Introduction
1. On 10 May 1982, Ann Lee aged 44, and Margaret Johnson aged 66,
when walking their dogs together on a small piece of Army Common land on
the outskirts of Aldershot, were stabbed and suffered fatal injuries.
Almost 18 months later, on 18 October 1983, the appellant was charged
with two offences of murder arising from the incident. On 9 August 1984
in the Crown Court at Winchester before Nolan J and a jury, following a
trial which had lasted some 24 days, the appellant was convicted by a
majority (10-2) of both offences.
2. The appellant was refused leave to appeal against his conviction
by the Court of Appeal (Criminal Division) in November 1985.
3. The case against the appellant was based to a very large extent on
admissions made by him in the course of a number of police interviews
which had taken place in July 1983. The admissibility of those
interviews had been the subject of lengthy argument in a voire dire
conducted at the trial. The judge ruled that the admissions were
voluntary and the interviews were thus admitted in evidence.
4. In a report dated 29 September 1999 the Criminal Cases Review
Commission referred the case to the Court of Appeal (Criminal Division).
By their report the Commission reviewed many different lines of argument
relied upon to demonstrate that the verdicts of the jury were arguably
unsafe. After a detailed consideration of those grounds the Commission
formed the view that in three areas there was a real possibility that
the conviction would not be upheld if a reference were made to the Court
of Appeal.
5. Their conclusion was in the following terms:-
"In this case the Commission concludes that there is such a real
possibility. This conclusion is based upon new evidence concerning
material non-disclosure (pages 14-18); psychological evidence concerning
Mr Fell and the effect of the police interviews in the light of Mr
Fell's compliant nature (pages 24-26) and the reliability of the
evidence of Mr Harper (pages 18-21). "
6. By their grounds of appeal dated 3 August 2000 those acting for
the appellant (a) did not seek to pursue the reliability of the evidence
of Mr Harper but (b) sought to add further grounds of appeal. They also
applied to call fresh evidence, being the psychological evidence
concerning Mr Fell, and to put in fresh evidence relating to the non-disclosure
aspect.
7. So far as the psychological evidence was concerned statements had
been provided by Dr Gudjonsson and Professor Kopelman. Those statements
were before the Commission. The Crown obtained evidence from a Dr
Joseph. His conclusions were to the same effect as those of Dr
Gudjonsson and Professor Kopelman that the admissions were unreliable.
In the result, the appellant applied for bail and the matter came before
the Court of Appeal on 1 December 2000. That court, consisting of Potter
LJ, Poole J and Sir Brian Smedley, gave the appellant bail and also gave
leave, unopposed by the Crown, under section 23 of the Act, for the
calling of fresh expert evidence before this court.
8. The question for this court has thus been whether, in the light of
the fresh evidence, the conviction of the appellant was safe.
The Facts
9. On the afternoon of 10 May 1982, Ann Lee and Margaret Johnson were
walking their dogs on Army Common land on the outskirts of Aldershot.
The common is about 400-500 yards long by a shorter distance wide, in
other words it is quite a small area.
10. As the two women walked along a track bordered by a fence which
marked the grounds of Anglesey House, a large house used by the military
as a Courts Martial Centre, they were attacked by a man wielding a knife.
That attack took place at approximately 3-0pm.
11. At about 3-15pm Molly Hogg, who was herself walking with a dog,
found the body of Mrs Lee lying face down and she also saw the body of
Mrs Johnson lying on her side, some distance away, at the foot of a gate.
The dogs of the two victims were still in the vicinity.
12. The pathologist report showed that the death of the two victims
was due to multiple stab wounds. Mrs Lee had suffered 11 wounds to the
back of her upper body and Mrs Johnson had suffered 5 wounds to the
front of her chest. The wounds in relation to both victims ranged from 1
to 1½ inches in width and penetrated up to 5 inches.
13. Mrs Johnson was measured and found to be 4'10'' tall. That was
said to have some significance, in view of admissions made by the
appellant in interview ultimately, that she resembled his mother.
Persons on the common
14. The jury heard evidence from six witnesses who said that they saw
a young dark-haired man on or near the common between 2-10pm and 3-15pm.
The appellant it should be said was aged 20 and about 5'11'' tall. His
hair would be shortish. He had had a crew-cut when in the army, from
which he had been discharged in March of 1982, and there is a photograph
amongst the exhibits taken some few weeks before May 1982 which seems to
show the appellant with short hair. It is right to add that we were also
shown a photograph taken in September 1982 which showed the appellant
with much longer hair. In any event his hair was dark brown.
15. Sylvia Swainson and Joy Whatley saw a young man wearing a
camouflage jacket at about 2-10pm. Mrs Swainson described the man as
aged 18 to 25, between 5'8" and 5'10", of slim build with short brown
hair.
16. Brian Hackney, a Ministry of Defence policeman, was jogging
across the common when (as he assessed) at about 2-58pm he overtook Mrs
Lee and Mrs Johnson about 250 yards from the murder scene. About a
minute later he passed a man who appeared to be unhappy. Mr Hackney
described this man as being in his early twenties, 5'8" tall, of medium
build with long, dark, unkempt hair and wearing a green anorak or an
army-type jacket and possibly jeans.
17. Also on the common was a group of soldiers including Richard
Nikolic, Ian Loisy and Corporal Peter Waterman. Between 2-15pm and
2-30pm Nikolic, who was about 250 yards from the scene of the attack,
saw a young man wearing clothes with the colours camouflage and blue.
Nikolic was lost and asked the man if he had seen any Landrovers and the
man replied "Yeah, there are some jeeps down there", pointing out a
track. Loisy and Waterman described the man as wearing either blue jeans
and an army combat-jacket or a blue jacket and green combat trousers.
18. The relevance of the camouflage or green jacket was that the
appellant denied at all times owning either a green or camouflage jacket,
although a dozen witnesses gave evidence that the appellant did own such
a jacket.
Telephone calls to the police
19. On 11 May 1982, the day following the attack, an anonymous
telephone call was made at 11-43pm to Aldershot police station. The call
was not recorded but a note of the call has been accepted as accurate.
That note reads:-
"I met a man in a pub tonight who got very drunk and he started
rambling on about the murders. He seemed to know a lot about them and
kept saying how sorry he was that he'd done it. I only know he lives at
10 York Road Aldershot. He asked me to go back there with him tonight
but I didn't."
20. At 11-47pm on 12 May 1982 PC Mills at Aldershot police station
received a further anonymous telephone call from a male which was
recorded in a note as follows:-
"I know where the man who did the killings lives. My brother rang you
yesterday and told you. His name is Pete and he lives at 10 York Road."
It is undisputed that the appellant made those two calls.
21. Over a year later, on 4 June 1983, by which time the appellant
had moved to Bournemouth, a series of anonymous telephone calls were
received at Bournemouth police station. Once again it was, and is,
undisputed that the appellant made these telephone calls.
22. The calls were made between 9-0pm and midnight on the `999'
system and were tape-recorded. The caller was plainly drunk. The calls
referred to the double murder at Aldershot on 10 May 1982 and mentioned
the two women and the two dogs. The calls identified the attacker as the
appellant living at an address in Bournemouth of 13 Wellington Road.
The first police investigation of the appellant
23. The appellant was employed as a sales representative for Olan
Mills Portrait Studios, Grosvenor Road, Aldershot. His bed-sit at 10
York Road was on a direct route between the scene of the attack and his
place of work. On 19 May 1982 police officers making house-to-house
enquiries about the attack spoke to the appellant and obtained answers
from him to a proforma questionnaire. The appellant stated in that
questionnaire that he had not visited the common between 1-30 pm and
3-30pm on the day in question or on any other occasion. His account of
his movements was that he had been in the Unicorn or Trafalgar public
house until closing time and then from 2-30 pm to 3-30pm on 10 May he
had possibly been at home. He then said that from 3-30pm until 8-0pm he
had been at work. He stated that he had possibly been wearing a blue
jacket and grey trousers. He did not mention visiting his bank.
24. On 23 May 1982 the appellant was again seen by police officers.
He gave the same account of his movements. His room at 10 York Road was
searched and there was no trace of a green jacket. The appellant said
that he had never owned a knife other than one which he then produced
and which was a pocket knife with a 1" blade.
