the appellants access to lawyers were "blanket decision" as conceded by Mr Elias, and that in 1987 at Canton Police Station, if not elsewhere in the South Wales Police area, it was the practice to withhold access to solicitors until after the police had had the opportunity to interview detainees. Mr Partridge's report points to failures to review the detention of the appellants properly. The entries in the custody records coupled with the statements of the police officer charged with the obligation of reviewing the custody of the appellants indicates that the reviewing officers may well have been told on more than one occasion that a review could not be carried out at the proper time because that detainee was being interviewed when the interview records show that that was not so. We are satisfied that there were clear breaches of the 1984 Act and the Codes made pursuant to that Act.
The vice of the practices followed at Canton Police Station at that time are that it becomes impossible for a court to be sure that admissions have been fairly and properly obtained, or, when the admissions are made by vulnerable persons, that the admissions represent the truth. In this case, it cannot be seen that in the substantial periods of time unaccounted for in the custody and interview records, the appellants were not being interviewed "off the record", as O'Brien claimed in his evidence to the jury happened to him, or that Hall was not having his "ego massaged" as was suggested by Mr Mumford when he gave evidence. Nor can this court be sure that admissions were not made by Hall because of the pressure of being interviewed several times whilst being held "incommunicado", and because he believed that the admissions he was making represented the playing by him of a minor role in the robbery and murder of Mr Saunders which would lead to a short prison sentence. It is not the fact that the codes were breached that is important; it is the reality of what occurred or may have occurred. It is for the respondents to satisfy us so that we are sure that the confessions by Hall and the admissions by O'Brien of having been to Anstee Court were not obtained in consequence of anything said or done which was likely in the circumstances existing at the time to render unreliable that confession, see s. 76(2) of the Police and Criminal Evidence Act, 1984. The appellants were interviewed without their solicitors being present. The exact whereabouts of the appellants prior to several of the important interviews are unknown because those whereabouts were not recorded. Implementation of the codes not only protects detainees it also assists the police in that where admissions are made, it becomes highly unlikely that those admissions will not be given in evidence and accepted by the jury and the court or that such admissions could be undermined on appeal.
In reaching these conclusions we are not making any findings of deliberate misconduct against any police officer, nor could we do so, not being a court which makes findings of fact. Even were we to be a fact finding court, we could not make any such finding in the absence of hearing any evidence from those detained and interviewed or from the police officers involved in the interviewing process.
The role of this Court:
We turn to the role of this court in this appeal. This court has to decide whether these convictions are safe or unsafe. To do that we must apply the substantive criminal law that was in force at the time of the trial in 1988. However, we judge the conduct of the investigation of the case, the conduct of the trial, the directions to the jury and the reliability of the evidence on which the jury acted in accordance with the standards that this court now applies, c.f. R -v- Mills [1998] AC 382 per Lord Hutton at page 397 C-G and R -v- Bentley not reported but decided on the 30th July 1998 by this court presided over by the Lord Chief Justice.
This approach is important in this case in two areas. First, when considering the practices then apparently being followed by the South Wales Police, at least at Canton Police Station. Mr Elias submitted that those practices conformed with the letter of the 1984 Act and the then codes and with police standing orders then in force. We do not accept that submission, but even were it to be correct, the practices followed and the reliability of evidence thus obtained are to be judged by present standards,. The second area is that of the reliability of admissions made by persons who are vulnerable and because of such vulnerability liable to make confessions which are false. The understanding of this phenomenon today is much greater than it was in 1987 and 1988. Tests to ascertain the personality traits which are associated with those who may make false confessions have been developed since that time. As this court observed in R -v- Roberts unreported but decided on the 19th March 1998:
"With the recognition of the potential utility (and so the admissibility) of such evidence came the consequent recognition first, that the courts might need help in the form of expert medical or scientific evidence to identify the vulnerable, and second, that for the vulnerable the requirements of the Judge's Rules or PACE were necessary protections, not bureaucratic formalities."
The respondents' Submissions:
The respondents' submissions are that the appellants were represented at their trial by competent counsel and solicitors. The appellants could have challenged the admissibility and reliability of their recorded answers in interview, but chose not to do so. The appellants should not be permitted to do so now. It has to be remembered that even now the appellants do not challenge the police evidence of what the appellants said in interview, except for the alleged cell conversation.
The respondents argued that expert evidence should not be received by this court, although that was not a submission pursued with any great vigour or persistence before us.
The respondents' principal submission was that despite the short comings in the practices adopted at Canton Police Station, and accepting the expert evidence concerning the personality of Hall, examination of the totality of the evidence points decisively to the appellants being the persons responsible for these offences. Each expert witness had accepted that persons with Hall's abnormal personality traits could tell the truth. No expert could say that Hall's admissions or evidence that he had planned the robbery and acted as lookout were lies. An overview of the evidence should persuade us that Hall had in fact, when in the witness box, told the truth.