25. On 4 July 1982 the appellant was again seen by police officers
and he made a written statement about his movements. He said that he was
in the Trafalgar public house until about 2-30pm and then went either to
the Cosy Café or the Job Centre until about 3-30pm when he went to work.
Other evidence of the appellant's movements on 10 May 1982
26. According to two colleagues of the appellant, on 10 May 1982 Mark
Keable, the appellant's employer, had asked his staff to start work half
an hour earlier than usual, that is at 3-0pm. Those two colleagues, Jean
Stone and Susan Bennett, remembered 10 May because they had objected to
the above request as they both had to collect their children from school
before then going to work. Having collected their children they went to
Aldershot and then arrived at work at about 4-0pm. Both stated that when
they arrived at work the appellant was not present and that when he did
arrive, about 5 or 10 minutes later, he was unusually smartly dressed.
The alibi
27. At his trial the appellant relied on alibi. It could be
demonstrated that between 2-0pm and 4-0pm on 10 May 1982 someone had
cashed a cheque drawn on the appellant's bank account at Barclays Bank,
Victoria Road, Aldershot. The appellant had written two cheques drawn to
cash on that day and the second had only been entered on the bank's
computer at 3-47pm. Mrs Hewer, an employee from the bank, gave evidence
that in accordance with her standard practice that cheque must have been
presented at the counter after 2-30pm. If it was the appellant who
presented that cheque personally then it was common ground that he could
not also have been on the common at the time that the murders took
place.
Conversations on 11 May 1982
28. A conversation between the appellant and his girlfriend Lorraine
Sturrock was relied on at the trial. It appears that their relationship
was brought to an end on 11 May 1982 and Lorraine Sturrock said that she
remembered the appellant using words to the effect "if it wasn't for you
you bitch this never would have happened."
29. One evening after the murder the appellant had a conversation
with Jean Stone . They were discussing the murders and Jean Stone
expressed surprise that two women with dogs could both be attacked. The
appellant had responded that it was possible to immobilise one woman,
run after the second and kill her, then return to kill the first. The
Crown attached significance to this conversation suggesting that the
appellant whilst in the army may well have received training on such
matters. The procedure described by the appellant would be consistent
with the way in which the two murders had taken place.
Possession of a knife
30. The appellant's neighbour at York Road was a man named John
Harper. Initially Mr Harper made a statement saying that the appellant
had told him that he (the appellant) had a knife which he had retained
from the army, but that when on a later occasion Mr Harper had asked to
borrow the knife the appellant had told him that he had thrown it away.
31. Mr Harper made a later statement dated 10 August 1983 in which he
claimed to have seen the knife. He described it as in total about 8½
inches long with a handle of about 3 inches and a blade of about 5
inches in length narrowing to a point, the blade being about 1 inch wide.
Significantly, Mr Harper described the blade as being "maybe two-sided".
Mr Harper explained that he initially failed to mention that he had seen
the knife because he had not wanted to get involved in the investigation.
32. Mr Harper ultimately chose a knife from an array of knives in a
shop in Aldershot as similar to the knife he had seen in the appellant's
possession, and the pathologist, Dr Pullar, gave evidence that the
injuries caused to Mrs Johnson and to Mrs Lee could have been caused by
such a weapon.
33. A number of the appellant's fellow soldiers gave evidence to the
effect that while stationed in Germany the appellant had had a knife of
widely varying descriptions. At least two of the witnesses described the
appellant throwing a knife at a door. The knife or knives described by
these witnesses were not however double-edged or sharp at both edges.
34. The appellant, throughout the interviews and with whatever other
admissions he may have made, maintained that he had never owned a knife
of the type described by Mr Harper, and maintained resolutely that he
did not remember using any knife on the day in question.
The photofits
35. Mr Hackney, who had been jogging on the common on 10 May 1982,
provided details to the police which led to the first photofit picture
being compiled on 11 May 1982. Further details were supplied by Mr
Hackney which led to a second photofit being compiled on about 21 May
1982. Corporal Waterman also supplied a description used in compiling
the photofit. These photofits were published in the press on 10 and 11
June 1982 and were regarded by many people as bearing a striking
resemblance to the appellant. Undisclosed at the trial was the fact that
many people had contacted the police saying that the photofit bore a
striking resemblance to other people. Out of 157 people who had
contacted the police only 5 suggested that the resemblance was of the
appellant. Also undisclosed at the trial was the fact that Mr Hackney
had identified other persons at the labour exchange as bearing a
similarity to the person that Mr Hackney had seen on the common.
36. On 4 July 1982 the appellant himself spoke to police officers and
stated that people were saying that the photofit pictures looked like
him. He went on to say words to the effect of:-
"Are you accusing me of being the murderer because if you are I shall
get a solicitor in order to sue the police for harassment."
The appellant's arrest and interviews
37. It was following the anonymous telephone calls to Bournemouth
police in June 1983 that the appellant was arrested on 5 July 1983, and
when arrested and cautioned he said in response "I know I don't have to
say anything but I'll answer what you want to know".
38. While the appellant was being taken to Farnborough police station
in a police car there was an incident involving another vehicle, and in
the course of discussing the incident the appellant referred to the
vehicle in question as a "jeep". That was relied on by the Crown as
having some significance in that the man seen on the common by Nikolic
had used the word "jeep" in order to describe a British Army Landrover.
39. The appellant was interviewed between 5-7 July 1983. The
interviews were tape-recorded although that was not a requirement at
that time. Before the first interview took place the appellant had asked
about "legal aid" and that was understood to be a request for a
solicitor. At various stages during the interviews the appellant made a
similar request but at no stage was he provided with the services of a
solicitor, that being a deliberate decision taken by DCI Long. The
refusal to allow the appellant the services of a solicitor was the main
ground on which the defence argued in the voire dire at the trial that
the admissions made in interviews should not be admitted in evidence.
40. The appellant furthermore did not eat at all during the whole
period of the interviews. He was offered food but declined it, not
apparently by way of protest, but simply because he did not want to eat.
41. In the first interview between 1-25pm and 4-0pm the appellant was
cautioned in clear terms and he clearly appreciated the effect of the
caution. In that interview he denied that he had ever owned a green
jacket. He admitted to making the telephone calls on 11 and 12 May 1982
and 4 June 1983. He said that he was bored and that he wanted to be
involved and that he wanted to find out about the murders and draw
attention to himself. He denied ever owning a knife of the type
described by Mr Harper. He denied that he had ever visited the track on
the common. He maintained that he had not visited the common and did not
know where the murders had taken place, and he denied committing the
murders.
42. The second interview took place on the same day between 7-30pm
and 8-45pm. Again the appellant was cautioned. Again he admitted the
telephone calls and stated that he had made them because he had wanted a
bit of fun and because he was bored. He persisted with his denial that
he did not own a green jacket and said that witnesses who had described
him as wearing such a jacket were lying.
43. At 8-0am on 6 July 1983 the appellant was visited in his cell by
Inspector Ransier who was in charge of the police station. The appellant
made no complaints about the conditions of his detention and stated that
he wanted "legal aid".
44. At 9-45am the appellant was seen by DCI Long and PS Searle who
enquired after his welfare. He said that he was all right. He stated
that he had been rethinking the questions and answers from the previous
interviews but he was told to reserve anything he wished to say until a
formal interview was conducted.
45. The third interview then took place between 10-40am and 12-50pm.
Again he was cautioned. He was told that somebody had gone to see his
wife to ensure that she was all right. The appellant continued to deny
that he had ever been on the common. He stated that he did not know the
whereabouts of Anglesey House. He stated that he did not know where he
had been at the material time or during the day of 10 May 1982 at all.
At the end of the interview the appellant again asked about legal aid.
46. The fourth interview took place on the same day, 6 July 1983,
between 2-30pm and 4-0pm. Again the appellant was cautioned and he said
that he did not know what he had been doing on the day of the murders.
He said that he could not have been on the common. It was during the
fourth interview that the appellant asked to be taken to the common.
47. The appellant was taken to the area of the attack by DCI Long, DS
Vincent and PS Searle. Before embarking on the journey to the common the
appellant was cautioned. It was during this visit to the common that the
appellant stated that the fence surrounding Anglesey House appeared
familiar. He said however that he had not visited that common before and
that the only location on army land that he had visited was at
Tweesledown racecourse, some two miles away, on a map-reading course.
48. Following his return to Farnborough police station at about
6-40pm the appellant asked to see DCI Long. The appellant said that he
had been thinking about what had happened on the common and he said "it's
that fence, I've been along there before I'm sure I have. I'm not sure I
think it may have been the day." DCI Long interrupted the appellant and
told him that it was in his interest for anything that he had to say to
be tape-recorded. This led to the fifth interview which took place
between 6-45pm and 7-45pm. The appellant again was cautioned and in
summary stated (i) that he remembered walking on the common along the
track past (what was in fact) the murder scene; that he was depressed
and that he had stayed on the common for about ten minutes; (ii) he had
seen a man catching rabbits, a man running, two landrovers and a boy and
a girl with white hair; and (iii) had not seen nor killed the two women.
In the course of this interview the appellant again asked about legal
aid.
49. At about 11-20am the following day, 7 July 1983, DS Vincent and
PS Searle took the appellant to the common to retrace his steps. Before
the journey, in a conversation with PS Searle initiated by the appellant,
the appellant said that he could not remember and then asked the
difference between murder and manslaughter. The officer explained the
difference between the two offences and said that if there was something
wrong with him (that is the appellant) he could look at the fact that if
he was convicted of manslaughter rather than murder that would have a
bearing and relevance to the future. The appellant said that he had not
killed anyone.
50. Following this second visit to the common, and on his return to
the police station, DCI Long visited the appellant in his cell. During
this conversation the following exchange took place. Appellant: "My wife,
I'm worried about her. Will I have to go to court". DCI Long: "I don't
know at this stage but a decision will have to be made sometime soon".
Appellant: "What could I go to court for?" DCI Long: "If at the end of
the day it is considered you are the person who killed the women, as you
well know, we must look at it as murder". Appellant: "That's life isn't
it?" DCI Long: "The maximum sentence but that is if you went out with
the intention to kill those women. At least it would be manslaughter".
Appellant: "What's the difference, that's life as well". DCI Long: "With
murder you have the intention to kill before the act where manslaughter
is where an unlawful killing takes place but there is no prior intention
to kill". Appellant: "It doesn't make any difference. I've lost my wife
and everything". The appellant said "I keep getting these flashes, I
remember sitting by that concrete thing, (a reference to a tank-trap). I
think I saw the two women, I think they spoke to me they were laughing,
I attacked them." When asked "are you positive" he replied "I think I
did there was two dogs one was running about. I went crazy and I don't
remember a knife." The appellant was told not to say anything further
until it could be recorded.
51. The appellant was then taken to an interview room and interviewed.
That interview took place between 1-33pm and 2-45pm. After being
cautioned the appellant admitted that he had seen the two women as he
came down a hill and that they were by a derelict shed. The women were
laughing at him, the trees and everyone were laughing at him. He
attacked the dark woman (Mrs Johnson) with his fists causing her to fall
down to the ground. He could not remember attacking the other woman. He
was feeling "down" and his mind was confused. He thought he was still in
the army. He gave as his motive for the attack the fact that he hated
his mother and his treatment at her hands. In answer to the question
"can you explain to me why both of them were killed?" he answered "no I
just remember can't care she reminded me of my own mother, I think she
is the same height." He went on to say that he had picked up a long
white stick which broke. He denied owning a green jacket or any knife
other than a 2½ inch sheath-knife which he no longer had.
52. At the end of the interview the appellant was returned to his
cell. Within an hour he again asked to see DCI Long and he retracted his
confession saying "I didn't kill anyone, I didn't see those women, I
don't even think I was on the common."
53. The appellant was again taken to be interviewed and between
5-45pm and 6-03pm he retracted his admission but maintained that he
hated his mother. He said that he had gleaned the information used in
the admissions from press reports of the incident. In this interview he
explained a number of times that he had made his previous admission
because he thought that time was running out and the inference is clear
that he had decided to make an admission which would be likely to lead
to a charge of manslaughter rather than murder.
54. Nothing that the appellant said in the admission interview, nor
indeed in any of the interviews, could be regarded as some special
feature which could only have been known to the person committing the
murders. Indeed, Mr Perry did not suggest that this was a case in which
any reliance could be placed on special features of the admissions as
demonstrating that only the murderer could have made the admissions that
the appellant did. Indeed, the appellant's description of what he did
was inconsistent with the way in which the murders were likely to have
been carried out.
55. On 8 July 1983 the appellant was admitted to bail. Prior to being
released from custody an identification parade was held. Brian Hackney,
the only witness to attend the parade, failed to identify the appellant,
although he said that the appellant was the only one on the parade who
resembled the man he had seen. Because of the lapse of time however, he
said that he could not be sure.
56. During the period July 1983 until October 1983 two areas of
enquiries were pursued.
57. The appellant's mother was seen. Facially she was not dissimilar
to the victim Mrs Johnson as portrayed in the photograph in the press in
1982. She was also of short stature, she being 5'1" whereas Mrs Johnson
measured 4'10". It seems that Mrs Johnson's photograph, as published in
the press at the time, was in fact a passport photograph taken many
years previously, and would thus give the impression of a very much
younger lady than Mrs Johnson in fact was. The two were otherwise
dissimilar, in particular Mrs Johnson was slim whereas the appellant's
mother was not.
58. The other area of enquiry related to the arrival of the appellant
at his place of work on 10 May 1982. Up until the time of the telephone
conversations from Bournemouth, the position was that the appellant
himself had at all times maintained that he was at work at 3-30pm and
there was no evidence from his colleagues or his manager to contradict
that. However, between the time of those conversations and October 1983
the police made further enquiries. That led to Mrs Stone remembering
that on the particular day the appellant had arrived late at work after
4 o'clock. She remembered that fact due to Mr Keable having given
instructions that the employees were to come in to work earlier and to
work a period without extra pay. In protest Mrs Stone and Susan Bennett
had decided to arrive late. They both said that they arrived at work at
4-0pm and the appellant arrived after that, smartly dressed. It is right
to say that Mr Keable did not fully support this version, albeit he too
gave a further statement saying that the appellant arrived at work after
4 o'clock.
59. On 18 October 1983 the appellant was charged with murder.
The trial
60. The trial took place at Winchester Crown Court between 9 July and
9 August 1984. At the commencement of the trial an application was made
to exclude the evidence of the interviews. The judge heard evidence from
the police officers who conducted the interviews over a period of 5 days,
and ultimately ruled, on 13 July 1984, in the following terms:-
"At the end of five days of evidence and argument upon the issue at
present before me I have reached a clear conclusion, and I think it
right to give expression to it. The issue goes to the admissibility of
statements made by the defendant in interviews with the police and in
particular one statement amounts to a partial confession. The question I
have to ask myself may be taken from the speech of Lord Hailsham in the
case of DPP v Ping Ling 62 Cr.Ap.R. and the passage I have in
mind comes at p.21. There Lord Hailsham poses the question words which I
adapt slightly for the purpose of the present case like this: "have the
prosecution proved that the contested statement was voluntary - and I
interject - have they proved beyond reasonable doubt that it was
voluntary in the sense that it was not obtained by fear or prejudice or
hope of advantage excited or held out by a person in authority or by
oppression?""
61. The judge came to the clear conclusion that the Crown had
established that the admissions were voluntary. He did so in effect
under four heads. Firstly he was satisfied that the defendant was
repeatedly cautioned. Secondly the partial confession was, in the
judge's view, initiated by the appellant without prompting from the
police in the course of the general conversation. Thirdly the acts and
motives to which the appellant according to his evidence confessed
differed in a number of important respects from any suggestions by the
police. Fourthly the judge was satisfied that the interviews were not
conducted in an oppressive or unfair manner.
62. The judge finally returned to the refusal of access to a
solicitor which he found was a deliberate refusal. On that aspect the
judge found that he for his part accepted that if a solicitor had been
present the appellant would almost certainly have been advised not to
make any confession and probably not to make any statement at all. But
the judge found that it did not follow that the statements made were
involuntary. The judge then went on as follows:-
"For the reasons given I am satisfied that they were wholly voluntary
and are therefore admissible. I have carefully considered the argument
that a breach of the principles set out in paragraph C, or for that
matter in paragraph D, (of the then Judges' Rules) automatically and as
a necessary consequence in law should lead to the exclusion of a
statement obtained in disregard of those principles. The authorities
which have been quoted to me do not establish that proposition.