Admissibility Of The Medical Evidence Heard By The Court
Admissible evidence from psychiatrists or psychologists is not confined to evidence of "a personality disorder so severe as properly to be characterised as a mental disorder"; see R -v- Long unreported but decided on the 13th July 1995 by this court presided over by Lord Taylor, Chief Justice, and R -v- Roberts [above]. The evidence which we heard related to matters which would be outside the experience of a jury. It was evidence which was not adduced at the appellant's trial which, in our view, it is necessary in the interests of justice that we should receive. In reaching that view, we have taken account of the four matters set out in s. 23 (2) of the Criminal Appeal Act, 1968 as amended by the Criminal Appeal Act 1995. In our judgment the evidence of the four expert witnesses is capable of belief; it may afford a ground for allowing these appeals; there is a reasonable explanation for the failure to adduce the evidence in those proceedings. Moreover, one issue indeed the principal issue in this appeal is the reliability of the evidence and admissions of the Appellant Hall, and this evidence would have been admissible under the law as it now stands at the appellant's trial.
We are conscious of and have borne in mind those authorities which are to the effect that a defendant must be required as a matter of the administration of justice to present his case at trial and not be permitted, one case having failed, to run a different and inconsistent case in an appellate court based upon different evidence; that, in the words of McCowan LJ in R -v- Richardson cited by Hobhouse LJ in R -v- Arnold [1996] 31 BMLR 24 at 38:
"The court is extremely reluctant to lend any assistance to that sort of purpose. Indeed it could only be in exceptional cases that it would do so."
This is, in our judgment, such an exceptional case, because of the convictions of Sherwood and O'Brien. It has to be remembered that it was their case at trial that Hall's admissions and evidence were false. They have maintained that consistently since that time. We have been informed by Mr Elias that the prison records relating to Sherwood and O'Brien have been seen and show that they have consistently maintained their innocence over the 11 or more years that they have been in jail. Those acting for Sherwood and O'Brien were not in a position to call the evidence which this court has heard concerning the personality traits of Hall. Any expert instructed on their behalf would not have had access to Hall's medical history and could not have interviewed Hall. Any evidence by such an expert would have been based on the flimsiest foundation. In the light of the reports of Dr Anna Thomas and Dr Kellam and taking account that the knowledge of the psychology of interrogation and the phenomenon of false confessions was developing in 1987 and 1988, it is unsurprising that those acting for Hall did not seek such evidence. Finally, in 1988 it was generally thought that such evidence could only be admitted if it showed a recognised mental illness, this being the interpretation placed on R -v- Turner [1975] QB 834. Consequently we admit this evidence and take it into account when deciding these appeals.
The Importance of Hall's Admissions And Evidence
The admissions and evidence of Hall were the hub of the case heard by the jury. Without those admissions and without that evidence, although it cannot be said that there would have been no case for the prosecution to present against Sherwood or O'Brien, that case would have been very different from that on which they were convicted by the jury. In his summing-up, the judge observed:
"Hall is, in the end, perhaps the main witness against his co-defendants."
The judge set out early in his summing-up, the three possible motives that had been suggested for Hall making false admissions and giving false evidence. They were first, to minimise his own part. Second, to protect others, Third, that he had been paid to say what he had said and to admit what he had admitted. As Mr Mansfield pointed out in his submissions on behalf of O'Brien there was little if any evidence to form a basis for the second and third explanations and the first was wafer thin.
We are satisfied that Hall's evidence played a central and crucial part in the appellants' trial and that if we cannot be sure that his evidence could be acted on safely by the jury, these appeals must be allowed.
Witness Retractions:
We have been informed that a number of the prosecution witnesses have retracted their evidence against Sherwood and O'Brien. The submission made on behalf of the appellants is that we should take account of those retractions. Whilst we do not ignore them completely, we are not impressed by them nor do we attach much weight to them. We are aware that certain of the witnesses who have retracted their statements declined to meet the representative of the Commission. We know little or nothing concerning the circumstances of those retractions. In the light of our conclusions on the two main grounds of appeal we do not consider it necessary to make any further observation on this aspect of the case.
The reliability of Evidence other than Hall's evidence identified by the Judge in Summing-up as capable of Supporting Hall's Evidence
Some of the remaining evidence which on the face of it was strongly incriminating of Sherwood and O'Brien, namely that of Chick and Helen Morris was, by the time those witnesses left the witness box substantially undermined by cross-examination. Chick had during his evidence withdrawn much, if not all, of his evidence incriminating Sherwood and O'Brien. Chick's evidence of the existence of a second shovel which Sherwood had taken with him when leaving the scene of the murder and was keeping at the water tower on the railway embankment is, in our view, difficult to credit. Both Chick and Helen Morris had made statements which had made no mention of meeting Sherwood and O'Brien in the centre of Cardiff and of Chick having the conversations with Sherwood and O'Brien of which they gave evidence to the jury. Both Chick and Helen Morris spoke of being subjected to pressure by the police. Chick clearly had the prospect of advantages through co-operating with the police when it came to his own court appearances for offences committed by him.