It is not in my judgment part of the law of this country. Those facts
are of the greatest importance and need to be carefully borne in mind,
as I have carefully borne them in mind arriving at the decision which I
have reached; but in the exercise of my discretion and in what I
consider to be in the interests of justice I propose to admit the
evidence of the conversations."
63. On 24 July, that is to say after the above ruling, PS Searle
brought to the attention of counsel the exchange that had taken place
with the appellant on 7 July 1983 (concerning the difference between
murder and manslaughter). There was a further voire dire in which PS
Searle gave evidence when the judge again ruled that he was satisfied
that the trial should go on, he being satisfied beyond a reasonable
doubt "that the partial confession made by the defendant has not been
obtained from him by hope being held out by a person in authority."
64. The Crown's case closed on 1 August 1984. The defence submitted
that the case should be withdrawn from the jury but that submission was
rejected. The appellant did not give evidence, but evidence was called
in support of the alibi. Mrs Hewer, an employee of Barclays Bank,
thought that the cheque entered on the bank's computer at 3-47pm on 10
May 1982 was probably cashed between 2-30pm and 3-30pm that day. She did
not think that it was cashed on the morning of that day and entered on
the computer later.
65. At the conclusion of the evidence and at the request of the
defence, the learned judge reminded the jury of their right to acquit
the appellant and stated:-
"I mention this without in any way wishing to guide you. This matter
is in your hands. You have heard a great deal of evidence. It is however
proper that I should tell you the position in law."
66. The case proceeded and the judge summed up the case on 7 August
1984 concluding it on 8 August 1984. One or two minor criticisms were at
one time sought to be made of the summing-up, albeit the Commission in
its report did not think that the summing-up could be criticised in any
way. We say straight away that we take the view that the summing-up
cannot be criticised, and Mr O'Connor QC did not seek to make any
criticisms.
67. Having given very full directions on the burden and standard of
proof the judge at the forefront of his summing-up reminded the jury of
the alibi evidence. Thus it was that he said:-"if by reason of the bank
evidence you feel that there must be a real possibility not displaced by
the prosecution that the ten pound cheque that was cashed during the
afternoon by the defendant was cashed by him, then your deliberations
over this case may be fairly short." (See p.6G). The judge then went
through the evidence with great care putting both the prosecution case
and the defence case. In particular, he made clear to the jury that the
interviews had been conducted in breach of the rule that a person under
investigation is entitled to consult with a solicitor, and warned the
jury as to the reason for such a rule i.e. the danger of someone making
a false confession without that assistance.
68. The jury retired at 10-08am on 8 August 1984. They were given a
majority direction at 3-19pm. They retired overnight and resumed their
deliberations on 9 August 1984. At 11-31am on 9 August the jury returned
and by a majority verdict of 10-2 convicted the appellant of murder on
both counts.
The appeal
69. The appellant applied for leave to appeal against conviction. The
matter came before the full Court of Appeal, Lord Lane CJ, Boreham and
McCowan JJ, on 14 November 1985. The grounds of the application were as
follows:-
1. The judge erred in admitting the interviews and the confession
because there had been inducements, oppression and a breach of the
Judges' Rules in failing to allow the applicant access to a solicitor
when he requested one.
2. The judge should have removed the case from the consideration of
the jury at the close of the prosecution case, following the defence
submission that there was no case fit for a jury.
3. Having heard the alibi evidence the judge should have directed the
jury to acquit rather than remind them that they had a right to stop the
case if they so wished to do.
4. The judge failed to put the defence case properly to the jury in
his summing- up.
5. The verdict of the jury was unsafe and unsatisfactory.
70. The Court of Appeal delivered a reasoned judgment dismissing the
application for leave. In their judgment they identified two potential
inducements. The first occurred early in the interviews, when it was
suggested to the applicant that it was to his advantage to indicate his
movements on the day of the incident so that he could be eliminated or
otherwise. This inducement was said to have led to the appellant
admitting making hoax calls. The Court of Appeal said that it agreed
with the trial judge who had heard all the evidence in a voire dire that
these admissions had been voluntary.
71. The second inducement related to the evidence of an unrecorded
conversation with the appellant in which there was a discussion about
the difference between murder and manslaughter. In this regard the Court
of Appeal were concerned in particular with the conversation held by PS
Searle which only came to light after the first voire dire had been
completed. In the event the suggestion being made on behalf of the
appellant was that following such conversations the appellant had made
his limited confessions regarding the attacks. The Court of Appeal again
agreed with the trial judge that these admissions were voluntary as the
police had not held out any hope which might have induced the appellant
to confess.
72. When considering the question of admissibility the Court of
Appeal also considered the appellant's submission that he had a fragile
and childish personality which had been worn down during the interviews,
and a tendency to boast and fantasise albeit no medical evidence was
called in relation to those matters.
73. The Court of Appeal considered the question of whether the
interviews had been oppressive in the light of the submissions made
about the appellant's personality. After listening to the interview
tapes the court agreed with the opinion of the trial judge that the
interviews were not oppressive.
74. The Court of Appeal further considered the denial of access to a
solicitor. The court found that there was no principle of law that
stated that this meant that any subsequent confession should be
inadmissible and found that the judge had a discretion as to whether or
not to exclude the evidence. The trial judge had pointed out to the jury
that they should consider how the absence of a solicitor affected the
reliability of the confession. The Court of Appeal felt therefore that
this aspect had been dealt with properly by the trial judge.
75. The Court of Appeal did not consider that the case should have
been withdrawn from the jury after the alibi evidence had been heard.
The court found that there were no grounds to criticise the handling of
the alibi in the summing-up. The Court of Appeal indeed found that the
trial judge had dealt properly with the defence case in the summing-up
and considered that the summing-up was clear and had been carefully
prepared.
The present appeal
76. As already indicated, this matter has been referred back to the
Court of Appeal by the Criminal Cases Review Commission under the
Criminal Appeal Act 1995. Section 13 of that Act provides as follows:-
"(1) A reference of a conviction . . . shall not be made under any of
sections 9 to 12 unless-
(a) the Commission consider that there is a real possibility that the
conviction . . . would not be upheld were the reference to be made,
(b) the Commission so consider -
(i) in the case of a conviction . . . because of an argument, or
evidence, not raised in the proceedings which led to it or on any appeal
or application for leave to appeal against it, or . . ., and
(c) an appeal against the conviction . . . has been determined or
leave to appeal against it has been refused.
(2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making
of a reference if it appears to the Commission that there are
exceptional circumstances which justify making it."
77. This was not a case where the Commission thought there were
exceptional circumstances, but a case where they thought that there was
a real possibility that the conviction would not be upheld, because of
an argument or evidence not raised in the proceedings or in the
application for leave to appeal. In forming that view, it also
considered there was a real prospect that the Court of Appeal would
receive evidence not produced at the original trial. Thus, by their
report, the Commission drew a distinction between those matters already
dealt with at the trial and by the previous Court of Appeal decision,
and matters which were not before the previous courts or in relation to
which fresh evidence was not material. Thus it was that they recommended
that it was in three areas that they felt that another Court of Appeal
might interfere.
78. By section 14(5) of the same Act, it is provided as follows:-
"(5) Where a reference under any of sections 9 to 12 is treated as an
appeal against any conviction, verdict, finding or sentence, the appeal
may be on any ground relating to the conviction, verdict, finding or
sentence (whether or not the ground is related to any reason given by
the Commission for making the reference)."
79. It follows that, once a reference to this court has been made, it
is open to this court to examine all grounds whether or not those are
grounds considered by a Court of Appeal on some previous occasion. As it
is the safety of the conviction with which the court is concerned, this
perhaps is not surprising. Logically however, it seems to us the
starting point should be the new points, in the context of which should
then be viewed points previously argued.
80. The first and critical new point identified by the Commission,
related to the reliability of the admissions or partial admissions. The
Commission had before them evidence of a psychiatric nature which had
not been available at the trial or on the application for leave to
appeal, which cast doubt on the reliability of the admissions made by
the appellant. It is only in recent years that psychiatric evidence of
this nature has come to be recognised as of assistance to the judge and
to the jury. The history of cases which show the development is this
area have been supplied by both sides in this appeal, and we will turn
to those cases below.
81. The second area relied on by the Commission related to evidence
not disclosed by the prosecution prior to the trial and undisclosed
prior to the first appeal. It is unnecessary to dwell on the third area
for the present as it does not figure in the appellant's grounds of
appeal.
Fresh evidence
82. The question of whether fresh evidence should be admitted in the
Court of Appeal and the safety of the conviction are usually
inter-related questions. Section 23 of the Criminal Appeal Act 1968
provides as follows:-
"23 Evidence
(1) For [the purposes of an appeal under] this Part of this Act the
Court of Appeal may, if they think it necessary or expedient in the
interests of justice -
(a) order the production of any document, exhibit or other thing
connected with the proceedings, the production of which appears to them
necessary for the determination of the case;
(b) order any witness who would have been a compellable witness in
the proceedings from which the appeal lies to attend for examination and
be examined before the Court, whether or not he was called in those
proceedings; and
[(c) receive any evidence which was not adduced in the proceedings
from which the appeal lies.]
[(2) The Court of Appeal shall, in considering whether to receive any
evidence, have regard in particular to -
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any
ground for allowing the appeal;
(c) whether the evidence would have been admissible in the
proceedings from which the appeal lies on an issue which is the subject
of the appeal; and
(d) whether there is a reasonable explanation for the failure to
adduce the evidence in these proceedings."]
83. In this instance the defence wished to call the evidence of Dr
Gudjonsson and Professor Kopelman to give evidence in accordance with
the various reports prepared by them. Their reports, by different routes,
concluded that the admissions made by the appellant were, in all
probability, unreliable. The Crown obtained a report from Dr Joseph to
deal with that evidence in the eventuality that the evidence was
admitted. The conclusions reached by Dr Joseph, again not necessarily by
the same route, were that the admissions made by the appellant might
well be unreliable. The defence also obtained a statement from Dr Ilbert
who was the prison doctor who examined the appellant at the time of the
trial and could thus give evidence of his condition at that time. That
statement supported the view that the admissions were unreliable.
84. On 1 December 2000, the Court of Appeal (Potter LJ, Poole J and
Sir Brian Smedley) dealt with an application by the appellant for bail.
Bail was granted, and without opposition from the Crown, that court gave
leave to call the fresh evidence, including now of course the evidence
obtained by the Crown from Dr Joseph and the evidence of Dr Ilbert. In
the result before us were called Dr Ilbert, Dr Gudjonsson and Dr Joseph.
They gave evidence in accordance with their reports and were cross-examined.
Professor Kopelman, whose report was accepted, did not give evidence.
Approach of the court
85. Once the court is conducting a review as to whether a conviction
is safe, it is impossible to conduct that review other than through
present day eyes. In Regina v O'Brien , Hall & Sherwood CA
Transcript 25/1/2000 Roch LJ giving the judgment of the court, put the
matter succinctly as follows:-
86. In R v O'Brien the court also made an important point in
relation to expert evidence of the kind which this court has heard and
it is worth putting that into its context.
87. In R v David Stuart Mackenzie (1993) 96 Cr.App.R. 98, the
Court of Appeal had to consider the reliability of certain confessions.
In that case (and it is unnecessary to go into the details) evidence was
given on the voire dire by Dr Gudjonsson and Dr Eastman in relation to
the reliability of the confessions. The judge having ruled that the
confessions were admissible, that evidence was again given before the
jury. It was in that case where Lord Taylor giving the judgment of the
court said:-
88. The Crown in that case submitted that the confessions were
rightly admitted and that the convictions were safe and satisfactory.
The argument was that the confessions showed special knowledge which
would only have been available to the killer and that thus there was
internal support for the reliability of the confessions. The court was
unpersuaded of the special features but it is unnecessary to go into
that aspect.
89. In R v Long (Transcript 13 July 1995) the Court of Appeal
considered the case of George Long referred to them by the Home
Secretary under the provisions of section 17(1)(a) of the Criminal
Appeal Act 1968. Long had been convicted of murder in 1979. His
application for leave to appeal had been refused by the single judge and
in 1980 the full court refused an extension of time in which to renew
the application. It was as a result of a petition based upon fresh
medical evidence that the Home Secretary referred the case back to the
Court of Appeal.
90. It was in 1992 that a consultant psychiatrist Dr McKeith had been
instructed by solicitors for the appellant. Dr McKeith had made a
special study of the psychiatric aspects of cases in which defendants
had made confessions which they subsequently retracted. Dr McKeith gave
evidence before the Court of Appeal. Dealing generally with the state of
medical knowledge he said that at the time of the appellant Long's trial
the possibility that a defendant charged with a grave criminal offence
may confess and then retract his confession because he suffered from a
mental disorder, stopping short of a frank mental illness, had not been
recognised. He went on to give as his opinion that at the time when Long
made his admissions he was suffering from a mental disorder such as
rendered those admissions unreliable.
91. Another psychiatrist called on behalf of the appellant expressed
the same opinion. Dr Joseph was called for the Crown and, although he
did not come to precisely the same assessment of the appellant's state
of mind as the defence experts, he was satisfied that due to his
condition the appellant's admissions may have been unreliable.
92. In allowing the appeal Lord Taylor CJ giving the judgment of the
Court of Appeal, expressed himself in this way:-
"We are firmly of the view that his confessions cannot now be
regarded as reliable. If the jury had known of the appellant's mental
history and if they had had the benefit of the medical evidence of (the
experts called on the appellant's behalf) they may well, in our view,
have been unsure of guilt." (14D).
"Unless guilt is proved by reliable evidence so that the verdict can
be regarded as safe and satisfactory, a conviction cannot stand." (15B).
93. In R v Evans (Transcript) 3/12/97 the Court of Appeal
(Lord Bingham CJ, Jowitt and Douglas Brown JJ) allowed the appeal of
Andrew Evans. This was another case in which the conviction of the
appellant for a murder (in 1973) resulted from his admissions to the
police. In that case the prosecution case rested entirely on the
confessions of the appellant. In that case Dr Joseph again gave evidence
and Lord Bingham concluded that the court had to accept, having heard
fresh evidence, that the "appellant's confessions were, as confessions,
entirely unreliable." (P.11).
94. In R v Ashley King (Transcript 10/12/99) the Court of
Appeal (Lord Bingham CJ, Morison and Nelson JJ) considered the
reliability of the confessions of Ashley King who had been tried at the
Crown Court in Newcastle in July 1986. King had made written confessions
signed after a number of interviews with the police conducted in the
absence of a solicitor. The confession was retracted 3 days after it was
made when the appellant was provided with the services of a solicitor.
The appellant had been assessed by two psychiatrists prior to his trial.
It was again a case in which the case against the appellant rested
entirely on his own confessions.
95. On the appeal a Mrs Tunstall, a professional psychologist, gave
evidence. She concluded that the appellant was abnormally suggestible
and abnormally compliant. This evidence the court accepted and found
persuasive. In giving the judgment of the court, Lord Bingham made
reference to the development of this kind of evidence:-
"There is, however, the additional finding that the appellant was
suggestible and compliant to an abnormally high degree. That was not a
matter which could, practically speaking, have been tested, assessed or
quantified in 1985 to 1986. Although there had been some published work
on the subject, this was a new and embryonic science."
96. Lord Bingham went on to set the appellant's admissions in the
context of the significance of the development of this kind of
psychological understanding and referred to "the real problem" as:-
"whether, in a case which depended solely on the reliability of the
appellant's confessions, improperly obtained, the appellant is now
scientifically shown, as he could not have been shown at the time, to be
highly abnormal in respects directly related to the reliability of the
confessions and in a way which throws doubt on their reliability.
Had the defence had the benefit of this new expert evidence, there
would have been strong grounds for seeking the exclusion of the
confession evidence under section 76 and 78 of the Police and Criminal
Evidence Act 1984, and possibly even section 77. Had the jury heard the
confession evidence but also heard the evidence of Mrs Tunstall, it
would in our judgment have been very hesitant indeed to convict the
appellant on the strength of his uncorroborated and retracted
confessions, and rightly so. In the light of this new evidence we feel
bound to regard the appellant's conviction as unsafe and we accordingly
quash it." (Paragraphs 68, 69).