With regard to the evidence of Bradley, the inquiries of DSupt Partridge have shown that there may well have been an occasion at the end of 1987 when Bradley visited Chapman at Cardiff prison on the same day as Sherwood's sister visited Sherwood and that both Chapman and Mandy Percigo could have been in the visiting room at the same time. Moreover investigation showed that Bradley's account of the numbers of the cubicles occupied by Chapman and Sherwood namely 36 and 37 was possible whereas Sherwood's account that he was in a cubicle No 56 would not have been possible, there being no such cubicle. Nevertheless, having taken account of these matters we find it remarkable that Sherwood's sister should wait until the end of December before asking her brother if he had been involved in the murder of Mr Saunders, and that she should ask that question in the presence of Bradley.
The evidence of Paul Lewis of borrowing a jacket from Sherwood which was later found to have traces of blood upon it reduces in force in the light of the fact that numerous items of clothing which were taken from the 42 suspects arrested during the police investigation were found to have traces of blood on them.
The evidence of Catriona Morgan must have had greater significance for the jury. Nevertheless in her case she had made four statements to the police in which she had made no mention of Anstee Court or to any admission by Sherwood that he had been to Anstee Court to steal a car.
The remaining witnesses called by the prosecution namely Forde, Smith and Butcher would, in our view have been of little or no assistance to the prosecution case against Sherwood or O'Brien.
That leaves the evidence of DI Lewis of the overheard cell conversation. When DI Lewis gave evidence at the appellants' trial there was little scope for cross-examination to undermine his evidence that he had overheard an incriminating cell conversation other than the fact that the entry in the custody record of that conversation being overheard started with the time 20.43 whereas it must have been entered between 20.50 and 21.50. This apparent discrepancy was readily explained by DI Lewis saying that the 20.43 was the time of the conversation that he overheard and not the time of the entry in the custody record.
We have had drawn to our attention the trial of Griffiths & Others at Cardiff in September 1983, a trial known as the Welsh Bomb Trial. In that case a number of people including Robert Griffiths and a Nicholas Hodges stood trial on various charges relating to attacks with explosive devices on thirteen targets in England and Wales between March 1980 and March 1982. The cases against a number of the defendants in that trial and in particular the cases against Hodges and Griffiths depended on admissions said to have been obtained from them during interview at Rumney Police Station Cardiff. The note taker who recorded those interviews was DI Lewis, then a DS. The accuracy of the recording of those interviews and the veracity of the interviewing officers were in issue at that trial. It was also the defendants' case that they had been subjected to oppression whilst in police custody. Griffiths and Hodges were acquitted of the charges against them. Because of the number of incidents and the breadth of the inquiry, the West Midlands Serious Crime Squad were involved in the investigation of these offences.
There was a significant occurrence during the course of the proceedings namely, that a typed copy of hand-written notes prepared for the committal proceedings contained words which did not appear in the typed version of that hand-written statement prepared for trial. The typed copy prepared after the committal, which replaced the pre-committal typed version of the statement accurately represented the manuscript. Mr Elias, who was junior counsel for the prosecution at that trial, conceded that it was clear at the trial that there had been some "monkey business", to use his words, in relation to the typed copies of the manuscript notes. It was his recollection that it was thought that the improper copying of the manuscript notes was attributable to members of the West Midland Serious Crime Squad, a group of police officers who have since become notorious, and was not the result of any action by a South Wales police officer. Be that as it may, it is difficult to see how additional words could be inserted into a typed version of notes which were apparently made by DS Lewis, without his having been aware of that happening. In any event we accept the submission made by counsel for the appellants that DI Lewis would now be liable to be cross-examined about his part in the Welsh Bomb trial and about how it could have occurred that additional words appeared in a typed copy of notes made by him. Such cross-examination would come within the categories of material which are relevant and admissible to be put to police officers when their credibility is in issue see R -v- Edwards [1991] Cr App R 48 at pp 58-59. Moreover, DI Lewis would be liable to be cross-examined on the handcuffing of O'Brien and Hall to radiators at Canton Police Station, and about the refusal to allow the appellants to consult their solicitors and the implausibility of the reasons recorded for that refusal in the appellants' custody records.