97. In R v O'Brien, Hall and Sherwood (Court of Appeal
Transcript 25/1/2000) Roch LJ, Keene and Astill JJ heard another appeal
calling into question the admissibility of a potentially unreliable
confession. In that context they gave guidance as to the basis of the
admissibility of fresh evidence in relation to such appeals. They said
this at page 19:-
"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."
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."
98. The admissions were central to the Crown's case. That can be
demonstrated most forcefully by the way in which the alibi defence was
dealt with both in evidence and in the summing-up. In the summing-up the
judge put the matter this way:-
"Was he the killer on the footpath? If within at the most about 30
minutes of the murders, that is to say, between 2.30 and 3.30, he was
cashing a cheque at Barclays Bank in Victoria Road, Aldershot, the best
part of two miles away, then you may feel for that reason alone that he
is very unlikely to have been the killer. I shall return to that matter
when I come to the defendant's case. If, by reason of the bank evidence,
you feel that there must be a real possibility, not displaced by the
prosecution, that the £10 cheque which was cashed during the afternoon
by the defendant was cashed by him, then your deliberations over this
case may be fairly short.
The other side of that coin, say the prosecution, is that if you are
completely satisfied by the prosecution evidence that the defendant was
the murderer, then there must be some other explanation of the second
cheque cashed that day at Barclays Bank, for example, that he had simply
given the cheque to somebody else to cash for him."
99. There was no effective challenge to the evidence of Mrs Hewer,
and no evidence was called to establish that someone cashed the relevant
cheque on behalf of the appellant. Thus the Crown's case had to be that
the jury could be so sure that the admissions contained in the interview
were reliable, that they could discount the alibi without knowing
precisely on what basis.
100. There was some other evidence which, if the jury accepted it,
could be said to support the admissions, i.e. the evidence that he had a
knife of the kind likely to have been used (and his denial at all times
of having such a knife); the evidence that he had a camouflage jacket
(and his denial that he ever had such a jacket); the evidence that he
arrived late for work and in smart clothing (and his assertion that he
was in fact at work by 3.30 pm); the evidence that the appellant's
mother was of small stature, as was Mrs Johnson, and the fact that the
appellant maintained that he hated his mother even when retracting his
admissions. But, as Mr Perry for the Crown very properly conceded, there
could have been no case to go to the jury without the admissions. They
were thus the central plank of the prosecution case.
101. Following the approach of Roch LJ in O'Brien to the
admissibility of this type of evidence, the questions are (a) whether
the psychiatric evidence now available demonstrates something well
outside the norm, and (b) whether there is something in the history of
the appellant which supports the psychiatric evidence. To these
questions, if they are answered in favour of the appellant, we would
add, so far as the Court of Appeal is concerned, (c) whether an
examination of the admissions in the light of the psychiatric evidence
leads to the view that they may have been false or indeed that they were
false so as to render the verdict of the jury unsafe.
102. Dr Gisli Gudjonsson's first report is dated 24th
November 1993. Dr Gudjonsson has a considerable reputation in the field
of Forensic Psychology, and he has a particular expertise in the area of
confessions, having developed certain techniques for measuring
"Suggestibility" "Compliance" and the like. He interviewed the appellant
in February 1988 and then in January 1993, and his first report is based
on those two interviews. His conclusions are conveniently summarised at
the end of his report, and include the following:
"2. Mr Fell's compliance score fell outside the normal range,
indicating an exceptionally high level of compliance. His "shift"
suggestibility scores were somewhat elevated, but nevertheless fell
within normal limits. However, it is noteworthy that Mr Fell appears to
have some difficulties in detecting discrepancies between what he
observes and what is suggested to him through leading questions.
3. The results from the Gough Socialisation Scale and the Eysenck
Personality Questionnaire are consistent with a diagnosis of personality
disorder. In addition, Mr Fell is a rather introverted individual with
marked neurotic traits. He appears to experience considerable emotional
turmoil, which includes anxiety, depression and schizoid life-style.
6. The reasons for Mr Fell drawing attention to himself as a murder
suspect are not entirely clear. He denies that it was due to feelings of
guilt about the murders and his explanations are that he wanted the
police to investigate his background as well as having a bit of "fun".
His explanations for telephoning the police are consistent with his
disturbed family background and low self-esteem. It is probable that his
behaviour was a way of seeking excitement and enhancing his self-esteem
(i.e. making him feel important).
7. It is my view that at the time of his interrogation in 1983 Mr
Fell was a psychologically vulnerable individual, who would have
benefitted greatly from the advice and support of a solicitor. Having
studied this case in some detail, I have serious doubts about the
reliability of Mr Fell's self-incriminating admissions to the police in
1983."
103. The Commission when reviewing this case, and in the light of the
first report, requested Dr Gudjonsson to answer three questions. They
were as follows:-
"1. Is there evidence to support the contention that Mr Fell had a
false memory which prompted his admissions to the police?
2. In the light of the additional material now available and advances
in the relevant areas of knowledge, is there anything to be added to
your report dated 24th November 1993?
3. Is there any evidence that would tend to support the argument that
the admissions made by Mr Fell were made as a result of an inducement
which may have been made to him?"
104. Dr Gudjonsson interviewed the appellant again, and carried out a
further detailed analysis of the interviews, setting out substantial
portions in his report dated 21st December 1998. His
conclusions were (1) that the appellant was a psychologically vulnerable
individual. He said that the present assessment confirmed his high level
of compliance, anxiety proneness, introversion, and low self esteem; (2)
he said there was no evidence of psychogenic amnesia nor any evidence of
false memory; (3) As to inducement his conclusion was as follows:-
"5. Inducement
I believe there is evidence that would tend to support the argument
that the admissions made by Mr Fell were the result of an inducement,
which may have been made to him. I think it is quite possible, if not
likely, that his confession to the murders of Margaret Johnson and Ann
Lee was made because of the officers' persistent and determined
implication throughout the interviews that Mr Fell was the murderer, Mr
Fell's failed efforts at effectively challenging the officers'
assertions, the failure of the police to take any notice of his repeated
and determined efforts to seek legal advice (which is likely to have
exacerbated his low self-esteem and a sense of helplessness), and seeing
the confession as a desperate compromise to reduce the charge to
manslaughter. The content of the confession interview supports the view
that Mr Fell was attempting to present a case which supported a
manslaughter charge as opposed to murder."
"6. Reliability
Having had the opportunity of seeing Mr Fell again and studying the
case in more depth, my previous reservations about the reliability of
his confession to the police concerning the murder of Margaret Johnson
and Ann Lee are strongly reinforced. Indeed, I consider his confession
unreliable. His making telephone calls to the police can be best
understood in terms of his very poor self-esteem at the time and his
need to feel a sense of self-importance."
105. Michael Kopelman, Professor of Neuropsychiatry at St Thomas'
Hospital, eminent and highly experienced in this field, made a report on
9th November 1998. He did not interview the appellant, but
from certain documents relating to the period prior to the murders, and
from an analysis of the interviews, concluded first that the possibility
of the appellant experiencing a partial amnesia for the events as a
"psychological defence mechanism" was extremely unlikely, and then
summarised his views in the following way:-
"In summary, it seems likely that Mr Fell could not remember the
events of the day in question. Following his hoax telephone calls (to
which he readily admitted), he was interviewed by the police in May
1982, and again over three days in July 1983. He was man of low
self-esteem, who had been dismissed from the army, and who was known to
be something of a story teller. The transcripts of the police interviews
suggest that Mr Fell came under considerable pressure from the police to
make admissions regarding the offence. Despite this, he made consistent
denials until he had been taken to the site of the murders on two
occasions, after which he had an apparent `recovery' of his memories,
which I do not regard as convincing, considering that it had occurred 15
months after the alleged offence and that the `confession' was retracted
a couple of hours later. Mr Fell was not given the legal support that he
requested, nor was he given medical advice when he sought it. In the
light of these various factors, I would regard his conviction as unsafe
to the extent that it was largely based on this `confession'."
106. Dr Joseph, as the cases cited show, is an eminent Forensic
Psychiatrist again highly experienced in this field. He reported on 16th
November 2000. He interviewed the appellant, and made a study of the
relevant papers. His conclusions were, so far as the appellant's mental
state was concerned, that "There were no psychotic features evident at
interview and he appeared of average intelligence" and that "Mr Fell was
not suggestible during my interview with him and he was able to disagree
when he felt it appropriate. I did not form the view that he was
excessively compliant. I was aware however that 17 years had elapsed
since he was interviewed by the police and there is likely to have been
personality maturation during this period.". His conclusions then
included the following:-
4. "Taking into account the evidence of childhood conduct disorder
and his subsequent psychological difficulties during his adolescence and
early adulthood, it is likely in my opinion that Mr Fell was suffering
from a personality disorder in the period leading up to the killings,
characterised by low self-esteem, psychological dependence on others,
feelings of rejection and abandonment and displays of attention-seeking
behaviour to compensate for these feelings. Although he was also
suffering from depressed mood and was abusing alcohol, both these
features are likely to have been secondary to his personality
difficulties rather than constituting a mental disorder themselves.
5. On the basis of his personality disorder, I conclude that Mr Fell
was psychologically an extremely vulnerable man in the period leading up
to and including his arrest on the charges. It is notable that he made
hoax telephone calls initially after he separated from his first
girlfriend and subsequently after his wife left him to go to Liverpool
in June 1983. On both occasions the hoax telephone calls served the
function of drawing attention to himself at a time when Mr Fell was
feeling abandoned, rejected and lost. It is recognised that he was prone
to telling lies about himself in order to make himself seem more
impressive to others and there is a previous example of his lying about
a conviction for violence to the police.
6. Bearing these facts in mind, it is highly probable that the
defendant was psychologically vulnerable at the time of his interviews
with police so that any admissions he made would be unreliable. This is
especially so when he was denied the assistance of a solicitor. If he
had been interviewed today then he would have also required the services
of an appropriate adult to protect him during an interview with the
police.
7. Although I consider Mr Fell's admissions during police interviews
to be unreliable, I did not find him to be a suggestive person, nor did
I find him to be particularly compliant during interview with him. It is
not those aspects of his personality which render him psychologically
vulnerable, but rather it is the aspects of his personality disorder
which caused him to suffer such low self-esteem and to believe that he
could impress others by lying and drawing attention to himself. It is
highly likely that Mr Fell's personality disorder and self-esteem have
improved over the years and this is borne out by the psychological
testing carried out by Dr Gisli Gudjonsson in 1988 and 1993."
He agrees there is no evidence of a "false memory".
107. Both Dr Gudjonsson and Dr Joseph were cross-examined on the
differences between them, particularly so far as compliance was
concerned. For example Dr Gudjonsson had to deal with the fact that the
telephone calls could not have been made simply because the appellant
was compliant; they were made without any intervention by the police or
anybody else. Dr Gudjonsson accepted that and confirmed what he had said
in his report that in his view these were made due to the appellant's
low self esteem, and at times when he was particularly vulnerable after
being left by, in relation to May 1982, his girlfriend, and in June
1983, by his wife. He also had to deal with how, if the appellant was
unusually compliant, he should in the interviews still have resolutely
refused to admit having the knife and/or a green jacket. Dr Gudjonsson
was in difficulty in explaining how that came about save that the matter
must have been "very important, and stuck in his mind.".
108. On the other hand Dr Joseph had to accept that despite his
disagreement with Dr Gudjonsson on suggestibility and compliance, some
different mechanism was likely to have produced the admissions in
interview from that personality disorder which produced, or was likely
to have produced, the telephone calls. He accepted that the pressure on
the appellant having made the telephone calls, and admitted making them,
would be very great, and that pressure would be increased by the
following factors - no communication with anybody other than his
interviewers over about 54 hours; the sheer length of the interviewing
process; any misunderstanding as to the strength of the evidence against
him; the anxiety over his wife who was pregnant and an epileptic; the
lack of any food; indeed the fact that his appetite had been lost would
demonstrate the psychological distress the appellant was in. He further
accepted that under these sort of pressures the appellant might have
been inclined to look for compromise.
109. The material before us has been taken into account by the
psychiatrists in forming the views they did. In summary that evidence
included the appellant's regimental conduct sheet for the period up
until March 1982, which demonstrated how he had made up stories about
being attacked or having things stolen from him. It further showed there
was no truth in his assertion volunteered to the police on 19th
May 1982 (i.e. during the inquiry into the murders) that he had been
dismissed from the Army because of committing an offence of GBH. There
is the photograph with our papers showing the appellant with a boxing
trophy. He even convinced the police during the inquiry "that he could
handle himself" by reference to this trophy. He was writing to his
brother in December 1983 as if he had been a boxer. He never had won any
such trophy and had bought it and engraved it himself. He had boasted of
fighting in the Falklands, and there was simply no substance in that.
110. In Dr Pitcher's Report dated 9th July 1984, made for
the purposes of considering the appellant's mental health at the time of
the trial, it said amongst other things "it is also evident from his
account to me and from his statements to the police that almost nothing
he says can be relied upon unless it is corroborated".
111. Dr Ilbert, who as already indicated was the prison doctor when
the appellant was remanded in custody at Winchester Prison in 1983/84,
was also the doctor allotted for the purpose of submission of court
reports. He made a report in answer to certain questions from the
solicitor acting for the appellant on 20th November 2000. In
his evidence before us, he said that he saw the appellant every day
during the period of remand and saw him for the purpose of reporting on
him 11 times. He also kept (as one would expect) clinical notes. He was
not a trained psychiatrist, but in one note for example, made on 19th
October 1983, Dr Ilbert recorded his view of the appellant as a
"pathological confessor". In another made on 20th February
1984 he recorded "It does seem to me that his hoax telephone calls are
consistent with his boxing-Falklands ego trip and they also incorporate
the element of inner relief from tension gained by confessing".
112. Dr Ilbert clearly had considerable anxieties about the
reliability of the appellant's confessions during 1984, but felt uneasy
(as he says) "about the probity of such doubts....for such concepts fell
well outside the normal terms of reference governing the conclusions qua
Homicide Act....Mental Health Act, which one was required to reach in
murder charge cases." One of the sadnesses of this case is that in some
way Dr Ilbert's anxieties were not made known at the time.
113. Thus the contemporary evidence supports the psychiatric
evidence.
114. That evidence thus casts serious doubt on whether the telephone
calls could be regarded as in any way reliable as admissions, and casts
serious doubt on whether admissions made in interview were reliable.
115. In the context of the above evidence the features of the
telephone calls and the interviews which were no doubt stressed both at
the trial on behalf of the appellant and on the application for leave to
appeal, take on a different complexion. The starting point seems to us
to be that if the above evidence had been before the jury their approach
to the telephone calls would have been very different. Furthermore,
their approach to the interviews would have been very different. With
the benefit of that evidence we would say that all the indications are
that the telephone calls were the appellant seeking to draw attention to
himself and not calls made by the murderer. Our reasons depend to some
extent on the view we take of the interviews, in relation to which we
again would say, with the benefit of the experience of other cases and
of the evidence called, bear the hallmarks of being false. They bear out
paragraph 5 of Dr Gudjonsson's second report quoted above.
116. One can see from the interviews how once the police had an
admission that the calls were made by the appellant, the pressure on the
appellant gradually built up until it became overwhelming. The sheer
length of the interviews, the non-communication for 54 hours other than
with the police, the lack of food, and the method of interrogation all
contributed. We do not think it necessary to go through the detail but
one aspect that particularly struck us was the obtaining of the
admission that he was on the common. That was obtained as if that would
not lead to the conclusion that he was the murderer (see pages 827A,
829B-G, 833-4, and 839-840), whereas once he admitted being on the
common the reverse was true (1193B and 1198F). Constantly the appellant
asked for a solicitor and constantly that request was ignored; on one
occasion he asked for a doctor and that too was ignored (see 1241).
Finally under the impression he may have gained that time was running
out and that he was bound to be charged with something, it seems that he
sought the compromise of seeking to admit to manslaughter, not murder.
When however he did so, he not only did not talk of any special features
that only the murderer would have known but was inaccurate about many of
the features of the murders e.g. he suggested he hit and punched in the
face but no sign of such injury was present on the victims; he described
seeing two children, and DCI Long accepted in evidence that "no-one
there of that description at the relevant time"; he said he spoke to a
man going rabbit shooting, but there would not seem to have been any
such person; he said he attacked the dark-haired woman first but DCI
Long accepted that in all probability the fair-haired lady was attacked
first; the dark-haired lady was in her 60s and slim, and bore very
little resemblance to the appellant's mother who was 42 and certainly
not slim. They were both short but even then there were 3 inches
difference in height.