We cannot and do not say that the evidence of DI Lewis of the conversation he says he heard between Sherwood and O'Brien must be false. We are satisfied that cross-examination of DI Lewis in the light of the information now available would be much more effective than the cross-examination he faced at the appellants' trial and the chances of the jury being unsure as to whether he was speaking the truth or not would now be much greater. As a postscript we add that we are not much impressed by the point that DI Lewis's note of the conversation is not now available. DI Lewis said that he had recorded the conversation on the back of an expenses claim form. The conversation was put to Sherwood and to O'Brien within a very short time of the conversation having occurred. It was put to them in the presence of their solicitors who no doubt had the opportunity to examine the claim form on which the record of the conversation was written. That record was produced to defence counsel at the appellant's trial and examined by them. The document was not made an exhibit. It is in our view precisely the kind of document that is easily mislaid. More disquieting in our judgment is the disappearance of the original notes recording the interviews with Hall prior to 1994 and the disappearance of the original of the notes recording the interviews with Sherwood and O'Brien between 1994 and 1998.
Finally in the case of O'Brien, his interview admitting that he had been with Sherwood and Hall at Anstee Court on the night of the 12th October to take a car, and evidence of his accompanying police officers to Anstee Court and pointing out where he and Sherwood had entered the car park at Anstee Court, and where Hall had stood in Leckwith Road, would now be inadmissible as evidence against him because of the breaches of the Police and Criminal Evidence Act and the Codes made pursuant to that Act which have now been established. There were fundamental breaches of PACE in respect of O'Brien the gravest of which were the handcuffing of him to a radiator and to a desk. The custody record, particularly in respect of the first series of interviews, showed that there were periods of hours when he was not in the custody of the custody officer and was not being interviewed. O'Brien when he gave evidence claimed that he had been interviewed "off the record". Those gaps in his custody record and in the records of his interviews mean that the respondents cannot make us sure that "off the record" interviewing of O'Brien did not take place.
The reliability of Hall's Evidence
Despite the differences between the views of the experts we heard, we are satisfied that Hall is and was a person having traits in his personality of the kind associated with those who make false confessions. Dr Gudjonsson gave evidence that Hall showed a very high level of compliance, to an extreme degree found in only about 2% of the population. All the experts were agreed that Hall was a man with low self esteem but a high degree of impulsivity. The presence of these traits did not mean that the admissions Hall made and the evidence he gave were untrue; they rendered those admissions and evidence potentially unreliable.
We are satisfied that had a jury heard the medical evidence that we have heard and had evidence of the unsatisfactory way in which the interviews at the Canton Police Station, and particularly those of Hall, were conducted, a jury would probably have taken a different view of the reliability of Hall's assertions. That conclusion, in our judgment, is sufficient to determine these appeals and to lead us to the conclusion that these convictions were unsafe and should be quashed.
In the light of the very full and helpful submissions that we have had from counsel, and in particular from Mr Fitzgerald we add this postscript. At one time the law was thought to be that expert evidence of the kind we have heard could only be admitted if that evidence showed a recognised mental illness, this being the interpretation placed upon R -v- Turner [1975] QB 834. It has now been accepted that expert evidence is admissible if it demonstrates some form of abnormality relevant to the reliability of a defendant's confession or evidence, see for example R -v- Ward [1993] 96 Crim App R 1. In the case of Ward at page 66 this court said:
"But we conclude on the authorities as they now stand that the expert evidence of a psychiatrist or a psychologist may properly be admitted if it is to the effect that a defendant is suffering from a condition not properly described as mental illness, but from a personality disorder so severe as properly to be categorised as mental disorder."
Despite what was said there in the case of Ward, the test cannot, in our judgment, be whether the abnormality fits into some recognised category, such as anti-social personality disorder. That is neither necessary nor sufficient. It is not necessary, because as R -v- Roberts showed, the real criterion must simply be whether the abnormal disorder might render the confession or evidence unreliable. It is not sufficient because an anti social personality disorder does not necessarily mean that the defendant is a compulsive liar or fantasist or that his confession or evidence might be unreliable.
The members of this Court, as were all counsel who addressed us, are conscious of the need to have defined limits for the case in which expert evidence of the kind we have heard may be used. First the abnormal disorder must not only be of the type which might render a confession or evidence unreliable, there must also be a very significant deviation from the norm shown. In this case the abnormalities identified by the experts were of a very high level, Hall's test results falling within the top few percentiles of the population. Second, there should be a history pre-dating the making of the admissions or the giving of evidence which is not based solely on a history given by the subject, which points to or explains the abnormality or abnormalities.
If such evidence is admitted, the jury must be directed that they are not obliged to accept such evidence. They should consider it if they think it right to do so, as throwing light on the personality of the defendant and bringing to their attention aspects of that personality of which they might otherwise have been unaware.
The evidence, both factual and expert which has been placed before us has satisfied us that this is a case in which such evidence would now be admissible, and that a jury having heard such evidence may well have reached different verdicts.

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> O'Brien & Ors, R v [2000] EWCA Crim 3 (25th January, 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/3.html Cite as: [2000] EWCA Crim 3