117. If the evidence we have heard had been before the jury, would
the only reasonable and proper verdict of the jury have been one of
guilty? We are clear that the answer to that question must be in the
negative, and indeed, the longer we listened to the medical evidence,
and the longer we reviewed the interviews, the clearer we became that
the appellant was entitled to more than a conclusion simply that this
verdict is unsafe. There are strange features of the case, not least his
failure to support his own alibi, but the alibi exists from an
independent source. But more important, since our reading of the
interviews and the evidence we have heard leads us to the conclusion
that the confession was a false one, that can only mean that we believe
that he was innocent of these terrible murders, and he should be
entitled to have us say so.
118. Mr Perry for the Crown took us through the other grounds relied
on by Mr O'Connor one by one submitting in relation to each that they
would not have provided a basis for suggesting that the jury's verdict
in this case was unsafe. On grounds 1 and 2 (the decision by the trial
judge to admit the interviews and the admissions contained therein), he
pointed out how the trial judge, after a voire dire lasting 5 days
including hearing the evidence of the police officers concerned,
considered with care the question of oppression, tricks, inducements,
and denial of access to a solicitor. The judge had furthermore
considered whether in his discretion he should exclude the admissions,
and had declined to do so. The judge's ruling was upheld by the Court of
Appeal in refusing leave to appeal.
119. Those points may be powerful in the absence of the fresh
evidence. But, as Mr Perry recognised, once the psychiatric evidence is
admitted these other points must be looked at in a different light. The
first question which was considered by both the trial judge and the
Court of Appeal was whether the admissions were voluntary. This they did
before considering the question whether, in the court's discretion, the
admissions should be excluded.
120. The Court of Appeal in its judgment cited passages from DPP v
Ping Lin [1976] 62 Cr.App.R. 14, and R v Rennie
[1982] 74 Cr.App.R. 207. The essential question, according to
those authorities, was whether the prosecution had established beyond a
reasonable doubt that the admission was voluntary, in the sense that it
was not obtained "either by fear or prejudice or hope of advantage
excited or held out by a person in authority .... or by oppression".
121. In the modern era section 76 of PACE makes clear the question of
reliability is the important consideration. But it is fair to say that
in exercising his discretion in this case reliability was an important
consideration so far as the judge was concerned, he recognised that it
was to that question that the absence of a solicitor went (see the
passage of the summing-up quoted on page 15 of the previous Court of
Appeal's judgment and their conclusion on this aspect).
122. The evidence we admitted showed that experts with an experience
which the judge and the jury, and indeed the previous Court of Appeal
would not have, were of the view that the admissions were unreliable.
There would have been a danger in allowing the admissions to go before
the jury if the judge was clearly of the view that it would be unsafe to
act on them. It seems to us that the evidence we have heard would have
added significantly to a submission that there was a need for someone
such as the appellant to have a solicitor present before reliance could
be placed on any admission he was making. A simple listening to the
tapes might well indicate the absence of bullying or oppression in that
sense, but the evidence would also add force to the submission that the
sheer length of the interviews, without food, and the method of
interrogation without the protection of a solicitor, would be likely to
lead to an unreliable and indeed a false confession.
123. It would seem plain now to us, with the benefit of this
evidence, that the case for excluding the admissions would have been
even more powerful than it was, and indeed we would have expected the
judge to have excluded them.
124. Without the admissions there would simply have been no case fit
to go to the jury.
125. So that there should be no misunderstanding we think it right to
record that we think the decision of the police not to allow this
appellant a solicitor was reprehensible. That is consistent with the
view of the trial judge, and the previous Court of Appeal.
126. As regards other allegations made against the police, the trial
judge listened to the tapes, as did the previous Court of Appeal. We
have not. We have of course read all the interviews. We do not think it
right to make findings of "oppression" in the sense of misconduct by the
police, or of "tricks", insofar as that imputes bad faith on the police
who conducted these interviews. We furthermore do not think that there
is any evidence that the police in some way misconducted the inquiries
during the period between the appellant being interviewed and the
appellant being charged. It is true that during that period various
witnesses provided changes to their statements; Mr Harper that he had
seen the appellant with a knife of the type used in the murder: Mrs
Stone and Mrs Bennet that they now remembered the appellant arriving at
work after 4.0pm. Those changes by themselves establish nothing. The
police had a particularly brutal and unpleasant murder to investigate,
and it must come as no surprise that they made all efforts to find the
killer and bring that killer to justice.
127. They were, as we have said, quite wrong not to allow this
appellant a solicitor. They allowed their quest for a conviction to
override their responsibilities to an accused, and particularly to a
vulnerable accused. If that fundamental right had not been denied this
appellant a false confession would not have been made. We do not however
make any other finding of misconduct against the police in this case.
128. No criticism is made of the way the judge dealt with this matter
in his summing-up, and the argument that the judge should have withdrawn
the case from the jury once the alibi evidence had been given was not
pursued. As a self sufficient defence we can see force in the points Mr
Perry made for the Crown. The appellant never himself gave evidence to
support the alibi. He never mentioned visiting the bank when questioned
on 19th May 1982 or on 23rd May 1982 or indeed on
4th July 1982, this despite having made the telephone call on
11th May 1982 at which time one might (argued Mr Perry) have
expected him to have recalled where he was on the afternoon of the 10th
May. Indeed, pointed out Mr Perry, the consistency of the appellant was
simply that he never could account for his whereabouts during the
afternoon of the 10th between 2.30 and 3.30 pm. The cashing
of a cheque was only discovered by the hard work of the solicitor acting
for the appellant at the trial during 1984, and thus it was that the
statement of Mrs Hewer was only obtained in July 1984.
129. But the dismantling of the alibi by the Crown was not attempted
on any basis other than that if the admissions were true, then the alibi
must be false and there must be some explanation other than that the
appellant cashed a cheque personally on that afternoon.
130. Once the admissions are shown to be suspect, the defeat of the
alibi itself becomes suspect.
131. Mr Perry accepts that there was non-disclosure (1) that there
were various people that Mr Hackney had identified as persons he
recognised as being the person on the common; (2) that of the 157 calls
to the police identifying persons that resembled the photofit pictures
published, only 5 related to the appellant, and 152 related to a variety
of different other persons; and (3) of the recognition by Peter Carter
and Christine Dye of the photofit resembling a person that had attacked
them on the common a year before the murders, at a time when the
appellant was in Germany in the Army.
132. Mr Perry argued that the disclosure would not have made any
difference. He pointed to the fact that a photograph of the appellant
taken in September 1982 bore a marked resemblance to the photofit
pictures assembled as a result of Mr Hackney's description. Thus that
the appellant did resemble the photofit was a fact which the jury would
always have taken in. They would also have taken in from the interviews
that the police made clear that there were others whom other people had
identified from the photofit (Interviews 949 and 997). They would also
have appreciated that Mr Hackney could not be sure of the appellant's
identity on an identity parade.
133. If these had been free-standing grounds of appeal, there would
be force in Mr Perry's points. He would have been able to rely on the
admissions and the telephone calls, which, if reliable, would have
provided a very strong case. To that would have been added the telling
of lies about the knife and the camouflage jacket, all of which might
well have followed if the reliability of the admissions could have been
relied on.
134. The fact is however that they are not free standing. We doubt
still whether they add much to a conclusion which we had already reached
that these convictions are unsafe.
135. We announced at the conclusion of the hearing on Friday 2 March
2001 that the convictions would be quashed for reasons to be given
later. These are those reasons.
I only have one brief application and it is for an order for defence
costs out of central funds. That need not trouble the Court under the
regulations about amount because there is a procedure whereby it is
assessed within the Criminal Appeal Office by a sort of taxing master.
My Lord, this is more aimed at Mr Roberts, the defence solicitor at
trial, who assiduously carried on working, obviously with no legal aid
existing, for many years after this conviction and he will of course
have to justify his claim and it will be assessed in due course. I do
ask my Lord to make that order. My Lord it is made in very many
successful conviction appeals.
